Tiberius Mays v. Jerome Springborn

In the
United States Court of Appeals
For the Seventh Circuit
No. 05-3630
T IBERIUS M AYS,
Plaintiff-Appellant,
v.
JEROME S PRINGBORN, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 01-1254—Harold A. Baker, Judge.
S UBMITTED JUNE 23, 2009 Œ —D ECIDED JULY 16, 2009
Before C UDAHY, P OSNER, and E VANS, Circuit Judges.
P ER C URIAM. Tiberius Mays, an Illinois inmate, appeals
from the grant of summary judgment on his claims
about prison food and clothing, and from the grant of
Œ
After examining the briefs and the record, we have con-
cluded that oral argument is unnecessary. Thus, the appeal
is submitted on the briefs and the record. See F ED . R. A PP .
P. 34(a)(2).
2 No. 05-3630
judgment as a matter of law on his claims about retalia-
tion, strip searches, and the censorship of pages from a
magazine. We affirm the challenged rulings regarding
food, clothing, and the magazine, but we vacate and
remand the rulings on the strip search and retaliation
claims.
Background
In 1998 and 1999, Mays was housed at Stateville Correc-
tional Center. He and other prisoner-employees were
strip searched daily going to and from their prison jobs.
Mays testified at trial that the searches were performed
in view of other prisoners, that they were sometimes
accompanied by demeaning comments from guards, that
they were sometimes done in a cold room, and that the
guards did not change their latex gloves as they searched
one inmate after another. He filed a grievance about the
searches and was told that public searches were not
allowed except in emergency situations. A memo from
the prison’s chief of security was distributed to prison
guards reminding them of this rule, but according to
Mays, the searches continued to be performed publicly.
At trial, Mays’s description of the public searches was
corroborated by two fellow inmates but substantially
contradicted by the prison guards who performed them.
According to the guards, the searches were always per-
formed out of view of other inmates and were necessary
to ensure safety because prisoners had access to tools
at their jobs that could be dangerous if successfully smug-
gled out of the work area.
No. 05-3630 3
Before one of the routine searches at Stateville, Mays
showed one guard the memo from the prison’s chief of
security reaffirming the prison’s rule against public
searches. After leaving the area briefly, Mays returned
and retrieved the memo before being directed to a dif-
ferent guard to be searched. Mays testified that he saw
the guard to whom he showed the memo nod at the
guard who was to search him. The searching guard
began the search and said that he saw something in
Mays’s anus. That guard called over the first guard and
another guard to have them look as well, and those
guards—one of them smirking, according to Mays—also
said that they saw something. As a result, Mays was
subjected to a five-and-one-half hour ordeal in a strip
cell. He was handcuffed behind his back and made to
wear a too-short hospital gown while the guards waited
for him to defecate. Guards had never found anything
hidden on Mays’s person before and they ultimately
found nothing hidden on him during this episode. At
trial, the first guard said he did not recall Mays showing
him the memo and the second guard said he did not
recall a nod or anything else that preceded the search.
Both guards testified that they did in fact see something
in Mays’s anus.
Mays was transferred to Hill Correctional Center in
2000 and strip searched upon his arrival. Mays says that
this search was also done in front of other inmates,
though the guards who performed the search disagreed.
While at Hill, Mays raised two concerns about the
food he was given. As a follower of the African Hebrew
4 No. 05-3630
Israelites, Mays received a vegan diet, but the prison
refused to provide him with certain dietary supple-
ments he says his religion considers to be religious necessi-
ties: blackstrap molasses, sesame seeds, kelp, brewer’s
yeast, parsley, fenugreek, wheat germ, and soybeans. In
addition, Mays believed that the food he was given lacked
adequate nutrition. He filed grievances about both issues
and was told that the supplements could not be provided
because each one either posed a security threat or was not
part of the prison’s procurement program. In response to
his other grievance, an administrator agreed that the vegan
menu at Hill was deficient and promised to change it.
