899 F.2d 660 (7th Cir. 1990), 89-1768, Colon v. Schneider

Docket Nº:89-1768, 89-1847, 89-1979 and 89-2148.
Citation:899 F.2d 660
Party Name:Carlos COLON, Plaintiff-Appellee, Cross-Appellant, v. Lieutenant Bruce SCHNEIDER, Defendant-Appellant, Cross-Appellee.
Case Date:April 12, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 660

899 F.2d 660 (7th Cir. 1990)

Carlos COLON, Plaintiff-Appellee, Cross-Appellant,


Lieutenant Bruce SCHNEIDER, Defendant-Appellant, Cross-Appellee.

Nos. 89-1768, 89-1847, 89-1979 and 89-2148.

United States Court of Appeals, Seventh Circuit

April 12, 1990

Argued Jan. 12, 1990.

As Amended April 13, 1990.

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David Harth, Julie Genovese, Foley & Lardner, Madison, Wis., for Carlos Colon.

Donald J. Hanaway, Atty. Gen., David T. Flanagan, Asst. Atty. Gen., Office of the Atty. Gen., Wisconsin Dept. of Justice, Madison, Wis., for Bruce Schneider, Timothy Douma, Sergeant Kannenburg.

Before COFFEY, EASTERBROOK and MANION, Circuit Judges.

COFFEY, Circuit Judge.

Plaintiff Carlos Colon, an inmate at the Columbia Correctional Institution ("CCI") in Portage, Wisconsin, brought this action pursuant to 42 U.S.C. Sec. 1983, alleging that the defendant, Lieutenant Bruce Schneider, a corrections official at CCI, violated his

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rights under the due process clause of the fourteenth amendment of the United States Constitution 1 when Schneider used Chemical Mace 2 to compel him to submit to a strip search during the course of Colon's transfer from one area of the CCI to another. The jury found that Lieutenant Schneider had violated the provisions of the Wisconsin Administrative Code governing the use of mace and, in doing so, violated Colon's due process rights. The jury awarded Colon $250 in punitive damages but denied him an award of compensatory damages. The district court vacated the punitive damages award and, in its place, issued an injunction prohibiting Lieutenant Schneider from using mace solely to compel strip searches incident to the transfer of CCI inmates within the institution. On appeal, Lieutenant Schneider challenges the jury's finding that he violated Colon's federal due process rights, as well as the district court's injunction. In a cross-appeal, Colon argues that he is entitled to one dollar in compensatory damages and that the district court erred in vacating the jury's award of punitive damages. We reverse the judgment against Lieutenant Schneider and vacate the injunction barring the use of mace to compel strip searches. Thus, we have no occasion to reach Colon's cross-appeal as he is no longer a prevailing party and, therefore, is not entitled to damages.


The events serving as the basis for Colon's civil rights action occurred on May 19, 1988. 3 At approximately 2:35 p.m., Colon informed Sergeant Timothy Douma that he was feeling ill. Sergeant Douma instructed Colon to complete a written illness report. After Colon complied with the directive, Douma contacted a nurse and requested that she see Colon promptly. Colon became angry when the nurse failed to report as soon as he anticipated and proceeded to activate the building fire alarm by throwing water into the air vent in his cell. Colon repeatedly activated the alarm system during the course of the next hour, despite Douma's attempts to persuade him to desist. At 3:45 p.m., Sergeant Douma summoned Lieutenant Schneider who, after reviewing Colon's "face card" detailing Colon's battery conviction and poor disciplinary record at CCI, decided to transfer Colon from program status to control status within the segregation unit of the prison.

Control status segregation, one of several categorizations of inmates at CCI, is for prisoners who engage in disruptive and/or destructive conduct. 4 A prisoner in control status segregation is subject to closer and more frequent observation by prison officials and permitted only very limited access to personal property. 5 Placing inmates in control status involves moving them from their cell to an observation cell. In moving an inmate to an observation cell, the normal practice at CCI is to handcuff the inmate and escort him to a designated cell, where a strip search for contraband and weapons is conducted. After the strip search, the inmate is again handcuffed and placed in the observation cell.

