Summary
In Hollgarth, the plaintiff was noted as an escape risk when he was first arrested. He was placed in segregation after jail officials discovered inmates were planning an escape.
Summary of this case from Woods v. MorrisOpinion
05-2125.
September 19, 2007
OPINION
Before the court are the defendants' summary judgment motion [42], the plaintiff's response [49] and the defendants' reply [50].
Standard
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Herman v. National Broadcasting Co., Inc., 744 F.2d 604, 607 (7th Cir. 1984), cert. denied, 470 U.S. 1028 (1985). In determining whether factual issues exist, the court must view all the evidence in the light most favorable to the non-moving party. Beraha v. Baxter Health Corp., 956 F.2d 1436, 1440 (7th Cir. 1992). Further, this burden can be satisfied by "`showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. If such a showing is made, the burden shifts to the non-movant to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Outlaw, 259 F.3d at 837. A nonmoving party cannot rest on its pleadings, but must demonstrate that there is admissible evidence that will support its position. Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). Credibility questions "defeat summary judgment only `[w]here an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility.'" Outlaw, 259 F.3d at 838, citing Advisory Committee Notes, 1963 Amendment to Fed.R.Civ.P. 56(e) (other citations omitted).
Fed. Rule Civ. Pro. Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party there is no `genuine' issue for trial." Mechnig v. Sears, Roebuck Co., 864 F.2d 1359 (7th Cir. 1988). A "metaphysical doubt" will not suffice. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Disputed facts are material only if they might affect the outcome of the suit. First Ind. Bank v. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, *247-248, 106 S.Ct. 2505, 2510 (1986).
Background
Lindy Hollgarth has filed a pro se complaint pursuant to 42 U.S.C. Section 1983 directed at Macon County Sheriff Jerry Dawson and twelve correctional officers employed by Sheriff Dawson in the Macon County jail. Hollgarth's claims arise out of his detention in the jail during 2003. All defendants are sued in their individual capacities, except for Sheriff Dawson, who also has been named in his official capacity.
Hollgarth filed suit on March 14, 2005 in the Circuit Court of Macon County. The defendants removed the suit to this court. Hollgarth has filed two amended complaints, in which he has added defendants and added and subtracted claims. The Second Amended Complaint, the current pleading, presents the following claims: (a) that Hollgarth was subjected to excessive force on two occasions in violation of his Eighth and Fourteenth Amendment rights; (b) that the use of excessive force also constituted the tort of battery; (c) that he did not receive medical treatment after one such incident; (d) that he was subjected to sexual harassment in violation of his Eighth and Fourteenth Amendment rights when he was the subject of strip searches within the jail; (e) that his placement in segregation was in violation of his rights to due process pursuant to the Fourteenth Amendment; and (f) that defendants deprived him of meaningful access to legal material and his litigation papers. Hollgarth seeks both compensatory and punitive damages. The court hereafter will refer to the Second Amended Complaint as the "Complaint."
The defendants argue that Hollgarth's various claims are subject to summary judgment for numerous alternative reasons. Defendants argue that Hollgarth's evidence is insufficient to satisfy his burden of proof on these claims for the following principal reasons: (a) The evidence establishes that no defendant was responsible for the employment of excessive force against Hollgarth and that the force used against him clearly was not excessive to the need presented at the time, but was justified and minimal, was applied in a good-faith effort to maintain discipline under threatening circumstances, and did not cause injury to Hollgarth. (b) The decision of jail administrators to subject Hollgarth to visual body cavity searches was a reasonable response to a legitimate security concern raised by Hollgarth's history of repeated attempts to escape from custody and the verified report that Hollgarth and other prisoners were attempting to collect homemade weapons as part of an escape plot; the body cavity searches were conducted in a reasonable manner that has repeatedly been approved by the courts as not being harassing or punitive. (c) Hollgarth is unable to satisfy his burden of proving that his placement in administrative segregation violated his Fourteenth Amendment rights to due process for the following alternative reasons: (1) confinement in administrative segregation was not punitive in nature since the circumstances of such confinement were comparable to confinement in the jail's general population and did not deny Hollgarth any of the minimal necessities of civilized life; and (2) Hollgarth's confinement in administrative segregation did not deprive him of a liberty interest subject to the protections of due process. (d) Claims added by Hollgarth in amended complaints are barred because the claims were not filed within the applicable limitation periods. (e) Hollgarth is unable to support his claim that he was denied medical care because the undisputed evidence demonstrates that he did not present a serious medical need, correctional officers were not deliberately indifferent to a serious medical need, and he did not suffer any resulting injury. (f) Hollgarth cannot establish that defendants denied him his right of access to the courts since there is no evidence (1) that any defendant was responsible for the loss of Hollgarth's litigation materials or (2) that the loss of such materials actually denied Hollgarth access to the courts or caused him to suffer quantifiable detriment. (g) The individual defendants are entitled to qualified immunity from liability on each of Hollgarth's claims directed against them. (h) Hollgarth's official-capacity claim against Sheriff Dawson is not supported by evidence that policies or practices of the sheriff's office caused violations of Hollgarth's constitutional rights.
STATEMENT OF UNDISPUTED MATERIAL FACTS
The defendants' objections to the plaintiff's statement of fact are sustained because the plaintiff's submission of additional statement of facts, with the exception of a few, are conclusory, argumentative, lacks the necessary specificity, unsupported and immaterial. The court included only the plaintiff's additional statement of facts that comply with the requirements of the applicable rules.
Plaintiff disputes this. Defendants object. The defendants' objections are sustained as the plaintiff's response does not give rise to a material dispute because his statements are not responsive and do not controvert defendants' statements; plaintiff's response is conclusory and argumentative and plaintiff's response is not supported by reference to supportive and admissible evidence.
See plaintiff's statement of fact [61], — par. 7, not disputed by defendants [62], par. 8.
See preceding footnote.
