In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3208
AARON FILLMORE,
Plaintiff-Appellant,
v.
THOMAS F. PAGE, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 97 844 CJP—Clifford J. Proud, Magistrate Judge.
____________
ARGUED JUNE 6, 2003—DECIDED FEBRUARY 18, 2004
____________
Before RIPPLE, KANNE, and DIANE P. WOOD, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Prison authorities at
Illinois’s maximum security Menard Correctional Center
occasionally rely on the Center’s Tactical Team—familiarly
dubbed the “Orange Crush,” from the orange jumpsuits
team members wear when performing their duties—to
escort particularly dangerous inmates from one part of the
prison to another. In this case, inmate Aaron Fillmore
claims that he was maliciously treated by both the Crush
and the officers in the Segregation Unit during a transfer
to the Center’s Segregation Unit. Some of his claims were
handled by the court and others were resolved by a jury. At
2 No. 02-3208
the end of the day, he was unsuccessful across-the-board.
On appeal, Fillmore has challenged nearly every aspect of
the case. While we find no fault with most of what the
district court did, we conclude that further proceedings are
necessary on some of Fillmore’s excessive force claims, and
we therefore remand for that limited purpose.
I
Our account of the facts is drawn in large part from
the parties’ “Stipulated Trial Testimony.” In this document,
which they executed after the trial of one of the defendants,
they agreed on the testimony Fillmore would give about the
events in question, should the remaining defendants go to
trial. The “stipulation” was limited to this purpose; it was
not a concession on the defendants’ part that Fillmore’s
story was true.
On February 4, 1997, several correctional officers visited
Fillmore in his cell, including Warden Thomas Page,
Assistant Warden Charles Hinsley, and at least one other
officer. Their visit was prompted by another prisoner’s
act of throwing scalding oil on two correctional officers;
Fillmore had been implicated in the attack. Initially,
Fillmore refused to “cuff up.” This prompted a brief dis-
cussion during which Fillmore’s cellmate, Jason Ramlow,
asked if Page was planning to call in the tactical team—
that is, the “Orange Crush”—to “break some bones.” The
answer was yes: the Crush had indeed been summoned to
transfer Fillmore and three other inmates from the West
Cellhouse to the Segregation Unit as punishment for the
attack. The officers who responded were David Shemonic,
James Best, Robert McCall, Richard Jack, Jason Higgins,
Paul Henderson, Troy Potts, and Minh Scott. The Crush’s
leader was Lieutenant Andrew Wilson. Officer Keith
Chamness videotaped the proceedings, a practice designed
to protect guards and prisoners alike. The Crush assembled
No. 02-3208 3
Fillmore and three other inmates. The team, accompanied
by Page and the videographer, then escorted Fillmore and
the others through the corridors of the prison and the
prison yard to the Segregation Unit.
As they approached the West Cellhouse with the other
members of the Crush, Wilson allegedly announced, “You
all have had it now.” Midway through the transfer, Page
commented, “You fucked up,” to one of the inmates.
Throughout the transfer process, according to Fillmore,
Henderson held a baton with one end on top of the chain
portion of the handcuffs between Filmore’s wrists and the
other between his legs. Henderson was thereby able to ap-
ply continuous downward pressure on Fillmore’s wrists, and
continuous upward pressure on his groin. Jack also had his
hands on Fillmore during the transfer to the Segregation
Unit. Fillmore alleges that upon his arrival at the Segrega-
tion Unit, one of the officers pushed his face against the
bars of a caged area immediately outside the Segregation
Unit, although he cannot identify which officer did so.
Fillmore was then taken inside a vacant cell and was strip-
searched by Higgins in the presence of several of the
defendants. Higgins examined each of the usual body
locations five times.
After the strip search, Fillmore was transferred to yet
another cell within the Segregation Unit. This part of the
transfer is the basis of a further set of allegations in the
complaint and stipulated testimony. On the way to the cell,
Fillmore claims, Officer Derek Cleland tripped him and
banged his shoulder into a “crank box.” Upon reaching the
cell, rather than waiting to uncuff Fillmore until he was
safely locked inside the cell, Cleland uncuffed Fillmore
outside the cell and then shoved him into the cell and onto
the floor and began kicking and punching him. Fillmore
immediately assumed the fetal position in an attempt to
ward off the assault, but he saw at least two orange-clad
legs joining in the beating. Later that night, several
4 No. 02-3208
officers—perhaps Segregation Unit Officers Dennis Grah,
Christopher McCabe, William Dillon, and Steven Mifflin,
although Fillmore is uncertain—allegedly sprayed freezing
water into his cell, broke the light in his cell, and turned off
the water to the sink and toilet.
