Fillmore, Aaron v. Page, Thomas F. ( 2004 )


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  •                            In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 02-3208
    AARON FILLMORE,
    Plaintiff-Appellant,
    v.
    THOMAS F. PAGE, et al.,
    Defendants-Appellees.
    ____________
    Appeal from the United States District Court
    for the Southern District of Illinois.
    No. 97 844 CJP—Clifford J. Proud, Magistrate Judge.
    ____________
    ARGUED JUNE 6, 2003—DECIDED FEBRUARY 18, 2004
    ____________
    Before RIPPLE, KANNE, and DIANE P. WOOD, Circuit
    Judges.
    DIANE P. WOOD, Circuit Judge. Prison authorities at
    Illinois’s maximum security Menard Correctional Center
    occasionally rely on the Center’s Tactical Team—familiarly
    dubbed the “Orange Crush,” from the orange jumpsuits
    team members wear when performing their duties—to
    escort particularly dangerous inmates from one part of the
    prison to another. In this case, inmate Aaron Fillmore
    claims that he was maliciously treated by both the Crush
    and the officers in the Segregation Unit during a transfer
    to the Center’s Segregation Unit. Some of his claims were
    handled by the court and others were resolved by a jury. At
    2                                               No. 02-3208
    the end of the day, he was unsuccessful across-the-board.
    On appeal, Fillmore has challenged nearly every aspect of
    the case. While we find no fault with most of what the
    district court did, we conclude that further proceedings are
    necessary on some of Fillmore’s excessive force claims, and
    we therefore remand for that limited purpose.
    I
    Our account of the facts is drawn in large part from
    the parties’ “Stipulated Trial Testimony.” In this document,
    which they executed after the trial of one of the defendants,
    they agreed on the testimony Fillmore would give about the
    events in question, should the remaining defendants go to
    trial. The “stipulation” was limited to this purpose; it was
    not a concession on the defendants’ part that Fillmore’s
    story was true.
    On February 4, 1997, several correctional officers visited
    Fillmore in his cell, including Warden Thomas Page,
    Assistant Warden Charles Hinsley, and at least one other
    officer. Their visit was prompted by another prisoner’s
    act of throwing scalding oil on two correctional officers;
    Fillmore had been implicated in the attack. Initially,
    Fillmore refused to “cuff up.” This prompted a brief dis-
    cussion during which Fillmore’s cellmate, Jason Ramlow,
    asked if Page was planning to call in the tactical team—
    that is, the “Orange Crush”—to “break some bones.” The
    answer was yes: the Crush had indeed been summoned to
    transfer Fillmore and three other inmates from the West
    Cellhouse to the Segregation Unit as punishment for the
    attack. The officers who responded were David Shemonic,
    James Best, Robert McCall, Richard Jack, Jason Higgins,
    Paul Henderson, Troy Potts, and Minh Scott. The Crush’s
    leader was Lieutenant Andrew Wilson. Officer Keith
    Chamness videotaped the proceedings, a practice designed
    to protect guards and prisoners alike. The Crush assembled
    No. 02-3208                                               3
    Fillmore and three other inmates. The team, accompanied
    by Page and the videographer, then escorted Fillmore and
    the others through the corridors of the prison and the
    prison yard to the Segregation Unit.
    As they approached the West Cellhouse with the other
    members of the Crush, Wilson allegedly announced, “You
    all have had it now.” Midway through the transfer, Page
    commented, “You fucked up,” to one of the inmates.
    Throughout the transfer process, according to Fillmore,
    Henderson held a baton with one end on top of the chain
    portion of the handcuffs between Filmore’s wrists and the
    other between his legs. Henderson was thereby able to ap-
    ply continuous downward pressure on Fillmore’s wrists, and
    continuous upward pressure on his groin. Jack also had his
    hands on Fillmore during the transfer to the Segregation
    Unit. Fillmore alleges that upon his arrival at the Segrega-
    tion Unit, one of the officers pushed his face against the
    bars of a caged area immediately outside the Segregation
    Unit, although he cannot identify which officer did so.
    Fillmore was then taken inside a vacant cell and was strip-
    searched by Higgins in the presence of several of the
    defendants. Higgins examined each of the usual body
    locations five times.
    After the strip search, Fillmore was transferred to yet
    another cell within the Segregation Unit. This part of the
    transfer is the basis of a further set of allegations in the
    complaint and stipulated testimony. On the way to the cell,
    Fillmore claims, Officer Derek Cleland tripped him and
    banged his shoulder into a “crank box.” Upon reaching the
    cell, rather than waiting to uncuff Fillmore until he was
    safely locked inside the cell, Cleland uncuffed Fillmore
    outside the cell and then shoved him into the cell and onto
    the floor and began kicking and punching him. Fillmore
    immediately assumed the fetal position in an attempt to
    ward off the assault, but he saw at least two orange-clad
    legs joining in the beating. Later that night, several
    4                                                 No. 02-3208
    officers—perhaps Segregation Unit Officers Dennis Grah,
    Christopher McCabe, William Dillon, and Steven Mifflin,
    although Fillmore is uncertain—allegedly sprayed freezing
    water into his cell, broke the light in his cell, and turned off
    the water to the sink and toilet.