Plaintiff size of cells and day room. Defendants object to plaintiff's response. Defendants' objections are sustained for the following reasons: Plaintiff's response does not address the first five sentences in paragraph 31; the response is not supported by citation to admissible evidence; plaintiff's assertion regarding the size of the day room lacks the necessary specificity; plaintiff's assertions, even if they had been admissible and supported, are not material because the plaintiff does not dispute that cells in general population and administration segregation are comparable in size and design.
Plaintiff disputes the he struggled with officers. Defendants objects. The defendants' objection is sustained because 1) plaintiff's response does not address or dispute the first and third sentences in defendants' statement; 2) plaintiff's response to the second sentence is not response, but rather is argumentative and lacks the necessary specificity; 3) plaintiff's response is not supported by the cited exhibit; and 4) plaintiff's dispute with the second sentence of defendants' statement is not material given plaintiff's admission of other elements of the incident described in defendants' statement of fact, par. 41. See affidavits and exhibits cited by defendants in support of par. 41, in particular the Affidavit of Chris Patient, par. 11(c) and Defendants' Exhibit 15.
Plaintiff disputes that he told officers "he did not feel good." Defendants objects to plaintiff's response. The defendants' objections is sustained beause 1) the plaintiff addresses only one assertion in the statement ("Hollgarth said . . . he did not feel good"), and does not address or dispute the balance of the statement; 2) plaintiff's response is not supported by the cited exhibits; and 3) plaintiff's dispute, even had it been supported by admissible evidence, is not material given the undisputed facts regarding the occurrence on August 24, 2003.
Plaintiff's dispute that he told officers "that did not hurt. I wanted to get out of my cell." Defendants' object to plaintiff's response. Defendants' objection is sustained as 1) the plaintiff's response addresses and disputes only the last sentence; 2) plaintiff's assertions are not suppported by the cited exhibits; and 3) even if plaintiff's assertions were supported and admissible, they would not be material given the undisputed facts regarding what occurred on August 24, 2003.
DISCUSSION AND CONCLUSION
In order to plead and prove a claim under 42 U.S.C. $1983, a plaintiff must establish that a defendant deprived him of a right secured by the Constitution or laws of the United States and that the defendant acted under color of state law. Reed v. City of Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996). It is essential for liability that a defendant be personally responsible for the deprivation of a constitutional or statutory right. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). In addition, the plaintiff must establish that a constitutional violation by each defendant caused him injury. Walker v. Peters, 223 F.3d 494, 502 (7th Cir. 2000); Papapetropoulous v. Milwaukee Transport Services, Inc., 795 F.2d 591, 595 (7th Cir. 1986) ("a causal connection must exist between the defendant's actions and the injury resulting from the constitutional violation"). The courts distinguish a pretrial detainee, such as Hollgarth, from a convicted prisoner. After arrest and during detention prior to conviction, the rights of the pretrial detainee are derived from the due process clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 (1979); Wilson v. Williams, 83 F.3d 870, 875 (7th Cir. 1996). The rights of a convicted prisoner arise form the Eighth Amendment prohibition of cruel and unusual punishment. Id. The Eighth Amendment protections are extended to pretrial detainees through the Fourteenth Amendment. Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001). The due process clause protects the pretrial detainee from any form of punishment. Bell, 441 U.S. at 535-537; Wilson, 83 F.3d at 875.Although the pretrial detainee may not be punished prior to a determination of guilt, he may be subject to confinement and the disabilities necessary to such confinement, such as loss of privacy and of freedom of choice. Bell, 441 U.S. at 537. The government has a legitimate interest in effective management of the detention facility which justifies the imposition of conditions and restrictions on the detainee. Bell, 441 U.S. at 540. The government must be able to take steps to maintain security and order in the facility. Id. When a pretrial detainee challenges a disability imposed on him during confinement, the court must decide whether the disability is imposed for the purpose of punishment or whether it is an incident of some legitimate governmental purpose other than punishment. Id. at 538.
Prison conditions for both pretrial detainees and convicted persons do not reach the threshold of constitutional concern until a showing has been made of "genuine privations and hardship over an extended period of time." Duran v. Elrod, 760 F.2d 765, 759 (7th Cir. 1985), citing Bell, 441 U.S. at 542. Prison conditions violate the Constitution only where they "deprive inmates of the minimal civilized measure of life's necessities." Wilson v. Seiter, 501 U.S. 294, 198 (1991); Rhodes v.Chapman, 452 U.S. 337, 347 (1981); Delanev v. DeTella, 256 F.3d 679,683 (7th Cir. 2001). In cases where conditions of custody are challenged, the courts emphasize that uncomfortable and even harsh conditions are not punitive in themselves. Rhodes, 452 U.S. at 347 (prison conditions which are "restrictive and even harsh . . . are part of the penalty that criminal offenders pay for their offenses against society"); Lunsford v. Bennett, 17 F.3d 1574, 1581 (7" Cir. 1994) ("The Constitution does not require prison officials to provide the equivalent of hotel accommodations or even comfortable prisons").
In order to establish a claim that prison conditions violate the Constitution, a prisoner's burden involves both objective and subjective components. Farmer v. Brennan, 51 1 U.S. 825, 834 (1994); Delaney, 256 F.3d at 683. First, the alleged deprivation must be, objectively, sufficiently serious. Id. Only "extreme deprivations" result in the denial of "the minimal civilized measure of life's necessities." Id.; Hudson v. McMillian, 503 U.S. 1, 9 (1992). Second, a prison official must be shown to have been deliberately indifferent to inmate health or safety. Farmer, at 834; Delanev, at 683 (at minimum, in conditions-of-confinement case, plaintiff must show actual knowledge of impending harm easily preventable). These requirements apply to both convicted prisoners and pretrial detainees. Mathis v. Fairman, 120 F.3d 88, 91 (7th Cir. 1997).
In the case of supervisory officials, deliberate indifference requires a showing of direct responsibility for improper conduct; the official must have caused or participated in the alleged constitutional deprivation. Moore v. State of Indiana, 999 F.2d 1125, 1129 (7th Cir. 1993). Such responsibility means that the unconstitutional conduct occurred either at the direction of the supervisory official or with his knowledge and approval. Gossmever v. McDonald, 128 F.3d 481, 495 (7th Cir. 1997); Gentrv, 65 F.3d at 561. Thus, a plaintiff must present facts demonstrating the supervisor's personal involvement in the allegedly unconstitutional activities. Bovce v. Moore, 314 F.3d 884, 888 (7th Cir. 2002); Jenkins v. Velasco, 1995 WL 765315, *8 (N.D. Ill.); Perez v. Lane, 794 F.Supp. 286, 289 (C.D. Ill. 1992).
