Petition for Writ of Certiorari — Antonio M. Smith, Petitioner v. John Kind, et al.

APPENDICES

ii

TABLE OF CONTENTS

Page

Appendix A – Opinion of the Seventh Circuit (May 30, 2025) ................................... 1a

Appendix B – Final Judgment of the Seventh Circuit (May 30, 2025) ..................... 38a

Appendix C – Opinion and Order of the

United States District Court of the

Eastern District of Wisconsin (May

22, 2024) .................................................... 40a

Appendix D – Judgment of the United

States District Court of the Eastern

District of Wisconsin (May 22, 2024) ....... 84a

Appendix E – Order of the Seventh Circuit

Denying Rehearing en banc (Sept. 2,

2025) .......................................................... 86a

1a

APPENDIX A

In the

United States Court of Appeals

For the Seventh Circuit

________________

No. 22-2870

ANTONIO M. SMITH,

Plaintiff-Appellant,

v.

JOHN KIND, et al.,

Defendants-Appellees.

________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:18-cv-01569-PP – Pamela Pepper, Chief

Judge.

________________

ARGUED DECEMBER 6, 2024 − DECIDED MAY 30, 2025

________________

Before HAMILTON, SCUDDER, and LEE, Circuit

Judges.

2a

SCUDDER, Circuit Judge. Nearly 50 days into a

hunger strike, Antonio Smith refused a correctional

officer’s order to exit his cell for a daily wellness check.

So for three days, officers entered Smith’s cell, assisted him into a wheelchair, and transported him to

the prison’s health unit ̶ all without incident. But perhaps frustrated by the noncompliance, Captain Jay

Van Lanen changed course on day four by resorting to

pepper spray for the extraction, knowing that Smith

had a medical contraindication to the spray. Smith reacted to the spray by gasping for breath for about

eight minutes, only then to find himself placed naked

in a cold cell for the next 23 hours. Because we conclude that a jury could find that both actions ̶ using

pepper spray and housing Smith in the frigid cell ̶

lacked a legitimate penological purpose and thus violated the Eighth Amendment, we disagree with the

district court’s grant of summary judgment for the defendants on that ground. But in the end, troubled

though we are by what Smith endured, the principle

of qualified immunity leads us to affirm.

I

A

At the summary judgment stage, we view the facts

in the light most favorable to the nonmoving party,

here Antonio Smith. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). By his telling, the situation unfolded as follows.

In October 2017 Smith began a prolonged hunger

strike to protest prison conditions at Green Bay Correctional Institution in Wisconsin. Pursuant to prison

policy, Smith had reported to the prison’s health unit

for 45 days, each time declining to submit to a wellness check. On day 46, however, he declined to leave

3a

his cell, believing that prison policy allowed a nurse to

come to him. A nurse did indeed go to Smith’s cell that

day to document his refusal to submit to the wellness

check.

The following day correctional officers once again

directed Smith to leave his cell to go to the health unit.

Having received authorization to use force to gain

Smith’s compliance, a correctional officer entered the

cell with a taser drawn as Smith lay prone on his bed

in a so-called “surrendering ritual” ̶ hands behind his

back, legs crossed at the ankles, and facing the wall.

An extraction team followed closely behind and placed

Smith in handcuffs and leg restraints before sitting

him in a mobile restraint chair, essentially a wheelchair, which allowed them to transport him to the

health unit. Smith continued to refuse orders to leave

his cell, so the team followed this same procedure the

next day. And when Smith refused for the fourth time,

a new correctional officer, Captain Jay Van Lanen,

took charge of the extraction and repeated the same

process.

But on November 28, 2017, when Smith refused to

walk to the health unit for the fifth time, the process

changed again. For reasons not clear in the record, the

officers elected to videotape this extraction. So although we continue to view genuine factual disputes

in favor of Smith, we will defer to the video footage if

it “firmly settles a factual issue.” Horton v. Pobjecky,

883 F.3d 941, 944 (7th Cir. 2018).

Captain Van Lanen gathered a four-man extraction team outside the restrictive housing unit where

Smith was housed. He stated that the extraction techniques used the previous three days were no longer

suitable. Elaborating, Van Lanen said that Smith had

“an extensive violent history with assigning hits on

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the streets to have people killed, assault[ing] within

the prison system, and assault[ing] in general

throughout his prison career.” Smith had also grown

accustomed to the previous extraction method, Van

Lanen observed, and the team had no way of knowing

whether he had a weapon in his cell. Finally, Van

Lanen explained that, because Smith was on a hunger

strike, it was important to observe whether he could

walk to the health unit, rather than be wheeled in a

restraint chair. On that basis, he believed it necessary

to alter their approach for this extraction, adding that,

although Smith had a medical contraindication to

pepper spray, Security Director John Kind had authorized its use.

Donning full tactical gear, the extraction team entered the housing unit and approached Smith’s cell.

Lying on his bed, Smith removed his blanket to allow

the officers to see his full body and assumed the socalled surrendering ritual. For five minutes, Captain

Van Lanen urged Smith to come to the cell door.

Smith ignored the instruction.

Van Lanen then informed Smith of his intent to

use pepper spray to gain compliance and reminded

him about his contraindication to the spray. When

Smith did not budge, Van Lanen deployed a burst of

the spray through his cell window, immediately triggering Smith’s asthma. The video shows that, for

eight minutes, Smith had difficulty breathing, seemed

disoriented, and was drooling, coughing, spitting, and

moaning. While Smith continued to gasp for air, Van

Lanen ordered him to remove his clothes and comply

with a strip search. Although he struggled to compose

himself, Smith obeyed the order.

After handcuffing Smith, still naked, the extraction team covered his genitals with a towel. They then

5a

helped him to his feet and walked with him down the

hallway to the health unit where he refused a shower

and wellness check. Instead of returning Smith to his

cell, as done the three previous days, the officers

placed him in a “control cell” used for disruptive inmates. Van Lanen informed Smith he could request a

shower and soap at any time and said he would return

to discuss “clothing and stuff.” This discussion occurred around noon on November 28.

Smith offered evidence that the control cell was

very cold the night of November 28. By his account,

the heating vent blew air equivalent to the outside

temperature, which, during his stay in the cell, ranged

from 25 to 57 degrees Fahrenheit. All the while, the

control cell had no mattress or bedding, and Smith no

clothes. And although Captain Van Lanen’s past practice involved placing a smock, clothing, and other permitted property in a security box attached to the cell

regardless of whether an inmate requests such items,

he did not do so for Smith.

Three and a half hours after being placed in the

cell, Smith requested clothing, bedding, and a mattress from Lieutenant Timothy Retzlaff. He also complained of the cold and asked to be moved to a warmer

cell. Retzlaff informed Smith that he needed to check

with Captain Van Lanen. Twelve hours later, another

officer approached Smith and proposed an offer: if

Smith submitted to future medical evaluations, he

could have a smock; if not, he would remain naked and

cold. Smith declined the offer.

Smith continued waiting for Lieutenant Retzlaff

to return with word from Captain Van Lanen. But

word never came. So day turned to night. And night

turned to day. And 23 hours after Van Lanen placed

him in the control cell, there Smith remained, naked

6a

and freezing. He described his time in the cell as painful, adding that he could not sleep and spent most of

the 23 hours on his feet.

B

In time Smith invoked 42 U.S.C. § 1983 and filed

a complaint in federal court alleging that various correctional officers violated his constitutional rights. After screening, the district court allowed him to proceed

on his Eighth Amendment excessive force claims

against Captain Van Lanen for using pepper spray

and Security Director John Kind for authorizing its

use; an Eighth Amendment conditions-of-confinement

claim against Van Lanen and Lieutenant Retzlaff

stemming from Smith’s night in the control cell; and

an Eighth Amendment excessive force claim against

officers Alexander Bonis, John Diedrick, and Cole

Meyer for alleged misconduct during their escort of

Smith to the health unit following the use of pepper

spray. The defendants moved for summary judgment

on each claim, and the district court, seeing no Eighth

Amendment violations, granted their motion in its entirety.

Smith now appeals.

II

Summary judgment is appropriate when there is

“no genuine dispute as to any material fact,” and the

moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a). In reviewing the district

court’s summary judgment ruling, we proceed on “a

clean slate, drawing all reasonable inferences from

the record in favor of [Smith] as the non-movant.”

Xiong v. Bd. of Regents of Univ. of Wis. Sys., 62 F.4th

350, 353 (7th Cir. 2023).

7a

Smith alleges three Eighth Amendment violations. A viable Eighth Amendment claim contains

both an objective and subjective component. See

Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective component requires Smith to show that the officers’ actions were “objectively ‘harmful enough’ to establish a constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 8 (1992) (quoting Wilson v. Seiter, 501

U.S. 294, 303 (1991)). As for the subjective component,

Smith must establish that the defendants “acted wantonly and with a sufficiently culpable state of mind.”

Lunsford v. Bennett, 17 F.3d 1574, 1579 (7th Cir.

1994) (citing Wilson, 501 U.S. at 297).

The defendants urge us to affirm the district

court’s ruling that they acted at all times in good faith,

without wantonness and within constitutional

bounds. They also invite us to affirm on the alternative ground of qualified immunity. We travel the latter path.

“The doctrine of qualified immunity” is an affirmative defense that “shields officials from civil liability

so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Mullenix v.

Luna, 577 U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Once a defendant

raises the defense, “it becomes the plaintiff’s burden

to defeat it.” Jewett v. Anders, 521 F.3d 818, 823 (7th

Cir. 2008).

To overcome qualified immunity, Smith must

clear two hurdles. First, he must show that the officers violated his constitutional rights. Second, he must

demonstrate that those rights were clearly established at the time of the violation. See Pearson, 555

U.S. at 232. Courts have discretion to begin with the

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second step to refrain from ruling on potentially difficult constitutional questions. See id. at 236. This approach, the Supreme Court has explained, aligns with

principles of constitutional avoidance and can save

“substantial expenditure of scarce judicial resources

on difficult questions that have no effect on the outcome of the case.” Id. at 236–37.

But skipping the first question has its drawbacks.

Continued avoidance of constitutional questions, the

Supreme Court likewise has recognized, stunts the development of constitutional precedent. See id. at 236

(recognizing that following “the two-step procedure

promotes the development of constitutional precedent

and is especially valuable with respect to questions

that do not frequently arise in cases in which a qualified immunity defense is unavailable”); Camreta v.

Greene, 563 U.S. 692, 704–06 (2011) (observing that

constitutional avoidance “sometimes does not fit the

qualified immunity situation because it threatens to

leave standards of official conduct permanently in

limbo” and explaining that “constitutional determinations” in qualified immunity cases are “self-consciously designed” to “establish[] controlling law and

prevent[] invocations of immunity in later cases”).

This downside is especially evident when we look

to the demanding standard for showing that a right is

“clearly established”: a plaintiff must point to “existing precedent” that puts the “statutory or constitutional question beyond debate” ̶ no doubt a monumental task if there is little constitutional precedent to

consider. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

Recognizing that both approaches have a proper time

and place, the Supreme Court leaves it to the “sound

discretion” of the lower courts to determine the order

of decision. See Pearson, 555 U.S. at 236.

9a

We exercise that discretion here to consider the

first prong and resolve whether Smith demonstrated

a constitutional violation for each of his three claims.

Doing so allows us to clarify Eighth Amendment law

in our circuit and establish future constitutional

boundaries to what, if Smith’s account is taken as

true, we see as a serious and disproportionate correctional response to an inmate’s noncompliance with an

officer’s directives. See Camreta, 563 U.S. at 705 (explaining that the purpose of allowing courts the discretion to reach the constitutional question is “to promote clarity ̶ and observance ̶ of constitutional rules”).

A

1

We begin with Smith’s Eighth Amendment excessive force claims arising from the use of pepper spray.

Smith advances this claim against Captain Van

Lanen, the correctional officer who deployed the spray

and led the cell-extraction efforts, as well as John

Kind, the Green Bay prison’s Security Director. Because Smith has provided no evidence that Kind acted

with wantonness in authorizing Van Lanen’s use of

force to facilitate his extraction, we affirm the district

court’s grant of summary judgment in Kind’s favor.

The analysis for Van Lanen is not so straightforward,

however.

Captain Van Lanen does not dispute that his use

of pepper spray satisfies the objective harm component of Smith’s Eighth Amendment claim. So we consider only whether he acted with the requisite intent ̶

wantonness. See Wilson, 501 U.S. at 302. “Wantonness,” the Supreme Court has explained, “does not

have a fixed meaning but must be determined with

‘due regard for differences in the kind of conduct

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against which an Eighth Amendment objection is

lodged.’” Id. (quoting Whitley v. Albers, 475 U.S. 312,

320 (1986)). Experience shows that excessive force

claims often arise in contexts where correctional officers are required to act “in haste, under pressure, and

frequently without the luxury of a second chance,”

such as in quelling a riot or other disturbance. Whitley, 475 U.S. at 320. Correctional officers “must balance the threat unrest poses to inmates, prison workers, administrators, and visitors against the harm inmates may suffer if guards use force.” Hudson, 503

U.S. at 6.

Recognizing the difficulty of balancing these competing concerns, the Supreme Court has held that

Eighth Amendment excessive force claims require a

“very high state of mind”: a correctional officer’s use

of force only qualifies as “unnecessary and wanton infliction of pain” if it is applied not “in a good-faith effort to maintain or restore discipline,” but “maliciously and sadistically to cause harm.” Wilson, 501

U.S. at 302; Hudson, 503 U.S. at 6.

Because direct evidence of intent rarely exists,

several factors inform whether “the use of force could

plausibly have been thought necessary, or instead

evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing

willingness that it occur.” Whitley, 475 U.S. at 321.

Those factors include examining the need for force,

the threat posed by the inmate as reasonably perceived by the responsible official, the relationship between the need for force and the amount of force used,

and any efforts made to temper the severity of a forceful response. See id.; see also Hudson, 503 U.S. at 7.

Applying these factors, we conclude that a reasonable

jury could infer that Captain Van Lanen’s deployment

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of pepper spray into Smith’s cell under the circumstances presented here was malicious and sadistic.

We, of course, recognize that correctional officers

have broad leeway to exercise force when a situation

presents a threat to immediate safety. See Whitley,

475 U.S. at 321 (explaining that deference to prison

administrators “carries special weight” when the

“‘ever-present potential for violent confrontation and

conflagration’ ripens into actual unrest and conflict”

(citation omitted) (quoting Jones v. N.C. Prisoners’

Lab. Union, Inc., 433 U.S. 119, 132 (1977)); Lewis v.

Downey, 581 F.3d 467, 477 (7th Cir. 2009) (observing

that aggressive behavior “increases the need for force

and often poses a threat to the security officers”). But

viewing the facts in Smith’s favor, as we must, a jury

could find that he posed no such threat at the time

Captain Van Lanen deployed pepper spray into his

cell.

Remember, foremost, that officers had entered

Smith’s cell to facilitate his extraction for three

straight days before Captain Van Lanen chose to resort to pepper spray. Each of those extractions proceeded without incident in the same routine way, and

nothing in the record suggests that Smith acted aggressively toward correctional officers or threatened

violence in the future. To be sure, in the pre-extraction

meeting, Van Lanen stated that Smith had a history

of assaultive behavior while in prison. But the summary judgment record contains no documented instances of Smith engaging in any violence while incarcerated. And Smith, for his part, insists that he had

no history of violence while incarcerated.

