Opinion
24-1995
12-18-2024
GREGORY TYSON BELOW, Plaintiff-Appellant, v. HEIDI BROWN, et al., Defendants-Appellees.
NONPRECEDENTIAL DISPOSITION
Submitted December 18, 2024 [*]
Appeal from the United States District Court for the Western District of Wisconsin. No. 19-cv-31-wmc William M. Conley Judge.
Before ILANA DIAMOND ROVNER, Circuit Judge DORIS L. PRYOR, Circuit Judge NANCY L. MALDONADO, Circuit Judge
ORDER
Gregory Below, a Wisconsin state prisoner, appeals the summary judgment rejecting his claims that prison officials conducted pat-down searches on him in violation of the Eighth Amendment and then retaliated against him in violation of the First Amendment when he complained. See 42 U.S.C. § 1983. The district court concluded that Below failed to present evidence sufficient to support his claims. We affirm.
We construe all facts and reasonable inferences in favor of Below, the party opposing summary judgment. Decker v. Sireveld, 109 F.4th 975, 979 (7th Cir. 2024). The events in question occurred in 2014, when Below was incarcerated at the Wisconsin Secure Program Facility. He attests that a correctional officer, Heidi Brown, targeted him for unconstitutional pat searches that she carried out in a sexually inappropriate manner. According to the prison's security protocol, officers must complete five random pat searches per shift, as well as pat down prisoners who leave or return to their cells. Below states that Brown sought him out with excessive frequency, searching him as often as two to three times a day, up to four days a week. He spotlights three improper searches that occurred in 2014. In one search that February, he asserts that Brown "chop[ped]" his groin area. In a second search the next month, he asserts that he felt Brown chop and rub his testicles. And in a third search a week later, he attests that Brown initiated another pat search despite knowing that they were supposed to be separated; a verbal altercation ensued. He asserts that these encounters were captured by security cameras, but the video has since been deleted.
Around this same time, Below filed two grievances under the Prison Rape Elimination Act, 42 U.S.C. §§ 15601-15609, complaining that Brown pat searched him inappropriately and purposefully touched his genitals with sexual intent. His complaints were investigated by and eventually dismissed by prison officers Kurt Hoeper and Daryl Flannery and complaint examiner William Brown.
In May, the prison asked an outside investigator to look into Below's allegations of improper pat searches. The request appears to have been prompted by reports that Below had sought to recruit other inmates to complain about Brown, as well as a separate investigation initiated by the Grant County Sheriff's Department at Below's urging. The outside investigator, like the Sheriff's Department, found the claims unsubstantiated.
Also in May, Brown filed a conduct report about Below's noncompliance and the altercation during the third search. He was found guilty of disobeying orders and disruptive conduct and punished with 30 days' room confinement, during which he was not allowed to leave his quarters without permission. WIS. ADMIN. CODE DOC § 303.72(3).
While under room confinement, Below filed administrative complaints over two episodes in which he was denied permission to leave his room, allegedly in retaliation for instigating conflict with Brown. He alleged that in one instance the prison's "property officer" prevented him from attending a scheduled appointment at the prison's property room. And in another instance, Sergeant Lesa Novinska denied him permission to leave his cell for a regularly scheduled tooth cleaning to treat his periodontitis.
Below also asserts that in May, Brown retaliated against him further when she submitted three incident reports charging him with trying to recruit other inmates to complain about her and even requesting that one physically assault her. Based on these incident reports, defendant William Brown (the Institution Complaint Examiner) placed Below in temporary segregation for a month while the charges were investigated.
Below then brought this § 1983 suit, asserting that Heidi Brown conducted unconstitutional pat down searches on him; that other staff failed to protect him from those searches; that prison staff retaliated against him when he complained; and that the staff was deliberately indifferent to the risk of serious medical harm caused by his delayed dental appointment. The defendants then moved for summary judgment based on a failure of proof.
During briefing at the summary judgment stage, Below moved to continue discovery so that he could obtain documentation from Brown's personnel file of complaints of any sexual assault, harassment or retaliation filed against her. According to Below, such documentation would call into question her truthfulness, credibility, and her assertion that she is a good employee. The district court denied Below's motion for continuance, explaining that summary judgment was not the stage for credibility determinations to be made or evidence to be weighed. After the close of briefing, Below again moved to compel production of the same documentation.