    On October 3, 1997, Fillmore filed suit, naming 17
    defendants and advancing various federal- and state-law
    claims. All defendants moved to dismiss, and Fillmore re-
    sponded in opposition. The magistrate judge issued a report
    on February 23, 2000, which the district court adopted in
    full in an order entered on July 31, 2000. In that order, the
    court dismissed Fillmore’s claims based on deliberate
    indifference to serious medical needs and conditions of con-
    finement, which left only his Eighth Amendment excessive
    force claims for further development. The court also
    dismissed Fillmore’s supplemental state-law claims, which
    mirrored the medical needs and confinement claims. Three
    days later, on August 3, 2000, the case was transferred
    by consent of the parties to Magistrate Judge Proud for
    disposition on the merits. See 
    28 U.S.C. § 636
    (c).
    On July 10, 2000, the Segregation Unit defendants (Grah,
    McCabe, Dillon, and Mifflin) filed a motion for summary
    judgment on the excessive force claims against them. On
    February 26, 2001, Magistrate Judge Proud responded to
    this motion, clarifying the July 31 order and noting that the
    district court had already dismissed the medical needs and
    conditions of confinement claims. Those dismissals mooted
    the motion for summary judgment filed by this group of
    defendants, as no claims relating to their alleged con-
    duct—that is, the spraying of cold water and the sabotage
    of the light and water in Fillmore’s cell—remained in the
    case.
    On March 14, 2001, Fillmore filed a motion to recon-
    sider the February 26 dismissal. Two weeks later, the dis-
    trict court granted the motion to reconsider, vacated its
    order, and revived the July 10 summary judgment motion
    No. 02-3208                                                5
    brought by Grah, McCabe, Dillon, and Mifflin. The net ef-
    fect, however, was not terribly helpful from Fillmore’s per-
    spective. This time around, the court found that Fillmore
    had not pointed to enough evidence to justify a trial on
    his excessive force claims against the Segregation Unit
    officers, and they were (again) dismissed from the case.
    On April 25, 2002, the court issued an order severing the
    trial of Page and Cleland from that of the remaining de-
    fendants. The Page-Cleland trial began on June 18, 2002.
    At the conclusion of Fillmore’s presentation of his case-in-
    chief, Page moved for judgment as a matter of law. Ruling
    from the bench, the court granted that motion, dismissing
    Page from the case based on the lack of evidence that Page
    ordered any of the alleged abuse, or that he failed to
    intervene during the parts of the transfers for which he was
    present. The case against Cleland proceeded to the jury. On
    June 20, 2002, the jury returned a verdict in favor of
    Cleland on all counts.
    On July 1, 2002, the Orange Crush defendants moved for
    an entry of judgment in their favor. While that motion was
    under consideration by the court, the parties submitted the
    “Stipulated Trial Testimony” described above. On July 26,
    2002, the court entered judgment in favor of all ten defend-
    ants (Wilson, Chamness, Shemonic, Best, McCall, Jack,
    Higgins, Henderson, Potts, and Scott), construing the de-
    fendants’ July 1 motion as a motion for judgment pursuant
    to FED. R. CIV. P. 52. This appeal followed.
    II
    Fillmore’s claims are directed against three different
    groups of defendants: those who had actual physical contact
    with him during the transfer, those whom he accused of
    either ordering or failing to intervene in the abuse, and the
    unnamed members of the Orange Crush who allegedly
    perpetrated various forms of abuse, but who Fillmore is
    unable to identify. We treat each set in turn.
    6                                                No. 02-3208
    A
    We begin with those defendants who had actual physical
    contact with Fillmore during the transfer and were thus
    accused of perpetrating actual abuse, as opposed to merely
    failing to intervene or ordering that abuse. These defen-
    dants include Henderson, who led Fillmore from the West
    Cellhouse to the Segregation Unit; Jack, who also admitted
    to having his hands on Fillmore during the transfer; and
    Higgins, who conducted the strip search of Fillmore in the
    holding cell upon arrival at the Segregation Unit.
    The first question we must address is what standard
    of review is proper for these rather unusual proceedings.
    The judgment in favor of Henderson, Jack, and Higgins was
    based in part on the “Stipulated Trial Testimony” docu-
    ment. The parties submitted this document at the conclu-
    sion of Cleland’s trial, along with a request that the court
    address the remaining claims on the record from the first
    trial, rather than in a full-blown second trial. The magis-
    trate judge agreed to their proposal and concluded that this
    meant that he was operating under FED. R. CIV. P. 52(c).
