Antonio Jones v. ARTHUR D EGRAVE and MARSHA GLEASON

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 4, 2024 *
Decided May 6, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 22-2123
ANTONIO JONES,
Plaintiff-Appellant,
v.
ARTHUR D E GRAVE and MARSHA
GLEASON,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 20-CV-746
Nancy Joseph,
Magistrate Judge.
O R D E R
Antonio Jones, a Wisconsin prisoner, sued prison officials alleging two claims—
that they unlawfully disciplined him in retaliation for filing grievances and
unconstitutionally strip searched him. The district court entered summary judgment for
the defendants, correctly ruling that Jones failed to exhaust administratively the first
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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claim, and the evidence could not support a verdict for Jones on the second. Thus, we
affirm.
We recount the facts in the light most favorable to Jones and draw all reasonable
inferences in his favor. Moore v. W. Ill. Corr. Ctr., 89 F.4th 582, 590 (7th Cir. 2023). The
claim about the strip search arises out of work that Jones did in the kitchen at Green Bay
Correctional Institution under the supervision of Marsha Gleason, a food service leader.
One day while working, he spilled some liquid. He went to retrieve a mop and bucket
from a janitorial closet to clean up the area. After Jones cleaned the spill, he brought the
mop back to the closet and emptied the mop water into a draining area. While doing so,
he slipped and hurt himself, but after some time in the closet, he recovered. When
Gleason saw Jones leave the closet, she noticed that he was limping and had spent more
time than usual there. Thinking that the limp and extra time in the closet suggested that
Jones had hidden contraband on his body, she “badger[ed]” Jones with questions about
why he had taken so long in the closet and what he had stolen. Jones refused to answer.
Cursing at least twice, Gleason threatened to ask Arthur DeGrave, a correctional officer
whom Jones believes had a romantic past with Gleason, to request a strip search.
DeGrave then summoned Jones—whom DeGrave had allowed to go to the bathroom
and who no longer limped—to question him. DeGrave suggested that Jones would
“have nothing to worry about” from a strip search that he ordered.
Jones was then searched. First, a correctional officer approached Jones, stating
that DeGrave had ordered the officer to “pat search” Jones. Jones had to lift his shirt
and show his waistband. The search did not reveal anything, and the officer apologized.
Gleason and DeGrave then demanded that Jones tell them where he put the contraband.
After Jones insisted that he had nothing, Gleason remarked, “We’ll see after your strip
search.” She laughed and told DeGrave to “strip search the asshole.” DeGrave had two
other correctional officers take Jones to a private, designated room for the strip search.
Jones later saw Gleason, who was looking “and laughing at” him.
The claim of retaliation arises out of events that began the next day. Jones and
another prisoner had completed their tasks in the kitchen when DeGrave asked if Jones
should start another task. Jones replied that someone else was taking care of that task.
DeGrave walked away but returned after a few minutes to repeat the question. About
ten days later, Jones received a conduct report in which DeGrave accused Jones of
disobeying work orders. Jones contested the report but ultimately received five days’
work without pay. After Jones appealed the disposition—arguing that he had obeyed
orders—but before the decision was administratively affirmed, he filed a grievance. In