On October 3, 1997, Fillmore filed suit, naming 17
defendants and advancing various federal- and state-law
claims. All defendants moved to dismiss, and Fillmore re-
sponded in opposition. The magistrate judge issued a report
on February 23, 2000, which the district court adopted in
full in an order entered on July 31, 2000. In that order, the
court dismissed Fillmore’s claims based on deliberate
indifference to serious medical needs and conditions of con-
finement, which left only his Eighth Amendment excessive
force claims for further development. The court also
dismissed Fillmore’s supplemental state-law claims, which
mirrored the medical needs and confinement claims. Three
days later, on August 3, 2000, the case was transferred
by consent of the parties to Magistrate Judge Proud for
disposition on the merits. See 28 U.S.C. § 636(c).
On July 10, 2000, the Segregation Unit defendants (Grah,
McCabe, Dillon, and Mifflin) filed a motion for summary
judgment on the excessive force claims against them. On
February 26, 2001, Magistrate Judge Proud responded to
this motion, clarifying the July 31 order and noting that the
district court had already dismissed the medical needs and
conditions of confinement claims. Those dismissals mooted
the motion for summary judgment filed by this group of
defendants, as no claims relating to their alleged con-
duct—that is, the spraying of cold water and the sabotage
of the light and water in Fillmore’s cell—remained in the
case.
On March 14, 2001, Fillmore filed a motion to recon-
sider the February 26 dismissal. Two weeks later, the dis-
trict court granted the motion to reconsider, vacated its
order, and revived the July 10 summary judgment motion
No. 02-3208 5
brought by Grah, McCabe, Dillon, and Mifflin. The net ef-
fect, however, was not terribly helpful from Fillmore’s per-
spective. This time around, the court found that Fillmore
had not pointed to enough evidence to justify a trial on
his excessive force claims against the Segregation Unit
officers, and they were (again) dismissed from the case.
On April 25, 2002, the court issued an order severing the
trial of Page and Cleland from that of the remaining de-
fendants. The Page-Cleland trial began on June 18, 2002.
At the conclusion of Fillmore’s presentation of his case-in-
chief, Page moved for judgment as a matter of law. Ruling
from the bench, the court granted that motion, dismissing
Page from the case based on the lack of evidence that Page
ordered any of the alleged abuse, or that he failed to
intervene during the parts of the transfers for which he was
present. The case against Cleland proceeded to the jury. On
June 20, 2002, the jury returned a verdict in favor of
Cleland on all counts.
On July 1, 2002, the Orange Crush defendants moved for
an entry of judgment in their favor. While that motion was
under consideration by the court, the parties submitted the
“Stipulated Trial Testimony” described above. On July 26,
2002, the court entered judgment in favor of all ten defend-
ants (Wilson, Chamness, Shemonic, Best, McCall, Jack,
Higgins, Henderson, Potts, and Scott), construing the de-
fendants’ July 1 motion as a motion for judgment pursuant
to FED. R. CIV. P. 52. This appeal followed.
II
Fillmore’s claims are directed against three different
groups of defendants: those who had actual physical contact
with him during the transfer, those whom he accused of
either ordering or failing to intervene in the abuse, and the
unnamed members of the Orange Crush who allegedly
perpetrated various forms of abuse, but who Fillmore is
unable to identify. We treat each set in turn.
6 No. 02-3208
A
We begin with those defendants who had actual physical
contact with Fillmore during the transfer and were thus
accused of perpetrating actual abuse, as opposed to merely
failing to intervene or ordering that abuse. These defen-
dants include Henderson, who led Fillmore from the West
Cellhouse to the Segregation Unit; Jack, who also admitted
to having his hands on Fillmore during the transfer; and
Higgins, who conducted the strip search of Fillmore in the
holding cell upon arrival at the Segregation Unit.
The first question we must address is what standard
of review is proper for these rather unusual proceedings.
The judgment in favor of Henderson, Jack, and Higgins was
based in part on the “Stipulated Trial Testimony” docu-
ment. The parties submitted this document at the conclu-
sion of Cleland’s trial, along with a request that the court
address the remaining claims on the record from the first
trial, rather than in a full-blown second trial. The magis-
trate judge agreed to their proposal and concluded that this
meant that he was operating under FED. R. CIV. P. 52(c).