But even on the generous assumption that Van

Lanen’s perception that Smith had a history of violent

behavior was reasonable, see McCottrell v. White, 933

12a

F.3d 651, 668–69 (7th Cir. 2019), on this record we

have a hard time seeing his decision to change

course—to shift from entering Smith’s cell without incident to using pepper spray to which Smith had a

medical contraindication ̶ as justified. For starters, if

Smith had a reputation of being assaultive on the day

Van Lanen used pepper spray, then he surely had that

reputation the day before. Van Lanen, however, offered no explanation for why Smith’s alleged past behavior did not deter him from entering Smith’s cell the

previous day. So we are puzzled as to what prompted

Van Lanen to discontinue a successful extraction

method in favor of one that he knew could cause complications for Smith’s health.

Nor can we lose sight of the bigger picture: a fourman extraction team donned full tactical gear and

faced a single, unarmed inmate, lethargic after reportedly starving himself for more than 50 days. See

Lewis, 581 F.3d at 477 (considering that an inmate

“was merely lying on his bunk, weak and sluggish

from more than ten days without food” when analyzing a correctional officer’s need for force); see also Abbott v. Sangamon County, 705 F.3d 706, 727 (7th Cir.

2013) (discussing the “general proposition” that using

pepper spray on a subdued subject is excessive).

Captain Van Lanen also attempted to justify his

resort to pepper spray by suggesting that Smith may

have had a weapon. But here too we see, and Van

Lanen has identified, no evidence supporting that

speculation: Smith was in restrictive housing, had not

used or threatened to use a weapon during previous

extractions, and his hands were visible and empty at

all times. Van Lanen has likewise failed to explain

why his concern about Smith harboring a weapon suddenly developed ̶ he extracted Smith from his cell

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without pepper spray and without incident just the

day before.

Still, we recognize that an immediate threat to

safety is not the only circumstance in which a correctional officer can appropriately use force. The Supreme Court has emphasized many times over that

correctional officers receive special deference in their

approach to restoring or maintaining order and discipline. See, e.g., Bell v. Wolfish, 441 U.S. 520, 547

(1979); Whitley, 475 U.S. at 322; Hudson, 503 U.S. at

6. That deference applies not only to materialized

threats to prison order and inmate misconduct, like

fighting or rioting, but also to preventative measures

intended to avoid future disturbances. See Whitley,

475 U.S. at 322.

We applied this same principle to reverse a district court’s determination that prison officials’ use of

mace on inmates who repeatedly refused orders to exit

their cells violated the Eighth Amendment. See Soto

v. Dickey, 744 F.2d 1260, 1271 (7th Cir. 1984). The correctional officers in Soto, like here with Smith, issued

what seemed like non-emergency directives to inmates locked in their cells. See id. at 1265–67. But the

similarities between the two cases end there.

Many of the inmates in Soto had well-known and

documented histories of assaulting prison guards and

other inmates. See id. at 1265. The events leading to

the use of pepper spray often involved situations

where inmates prone to throwing items (like meal

trays) at guards refused to turn over the objects. See

id. at 1265–66. Put simply, it gives analogy a bad

name to see the inmates in Soto as like Smith, who

was 50 days into a hunger strike and had no demonstrated history of violence within the prison. And

while correctional officials entered Smith’s cell three

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days in a row without incident, the maximum-security

prison in Soto had developed its policy of using pepper

spray as the first response to an inmate’s refusal to

leave his cell after careful analysis and consideration

of the unit’s history of disruption and the inmates’

past use of makeshift weapons. See id. at 1262–65,

1267.

Captain Van Lanen nevertheless insists that, like

the guards in Soto, he was justified in using pepper

spray once Smith refused his orders because

“[i]nmates cannot be permitted to decide which orders

they will obey, and when they will obey them.” Id. at

1267. At that level of generality, we agree—inmates

may not pick and choose which orders to obey. But an

inmate’s passive disobedience, without more, does not

in and of itself authorize unrestrained or extreme escalation of force. See Treats v. Morgan, 308 F.3d 868,

872–73 (8th Cir. 2002) (“Not every instance of inmate

resistance justifies the use of force, and use of pepper

spray will not be justified every time an inmate questions orders or seeks redress for an officer’s actions.”

(citations omitted)). Instead, we consider an inmate’s

disobedience, along with the surrounding “facts and

circumstances,” to determine whether a particular use

of force was necessary. Soto, 744 F.2d at 1270. Here,

several factors ̶ particularly Smith’s weakened condition and the history of peaceful and successful extractions on three preceding days ̶ could lead a reasonable

jury to find that Van Lanen’s use of pepper spray was

unnecessary.

Our conclusion that the need for Van Lanen to resort to pepper spray was relatively low informs the

corollary analysis of the relationship between the

need for force and the amount of force used. If there

was little need for force, then even a small amount of

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force may be disproportionate. See McCottrell, 933

F.3d at 667 (“Obviously, if there was no need for the

warning shots, then those shots were significantly disproportionate to the need for force.”).

Many inmates may experience pepper spray as a

relatively minor use of force. See Soto, 744 F.2d at

1262 (“Without exception, the institutional officials

and officers were of the opinion that the use of mace

was much more humane and effective than a flesh to

flesh confrontation with an inmate.”); see also Roberson v. Torres, 770 F.3d 398, 406–07 (6th Cir. 2014)

(explaining that whether use of pepper spray is preferable to a physical altercation depends on the circumstances). And courts, including ours, have sanctioned

the use of pepper spray on noncompliant inmates. See,

e.g., Soto, 744 F.2d at 1270; Staples v. Gerry, 923 F.3d

7, 17–18 (1st Cir. 2019).

But Smith was not the typical inmate. See

Segrain v. Duffy, 118 F.4th 45, 61 (1st Cir. 2024) (explaining that the “type of physical reaction an incarcerated person has to the pepper spray” matters in an

Eighth Amendment excessive force analysis). Not only

was he 50 days into a hunger strike, but he also had a

documented history of asthma, making the resort to

pepper spray all the more dangerous. See Garvin v.

Armstrong, 236 F.3d 896, 898 (7th Cir. 2001)

(“Asthma, depending upon its degree, can be a serious

medical condition.”). Captain Van Lanen knew of this

danger.

In the final analysis, based on Smith’s version of

events, we conclude that a reasonable jury could find

in his favor on the excessive force claim against Captain Van Lanen. The evidence supports a “reliable inference” that Van Lanen knew that Smith—on the

verge of starvation, with no documented history of

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violence while incarcerated—posed no credible threat

to officer safety or prison administration. Whitley, 475

U.S. at 322. From there a jury could determine that

Van Lanen’s opting for a method of force that he knew

Smith had a medical contraindication to was so disproportionate to the risks that it could not “plausibly

have been thought necessary” and “instead evinced

such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” Id. at 321.

2

Having determined that a jury could find that Van

Lanen violated Smith’s constitutional rights, we move

to the second prong of the qualified immunity analysis: whether that right was clearly established. See

Pearson, 555 U.S. at 232. It is on this prong that

Smith falls short. The fact intensive inquiry that led

us to conclude that Van Lanen’s actions violated his

right to be free from excessive force precludes us from

determining at the requisite level of specificity that

the constitutional violation was clearly established

enough as to put Van Lanen on notice.

State correctional officers are immune from liability for conduct that “does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Kisela v.

Hughes, 584 U.S. 100, 104 (2018) (per curiam) (quoting White v. Pauly, 580 U.S. 73, 78–79 (2017) (per curiam)). For a law to be clearly established, “existing

precedent must have placed the statutory or constitutional question beyond debate.” White, 580 U.S. at 79

(quoting Mullenix, 577 U.S. at 12); see Sabo v. Erickson, 128 F.4th 836, 844 (7th Cir. 2025) (en banc). Put

differently, save for the “rare ‘obvious’” violation,

Smith must identify a case that “every reasonable

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official would interpret ... to establish the particular

rule” he seeks to apply. District of Columbia v. Wesby,

583 U.S. 48, 63 (2018) (quoting Brosseau v. Haugen,

543 U.S. 194, 199 (2004) (per curiam)).

Smith cannot clear this high bar. Returning our

attention to Soto, he contends that Captain Van

Lanen violated his clearly established right by using

“mace or other chemical agents in quantities greater

than necessary.” 744 F.2d at 1270. But the Supreme

Court has cautioned courts against reasoning from

broad principles when considering whether a right is

clearly established for qualified immunity purposes.

See Kisela, 584 U.S. at 104. Especially in excessive

force cases, where “it is sometimes difficult for an officer to determine how the relevant legal doctrine ...

will apply to the factual situation the officer confronts,” correctional officers are entitled to qualified

immunity “unless existing precedent ‘squarely governs’ the specific facts at issue.” Id. (emphasis added)

(quoting Mullenix, 577 U.S. at 308–09); see also Smith

v. Finkley, 10 F.4th 725, 742 (7th Cir. 2021) (observing

that specificity is “particularly important” in excessive force cases, “as it can be difficult to determine

how the law will apply to a factual situation”).

After examining the specific facts before us, we

cannot conclude that a reasonable correctional officer

would have known that using pepper spray to extract

Smith from his cell violated the Eighth Amendment.

Indeed, in Soto ̶ the only controlling case Smith relies

on ̶ we held that the correctional officer could deploy

pepper spray on non-compliant inmates. See 744 F.2d

at 1270–71. No other precedent from our court or the

Supreme Court addresses circumstances close enough

to those here to defeat qualified immunity.

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Nor does Smith’s documented medical contraindication to pepper spray change the outcome. While a

close call, we do not view Smith’s account of what

transpired here, though very concerning, as falling

within that narrow category of cases where the constitutional violation is so severe and blatant as to be obvious. See Hope v. Pelzer, 536 U.S. 730, 738 (2002)

(holding that correctional officers were not entitled to

qualified immunity for handcuffing an inmate to a

hitching post for seven hours in extreme heat because

“the Eighth Amendment violation was obvious”); Taylor v. Riojas, 592 U.S. 7, 8–9 (2020) (per curiam) (reversing a court of appeals’s decision that granted correctional officers qualified immunity for housing an

inmate in a sewage-filled, frigidly cold cell for four

days because any reasonable officer would know such

conditions offend the Eighth Amendment).

We therefore affirm the district court’s grant of

summary judgment for Captain Van Lanen on Smith’s

Eighth Amendment excessive force claim.

B

1

We next consider whether the conditions Smith

faced during his 23 hours in the control cell violated

the Eighth Amendment. Here too we conclude that a

jury could find in Smith’s favor.

The Constitution allows restrictive and even

harsh conditions of confinement. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). What the Constitution

does not allow, however, is a deprivation “of the minimal civilized measure of life’s necessities.” Id. A prison

official who denies an inmate an “identifiable human

need such as food, warmth, or exercise,” Wilson, 501

U.S. at 304, “violates the Eighth Amendment upon

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exhibiting ‘deliberate indifference to a substantial

risk of serious harm to an inmate,’” Thomas v. Blackard, 2 F.4th 716, 719 (7th Cir. 2021) (quoting Farmer,

511 U.S. at 828). To succeed on his Eighth Amendment claim, then, Smith must show that Lieutenant

Retzlaff and Captain Van Lanen denied him a human

need and did so with deliberate indifference.

Because warmth is one such need, “prisoners have

a right to protection from extreme cold.” Dixon v.

Godinez, 114 F.3d 640, 642 (7th Cir. 1997). Whether

an inmate’s exposure to cold rises to a constitutional

level depends on “the severity of the cold; its duration;

whether the prisoner has alternative means to protect

himself from the cold; the adequacy of such alternatives; as well as whether he must endure other uncomfortable conditions as well as cold.” Id. at 644. This

fact-intensive inquiry “will often be peculiarly appropriate for resolution by the trier of facts.” Id. at 643.

Smith spent almost 24 hours in a cell equivalent

to the temperature outside. And despite the temperature reaching below freezing at night, he was left naked ̶ given no clothes, no bedding, and no way to protect himself from the cold. See Wilson, 501 U.S. at 304

(observing that a low cell temperature at night plus

failure to issue blankets can combine to create unconstitutional conditions of confinement). Smith explained that the extreme cold he experienced overnight caused him pain and prevented sleep. On these

facts, Smith has done enough to create a genuine dispute of material fact as to whether these conditions

meet the “constitutionally necessary minimum protection against severe cold.” Dixon, 114 F.3d at 644.

The question then becomes whether Smith has

presented evidence that Captain Van Lanen and Lieutenant Retzlaff acted with deliberate indifference.

20a

This requires us to determine if a reasonable jury

could conclude that the two defendants had actual

knowledge that Smith faced “a substantial risk of serious harm” to his health or safety and, if so, what

steps they took to respond to that risk. Farmer, 511

U.S. at 847.

Beginning with Captain Van Lanen, a few observations lead us to conclude that a reasonable juror

could find that he was deliberately indifferent to

Smith’s exposure to extreme cold. First, he placed

Smith naked in a cold cell surely knowing that it was

November 28 in Green Bay, Wisconsin when the temperature would (and did) drop below freezing. Van

Lanen did so with full awareness of Smith’s weakened

state and pepper spray-induced asthma attack. Second, Van Lanen chose not to follow his usual practice

of making a smock and bedding available to Smith in

the control cell. Nor did he ever return to the cell that

night to discuss clothing, even though he promised

Smith he would do so.

Viewing these facts in the light most favorable to

Smith, a juror could reasonably conclude that Van

Lanen was aware of the risk of serious harm to Smith

̶ left naked in a frigid cell overnight ̶ but did nothing,

making him deliberately indifferent to that risk. Id. at

842 (“Whether a prison official had the requisite

knowledge of a substantial risk is a question of fact

subject to demonstration in the usual ways, including

inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a

substantial risk from the very fact that the risk was

obvious.” (citation omitted)); see also id. at 842 (“[I]t is

enough that the official acted or failed to act despite

his knowledge of a substantial risk of serious harm.”).

21a

The analysis is even more straightforward for

Lieutenant Retzlaff. Smith asked Retzlaff to provide

him with clothes and bedding or move him to a

warmer cell. Retzlaff did neither. A jury could therefore infer that he was deliberately indifferent to the

serious health risk arising from Smith’s exposure to

extreme cold.

2

Again though, when it comes to defeating a qualified immunity defense, establishing a constitutional

violation is only one step, not the finish line. Smith

must also show that the conditions of the control cell

were unconstitutional “beyond debate.” Ashcroft, 563

U.S. at 741. It is at this step that Smith’s claim again

falls short.

Our case law is clear on the general proposition

that inmates have a well-established constitutional

right to protection from extreme cold. See, e.g., Henderson v. DeRobertis, 940 F.2d 1055, 1059 (7th Cir.

1991). But this statement sweeps too broadly for qualified immunity purposes. To overcome the officers’ immunity defense, Smith needs to show that the specific

conditions he faced in the control cell were unconstitutional.

Once we view the situation at the appropriate

level of particularity, we can locate no case that

“squarely governs” Van Lanen’s or Retzlaff’s conduct.

Brosseau, 543 U.S. at 201. Before today, we had never

held it unconstitutional on closely analogous facts to

house an inmate in a cell that ranged in temperature

from 25 to 57 degrees over a 23-hour period without

clothes or a way to keep warm.

