Roger Forrest, Jr. v. Michael Prine ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3471
R OGER F ORREST, JR.,
Plaintiff-Appellant,
v.
M ICHAEL P RINE,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 4:07-cv-04086-JAG—John A. Gorman, Magistrate Judge.
A RGUED A PRIL 14, 2010—D ECIDED A UGUST 31, 2010
Before P OSNER, R IPPLE and K ANNE, Circuit Judges.
R IPPLE, Circuit Judge. Roger Forrest brought this action
against Officer Michael Prine and Rock Island County
Sheriff Michael Huff, asserting, among other things, an
excessive force claim against Officer Prine under 42
U.S.C. § 1983. The district court granted summary judg-
ment for the defendants. Mr. Forrest appeals only the
dismissal of his excessive force claim against Officer
Prine. For the reasons stated in this opinion, we affirm
the judgment of the district court.
2 No. 09-3471
I
BACKGROUND
A.
On March 8, 2007, the police responded to a 911 call from
Mr. Forrest’s son, who reported that Mr. Forrest was
hitting people in their home. The police arrived and
found Mr. Forrest to be uncooperative. The police force-
fully entered the home, and an altercation ensued during
which Mr. Forrest struck a police officer in the face. In
order to subdue Mr. Forrest, the police employed a taser
device several times. Several police officers then escorted
Mr. Forrest to the Rock Island County Jail. Mr. Forrest
ultimately was charged with aggravated battery of a
police officer, a felony charge.
Rock Island County has a policy that any person charged
with a felony is required to submit to a complete strip
search as part of the booking process in order to ensure
that no weapons or contraband are brought into the jail.
This policy is meant to protect the safety of imprisoned
individuals and officers in the jail. The strip search in-
cludes a visual body cavity search.
Mr. Forrest was escorted to a holding cell for the
strip search. He estimated that between six and seven
officers remained in the area. The officers observed that
Mr. Forrest appeared to be under the influence of some-
thing, possibly alcohol. Mr. Forrest removed most of his
clothing, but refused to remove his underwear. Officer
Michael Prine entered the cell with a taser and ordered
Mr. Forrest to remove his underwear. Officer Prine had
No. 09-3471 3
been trained in the use of tasers. Although he had not
arrested Mr. Forrest earlier that evening, Officer Prine was
aware that a taser already had been employed several
times on Mr. Forrest during the course of the arrest. Officer
Prine warned Mr. Forrest that he would employ the
taser if he did not comply with the strip search com-
mands. Mr. Forrest called the officers “faggots” and used
other expletives. See Forrest Dep. 48:19-22, Oct. 22, 2008;
Prine Dep. 33:23-25, Oct. 22, 2008.
Mr. Forrest eventually removed his underwear but
would not comply with the rest of the strip search com-
mands.1 Shouting obscenities and with fists clenched,
Mr. Forrest began pacing back and forth while facing
Officer Prine.2 Mr. Forrest never approached Officer
Prine and remained 7-10 feet away. Over the course of
several minutes, Officer Prine repeatedly told Mr.
Forrest that unless he complied with the strip search
1
In accordance with the jail’s established strip search
protocols, the officers commanded Mr. Forrest to bend over,
spread his buttocks, squat down and cough.
2
Mr. Forrest apparently was disabled due to a leg injury, and
had, on some occasions in the past, walked with a cane. How-
ever, Mr. Forrest did not testify that he was limping on this
occasion, and the officers denied that Mr. Forrest exhibited a
limp during the course of events that evening. Thus, no evi-
dence exists from which we may draw the reasonable infer-
ence that Mr. Forrest was limping on March 8, 2007.
At the time of the events in question, Mr. Forrest was 42
years old. His approximate height and weight were 5’11” and
280 pounds. Officer Prine was 6’1” and weighed 295 pounds.
4 No. 09-3471
commands, the officer would use the taser. Officer
Prine testified that he did not believe it was safe to ap-
proach Mr. Forrest any closer.
Officer Prine finally employed the taser on Mr. Forrest.
The officer held the taser with both hands, outstretched
from his body. The officer testified that he aimed the
taser gun at Mr. Forrest’s upper back. Another police
officer, Christopher Young, testified that, at some point
during the events, he saw the taser’s laser sighted on
Mr. Forrest’s torso. A third officer, Michael Mendoza,
testified similarly, clarifying that the laser was sighted
“chest to waist.” Mendoza Dep. 54:11, Mar. 23, 2009.