Hollgarth claims that correctional officers subjected him to excessive force on June 18, 2003, and August 24, 2003, in violation of his Eighth and Fourteenth Amendment rights. (Complaint, par. 20, 26, 27, 39) The defendants are entitled to summary judgment because the undisputed evidence demonstrates that the force utilized by officers was not excessive, but was justified, minimal, and restrained; was applied in a good-faith effort to maintain discipline under threatening circumstances; and did not cause injury.
The Fourteenth Amendment protects a pretrial detainee from the use of excessive force that amounts to punishment. Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989); Bell, 441 U.S. at 535; Wilson, 83 F.3d at 875. As with other Fourteenth Amendment claims brought by pretrial detainees, an excessive force claim requires proof that an officer acted with deliberate indifference. Proffitt v. Ridaway, 279 F.3d 503, 506 (7th Cir. 2002); Wilson, 83 F.3d at 875. The plaintiff on such a claim has the burden of proving that he suffered some harm attributable to the use of force that was clearly excessive to the need presented and was objectively unreasonable in light of the facts and circumstances. Wilson, 83 F.3d at 876. A number of objective factors are relevant to the determination whether a correctional officer's use of force was utilized with an intent to punish: (1) the extent of the injury suffered; (2) the need for the application of force; (3) the relationship between the need and the amount of force used; (4) the threat reasonably perceived by the officer; and (5) any effort made to temper the severity of a forceful response. Wilson, 83 F.3d at 876, citing Hudson, 503 U.S. at 7. While a significant injury is not required to establish a claim of excessive force, such a claim cannot be predicated on a de minimus use of force. DeWalt v. Carter, 224 F.3d, 607, 620 (7th Cir. 2000) (shoving a prisoner against a door frame, resulting in bruising, was de minimus). See, also, Hudson, 503 U.S. at 9 (not every push or shove violates a prisoner's constitutional rights).
The Seventh Circuit has observed that, when claims of excessive force arise in the context of a jail disturbance, it is appropriate to apply the Eighth Amendment standard, which considers whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Wilson, 83 F.3d at 876-877, citing Hudson, 503 U.S. at 7. In resolving such Eighth Amendment claims, the courts consider the same objective factors utilized under the Fourth Amendment standard cited above. Hudson, 503 U.S. at 7. Thus, as a practical matter, it makes no difference which standard the court applies to Hollgarth's excessive force claims.
"Considering the fact that convicted prisoners and pretrial detainees are held together in correctional facilities, we recognize the impracticality of separate standards for these two groups in the context of a jail disturbance. Indeed, the Supreme Court has stated that there is no reason to distinguish between the two groups in reviewing challenged security practices because there is no basis to conclude that pretrial detainees pose any lesser security risk than convicted inmates." Bell, 441 U.S. at 546 n. 28, 99 S.Ct. at 1878 n. 28. Thus, here both of Hollgarth's excessive force claims should be analyzed under the Eighth Amendment standard since both involved disturbances in a setting where both detainees and convicted persons were imprisoned. Wilson, 83 F.3d at 876-877. On June 18, 2003, officers were presented with evidence of an escape plot involving Hollgarth, who was known to have made previous attempts to escape from custody. On August 24, 2003, Hollgarth had repeatedly refused to comply with officers' orders. The controlling question is whether the force was applied "maliciously and sadistically to cause harm," or applied in a good-faith effort to maintain or restore discipline. Wilson, 83 F.3d at 876-877, citing Hudson, 503 U.S. at 7. The evidence here does not establish liability under such a standard. Even if the court were to apply the Fourteenth Amendment standard, the conduct of the defendant officers does not demonstrate deliberate indifference to Hollgarth's rights. These conclusions are supported by consideration of each of the objective factors used to determine whether or not an officer acted reasonably.
Need for Force. Both incidents presented circumstances requiring employment of a minimal amount of force, at least initially. On June 18, 2003, officers faced the need to simultaneously extract from their cells seven prisoners reportedly involved in an escape plot. In order to forestall any disturbance and facilitate a shakedown of the prisoners and their cells, officers had to act quickly to handcuff the prisoners and move them out of their cells. With Hollgarth asleep on his bunk, it was inevitable that contact would occur as officers extracted him. On August 24, 2003, Hollgarth repeatedly refused to comply with officers' orders, presenting a situation where minimal force was necessary in order to obtain compliance. Both instances presented a need for the use of force in a good-faith effort to maintain order and discipline. The force was necessary to obtain compliance from the uncooperative plaintiff.
Amount of force emploved. In both instances, the amount of force used was commensurate with the need presented. On each occasion, the officers merely employed conventional methods to obtain Hollgarth's compliance. On June 18, they used the force necessary to get Hollgarth's hands cuffed behind his back as he laid on his stomach. On August 24, different levels of force were used as Hollgarth's resistance increased — a hand to the back, a single spray of OIC spray, taking him to the floor, and cuffing him. These were reasonable responses to the needs presented.
Threat perceived bv officers. Given the circumstances in both instances, it was reasonable for officers to believe that Hollgarth presented a threat. On June 18, there was a report that Hollgarth, a known escape risk, was part of an escape plot and that the prisoners involved were attempting to assemble weapons. Officials had to assume that Hollgarth and the other prisoners presented an immediate escape threat and a threat to their safety. On August 24, Hollgarth's refusal to comply with orders and the escalating confrontation presented threats to officer safety and Jail security. The plaintiff's ongoing disobedience could easily have been interpreted as signs of an imminent confrontation.