To be sure, Smith points us to a number of cases

where we determined that cold cell conditions violated

22a

an inmate’s Eighth Amendment rights. But the temperature in those cases was more extreme, see, e.g.,

Henderson, 940 F.2d at 1057 (four days of subzero

temperature); Del Raine v. Williford, 32 F.3d 1024,

1031 (7th Cir. 1994) (temperature reached 50 degrees

below zero during an inmate’s strip search), or the duration extended far beyond 23 hours, see, e.g., Lewis

v. Lane, 816 F.2d 1165, 1166, 1171 (7th Cir. 1987) (cell

temperature was around 53 degrees for two months).

And while we credit the pain and extreme discomfort

Smith says he experienced, we cannot conclude that

this constitutional violation was so “obvious” as to

avoid the need to point to a closely analogous case.

Wesby, 583 U.S. at 63 (quoting Brosseau, 543 U.S. at

199).

That leaves us to affirm the district court’s grant

of summary judgment for Van Lanen and Retzlaff on

Smith’s conditions-of-confinement claim.

C

Smith’s final claim concerns the escort from his

cell to the health unit after the pepper spray incident.

He contends that members of the extraction team ̶ Alexander Bonis, John Diedrick, and Cole Meyer ̶ exercised excessive force by placing him in chokeholds and

bending his wrists. We agree with the district court’s

conclusion that Smith’s characterization of his escort

is “contradicted by the record, so that no reasonable

jury could believe it.” Scott v. Harris, 550 U.S. 372,

380 (2007).

Video footage of the extraction confirms that the

officers did not behave maliciously while escorting

Smith. Because he had difficulty sustaining his own

weight, two officers supported Smith by his arms. And

despite Smith’s assertion otherwise, the video shows

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no dragging, chokeholds, or other misconduct. There

being no violation of the Eighth Amendment, we affirm the district court’s grant of summary judgment

for the defendants on this claim.

***

For these reasons, we AFFIRM the district court’s

grant of summary judgment for the defendants on

each of Smith’s claims.

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HAMILTON, Circuit Judge, concurring in part and

dissenting in part. I agree with most of the analysis

and holdings in Judge Scudder’s opinion for the court.

I agree that a jury could find that defendant Van

Lanen violated the Eighth Amendment by using the

pepper spray against plaintiff Smith, at least where

Van Lanen knew of plaintiff’s special vulnerability to

that weapon, but that Van Lanen is entitled to qualified immunity on that claim. I also agree that, given

the video evidence, we must affirm summary judgment on plaintiff’s excessive force claim based on the

guards’ moving plaintiff to the control cell.

I also agree with the majority’s holding that plaintiff offered evidence that would allow a jury to find

that defendants Van Lanen and/or Retzlaff imposed

conditions of confinement on plaintiff that violated his

Eighth Amendment rights. Plaintiff has provided evidence that the defendants intentionally placed him

and left him for hours in a cold cell without clothing

or blankets or other protection. The majority’s holding

that a jury could find this deliberate exposure of a

prisoner to extreme cold without protection to have

been cruel and unusual punishment is clear and important. And the majority wisely chooses to use our

discretion to decide step one of the qualified immunity

analysis—the merits of the claims—on both the pepper spray claim and the conditions of confinement

claim.

I.

Qualified Immunity and Deliberate Exposure to

Cold

With respect, however, I must dissent from the

majority’s decision to affirm summary judgment for

defendants Van Lanen and Retzlaff on the claim for

deliberate exposure to cold based on the defense of

qualified immunity. The majority reaches that

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conclusion by applying what the Supreme Court has

called “a rigid, overreliance on factual similarity.”

Hope v. Pelzer, 536 U.S. 730, 742 (2002). As the majority explains here: “Before today, we had never held

it unconstitutional on closely analogous facts to house

an inmate in a cell that ranged in temperature from

25 to 57 degrees over a 23-hour period without clothes

or a way to keep warm.” Ante at 21. That observation

is literally correct but certainly should not be decisive.

It loses sight of the long-established and more general

standard for qualified immunity: whether a reasonable official in the defendant’s position would have understood that his actions were unlawful. E.g., Ziglar

v. Abbasi, 582 U.S. 120, 152 (2017); Hope, 536 U.S. at

739; Saucier v. Katz, 533 U.S. 194, 206 (2001); Anderson v. Creighton, 483 U.S. 635, 640 (1987); Manery v.

Lee, 124 F.4th 1073, 1080 (7th Cir. 2025); Doxtator v.

O’Brien, 39 F.4th 852, 863 (7th Cir. 2022).

Prisoners have a well-established right not to be

subjected to extreme cold, at least without protection

from it. For purposes of summary judgment and this

appeal, we must assume that these defendants deliberately placed a prisoner “in a cell that ranged in temperature from 25 to 57 degrees over a 23-hour period

without clothes or a way to keep warm.” Ante at 21.

As the majority opinion explains, several pieces of evidence ̶ including defendant Van Lanen’s typical practice of providing inmates with a smock, his failure to

return to discuss clothing with Smith, and the Green

Bay weather in late November ̶ would allow a reasonable jury to infer that Van Lanen, Retzlaff, or both

were deliberately indifferent to plaintiff Smith’s unprotected exposure to the cold. I respectfully submit

that it should have been obvious to a reasonable

prison official that such conditions violate a prisoner’s

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right not to be subjected to cruel and unusual punishment.

The Supreme Court and our court have long recognized that where the constitutional violation is sufficiently obvious, a plaintiff need not always point to

a case that is factually on all fours. Hope, 536 U.S. at

740–41; Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)

(collecting cases and explaining: “We do not require a

case directly on point, but existing precedent must

have placed the statutory or constitutional question

beyond debate.”); Schimandle v. Dekalb County Sheriff’s Office, 114 F.4th 648, 655 (7th Cir. 2024) (plaintiff

need not point to an “identical case”); Lopez v. Sheriff

of Cook County, 993 F.3d 981, 988 (7th Cir. 2021)

(“The prong-two clearly-established-law assessment

does not require a case with identical factual circumstances, lest qualified immunity become absolute immunity.”), citing Kisela v. Hughes, 584 U.S. 100, 104

(2018). Plaintiff has offered evidence that defendants

chose to punish his misconduct by, in effect, refrigerating him ̶ naked and unprotected ̶ for hours. Plaintiff’s evidence is that Van Lanen or Retzlaff or both

deliberately exposed him to that cold for purposes of

“control.” That last word is a euphemistic way of saying they deliberately subjected him to a practice

widely recognized in law as a form of torture to coerce

him to change his behavior.

The proper question for qualified immunity is

whether a reasonable prison official would have understood it to be unlawful to deliberately expose a naked prisoner to cold conditions in an effort to coerce

different behavior. I think the answer is obviously yes.

That is the answer based on elementary notions of human decency and dignity. And the answer does not

27a

depend on exactly how cold it was or exactly how

many hours the prisoner suffered.

If more specific support is needed for the proposition that it is obviously unconstitutional to deliberately subject a naked prisoner to temperatures equivalent to and colder than a refrigerator, I offer that support in three forms. First, United States law and international covenants to which the United States is a

party recognize that deliberately subjecting a prisoner

to extreme cold is a form of torture. This means that

the actions alleged here could be found to have violated both United States and international law. Second, a good deal of prior case law deals with prison

officials trying to manage when prison heating systems break down or when poor maintenance of prison

buildings makes them difficult to heat adequately.

The general principles applied in those cases should

have made it obvious that deliberately subjecting a naked prisoner to extreme temperatures is beyond the

pale of arguably tolerable conduct. A third form of

support is the complete absence of any attempt here,

by defendants or the majority opinion, to argue how

an official in this situation might have thought this

deliberate refrigeration of a naked human being could

have been permissible.

II. The Law and Practice of Torture

Federal law makes it a crime for a person to engage in torture outside the United States. Torture Act,

18 U.S.C. §§ 2340 & 2340A. Torture is defined as “an

act committed by a person acting under the color of

law specifically intended to inflict severe physical or

mental pain or suffering (other than pain or suffering

incidental to lawful sanctions) upon another person

within his custody or physical control.” § 2340(1). The

United Nations Convention Against Torture and

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Other Cruel, Inhuman or Degrading Treatment or

Punishment (most familiar to our court from immigration cases and widely known as the CAT), to which the

United States is a party, defines torture as:

any act by which severe pain or suffering,

whether physical or mental, is intentionally

inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an

act he or a third person has committed or is

suspected of having committed, or intimidating or coercing him or a third person, or for

any reason based on discrimination of any

kind, when such pain or suffering is inflicted

by or at the instigation of or with the consent

or acquiescence of a public official or other person acting in an official capacity. It does not

include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

United Nations Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or

Punishment art. 1, Dec. 10, 1984, S. Treaty Doc. No.

100–20, 1465 U.N.T.S. 113–14; see also 8 C.F.R. §

208.18(a)(1) (incorporating a very similar definition

into domestic law for asylum purposes); Torture Victim Protection Act of 1991, 106 Stat. 73 § 3(b)(1), note

following 28 U.S.C. § 1350 (defining torture in similar

terms in statute creating private right of action

against torturers).

Deliberately exposing a naked prisoner to extreme

cold as asserted here easily fits within both definitions. For the reasons explained in the majority opinion, a jury could find that the defendants “specifically

intended to inflict severe physical or mental pain or

suffering” on plaintiff Smith while he was in their

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custody. 18 U.S.C. § 2340(1). A jury could likewise find

that plaintiff was placed in the literally freezing control cell, in order to punish him for an act he committed, “with the consent or acquiescence of a public official or other person acting in an official capacity” in

violation of the CAT.

The torture definitions in both the Torture Act

and the CAT exclude pain and suffering inflicted as

part of “lawful sanctions,” but to my knowledge, there

is no plausible claim here of any explicit or implicit

authority in law to deliberately expose naked Wisconsin prisoners to extreme cold as part of their sentences. Defendants have not tried to argue here that

they were authorized by law to deliberately refrigerate a naked prisoner. The defendants have argued instead that plaintiff has the facts wrong, but that is a

matter for trial rather than summary judgment.

Extensive international authorities make the

point that these general definitions of torture encompass deliberate use of extreme cold to cause pain and

suffering. The United Nations Committee Against

Torture monitors implementation of the CAT. It has

long explained that “using cold air to chill” can

amount to torture under the Convention. Rep. of the

U.N. Committee Against Torture, Israel (“Report on

Israel”), U.N. GAOR, 52nd Sess., Supp. No. 44 at 38 ¶

257, U.N. Doc. A/52/44 (Sept. 10, 1997). The same

Committee Against Torture also adopted a similar

finding from a local human rights body regarding

practices in Mexico, explaining that torture in prison

included “being undressed and kept in a freezing, airconditioned room for days at a time.” U.N. Committee

Against Torture, 30th Sess., Report on Mexico at 35–

36 ¶ 165, U.N. Doc. CAT/C/75 (May 26, 2003). More

generally, the United Nations Special Rapporteur of

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the Commission on Human Rights observed in 2004:

“The jurisprudence of both international and regional

human rights mechanisms is unanimous in stating”

that interrogation methods including “using cold air

to chill” violate the “prohibition of torture and ill treatment.” U.N. Special Rapporteur of the Commission on

Human Rights, Torture and other cruel, inhuman, or

degrading treatment or punishment, ¶ 17, U.N. Doc.

A/59/324 (Sept. 1, 2004), quoting Report on Israel, supra, at ¶ 257.

United States case law on the deliberate use of

cold against prisoners is, thankfully, relatively sparse,

but the available case law clearly indicates it can be a

form of torture and that courts virtually take for

granted the fact it is unlawful.1 In Lhanzom v. Gonzales, 430 F.3d 833 (7th Cir. 2005), for instance, this

court remanded a person’s claim for relief under the

Convention Against Torture based on State Department reports documenting torture of Chinese prisoners in Tibet, including “electric shocks, exposure to

cold, and severe beating.” Id. at 848–49, citing U.S.

Department of State, 2005 Country Report on Human

1 Members of this court had no difficulty finding that conduct

including deliberate exposure of detainees to cold air could

amount to torture in Vance v. Rumsfeld, 701 F.3d 193, 205–06

(7th Cir. 2012) (en banc) (Wood, J., concurring in the judgment);

id. at 213 (Hamilton, J., dissenting). The Vance majority did not

disagree, but did not decide the issue only because the defense in

that case did not even try to dispute whether the conduct alleged,

including “prolonged exposure to cold,” amounted to torture. Id.

at 196 (en banc majority); see also Vance v. Rumsfeld, 653 F.3d

591, 597, 610–11 (7th Cir. 2011) (vacated panel opinion) (noting

that the plaintiffs’ cells were kept “intolerably cold” and that

such conditions were clearly unlawful).

31a

Rights

Practices:

China

(March

(https://perma.cc/39K2-Z35H).

8,

2006)

Several other cases support the principle. In Al

Shimari v. CACI Premier Technology, Inc., 300 F.

Supp. 3d 758 (E.D. Va. 2018), the plaintiffs had been

prisoners at the infamous Abu Ghraib complex operated by the United States in Iraq. Plaintiffs offered

evidence that U.S. military contractors had subjected

them to a range of abuses that amounted to torture,

including “using cold air to chill.” Id. at 781–82 (internal quotation marks omitted); see also id. at 764, 769,

770 (describing conduct in that case, including deliberately imposed cold). The court carefully reviewed

United States and international law and allowed

some claims to go forward on the theory that the defendants purposefully aided violations of international law by facilitating abuses that amounted to torture and/or cruel, inhuman, or degrading treatment.

See, e.g., id. at 777–82 (determining jurisdiction under torture statutes). It explained that “international

law and domestic executive and military sources ...

clearly identify the abuse experienced by plaintiffs as

torture.” Id. at 781.2

2 Courts and executive agencies have likewise characterized as

torture the use of cold water in interrogation and/or confinement.

See, e.g., In re Estate of Marcos Human Rights Litigation, 910 F.

Supp. 1460, 1463 (D. Hawaii 1995) (characterizing as torture the

practice of forcing a “detainee while wet and naked to sit before

an air conditioner often while sitting on a block of ice”); U.S. Department of State, 2005 Country Report on Human Rights Practices: Egypt (March 8, 2006) (https://perma.cc/8T3X-3NJF) (torture practices included “dousing victims with cold water”); U.S.

Department of State, 2004 Country Report on Human Rights

Practices: Yemen (Feb. 28, 2005) (https://perma.cc/35NF-V9PX).

32a

Similarly, in Cicippio v. Islamic Republic of Iran,

18 F. Supp. 2d 62 (D.D.C. 1998), a group of former political hostages brought claims alleging torture by Iranian officials. One plaintiff was kept chained on a balcony for an entire winter, during which he developed

frostbite on his hands and feet. Id. at 66. The court

ruled that he had been “tortured” as defined by an old

version of the Foreign Sovereign Immunities Act, 28

U.S.C. § 1605(e) (1997), and entered default judgment

for the plaintiffs. Id. at 69.

Weighed against these authorities, which are only

a sample of a broad international literature on the law

and practice of torture, I have found no contrary authorities suggesting that deliberate exposure of a prisoner, especially a naked prisoner, to extreme cold is

an accepted and lawful means of punishment. In other

words, I find no legal foundation for a prison official

in these defendants’ circumstances to have believed

his actions could have been lawful.