The district court granted the defendants' motion for summary judgment on Below's Eighth and First Amendment claims. Regarding his allegations of improper pat-searches, the court determined that Below had not substantiated his general assertion that Brown pat searched him too often, let alone with sexual intent. As for his failure-to-protect allegations, the court determined that Below had not shown he was subject to a substantial risk of serious harm from Brown, so he could not suggest that any of the staff defendants had reason to protect him from her searches. With regard to his assertion that the defendants were deliberately indifferent to his medical needs, the court ruled that he had not introduced sufficient evidence to show that his chronic periodontitis was a serious medical need or that the delay in cleaning worsened his condition. As for his argument that the defendants retaliated against him in violation of the First Amendment, the court found no evidence that Below suffered any consequence from the short delay in getting access to his property or that complaint examiner Wiliam Brown acted with any retaliatory motive when placing him on temporary lockup status pending the investigation of Heidi Brown's incident reports. The court then denied Below's motion to compel as moot.
On appeal, Below argues that the district court erred when it entered summary judgment without ruling on his second motion to compel documentation about Brown's employment files. He maintains that he needed this evidence to ascertain whether she previously had been disciplined for sexual misconduct. But to receive relief on appeal, an appellant must explain how he was prejudiced by the denial of discovery. See Midthun-Hensen on behalf of K.H. v. Group Health Cooperative of South Central Wisconsin, 110 F.4th 984, 988 (7th Cir. 2024). As the district court noted when denying Below's first motion to compel, Brown's credibility was not in issue at summary judgment, and Below makes no showing that her personnel files would provide relevant information Absent any showing that the denial of discovery prejudiced Below, we see no abuse of discretion by the district court.
Regarding his Eighth Amendment pat down claim, Below argues that the district court overlooked evidence-specifically, his attestations about the frequency and targeted nature of Brown's pat downs, which, he argues, reflect malice and an intent to humiliate him. An unwanted touching of a prisoner's private parts can violate the Constitution if intended to humiliate him or gratify the prison guard's sexual desires. Washington v. Hively, 695 F.3d 641, 642-43 (7th Cir. 2012) (reversing summary judgment where detainee asserted that prison guard "spent five to seven seconds gratuitously fondling the plaintiff's testicles and penis through the plaintiff's clothing and then while strip searching him fondled his nude testicles for two or three seconds"). But Below's attestations do not call into question the defendants' evidence that Brown was following prison protocol during her pat down searches. Below acknowledges, for instance, that he felt Brown "chop" his testicles-a reference confirming that Brown followed protocol by conducting her search with a bladed hand. And Below's assertions about the frequency of the searches, without more, do not create an inference that Brown acted with a motive that was anything but legitimate.
Regarding his related Eighth Amendment argument that the defendants failed to protect him from Brown's unlawful searches, Below maintains that his complaints under the Prison Rape Elimination Act put the defendants on notice that Brown conducted pat searches in a sexually assaultive manner. But as the district court found, Below points to nothing in the record to show that Brown's searches subjected him to a "substantial risk of serious harm"-a necessary component of an Eighth Amendment claim. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Regarding his claim of delayed dental care, Below argues that the defendants' conduct was enough to create a reasonable inference that they were deliberately indifferent to his medical needs in violation of the Eighth Amendment. But here too, Below failed to introduce evidence to suggest that the 6 day delay created a substantial risk of serious harm. Id. at 837.
Lastly, Below generally disagrees with the district court's ruling rejecting his First Amendment claim for retaliation. But even if Below could establish a prima facie case of retaliation, he does not point to anything in the record to challenge the court's finding that the defendants-the prison's property officer or William Brown-would not have taken the steps they did even without retaliatory motive. See Mays v. Springborn, 719 F.3d 631, 634 (7th Cir. 2013). As the court explained, prison policy at the time did not allow the property officer to let prisoners under room confinement to go to the property room. As for William Brown, the court appropriately explained that the record-which contained evidence that Below was potentially planning to harm Heidi Brown-supplied ample reason to isolate him.
AFFIRMED
[*] We have agreed to decide the case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. FED. R. APP. p. 34(a)(2)(C).