That rule applies to bench trials and authorizes the judge,
after hearing all of the evidence with respect to an issue, to
make findings of fact and enter judgment as a matter of law
against that party. Wsol v. Fiduciary Mgmt. Assocs., Inc.,
266 F.3d 654, 656 (7th Cir. 2001); Int’l Union of Operating
Eng’rs, Local Union 103 v. Ind. Const. Corp., 13 F.3d 253,
257 (7th Cir. 1994).
But the use of Rule 52(c) is proper only if the parties have
agreed to waive their right to a jury trial. See FED. R. CIV.
P. 39(a); Lovelace v. Dall, 820 F.2d 223, 227 (7th Cir. 1987).
The problem here is that no such waiver is memorialized
anywhere within the document containing the stipulated
testimony, nor does the record on appeal include any
hearing in which a waiver occurred.
No. 02-3208 7
Our review of the pleadings indicates that neither party
anticipated at that point that the court might proceed under
Rule 52(c). Shortly after the Cleland trial, the remaining
defendants moved for judgment as a matter of law, presum-
ably under Rule 50(a). For his part, Fillmore was appar-
ently confused about what procedural mechanism would
apply to the court’s disposition of the case against the
remaining defendants. The opening paragraph of Fillmore’s
“Plaintiff’s Brief in Opposition to Directed Verdict” notes
that entry of judgment “pursuant to Rule 50(a) of the
Federal Rules of Civil Procedure is not supported by the law
or the stipulated evidence.” But there was a bigger problem
than that with the use of Rule 50(a): by its terms, it applies
only to jury trials. Rego v. ARC Water Treatment Co., 181
F.3d 396, 401 (3d Cir. 1999). Because none of the defen-
dants who remained in the case had yet gone to trial, Rule
50(a) had no role to play.
Nevertheless, parties can waive the right to jury trial by
conduct just as they can by written or oral statements. In
our view, that is what happened here. A failure to object to
a proceeding in which the court sits as the finder of fact
“waives a valid jury demand as to any claims decided
in that proceeding, at least where it was clear that the court
intended to make fact determinations.” Lovelace, 820 F.2d
at 227 (citing United States v. 1966 Beechcraft Aircraft, 777
F.2d 947, 951 (4th Cir. 1985) (collecting cases)); Stewart v.
RCA Corp., 790 F.2d 624, 630 (7th Cir. 1986). Fillmore’s
decision to submit stipulated testimony for use in further
proceedings and his participation in the request to dispense
with a second trial can be understood only as an invitation
to the judge to resolve matters without the aid of a jury.
This is enough to invoke Rule 52 and its associated stan-
dards of review for this court.
Fillmore is therefore incorrect when he argues that
“the facts were stipulated to by the parties” and that the
trial court “made no factual findings.” This misunderstands
8 No. 02-3208
both the scope of the Stipulated Testimony and the implica-
tions of his actions. As we have already noted, the document
containing the “stipulated” testimony is not a stipulation of
facts in the traditional sense, but merely a recitation of the
parties’ testimony about particular matters in the event of
a trial. Indeed, the document makes explicit that the
promised testimony as to any particular issue does not
reflect agreement among the parties. It was up to the
district court to resolve factual disputes and to decide who
should prevail. This court, under Rule 52(c), then reviews
the district court’s legal conclusions de novo and its fact-
findings for clear error. Hess v. Hartford Life & Accident
Ins. Co., 274 F.3d 456, 461 (7th Cir. 2001).
Applying that standard of review, we now turn to the
merits of Fillmore’s Eighth Amendment excessive force
claims against Henderson, Jack, and Higgins. The central
question is “ ‘whether force was applied in a good faith effort
to maintain or restore discipline or maliciously and sadisti-
cally for the very purpose of causing harm.’ ” Hudson v.
McMillian, 503 U.S. 1, 6 (1992) (quoting Whitley v. Albers,
475 U.S. 312, 320-21 (1986)). In making that determination,
several factors are relevant, including the need for the
application of the force, the amount of force applied, the
threat an officer reasonably perceived, the effort made to
temper the severity of the force used, and the extent of the
injury that force caused to an inmate. DeWalt v. Carter, 224
F.3d 607, 619 (7th Cir. 1999). Such a claim cannot be
predicated on a de minimis use of force. Id. at 620. Instead,
the quantum of force required for a constitutional violation
is that which is “repugnant to the conscience of mankind.”
Hudson, 503 U.S. at 10 (quoting Whitley, 475 U.S. at 327).
In addition, in order to survive a motion for summary
judgment, the prisoner must have evidence that “will
support a reliable inference of wantonness in the infliction
of pain.” Whitley, 475 U.S. at 322. Infliction of pain that is
“totally without penological justification” is per se malicious.