I am not suggesting that conditions of confinement falling short of torture are acceptable under the

Eighth Amendment. But our qualified immunity analysis should recognize actionable violations, without

qualified immunity, when officials deliberately impose conditions that amount to torture. See Padilla v.

Yoo, 678 F.3d 748, 763 & n.10 (9th Cir. 2012) (stating

that “the unconstitutionality of torturing a United

States citizen was ‘beyond debate’ by 2001” and collecting authorities for the principle).

While leaving an inmate wet and cold is distinct from just cold,

these authorities further support the idea that a reasonable official should have known it is unlawful to place a naked inmate in

freezing or near-freezing conditions.

33a

III. Broken Furnaces and Drafty Prisons

A more extensive body of case law concerns prison

heating systems that failed in cold weather or drafty

prison buildings that were difficult to keep humanely

warm in cold weather. The majority cites several of

these cases. See ante at 21, citing Del Raine v. Williford, 32 F.3d 1024, 1031 (7th Cir. 1994); Henderson v.

DeRobertis, 940 F.2d 1055, 1059 (7th Cir. 1991); Lewis

v. Lane, 816 F.2d 1165, 1171 (7th Cir. 1987). It nonetheless concludes that they do not control the outcome

here because they do not show that it is unlawful to

“house an inmate in a cell that ranged in temperature

from 25 to 57 degrees over a 23-hour period without

clothes or a way to keep warm.” Ante at 21.

Respectfully, that conclusion misses the point of

the cases that is most relevant here. We made clear

decades ago in these cases that when a prisoner is being subjected to temperatures like those alleged here ̶

for any reason, including without fault of prison officials ̶ prison officials have a duty to take corrective

measures, such as providing extra protective clothing

and bedding and repairing heating systems or buildings within a reasonable time. See, e.g., Henderson,

940 F.2d at 1059–61 (qualified immunity reversed

when prison heating system malfunctioned and defendants took four days to fix it; collecting cases for

principle that constitution requires prisoners to “be

provided with adequate heat and shelter”); Lewis, 816

F.2d at 1171 (vacating summary judgment when

plaintiffs provided evidence that defendants maintained cell block between 52 and 54 degrees for several

months).

The Supreme Court made the same point more

than thirty years ago, writing as self-evident that “a

low cell temperature at night combined with a failure

34a

to issue blankets” may establish an Eighth Amendment violation. Wilson v. Seiter, 501 U.S. 294, 304

(1991). More recent decisions from this court have reaffirmed the point. See, e.g., Hill v. Nicholson, 829 F.

App’x 141, 142 (7th Cir. 2020) (plaintiff stated Eighth

Amendment claim when officers let him take only cold

showers and his cell block was “extremely cold”);

Budd v. Motley, 711 F.3d 840, 843 (7th Cir. 2013)

(“[W]e have observed that jails must meet minimal

standards of habitability. This includes adequate bedding and protection from cold, both of which were allegedly lacking here.”); Antonelli v. Sheahan, 81 F.3d

1422, 1433 (7th Cir. 1996) (reversing dismissal when

prison officials failed to provide blankets despite “extremely cold indoor air temperature”).

Those cases did not draw bright lines based on exactly how cold was too cold or exactly how long the cold

conditions lasted. They did make clear that prison officials have a duty under the United States Constitution to respond quickly with protective clothing and

bedding. The broken-furnace/drafty-cell cases cannot

reasonably be read as offering any support for the

cruel idea that a prison official could deliberately subject a naked and unprotected prisoner to extreme cold

for any length of time.

We recognized that point in Gillis v. Litscher, 468

F.3d 488 (7th Cir. 2006), a case with facts extraordinarily similar to this case. In Gillis, Wisconsin prison

officials left an inmate naked in his cell ̶ without clothing, bedding, or a mattress ̶ for five days as part of a

“Behavioral Modification Program.” Id. at 489–90.

The cell’s vent blew cold air, and the prisoner said that

he had to walk around his cell for 14 hours a day just

to stay warm. Id. at 490. We found that the plaintiff

had created an issue of fact sufficient to get his Eighth

35a

Amendment claim past summary judgment. We specifically addressed the intentional nature of the defendants’ conduct, explaining that some evidence in

the record indicated that the prison officials used Behavioral Modification Programs “as a way to deal with

inmates without regard” for Wisconsin law. Id. at 494.

We also rejected the defendants’ qualified immunity

defense, explaining tersely that it was well-established that “denial of shelter, heat, and hygiene items

implicated an inmate’s constitutional rights.” Id. at

495.

Gillis helps show why qualified immunity is inappropriate here. In this case, as in Gillis, prison officials altered the conditions of confinement to motivate

a change in inmate behavior. In both cases, the change

involved a denial of clothing and prolonged exposure

to cold air. The deliberate choice by prison officials to

expose inmates to chilling conditions was then ̶ and is

still now ̶ a clear violation of the Eighth Amendment.

Gillis is a rare case because, as noted, case law on

deliberate exposure of unprotected prisoners to cold is

thankfully sparse. But our case law makes unequivocally clear that prisoners have a right to adequate

heat. Similarly, the Lhanzom, Al Shimari, and Cicippio cases discussed above all recognized deliberate exposure of a prisoner to extreme cold as a form of torture. And Gillis made clear that cold conditions cannot be constitutionally used as part of prison discipline.

IV. The Absence of a Counter-Theory

My third form of support comes from the absence

of any theory, from these defendants or from the majority opinion, as to how these defendants might

36a

reasonably have thought they could lawfully refrigerate a naked human being for hours.

One might respond that the burden to defeat qualified immunity is on the plaintiff, not the defendant.

That’s true as a matter of law. But it is equally true

that the plaintiff need not always come forward with

case law showing that the same or even closely analogous conduct has been held unlawful where the violation is obvious. The canonical case on this point is

Hope v. Pelzer, where the Supreme Court reversed a

grant of qualified immunity despite the absence of

closely analogous case law. 536 U.S. at 744–46. The

violation was so “obvious” that the unlawfulness of the

punishment should have been apparent to a reasonable prison official. Id. at 741.

The plaintiff in Hope was an Alabama prisoner

who had allegedly engaged in misconduct while on a

chain-gang road crew. As punishment, he had his

shirt removed, was shackled to a post in a painful position, and was left in the Alabama sun for seven

hours with very little water. The Supreme Court held

that the illegal character of that punishment was sufficiently obvious that qualified immunity was not

available. Id.

The Court of Appeals in Hope had reasoned, much

like the majority opinion here, that qualified immunity applied unless plaintiff could show a finding of a

constitutional violation in a previous case on facts

“‘materially similar’ to Hope’s situation.” Id. at 739,

quoting Hope v. Pelzer, 240 F.3d 975, 981 (11th Cir.

2001). The Supreme Court said this “rigid gloss” on

the qualified immunity standard was “not consistent

with our cases.” Id. It explained that the contours of

an asserted constitutional right “must be sufficiently

clear that a reasonable official would understand that

37a

what he is doing violates that right. This is not to say

that an official action is protected by qualified immunity unless the very action in question has previously

been held unlawful....” Id., quoting Anderson, 483 U.S.

at 640.

The ruling in Hope was not a simple “we know it

when we see it” reaction to disturbing facts. The Court

took care to look at other cases and administrative actions concerning the Alabama practice of shackling

prisoners uncomfortably in the heat as punishment,

finding that the defendants had ample notice that the

practice was not permissible under the law. 536 U.S.

at 741–45. The signals in those cases and administrative actions were similar to the signals relevant here,

from both the “cold as torture” authorities and the broken-furnace and drafty-cell cases.

We do not need a case exactly on point to reject

the qualified immunity defense here, at least on the

facts we must treat as true on appeal. While I am

pleased to join most of the majority opinion, including

its important holding that the alleged intentional exposure to cold was sufficient to violate the Eighth

Amendment, I respectfully dissent from the portion of

the opinion and judgment affirming summary judgment on the conditions of confinement claim based on

qualified immunity.

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APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

FINAL JUDGMENT

May 30, 2025

Before

DAVID F. HAMILTON, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

JOHN Z. LEE, Circuit Judge

ANTONIO M. SMITH,

Plaintiff – Appellant

No. 22-2870

v.

JOHN KIND, et al.,

Defendants - Appellees

Originating Case Information:

District Court No.: 2:18-cv-01569-PP

Eastern District of Wisconsin

District Judge Pamela Pepper

We AFFIRM the district court's grant of summary

judgment for the defendants on each of Smith's

claims, with costs, in accordance with the decision of

this court entered on this date.

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Clerk of Court

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APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

ANTONIO MARQUES

SMITH,

Plaintiff,

v.

JOHN KIND, JAY VAN

LANEN, TIMOTHY

RETZLAFF, ALEXANDER

BONIS, JOHN DIEDRICK,

and COLE MEYER,

Case No. 18-cv1569-pp

Defendants.

ORDER GRANTING DEFENDANTS’ MOTION

FOR SUMMARY JUDGMENT (DKT. NO. 32)

AND DISMISSING CASE

Plaintiff Antonio Marques Smith, who is confined

at the Wisconsin Secure Program Facility and who is

representing himself, filed an amended complaint alleging that the defendants violated his constitutional

rights. Dkt. No. 9 at 3. The court screened the

amended complaint under 28 U.S.C. §1915A and allowed the plaintiff to proceed on Eighth Amendment

excessive force claims against defendant Jay Van

Lanen for using an incapacitating agent on the plaintiff to gain compliance from him to leave his cell;

against defendants Alexander Bonis, John Diedrick

and Cole Meyer for the way they escorted the plaintiff

41a

to the nurse’s station and a cell in control status; and

against defendant John Kind, for authorizing the use

of force (Dkt. No. 10 at 12-14); and an Eighth Amendment conditions-of-confinement claim against defendants Van Lanen and Timothy Retzlaff for the conditions of the cell while the plaintiff was in control status (Dkt. No. 10 at 14-15). The defendants have filed

a motion for summary judgment. Dkt. No. 32.

I.

Procedural History

The plaintiff filed a forty-five-page complaint

against twenty-two named defendants and some Doe

defendants, alleging excessive force in violation of the

Eighth and Fourteenth Amendments, retaliation in

violation of the First Amendment, violations of the

Equal Protection Clause and deliberate indifference.

Dkt. No. 1. The court screened the complaint and concluded that it violated Federal Rules of Civil Procedure 18 and 20 because it brought unrelated claims

against unrelated defendants in a single lawsuit. Dkt.

No. 8. The court gave the plaintiff the opportunity to

file an amended complaint. Id. at 7.

In the amended complaint, the plaintiff alleged

that over the course of four days, fifteen defendants

violated his First, Fourth, Eighth and Fourteenth

Amendment rights. Dkt. No. 9. He alleged that he had

advised the prison that he was on a hunger strike. Id.

at 3. The plaintiff alleged that four days in a row, various defendants used physical force to remove him

from his cell for the purpose of taking him to see the

prison nurse, even though he presented in a submissive position, lying on his stomach with his hands behind his back and his ankles crossed. Id. at 4-6. He

asserted that on the fourth day, defendants used incapacitating agents on him despite knowing that he had

asthma, used choke holds on him and choke-dragged

42a

him into a cell. Id. at 6. Finally, he alleged that some

of the defendants had placed him naked into a cold cell

for over twenty-four hours and that others issued, and

had him found guilty of, a false conduct report. Id. at

7.

The court did not allow the plaintiff to proceed

against the defendants who’d been involved in the cell

removals on the first three days. Dkt. No. 10 at 10-12.

The court concluded that prison administrators had a

right to force an incarcerated person to take nourishment if his hunger strike placed him at serious risk of

injury or death, that the plaintiff had alleged the use

of only minimal force and that he had not identified

any injury he suffered because of that force. Id. The

court also dismissed the nurse practitioner whom the

plaintiff had sued for allegedly taking a nasal swab,

noting that because he was on a hunger strike, the

plaintiff did not have a constitutional right to refuse

life-saving treatment. Id. at 12. It dismissed the plaintiff’s claims regarding the allegedly false conduct report. Id. at 15-16.

The court found, however, that “the events of November 28”—the fourth day—were different. Id.

. . . There the plaintiff alleges that defendant

Van Lanen discovered that using incapacitating agents would trigger the plaintiff’s

asthma. Dkt. No. 9 at ¶9. The plaintiff alleges

that Van Lanen told him he was tired of having to forcibly restrain the plaintiff to take

him to the nurse’s station, and that defendant

Kind had authorized Van Lanen to escalate by

using the incapacitating agents. Id. According

to the plaintiff, once he put himself into a submissive position (signaling that he was not going to come out of the cell of his own volition),

43a

Van Lanen deployed the incapacitating agent.

Id.

The plaintiff has alleged that Van Lanen had

a malicious and sadistic purpose behind the

use of the incapacitating agent to force the

plaintiff from his cell—avoiding having to restrain and transport the plaintiff. The plaintiff may proceed on an Eighth Amendment excessive force claim against Van Lanen. He

may also proceed on an Eighth Amendment

excessive force claim against the three officers

who extracted the plaintiff from the cell after

Van Lanen deployed the incapacitating

agent—Bonis, Diedrick and Meyers. The

plaintiff sufficiently alleged a sadistic and malicious purpose when they used a choke hold

while he was having trouble breathing; when

they made him walk fully nude to the nurse’s

station, even though he was in a weakened

state and suffering an asthma attack; when

Van Lanen directed Diedrick to put the plaintiff in a chokehold and when Diedrick yanked

the plaintiff’s head back and choked him during [the nurse’s] examination; and when they

choke-dragged him to another cell after his examination. Id. at ¶¶10-15.

The plaintiff also may proceed on an Eighth

Amendment claim for excessive force under a

theory of supervisor liability against defendant Kind for the November 28 use of the incapacitating agent.

****

44a

The plaintiff alleged that Kind knew about

and authorized Van Lanen’s plan to use incapacitating agents.

Id. at 12-14.

Finally, the court allowed the plaintiff to proceed

on a conditions-of-confinement claim against Van

Lanen and Retzlaff based on his allegations about being placed in a cold cell in winter without bedding,

clothing or hygiene items for twenty-four hours. Id. at

14.

The plaintiff alleges that he had just been

sprayed with an incapacitating agent, was

having an asthma attack and was weak from

his hunger strike when Van Lanen placed him

on “control status,” which he asserts means he

was denied bedding, clothing and hygiene

items to clean off the incapacitating agent.

Dkt. No. 9 at ¶15. He alleges that he asked

Retzlaff for help, but that after stating that he

would talk with Van Lanen, Retzlaff disappeared and never returned. Id. At this stage,

the plaintiff sufficiently states an Eighth

Amendment conditions of confinement claim

against Van Lanen and Retzlaff.

Id. at 14-15.

These are the claims the defendants answered

and the claims on which they seek summary judgment—Eighth Amendment excessive force and conditions-of-confinement claims relating to the extraction

of the plaintiff from his cell on November 28, 2017.

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II. Facts1

The plaintiff was confined in the restrictive housing unit, also known as segregation, at Green Bay Correctional Institution during the events described in

the complaint. Dkt. No. 51 at ¶1.

The plaintiff has a history of hunger strikes dating back to 2016. Dkt. No. 34 at ¶10; Dkt. No. 38 at

¶8. His medical records show that in July 2017, he had

engaged in a hunger strike during which he refused

medical monitoring on a couple of occasions. Dkt. No.

