James E. Washington, Jr. v. John P. Hively

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1657
JAMES E. WASHINGTON, JR.,
Plaintiff-Appellant,
v.
JOHN P. HIVELY,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:10-cv-00004-RTR—Rudolph T. Randa, Judge.
SUBMITTED JULY 26, 2012—DECIDED AUGUST 20, 2012
Before POSNER, MANION, and TINDER, Circuit Judges.
POSNER, Circuit Judge. The plaintiff was a pretrial de-
tainee 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

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2 No. 12-1657
fondled his nude testicles for two or three seconds, con-
trary 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 psycho-
logical 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 plain-
tiff’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

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No. 12-1657 3
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 (1992), cited in Hendrickson: “The Eighth
Amendment’s prohibition of ‘cruel and unusual’ punish-
ments necessarily excludes from constitutional recogni-
tion 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., No. 11-3313, 2012 WL
3055865, at *8-9 (7th Cir. July 27, 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 re-
strains a prisoner by poking the prisoner’s cheek with
the lighted end of a cigarette, the cigarette’s momentum
is negligible yet 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

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4 No. 12-1657
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, in-
tended to humiliate the victim or gratify the assail-
ant’s sexual desires, can violate a prisoner’s constitu-
tional 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, 675 F.3d 1044,
1046 (7th Cir. 2012) (citations omitted). We explained
that “the reason the Court referred to de minimis force
in Hudson . . . is not to revive a significant-injury require-
ment by other means, but to emphasize an important
difference between constitutional law and private law.
In tort law, any unconsented and offensive touching is
a battery. An unwelcome tickle with a feather can lead
to an award of damages. A judgment of imprisonment
strips a prisoner of that right to be let alone, and
many other interests as well. Custodians must be

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No. 12-1657 5
able to handle, sometimes manhandle, their charges, if
a building crammed with disgruntled people who
disdain authority (that’s how the prisoners came to be
there, after all) is to be manageable. When a physical
injury occurs as the result of force applied in the course
of prison operations, as happened to Guitron, the courts
should approach the matter as . . . Hudson . . . direct[s],
rather than trying to classify injuries as de minimis.” As
we said in a related context, “persecution . . . involves
the use of significant physical force against a person’s
body, or the infliction of comparable physical harm
without direct application of force (locking a person
in a cell and starving him would be an example), or
nonphysical harm of equal gravity.” Stanojkova v. Holder,
645 F.3d 943, 948 (7th Cir. 2011) (emphasis in original).
Sexual offenses forcible or not are unlikely to cause so
little harm as to be adjudged de minimis, that is, too
trivial to justify the provision of a legal remedy. They
tend rather to cause significant distress and often lasting
psychological harm.
As for the district judge’s other ground for granting
summary judgment in favor of the defendant—absence
of evidence of “subjective intent”—it is true that if the
defendant had no intention of humiliating the plaintiff or
deriving sexual pleasure from fondling his private parts,
but was merely overzealous in conducting the pat down
and strip search, there was no deliberate violation of
a constitutional right and so no basis for the suit. But
subjective intent (a redundancy: intent is a mental state,
hence subjective), unless admitted, has to be inferred
rather than observed; judges and jurors are not mind

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readers. The plaintiff alleges that he complained vocifer-
ously to the defendant about the pat down and strip
search while they were going on, to no avail. We don’t
see how the defendant’s conduct 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.
We note finally and very briefly the defendant’s irrele-
vant contention that the plaintiff failed to exhaust state-
law remedies (the suit contains no state law claims) and
his mistaken contention that 42 U.S.C. § 1997e limits the
plaintiff to nominal damages because he doesn’t claim
to have suffered any physical injury; in fact the statute
does not bar him from seeking both nominal and puni-
tive damages. Calhoun v. Detella, supra, 319 F.3d at 941-42.
The judgment is reversed and the case remanded
for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
8-20-12

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