Mr. Forrest testified that the taser was pointed at his
face, although he could not see the red dot of the
taser’s laser. He told Officer Prine to get the taser out of
his face. Forrest Dep. 46:24-47:11, Oct. 22, 2008.
Officer Prine testified that, as he fired the taser,
Mr. Forrest “kind of bent down.” Prine Dep. 64:13-16,
Oct. 22, 2008. Officer Young testified that Mr. Forrest
“ducked down and turned just as the taser was de-
ployed.” Young Aff. 2, June 23, 2009. Officer Mendoza
testified that Mr. Forrest made some kind of unusual
movement, “almost like a duck.” Mendoza Dep. 54:19-22,
Mar. 23, 2009. Mr. Forrest did not testify to the contrary.3
3
In his appellate brief, Mr. Forrest states that he testified that
he did not duck. See Appellant’s Br. 6-7. However he does not
comply with Federal Rules of Appellate Procedure 10(b)(2) and
28(a)(7), or Circuit Rule 28(c), which require Mr. Forrest to
(continued...)
No. 09-3471 5
One taser discharge hit Mr. Forrest’s face, near his eye;
another dart struck his arm. Mr. Forrest fell and struck
his face against the back wall of the holding cell, causing
a mild depressed deformity of his left zygomatic arch
(his cheekbone).
B.
Mr. Forrest brought this action against Officer Prine
and Sheriff Huff. The section 1983 count relevant to
this appeal alleged that Officer Prine employed excessive
force when he used the taser to subdue Mr. Forrest.
Mr. Forrest alleged that he sustained an injury when
he struck the wall of the cell; he does not allege an
injury from the actual impact of the taser. The com-
plaint identified the Fourth and Fourteenth Amend-
ments to the Constitution as bases for the excessive
force claim. Officer Prine moved for summary judg-
ment, contending that no genuine issue of material fact
existed as to whether he had used excessive force. The
district court, applying the Eighth Amendment standard
prohibiting the malicious and sadistic infliction of
harm, agreed and granted summary judgment for
Officer Prine. Mr. Forrest appeals only that portion of
the district court’s ruling.
(...continued)
support his contention with citations to the summary judgment
record. We have found no support for Mr. Forrest’s contention,
and, thus, we shall not credit it.
6 No. 09-3471
II
DISCUSSION
We review de novo a district court’s grant of summary
judgment. See Lewis v. Downey, 581 F.3d 467, 472 (7th Cir.
2009). Summary judgment should be granted “if the
pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c)(2). All disputed facts are resolved and reasonable
inferences are drawn in favor of the non-moving party,
Mr. Forrest. See Lewis, 581 F.3d at 472; see also Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986). The
summary judgment standard
mirrors the standard for a directed verdict under
Federal Rule of Civil Procedure 50(a) . . . . [T]he
genuine issue summary judgment standard is
very close to the reasonable jury directed verdict
standard . . . . [T]he inquiry under each is the
same: whether the evidence presents a sufficient
disagreement to require submission to a jury or
whether it is so one-sided that one party must
prevail as a matter of law.
Anderson, 477 U.S. at 250-51; see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986).
To prevail in this section 1983 action, Mr. Forrest must
establish (1) that he had a constitutionally protected
right, (2) that he was deprived of that right, (3) that
Officer Prine intentionally deprived him of that right
No. 09-3471 7
and (4) that Officer Prine acted under color of state law.
See Cruz v. Safford, 579 F.3d 840, 843-44 (7th Cir. 2009).
The third and fourth elements are not at issue in this
case. Our focus, therefore, must be on the first and
second elements.
A.
Although Mr. Forrest’s complaint alleges that Officer
Prine deprived him of his Fourth Amendment right to
be free from unreasonable search and seizure, he
invites our attention primarily to authorities based on
the Fourteenth Amendment. As the district court ap-
peared to recognize, the Fourth Amendment right to
be free from unreasonable searches and seizures has
temporal limitations, see Lee v. City of Chicago, 330 F.3d
456, 462-63 (7th Cir. 2003), and does not extend through-
out the entire pretrial detention process, see Payne v.