No. 02-3208 9
Hope v. Pelzer, 536 U.S. 730, 737 (2002) (quoting Rhodes v.
Chapman, 452 U.S. 337, 346 (1981)).
Two questions are thus important: first, whether the force
that Fillmore describes rose above the de minimis level and
thus potentially amounted to an Eighth Amendment
violation, and second, whether the actions of any of the
three defendants were designed expressly for the purpose
of punishing or humiliating Fillmore. The magistrate judge
concluded that any force exerted by Henderson and Jack
was de minimis and was not so egregious as to “shock the
[conscience] of mankind.” The judge came to the same
conclusion about the strip search conducted by Higgins.
On this record, and bearing in mind that we are operating
under clear error review, we find no reason to overturn the
district court’s decisions. Counsel for Fillmore told us at
oral argument that not more than 30 minutes separated the
scalding oil attack on the correctional officers and the
transfer of Fillmore and the other inmates to the Segrega-
tion Unit. We acknowledge that this might seem to provide
a strong motive for the officers to mete out “rough justice”
against Fillmore and the other inmates. Even so, our own
careful review of the video record (on which the magistrate
judge also relied) and the record testimony indicates that
the court’s conclusion that the force applied by Henderson
and Jack was de minimis was not clearly erroneous.
As the district court noted, the video reveals only inci-
dental bumping, which is not enough to meet the consti-
tutional threshold for excessive force. See DeWalt, 224 F.3d
at 620 (shove insufficient to meet constitutional threshold);
see also Outlaw v. Newkirk, 259 F.3d 833, 839 (7th Cir.
2001) (finding no Eighth Amendment violation when use of
force caused superficial injury to prisoner’s hand); Lunsford
v. Bennett, 17 F.3d 1574, 1582 (7th Cir. 1994) (finding that
de minimis force was used when prison guard caused
bucket to hit prisoner on the head). Moreover, while the
10 No. 02-3208
video does not capture every second of every aspect of the
transfer, it is fairly comprehensive. The portions showing
Fillmore do not suggest that he was experiencing the level
of discomfort that one would expect if the officers were
applying substantial upward pressure to Fillmore’s groin
using the baton. Finally, as the district court also noted,
Fillmore pointed to no significant injury or need for medical
attention. Fillmore’s mother testified only that she noticed
a bruise on his back during a later visit. This was certainly
not like the beating that was perpetrated during an intra-
prison transfer in Hudson, which resulted in, among other
things, a broken dental plate. 503 U.S. at 4. Nor does this
case involve the kind of suffering that accompanies the use
of the hitching post, recently invalidated in Hope. 536 U.S.
at 738. At most, Fillmore experienced discomfort and sore
wrists. The district court’s finding that the force applied did
not violate the Constitution was not clearly erroneous.
The district court also found that Fillmore’s rights
were not violated in the course of the strip search Higgins
conducted. Strip searches are not per se unconstitutional.
Peckham v. Wis. Dep’t of Corr., 141 F.3d 694, 697 (7th
Cir. 1998). Fillmore could recover if he could show that
the strip search was “conducted in a harassing manner
intended to humiliate and inflict psychological pain.”
Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003); see
also Peckham, 141 F.3d at 697; Meriwether v. Faulkner, 821
F.2d 408, 418 (7th Cir. 1987). According to Fillmore, that is
exactly what Higgins did when he forced Fillmore to spread
his buttocks five different times in quick succession. The
district court, however, found that the search was not
conducted in a humiliating manner, and we must review
that finding for clear error.
Once more, the video record is of some assistance. It re-
veals that the strip search of Fillmore was conducted in
a discreet and expeditious manner. The search took place
inside a holding cell and so was out of view of the other in-
No. 02-3208 11
mates. It was therefore not an affront to Fillmore’s privacy
interests vis-à-vis other guards or his fellow inmates, to the
extent a prisoner may assert such interests. See Hudson v.
Palmer, 468 U.S. 517, 526-30 (1984); Johnson v. Phelan, 69
F.3d 144, 146-47 (7th Cir. 1995). Further, Fillmore was
given ample time to undress and dress, and the total
examination portion of the search does not appear to have
lasted more than a few seconds. The principal injury
Fillmore claimed was humiliation: nowhere did he allege
that the strip search was conducted in a violent manner.