Mays also complained about the clothing Hill gave
him. He stated that he was not issued winter under-
wear, boots, galoshes, a sweater, gloves, scarves, or
wool socks and, as a result, he suffered from hurt ears,
numb hands, and felt frostbite in his fingers and toes.
Finally, Mays complained about an instance of censor-
ship in which prison officials at Hill removed pages
from an issue of Vibe Magazine mailed to him. Prison
officials testified that the prison’s publication review
board was concerned about an article in the magazine
that described a violent prison riot. The board sent the
magazine to the review board in Springfield, which
ordered the removal of the six-page article as well as
three other pages containing pictures of people they
believed were making gang signs.
The district court disposed of Mays’s diet and clothing
claims at summary judgment. First, the court ruled that
Mays had failed to present evidence to rebut the valid
No. 05-3630 5
penological purpose behind the denial of the dietary
supplements. As for the claim of inadequate nutrition,
the court found Mays’s evidence insufficient to show
that he had been harmed or that the defendants disre-
garded his complaints. The court granted summary
judgment on the clothing claim too, reasoning that the
undisputed evidence showed Mays had been provided
with sufficient clothes (a winter coat, boots, and a
winter hat), that Mays was not claiming exposure to
cold weather for extended periods of time, and that
Mays could not show that the defendants were delib-
erately indifferent to his need for winter clothing.
Mays was allowed to proceed to trial on the remaining
claims, but they never reached a jury because the district
court granted judgment as a matter of law for the defen-
dants on each one. The first claim that the district court
resolved concerned the removal of pages from Mays’s
magazine. The court interrupted Mays’s presentation
of his case and directed the defendants to present wit-
nesses on this issue without the jury present. The
court gave Mays the opportunity to present his own
evidence on this claim, but Mays submitted only his
written grievance about the censorship. The court then
asked the defendants’ lawyer, “Do you understand
Federal Rule of Civil Procedure 50?” Counsel took the
court’s cue and moved for judgment as a matter of law
on Mays’s censorship claim. The court granted the
motion because it concluded that the defendants had
presented a legitimate penological reason for censoring
the pages, had removed no more pages than necessary,
6 No. 05-3630
and that Mays had failed to present any evidence to
show that the censorship was an exaggerated response.
The trial continued on the remaining claims, but after
Mays rested, the defendants made another motion for
judgment as a matter of law. The court granted the motion
on the claim about the searches at Stateville, reasoning
that Mays had failed to present “any credible evidence
that the searches were unrelated to prison needs and
meant only to inflict psychological pain.” The court
discounted the significance of the factual dispute over
the public nature of the searches, apparently reasoning
that group searches are constitutional as a matter of law.
The court did not mention the search at Hill in either its
oral or written ruling. Finally, the court granted judg-
ment as a matter of law to the defendants on the retalia-
tion claim, ruling that Mays’s evidence consisted of only
his own “unsupported conclusion that he felt he was
being retaliated against.”
Analysis
A. Dietary Supplements
First, Mays argues that the district court’s summary
judgment ruling on the dietary supplements must be
reversed because he presented enough evidence from
which a jury could find the prison’s policy to be invalid.
According to Mays, the prison failed to support its ex-
planation that all of the supplements either posed
security threats or were not part of the prison’s procure-
ment program. He points to his own evidence showing
No. 05-3630 7
that the supplements were available at other prisons, and
thus urges that this claim should have gone to trial. He
also argues that the district court erred by failing to
explicitly consider all four factors outlined in Turner v.
Safley, 482 U.S. 78 (1987), for determining whether a
prison regulation is backed by a valid penological purpose.
The district court properly granted summary judg-
ment on Mays’s claim regarding the supplements. When
a prison impedes an inmate’s religious exercise—the
district court assumed that the denial of the supplements
did—it must present a legitimate penological reason for
doing so. See Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir.