Churchich, 161 F.3d 1030, 1039 & n.10 (7th Cir. 1998);
Wilkins v. May, 872 F.2d 190, 192-94 (7th Cir. 1989). Al-
though we have not yet had occasion to define
precisely the contours of those temporal limitations, the
events that unfolded in this case place Mr. Forrest’s
claim outside the temporal bounds of the Fourth Amend-
ment. Cf. Wilkins, 872 F.2d at 192-93 (concluding that no
Fourth Amendment right applied at the moment the
plaintiff alleged excessive force in a pretrial prison
setting because the plaintiff had been “seized” for pur-
poses of the Fourth Amendment when he was arrested
previously, and not when the excessive force incident
occurred). See generally Mitchell W. Karsch, Note, Excessive
8 No. 09-3471
Force and the Fourth Amendment: When Does Seizure End?,
58 Fordham L. Rev. 823 (1990).
As the case comes to us, therefore, Mr. Forrest’s primary
contention is that he was deprived of his Fourteenth
Amendment right to due process when Officer Prine
employed the taser on him. This provision provides the
appropriate constitutional standard against which to
measure Mr. Forrest’s claim because he was a pretrial
detainee at the time he alleges his constitutional rights
were violated. See Estate of Moreland v. Dieter, 395 F.3d
747, 758 (7th Cir. 2005) (“Because Moreland was a
pretrial detainee in the jail at the time of his death in
custody, the plaintiffs’ claim falls within the Fourteenth
Amendment . . . .”); Payne, 161 F.3d at 1039-40 (“[I]t is
clear that Mr. Hicks essentially is alleging maltreat-
ment while in custody as a pretrial detainee. Under the
prevailing case law, such allegations are treated as
claims under the Due Process Clause of the Fourteenth
Amendment.”); Wilson v. Williams, 83 F.3d 870, 875 (7th
Cir. 1996) (“Between the status of free citizen and con-
victed prisoner lies the ‘pretrial detainee,’ protected by
the due process clause of the Fourteenth Amendment.”).
In a similar context, we have explained:
The scope of an individual’s right to be free from
punishment—and, derivatively, the basis for an
excessive force action brought under § 1983—
hinges on his status within the criminal justice
system. On one end of the spectrum are sentenced
prisoners. The Eighth Amendment protects these
individuals only from the infliction of cruel and
No. 09-3471 9
unusual punishment, which is often defined in
the prison context as the unnecessary and wanton
infliction of pain.
Pretrial detainees, by contrast, have not been
convicted or sentenced and thus are not yet
punishable under the law. As such, pretrial de-
tainees couch excessive force claims as violations
of their Fourteenth Amendment rights to due
process, not infringements on the Eighth Amend-
ment’s ban on cruel and unusual punishment.
Lewis, 581 F.3d at 473 (internal quotation marks and
citations omitted).4 The Fourteenth Amendment right to
due process provides at least as much, and probably
more, protection against punishment as does the Eighth
Amendment’s ban on cruel and unusual punishment. Id.at 475 (citing City of Revere v. Mass. Gen. Hosp., 463 U.S.
239, 244 (1983)); see also Wilson, 83 F.3d at 875. Mr. Forrest
has not explained, however, how any protections guaran-
teed by the Fourteenth Amendment provide him with
more protection than he would receive under tradi-
4
In Lewis v. Downey, 581 F.3d 467 (7th Cir. 2009), the plaintiff
had been convicted, but was awaiting sentencing. Thus, his
constitutional status, for purposes of his section 1983 excessive
force claim, fell somewhere in between pretrial detainee
and sentenced prisoner. We held that the Fourteenth Amend-
ment provided the basis for his claim. Mr. Forrest was
awaiting arraignment at the time Officer Prine employed the
taser. Mr. Forrest therefore falls within the pretrial detainee
category and the Fourteenth Amendment serves as the basis
for his excessive force claim.
10 No. 09-3471
tional Eighth Amendment standards.5 We therefore
shall borrow Eighth Amendment standards to analyze
Mr. Forrest’s Fourteenth Amendment section 1983 claim.
Cf. Lewis, 581 F.3d at 475 (refusing to consider, absent
the parties’ raising the issue, “any safeguards the Four-
teenth Amendment provides beyond those it shares
with the Eighth Amendment”).