    That rule applies to bench trials and authorizes the judge,
    after hearing all of the evidence with respect to an issue, to
    make findings of fact and enter judgment as a matter of law
    against that party. Wsol v. Fiduciary Mgmt. Assocs., Inc.,
    
    266 F.3d 654
    , 656 (7th Cir. 2001); Int’l Union of Operating
    Eng’rs, Local Union 103 v. Ind. Const. Corp., 
    13 F.3d 253
    ,
    257 (7th Cir. 1994).
    But the use of Rule 52(c) is proper only if the parties have
    agreed to waive their right to a jury trial. See FED. R. CIV.
    P. 39(a); Lovelace v. Dall, 
    820 F.2d 223
    , 227 (7th Cir. 1987).
    The problem here is that no such waiver is memorialized
    anywhere within the document containing the stipulated
    testimony, nor does the record on appeal include any
    hearing in which a waiver occurred.
    No. 02-3208                                                 7
    Our review of the pleadings indicates that neither party
    anticipated at that point that the court might proceed under
    Rule 52(c). Shortly after the Cleland trial, the remaining
    defendants moved for judgment as a matter of law, presum-
    ably under Rule 50(a). For his part, Fillmore was appar-
    ently confused about what procedural mechanism would
    apply to the court’s disposition of the case against the
    remaining defendants. The opening paragraph of Fillmore’s
    “Plaintiff’s Brief in Opposition to Directed Verdict” notes
    that entry of judgment “pursuant to Rule 50(a) of the
    Federal Rules of Civil Procedure is not supported by the law
    or the stipulated evidence.” But there was a bigger problem
    than that with the use of Rule 50(a): by its terms, it applies
    only to jury trials. Rego v. ARC Water Treatment Co., 
    181 F.3d 396
    , 401 (3d Cir. 1999). Because none of the defen-
    dants who remained in the case had yet gone to trial, Rule
    50(a) had no role to play.
    Nevertheless, parties can waive the right to jury trial by
    conduct just as they can by written or oral statements. In
    our view, that is what happened here. A failure to object to
    a proceeding in which the court sits as the finder of fact
    “waives a valid jury demand as to any claims decided
    in that proceeding, at least where it was clear that the court
    intended to make fact determinations.” Lovelace, 
    820 F.2d at
    227 (citing United States v. 1966 Beechcraft Aircraft, 
    777 F.2d 947
    , 951 (4th Cir. 1985) (collecting cases)); Stewart v.
    RCA Corp., 
    790 F.2d 624
    , 630 (7th Cir. 1986). Fillmore’s
    decision to submit stipulated testimony for use in further
    proceedings and his participation in the request to dispense
    with a second trial can be understood only as an invitation
    to the judge to resolve matters without the aid of a jury.
    This is enough to invoke Rule 52 and its associated stan-
    dards of review for this court.
    Fillmore is therefore incorrect when he argues that
    “the facts were stipulated to by the parties” and that the
    trial court “made no factual findings.” This misunderstands
    8                                                 No. 02-3208
    both the scope of the Stipulated Testimony and the implica-
    tions of his actions. As we have already noted, the document
    containing the “stipulated” testimony is not a stipulation of
    facts in the traditional sense, but merely a recitation of the
    parties’ testimony about particular matters in the event of
    a trial. Indeed, the document makes explicit that the
    promised testimony as to any particular issue does not
    reflect agreement among the parties. It was up to the
    district court to resolve factual disputes and to decide who
    should prevail. This court, under Rule 52(c), then reviews
    the district court’s legal conclusions de novo and its fact-
    findings for clear error. Hess v. Hartford Life & Accident
    Ins. Co., 
    274 F.3d 456
    , 461 (7th Cir. 2001).
    Applying that standard of review, we now turn to the
    merits of Fillmore’s Eighth Amendment excessive force
    claims against Henderson, Jack, and Higgins. The central
    question is “ ‘whether force was applied in a good faith effort
    to maintain or restore discipline or maliciously and sadisti-
    cally for the very purpose of causing harm.’ ” Hudson v.
    McMillian, 
    503 U.S. 1
    , 6 (1992) (quoting Whitley v. Albers,
    
    475 U.S. 312
    , 320-21 (1986)). In making that determination,
    several factors are relevant, including the need for the
    application of the force, the amount of force applied, the
    threat an officer reasonably perceived, the effort made to
    temper the severity of the force used, and the extent of the
    injury that force caused to an inmate. DeWalt v. Carter, 
    224 F.3d 607
    , 619 (7th Cir. 1999). Such a claim cannot be
    predicated on a de minimis use of force. 
    Id. at 620
    . Instead,
    the quantum of force required for a constitutional violation
    is that which is “repugnant to the conscience of mankind.”
    Hudson, 
    503 U.S. at 10
     (quoting Whitley, 
    475 U.S. at 327
    ).