37-1 at 19-20.

In his verified amended complaint, the plaintiff alleged that on October 6, 2017, he “put Green Bay Correctional Institution . . . health service department on

notice[] that he was engaged in a hunger strike protest against the conditions of his confinement, and

use/misuse and abuse of Solitary Confinement.” Dkt.

No. 9 at 3. See also, Dkt. No. 37-1 at 18 (Hunger Strike

Initial Assessments form, indicating date of notification as “10-6-17”).

On October 10, 2017, Nurse Practitioner Peters

(not a defendant) conducted the “initial assessment of

hunger strike” for the plaintiff. Dkt. No. 34 at ¶11;

Dkt. No. 38 at ¶9; Dkt. No. 37-1 at 18. Peters says the

plaintiff was classified as “emergent” (which means

refusal of fluids for twenty-four hours or food for seventy-two hours) and noted that he had asthma that

was controlled, that he was alert, that he was oriented

and that he refused a complete physical assessment.

Id. At that time, Peters did not see evidence of serious

debilitation secondary to lack of nutrition; the plan for

1 The court includes only material, properly supported facts in

this section. See Fed. R. Civ. P. 56(c).

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treating the plaintiff was to “initiate [a] hunger strike

care plan.” Id. At that time, the plaintiff refused a

complete physical assessment, a systems review or

labs.2 Dkt. No. 37-1 at 18.

The defendants provided a blank copy of Department of Corrections Form DOC-3452. Dkt. No. 37-3 at

4. The form—which has information directed to the

incarcerated person and a space for that person to sign

and date—reads as follows:

Not eating food or drinking fluids is unhealthy

and may cause short term or long term illness

up to and including death.

Not eating or drinking anything may cause

death in just a few days.

Drinking fluids and not eating is less dangerous, but can lead to serious illness if continued

for days.

Body reactions to starving include: loss of

body fluids, dizziness, lightheadedness, weakness, nausea, vomiting, tiredness, sluggishness, irritability, weight loss, low blood sugar,

slow heart rate and low blood pressure.

Starving can result in heart damage, kidney

damage, and death. Depending on the length

The defendants state in their proposed findings of

fact that the plaintiff “had regularly refused treatment,” dkt. no. 34 at ¶12; the placement of this finding

implies that the plaintiff had been refusing medical

treatment prior to October 10, 2017. The medical records cited in the findings, however, do not cover the

weeks prior to October 10, 2017; they start on that

date and cover the period through February 23, 2018.

Dkt. No. 37-1 at 1-18.

2

47a

of starvation, damage to the heart and kidneys may be permanent.

Restarting eating and drinking after a

period of starvation must be done with

caution because if not done appropriately, serious medical complications can

occur including sudden death. Contact

the Health Services Staff for assistance.

Staff will observe your weight, temperature,

pulse, blood pressure and breathing. You will

be examined for signs and symptoms of starvation, mental illness, and to determine

whether or not you are able to make decisions

and manage your affairs.

If you are found to be at risk of death or other

serious adverse effects due to starvation, legal measures may be taken to allow forced

examination by health care providers, forced

feeding, forced fluids and hospitalization.

Id.3

The medical records show that between June 10,

2017 and November 24, 2017—a period of forty-six

days—the plaintiff refused medical monitoring (a

hunger strike evaluation). Dkt. No. 37-1 at 12-17. In

November 2017, there was no court order in effect requiring forced medical evaluations or forced feeding of

the plaintiff. Dkt. No. 34 at ¶18; Dkt. No. 51 at ¶18.

The defendants say that in November 2017 (some

three or so weeks into the plaintiff’s hunger strike) the

plaintiff still was required to go to the Health Services

As best the court can tell, the record does not contain

a copy of this document signed by the plaintiff.

3

48a

Unit (HSU) to refuse medical treatment. Dkt. No. 34

at ¶19. The plaintiff denies this and states that because he was in segregation and unwilling to report to

his on-site appointment to refuse a hunger strike evaluation, Department of Correction (DOC) policy and

Green Bay segregation practices provided that staff

should come to see him face-to-face at his cell with a

DOC-322-Refusal of Recommended Health Care form.

Dkt. No. 50 at ¶19.

Under DOC, Division of Adult Institutions Policy

500.30.54, Informed Consent and Right to Refuse

Treatment, “[a]ll Division of Adult Institution facilities shall ensure all examinations, treatments and

procedures are governed by informed consent practices which support the ethical principles of an inmate

patient’s right to information and knowledge about

healthcare, invasive procedures, and more importantly allows the inmate patient to make an informed decision to consent or refuse the recommended

health care intervention.” Dkt. No. 37-2 at 1, Ex. 1006001. The policy also provides:

Inmate patients are required to report to an

appointment for any refusal of health care.

For inmate patients unable or unwilling to report to their on-site appointment site (e.g., in

segregation or observation status), the ACP or

nurse shall see the inmate patient face-to-face

to complete the DOC-3220 – Refusal of Recommended Health Care, and file in the Medical

Chart, Consents/Refusals Section.

Dkt. No. 37-2 at 11, Ex. 1006 – 011. It provides that

an incarcerated patient who refuses care “shall be considered for discussion at multidisciplinary team meetings to reevaluate the treatment plan.” Id.

49a

On November 24, 2017—forty-six days into the

plaintiff’s hunger strike and four days before the date

of the incident at issue in the case—the plaintiff was

unwilling to report to an on-site appointment for a

hunger strike evaluation. Dkt. No. 59 at ¶24. A nurse

came to see the plaintiff at his cell with a DOC-3220

Refusal of Recommended Health Care form, which the

plaintiff refused to sign. Id.

The plaintiff alleges that on November 25 and 26,

2017, Kind authorized a use of force to remove the

plaintiff from his cell because he was unwilling to report to an on-site appointment for a hunger strike

evaluation.4 Id. at ¶26. On those dates, a cell extraction team entered the plaintiff’s cell while he lay prone

on his bed in the “surrendering ritual” with his hands

behind his back, legs crossed at his ankles and face

turned to the wall. Id. at ¶27. A lieutenant entered the

plaintiff’s cell with his taser drawn, followed by the

cell extraction team officers who placed handcuffs and

leg restraints on the plaintiff, secured him in a restraint chair and escorted him to the nurse’s station

to submit to a hunger strike evaluation. Id. at ¶¶2829. The plaintiff refused treatment and staff returned

him to his cell. Id. at ¶¶29-30. Staff did not use incapacitating agents, electronic control devices or compliance holds during the November 25-26 cell extractions. Id. at ¶30.

The plaintiff alleges that on November 27, 2017,

Captain Baumann (not a defendant) authorized a use

of force to remove the plaintiff from his cell because

The defendants do not dispute this proposed finding

of fact, but the incident report Van Lanen prepared

implies that Kind authorized the use of force on November 28, 2017. Dkt. No. 35-1 at 2.

4

50a

the plaintiff was not willing to report to an on-site

medical appointment for a hunger strike evaluation.

Dkt. No. 59 at ¶31. Van Lanen entered the plaintiff’s

cell with his taser drawn and the cell extraction team

followed him. Id. at ¶33. The cell extraction took place

in the same way it did on November 25 and 26; staff

restrained the plaintiff and took him to the HSU in

the restraint chair, the plaintiff refused treatment

from the nurse and staff returned the plaintiff to his

cell. Id. at ¶¶33-36. Staff did not use incapacitating

agents, electronic control devices or compliance holds

during the November 27 cell extraction.5 Id. at ¶36.

On November 28, 2017, the date of the incident at

issue, Van Lanen told the plaintiff that he would be

required to come out of his cell and report to the

Health Services Unit (HSU) for a wellness check. Dkt.

No. 34 at ¶21. After the plaintiff had refused Van

Lanen’s request multiple times, Van Lanen assembled an extraction team to remove the plaintiff from

his cell. Id. Officer Charles Gulley operated a video

camera for the extraction team.6 Id. at ¶23. Prior to

the extraction, Van Lanen summarized on the video

why the team was going to extract the plaintiff, indicating that the plaintiff was on hunger strike, needed

5 At screening, the court did not allow the plaintiff to

proceed on any claims related to the allegations from

the November 25, 26 and 27, 2017 cell extractions.

Dkt. No. 10 at 11-12. The defendants respond to the

plaintiff’s proposed findings of fact relating to these

dates by asserting what happened on these dates is

immaterial to the allegations on which the court allowed the plaintiff to proceed. Dkt. No. 59 at ¶¶27-36.

6 The defendants submitted the approximately thirtyfive-minute video footage of the incident. Dkt. No. 361, Ex. 1004.

51a

to report to HSU and had refused to leave his cell as

he had done the last four days. Id. at ¶24; Ex. 1004.

Van Lanen stated that the plaintiff had “an extensive

violent history with assigning hits on the streets to

have people killed, assaulting within the prison system and assaulting in general throughout his prison

career.” Ex. 1004 at 00:27-00:38. Van Lanen stated

that Kind had been apprised of the situation; he also

explained that the plaintiff was

very aware of our tactics of entering the cell.

He has his neighbors on his right and left side

telling him the things we are doing when

we’re standing outside that cell to enter that

cell, now it’s become a risk of entering that cell

as Mr. Smith does have his property in that

cell. He has been positioning himself on the

bed but I’m unable to see if he has any weapons made or things like that. So this is Day 5

so Mr. Smith is thinking that we’re going to

[unintelligible] to get him out of his cell. I’m

going to try to get Mr. Smith to come to the

door and cuff up; that’s an important part of

the wellness check is to walk

....

Id. at 00:48-1:29.

Van Lanen stated that the plaintiff had demonstrated the day before that he could walk, but that he

refused to do so. Id. at 1:30-2:45. Van Lanen said that

the extraction team would take all safety precautions

for staff and that they would take the plaintiff out of

the cell to go to HSU for the wellness check. Id. He

stated that the plaintiff had a contraindication to incapacitating agents and that Kind had authorized the

use of incapacitating agents and electronic control

52a

devices. Id. Van Lanen concluded that the team would

not use the restraint chair because the plaintiff was

physically capable of walking and that they would

hopefully gain verbal compliance from the plaintiff to

walk to the HSU. Id.

The extraction team walked to the plaintiff’s cell

and Van Lanen ordered the plaintiff to come to his

door so officers could take him to the HSU. Dkt. No.

34 at ¶27; Ex. 1004 at 02:44 to 03:41. Van Lanen repeated this command many times and advised the

plaintiff that, if he did not comply, officers could use

incapacitating agents to gain his compliance. Dkt. No.

34 at ¶28; Ex. 1004 at 03:41 to 04:21. The plaintiff was

lying on his side, covered with a blanket and sheet,

when he was awakened by Van Lanen’s knock on the

cell door. Dkt. No. 59 at ¶54. The plaintiff uncovered

himself and went into a prone position on his stomach

in the surrendering ritual; he put his hands behind

his back, crossed his legs at the ankles and turned his

face toward the nearest wall. Id.

The plaintiff refused to answer, so Van Lanen directed Gulley to record the cell through the cell window and asked Team Leader Officer Alex Bonis to ask

the plaintiff to comply. Dkt. No. 34 at ¶29; Ex. 1004 at

04:21 to 04:40. Van Lanen again advised the plaintiff

that they would have to employ incapacitating agents

if he did not come to the door, and Van Lanen described the physical effects that the incapacitating

agents would have on the plaintiff. Dkt. No. 34 at ¶30;

Ex. 1004 at 04:57 to 05:10. Van Lanen asked the plaintiff to comply so that officers would not be forced to

issue him a conduct report for his actions and warned

the plaintiff that if officers had to use incapacitating

agents, they would have to conduct a strip search before removing him from his cell. Dkt. No. 34 at ¶31;

53a

Ex. 1004 at 05:10 to 05:50. The first time the plaintiff

moved after going into the surrendering ritual was to

cover his face with a blanket when the cell door trap

was opened. Dkt. No. 51 at ¶57; Ex. 1004 at 6:04.

Van Lanen tried multiple times to gain verbal

compliance without using force, but the plaintiff covered his face to nullify any incapacitating agent officers might use. Dkt. No. 34 at ¶32; Ex. 1004 at 06:00 to

07:00. Van Lanen warned the plaintiff that his property could get damaged if officers used the incapacitating agent. Dkt. No. 34 at ¶33; Ex. 1004 at 07:00 to

07:25. The plaintiff sat up on the bed, covered his

property, laid back down on his bed and covered his

face with a blanket. Dkt. No. 34 at ¶34; Ex. 1004 at

7:45 to 08:20. Van Lanen gave the plaintiff several

more opportunities to comply, but the plaintiff did not

do so; at this point, Van Lanen determined that further verbal communication attempts were futile. Dkt.

No. 34 at ¶35; Ex. 1004 at 08:20 to 08:40.

Van Lanen showed the plaintiff the “Mark IX OC

Phantom Fogger” and gave the plaintiff further opportunities to comply. Dkt. No. 34 at ¶36. The plaintiff

refused and covered his face with bed linen. Id. Van

Lanen sprayed a Mark IX controlled burst into the

plaintiff’s cell. Id.; Ex. 1004 at 08:40 to 08:50.7 Officers

secured the cell’s trap door, and Van Lanen ordered

the plaintiff to comply with a strip search, which the

incarcerated person performs himself. Dkt. No. 34 at

¶37. Bonis took over verbal communication. Id.; Ex.

1004 at 08:50 to 09:00.

The video shows that the single burst was momentary, but several more minutes passed before the

plaintiff came to the cell door.

7

54a

The plaintiff had an adverse reaction to the chemical agents, which resulted in him having an asthma

attack from a pre-existing medical condition that had

caused a contraindication alert to be placed in his

medical file, which Van Lanen knew about before he

used the chemical agent. Dkt. No. 59 at ¶60, Ex. 1004

at 8:45 to 18:00. For a few minutes, the plaintiff

moved around on the floor of the cell, groaning and

coughing; at one point, he sat on the end of the bed,

rolled onto his back with his feet in the air, then rolled

back to a sitting position and onto the floor. Ex. 1004

at 8:45 to 18:00. After a few minutes, the plaintiff complied with Bonis’s repeated orders to perform the strip

search, removed his clothes and presented himself to

be handcuffed before the cell door was opened. Dkt.

No. 34 at ¶38; Ex. 1004 at 14:10 to 16:20. Officers secured the plaintiff in handcuffs and opened the cell

door. Dkt. No. 34 at ¶39; Ex. 1004 at 16:50 to 17:45.

The plaintiff exited the cell completely naked. Dkt.

No. 59 at ¶61; Ex. 1004 at 18:10.

According to the defendants, the plaintiff attempted to use “dead weight tactics” (while in a sitting

position) and kept his legs directly out in front of him.

Dkt. No. 34 at ¶40; Ex. 1004 at 17:50 to 20:00. The

defendants state that after the plaintiff refused multiple directives to stand up and comply, Van Lanen instructed staff to apply compliance holds to the plaintiff’s “hands area” to gain compliance and safely bring

his legs back to apply leg restraints. Dkt. No. 34 at

¶41. Ex. 1004 at 20:00 to 20:45. The defendants also

state that staff applied compression holds and the

plaintiff moved his legs safely under his body to allow

leg restraint application. Dkt. No. 34 at ¶42; Ex. 1004

at 20:45 to 21:15. According to the plaintiff, he did not

use dead weight tactics or refuse directives; he asserts

that he was in a medically weakened condition and

55a

could not move into the position at the requested

speed. Dkt. No. 50 at ¶¶40-41. He states that Van

Lanen and the officers ignored his medical condition

caused by the chemical agents as they applied more

force to his wrists. Id.; Smith Decl. at ¶42; Ex. 1004 at

18:11 to 21:15.