“The ‘unnecessary and wanton infliction of pain’ on a
prisoner violates his rights under the Eighth Amendment.”
Id. (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).
Force used in “a good-faith effort to maintain or restore
discipline,” does not rise to the level of being unneces-
sary and wanton. Hudson v. McMillian, 503 U.S. 1, 7 (1992).
Only force intended “maliciously and sadistically” to
cause harm to the prisoner falls under that standard. Id.Several factors are relevant in determining whether
a defendant applied force in good faith or for
purposes of causing harm, including the need
for force, the amount of force used, the threat
reasonably perceived by the officer, efforts made
to temper the severity of the force, and the extent
of the injury caused by the force.
Lewis, 581 F.3d at 477.
5
Indeed, “the exact contours of any additional safeguards
[guaranteed by the Fourteenth Amendment] remain unde-
fined.” Lewis, 581 F.3d at 474.
No. 09-3471 11
B.
Mr. Forrest contends that Officer Prine had absolutely
no justification for using a taser on him because
Mr. Forrest posed no threat. We must conclude that
no reasonable jury would agree. See Anderson, 477 U.S. at
250-51 (discussing the summary judgment standard).
Officer Prine was aware that Mr. Forrest had attacked
an officer earlier in the night, necessitating at least one
use of the taser to maintain officer safety and public order.
Mr. Forrest does not dispute that he appeared to be
intoxicated, and, consequently, the officer reasonably
could have perceived him as acting unpredictably. The
immediate situation facing Officer Prine was indeed a
very difficult one. Mr. Forrest was a relatively large man
confined in an enclosed space of relatively small area.
Facing Officer Prine, he was pacing in the cell, clenching
his fists and yelling obscenities. Mr. Forrest was not
merely “slow to comply with an order”; his conduct
created a situation where the officers were “faced with
aggression, disruption, [and] physical threat.” Lewis, 581
F.3d at 477. 6 Clearly, Mr. Forrest posed an immediate
threat to safety and order within the jail. The use of a
taser in such circumstances constituted a permissible use
6
In Lewis, the plaintiff was struck by an officer’s taser while
lying in a bed and, according to his version of the facts, without
warning. We determined that a genuine issue of material fact
existed as to whether the officer’s use of force at that moment
was intended as a good faith effort to maintain order or
was excessive. The facts in Mr. Forrest’s case are, of course,
not comparable.
12 No. 09-3471
of force. See id. at 477-78 (“In a jail or prison setting, it
is not hard to imagine any number of scenarios that
would justify the [use of] . . . taser guns.”).7
Additionally, before employing the taser, Officer Prine
warned Mr. Forrest several times that noncompliance
would result in tasing. Mr. Forrest did not heed the
warnings. Cf. Kinney v. Ind. Youth Ctr., 950 F.2d 462, 466
(7th Cir. 1991) (affirming summary judgment dismissal
of the plaintiffs’ Eighth Amendment section 1983 claims
of excessive force against defendant officer because
officer gave the plaintiffs verbal warnings to stop or be
shot).
In the course of his argument to us, Mr. Forrest con-
tends that a genuine issue of material fact exists as to
whether Officer Prine aimed at Mr. Forrest’s eye. Although
he claims no specific injury to his eye, Mr. Forrest never-
theless submits that, if Officer Prine did aim the instru-
ment at his eye, such a fact would evince a “malicious
and sadistic” intent on Officer Prine’s part to cause
harm, even if some force was permissible under the
7
Mr. Forrest suggests that Officer Prine should have used the
direct contact feature of the taser, as opposed to the gun
feature. The record makes clear, however, that Officer Prine
reasonably assessed that he could not safely draw sufficiently
close to Mr. Forrest to permit such an application of the
taser. Nor does the record affirmatively establish that such an
application would have resulted in less of a chance of
Mr. Forrest falling and sustaining injuries similar in kind to
those of which he now complains.
No. 09-3471 13
circumstances. See Hudson, 503 U.S. at 7. In Mr. Forrest’s
view, the mere fact that a taser struck near his eye consti-
tutes a “smoking gun” and requires us to infer that
Officer Prine intended that the taser strike that location.
First, as a preliminary matter, we think that such an
inference is an inexorable consequence of the situation.
