Natanael Rivera v. Michael Drake

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 5, 2012 *
Decided December 5, 2012
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12‐1585
NATANAEL RIVERA,
Plaintiff‐Appellant,
v.
MICHAEL DRAKE,
Defendant‐Appellee.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 09‐CV‐1182‐JPS
J.P. Stadtmueller,
Judge.
O R D E R
Natanael Rivera, a Wisconsin prisoner, contends that correctional officer Michael
Drake inserted his thumb between Rivera’s buttocks during a pat‐down search. Rivera sued
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2)(C).

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No. 12‐1585 Page 2
in federal court, arguing that Drake’s action violated the Eighth Amendment’s prohibition
on cruel and unusual punishment. See 42 U.S.C. § 1983. The district court granted summary
judgment for Drake, reasoning that even if Rivera proved that Drake inserted his thumb
into Rivera’s anus, he would not be able to make out a constitutional violation. We disagree.
Taking the facts in the light most favorable to Rivera, a reasonable fact‐finder could
conclude that Drake violated Rivera’s Eighth Amendment rights. Accordingly we vacate the
district court’s grant of summary judgment and remand for further proceedings.
We recount the facts in the light most favorable to Rivera. See Hoppe v. Lewis Univ.,
692 F.3d 833, 838 (7th Cir. 2012). Rivera was an inmate in 2008 at the Wisconsin Resource
Center, a prison in Winnebago, Wisconsin. Drake was a correctional officer there. When
Rivera was returning from recreation, Drake ordered him to submit to a pat‐down search,
and Rivera complied. Rivera was wearing shorts at the time. According to Rivera in his
affidavit, during the pat‐down Drake “molest[ed]“ Rivera by intentionally “inserting his
thumb” between Rivera’s buttocks. (Rivera does not specify the length of time that Drake
inserted his thumb or whether Drake penetrated his buttocks over or under his shorts or
underwear. But construing the facts most favorably to Rivera, a rational fact‐finder could
infer that Drake’s thumb physically pressed into Rivera’s anus.) The insertion humiliated
and traumatized Rivera because he had been sexually abused as a child. Rivera was visibly
upset after the incident and told other prison officials soon after that he felt violated and
dirty; those officials granted Rivera’s request to take a shower.
Drake denies that he ever inserted his thumb between Rivera’s buttocks, but he
acknowledges that he may have “touched” Rivera’s buttocks in the normal course of the
pat‐down search. Drake admits that a properly executed pat‐down does not involve
inserting a finger between a prisoner’s buttocks. He also admits that Rivera objected to the
way he conducted the pat‐down and that he discovered no contraband on Rivera’s person
that day.
After discovery, both parties moved for summary judgment, and the district court
ruled in Drake’s favor. The court accepted as true Rivera’s assertion that Drake inserted his
thumb between Rivera’s buttocks and that this caused Rivera substantial trauma, distress,
and suffering. But the court reasoned that these facts could not raise a triable issue and
defeat summary judgment. According to the court, the insertion of Drake’s thumb into
Rivera’s anus during a pat‐down was at most a de minimis injury too minor to constitute an
Eighth Amendment violation. The court suggested that its conclusion might have been
different had Rivera put forward evidence that the insertion of the thumb lasted more than
a few seconds or that Drake made sexually charged comments during the pat‐down.