2005). But Mays is wrong to assert that the prison bears
the burden of proving that its penological reason is legiti-
mate. Once the prison gave its explanation for denying
the supplements, the burden shifted to Mays to present
evidence to call that explanation into question. See
Jackson v. Frank, 509 F.3d 389, 391 (7th Cir. 2007) (citing
Overton v. Bazzetta, 539 U.S. 126, 132 (2003)). Mays might
have tried to prove that the supplements posed no
security risk or that they were easily obtainable, but the
only evidence he produced was that the supplements
were allowed at other prisons. Evidence of the rules in
other prisons is not, by itself, sufficient to call into
question the prison’s explanation. See Fowler v. Crawford,
534 F.3d 931, 942 (8th Cir. 2008); Spratt v. Rhode Island
Dep’t of Corr., 482 F.3d 33, 42 (1st Cir. 2007).
Mays’s argument that the district court did not
properly apply Turner also fails. Turner describes four
factors that are “relevant” to determining whether a
8 No. 05-3630
prison regulation has a valid penological purpose. Turner,
482 U.S. at 89-91. We have said that the district court
“must” consider those factors, Lindell v. Frank, 377 F.3d
655, 657 (7th Cir. 2004), but it need not explicitly
articulate its consideration of each one, see Spies v.
Voinovich, 173 F.3d 398, 403 (6th Cir. 1999); Scott v. Miss.
Dep’t of Corr., 961 F.2d 77, 80-81 (5th Cir. 1992); but see
Jacklovich v. Simmons, 392 F.3d 420 (10th Cir. 2004). Where,
as here, there is only minimal evidence suggesting that
the prison’s regulation is irrational, running through
each factor at length is unnecessary.
B. Adequacy of Diet
Mays next argues that the district court should not
have granted summary judgment on his claim about the
adequacy of his diet because it misunderstood the sup-
porting evidence. The court thought Mays had submitted
no evidence of harm, but he points to medical records
that show he had a low white blood cell count and to
his own statements that he felt fatigue. Mays also
criticizes the court’s failure to account for a prison
official’s statement that his diet was “inadequate,” and
he notes that the court repeatedly referred to that
official by the wrong name.
We agree with Mays that the district court’s ruling on
this issue is less than perfect, but we affirm because
Mays failed to show that prison officials were
deliberately indifferent to a risk posed by his diet. Under
the Eighth Amendment, a prisoner’s diet must provide
adequate nutrition, see Antonelli v. Sheahan, 81 F.3d 1422,
No. 05-3630 9
1432 (7th Cir. 1996), but prison officials cannot be held
liable under the Eighth Amendment unless the prisoner
shows both an objectively serious risk of harm and that
the officials knew about it and could have prevented it
but did not. See Townsend v. Fuchs, 522 F.3d 765, 773
(7th Cir. 2008) (citing Farmer v. Brennan, 511 U.S. 825,
834 (1994)). Mays’s evidence did show some harm: it
does not take a doctor to diagnose fatigue and Mays did
in fact submit medical records confirming his low white
blood cell count. We doubt that fatigue and a slightly
lower-than-normal white blood cell count is enough to
show an objectively serious harm, but even if Mays’s
evidence could satisfy the first prong, it cannot satisfy
the second prong—that the defendants knew of and
ignored the risk. On the contrary, the undisputed evidence
shows that prison officials acknowledged that Mays’s
diet was inadequate and took steps to fix it. Their rea-
sonable response to the problem precludes a successful
showing of deliberate indifference. See Dale v. Poston,
548 F.3d 563, 569 (7th Cir. 2008).
C. Winter Clothing
Mays also contends that he produced enough evidence
for a trial on his claim that Hill provided him with clothing
inadequate to protect against cold winter weather. That
evidence included his statements that because he was
never issued certain clothing items, he suffered from
hurt ears and numb hands, felt frostbite, and caught colds.