While the absence of physical injury does not necessarily
preclude an Eighth Amendment claim directed at an
excessive strip search, Calhoun, 319 F.3d at 939, the
district court did not clearly err in concluding that this
search involved a de minimis application of force and lacked
the requisite showing of malice.
B
We turn next to the claims against the defendants who
did not have any actual physical contact with Fillmore, but
were nonetheless present: Chamness, who operated the
camera during the transfer, Wilson, who heads up the
Orange Crush, and Page. Fillmore claims that a jury could
have found that each defendant failed to intervene when he
had a duty and opportunity to do so, or otherwise ordered
subordinates to commit the alleged abuse. That is not,
however, the right question to ask. Our review of the
judgments in favor of Chamness and Wilson once again
comes from Rule 52, and it is limited to clear error. Page’s
situation is different: because he won judgment as a matter
of law under Rule 50, our review of his part of the case is de
novo. Sheehan v. Donlen Corp., 173 F.3d 1039, 1043 (7th
Cir. 1999). Under the latter standard, the decision in favor
of Page is proper only if the evidence, taken in the light
most favorable to Fillmore, nonetheless compels a finding
12 No. 02-3208
for the defendant. Jones v. W. & S. Life Ins. Co., 91 F.3d
1032, 1036 (7th Cir. 1996).
In bringing his claims against Chamness, Wilson, and
Page, Fillmore relied in particular on Miller v. Smith,
220 F.3d 491 (7th Cir. 2000). In that case, we said that
“police officers who have a realistic opportunity to step
forward and prevent a fellow officer from violating a plain-
tiff’s rights through the use of excessive force but fail to
do so” could be held liable under § 1983. Id. at 495; see also
Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (collecting
other cases). This language merely reiterates the long-
established rule that “[a]n official satisfies the personal
responsibility requirement of § 1983 if she acts or fails to
act with a deliberate or reckless disregard of the plain-
tiff’s constitutional rights.” Crowder v. Lash, 687 F.2d
996, 1005 (7th Cir. 1982) (emphasis added). The problem for
Fillmore, however, is the fact that there was no underlying
violation of his constitutional rights committed by
Henderson, Jack, or Higgins. Chavez v. Ill. State Police, 251
F.3d 612, 652 (7th Cir. 2001); Richardson v. City of India-
napolis, 658 F.2d 494, 500 (7th Cir. 1981). Simply put, there
was no constitutionally impermissible failure to intervene
because there was no violation that compelled intervention.
Even if there were such a violation, the closest that
Fillmore comes to hard evidence that Page and Wilson
ordered or even condoned the alleged use of force are the
statements each one allegedly made, including Wilson’s
announcement that “You have had it now” upon the arrival
of the Orange Crush at Fillmore’s cell, and Page’s statement
that “You fucked up” (audible on the video) during the
actual transfer of the inmates. But offhand and isolated
statements are too slim a reed to support the contention
that Page or Wilson affirmatively directed anyone else to
harm Fillmore, or failed to intervene with a deliberate or
reckless disregard for Fillmore’s constitutional rights.
Fillmore has not presented enough to compel reversal of the
No. 02-3208 13
magistrate judge’s entry of judgment under either Rule 50
(Page) or 52 (Wilson).
The same is true of the remaining defendants, includ-
ing videographer Chamness, as well as Shemonic, Best,
McCall, Potts, and Scott, who were near Fillmore through-
out the transfer. The district court held that the mere
presence of these officers throughout the transfer did not
establish a violation because presence without more falls
short of a deliberate or reckless disregard of Fillmore’s
constitutional rights. We agree. In the absence of evidence
of either an underlying rights violation or a conspiracy on
the part of the remaining guards, we affirm the court’s en-
try of judgment in favor of Chamness, Shemonic, Best,
McCall, Potts, and Scott.
C
We turn finally to a review of the district court’s dismissal
of Fillmore’s claims against certain unidentified members
of the Orange Crush. Our review on this part of the case
again proceeds under Rule 52.
Fillmore’s allegations against these defendants rest on
two separate alleged incidents. The first occurred when
Fillmore arrived at the Segregation Unit and at least one
unidentified defendant pushed his face into the bars of the
caged area just outside the Unit. (Fillmore suspects that
either Henderson or Jack was the responsible party, but he
does not know for sure.) The second involved a beating
administered by Cleland and at least two other members of
the Crush (identifiable only by their orange pantlegs),
which occurred after Fillmore was taken to his holding cell
in the Segregation Unit. The district court’s order says
nothing about the first incident, and it summarily rejected
the second claim, noting that neither Fillmore, “nor anyone
else, can specifically identify any of the ten defendants as
being present.” (Emphasis added.) Fillmore now argues that
14 No. 02-3208
the court erred by rejecting his claim against the uni-
dentified defendants in too summary a fashion.