Efforts to temper use of force. The facts before this court indicate the officers tempered the severity of their use of force. On June 18, the officers did only what was necessary to quickly handcuff Hollgarth so that he could be removed to another cellblock. On August 24, the officers' response to Hollgarth's disobedience was measured, repeating their orders several times, attempting to cuff him, taking him to the floor when he resisted, and then using the force necessary to get control and handcuff him. The facts before this court demonstrate reasonable restraint on the part of the officers.
Extent of injury. There is no objective evidence of injury to Hollgarth. The only evidence of injury is Hollgarth's self-serving claim that he suffered bruising on his back and the side of his head on August 24, 2003. (Hollgarth Dep., p. 43) There is no objective medical confirmation of injury on either June 18 or August 24 since Hollgarth did not complain to the Jail nurse on either occasion, as he could have and as he did on other occasions with respect to other medical problems. Moreover, the objective evidence is that Hollgarth did not suffer serious or lingering injuries on either occasion since he made no mention of any injury to officers at the time of the incidents or on the subsequent occasions when he did see the Jail nurse or doctor. Wilson, 83 F.3d at 876-877, citing Hudson, 503 U.S. at 7. Thus, the evidence is that any injury received by Hollgarth was de minimus and not sufficiently serious to give rise to a constitutional violation. DeWalt, 224 F.3d at 611, 620 (prisoner's evidence was that he suffered bruised back when guard shoved him into door frame, but prison medical staff did not notice any visible injury). The failure of Hollgarth to complain of injury to the officers or to medical personnel after each incident is itself evidence that any injuries were de minimus. Taylor v. McDuffie, 155 F.3d 479, 485 (4th Cir. 1998), cert denied, 525 U.S. 1181 (1999).
Further, the use of the chemical spray did not constitute excessive force. Any claim that Hollgarth was subjected to excessive force because he was sprayed with a chemical spray is properly directed only at defendant Shull since he is the only defendant who in the unsettled circumstances of the August 24, 2003 disturbance elected to employ chemical spray. None of the other defendants utilized chemical spray. Nonetheless, even if the claim were directed at the other officers present at the time, the use of chemical spray in correctional settings is analyzed as a use of force. Thus, it would be a violation of the Eighth Amendment for prison officials to use chemical agents "in quantities greater than necessary or for the sole purpose of punishment or the infliction of pain." Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984), cert denied, 470 U.S. 1085 (1985). However, the use of chemical agents "to subdue recalcitrant prisoners does not constitute cruel and unusual punishment." Id. The use of chemical spray in small amounts where a prisoner has failed to obey a direct order is a reasonable response to a legitimate security concern. The facts show that the plaintiff was uncooperative. The defendants used a graduated response to the disturbance, but were forced to resort to O/C spray and physical force when plaintiff refused to accede to voice commands and show of force. Nothing in the record indicates that defendants used force maliciously and sadistically to cause harm to plaintiff rather than in a good faith effort to restore discipline. Nothing indicates that plaintiff would be able to prove that he suffered some harm attributable to the use of force that was clearly excessive to the need or objectively unreasonable in light of the facts and circumstances of the time. Wilson, 83 F.3d at 876. Shull's brief direction of O/C spray at a detainee involved in an altercation with other officers was a reasonable and appropriate use of limited force. Soto, 744 F.2d at 1270. For all the reasons stated above, the court finds that Shull or any of the defendants did not use excessive force against the Hollgarth.
The facts do not substantiate the plaintiff's claims of individual responsibility for the use of excessive force. In the alternative, Hollgarth is unable to provide credible evidence to support his claims of excessive force against particular officers. Hollgarth claims in his complaint that eight officers ("West, Jones, Kramer, Boulware, and approximate [sic] four other guards") came into his cell on June 18, 2003, "jumped on him while sleep," and struck him. (Complaint, par. 20) Hollgarth's claim changed at his deposition, when he testified that only three or four officers entered his cell and that the only officer he could identify was Kramer, who allegedly jumped on Hollgarth's back, grabbed his arms, and cuffed him. (Hollgarth Dep., pages 15-16) The facts demonstrate that the officers who entered Hollgarth's cell and removed him on June 18 were Terry Collins, Jamie Cox, and John Mayer; that Larry Jones, Randy West, and Stan Boulware were engaged in other functions during the shakedown; and that Craig Kramer and Dewayne Jones were not even on duty in the Jail at that time. Given this evidence, Hollgarth is unable to satisfy his burden of proving that defendants Kramer, West, Larry Jones, Dewayne Jones, or Boulware were personally responsible for any alleged violation of his constitutional rights on June 18. Gentry, 65 F.3d at 561; Foote v. Houi, 2004 WL 2901039 N.D.Ill., 2004 (officer on vacation at time of incident is entitled to summary judgment).
Hollgarth claims in his complaint that "on August 24, 2003, Defendants, Jordan, C. Patient, Kramer, Boulware, B. Patient, S. Shaw, and Anderson, attacked Plaintiff." (Complaint, par. 26) The incident reports prepared by officers on that date establish that Robert Jordan, Chris Patient, Craig Kramer, and Scott Shull were the only officers involved in the altercation with Hollgarth. At his deposition, Hollgarth did not identify Stan Boulware, Bradley Patient, or John Anderson as being involved. (Hollgarth Dep., pages 31-32) There is no evidence to establish personal responsibility on the part of Boulware, Brad Patient, Shaw, or Anderson for any alleged violation of Hollgarth's constitutional rights on that date. Gentrv, 65 F.3d at 561.
The plaintiff's history of repeated attempts to escape from custody provide legitimate security reasons for frequent body searches. Hollgarth claims that certain defendants engaged in "sexual harassment" in violation of his Eighth and Fourteenth Amendment rights when they participated in shakedowns during which he was subjected to visual strip searches. (Complaint, par. 23-25, 30-32, 41, 42) The undisputed evidence demonstrates that there is no basis for Hollgarth's claim because he was subject to visual body searches which were done for legitimate security reasons and were performed in a reasonable manner.