Staff placed a clean towel around the plaintiff’s

groin area for decency. Dkt. No. 34 at ¶43; Ex. 1004 at

21:15 to 21:30. The towel did not cover the plaintiff’s

buttocks, and his buttocks remained exposed during

the escort past other incarcerated persons and staff.

Dkt. No. 59 at ¶64.

According to the defendants, the plaintiff continued attempting to use deadweight tactics by keeping

his legs locked under his buttocks, forcing staff to support his body weight. Dkt. No. 34 at ¶44. Van Lanen

asked the plaintiff multiple times to stand up straight

and walk, as he had just done at the cell door for the

strip search, to minimize the possibility of staff injuries. Id.; Ex. 1004 at 21:30 to 21:47. Van Lanen explained to the plaintiff that if he did not comply, staff

would need to secure his head and arms with escort

holds. Dkt. No. 34 at ¶45. The plaintiff refused to

acknowledge or comply. Id. Van Lanen ordered staff

to secure the plaintiff’s arms and apply compliance

holds on the plaintiff’s hands so the staff member directly behind him could safely secure his head to walk

him backwards.8 Id.; Ex. 1004 at 21:47 to 22:08. As

staff positioned themselves in preparation to apply

8 According to the plaintiff, he was not using deadweight tactics;

he says he could not move at the speed and in the manner demanded by Van Lanen and the officers because he was weakened

from the asthma attack and had yet to recover his strength to

fully support his own weight. Dkt. No. 50 at ¶¶44-45.

56a

the head hold, the plaintiff stated, “alright, alright I’ll

walk.” Dkt. No. 34 at ¶46. Van Lanen had staff reposition themselves to escort the plaintiff. Id.; Ex. 1004

at 22:08 to 22:30.

The plaintiff began walking but he bent forward

at the waist, which put pressure on the shoulder and

back areas of the officers who were holding his arms

during the escort. Dkt. No. 34 at ¶47. Van Lanen continued to ask the plaintiff to straighten up while walking. Id.; Ex. 1004 at 22:30 to 25:30. The plaintiff states

that he leaned forward because he lacked strength to

fully support his own weight. Dkt. No. 50 at ¶47.

As they arrived in the “core area,” Van Lanen offered the plaintiff a decontamination shower, which

the plaintiff refused. Dkt. No. 34 at ¶48; Ex. 1004 at

25:30 to 25:43. Van Lanen directed staff to escort the

plaintiff to the HSU nurse station for medical evaluation. Dkt. No. 34 at ¶49. Nurse Lemens and Nurse

Practitioner Peters offered the plaintiff a medical

evaluation. Id.; Ex. 1004 at 25:45 to 27:00. The plaintiff refused medical evaluation, but Peters thought

that he may have been in respiratory distress and

asked him to raise his head; the plaintiff refused. Dkt.

No. 34 at ¶50; Ex. 1004 at 27:00 to 27:15. Van Lanen

asked Peters if she needed the plaintiff’s head raised

to evaluate the situation, and she said she did. Dkt.

No. 34 at ¶51; Ex. 1004 at 27:15 to 27:25. Van Lanen

directed staff to secure the plaintiff’s head for the evaluation. Dkt. No. 34 at ¶52. Peters determined that the

plaintiff was not in respiratory distress so he could return to a cell. Id.; Ex. 1004 at 27:25 to 28:00.

The plaintiff’s version of this is different. He asserts that Van Lanen directed Bonis to put the plaintiff “into another tactical chokehold,” and that Bonis

“aggressively yanked Smith’s head backwards by his

57a

neck, and held the tactical chokehold longer than necessary.” Dkt. No. 59 at ¶60. The video does not support

the plaintiff’s assertions; it shows an officer briefly

lifting the plaintiff’s head—one hand on his forehead,

the other on his chin—Peters briefly looking at the

plaintiff’s nose while the plaintiff yelled, “I don’t want

it! I don’t want it! I don’t want it!” and Van Lanen telling the plaintiff that they were just trying to wipe his

nose. Ex. 1004 at 23:15 to 28:00.

Officers escorted the plaintiff from the HSU nurse

station to cell 302 and placed him on controlled separation status. Dkt. No. 34 at ¶53; Ex. 1004 at 28:00 to

30:30. When the plaintiff arrived at cell 302, he was

assisted to his knees and staff removed the modesty

towel attached to his restraints. Dkt. No. 59 at ¶71;

Ex. 1004 at 29:30 to 30:30. Staff removed his leg restraints, and the plaintiff entered the cell completely

naked. Id. Officers provided the plaintiff with a cell

that included a working toilet and water, and lighting

for up to twelve hours of reading. Dkt. No. 34 at ¶55.

The parties dispute other conditions of the cell. According to the defendants, the cell was clean and had

adequate ventilation with heat. Id. According to the

plaintiff, cell 302 was “unsanitary” and the ventilation

system did not provide adequate heat. Dkt. No. 50 at

¶55.

Van Lanen informed the plaintiff that he could

have a decontamination shower and soap at any time.

Dkt. No. 34 at ¶56. Van Lanen also told the plaintiff

that he would be back to talk to him about clothing

and other items. Id.; Ex. 1004 at 31:25 to 31:35. After

staff secured the plaintiff in cell 302, Van Lanen had

staff report to the core area for debrief, and he briefed

the camera on the extraction. Dkt. No. 34 at ¶57; Ex.

1004 at 31:36 to 34:10.

58a

According to the defendants, after completing the

camera debrief, Van Lanen went the plaintiff’s cell

and explained what he would need to do to come off

control status. Dkt. No. 34 at ¶58. The defendants

state that the plaintiff was walking around the cell,

refused to listen to Van Lanen’s explanation of how to

come off control and stated that he would make staff

suit up every day until they got a court order for him.

Id. at ¶59. According to the plaintiff, Van Lanen did

not come to speak with him after he completed the debrief. Dkt. No. 50 at ¶58. The plaintiff also states that

he did not need to hear how to come off control status

because he was familiar with control status policy. Id.

at ¶59.

Van Lanen placed the plaintiff into controlled restrictive housing, also known as controlled separation

status. Dkt. No. 59 at ¶73. When incarcerated persons

are placed on control status, all their clothes are taken

away for their own safety and they are offered security

linen (a smock/kilt) for privacy reasons.9 Dkt. No. 34

9 The plaintiff denies this fact because he says the policy states

that incarcerated persons shall be provided with clothing consistent with the level of risk, and that Van Lanen did not articulate the risk the plaintiff posed in control status that warranted

him not to be provided with clothing versus a smock/kilt in any

document. Dkt. No. 50 at ¶60. The plaintiff states that in accordance with policy, he should have had all his normal clothing because no one alleged that he posed a risk to himself or staff. Id.

The plaintiff cites to Wis. Admin. Code §DOC 303.74. That section states in part that a “security supervisor may order into controlled separation any inmate in segregated status who exhibits

disruptive, destructive, or out of control behavior.” Wis. Admin.

Code §DOC 303.74(1). It also states, “(a) The institution shall

provide inmates in controlled separation all of the following: 1.

Clean mattress. 2. Sufficient light by which to read at least 12

59a

at ¶60. Incarcerated persons can always ask for hygiene items, and they will be provided by the staff;

these are not entered on the DOC-112 (Observation of

Inmate) form. Id. at ¶61.

According to the defendants, the plaintiff was offered a smock, a security mat, soap and toilet paper

and he refused to accept any property; he was informed that he could have the property whenever he

wanted. Dkt. No. 34 at ¶62. According to the plaintiff,

Van Lanen and Retzlaff did not offer him a smock, security mat, soap, toilet paper or any property items.

Dkt. No. 50 at ¶62; Dkt. No. 59 at ¶¶77-81. During a

security round check of incarcerated persons around

3:30 p.m. on November 28, 2017, Retzlaff spoke with

the plaintiff. Dkt. No. 59 at ¶82. The plaintiff requested from Retzlaff a smock, clothing, security

mat/mattress, bedding, soap, toilet paper and cleaning supplies or to be moved to a clean cell. Id. at ¶84.

The plaintiff also told Retzlaff that the vent inside the

cell was blowing out cold air and he needed to be

moved to warmer cell. Id. Retzlaff told the plaintiff

that he wanted to speak with Van Lanen before giving

him property or moving him. Id. at ¶¶85-86. Retzlaff

did not return to speak with the plaintiff nor did he

provide the plaintiff with property he requested or

move him to a clean and warm cell. Id. at ¶87.

hours per day. 3. Sanitary toilet and sink. 4. Adequate ventilation and heating. 5. Clothing consistent with the level of risk. 6.

Essential hygiene supplies. 7. Nutritionally adequate meals.”

Wis. Admin. Code §DOC 303.74(2)(a). Finally, it provides: “(b)

While an inmate is acting in a disruptive manner, the institution

shall maintain close control of all property in subd. (a) 1. [Clean

mattress], 5. [Clothing], and 6. [Meals].” Wis. Admin. Code §DOC

303.74(2)(b).

60a

At 3:41 a.m. on November 29, 2017, Lieutenant Wickman (not a defendant) offered the plaintiff

a smock contingent on the plaintiff agreeing to not

refuse to exit his cell to see HSU staff to be evaluated for his hunger strike, but the plaintiff refused

to accept that condition. Dkt. No. 59 at ¶¶92-93.

The plaintiff was placed into control status

on November 28, 2017 at 12:00 p.m. or 12:15 p.m.

Dkt. No. 34 at ¶63. Officers checked on the plaintiff every thirty minutes and noted his activities.

Id. at ¶64; Dkt. No. 37-4. The observation record

indicates that the plaintiff spoke to both Retzlaff

and Wickman at the door of the cell. Dkt. No. 37-4

at 2. It shows that at various times during the

next approximately twenty-three hours, staff observed the plaintiff standing, standing by the door,

sitting on the bed and talking to staff. Dkt. No. 372 at 3-5. Staff removed the plaintiff from control

status at 11:00 a.m. on November 29, 2017. Dkt.

No. 34 at ¶65. The total time spent in control status was about twenty-three hours. Id. at ¶66.

The plaintiff provided Green Bay historical

weather data showing a high temperature of 57°

and a low temperature of 25° on November 28 and

29, 2017, during the time the plaintiff was on control status. Dkt. No. 50 at ¶100. The defendant provided historical weather data showing that the

high was 57° and the low was 39°. Dkt. No. 39-4 at

1. The plaintiff says that he was in a steel cell completely naked with a vent that produced cold air

and asserts that he was extremely cold. Dkt. No.

50 at ¶68.

61a

As discussed above, Van Lanen stated on the

video that one of the reasons for putting together an

extraction team to remove the plaintiff from his cell

was his assaultive behavior within the prison system. Van Lanen repeated this in the incident report

he wrote the day after the extraction, explaining

that on November 28th, he’d talked to the plaintiff

about the need to conduct a cell search and a wellness check, but that “[a]fter several attempts [he]

felt verbal communication was exhausted.” Dkt. No.

35-1 at 2. Van Lanen explained that he’d contacted

Kind and expressed concerns for the plaintiff’s wellness, as well as concern that “[the plaintiff] is aware

of the past four days of entering the cell the same

way and the other offenders on the wing informing

[the plaintiff] of our positioning.” Id. Van Lanen expressed concern for the safety of the staff “if we had

to enter the cell as [the plaintiff] has an assaultive

history with having great bodily harm done to people on the streets while incarcerat[ed] and [the

plaintiff’s] violent history.” Id. He explained that

Kind authorized the use of force, “not limited to Incapacitating agents, Electronic control devices or enter the cell if needed.” Id. Van Lanen also explained

that he’d contacted a nurse in the health services

unit and learned that the plaintiff had a “contra indication to Incapacitating agents.” Id.

The plaintiff disputes that Van Lanen had any information that the plaintiff had ever assaulted any incarcerated person or staff member at Green Bay or

any other prison. Dkt. No. 59 at ¶44. The plaintiff provided Van Lanen’s responses to the plaintiff’s requests

for admission. Dkt. No. 56-1 at 114-131. That document contains the following requests and responses:

62a

17.

Admit that [the plaintiff] have no

record while housed as an inmate within the

Department of Corrections/Division of Adult

Institutions for assaults against an employee.

Response: DENY. Plaintiff’s history of

disruptive conduct, group resistance,

threats, sexual conduct and unpredictable behavior were a concern for staff

safety. Continued refusal to comply with

staff directives causing staff to enter the

cell displays behavior leading up to a set

up for assaultive behavior. At the time of

the incident on 11-28-17, VanLanen

lacked knowledge as to Plaintiff’s behavior at other Institutions.

18.

Admit that [the plaintiff] have no

record while housed as an inmate within the

Wisconsin Department of Corrections Division of Adult Institutions for an assault

against an inmate.

Response: After reasonable inquiry, Defendant VanLanen lacks sufficient

knowledge or information to be able to

ADMIT or DENY this request.

19.

Admit that on November 28, 2017

you (Jay Van Lanen) didn’t have any confirmed information that [the plaintiff] had

ever ass[a]ulted anyone other than has alleged crimes to which he had been convicted

of.

Response: ADMIT but ALLEGE Plaintiff’s history of disruptive conduct, group

resistance, threats, sexual conduct and

63a

unpredictable behavior were a concern

for staff safety.

Continued refusal to comply with staff

directives causing staff to enter the cell

displays behavior leading up to a set up

for assaultive behavior.

Id. at 118-119.

III. Analysis

A. Summary Judgment Standard

“The court shall grant summary judgment if the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665,

668 (7th Cir. 2011). “Material facts” are those under

the applicable substantive law that “might affect the

outcome of the suit.” See Anderson, 477 U.S. at 248. A

dispute over “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

A party asserting that a fact cannot be, or is, genuinely disputed must support the assertion by:

(A)

citing to particular parts of materials

in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including

those made for purposes of the motion only),

admissions, interrogatory answers, or other

materials; or

(B)

showing that the materials cited do

not establish the absence or presence of a

64a

genuine dispute, or that an adverse party cannot produce admissible evidence to support

the fact.

Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration

used to support or oppose a motion must be made on

personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”

Fed. R. Civ. P. 56(c)(4).

Summary judgment is proper “against a

party who fails to make a showing sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear

the burden of proof at trial.” Celotex Corp. v.

Catrett, 477 U.S. at 322. To survive a motion for

summary judgment, a non-moving party must

show that sufficient evidence exists to allow a jury

to return a verdict in its favor. Brummett v. Sinclair Broad. Grp., Inc., 414 F.3d 686, 692 (7th Cir.

2005).

When considering a motion for summary

judgment, the court “draw[s] all reasonable factual

inferences in the light most favorable to . . . the

party that did not move for summary judgment.”

Watters v. Homeowners’ Ass’n at Preserve at

Bridgewater, No. 19-3499, 2022 WL 4128529, at *1

(7th Cir. Sept. 12, 2022) (citation omitted).