But this evidence does not rise to the level of the objec-
tively serious harm necessary to show an Eighth Amend-
10 No. 05-3630
ment violation. See Townsend, 522 F.3d at 773. Mays did not
show that he was forced to be in the cold for long
periods of time or that he suffered anything more than
the usual discomforts of winter. Cf. Gillis v. Litscher, 468
F.3d 488, 490 (7th Cir. 2006) (prisoner forced to sleep
naked in cold cell had to walk around 14 hours a day
to keep warm); Dixon v. Godinez, 114 F.3d 640, 642-44
(7th Cir. 1997) (prisoner with inadequate clothing
or bedding could not keep warm in cell with average
temperature of forty degrees).
D. Magazine Pages
Next, Mays argues that the district court should not
have granted judgment as a matter of law on his censor-
ship claim because a jury could have found that the
prison’s reasons for censoring the pages were not rea-
sonable. He notes that other sources—books and
television shows—describing prison riots were available
to him. He also contends that the district court showed a
disposition against him when it interrupted his presenta-
tion of evidence, and that the court altered the burden
of proof when it directed the defendants to present their
evidence outside the presence of the jury.
Mays fails to show that the district court erred. Prisons
have great latitude in limiting the reading material of
prisoners, see Thornburgh v. Abbott, 490 U.S. 401, 413 (1989),
and it takes no great leap to understand the prison’s
reasons for wanting an article about a prison riot and
images of gang signs kept away from inmates. See id. at
417 (rational to exclude materials that “create an intolera-
No. 05-3630 11
ble risk of disorder”); see also Harbin-Bey v. Rutter, 420
F.3d 571, 578-79 (6th Cir. 2005) (approving censorship of
works depicting gang signs). Mays’s only argument
that the prison’s censorship was unreasonable is that he
had access to other writings and to television shows
about prison riots, but the deference we afford prisons
permits such seeming inconsistencies. Thornburgh, 490
U.S. at 417 n.15.
Nor do we see error in the manner in which the district
court handled this claim. A district court has the power
to “exercise reasonable control over the mode and order
of interrogating witnesses and presenting evidence.”
F ED. R. E VID. 611(a); see also Johnson v. Doughty, 433
F.3d 1001, 1009 (7th Cir. 2006). And changing the order
in which evidence is presented does not change the
burden of proof. The court gave Mays the chance to
present evidence about the claim and considered his
arguments before ruling. The court may have doubted
the strength of the claim, but it did not show an
improper bias against Mays.
E. Strip Searches
Regarding the Stateville strip search claim, Mays
argues that he presented enough evidence to reach the
jury. That evidence was that Mays was subjected to daily
strip searches in view of other inmates, that the
searches were sometimes done in a cold room, that
guards did not regularly change their latex gloves, that
guards sometimes made demeaning comments as they
12 No. 05-3630
searched the naked prisoners, and that the searches
were done in knowing violation of the prison’s regulations.
Mays is correct that the district court should have let
this claim go to the jury. The district court seemed to rely
heavily on the valid penological reason justifying the
searches, but still, the manner in which the searches
were conducted must itself pass constitutional muster.
See Bell v. Wolfish, 441 U.S. 520, 560 (1979); Calhoun v.
DeTella, 319 F.3d 936, 939 (7th Cir. 2003); Del Raine v.
Williford, 32 F.3d 1024, 1040 (7th Cir. 1994). To win his
claim, Mays had to show that the searches were con-
ducted in a harassing manner intended to humiliate and
cause psychological pain. See Whitman v. Nesic, 368 F.3d
931, 934 (7th Cir. 2004); Fillmore v. Page, 358 F.3d 496, 505
(7th Cir. 2004); Calhoun, 319 F.3d at 939. Group searches
are not, as the district court seemed to conclude, per se
constitutional. See Farmer v. Perrill, 288 F.3d 1254, 1261
(10th Cir. 2002). If the jury found that they were performed
without a valid reason—and the guards provided no
justification for group searches because they denied
performing them—it could have found for Mays. Id. It
could have also found that the searches were in-
tended to harass based on testimony about the guards’
demeaning comments, their dirty gloves, and the tempera-
ture of the room where the searches were done. Finally,
although violation of the prison’s rule against public
searches was not, by itself, a violation of the constitution,
Whitman, 368 F.3d at 935 n.1, it was relevant evidence
on which the jury could have relied to conclude that
the searches were done with an intent to harass.
