NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 30, 2011*
Decided December 1, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
Nos. 09‐3646 & 11‐2361
SONNIEL R. GIDARISINGH, Appeals from the United States District
Plaintiff‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 04‐C‐0038
GARY R. McCAUGHTRY, et al., Charles N. Clevert, Jr.,
Defendants‐Appellees. Chief Judge.
O R D E R
In this action under
42 U.S.C. § 1983, Sonniel Gidarisingh sued 18 employees of the
Wisconsin prison system claiming he was the victim of retaliation and a gratuitous beating
inflicted while he was restrained. Following a bench trial, the district court entered
judgment for all defendants. The court later denied Gidarisingh’s motion for relief from the
judgment, see FED. R. CIV. P. 60(b). Gidarisingh appeals from both decisions.
*
After examining the briefs and records, we have concluded that oral argument is
unnecessary. Thus, the appeals are submitted on the briefs and records. See FED. R. APP. P.
34(a)(2)(C).
Nos. 09‐3646 & 11‐2361 Page 2
Gidarisingh was incarcerated at Waupun Correctional Institution in 1998 when a
neighboring inmate, Matthew Sanville, committed suicide. Sanville’s mother sued a host of
prison officials on behalf of his estate; Gidarisingh testified for the estate at trial. During
discovery for Sanville’s case, Gidarisingh was deposed at Waupun. The morning of his
deposition, Gidarisingh, who had been in segregation for almost a year, was released into
the general population. Immediately after the deposition, however, he was placed back in
segregation. Thus began a series of actions on the part of prison employees—from denied
meals to reports of misconduct to cell searches—that Gidarisingh contended were taken in
retaliation for his involvement in Sanville’s case. The alleged retaliation spanned five years
and involved staff at both Waupun and Columbia Correctional Institution, where
Gidarisingh was imprisoned between 2002 and 2006. He accused 15 employees—9 guards,
the wardens and security directors of both facilities, the education director at Columbia, and
the recreation director at Waupun—of retaliation. (He dismissed his claim against the
recreation director immediately before trial). He also contended that three guards at
Columbia used excessive force during an incident in 2003 when, he alleged, they beat and
strip‐searched him without any legitimate purpose.
At trial, Gidarisingh, who was represented by counsel, and the defendants presented
diametrically opposed accounts of almost every incident at issue. Regarding the retaliation
claim, Gidarisingh testified that the defendants made comments that strongly implied a
retaliatory motive for their behavior. The defendants denied making those statements,
denied knowing of Gidarisingh’s involvement in Sanville’s case, and offered innocent
motives for their actions. All of the defendants testified except for the warden at Waupun
and the education director at Columbia; Gidarisingh submitted no evidence that either was
involved in the purportedly retaliatory incidents.
Regarding the excessive‐force claim, Gidarisingh testified that the confrontation
began after guard Kevin Pitzen escorted him from the shower to his cell. Gidarisingh was
restrained with handcuffs and leg shackles because of previous “threatening behavior.”
When Pitzen and Gidarisingh reached the cell, the guard used a flexible tether to secure
Gidarisingh’s left wrist to the front of the cell while he waited for a second guard, Jeremiah
Millard, to help him place Gidarisingh back in his cell. Gidarisingh told the court that a
fellow prisoner then called out his name, and he turned his head to respond. Suddenly, he
testified, Pitzen rammed him into the wall. Afterward, Pitzen, Millard and guard Tracy
Kopfhamer wrestled him to the ground and pummeled him despite his lack of resistance,
Gidarisingh told the court. The guards then took him back to the shower area and
conducted a strip search. The beating was so severe, Gidarisingh testified, that he thought
his collar bone was broken.
Nos. 09‐3646 & 11‐2361 Page 3
Pitzen, on the other hand, testified that Gidarisingh turned his head, defied
instructions to face forward, tensed his arm muscles, and said, “I’ll face any way I want to,
man.” Pitzen testified that he feared for his safety and then “directed” Gidarisingh into the
wall. Millard and Kopfhamer told the court that they witnessed the struggle and assisted
Pitzen in bringing Gidarisingh to the ground. The guards explained that, despite his
restraints, Gidarisingh posed a threat because he still was capable of kneeing, elbowing,
kicking, biting, or spitting at them, and added that a strip search is standard procedure for
inmates who fight with guards. The guards also denied punching or beating Gidarisingh
once they had subdued him. A nurse who examined Gidarisingh after the confrontation
testified that he treated Gidarisingh for superficial scrapes and cuts on his shoulder, chest,
and ankle.