    In addition, in order to survive a motion for summary
    judgment, the prisoner must have evidence that “will
    support a reliable inference of wantonness in the infliction
    of pain.” Whitley, 
    475 U.S. at 322
    . Infliction of pain that is
    “totally without penological justification” is per se malicious.
    No. 02-3208                                                9
    Hope v. Pelzer, 
    536 U.S. 730
    , 737 (2002) (quoting Rhodes v.
    Chapman, 
    452 U.S. 337
    , 346 (1981)).
    Two questions are thus important: first, whether the force
    that Fillmore describes rose above the de minimis level and
    thus potentially amounted to an Eighth Amendment
    violation, and second, whether the actions of any of the
    three defendants were designed expressly for the purpose
    of punishing or humiliating Fillmore. The magistrate judge
    concluded that any force exerted by Henderson and Jack
    was de minimis and was not so egregious as to “shock the
    [conscience] of mankind.” The judge came to the same
    conclusion about the strip search conducted by Higgins.
    On this record, and bearing in mind that we are operating
    under clear error review, we find no reason to overturn the
    district court’s decisions. Counsel for Fillmore told us at
    oral argument that not more than 30 minutes separated the
    scalding oil attack on the correctional officers and the
    transfer of Fillmore and the other inmates to the Segrega-
    tion Unit. We acknowledge that this might seem to provide
    a strong motive for the officers to mete out “rough justice”
    against Fillmore and the other inmates. Even so, our own
    careful review of the video record (on which the magistrate
    judge also relied) and the record testimony indicates that
    the court’s conclusion that the force applied by Henderson
    and Jack was de minimis was not clearly erroneous.
    As the district court noted, the video reveals only inci-
    dental bumping, which is not enough to meet the consti-
    tutional threshold for excessive force. See DeWalt, 224 F.3d
    at 620 (shove insufficient to meet constitutional threshold);
    see also Outlaw v. Newkirk, 
    259 F.3d 833
    , 839 (7th Cir.
    2001) (finding no Eighth Amendment violation when use of
    force caused superficial injury to prisoner’s hand); Lunsford
    v. Bennett, 
    17 F.3d 1574
    , 1582 (7th Cir. 1994) (finding that
    de minimis force was used when prison guard caused
    bucket to hit prisoner on the head). Moreover, while the
    10                                               No. 02-3208
    video does not capture every second of every aspect of the
    transfer, it is fairly comprehensive. The portions showing
    Fillmore do not suggest that he was experiencing the level
    of discomfort that one would expect if the officers were
    applying substantial upward pressure to Fillmore’s groin
    using the baton. Finally, as the district court also noted,
    Fillmore pointed to no significant injury or need for medical
    attention. Fillmore’s mother testified only that she noticed
    a bruise on his back during a later visit. This was certainly
    not like the beating that was perpetrated during an intra-
    prison transfer in Hudson, which resulted in, among other
    things, a broken dental plate. 
    503 U.S. at 4
    . Nor does this
    case involve the kind of suffering that accompanies the use
    of the hitching post, recently invalidated in Hope. 
    536 U.S. at 738
    . At most, Fillmore experienced discomfort and sore
    wrists. The district court’s finding that the force applied did
    not violate the Constitution was not clearly erroneous.
    The district court also found that Fillmore’s rights
    were not violated in the course of the strip search Higgins
    conducted. Strip searches are not per se unconstitutional.
    Peckham v. Wis. Dep’t of Corr., 
    141 F.3d 694
    , 697 (7th
    Cir. 1998). Fillmore could recover if he could show that
    the strip search was “conducted in a harassing manner
    intended to humiliate and inflict psychological pain.”
    Calhoun v. DeTella, 
    319 F.3d 936
    , 939 (7th Cir. 2003); see
    also Peckham, 
    141 F.3d at 697
    ; Meriwether v. Faulkner, 
    821 F.2d 408
    , 418 (7th Cir. 1987). According to Fillmore, that is
    exactly what Higgins did when he forced Fillmore to spread
    his buttocks five different times in quick succession. The
    district court, however, found that the search was not
    conducted in a humiliating manner, and we must review
    that finding for clear error.
    Once more, the video record is of some assistance. It re-
    veals that the strip search of Fillmore was conducted in
    a discreet and expeditious manner. The search took place
    inside a holding cell and so was out of view of the other in-
    No. 02-3208                                                11
    mates. It was therefore not an affront to Fillmore’s privacy
    interests vis-à-vis other guards or his fellow inmates, to the
    extent a prisoner may assert such interests. See Hudson v.
    Palmer, 
    468 U.S. 517
    , 526-30 (1984); Johnson v. Phelan, 
    69 F.3d 144
    , 146-47 (7th Cir. 1995). Further, Fillmore was
    given ample time to undress and dress, and the total
    examination portion of the search does not appear to have
    lasted more than a few seconds. The principal injury
    Fillmore claimed was humiliation: nowhere did he allege
    that the strip search was conducted in a violent manner.