B. Discussion

1. Excessive Force Claims

“After incarceration, only the ‘“unnecessary and

wanton infliction of pain”‘ constitutes cruel and unusual punishment forbidden by the Eighth

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Amendment.” Ingraham v. Wright, 430 U.S. 651, 670

(1977) (quoting Estelle v. Gamble, 429 U.S. 97, 103

(1976)). “What is necessary to establish an ‘unnecessary and wanton infliction of pain,’ . . . varies according to the nature of the alleged constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 5 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 320 (1986)). In

cases involving the use of excessive force, the question

is “whether force was applied in a good-faith effort to

maintain or restore discipline, or maliciously and sadistically to cause harm.” Id. at 7. Factors for courts

to consider in determining whether the use of force

was wanton and unnecessary include “the need for an

application of force, the relationship between that

need and the amount of force used, the threat ‘reasonably perceived by the responsible officials,’ and ‘any

efforts made to temper the severity of a forceful response.’” Id. (quoting Whitley, 475 U.S. at 321).

Not “every malevolent touch by a prison guard

gives rise to a federal cause of action.” 503 U.S. at 9.

“The use of de minimis force, so long as it ‘is not of a

sort repugnant to the conscience of mankind,’ is not of

Eighth Amendment concern.” Lewis v. Downey, 581

F.3d 467, 475 (7th Cir. 2009) (quoting Hudson, 503

U.S. at 9-10). On the other hand, there is no requirement that a plaintiff must allege a “significant injury”

to state an excessive force claim. Wilkins v. Gaddy,

559 U.S. 34, 37 (2010) (citing Hudson, 503 U.S. at 7).

“When prison officials maliciously and sadistically use

force to cause harm, contemporary standards of decency always are violated. This is true whether or not

significant injury is evident.” Hudson, 503 U.S. at 9.

“A court should not recreate the disapproved ‘significant injury’ requirement by classifying all consequences it deems ‘insignificant’ as de minimis harms.”

Guitron v. Paul, 675 F.3d 1044, 1046 (7th Cir. 2012).

66a

A judgment of imprisonment strips a prisoner

of th[e] right to be let alone, and many other

interests as well. See Hudson v. Palmer, 468

U.S. 517 . . . (1984). Custodians must be able

to handle, sometimes manhandle, their

charges, if a building crammed with disgruntled people who disdain authority (that’s how

the prisoners came to be there, after all) is to

be manageable. When a physical injury occurs

as the result of force applied in the course of

prison operations . . . , the courts should approach the matter as Whitley and Hudson v.

McMillian direct, rather than trying to classify injuries as de minimis.

Id.

Because “[i]njury and force . . . are only imperfectly correlated,” it is the force “that ultimately

counts.” Wilkins, 559 U.S. at 38. Put another way,

“pain, not injury, is the barometer by which we measure claims of excessive force.” Lewis, 581 F.3d at 475

(citing Hudson, 503 U.S. at 9). “What matters—and

what will generally be the decisive factor in cases such

as this—is the mindset of the individual applying the

force.” Id. at 476.

In evaluating the state of mind of the person applying the force, a court must consider the circumstances in which the force was applied. Prisons, like

jails, “are dangerous places, and it is without rational

dispute that security officials are justified in maintaining decorum and discipline among inmates to

minimize risks to themselves and other prisoners.”

Lewis, 581 F.3d at 476 (citing Bell v. Wolfish, 441 U.S.

520, 546 (1979)). Given that, the Seventh Circuit has

explained the importance of incarcerated persons following orders:

67a

Orders given must be obeyed. Inmates cannot

be permitted to decide which orders they will

obey, and when they will obey them . . . . Inmates are and must be required to obey orders. When an inmate refuse[s] to obey a

proper order, he is attempting to assert his authority over a portion of the institution and its

officials. Such refusal and denial of authority

places the staff and other inmates in danger.

Lewis, 581 F.3d at 476-77 (quoting Soto v. Dickey, 744

F.2d 1260, 1267 (7th Cir. 1984)).

When an order is given to an inmate there are

only so many choices available to the correctional officer. If it is an order that requires action by the institution, and the inmate cannot

be persuaded to obey the order, some means

must be used to compel compliance, such as a

chemical agent or physical force. While [some

have] suggested that rather than seek to enforce orders, it was possible to leave the inmate alone if he chooses not to obey a particular order, and wait him out, experience and

common sense establish that a prison cannot

be operated in such a way.

Discipline in a maximum security correctional

institution no doubt is difficult, but it is essential if the prison is to function and provide for

the case, safety and security of the staff and

inmates. Services to provide food, clothing,

health, medical, cleaning, laundry and all

other services would come to end without discipline. Mob rule would take over. There

would not, and could not, be any protection for

staff or inmates.

68a

Soto, 744 F.2d at 1267.

“Prison administrators . . . should be accorded

wide-ranging deference in the adoption and execution

of policies and practices that in their judgment are

needed to preserve internal order and discipline and

to maintain institutional security.” Hudson, 503 U.S.

at 6 (internal citations and quotations omitted.) See

also Soto, 744 F.2d at 1269 (according prison officials

wide-ranging deference to adopt and execute policies

“needed to preserve internal order and discipline”).

“[P]rison guards may use chemical sprays when reasonably necessary to subdue recalcitrant prisoners,

for orders must be obeyed, and there are only so many

choices available to correctional officers when inmates

refuse.” Kervin v. Barnes, 144 F. App’x 551, 552 (7th

Cir. 2005) (citing Soto, 744 F.2d at 1267; Stringer v.

Rowe, 616 F.2d 993, 998 (7th Cir. 1980)).

In the case of a hunger strike, prison administrators have additional obligations. The Seventh Circuit

has held that while “[f]ree people who are sane have a

liberty interest in refusing life-saving treatment . . .

and likewise in refusing to eat,” incarcerated persons

either “don’t have such an interest, or it is easily overridden.” Freeman v. Berge, 441 F.3d 543, 546 (7th Cir.

2006).

The reasons are practical. (No longer

does one hear that prisoners must not be

allowed to evade punishment by killing

themselves and thus “cheating the gallows.”) If prisoners were allowed to kill

themselves, prisons would find it even

more difficult than they do to maintain

discipline, because of the effect of a suicide in agitating the other prisoners.

Prison officials who let prisoners starve

69a

themselves to death would also expose

themselves to lawsuits by the prisoners’

estates. Reckless indifference to the risk

of a prisoner’s committing suicide is a

standard basis for a civil rights suit. E.g.,

Boncher ex rel. Boncher v. Brown County,

272 F.3d 484 (7th Cir 2001).

*****

So at some point in [the appellant’s] mealskipping the prison doctors would have had a

duty and certainly a right to step in and force

him to take nourishment. Knowing this, the

prison has a policy of requiring a prisoner who

has skipped all his meals for three consecutive

days to be inspected by employees of the

prison’s health service to make sure he isn’t

seriously endangering his health.

Id. at 547.

The defendants argue that the force they used on

November 28, 2017 was a good-faith attempt to get

the plaintiff to comply with the order to come to the

door of his cell, rather than a malicious and sadistic

attempt to cause the plaintiff harm. The record evidence fully supports this argument. The plaintiff had

been on a hunger strike for almost fifty days. In the

four days prior to November 28, 2017, he had refused

to leave his cell to go to the wellness check appointment, forcing officers to enter his cell and take him to

the appointments (and when he arrived at the appointments, the plaintiff had refused the wellness

checks). On November 28, 2017, the plaintiff refused

for a fifth day to go to the appointment. The video

shows that the defendants—particularly Van Lanen

70a

and Bonis—tried repeatedly to get the plaintiff to

come to the cell door on his own. After Van Lanen told

the plaintiff that he needed to come to the cell door,

Van Lanen and then Bonis repeated the order over

and over. They explained to him the consequences of

his failure to comply with the order—they could be

forced to use incapacitating agents, they could be

forced to write the plaintiff a conduct report, if

sprayed the plaintiff would have to undergo a strip

search and be put on control status, that the spray

could damage the plaintiff’s property. Van Lanen told

the plaintiff that he was aware that the plaintiff had

a medical contraindication for incapacitating spray

and told the plaintiff—several times—that he did not

want to be forced to use the spray. Van Lanen described the physical effects of incapacitating agents on

a person’s body. The only effect of any of this ordering,

pleading, persuading and reasoning was to cause the

plaintiff to put his bed linens over his face and to cover

up his property.

Eventually, the defendants released a single,

swift burst of incapacitating agent through the meal

trap in the cell door. The plaintiff reacted to the incapacitating agent by moving to the floor, coughing,

groaning, moving around on the floor and the bed. But

it took him several minutes to comply with orders to

remove his clothes and come to the cell door. Bonis

and Van Lanen repeatedly told the plaintiff that the

sooner he removed his clothes and came to the door,

the sooner the discomfort would be over with and he

could get a shower.

Eventually, the plaintiff removed his clothes and

came to the door. He turned around and put his hands

through the trap to be cuffed. The officers then opened

the cell door, restrained the plaintiff’s legs and

71a

positioned a towel over his groin area. It appears from

the video that the plaintiff was not making efforts to

support himself; he and the defendants dispute

whether he was deliberately making himself a dead

weight so that it would be harder for officers to restrain him and take him to the health services staff.

Either way, Van Lanen reacted only by repeatedly advising the plaintiff to stand up, so that the officers

would not be forced to make him walk backward or to

use compliance holds. Van Lanen warned the plaintiff

when he was going to direct officers to use compliance

holds; at least once, as officers were positioning themselves to apply a head hold, the plaintiff obviated the

need for the hold by agreeing that he would walk. The

officers supported the plaintiff’s weight all the way

down the hall to the health services unit. They supported him during the brief interaction with the

health services staff; as the court has noted, at one

point, one officer held the plaintiff’s head by the forehead and chin so that the nurse could inspect his nose

(and so that Van Lanen could wipe it). The video

shows no chokeholds, no dragging the plaintiff by the

neck.

Nothing in the almost thirty-five-minute video of

the November 28, 2017 incident shows any evidence

of malicious or sadistic behavior by any of the officers

involved. Van Lanen and Bonis tried multiple forms

of reasoning to convince the plaintiff to follow the order to come to the cell door of his own volition. Only

when several forms of reasoning failed did they utilize

one burst of incapacitating spray and compliance

holds on the plaintiff’s legs (to apply restraints) and

his arms (to move him down the hallway). See Scott v.

Harris,550 U.S. 372, 380-81 (2007) (where a reliable

videotape clearly captures an event in dispute and

blatantly contradicts one party’s version of the event

72a

so that no reasonable jury could credit that party’s

story, the court should not adopt that party’s version

of the facts for the purpose of ruling on motion for

summary judgment). After viewing the video, no reasonable jury could conclude that the defendants acted

maliciously and sadistically, rather than with the

level of force necessary to get the plaintiff to comply

with their reasonable orders.

The plaintiff’s argument goes beyond the assertion that officers maliciously used an incapacitating

agent, chokeholds and other malicious force to remove

him from the cell. He contends that the decision to require him to come to his cell door so that he could walk

to the HSU to refuse treatment was unreasonable and

against DOC policy. The plaintiff believes that DOC

policy required HSU staff to come to his cell “face-toface” so he could refuse treatment, because he was in

segregation and unwilling to leave his cell. Policy

500.30.54, §VIII(L) says that an incarcerated person

who refuses treatment must report to an appointment

to do so. Dkt. No. 37-2 at 11. It says that for those incarcerated patients who are unable or unwilling to report to the appointment site, the advanced care provider or nurse “shall see the inmate patient face-toface” to fill out the refusal of care form. Id. The policy

does not explicitly prevent security staff from requiring an incarcerated person to walk to the HSU to refuse treatment. But even if Van Lanen’s decision to

require the plaintiff to walk to the HSU violated DOC

policy, a violation of prison policy does not equate to a

violation of the plaintiff’s constitutional rights. See

Williams v. Mierzejewski, 401 F. App’x 142, 144 (7th

Cir. 2010) (“Prison procedures themselves are not substantive liberty or property interests that are protected by due process, see Shango v. Jurich, 681 F.2d

1091, 1100-01 (7th Cir. 1982), and a violation of state

73a

laws or regulations is not a basis for a federal civil

rights suit, see Guajardo-Palma v. Martinson, 622

F.3d 801, 806 (7th Cir. 2010); Domka v. Portage Cnty.,

Wis., 523 F.3d 776, 784 (7th Cir. 2008)”).

The plaintiff asserts that because on previous

days when he’d refused to go to the wellness appointment either an HSU staff member had come to the cell

or he had been removed from the cell without the use

of incapacitating agents or electronic devices or compliance holds, the decision to do something different

on November 28, 2017 was unreasonable and thus involved excessive force. He implies that the defendants

should have continued sending an HSU staff member

to the cell door, or continued entering his cell and removing him via the restraint chair, indefinitely and

thus avoided using the incapacitating agent. But Van

Lanen explained in the video, and in his incident report, his concerns with following that course of conduct. He believed—accurately or inaccurately—that

the plaintiff had a history of problematic behavior. On

the video and in the report he referenced assaults in

prison; in the discovery responses he referenced “disruptive” and “unpredictable” behavior. The plaintiff

had learned over the previous four days the staff’s routine for removing him from his cell, with help from his

neighbors to the right and left of him. Van Lanen was

concerned that entering the plaintiff’s cell, where the

plaintiff had his property, was becoming more and

more risky for staff given the plaintiff’s familiarity

with the routine. And, as Van Lanen noted, the plaintiff’s ability, or lack of ability, to walk was part of the

wellness check.

More to the point, as an incarcerated person, the

plaintiff did not have the authority to dictate how the

prison staff should maintain security and order. The

74a

plaintiff was required to comply with Van Lanen’s and

Bonis’s orders to come to his cell door, whether he

agreed with their orders or their reasoning. Van

Lanen and Bonis gave him multiple chances to do so

and advised him of the consequences of his failure to

comply. Once it was clear that the plaintiff was not

going to comply of his own volition, he did not get to

choose how the officers gained his compliance, nor did

he have a constitutional or other right to insist that

they ignore his refusal to comply. Chemical agents

may be used against prisoners who refuse to follow orders, although such force should not be “exaggerated

or excessive” and should generally follow “adequate

warning[s].” Soto, 744 F.2d at 1270-71.

Nor does the fact that Van Lanen knew that the

plaintiff had a contraindication to incapacitating

agents show that the defendants used excessive force

against him. Van Lanen told the plaintiff that he

knew about the contraindication. He (and Bonis) provided the plaintiff with multiple opportunities to

avoid being subjected to the incapacitating agent. The

plaintiff could have complied with the order to come

to the cell door and avoided being exposed to the

spray, presumably avoiding the ensuing asthma attack. After the asthma attack, when the officers took

him to the nursing station, the plaintiff refused examination and treatment, shouting repeatedly that he

didn’t want it. Van Lanen’s telling the plaintiff that

he knew of the contraindication was not malicious and

sadistic; it was an effort to get the plaintiff to comply

with Van Lanen’s orders without forcing Van Lanen

75a

to use the spray that could (and did) cause an asthma

attack.10

Kind approved the use of an incapacitating agent

based on the information Van Lanen provided. There

is no evidence that Kind acted maliciously or sadistically. Van Lanen used the incapacitating agent (after

giving the plaintiff multiple warnings and opportunities to comply with his orders) to gain the plaintiff’s

compliance with his orders, not to maliciously and sadistically harm him; the video demonstrates that Van

Lanen and Bonis were trying to avoid having to use

the spray and avoid harming the plaintiff. The court

will grant the defendants’ motion for summary judgment as to the plaintiff’s excessive force claims

against Kind and Van Lanen.