In ruling for the defendants, the district court deemed credible the defendants who
testified and adopted their version of events. Regarding the retaliation claim, the court
found that the defendants did not know of Gidarisingh’s involvement in Sanville’s case and
thus concluded that they did not retaliate against him. Regarding the excessive‐force claim,
the judge credited Pitzen’s contention that he felt Gidarisingh’s arm tense and therefore
perceived a threat from him. He also found that the guards took Gidarisingh to the showers
right after they subdued him, thus rejecting Gidarisingh’s assertion that the guards
pummeled him after he was on the ground, and credited the nurse’s testimony that
Gidarisingh suffered only minor injuries. Considering all these factors, the judge concluded
that the guards’ use of force was not excessive. Gidarisingh filed the first of these appeals,
and after we docketed that case, he moved to vacate the judgment under Rule 60(b).
Gidarisingh, by now pro se, claimed to have evidence that the defendants perjured
themselves and committed a fraud on the court. When the district court denied this motion,
Gidarisingh appealed from that decision, too.
Gidarisingh principally contends that the evidence presented at trial does not
support the district court’s judgment. The defendants do not address the merits of this
argument; they argue only that Gidarisingh failed to preserve it by not filing a motion for
judgment as a matter of law, see FED. R. CIV. P. 50. But as Gidarisingh notes, Rule 50 applies
only to jury trials. Creative Consumer Concepts, Inc. v. Kreisler,
563 F.3d 1070, 1078 n.3
(10th Cir. 2009); Fed. Ins. Co. v. HPSC, Inc.,
480 F.3d 26, 32 (1st Cir. 2007); Fillmore v. Page,
358
F.3d 496, 503 (7th Cir. 2004). Under Rule 52, which governs bench trials, a party need not
file a motion questioning the evidentiary support underlying the district court’s findings to
preserve the issue for appeal. See FED. R. CIV. P. 52(a)(5); Schaub v. VonWald,
638 F.3d 905,
924 (8th Cir. 2011); Fed. Ins. Co.,
480 F.3d at 32. So we proceed to the merits of Gidarisingh’s
argument, reviewing the district court’s factual findings and application of law to fact for
clear error and its legal conclusions de novo. See FED. R. CIV. P. 52(a)(6); Kelley v. Chi. Park
Dist.,
635 F.3d 290, 295 (7th Cir. 2011); Pinkston v. Madry,
440 F.3d 879, 888 (7th Cir. 2006).
Nos. 09‐3646 & 11‐2361 Page 4
Gidarisingh first contends that the evidence at trial does not support the district
court’s conclusion that he did not suffer retaliation for his involvement in Sanville’s case.
But the judge rested his ruling largely on his finding that the testifying defendants were
credible, and Gidarisingh has given us no reason to disturb this finding, which is not clearly
erroneous. See FED R. CIV. P. 52(a)(6); Anderson v. City of Bessemer City,
470 U.S. 564, 573
(1985). As for the two defendants who did not testify, Gidarisingh never introduced any
evidence of their direct involvement in the alleged retaliation, and we cannot understand
how the claims against them survived summary judgment.
Gidarisingh also challenges the factual foundation of the district court’s ruling on his
excessive‐force claim, but, again, he identifies only credibility disputes that the judge was
entitled to resolve in favor of the defendants. In the alternative, Gidarisingh appears to
argue that any force used against a prisoner in restraints is necessarily excessive. But that is
not the law; rather, force is excessive only when it is applied “maliciously and sadistically to
cause harm” instead of “in a good‐faith effort to maintain or restore discipline.” Hudson v.
McMillian,
503 U.S. 1, 7 (1992); see Forrest v. Prine,
620 F.3d 739, 744 (7th Cir. 2010). A finder
of fact should weigh considerations including the extent of the prisoner’s injuries and the
threat posed to staff in making that assessment. See Santiago v. Walls,
599 F.3d 749, 757 (7th
Cir. 2010); Lewis v. Downey,
581 F.3d 467, 477 (7th Cir. 2009). Here, given the court’s finding
that Gidarisingh’s injuries were minor, its finding that Pitzen felt Gidarisingh’s arm tense,
its rejection of Gidarisingh’s assertion that the guards beat him after he was subdued, and
the testimony that even bound prisoners can endanger guards, the district court did not err
in concluding that the guards’ use of force was not excessive.
Gidarisingh’s challenge to the denial of his motion under Rule 60(b) merits little
discussion. Rule 60(b) allows for relief from judgment only in extraordinary situations,
Nelson v. Napolitano,
657 F.3d 586, 589 (7th Cir. 2011); Pakovich v. Verizon LTD Plan,
653 F.3d
488, 493–94 (7th Cir. 2011), and Gidarisingh points to nothing in the record that would
justify such extraordinary relief.
We have reviewed Gidarisingh’s remaining arguments, but none of them merits
discussion. The judgments of the district court are AFFIRMED.