    While the absence of physical injury does not necessarily
    preclude an Eighth Amendment claim directed at an
    excessive strip search, Calhoun, 
    319 F.3d at 939
    , the
    district court did not clearly err in concluding that this
    search involved a de minimis application of force and lacked
    the requisite showing of malice.
    B
    We turn next to the claims against the defendants who
    did not have any actual physical contact with Fillmore, but
    were nonetheless present: Chamness, who operated the
    camera during the transfer, Wilson, who heads up the
    Orange Crush, and Page. Fillmore claims that a jury could
    have found that each defendant failed to intervene when he
    had a duty and opportunity to do so, or otherwise ordered
    subordinates to commit the alleged abuse. That is not,
    however, the right question to ask. Our review of the
    judgments in favor of Chamness and Wilson once again
    comes from Rule 52, and it is limited to clear error. Page’s
    situation is different: because he won judgment as a matter
    of law under Rule 50, our review of his part of the case is de
    novo. Sheehan v. Donlen Corp., 
    173 F.3d 1039
    , 1043 (7th
    Cir. 1999). Under the latter standard, the decision in favor
    of Page is proper only if the evidence, taken in the light
    most favorable to Fillmore, nonetheless compels a finding
    12                                               No. 02-3208
    for the defendant. Jones v. W. & S. Life Ins. Co., 
    91 F.3d 1032
    , 1036 (7th Cir. 1996).
    In bringing his claims against Chamness, Wilson, and
    Page, Fillmore relied in particular on Miller v. Smith,
    
    220 F.3d 491
     (7th Cir. 2000). In that case, we said that
    “police officers who have a realistic opportunity to step
    forward and prevent a fellow officer from violating a plain-
    tiff’s rights through the use of excessive force but fail to
    do so” could be held liable under § 1983. Id. at 495; see also
    Yang v. Hardin, 
    37 F.3d 282
    , 285 (7th Cir. 1994) (collecting
    other cases). This language merely reiterates the long-
    established rule that “[a]n official satisfies the personal
    responsibility requirement of § 1983 if she acts or fails to
    act with a deliberate or reckless disregard of the plain-
    tiff’s constitutional rights.” Crowder v. Lash, 
    687 F.2d 996
    , 1005 (7th Cir. 1982) (emphasis added). The problem for
    Fillmore, however, is the fact that there was no underlying
    violation of his constitutional rights committed by
    Henderson, Jack, or Higgins. Chavez v. Ill. State Police, 
    251 F.3d 612
    , 652 (7th Cir. 2001); Richardson v. City of India-
    napolis, 
    658 F.2d 494
    , 500 (7th Cir. 1981). Simply put, there
    was no constitutionally impermissible failure to intervene
    because there was no violation that compelled intervention.
    Even if there were such a violation, the closest that
    Fillmore comes to hard evidence that Page and Wilson
    ordered or even condoned the alleged use of force are the
    statements each one allegedly made, including Wilson’s
    announcement that “You have had it now” upon the arrival
    of the Orange Crush at Fillmore’s cell, and Page’s statement
    that “You fucked up” (audible on the video) during the
    actual transfer of the inmates. But offhand and isolated
    statements are too slim a reed to support the contention
    that Page or Wilson affirmatively directed anyone else to
    harm Fillmore, or failed to intervene with a deliberate or
    reckless disregard for Fillmore’s constitutional rights.
    Fillmore has not presented enough to compel reversal of the
    No. 02-3208                                                 13
    magistrate judge’s entry of judgment under either Rule 50
    (Page) or 52 (Wilson).
    The same is true of the remaining defendants, includ-
    ing videographer Chamness, as well as Shemonic, Best,
    McCall, Potts, and Scott, who were near Fillmore through-
    out the transfer. The district court held that the mere
    presence of these officers throughout the transfer did not
    establish a violation because presence without more falls
    short of a deliberate or reckless disregard of Fillmore’s
    constitutional rights. We agree. In the absence of evidence
    of either an underlying rights violation or a conspiracy on
    the part of the remaining guards, we affirm the court’s en-
    try of judgment in favor of Chamness, Shemonic, Best,
    McCall, Potts, and Scott.
    C
    We turn finally to a review of the district court’s dismissal
    of Fillmore’s claims against certain unidentified members
    of the Orange Crush. Our review on this part of the case
    again proceeds under Rule 52.
    Fillmore’s allegations against these defendants rest on
    two separate alleged incidents. The first occurred when
    Fillmore arrived at the Segregation Unit and at least one
    unidentified defendant pushed his face into the bars of the
    caged area just outside the Unit. (Fillmore suspects that
    either Henderson or Jack was the responsible party, but he
    does not know for sure.) The second involved a beating
    administered by Cleland and at least two other members of
    the Crush (identifiable only by their orange pantlegs),
    which occurred after Fillmore was taken to his holding cell
    in the Segregation Unit. The district court’s order says
    nothing about the first incident, and it summarily rejected
    the second claim, noting that neither Fillmore, “nor anyone
    else, can specifically identify any of the ten defendants as
    being present.” (Emphasis added.) Fillmore now argues that
    14                                               No. 02-3208
    the court erred by rejecting his claim against the uni-
    dentified defendants in too summary a fashion.