Hollgarth's complaint appears to assume that detainees have a right to privacy that results in any visual body search being violative of his constitutional rights. On the contrary, the courts recognize that jails and prisons are places of confinement that necessarily result in a prisoner's loss of freedom of choice and privacy. Bell, 441 U.S. at 537; Peckharn v. Wisconsin Department of Corrections, 141 F.3d 694, 696-697 (7th Cir. 1998); Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir. 1995). A jail has a legitimate interest in the maintenance of security and order, needing, for example, to assure that detainees do not obtain weapons or illegal drugs. Bell, 441 U.S. at 540, Johnson, 69 F.3d at 146. With this in mind, the Supreme Court has said that the courts ordinarily should defer to the expert judgment of jail administrators in matters involving institutional security. Id., 441 U.S. at 540 n. 23. Given such security concerns, it is reasonable and not unconstitutional for jail officials to conduct regular strip searches of detainees involving visual body-cavity inspections. Bell, 441 U.S. at 558-560.
A strip search of a prisoner is unconstitutional if it violates the Eighth Amendment prohibition of cruel and unusual punishment. Whitman v. Nesic, 368 F.3d 931, 934 (7th Cir. 2004); Calhoun v. Detella, 319 F.3d 936, 939 (7th Cir. 2003). The Eighth Amendment standard is applicable to both pretrial detainees and convicted prisoners. Whitman, 368 F.3d at 934; Johnson, 69 F.3d at 145-147. Strip searches of prisoners become unconstitutional only where they are maliciously motivated, unrelated to institutional security, and thus totally without penalogical justification. Whitman, 368 F.3d at 934. When such circumstances exist, a strip search becomes harassment unrelated to prison needs and is motivated by an intent to humiliate and inflict psychological pain. Whitman, 368 F.3d at 934; Fillmore v. Page, 358 F.3d 496, 505 (7" Cir. 2004). A prisoner claiming a constitutional violation has a "heavy burden" of proving (1) that a strip search was not rationally related to a legitimate security interest, and (2) that it was conducted in a harassing manner intended to humiliate and inflict psychological pain. Bell, 441 U.S. at 561-562; Whitman, 368 F.3d at 934; Calhoun, 319 F.3d at 939.
Hollgarth has not satisfied the first element of his burden of proof because the facts establish that there were legitimate, identifiable security reasons for defendants to conduct visual body searches of him and the other prisoners subject to those searches. The body searches clearly were done with penalogical justification. Society had delegated to Sheriff Dawson and his officers the responsibility of holding Hollgarth and other prisoners in custody pending trial. That responsibility carried with it the fundamental need to assure that those prisoners did not succeed in escaping from the Jail. With Hollgarth, his history of repeated attempts to escape from custody made continued vigilance absolutely necessary. The record before this court establishes Hollgarth as an incorrigible escape risk who was undeterred by conventional security precautions. Hollgarth's history of escapes, coupled with evidence that he and other prisoners might be planning an escape, gave the Jail sufficient reason to increase security measures with respect to those prisoners. In addition, the information that those prisoners were attempting to fashion weapons out of Jail furnishings gave rise to legitimate concern that the safety of Jail staff was threatened. Increased vigilance was essential in order to discover and deter any such activity.
Since the Jail had legitimate security reasons for the body searches, the searches had penalogical justification and cannot be found to be unconstitutional. Similar visual body cavity searches have been approved by the courts. Bell, 441 U.S. at 558-562 (visual body cavity searches of detainees after every contact visit were reasonable responses to legitimate security concerns about allowing concealed contraband into prison); Whitman, 368 F.3d at 934-935 (prison justified in doing strip search as part of random drug-testing); Peckham, 141 F.3d at 695, 697 (strip searches done pursuant to prison security policies were not punitive); Koner v. Snyder, 252 F. Supp. 2d 723, 725-726 (C.D. Ill. 2003) (prison had legitimate security reason to conduct strip search of all prisoners in housing unit where shanks were discovered); Geder v. Lane, 745 F.Supp. 538, 540 (C.D. Ill. 1990) (prison had legitimate reason to perform visual body cavity search of prisoner returning from court hearing).
Hollgarth also is unable to satisfy his burden of proving that the body searches were excessive in their performance, amounting to calculated harassment unrelated to Jail needs and done with the intent to humiliate and inflict psychological pain. Whitman, 368 F.3d at 934. The protocol followed by the Jail is evidence that the defendants showed sufficient sensitivity to Hollgarth's personal dignity and acted in a manner designed to be neither harassing nor humiliating. The courts have consistently upheld prison body searches done in a similar manner. Bell, 441 U.S. at 558, 560-561 (approving as reasonable comparable visual body cavity searches); Whitman, 368 F.3d at 932-933, 935 (strip search conducted in bathroom stall by male officers was constitutional); Fillmore, 358 F.3d at 501, 505 (strip search conducted by male officers in vacant holding cell was not done in harassing or humiliating manner); Peckham, 141 F.3d at 695, 697 (repeated strip searches of female prisoner pursuant to institutional security policy were not done for reasons of harassment). In significant part, Hollgarth's claim that the body searches were harassing is based on the allegation that female correctional officers were present in the cellblock during shakedowns. (Complaint, par. 25, 30.) The evidence actually establishes that women officers were not present when the body searches were conducted in Hollgarth's cell and were only present in or near the cellblock on rare occasions. But, even if Hollgarth's unsupported allegations were assumed to be true, that would not be evidence of harassment since the case law is clear that there is no constitutional violation merely because female guards regularly observe naked male prisoners. Johnson, 69 F.3d at 146, 150-151. It is notable that Hollgarth does not complain that female officers conducted body searches of him. Contrast, Canady v. Boardman, 16 F.3d 183, 186-188 (7th Cir. 1994) (complaint alleging that male prisoner was subject to strip searches by female guards stated cause of action).
Hollgarth also alleges that the body searches were harassing because a supervisor standing in the pod outside his cell held a tasor gun while shakedowns were being conducted in the pod. (Complaint, par. 23.) Hollgarth admits that the tasor was never used on him. (Hollgarth Dep., page 25) Under the circumstances, the practice of having a back-up officer ready with a tasor gun while shakedowns were being conducted of prisoners accused of being part of an escape plot represents a legitimate judgment by jail officials regarding security needs and appropriate levels of deterrence.
