Martaouse C. Holloway v. John Doe

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 2, 2023*
Decided November 8, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-2717
MARTAOUSE C. HOLLOWAY,
Plaintiff-Appellant,
v.
JOHN DOE,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 22-C-741
William C. Griesbach,
Judge.
O R D E R
Martaouse Holloway contends that when a correctional officer struck his hand
on Holloway’s clothed buttocks, he violated the Eighth Amendment’s prohibition on
* The appellees were not served with process and are not participating in this
appeal. We have agreed to decide the case without oral argument because the brief and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP. P. 32.1

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No. 22-2717 Page 2
cruel and unusual punishment. See 42 U.S.C. § 1983. The district court correctly
dismissed Holloway’s amended complaint for failure to state a claim; thus, we affirm.
We accept the factual allegations in the complaint as true and draw all
reasonable inferences in Holloway’s favor. Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir.
2015). Holloway was lying clothed on his bunk late one morning at Green Bay
Correctional Institution when his cell door opened “for [his] cellmate to go and take his
medication.” After the cellmate left, Holloway rolled over to sleep. “Moments later” he
“felt a strike on [his] behind.” He turned and saw “a staff member (C.O.) exiting [his]
cell.” Holloway asserts that he has been traumatized from this single incident.
Holloway sued the officer for sexually harassing him in violation of his Eighth
Amendment rights. The district court dismissed Holloway’s initial complaint, which
alleged only that the defendant “slapped [him] on [his] butt,” because the court “could
not reasonably infer that a single slap on the butt amounts to sexual harassment.” It
granted Holloway leave to amend his complaint, suggesting that Holloway allege if the
“slap was intentional,” if the officer made comments, or if he interacted with Holloway
before or after the incident. Holloway amended his complaint to add that his cellmate
left the cell to get medication but said nothing about the guard’s state of mind. The
district court again dismissed the complaint for failure to state a claim.
See 28 U.S.C. § 1915A. It explained that it could not infer from the allegations that the
officer struck Holloway’s buttocks “intentionally . . . let alone that he did so maliciously
or sadistically or for sexual gratification.” Also, the court added, a single strike of the
hand on the buttocks did not violate the Eighth Amendment.
On appeal, Holloway argues that he pleaded enough facts to allege a sexual
assault that violated his Eighth Amendment rights. To state an Eighth Amendment
claim, a plaintiff must plausibly allege “the unnecessary and wanton infliction of pain.”
Whitley v. Albers, 475 U.S. 312, 320 (1986). That requires an allegation that the defendant
had a “sufficiently culpable state of mind” and committed objectively “harmful”
conduct. Hudson v. McMillian, 503 U.S. 1, 8 (1992). Holloway’s claim fails both elements.
First, Holloway failed to allege that the officer had a “culpable state of mind.” Id.
An “unwanted touching” of a prisoner’s private parts can violate Eighth Amendment
rights if the officer “intended to humiliate the victim or gratify [his own] sexual desires.”
Washington v. Hively, 695 F.3d 641, 643 (7th Cir. 2012) (emphasis added). But despite the
district court’s warning that Holloway must allege if the slap was intentional (or allege
comments or other interactions from which intent to achieve sexual gratification could
be inferred), Holloway did not. This failure alone dooms his claim.

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No. 22-2717 Page 3
Holloway offers two responses, but neither is availing. First, he argues that we
should presume an officer intends to gratify his sexual desires whenever he touches a
private area without penological justification. But Holloway cites no authority for this
presumption, and we know of none. Moreover, Rule 9(b) of the Federal Rules of Civil
Procedure allows plaintiffs to plead “intent” generally, yet Holloway refused to do so.
Second, Holloway contends that we may reasonably infer that the officer had a culpable
state of mind from his swift and silent entry and exit, which Holloway believes evinces
“consciousness of guilt” and an intent to achieve sexual gratification. But an
unelaborated allegation that an officer quickly entered and left a cell quietly as a
prisoner was trying to sleep does not itself plausibly suggest the officer was aware of,
let alone intended, any touching.
The second problem with Holloway’s claim is that the force he received is not
objectively “harmful.” Hudson, 503 U.S. at 8. Not “every malevolent touch by a prison
guard” violates the Eighth Amendment. Id. at 9. The conduct must involve “significant
force,” Guitron v. Paul, 675 F.3d 1044, 1046 (7th Cir. 2012), or, if it the force is de minimis,
it must be “repugnant to the conscience of mankind.” Hudson, 503 U.S. at 10 (quoting
Whitley, 475 U.S. at 327). An isolated slap of a hand on clothed buttocks that causes no
injury is not, by itself, cruel and unusual punishment under these standards.
Finally, we address Holloway’s pending motion for status, in which he asks
whether the appellee has filed a brief on appeal. Because no appellee was served with
process, no appellee has participated in or otherwise filed a brief on appeal.
AFFIRMED

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