    Fillmore’s principal strategy is to allege a far-flung
    conspiracy to inflict punishment on him for his suspected
    role in the attack on the guards, and then to rely on the
    common law doctrine of joint liability to overcome his in-
    ability to identify exactly who was beating him. He begins
    with the well-established proposition that § 1983 creates a
    “species of tort liability,” Carey v. Piphus, 
    435 U.S. 247
    , 253
    (1978). In tort law, when each of two defendants performed
    a negligent act that may have produced the plaintiff’s
    injury, but it is impossible to know which one really did,
    courts hold that the two defendants may be jointly liable for
    that single injury. See, e.g., Summers v. Tice, 
    199 P.2d 1
    (Cal. 1948) (holding two hunters jointly liable for a hunting
    accident where each negligently discharged his weapon).
    This case, according to Fillmore, is a perfect candidate for
    application of that rule in the § 1983 context.
    But Fillmore has pushed the concept too far. In his case,
    questions exist whether the other potential tortfeasors were
    present at all. His case is more like Hessel v. O’Hearn, 
    977 F.2d 299
     (7th Cir. 1992). There, the plaintiffs brought a
    § 1983 action when a can of soda vanished during a search
    of their apartment. We held that plaintiffs’ inability to
    identify the particular officer who stole the soda was fatal
    to their claim, but suggested that the result might have
    been different if the evidence had shown that each defen-
    dant was involved in the actual wrongdoing. Id. at 305. We
    explicitly distinguished the hunting accident at issue in
    Summers v. Tice, noting:
    Those officers who participated in the search but did
    not steal any of the Hessels’ property are innocent in a
    way in which the defendants in Summers and Sindell
    [v. Abbott Labs., 
    607 P.2d 924
     (Cal. 1980)] were not—for
    all of those defendants had done a harmful, a dangerous
    No. 02-3208                                                 15
    thing, albeit not all had harmed the particular plaintiff.
    
    Id.
     Joint liability is appropriate only where all of the de-
    fendants have committed the negligent or otherwise illegal
    act, and so only causation is at issue. Fillmore has not
    established the predicate for the joint liability rule, and
    thus his claim cannot succeed on this basis.
    This does not, in our view, mean that prison guards who
    take the trouble to disguise themselves beyond recognition
    are free to abuse inmates without fear of liability. It is
    simply to say that the solution to that problem does not, in
    the present circumstances, lie in the doctrine of joint
    individual liability. Other measures may also be effective.
    Menard’s own practice of videotaping transfers is one, to the
    extent that the camera captures all relevant events.
    Another would be to require clearly identifiable numbers on
    the outerwear of the guards, through which the institution
    could trace the particular individuals involved. A third, well
    within judicial competence and more suited to the litigation
    context, is to compel prison officials to reveal all informa-
    tion relevant to the task of identifying the responsible
    parties, including such facts as who was assigned to the
    particular task that gave rise to the claim. Refusals to
    testify or dishonest testimony must be punished with
    sanctions severe enough to compel cooperation. No one
    wants to reward reliance on the legendary code of silence
    among law enforcement officers, see, e.g., Sledd v. Lindsay,
    
    102 F.3d 282
    , 287 (7th Cir. 1996), and so the courts must be
    vigilant to ensure that the proper information sees the light
    of day. Indeed, in this case, the trial court imposed discov-
    ery sanctions on October 15, 1999, in response to the
    defendants’ failure to provide the names of the officers on
    duty in the Segregation Unit the night after the transfer,
    but nothing more seems to have been done.
    What, then, can we make of Fillmore’s effort to bring this
    excessive force claim? It is important initially to distinguish
    16                                               No. 02-3208
    between two possible situations: first, that the unknown
    officers administering the beating were among the individu-
    als Fillmore sued, and second, that they were not (i.e., that
    they were additional Tactical Team members who had
    never been named as defendants and served with process).
    If the latter proves to be true, then Fillmore is probably out
    of luck. These events took place in 1997, well outside the
    two-year limitations period that applies to Illinois § 1983
    claims in the absence of any kind of tolling. Licari v. City of
    Chicago, 
    298 F.3d 664
    , 667-68 (7th Cir. 2002). If the former
    is true, however, then the defendants are already properly
    before the court, and the only task is the collection of the
    right information. What this record currently lacks is a
    finding of fact about which, if any, of the defendants
    pressed Fillmore’s face up against the bars outside the
    Segregation Unit, and whether Fillmore was really beaten
    upon his arrival at the cell in which he was ultimately
    housed.