After learning that he was to be placed in control status, Colon became angry and proceeded to smear grease on his cell window,

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in order that it would be more difficult for the prison officials to see inside before entering, and also applied grease to his body in order to prevent the officials entering his cell from holding and restraining him, if necessary. Lieutenant Schneider, Sergeant Douma and Sergeant Edward Kannenberg attempted unsuccessfully to persuade Colon to place his hands through the cell door in order that they might apply the handcuffs. Even after Lieutenant Schneider ordered four officers to put on protective emergency response unit clothing in preparation for a physical confrontation, Colon refused to be cuffed. Only after Lieutenant Schneider threatened him with mace did Colon allow the officers to apply the cuffs. Thereafter, Sergeants Douma and Kannenberg escorted him to the strip cell where Colon resisted their efforts to remove the handcuffs and place him in the cell. Once in the strip cell, Colon was ordered to remove his clothing for the search. Colon refused to comply and, according to Lieutenant Schneider, stated: "Come in and do it. I dare you to. I'll kick your butt." 6 After Colon persisted in his refusal to remove his clothing, Lieutenant Schneider warned him that a chemical agent would be used if he again refused to comply with the strip search order. Colon refused once more, and Lieutenant Schneider sprayed him with mace twice, after which Colon removed his clothing and submitted to the strip search. Thereafter, Colon was placed in the observation cell.

Approximately one month later, on June 16, 1988, Colon filed a pro se civil rights complaint in the district court pursuant to 42 U.S.C. Sec. 1983 and submitted a petition to proceed in forma pauperis. After the court granted his petition, Colon filed a motion for appointment of counsel, which was granted on September 12, 1988. On January 3, 1989, Colon's attorney filed an amended complaint, alleging that Wisconsin Administrative Code Sec. HSS 306.08, 7 the regulation governing the use of mace, creates a protectable liberty interest under the fourteenth amendment and that Lieutenant Schneider "intentionally violated this liberty interest in the following respects: ... us[ing] chemical agents against the plaintiff for refusing to obey an order to strip in violation of the state regulations [and] us[ing] chemical agents against plaintiff in response to alleged verbal threats in violation of the state regulations." 8

On January 23, 1989, a one-day jury trial took place. The plaintiff's primary theory was that he was maced for refusing to obey Schneider's order to strip and that the Wis.Admin.Code Sec. HSS 306.08(5)(b) prohibits the use of mace for refusal to obey an order except in an emergency. Lieutenant Schneider admitted that Colon's refusal to submit to a strip search was not an emergency situation but argued that the use of mace was permitted under section HSS 306.08(4), which provides:

"(4) Non-Emergency Situations. (a) To deal with situations other than those described in sub. (3), 9 chemical agents may only be used where s. HSS 306.06(3) 10 permits the use of force and the

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inmate physically threatens to use immediate physical force, which may involve the threat to use a weapon, against a staff member. An inmate's verbal threats do not justify using chemical agents.

(b) In order to ensure that chemical agents are used only as a last resort in these situations, the staff member shall take the following steps, if feasible, before actually employing a chemical agent:

1. Communicate with the inmate;

2. Ask one or more other available people to communicate with the inmate, such as another security officer, a social worker, a crisis intervention worker, a member of the clergy, or a psychologist or psychiatrist;

3. Wait for a reasonable period of time, unless waiting would likely result in an immediate risk of harm to the inmate or to another person;

4. Make a show of force to the inmate;

5. Use physical power and strength; and

6. Use any other reasonable means short of applying a chemical agent to enforce an order.

(c) When s. HSS 306.06(3) permits the use of force and a staff member knows of an inmate's history of violent behavior in similar situations and reasonably believes that the inmate will become violent in this situation, a chemical agent may be used after the procedures in par. (b) 1 to 4 have been followed but before the inmate physically threatens to use actual physical force."

Lieutenant Schneider presented evidence that section HSS 306.06(3)(f) 11 allows the use of force "[t]o change the location of an inmate" and that CCI policy requires inmates to submit to strip searches when so ordered before being moved to a different area of the segregation unit. Schneider's theory was that Colon's refusal to strip prevented him from effectuating Colon's transfer to control status segregation and that in light of Colon's history of violent behavior and his resistance against the prison guards during the course of the instant transfer, his use of mace was permissible under section HSS 306.08(4)(c). In rebuttal, Colon's counsel presented evidence, over the objection of the defendant, that CCI's policy of strip searching inmates whenever they are transferred within the institution is violative of the regulations governing strip searches 12 and, thus, the defendant's reliance on section 306.08(4) to justify Schneider's use of mace was misplaced.

At the close of the evidence, defense counsel moved for directed verdict, arguing that Lieutenant Schneider was entitled to qualified immunity 13 and that the plaintiff had failed to establish a constitutionally

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