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it, he accused DeGrave of issuing the conduct report to retaliate against him for filing an
earlier grievance against DeGrave and Gleason about the strip search. The prison
dismissed Jones’s new grievance on the ground that, because his contention of
retaliation was related to the conduct report and was therefore the subject of ongoing
disciplinary proceedings, the prison’s rules barred him from separately raising the
contention through the grievance process.
Jones responded with this suit. He alleges, first, that Gleason and DeGrave strip
searched him in violation of both the Fourth and Eighth Amendments. He also alleges
that they retaliated against him with the conduct report in violation of the First
Amendment. The district court permitted Jones to proceed on a claim that the strip
search violated the Eighth Amendment and that Gleason and DeGrave retaliated
against him.
The defendants moved for summary judgment in two stages. First, they argued
that Jones had not properly exhausted his administrative remedies for his retaliation
claim. A magistrate judge, presiding with the parties’ consent, see 28 U.S.C. § 636(c),
granted the defendants’ motion, concluding that Jones had failed to exhaust because he
did not raise his claim of retaliation in response to the conduct report; he instead had
incorrectly submitted the claim in a separate administrative grievance. Later, the
defendants moved for summary judgment on the strip-search claim. The district court
granted this motion too. It reasoned that Jones could not show an Eighth Amendment
violation because he did not rebut the evidence that the strip search had some
penological justification: Even if the defendants had impermissible motives (such as to
harass Jones or to delight themselves), the record indisputably showed another, valid
justification—they reasonably suspected that Jones had hidden contraband. Jones
moved to alter or amend the judgment, but the district court denied the motion.
Jones challenges the ruling that he failed to exhaust his administrative remedies
on his First Amendment claim that the discipline of his conduct report was retaliatory.
Under the Prison Litigation Reform Act, 42 U.S.C. § 1997e, prisoners may not bring a
claim in federal court unless they first exhaust the available administrative remedies for
that claim in the manner specified by the state. Pozo v. McCaughtry, 286 F.3d 1022, 1023
(7th Cir. 2002). Under Wisconsin’s rules, prisoners may file a grievance about discipline
“only after exhausting … [t]he disciplinary appeal process.” WIS . A DMIN. C ODE DOC
§ 310.06(2)(b). To exhaust the disciplinary appeal process, a prisoner must “provide a
statement” explaining why discipline is unwarranted and appeal any adverse decision.
Id. §§ 303.77(2)(b); 303.82(1). Jones contends that, because Gleason and DeGrave

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concocted the conduct report to retaliate, the report was unwarranted. But he concedes
that he did not raise this contention in his “statement” opposing the conduct report or
on internal appeal. Thus, Jones did not exhaust his retaliation claim in the manner
Wisconsin requires. See Schillinger v. Kiley, 954 F.3d 990, 996 (7th Cir. 2020).
That brings us to the claim about the strip search. Only strip searches conducted
“totally without penological justification” violate the Eighth Amendment. See Whitman
v. Nesic, 368 F.3d 931, 934 (7th Cir. 2004). The record demonstrates that the strip search
here had at least some penological basis. It is undisputed that Jones spent undue time in
the janitorial closet, came out walking with a limp, and refused to answer questions to
explain his delay and limp. From their observations of Jones’s suspicious behavior and
insubordination, the officers could plausibly decide that prison security required a strip
search to reveal if Jones had stolen and concealed something under his clothing.
Jones responds that the district court should have allowed this claim to go to trial
for two reasons. First, he argues that, because DeGrave let him go to the bathroom
before the search and knew that the pat down revealed nothing, DeGrave did not
suspect that Jones had concealed contraband. But after letting Jones go to the bathroom
and learning about the unrevealing pat down, DeGrave could still have reasonably
thought that Jones had hidden contraband on his body: Jones’s delay in the closet and
suspicious limp remained unexplained; his sudden loss of the limp after the trip to the
bathroom and the unrevealing pat down could reasonably suggest that Jones had
moved the contraband on his body. Second, Jones argues that Gleason and DeGrave
had an intimate past and a shared antagonism toward Jones, whom Gleason considered
an “asshole,” thus evincing an improper motive for the search. But even if they had an
improper motive for the search, as long as some penological justification for the search
is present, as it was, the search is compatible with the Eighth Amendment. Id.
Finally, Jones argues that the district court should have allowed his Fourth
Amendment claim about the strip search to proceed. Strip searches can violate a
prisoner’s Fourth Amendment rights. See Henry v. Hulett, 969 F.3d 769 (7th Cir. 2020)
(en banc). But any error in cutting off this claim was harmless because, based on the
record on which Jones relies, the search complied with the Fourth Amendment. To
determine the reasonableness of a strip search under that amendment, we look at its
manner, place, and purpose. Id. at 781. Jones argues that, under the Fourth Amendment,
an impermissible purpose alongside a permissible one can invalidate the search, and
the defendants’ laughter and delight in the search shows an impermissible subjective
purpose. But under the Fourth Amendment, we do not consider the officers’ subjective

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states of mind, id., and Jones has not presented evidence that the strip search was
motivated, even in part, by an impermissible objective purpose.
AFFIRMED

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