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No. 12‐1585 Page 3
Rivera’s pro‐se appellate briefing is convoluted and raises a number of frivolous
arguments, but the parties do devote attention to the one issue on which this case turns:
whether a reasonable jury could find that Drake violated Rivera’s Eighth Amendment rights
given the admissible evidence that Rivera furnished. We conclude that a reasonable jury
could determine that, by inserting his thumb between Rivera’s buttocks, Drake violated the
Eighth Amendment. Therefore, the district court’s grant of summary judgment to Drake
was improper.
The Eighth Amendment prohibition on cruel and unusual punishment bars prison
authorities from unnecessarily and wantonly inflicting pain on inmates. See Hope v. Pelzer,
536 U.S. 730, 737 (2002); Whitman v. Nesic, 368 F.3d 931, 934 (7th Cir. 2004). In the context of
searches of prisoners, only searches that are maliciously motivated, unrelated to
institutional security, and lack a legitimate penological justification violate the Eighth
Amendment. Id. The infliction of pain on prisoners without any legitimate penological
justification “always violates contemporary standards of decency and need not produce
serious injury in order to violate the Eighth Amendment.” Calhoun v. DeTella, 319 F.3d 936,
939 (7th Cir. 2003) (citing Hudson v. McMillian, 503 U.S. 1, 9 (1992)). Therefore, “infliction of
pain that is totally without penological justification is per se malicious.” Fillmore v. Page, 358
F.3d 496, 504 (7th Cir. 2004) (internal quotation marks omitted).
Since Rivera’s evidence suggests that Drake pressed his thumb forcefully between
Rivera’s buttocks, causing him humiliation and substantial pain, and Drake has articulated
no legitimate justification for that conduct, a jury could infer that Drake’s actions were
maliciously motivated and hence violated the Eighth Amendment. See Washington v. Hively,
695 F.3d 641 (7th Cir. 2012) (reversing grant of summary judgment for prison guard where
plaintiff asserted that guard gratuitously fondled his testicles); Calhoun, 319 F.3d at 940
(reversing dismissal of complaint where male prisoner alleged that defendants subjected
him to sexually humiliating strip searches in the presence of female guards who were there
as spectators, not to perform any penological function). Rather than attempting to justify
pressing his thumb into Rivera’s buttocks during a routine pat‐down, Drake denies that the
conduct occurred and agrees that if it did occur, it was improper. Although his factual
denial is a defense at trial, it is insufficient to defeat summary judgment, as we recently
observed in Hively, 695 F.3d at 643–44. Here, as in Hively, “[w]e don’t see how the
defendant’s conduct [there, of briefly fondling a prisoner’s testicles] if correctly described by
the plaintiff could be thought a proper incident of a pat down or search, and the defendant
doesn’t contend that it could be; his defense rather is that his conduct has been
misdescribed.” Id. at 744; see also Mays v. Springborn, 575 F.3d 643, 649–50 (7th Cir. 2009)
(vacating judgment as a matter of law in favor of defendants where defendants “provided
no justification for” performing group strip‐searches of prisoners but instead “denied
performing them”).

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No. 12‐1585 Page 4
Moreover, Rivera’s asserted injury is serious enough to allow him to proceed to trial
on his Eighth Amendment claim. The district court characterized Rivera’s injury as de
minimis, but we disagree with that view. In the first place, we have urged district courts to
avoid invoking a “significant injury” requirement in cases like this one where prisoners
charge that “a guard inflicted pain maliciously or sadistically.” Guitron v. Paul, 675 F.3d
1044, 1046 (7th Cir. 2012) (citing Hudson v. McMillian, 503 U.S. 1, 9–10 (1992)). Furthermore,
when a guard intends to humiliate or gratify himself through an unwanted touching of an
inmate’s private parts, the intrusion violates the prisoner’s Eighth Amendment rights, even
if the force that a guard uses is slight. Hively, 695 F.3d at 642–43. And in any case, it is rarely
appropriate to characterize sexual offenses as de minimis, because they usually “cause
significant distress and often lasting psychological harm.” Id. at 643. Thus, like the brief
fondling of a prisoner’s testicles in Hively, id. at 642, and the subjection of prisoners to
humiliating strip searches in Mays, 575 F.3d at 649, and Calhoun, 319 F.3d at 940, a
reasonable jury could conclude that, by inserting his thumb into a prisoner’s anus, Drake
intended to humiliate Rivera and therefore violated the Eighth Amendment.
Because we are remanding this case for a trial on disputed facts, we urge the district
court to evaluate carefully the propriety of recruiting counsel to assist plaintiff at trial. See 28
U.S.C. § 1915(e)(1); Pruitt v. Mote, 503 F.3d 647, 654–658 (7th Cir. 2007) (en banc). Rivera
moved for appointment of counsel six times during pretrial proceedings, but the court
rejected each motion. Rivera asserts that he is unable to read or write effectively in English
and suffers from a psychotic disorder. He has been assisted by fellow inmates throughout
the case. Although some submissions have been coherent, they have become less intelligible
as the case has progressed. In any event, because this case can proceed to trial, fellow
inmates will no longer be able to assist him there.
Accordingly, we VACATE the judgment of the district court and REMAND for
further proceedings. Circuit Rule 36 shall apply on remand.

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