Fillmore’s principal strategy is to allege a far-flung
conspiracy to inflict punishment on him for his suspected
role in the attack on the guards, and then to rely on the
common law doctrine of joint liability to overcome his in-
ability to identify exactly who was beating him. He begins
with the well-established proposition that § 1983 creates a
“species of tort liability,” Carey v. Piphus, 435 U.S. 247, 253
(1978). In tort law, when each of two defendants performed
a negligent act that may have produced the plaintiff’s
injury, but it is impossible to know which one really did,
courts hold that the two defendants may be jointly liable for
that single injury. See, e.g., Summers v. Tice, 199 P.2d 1
(Cal. 1948) (holding two hunters jointly liable for a hunting
accident where each negligently discharged his weapon).
This case, according to Fillmore, is a perfect candidate for
application of that rule in the § 1983 context.
But Fillmore has pushed the concept too far. In his case,
questions exist whether the other potential tortfeasors were
present at all. His case is more like Hessel v. O’Hearn, 977
F.2d 299 (7th Cir. 1992). There, the plaintiffs brought a
§ 1983 action when a can of soda vanished during a search
of their apartment. We held that plaintiffs’ inability to
identify the particular officer who stole the soda was fatal
to their claim, but suggested that the result might have
been different if the evidence had shown that each defen-
dant was involved in the actual wrongdoing. Id. at 305. We
explicitly distinguished the hunting accident at issue in
Summers v. Tice, noting:
Those officers who participated in the search but did
not steal any of the Hessels’ property are innocent in a
way in which the defendants in Summers and Sindell
[v. Abbott Labs., 607 P.2d 924 (Cal. 1980)] were not—for
all of those defendants had done a harmful, a dangerous
No. 02-3208 15
thing, albeit not all had harmed the particular plaintiff.
Id. Joint liability is appropriate only where all of the de-
fendants have committed the negligent or otherwise illegal
act, and so only causation is at issue. Fillmore has not
established the predicate for the joint liability rule, and
thus his claim cannot succeed on this basis.
This does not, in our view, mean that prison guards who
take the trouble to disguise themselves beyond recognition
are free to abuse inmates without fear of liability. It is
simply to say that the solution to that problem does not, in
the present circumstances, lie in the doctrine of joint
individual liability. Other measures may also be effective.
Menard’s own practice of videotaping transfers is one, to the
extent that the camera captures all relevant events.
Another would be to require clearly identifiable numbers on
the outerwear of the guards, through which the institution
could trace the particular individuals involved. A third, well
within judicial competence and more suited to the litigation
context, is to compel prison officials to reveal all informa-
tion relevant to the task of identifying the responsible
parties, including such facts as who was assigned to the
particular task that gave rise to the claim. Refusals to
testify or dishonest testimony must be punished with
sanctions severe enough to compel cooperation. No one
wants to reward reliance on the legendary code of silence
among law enforcement officers, see, e.g., Sledd v. Lindsay,
102 F.3d 282, 287 (7th Cir. 1996), and so the courts must be
vigilant to ensure that the proper information sees the light
of day. Indeed, in this case, the trial court imposed discov-
ery sanctions on October 15, 1999, in response to the
defendants’ failure to provide the names of the officers on
duty in the Segregation Unit the night after the transfer,
but nothing more seems to have been done.
What, then, can we make of Fillmore’s effort to bring this
excessive force claim? It is important initially to distinguish
16 No. 02-3208
between two possible situations: first, that the unknown
officers administering the beating were among the individu-
als Fillmore sued, and second, that they were not (i.e., that
they were additional Tactical Team members who had
never been named as defendants and served with process).
If the latter proves to be true, then Fillmore is probably out
of luck. These events took place in 1997, well outside the
two-year limitations period that applies to Illinois § 1983
claims in the absence of any kind of tolling. Licari v. City of
Chicago, 298 F.3d 664, 667-68 (7th Cir. 2002). If the former
is true, however, then the defendants are already properly
before the court, and the only task is the collection of the
right information. What this record currently lacks is a
finding of fact about which, if any, of the defendants
pressed Fillmore’s face up against the bars outside the
Segregation Unit, and whether Fillmore was really beaten
upon his arrival at the cell in which he was ultimately
housed.