No. 05-3630 13
Next, Mays argues that the district court failed to con-
sider his claim regarding the strip search at Hill. He is
correct. We remand this claim so that the court can con-
sider it in the first instance.
F. Retaliation
Mays’s argument about his retaliation claim is again
that he presented enough evidence to reach the jury. He
argues that he presented substantially more than—as the
district court put it—an “unsupported conclusion that
he felt he was being retaliated against.” Mays testified
that in retaliation for his complaint about routine
searches, guards subjected him to a non-routine search
that was very humiliating.
Mays’s retaliation claim raises another factual question
that should have gone to the jury. To establish a prima
facie case of retaliation, a prisoner must show that a
protected activity—appellees concede that his complaint
about the searches qualifies—was “at least a motivating
factor” in retaliatory action taken against him, i.e., action
that would likely deter protected activity in the future.
See Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). The
burden then shifts to the defendants to show that they
would have taken the action despite the bad motive.
See Hasan v. U.S. Dep’t of Labor, 400 F.3d 1001, 1005-06 (7th
Cir. 2005). Mays presented a chronology of events from
which retaliation could be inferred: almost immediately
after making his protected complaint about strip searches,
the guards subjected him to a much more onerous
search. See Marshall v. Knight, 445 F.3d 965, 970-71 (7th Cir.
2006). By testifying that they truly saw something in
14 No. 05-3630
Mays’s anus, though, the guards offered a non-retaliatory
motive for the onerous search. Even if the guards were
partly motivated by Mays’s complaint about the routine
searches, they would not be liable for retaliation if a jury
believed that they would have performed the extended
search no matter what. See Hasan, 400 F.3d at 1006. But
the jury was also entitled to disbelieve the guards
because Mays did more than just suggest that they
were not telling the truth; his own testimony told a plausi-
ble enough story for why they would have lied. See Lust
v. Sealy, Inc., 383 F.3d 580, 582-83 (7th Cir. 2004). Judgment
as a matter of law cannot be granted on an issue that
turns on witness credibility. See Burger v. Int’l Union of
Elevator Constructors Local No. 2, 498 F.3d 750, 753 (7th
Cir. 2007).
G. Recruitment of Counsel
Finally, Mays challenges the district court’s repeated
refusal to recruit counsel for him. When an indigent
plaintiff seeks pro bono counsel, the district court must
consider both the difficulty of the case and the plaintiff’s
competence to litigate it without counsel. See Pruitt v. Mote,
503 F.3d 647, 654-55 (7th Cir. 2007). Mays contends that
the district court never considered his competence, but
he is mistaken. In its second of five orders ruling on
Mays’s requests for counsel, the district court did
consider Mays’s competence before denying the request.
Although the court’s other rulings addressed only the
case’s difficulty without mentioning Mays’s competence,
we assume that those rulings embodied the same
No. 05-3630 15
analysis of Mays’s competence that was reflected in the
second order. In any event, Mays has not established
that the lack of counsel prejudiced him. See Pruitt, 503
F.3d at 659. If he renews his request for counsel on
remand, the district court should either take a fresh look
at both prongs of the analysis or explicitly state that it
is relying on the earlier ruling that considered both prongs.
H. Other Issues
Mays has challenged various other aspects of the
district court’s rulings. We have considered his argu-
ments and reject them without further comment.
Conclusion
Accordingly, we A FFIRM the district court’s summary
judgment rulings, we A FFIRM the court’s grant of judg-
ment as a matter of law on the censorship claim, and we
V ACATE the court’s grant of judgment as a matter of law
on the strip search and retaliation claims. We R EMAND
for proceedings consistent with this order.
7-16-09