Wash v. Hively

• Decision Date: 20 August 2012
• Docket Number: No. 12–1657.,12–1657.
• Parties: James E. WASHINGTON, Jr., Plaintiff–Appellant, v. John P. HIVELY, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

695 F.3d 641

James E. WASHINGTON, Jr., Plaintiff–Appellant,

v.John P. HIVELY, Defendant–Appellee.

No. 12–1657.

United States Court of Appeals, Seventh Circuit.

Submitted July 26, 2012.

Decided Aug. 20, 2012.

James E. Washington, Jr. (submitted), Chicago, IL, pro se.

Ryan G. Braithwaite, Attorney, Crivello Carlson, S.C., Milwaukee, WI, for Defendant–Appellee.

Before POSNER, MANION, and TINDER, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff was a pretrial detainee in a county jail in Wisconsin in April 2008 when he was subjected to a pat down and strip search by the defendant, a guard at the jail. He claims in this civil rights suit under 42 U.S.C. § 1983 that while patting him down the 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, contrary to jail policy which forbids touching the inmate in the course of a strip search, and again without any justification. The plaintiff claims to have suffered psychological harm as a result of the guard's gratuitous and offensive invasion of his private space. The guard denies the plaintiff's allegations.

The district judge granted summary judgment in favor of the guard. He acknowledged that because the parties' factual disputes could not be resolved on summary judgment he had to “presume that the defendant grabbed the plaintiff's genitals in a way that was not related to penological interests.” Yet he thought the plaintiff had “presented evidence of only de minimis injury,” had “suffered at most an assault and battery,” and had presented no evidence concerning the defendant's “subjective intent” in “grabb[ing] the plaintiff's genitals in a way that was not related to penological interests.”

The judge's references to “de minimis injury” and “assault and battery” inappropriately invoked excessive-force cases, such as Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir.2009), which states that “de minimis uses of force are non-actionable.” See also O'Malley v. Litscher, 465 F.3d 799, 805 (7th Cir.2006); Outlaw v. Newkirk, 259 F.3d 833, 839–40 (7th Cir.2001); DeWalt v. Carter, 224 F.3d 607, 620 (7th Cir.2000); Leary v. Livingston County, 528 F.3d 438, 443 (6th Cir.2008). If a prisoner complains that a guard used excessive force to restrain him, but the evidence shows that the force used was slight and the battery merely a technical one (any touching neither explicitly nor implicitly authorized is a battery, see W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 9, pp. 41–42 (5th ed. 1984)), there is no violation of the prisoner's constitutional rights. See, e.g., Carlson v. Bukovic, 621 F.3d 610, 620–21 (7th Cir.2010).

But excessive force is not the only means by which a prisoner's civil rights can be violated, although this point is obscured by language in Hudson v. McMillian, 503 U.S. 1, 9–10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), cited in Hendrickson: “The Eighth Amendment's prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.’ ”

Yet even in cases involving “excessive force” as the term is used in law, exempting “de minimis uses of physical force” would be overbroad. As we had occasion to note recently in Lapsley v. Xtek, Inc., 689 F.3d 802, 811–14 (7th Cir.2012), “force” in the language of physics is mass (which equals weight as long you're not in outer space) times acceleration. But when cases talk about “excessive force” they usually mean rough or otherwise improper handling that causes excessive pain or other harm. If a guard restrains a prisoner by poking the prisoner's cheek with the lighted end of a cigarette, the modest force exerted causes a more painful injury than if the guard had dragged the prisoner into a cell, even though he'd have had to exert much greater force to accomplish that. If in dragging the prisoner he uses more force than is necessary and by doing so produces gratuitous pain or injury, we say that the force was excessive. But force is not the issue in the cigarette example or in a sexual battery case either. An unwanted touching of a person's private parts, intended to humiliate the victim or gratify the assailant's sexual desires, can violate a prisoner's constitutional rights whether or not the force exerted by the assailant is significant. See Mays v. Springborn, 575 F.3d 643, 650 (7th Cir.2009); Calhoun v. DeTella, 319 F.3d 936, 939–40 (7th Cir.2003); Farmer v. Perrill, 288 F.3d 1254, 1260 (10th Cir.2002); Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir.1997); Boddie v. Schnieder, 105 F.3d 857, 860–61 (2d Cir.1997). Indeed, sexual offenses need not involve any touching—think of indecent exposure, voyeurism, and child pornography that does not depict sex acts.

The doctrine de minimis non curat lex (the law takes no account of trifles) is concerned with harm rather than with force; it is therefore time that the formula “de minimis uses of physical force” was retired, as we suggested recently in Guitron v. Paul, ...