Finally, Hollgarth claims that the body searches were harassing because unnamed jail guards made lewd, homosexual remarks during the searches. (Complaint, par. 31.) However, verbal harassment and intimidation do not violate the Constitution and their occurrence does not turn otherwise permissible conduct into constitutional violations. DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (correctional officer's racially derogatory and sexually explicit remarks did not give rise to constitutional claims); Daniels v. Southfort, 6 F.3d 482, 484 (7th Cir. 1993) (threatening verbal statements by police officers do not present constitutional concerns).; Duncan v. Baird, 2004 WL 2339334, N.D.Ill (verbal abuse and threats and threatening gestures by correctional officers do not rise to level of constitutional violations).
In the end, Hollgarth simply has not presented the necessary "substantial evidence" that the defendants exaggerated their response to the legitimate security concerns presented by Hollgarth.
The Plaintiff is barred from recovering damages or alleged emotional injuries. Hollgarth seeks compensatory damages for "humiliation, psychological and mental problems, sleep deprivation [and] startled response", all allegedly caused because he was subjected to visual body searches. (Complaint, par. 32, 41.) In addition to the substantive deficiencies of such claims, as discussed above, Hollgarth is barred from recovering damages for mental and emotional injuries.
The Prisoner Litigation Reform Act prevents a prisoner from bringing a civil action "for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). This provision bars recovery of compensatory damages for mental or emotional injures allegedly suffered as a result of strip searches conducted while in prison. Calhoun, 319 F.3d at 940-94 1. Hollgarth admittedly suffered no physical injury in the course of the visual body cavity searches conducted at the Jail. By their nature, the procedures used at the Jail did not involve physical contact with the prisoner during the body cavity search and therefore cannot result in physical injury. Under such circumstances, the necessary precondition for Hollgarth's damage claims is lacking and, as a result, they are without merit. Calhoun, 319 F.3d at 940-941.
The Plaintiff's placement in administrative segregation was not punitive and did not violate his constitutional rights. Hollgarth claims that Lt. Jones and Sheriff Dawson violated his Fourteenth Amendment right to due process because he was confined in "segregation" for a longer period of time than the other prisoners who reportedly were plotting an escape from the Jail. (Complaint, par. 33-36, 4.) Hollgarth has not carried his burden of proof on this claim for reasons discussed in this section and the following section: (1) the undisputed evidence does not demonstrate that Hollgarth's placement in administrative segregation deprived him of the "minimal civilized measure of life's necessities"; and (2) Hollgarth's transfer to administrative segregation did not deprive him of a protected liberty interest subject to the protections of due process.
Hollgarth's placement in administrative segregation was not a prison condition which violated the Constitution. First, his transfer to administrative segregation was not punitive in nature and the period which he spent in such confinement did not present the objectively serious deprivation which is necessary for a constitutional violation. Farmer, 51 1 U.S. at 834; Delanev, 256 F.3d at 683; Higpason v. Fraley, 83 F.3d 807, 809 (7th Cir. 1996). Second, none of the defendants were deliberately indifferent to Hollgarth's health or safety. Farmer, 51 1 U.S. at 834; Delaney, 256 F.3d at 683. The circumstances of Hollgarth's confinement in administrative segregation do not implicate the Fourteenth Amendment because they were not punitive in nature. The conditions in Trod 5, Pods A and C, were not objectively serious because they did not amount to "extreme deprivations" resulting in the denial of "the minimal civilized measure of life's necessities", such as adequate food, shelter, medical care, or safety. Farmer, 51 1 U.S. at 834; Hudson, 503 U.S. at 9; Delanev, 256 F.3d at 683; Hinaason, 83 F.3d at 809. Hollgarth does not even claim that his confinement resulted in such deprivations. The circumstances in administrative segregation actually were not substantially different than the circumstances in the Jail's general population cellblocks, with the exceptions that Hollgarth did not have daily contact with the other prisoners in his cellblock and he had less opportunity to use the cellblock dayroom. These are not differences that are punitive in nature or that has constitutional implications. Id. Under such circumstances, Hollgarth cannot establish deliberate indifference on the part of any defendant since they could not have had knowledge of a jail condition which presented impending harm to his health or safety. Farmer, 51 1 U.S. at 834; Delaney, 256 F.3d at 683. Finally, Hollgarth cannot present an actionable violation of § 1983 since he is unable to demonstrate that his placement in administrative segregation caused him remediable injury. Walker, 233 F.3d at 502; Papapetropoulous, 795 F.22d at 595.
The placement of Plaintiff in administrative segregation did not deprive him of a liberty interest subject to the protections of Fourteenth Amendment due process. By claiming that his placement in isolation violated his Fourteenth Amendment right to due process, Hollgarth in effect is arguing that his confinement in administrative segregation for a longer period than other prisoners deprived him of a protected liberty interest without the occurrence of appropriate procedural safeguards. However, under the circumstances of this case, such confinement does not implicate a liberty interest and does not require the protections of due process. The due process clause of the Fourteenth Amendment provides that no state may "deprive any person of life, liberty, or property without due process of law." Although the liberty interests of detainees are necessarily constrained by the fact of their confinement, they do retain protected liberty and property interests. The courts consider the nature of the prisoner's alleged liberty or property interest when considering whether that interest is protected by due process. Sandin v. Conner, 515 U.S. 472, 484 (1995); Higgason, 83 F.3d at 809. Liberty interests subject to the protections of due process are limited to situations involving the length of a prisoner's incarceration or sentence or situations which result in an "atypical and significant worsening" of the prisoner's prison condition. Id. Placing a prisoner in isolation or segregation by itself is not considered to be a change in his situation which would be atypical or significant. Sandin, 515 U.S. at 484-486; Thomas v. Ramos, 130 F.3d 754, 760-762 (7th Cir. 1997). In general, placement in segregation or isolation does not involve an atypical and significant deprivation where the conditions in segregation or isolation are not significantly different than the conditions of prison life generally. Thomas, 130 F.2d at 762.