    The court should have made a finding of fact about
    whether each incident occurred and, if possible, who was
    involved, rather than rejecting Fillmore’s claim as a matter
    of law based solely on Fillmore’s inability to identify his
    assailants without judicial intervention. We are not con-
    vinced that a thorough enough inquiry was made into these
    matters, and we therefore conclude that this portion of the
    case must be remanded for further proceedings. Should the
    court determine that either incident took place, then the
    defendants must cooperate fully with inquiries designed to
    identify which officers were involved. In addition, if either
    incident is found to have taken place, then Fillmore may
    also proceed against any defendants who the court finds
    were present at the scene for their failure to intervene. If,
    in the final analysis, the court concludes that the prison has
    a policy that makes identification virtually impossible, it
    may be that Fillmore will have highlighted a different kind
    No. 02-3208                                                 17
    of problem relating to the broader policies the prison
    officials have adopted in their official capacities.
    III
    Fillmore next attacks the instructions presented to the
    jury in Cleland’s trial. We review jury instructions to de-
    termine if, taken as a whole, they were sufficient to inform
    the jury correctly of the applicable law. Dadian v. Village of
    Wilmette, 
    269 F.3d 831
    , 839 (7th Cir. 2001).
    Fillmore’s principal argument is that the jury instructions
    incorrectly required the jury to find that Officer Cleland
    subjectively desired to cause him pain. The instructions at
    issue stated, in relevant part:
    Defendant’s Instruction 11: . . . The infliction of pain in
    a prison security measure does not amount to a cruel
    and unusual punishment simply because it may appear
    in retrospect that the degree of force authorized or
    applied for security purposes was unreasonable, and
    hence, unnecessary in a strict sense.
    In determining whether the use of force by a correc-
    tional officer against a prisoner constitutes cruel and
    unusual punishment, you must decide whether the
    force was applied in a good faith effort to maintain or
    restore discipline or maliciously and sadistically for the
    very purpose of causing harm.
    Defendant’s Instruction 12: “Maliciously” means inten-
    tionally injuring another without just cause or reason.
    Defendant’s Instruction 13: “Sadistically” means en-
    gaging in “extreme cruelty or delighting in cruelty.”
    We find no reversible error in the way that these instruc-
    tions present the subjective element of the plaintiff’s claim.
    In Thomas v. Stalter, 
    20 F.3d 298
     (7th Cir. 1994), we noted:
    18                                               No. 02-3208
    Under the controlling precedent of the Supreme Court,
    the test for determining whether a prisoner has suf-
    fered cruel and unusual punishment has two com-
    ponents, one objective and one subjective. The objective
    component focuses on whether, in light of contemporary
    standards of decency, the alleged deprivation was
    sufficiently serious. The subjective component involves
    an inquiry into whether the officials acted with a
    sufficiently culpable state of mind.
    
    Id. at 301
     (citations and quotation marks omitted). Fillmore
    thinks that the Supreme Court changed this test in its
    recent decision in Hope v. Pelzer, 
    supra,
     but we disagree. It
    is true, as Fillmore notes, that in holding that Alabama’s
    use of the hitching post violated the Eighth Amendment,
    the Court nowhere mentioned any proof that the guards
    involved were motivated by any subjective intention of
    inflicting pain on Hope. In fact, the Court underscored that
    it was not altering the subjective intent requirement for
    Eighth Amendment cases when it stated that “[w]e may
    infer the existence of this subjective state of mind from the
    fact that the risk of harm is obvious.” Hope, 
    536 U.S. at 738
    .
    The instructions here provide no reason to upset the jury’s
    verdict in favor of Cleland.
    IV
    Last, Fillmore objects to the process by which the district
    court granted summary judgment for defendants Grah
    and Mifflin. (He concedes that judgment was properly en-
    tered for McCabe and Dillon.) The district court, he claims,
    failed to give him an adequate opportunity to complete
    discovery or file evidence in opposition. The magistrate
    judge’s decision to revive and grant an earlier motion for
    summary judgment, all in a single order, in Fillmore’s view
    violated FED. R. CIV. P. 56(c)’s command that “[t]he [sum-
    No. 02-3208                                               19
    mary judgment] motion shall be served at least 10 days
    before the time fixed for the hearing.”
    Strictly speaking, the advance notice and response
    provision of Rule 56(c) requires that ten days elapse before
    the hearing, not ten days before the filing of affidavits or
    other materials in opposition, but we have interpreted it to
    mean that a district court has no power to enter summary
    judgment without first allowing the nonmovant at least ten
    days (or whatever additional period of time the court has
    set) to file an opposition. Indiana Port Comm’n v. Bethlehem
    Steel Corp., 
    702 F.2d 107
    , 111 (7th Cir. 1983); see also
    Grigoleit Co. v. United Rubber, Cork, Linoleum, & Plastic
    Workers of Am., Local No. 270, 
    769 F.2d 434
    , 437 (7th Cir.