No reasonable person could accept Mr. Forrest’s conten-
tion that, because the officer was trained in the use of
tasers, the only possible reason for the taser hitting his
face is that Officer Prine intended that the taser hit his
face because he must have hit precisely where he
was aiming. There is another very obvious explanation
as to why the taser hit Mr. Forrest’s face. As we al-
ready have noted, the undisputed evidence shows
that Mr. Forrest was pacing in an agitated manner
when Officer Prine discharged the taser device. No rea-
sonable jury could believe that a police officer, although
trained in the use of tasers, always hits precisely his
target when the target is moving.
More importantly, on this record, it simply would not
be permissible for a jury to infer from the mere fact that
the taser hit Mr. Forrest’s face that Officer Prine mali-
ciously and sadistically intended to cause Mr. Forrest
pain. After an examination of the entire record, we con-
clude confidently that the evidence would not sustain a
jury verdict premised upon such an inference. As we
already have noted, the record reveals that Officer
Prine confronted, in close quarters, a defiant, belligerent,
intoxicated pretrial detainee. He employed the taser only
after he had warned Mr. Forrest to cooperate. This warning
14 No. 09-3471
was entirely appropriate under the circumstances and
cannot reasonably be construed as evincing a malicious
intent. Indeed, the record provides affirmative evidence
that Officer Prine was proceeding in a professional
manner to accomplish a difficult task in a dangerous
situation.
Mr. Forrest maintains, however, that we should infer
that Officer Prine was angry and wanted to harm
Mr. Forrest because Mr. Forrest had impugned Officer
Prine’s character with the use of invectives. However, on
this record, that theory is wholly speculative, and
Mr. Forrest is not entitled to such an unsupported infer-
ence. See Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir.
2008) (“[I]t is well-settled that speculation may not be
used to manufacture a genuine issue of fact.” (internal
quotation marks omitted)). Unlike in some cases, where
the officer’s response to the detainee’s invectives
supports the inference that the officer was angry when
he employed the taser, cf. Orem v. Rephann, 523 F.3d 442,
446-47 (4th Cir. 2008),8 there is simply no such evidence
in this case.
8
In Orem v. Rephann, 523 F.3d 442, 447 (4th Cir. 2008), an officer
employed a taser on the plaintiff and told her to “stop it” and to
respect the officer’s authority, immediately after the plaintiff
had cursed at the officer. Those facts, along with the manner
in which the officer used the taser, contributed to the court’s
conclusion that genuine issues of material fact existed as
to whether the officer’s “use of the taser gun was wanton,
sadistic, and not a good faith effort to restore discipline.” Id.No. 09-3471 15
Finally, although it is conceivable that Mr. Forrest was
speaking literally when he told Officer Prine to get the
taser out of his face, such an interpretation does not
comport with the evidence before us. 9 The record reveals
a chaotic scene in which Mr. Forrest, pacing about in
his cell, had no way of knowing precisely where
Officer Prine was aiming. Our reading of this part of the
record reveals an intoxicated, defiant, angry and belliger-
ent pretrial detainee speaking about the action of an
officer holding a taser device 7-10 feet away while the
officer attempted to convince him to comply with the
prison’s intake procedure. Mr. Forrest’s characterization
of his exclamation in this situation is, at best, the sort of
self-serving and uncorroborated testimony by a party
that does not create a genuine dispute of fact. Mr. Forrest’s
“less than definitive knowledge does not cast sufficient
doubt on what the officer reasonably believed at the
time.” See Valance v. Wisel, 110 F.3d 1269, 1276 (7th Cir.
1997).
Conclusion
A reading of the record reveals that Officer Prine’s use
of the taser was a reasonable, good faith effort to main-
tain or restore discipline within the jail. There simply is
no genuine issue of triable fact as to whether Officer
9
Mr. Forrest’s counsel admitted at oral argument that the
statement was ambiguous and a reasonable interpretation
would be that Mr. Forrest was using mere “street talk”
to demand that the taser not be used.
16 No. 09-3471
Prine’s decision to employ the taser amounted to a viola-
tion of the Due Process Clause of the Fourteenth Amend-
ment. Even taking the evidence in the light most fav-
orable to Mr. Forrest and drawing all reasonable infer-
ences therefrom, no reasonable jury would conclude
that Officer Prine fired the taser with a malicious or
sadistic intent.
Accordingly, we affirm the judgment of the district court.
A FFIRMED
8-31-10