Hollgarth's due process claim falls within the ambit of the judicial principle that the courts are to afford appropriate deference and flexibility to prison officials in the day-to-day management of correctional facilities. Sandin, 515 U.S. at 482-483; Bell, 441 U.S. at 540; Thomas, 130 F.3d at 759. The decision of Jail administrators to transfer Hollgarth to administrative segregation represented a determination on their part that it was necessary to separate him from other detainees in order to preserve internal security, order, and discipline in the Jail and, as such, was an appropriate exercise of their judgment and expertise. Id. Their decision as to Hollgarth's continued detention in administrative segregation was influenced by his long history of repeated escape attempts and the extent to which his behavior in detention suggested a continuing threat to Jail safety and security. These are matters for decision by jail administrators, not by the courts. Id.
Hollgarth had no liberty interest to remain in the general population. Sandin, 515 U.S. at 484-485; Thomas, 130 F.3d at 760. Thus, his claim that his placement in administrative segregation was discriminatory, even if true, did not in itself violate the Constitution and did not give rise to any right to procedural due process. Sandin, 515 U.S. at 484; Thomas, 130 F.3d at 760. A liberty interest arises in the correctional context only if Jail officials had restrained Hollgarth's freedom in a manner that imposed an atypical and significant hardship on him in relation to the ordinary incidents of prison life. Id. Hollgarth did not suffer such a hardship: placement of a detainee in isolation is not considered by the courts to be an atypical or significant change in his situation where the conditions in isolation are not markedly different from conditions in the general population cellblocks. Sandin, 515 U.S. at 485-486 (placement of prisoner in disciplinary segregation for 30 days did not give rise to liberty interest); Thomas, 130 F.3d at 760-762 (placement of inmate in segregation for 70 days did not implicate protected liberty interest). Since Hollgarth's transfer to administrative segregation did not implicate a liberty interest, he had no right to due process. Id.
Further, Hollgarth has not met his burden of establishing that defendants Jerry Dawson, Charles Woodard, Dewayne Jones, and Jerdean Meeks were personally responsible for any violations of his constitutional rights. Hollgarth's complaint includes Sheriff Dawson and Sgts. Woodard, Jones, and Meeks as defendants because of their supervisory responsibility in the Jail. However, Hollgarth has not come forward with the necessary evidence of their personal involvement in any unconstitutional activity.
The Plaintiff claims that Sheriff Dawson had knowledge of alleged misconduct by other defendants and did not intercede either to discipline correctional officers or to halt the misconduct. (Complaint, par. 35, 36, 43.) As Hollgarth has failed to establish individual constitutional violations, as discussed in the preceding section, his claim against the sheriff fails.
Hollgarth names Sgt. Charles Woodard as a defendant (Complaint, par. 8), but directs no claims at Woodard in his complaint and has come forward with no evidence implicating Woodard in any alleged violation of his constitutional rights. Therefore, Woodson is entitled to summary judgment.
Hollgarth's complaint directs claims at defendant "Jones", but does not specifically direct any claims at Dewayne Jones, as opposed to Larry Jones. (Complaint, par. 20, 22, 23, 44) In fact, the evidence demonstrates that Dewayne Jones was on layoff and not on duty in the Jail at the time of the incidents alleged in the complaint and thus had no personal responsibility for any alleged misconduct. Therefore Dewayne Jones is entitled to summary judgment.
Hollgarth's complaint claims that Sgt. Meeks had supervisory responsibility for allegedly discriminatory strip searches. (Complaint, par. 25, 42) However, as already discussed, the shakedown or body searches were not unconstitutional. Therefore Meeks is entitled to summary judgment.
Pretrial detainees have the right to receive reasonable medical treatment for a serious injury or medical need. Estelle v. Gamble, 429 U.S. 97, 103-104 (1976); Chapman, 241 F.3d at 845; Murphv v. Walker, 5 1 F.3d 714, 717 (7th Cir. 1995). Inadequate health care for prisoners gives rise to a constitutional violation only when a prison official has been deliberately indifferent to a serious injury or medical need. Chapman, 241 F.3d at 845; Dunigan v. Winnebago County, 165 F.3d 587, 590 (7th Cir. 1999). Not every medically recognized condition presents a serious medical need. Gutierrez v. Peters, 111 F.3d 1364, 1372 (7th Cir. 1997). An objectively serious injury or medical need is "`one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'" Chapman, 241 F.3d at 845, quoting Zentmyer v. Kendall County 220 F.3d 805, 810 (7th Cir. 2000) ( quoting Gutierrez v. Peters 111 F.3d 1364, 1373 (7th Cir. 1997)). An objectively serious condition also presents itself if "`failure to treat [it] could result in further significant injury or unnecessary and wanton infliction of pain.'" Reed v. McBride, 178 F.3d 849, 852 (7th Cir. 1999), quoting Gutierrez, 111 F.3d at 1373.
Hollgarth's claim is without merit because the undisputed evidence fails to demonstrate any of the necessary elements of such a claim: (1) Hollgarth did not have a serious medical need; (2) the defendants were not deliberately indifferent to such a need; and (3) Hollgarth did not suffer any resulting injury. Hollgarth did not experience a serious medical need as a result of his brief exposure to O/C spray. He suffered only from temporary symptoms: he coughed and vomited once as a result of some spray getting in his mouth; and he felt a burning sensation on his face for "a little while." (Hollgarth Dep., page 44.) Hollgarth himself did not consider these consequences serious enough to request medical care. Such temporary discomfort does not present a serious medical need because it does not require the intervention of a medical professional to provide care or relief. Exposure to O/C, that result in the expect consequences, is not a serious medical need. The defendants did not act with deliberate indifference to a serious medical need because Hollgarth never told an officer that he was suffering any continuing physical effects from the OIC spray and did not request medical care. Hollgarth did not appear to the officers to suffer from any lingering effects from the spray after he vomited once. Officers cannot be liable for knowingly disregarding a serious medical need if they are unaware of it. See, Hinnins v. Correctional Medical Services of Illinois, 178 F.3d 508, 513 (7" Cir. 1999) (defendants did not know that detainee with dislocated shoulder had serious medical need where symptoms he presented were not ordinarily associated with dislocated shoulder); Qian v. Kautz, 168 F.3d 949, 956 (7th Cir. 1999) (jail personnel could not be deliberately indifferent to detainee's serious medical need where they did not know that he was suffering from brain injury);
Finally, the evidence does not demonstrate that Hollgarth suffered any injury as a result of the failure to obtain medical care for him. This is not surprising. Where physical symptoms are only temporary and do not require professional medical care, there will be no consequential harm if medical care is not provided.