    1985); Gieringer v. Silverman, 
    731 F.2d 1272
    , 1280 (7th Cir.
    1984); Lewis v. Faulkner, 
    689 F.2d 100
    , 101 (7th Cir. 1982);
    Allen v. Beneficial Fin. Co., 
    531 F.2d 797
    , 799 (7th Cir.
    1976). Relying on this authority, Fillmore now claims that
    the magistrate judge violated the notice and response
    provision of Rule 56(c) when he revived and granted the
    defendants’ summary judgment motion in one fell swoop,
    without providing Fillmore with an additional ten days to
    prepare a response after the court’s decision to revive that
    motion.
    The Fifth Circuit has held that a significant delay
    between the time a motion for summary judgment is filed
    and the court’s ultimate disposition of that motion violates
    Rule 56(c). See Capital Films Corp. v. Charles Fries Prods.,
    Inc., 
    628 F.2d 387
     (5th Cir. 1980); Kilbort v. Hampton, 
    538 F.2d 90
     (5th Cir. 1976); Enochs v. Sisson, 
    301 F.2d 125
     (5th
    Cir. 1962). This court, however, has taken a more flexible
    approach. In Grigoleit, the plaintiff had inexplicably failed
    to file any response to the defendant’s motion for summary
    judgment over a period of several months. When the district
    court entered summary judgment in favor of the defendant,
    the plaintiff balked, claiming that FED. R. CIV. P. 56(c)
    requires “a court to notify the opposing party ten days
    20                                              No. 02-3208
    before ruling on the motion, even if the motion were filed
    six months earlier.” Grigoleit, 
    769 F.2d at 437
    . We rejected
    that reading of the rule and held that the district court
    could enter summary judgment at any point without
    providing ten days’ notice to the delinquent party of its
    intention to do so. 
    Id.
     We distinguished Capital Films on
    the ground that in that case the district court’s entry of
    summary judgment contradicted its earlier assurances to
    the parties that it would not act on the summary judgment
    motion and that the case would instead proceed to trial. 
    Id.
    In this case, the magistrate judge answered Fillmore’s
    first motion for an extension of discovery with an order
    extending both the discovery and the dispositive motion
    deadlines to October 4 and 11 respectively. But while
    Fillmore had thereby bought himself some more time, he
    did not at the same time receive an extension of time for
    responding to the summary judgment motion. A savvier
    plaintiff might have thought to file a motion that asked for
    both kinds of extension, rather than just an extension of the
    discovery cut-off, but Fillmore did not. As the October 11
    deadline approached and the court had not yet disposed of
    his October 2 motion requesting a further extension of
    discovery, the safest course for Fillmore was to file an
    opposition anyway, along with an affidavit outlining his
    reasons for needing further discovery as contemplated by
    Rule 56(f). See Woods v. City of Chicago, 
    234 F.3d 979
    , 990
    (7th Cir. 2000); Kalis v. Colgate-Palmolive Co., 
    231 F.3d 1049
    , 1058 (7th Cir. 2000); Farmer v. Brennan, 
    81 F.3d 1444
    , 1449-50 (7th Cir. 1996); Wallace v. Tilley, 
    41 F.3d 296
    , 302 (7th Cir. 1994). But Fillmore did not do so, then or
    later. As a result, the court’s October 11 deadline had come
    and gone well before the confusing sequence of orders
    entered in February and March, in which the court declared
    the remaining claims against the Segregation Unit defen-
    dants to be moot, but then vacated that order and revived
    and granted those same defendants’ motion for summary
    judgment.
    No. 02-3208                                              21
    Looking at the proceedings as a whole, and bearing
    in mind the district court’s discretion in managing cases
    before it, we conclude that Fillmore had a meaningful op-
    portunity to respond to the defendants’ summary judgment
    motion. We therefore affirm the district court’s entry of
    summary judgment in favor of Grah and Mifflin.
    IV
    Out of this entire appeal, therefore, we have AFFIRMED
    the judgments in favor of Henderson, Jack, Higgins with
    respect to the claims arising out of the transfer; the judg-
    ment in favor of Higgins with respect to the strip search;
    the claims against Wilson, and Page with respect to failure
    to intervene; the claims against Chamness, Shemonic, Best,
    McCall, Potts, and Scott for their action or inaction during
    the transfer; the jury verdict in favor of Cleland; and the
    summary judgments for Grah and Mifflin. We REVERSE and
    REMAND the court’s dismissal of Fillmore’s claims against
    the unnamed defendants who allegedly beat him in the
    Segregation Unit for further proceedings to ascertain
    whether any of the named defendants was involved in the
    beating, and if the specific actors can be identified, for
    further proceedings on that claim. If other persons adminis-
    tered the beating, the court must decide whether the
    statute of limitations bars Fillmore’s claims against any or
    all of them. Each party shall bear its own costs on appeal.
    22                                        No. 02-3208
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—2-18-04