The court should have made a finding of fact about
whether each incident occurred and, if possible, who was
involved, rather than rejecting Fillmore’s claim as a matter
of law based solely on Fillmore’s inability to identify his
assailants without judicial intervention. We are not con-
vinced that a thorough enough inquiry was made into these
matters, and we therefore conclude that this portion of the
case must be remanded for further proceedings. Should the
court determine that either incident took place, then the
defendants must cooperate fully with inquiries designed to
identify which officers were involved. In addition, if either
incident is found to have taken place, then Fillmore may
also proceed against any defendants who the court finds
were present at the scene for their failure to intervene. If,
in the final analysis, the court concludes that the prison has
a policy that makes identification virtually impossible, it
may be that Fillmore will have highlighted a different kind
No. 02-3208 17
of problem relating to the broader policies the prison
officials have adopted in their official capacities.
III
Fillmore next attacks the instructions presented to the
jury in Cleland’s trial. We review jury instructions to de-
termine if, taken as a whole, they were sufficient to inform
the jury correctly of the applicable law. Dadian v. Village of
Wilmette, 269 F.3d 831, 839 (7th Cir. 2001).
Fillmore’s principal argument is that the jury instructions
incorrectly required the jury to find that Officer Cleland
subjectively desired to cause him pain. The instructions at
issue stated, in relevant part:
Defendant’s Instruction 11: . . . The infliction of pain in
a prison security measure does not amount to a cruel
and unusual punishment simply because it may appear
in retrospect that the degree of force authorized or
applied for security purposes was unreasonable, and
hence, unnecessary in a strict sense.
In determining whether the use of force by a correc-
tional officer against a prisoner constitutes cruel and
unusual punishment, you must decide whether the
force was applied in a good faith effort to maintain or
restore discipline or maliciously and sadistically for the
very purpose of causing harm.
Defendant’s Instruction 12: “Maliciously” means inten-
tionally injuring another without just cause or reason.
Defendant’s Instruction 13: “Sadistically” means en-
gaging in “extreme cruelty or delighting in cruelty.”
We find no reversible error in the way that these instruc-
tions present the subjective element of the plaintiff’s claim.
In Thomas v. Stalter, 20 F.3d 298 (7th Cir. 1994), we noted:
18 No. 02-3208
Under the controlling precedent of the Supreme Court,
the test for determining whether a prisoner has suf-
fered cruel and unusual punishment has two com-
ponents, one objective and one subjective. The objective
component focuses on whether, in light of contemporary
standards of decency, the alleged deprivation was
sufficiently serious. The subjective component involves
an inquiry into whether the officials acted with a
sufficiently culpable state of mind.
Id. at 301 (citations and quotation marks omitted). Fillmore
thinks that the Supreme Court changed this test in its
recent decision in Hope v. Pelzer, supra, but we disagree. It
is true, as Fillmore notes, that in holding that Alabama’s
use of the hitching post violated the Eighth Amendment,
the Court nowhere mentioned any proof that the guards
involved were motivated by any subjective intention of
inflicting pain on Hope. In fact, the Court underscored that
it was not altering the subjective intent requirement for
Eighth Amendment cases when it stated that “[w]e may
infer the existence of this subjective state of mind from the
fact that the risk of harm is obvious.” Hope, 536 U.S. at 738.
The instructions here provide no reason to upset the jury’s
verdict in favor of Cleland.
IV
Last, Fillmore objects to the process by which the district
court granted summary judgment for defendants Grah
and Mifflin. (He concedes that judgment was properly en-
tered for McCabe and Dillon.) The district court, he claims,
failed to give him an adequate opportunity to complete
discovery or file evidence in opposition. The magistrate
judge’s decision to revive and grant an earlier motion for
summary judgment, all in a single order, in Fillmore’s view
violated FED. R. CIV. P. 56(c)’s command that “[t]he [sum-
No. 02-3208 19
mary judgment] motion shall be served at least 10 days
before the time fixed for the hearing.”
Strictly speaking, the advance notice and response
provision of Rule 56(c) requires that ten days elapse before
the hearing, not ten days before the filing of affidavits or
other materials in opposition, but we have interpreted it to
mean that a district court has no power to enter summary
judgment without first allowing the nonmovant at least ten
days (or whatever additional period of time the court has
set) to file an opposition. Indiana Port Comm’n v. Bethlehem
Steel Corp., 702 F.2d 107, 111 (7th Cir. 1983); see also
Grigoleit Co. v. United Rubber, Cork, Linoleum, & Plastic
Workers of Am., Local No. 270, 769 F.2d 434, 437 (7th Cir.