The Plaintiff's second amended complaint presents claim that are barred by the applicable statutes of limitations. Defendants are entitled to summary judgment on those claims which were not filed by Hollgarth within the applicable limitations period. The second amended complaint presents claims that the use of force against Hollgarth on June 18, 2003 and August 24, 2003 constituted the tort of battery under Illinois law. (Complaint, par. 20, 26, 40.) These claims were originally pleaded in Hollgarth's initial complaint, which was filed on March 14, 2005, more than one year after the alleged injuries. On common-law tort claims brought against local governments in Illinois or their employees, the applicable limitations period is one year from the date of the injury, as provided in § 8-101 of the Illinois Local Government Tort Immunity Act. 740 ILCS 1018-101; DiBenedetto v. City of Chicago, 873 F.Supp. 106, 108 (N.D. Ill. 1994); Dirksen v. Citv of Springfield, 842 F.Supp. 11 17, 1125 (C.D.Ill. 1994). Accordingly, Hollgarth's claim of battery is time-barred.
Finally, the defendants did not deny the plaintiff's his right of access to the courts. Hollgarth's complaint claims generally that "Defendants deprived plaintiff of meaningful access to legal material and his litigation papers." (Complaint, par. 37.) This claim lacks merit since Hollgarth has not come forward with evidence to support the claim. Prisoners have a constitutional right of meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 822 (1977). In order to assure such meaningful access, prisoners must be provided with either adequate law libraries or adequate assistance from persons trained in the law. Id. 430 U.S. at 828. However, there is no obligation to provide prisoners with both a law library and legal assistance. Id.; Martin v. Tvson, 845 F.2d 1451, 1456 (7th Cir. 1988), cert. denied, 488 U.S. 863 (1988) (where a prisoner is represented by an attorney in his criminal case there is no need for the prison to provide him with access to a law library). Moreover, a prisoner claiming that he was denied access to the courts must allege and provide that such denial caused him actual injury. Lewis v. Casev, 518 U.S. 343, 349 (1996); Gentry v. Duckworth, 65 F.3d 555, 559 (7" Cir. 1995) (prisoner must show that denial of access to legal materials caused some quantum of detriment to existing or contemplated litigation); Martin, 845 F.2d at 1456.
During his deposition, Hollgarth described this claim as relating to copies of such personal papers as correspondence with Michael Talkington of the Office of Jail and Detention Standards of the Illinois Department of Corrections, see e.g., Complaint, Exhibits D-3, D-4 and copies of newspaper articles. (Hollgarth Dep., pages 36-39.) Hollgarth claims that these materials were missing from the box of his belongings in the administrative segregation cellblock, but he is unable to state what happened to the documents or who allegedly took them. (Id., pages 40-41.) Hollgarth cannot establish the necessary elements of this claim. First, there is no evidence that any defendant is responsible for or had knowledge of the alleged removal of materials from Hollgarth's storage box. Without evidence linking a defendant to the alleged act, there is no basis for the necessary determination of personal responsibility. J.H. v. Johnson, 346 F.3d 788, 793 (7th Cir. 2003) ("under $1983, a plaintiff must show the actor was `personally responsible for the constitutional deprivation'"). Second, Hollgarth has not demonstrated that the loss of any of these personal materials served to deny him access to the courts and thereby caused him actual detriment. Lewis, 518 U.S. at 349; Gentry, 65 F.3d at 559. As a result, the defendants are entitled to summary judgment on the plaintiff's claim that they denied him access to court.
Hollgarth's does not establish an official-capacity claim against the sheriff. Where plaintiffs allege § 1983 claims against government officers or employees in their official capacities, they must establish a separate basis for the official-capacity claims, which in effect are directed at the governmental office or employer, in this case the office of sheriff. A municipal government or office can be liable under $1983 only where the governmental entity itself causes a constitutional violation. Monell v. New York Citv Dept. of Social Services, 436 U.S. 658, 694 (1978); Citv of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). There must be a direct causal link between government policy or custom and the constitutional deprivation, such that the government's policy or custom inflicts the injury. Id. Starzenski v. City of Elkhart, 87 F.3d 872,879 (7th Cir. 1996). Where there is no underlying constitutional deprivation, government policy or custom cannot give rise to a claim pursuant to § 1983. Citv of Canton, 489 U.S. at 385; Hill v. Shobe, 93 F.3d 418,422 (7" Cir. 1996). Since Hollgarth has not established a constitutional violation by an individual defendant, the official-capacity claims are subject to summary judgment for the same reasons as the individual-capacity claims. Hill, 93 F.3d at 422. Dawson is entitled to summary judgment on Hollgarth's official-capacity claim. Based on the foregoing, the court enters the following: 56 4 in forma pauperis See 24 28 U.S.C. 1915
1. Pursuant to Fed.R.Civ.P. (c), the defendant's motion for summary judgment is granted [42]. The clerk of the court is directed to enter judgment in favor of the defendants and against the plaintiff. Any remaining matters are rendered moot, and this case is terminated, with the parties to bear their own costs. 2. If the plaintiff wishes to appeal this dismissal, he may file a notice of appeal with this court within 30 days of the entry of judgment. Fed.R.App.P. (a)(4). A motion for leave to appeal should set forth the issues the plaintiff plans to present on appeal. Fed.R.App.P. (a)(1)(C). If the plaintiff does choose to appeal, he will be liable for the $455.00 appellate filing fee irrespective of the outcome of the appeal. Furthermore, if the appeal is found to be non-meritorious, the plaintiff may also accumulate a strike under (g).