Bonis, Diedrick, Meyer and Van Lanen worked together to restrain the plaintiff and escorted him to the

HSU, then to his cell in control status. The video

demonstrates that the defendants exhibited patience

and professionalism while restraining the plaintiff

and escorting him down the hallway. Although the

plaintiff states that officers used chokeholds, the video

does not support this assertion. After viewing the

video, a reasonable fact finder could not conclude that

the defendants used excessive force in restraining the

plaintiff, escorting him to the HSU or while he was in

the HSU. The court will grant the defendants’ motion

10 “Asthma, depending on its degree, can be a serious medical

condition.” Garvin v. Armstrong, 236 F.3d 896, 898 (7th Cir.

2001). While the video reflects the plaintiff coughing and groaning, and with spit coming out of his mouth, there is no indication

that he was unable to breathe during the incident.

76a

for summary judgment on the plaintiff’s excessive

force claim against Bonis, Diedrick and Meyer.11

2. Conditions of Confinement Claim

To establish a constitutional violation with respect to prison living conditions, the plaintiff must be

able to demonstrate that both: (1) the conditions were

so adverse that they deprived him “of the minimal civilized measure of life’s necessities” (the objective

prong) and (2) the defendant acted with deliberate indifference with respect to the conditions (the subjective prong). Townsend v. Fuchs, 522 F.3d 765, 773 (7th

Cir. 2008) (quoting Farmer v. Brennan, 511 U.S. 832,

834 (1994)). The necessities of life include “reasonably

adequate ventilation, sanitation, bedding, hygienic

materials, and utilities.” Gray v. Hardy, 826 F.3d

1000, 1005 (7th Cir. 2016) (quoting Lewis v. Lane, 816

F.2d 1165, 1171 (7th Cir. 1987)). Although “extreme

11 The plaintiff has asserted that he was walked down the cell

block hallway naked in front of other inmates and staff. This is

not a claim of excessive force, but a strip search may violate the

Eighth Amendment “if it is ‘conducted in a harassing manner intended to humiliate and cause psychological pain.’” May v.

Trancoso, 412 F. App’x 899, 902-03 (7th Cir. 2011) (quoting Mays

v. Springborn, 575 F.3d 643, 649 (7th Cir. 2009)). There is no

evidence that the strip search, or the walk down the cell block

hallway, was conducted to harass or humiliate the plaintiff or to

cause him psychological pain. Had he complied with Van Lanen’s

order to come to the cell door and to walk with the officers to the

HSU staff, the plaintiff would not have been required to take his

clothes off or to walk naked down the hallway. He was required

to remove his clothes because they were contaminated with the

incapacitating agent. And although the plaintiff was naked for

the walk from his cell to the medical staff, the defendants provided him with a towel to cover his groin area and were grouped

tightly around his sides and rear as the group moved down the

hallway.

77a

deprivations are required,” Delaney v. DeTella, 256

F.3d 679, 683 (7th Cir. 2001), and “routine discomfort[s]” are not enough to state a conditions of confinement claim, Hudson, 503 U.S. at 9, “[s]ome conditions

. . . may establish an Eighth Amendment violation in

combination when each alone would not do so,” and

other conditions that may not be sufficiently serious

for a short period of time “can become an Eighth

Amendment violation . . . if endured over a significant

time.” Gray, 826 F.3d at 1005 (citations omitted). “Deliberate indifference . . . means that the official knew

that the inmate faced a substantial risk of serious

harm, and yet disregarded that risk by failing to take

reasonable measures to address it.” Townsend, 522

F.3d at 773. Establishing that an official acted negligently is not enough to show a constitutional violation. “Instead, the inmate must show that the official

received information from which the inference could

be drawn that a substantial risk existed, and that the

official actually drew the inference.” Id.

The defendants contend that the plaintiff’s conditions of confinement claim fails as a matter of law.

Dkt. No. 33 at 19. They assert that Van Lanen offered

the plaintiff a smock, security mat, soap and toilet paper but that the plaintiff refused to accept any property; they say that the plaintiff was informed that he

could have the property whenever he wanted. Dkt. No.

34 at ¶62. The plaintiff denies that Van Lanen offered

him a smock, security mat, soap, toilet paper or any

property items. Dkt. No. 50 at ¶62; Dkt. No. 59 at

¶¶77-81.

Van Lanen placed the plaintiff in the cell at

around 12:30 p.m. on November 28. Dkt. No. 37-4 at

2. Around 3:30 p.m. the same day, the plaintiff requested from Retzlaff a smock, clothing, security

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mat/mattress, bedding, soap, toilet paper and cleaning supplies or to be moved to a clean cell. Dkt. No. 59

at ¶84. The plaintiff also told Retzlaff that the vent

inside the cell blew cold air and he needed to be moved

to a warmer cell. Id. Retzlaff told the plaintiff that he

wanted to speak with Van Lanen before giving him

property or moving him. Id. at ¶¶85-86. Retzlaff did

not return to speak with the plaintiff on November 28,

2017, nor did he provide the plaintiff with property he

requested or move him to a different cell. Id. at ¶87.

About twelve hours later—at 3:41 p.m. on November 29—another officer offered the plaintiff a smock

on the condition that he not refuse to leave his cell to

see HSU staff to be evaluated for his hunger strike,

but the plaintiff did not accept the smock. Id. at ¶¶9293.

The plaintiff was in the cell for twenty-two hours

and forty-five minutes. Dkt. No. 37-4 at 1. He provided

the court with declarations from three other persons

incarcerated at Green Bay, attesting to cold temperatures. Dkt. No. 53 (declaration of William Jones); Dkt.

No. 54 (declaration of Michael Henderson, attesting

that it was very cold in the cells on the night of November 28, 2017); Dkt. No. 55 (declaration of Tommie

Carter, attesting that it was very cold in the cells the

night of November 28, 2017). One of those individuals

also attested that the cell had not been cleaned after

the last person had vacated it. Dkt. No. 55 at ¶12.

The inmate observation form has a place on the

first page for the identification of “initial property”

and any property changes. Dkt. No. 37-4 at 1. Under

“initial property,” someone has marked the boxes for

“Suicide-resistant clothes” and “Security mat.” Id. The

form indicates that a member of the security staff

marked those boxes. Id. There is no indication that

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there was any property change while the plaintiff was

in the cell. The plaintiff points out that in discovery,

Van Lanen said it was his practice to put a security

smock or clothing in the red security box attached to

the lower trap of a cell if an inmate refuses or declines

clothing, but that Van Lanen did not do that on November 28, 2017. Dkt. No. 59 at ¶¶80-81 (citing Dkt.

No. 39-3 at 4-5).

The plaintiff has raised a genuine issue of material fact as to whether the conditions in his cell while

he was on control status deprived him of the minimal

civilized measure of life’s necessities. According to the

plaintiff, he “was completely nude, had no mattress,

bedding, toilet paper, soap, washcloth, and the cell

had poor ventilation that did not produce warmth, and

it was unclean.” Dkt. No. 49 at 31. The defendants assert that the plaintiff was offered some of these items

but refused them, and that it wasn’t extremely cold

when the plaintiff was in the cell. The Seventh Circuit

has held that an incarcerated person who alleged that

he had been exposed to extreme cold for eighteen

hours with no access to clothing arguably presented a

genuine issue of material fact as to “whether the duration and severity of the cold in [his] cell was serious

enough to implicate the Eighth Amendment.” Flores

v. O’Donnell, 36 F. App’x at 204, 206-07 (7th Cir.

2002). If the plaintiff was naked in an extremely cold

cell for almost twenty-three hours, without clothing,

bedding and hygiene items, that could amount a constitutional violation.

But a reasonable factfinder could not conclude

that Van Lanen or Retzlaff knew the plaintiff was at

a substantial risk of serious harm. Before Van Lanen

placed the plaintiff in the control cell, he offered the

plaintiff a shower (to clean off the contaminating

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spray); the plaintiff refused the shower and refused

treatment from HSU staff. Van Lanen put the plaintiff in a cell that had running water and a toilet. About

three hours later, the plaintiff asked Retzlaff for property items including clothing and a mattress, told

Retzlaff he was cold and that the vent in his cell blew

cold air and asked to be moved to a clean cell. Retzlaff

told the plaintiff he would ask Van Lanen, but Retzlaff

never returned. About twelve hours after that, Lieutenant Wickman offered the plaintiff a smock, which

the plaintiff refused because Wickman conditioned it

on the plaintiff agreeing to not refuse to exit his cell to

see HSU staff. It is undisputed that during the plaintiff’s twenty-three hours on control status, staff

checked on him every thirty minutes; several noted

that he talked with them. Dkt. No. 37-4. The plaintiff

has not averred that he asked any of the officers who

checked on him for clothing or soap, told them he was

cold or requested medical attention.12 Nor does the

plaintiff state that he changed his mind about accepting Wickman’s conditional offer of a smock.

The plaintiff encourages the court to deduce from

the fact that Van Lanen and Retzlaff did not follow up

with him that they intentionally subjected him to being naked in a cold, dirty cell with no hygiene items

for twenty-three hours. Dkt. No. 49 at 31. Given the

fact that immediately after the extraction incident,

Van Lanen offered the plaintiff a shower and took him

to see medical staff, and that the observation form indicates that the plaintiff was given suicide-resistant

12 While the defendants state that inmates can always ask for

hygiene items, dkt. no. 34 at ¶61, they do not state whether the

plaintiff could have been provided clothing or bedding while on

control status.

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clothing and a security mat, the evidence does not

fully support this deduction. But even viewing the evidence in the light most favorable to the plaintiff and

assuming that Van Lanen and Retzlaff both knew the

cell was very cold, knew it was dirty and knew that

the plaintiff had changed his mind about washing, the

plaintiff has not alleged a constitutionally cognizable

harm resulting from their actions.

A plaintiff must do more than “demonstrate a triable fact with respect to the conditions he faces; he

must also show that he suffered some cognizable harm

from [those conditions], and that the [defendant’s] deliberate indifference caused that harm.” Gray, 826

F.3d at 1006. The plaintiff alleges that he lost sleep

that night, dkt. no. 49 at 31, and he says that standing

on his feet,13 completely nude with cold air coming in

for twenty-three hours “undoubtedly caused [him]

pain,” dkt. no. 49 at 32. Lost sleep and discomfort, or

speculative pain, does not rise to the level of a constitutionally recognizable injury. Two of the incarcerated

persons who provided declarations indicated that

when they first tried to speak to the plaintiff while he

was in controlled separation, he asked them to give

him a minute because he was in pain from the asthma

attack caused by the chemical spray. Dkt. No. 54 at

¶10; Dkt. No. 55 at ¶8. But Van Lanen took the plaintiff to the medical staff; he could have asked for examination and treatment for the asthma attack but insisted—repeatedly and loudly—that he did not want

it.

13 The observation sheet indicates that there was a bed in the

cell, because some of the officers who checked on the plaintiff described him as sitting on the bed. Dkt. No. 37-4 at 3.

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The plaintiff has not demonstrated that Van

Lanen and Retzlaff were deliberately indifferent to a

serious risk of harm. The court will grant summary

judgment in their favor on the conditions-of-confinement claim.

IV. Conclusion

The court GRANTS the defendants’ motion for

summary judgment. Dkt. No. 32.

The court DISMISSES this case. The clerk will

enter judgment accordingly.

This order and the judgment to follow are final. A

dissatisfied party may appeal this court’s decision to

the Court of Appeals for the Seventh Circuit by filing

in this court a notice of appeal within thirty days of

the entry of judgment. See Federal Rules of Appellate

Procedure 3, 4. This court may extend this deadline if

a party timely requests an extension and shows good

cause or excusable neglect for not being able to meet

the thirty-day deadline. See Fed. R. App. P. 4(a)(5)(A).

Under limited circumstances, a party may ask

this court to alter or amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from

judgment under Fed. R. Civ. P. 60(b). Any motion under Fed. R. Civ. P. 59(e) must be filed within twentyeight days of the entry of judgment. The court cannot

extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any

motion under Fed. R. Civ. P. 60(b) must be filed within

a reasonable time, generally no more than one year

after the entry of the judgment. The court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2).

The court expects parties to closely review all applicable rules and determine, what, if any, further action is appropriate in a case.

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Dated in Milwaukee, Wisconsin this 23rd day of

September, 2022.

BY THE COURT:

HON. PAMELA PEPPER

Chief United States District Judge

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APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

ANTONIO MARQUES

SMITH,

Plaintiff,

v.

JOHN KIND, JAY VAN

LANEN, TIMOTHY

RETZLAFF, ALEXANDER

BONIS, JOHN DIEDIRCK,

COLE MEYER, SCOTT M.

ECKSTEIN, STEVE

SCHUELER, CPT. CUSHING, LT. KOEHLER, SGT.

DUPONT, SGT. FRIDEL,

SGT. ROZMARYNOSKI, CO

GOMM, CO JOHNSON, CO

GULLEY, CO BOWMAN,

CO MCDONOUGH, CO

YANG, SUSAN PETERS,

JEAN LUTSEY, KATHY

LEMENS, JOHN AND

JANE DOE ADMINISTRATORS, LT. LARSON, and

JANE DOE NURSE,

Defendants.

JUDGMENT IN A

CIVIL CASE

Case No. 18-cv1569-pp

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Jury Verdict. This case came before the court

for a trial by jury. The parties have tried the issues,

and the jury has rendered its verdict.

Decision by Court. This case came before the

court, the court has decided the issues, and the court

has rendered a decision.

THE COURT ORDERS AND ADJUDGES that

the plaintiff’s complaint, filed under 42 U.S.C. §1983

and alleging that the defendants violated his civil

rights, is DISMISSED.

THE COURT ORDERS that the motion for summary judgment filed by defendants Kind, Van Lanen,

Retzlaff, Bonis, Diedirck and Meyer is GRANTED.

Dkt. No. 32. The other defendants were previously

dismissed.

THE COURT ORDERS that this case is DISMISSED.

Approved and dated in Milwaukee, Wisconsin this

23rd day of September, 2022.

BY THE COURT:

HON. PAMELA PEPPER

Chief United States District Judge

GINA M. COLLETTI

CLERK OF THE COURT

s/ Cary Biskupic

(by) Deputy Clerk

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APPENDIX E

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

September 2, 2025

Before

DAVID F. HAMILTON, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

JOHN Z. LEE, Circuit Judge

No. 22-2870

ANTONIO M. SMITH,

Plaintiff-Appellant,

v.

Appeal from the United

States District Court for

the Eastern District of

Wisconsin.

No. 2:18-cv-01569-PP

JOHN KIND, et al.,

Defendants-Appellees.

Pamela Pepper, Chief

Judge.

ORDER

Plaintiff-appellant filed a petition for rehearing

and rehearing en banc on July 9, 2025. No judge in

regular active service has requested a vote on the petition for rehearing en banc. Judges Scudder and Lee

voted to deny panel rehearing; Judge Hamilton voted

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to grant panel rehearing. Accordingly, the petition for

rehearing en banc is DENIED.