Natanael Rivera v. George Jimenez

NONPRECEDENTIAL DISPOSITION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 May 21, 2014*
Decided May 21, 2014
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
No. 13-3905
NATANAEL RIVERA, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of Wisconsin.
v. No. 12-cv-476-bbc
GEORGE JIMENEZ, et al., Barbara B. Crabb,
Defendants-Appellees. Judge.
ORDER
Natanael Rivera, a Wisconsin inmate, protested his limited visitation privileges
by twice covering the window of his segregation cell to keep staff from seeing inside.
Both times guards overpowered him, which led to this suit claiming that one of the
guards, George Jimenez, violated the Eighth Amendment. See 42 U.S.C. § 1983. The
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
No. 13-3905 Page 2
plaintiff alleged that, after he was subdued, Jimenez sought to humiliate him by
parading him naked in front of other inmates. The plaintiff also alleged that Jimenez
repeatedly kneed him in the back for no reason. At summary judgment, however, the
district court concluded that a 44-minute video of the incident discredits Rivera’s story.
That video, recorded by another guard, captures the following events, which
begin with guards demanding that Rivera remove a towel draped over the window in
his cell door. Instead of complying he yelled profanities and threatened to fight anyone
who entered. Guards eventually shot pepper spray into the cell. Rivera then removed
the towel and complied with instructions to remove his clothes and submit to a strip
search. Afterward the guards, including Jimenez, escorted Rivera, naked, past other
inmates to the shower to wash off the spray. The same guards then took Rivera, still
naked, to a cell uncontaminated by pepper spray. Each trip took about a minute.
Rivera then used the mattress to block the window of his new cell. The guards
(including the cameraman) returned and ordered him to uncover the window. He
refused. Rivera said he would take the “hard way” and didn’t care if he caused injury.
Once again the guards used pepper spray. Rivera eventually cleared the window and
submitted when Jimenez and other guards entered to take him, again naked, to a
neighboring, third cell. At the door to that cell, Rivera kneeled as instructed while his
leg restraints were removed. But then he ignored repeated orders to stand and walk
into the cell, and the guards tried to force him inside. He resisted, and the guards
pushed him with their knees. Once inside Rivera declined another shower.
Rivera’s § 1983 complaint names as defendants, besides Jimenez, several
administrators and other guards. But the allegations in the body of the complaint
mention only Jimenez, and thus at screening, see 28 U.S.C. § 1915A, the district court
permitted Rivera to proceed against him alone. The court understood Rivera to claim
that Jimenez had sought to humiliate him by letting other inmates see him naked, and
that the defendant had used excessive force when using his knees to prod Rivera to
enter the third cell. On the other hand, the court did not understand Rivera also to claim
that the use of pepper spray or the strip search violated the Eighth Amendment.
Rivera asked the district court to recruit a lawyer for him, see 28 U.S.C.
§ 1915(e)(1), citing unspecified “mental health issues,” poor spelling, and limited
knowledge of the law. The court declined with the explanation that Rivera had not tried
on his own to find counsel and, beyond that omission, his claims were straightforward
and his filings to that point had shown him to be a competent litigant.
No. 13-3905 Page 3
In moving for summary judgment, Jimenez introduced a copy of the video along
with affidavits from himself and other guards who were present. Rivera opposed the
motion and also asked the district court to reinstate his suit against four more of the
named defendants, all of them guards. He asserted that the court, in screening his
complaint, should have realized that his allegations implicate others besides Jimenez.
He also asserted that the court should have understood that his complaint challenges
the strip search as well as the use of pepper spray. The district court replied that it was
too late for Rivera to seek reconsideration of the screening order. Nor would it do him
any good, the court added, because the video forecloses any possible claim against any
guard. The video, the court explained, shows that Jimenez and the other guards
responded reasonably to Rivera’s obstinance and threats. In particular, the nude walk
was brief and not meant to humiliate, and the guards pushed Rivera with their knees
only briefly when he stubbornly disobeyed orders to walk into the cell on his own.
On appeal Rivera primarily objects to the district court’s reliance on the video at
summary judgment. The video is doctored, he insists, as discrepancies from scene to
scene supposedly make evident (e.g., a prison guard is wearing a “silver metallic
watch” at one point and a “gray plastic watch” at another). This accusation deserves no
further discussion. The video shows exactly what the district court said it does, and
granting summary judgment for the defendant is appropriate when a video discredits
the plaintiff’s version of events. Scott v. Harris, 550 U.S. 372, 378–41 (2007); Poole v. City of
Shreveport, 691 F.3d 624, 630–31 (5th Cir. 2012); Thomas v. Durastanti, 607 F.3d 655,
664–65 (10th Cir. 2010); Wallingford v. Olson, 592 F.3d 888, 892–93 (8th Cir. 2010). Rivera
has given us no reason to reverse the grant of summary judgment.
Rivera also asserts that his misconduct stemmed from an “outbreak of mental
disorder” which made him think that the guards were going to kill him. But his claim
that Jimenez (or the other guards) responded with excessive force turns on, not the
reasons for his resistance, but the reasonableness of the force employed. See Pena v.
Leombruni, 200 F.3d 1031, 1034 (7th Cir. 1999); Palmquist v. Selvik, 111 F.3d 1332, 1341
(7th Cir. 1997); United States v. Serrata, 425 F.3d 886, 905 (10th Cir. 2005).
Finally, Rivera contends that the district court abused its discretion in declining
to recruit counsel for him. But Rivera did not show the district court that he tried to
obtain counsel on his own, and that was reason enough to deny the request. Jackson v.
Kotter, 541 F.3d 688, 700 (7th Cir. 2008); Gil v. Reed, 381 F.3d 649, 656 (7th Cir. 2004);
Jackson v. Cnty. of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). We also agree with the
district court’s alternative conclusion that the legal and factual difficulty of the case did
No. 13-3905 Page 4
not exceed Rivera’s ability to litigate. Further, and more significant to our review, a
lawyer could not have made a difference since the video leaves no doubt about the
outcome of his lawsuit. Rivera has not shown the prejudice necessary to overturn the
district court’s decision. See Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013); Pruitt v.
Mote, 503 F.3d 647, 659 (7th Cir. 2007) (en banc).
AFFIRMED.