1985); Gieringer v. Silverman, 731 F.2d 1272, 1280 (7th Cir.
1984); Lewis v. Faulkner, 689 F.2d 100, 101 (7th Cir. 1982);
Allen v. Beneficial Fin. Co., 531 F.2d 797, 799 (7th Cir.
1976). Relying on this authority, Fillmore now claims that
the magistrate judge violated the notice and response
provision of Rule 56(c) when he revived and granted the
defendants’ summary judgment motion in one fell swoop,
without providing Fillmore with an additional ten days to
prepare a response after the court’s decision to revive that
motion.
The Fifth Circuit has held that a significant delay
between the time a motion for summary judgment is filed
and the court’s ultimate disposition of that motion violates
Rule 56(c). See Capital Films Corp. v. Charles Fries Prods.,
Inc., 628 F.2d 387 (5th Cir. 1980); Kilbort v. Hampton, 538
F.2d 90 (5th Cir. 1976); Enochs v. Sisson, 301 F.2d 125 (5th
Cir. 1962). This court, however, has taken a more flexible
approach. In Grigoleit, the plaintiff had inexplicably failed
to file any response to the defendant’s motion for summary
judgment over a period of several months. When the district
court entered summary judgment in favor of the defendant,
the plaintiff balked, claiming that FED. R. CIV. P. 56(c)
requires “a court to notify the opposing party ten days
20 No. 02-3208
before ruling on the motion, even if the motion were filed
six months earlier.” Grigoleit, 769 F.2d at 437. We rejected
that reading of the rule and held that the district court
could enter summary judgment at any point without
providing ten days’ notice to the delinquent party of its
intention to do so. Id. We distinguished Capital Films on
the ground that in that case the district court’s entry of
summary judgment contradicted its earlier assurances to
the parties that it would not act on the summary judgment
motion and that the case would instead proceed to trial. Id.
In this case, the magistrate judge answered Fillmore’s
first motion for an extension of discovery with an order
extending both the discovery and the dispositive motion
deadlines to October 4 and 11 respectively. But while
Fillmore had thereby bought himself some more time, he
did not at the same time receive an extension of time for
responding to the summary judgment motion. A savvier
plaintiff might have thought to file a motion that asked for
both kinds of extension, rather than just an extension of the
discovery cut-off, but Fillmore did not. As the October 11
deadline approached and the court had not yet disposed of
his October 2 motion requesting a further extension of
discovery, the safest course for Fillmore was to file an
opposition anyway, along with an affidavit outlining his
reasons for needing further discovery as contemplated by
Rule 56(f). See Woods v. City of Chicago, 234 F.3d 979, 990
(7th Cir. 2000); Kalis v. Colgate-Palmolive Co., 231 F.3d
1049, 1058 (7th Cir. 2000); Farmer v. Brennan, 81 F.3d
1444, 1449-50 (7th Cir. 1996); Wallace v. Tilley, 41 F.3d
296, 302 (7th Cir. 1994). But Fillmore did not do so, then or
later. As a result, the court’s October 11 deadline had come
and gone well before the confusing sequence of orders
entered in February and March, in which the court declared
the remaining claims against the Segregation Unit defen-
dants to be moot, but then vacated that order and revived
and granted those same defendants’ motion for summary
judgment.
No. 02-3208 21
Looking at the proceedings as a whole, and bearing
in mind the district court’s discretion in managing cases
before it, we conclude that Fillmore had a meaningful op-
portunity to respond to the defendants’ summary judgment
motion. We therefore affirm the district court’s entry of
summary judgment in favor of Grah and Mifflin.
IV
Out of this entire appeal, therefore, we have AFFIRMED
the judgments in favor of Henderson, Jack, Higgins with
respect to the claims arising out of the transfer; the judg-
ment in favor of Higgins with respect to the strip search;
the claims against Wilson, and Page with respect to failure
to intervene; the claims against Chamness, Shemonic, Best,
McCall, Potts, and Scott for their action or inaction during
the transfer; the jury verdict in favor of Cleland; and the
summary judgments for Grah and Mifflin. We REVERSE and
REMAND the court’s dismissal of Fillmore’s claims against
the unnamed defendants who allegedly beat him in the
Segregation Unit for further proceedings to ascertain
whether any of the named defendants was involved in the
beating, and if the specific actors can be identified, for
further proceedings on that claim. If other persons adminis-
tered the beating, the court must decide whether the
statute of limitations bars Fillmore’s claims against any or
all of them. Each party shall bear its own costs on appeal.
22 No. 02-3208
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-18-04