Richard Lewis v. Michael Stephens

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 16, 2018 *
Decided January 22, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 17‐1285
RICHARD LEWIS,
Plaintiff‐Appellant,
v.
MICHAEL STEPHENS, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 15‐cv‐51‐jdp
James D. Peterson,
Chief Judge.
O R D E R
Staff at the Columbia Correctional Institution strip searched Richard Lewis after
he threatened self‐harm. He then brought suit under 42 U.S.C. § 1983, arguing that prison
officials violated the Fourth and Eighth Amendments during the search. He challenges
the entry of summary judgment in favor of the defendant who ordered the search, and
the denial of his request for counsel at the trial of his claim against the defendant who
searched him. On this record, no rational jury could find that the first defendant violated
* We have agreed to decide this 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. See FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 17‐1285 Page 2
Lewis’s rights. And Lewis has not supplied us with a trial transcript, so we cannot review
the denial of his request for counsel at trial. We therefore affirm.
The strip search occurred in October 2014, while Lewis was in segregation. He
stood on the sink in his cell with a bedsheet tied around his neck, threatening to hang
himself. He eventually stepped down from the sink and was placed in observation status.
Under Wisconsin Administrative Code § DOC 306.17.02, an inmate whose status within
segregation changes must undergo a strip search. After entering observation status,
Lieutenant Theodore Anderson ordered staff to take Lewis to the shower area, the most
private part of the segregation unit, for a strip search. At first Lewis agreed to comply
with a “self‐directed” search, in which he would follow instructions to remove his own
clothing and move his body parts. But then Lewis said, “You will have to fight me … I’m
going to make you suit up and gas and taze me.”
Because Lewis resisted, Anderson ordered three corrections officers to conduct a
video‐recorded, staff‐assisted search. See Wis. Admin. Code § DOC 306.17.02. In this kind
of search, the inmate’s arms and legs are cuffed while two officers stand on either side of
the inmate to hold him in place. A third officer removes the inmate’s clothing. The
inmate’s mouth, hair, ears, fingers, armpits, feet, and toes are then checked. Bladed hands
(a technique in which the fingers are pressed together while the palms and fingers are
kept even) are used to check underneath the inmate’s penis, scrotum, and between the
inmate’s buttocks. No digital penetration is involved.
Sergeant Michael Stephens conducted the staff‐assisted search, which lasted five
minutes. The only fact dispute concerns the manner in which Stephens searched Lewis’s
buttocks. Lewis swears that while he was facing the wall, Stephens pushed his finger
inside Lewis’s anus. Lewis then said, “man, that’s sexual harassment, man. You’re not
suppose[d] to spread my cheeks … I could have squatted.” Another inmate, who was in
a nearby cell and aware of the search, yelled something about a “sexual assault.” Unlike
Lewis’s sworn affidavit, his internal grievance denies any digital penetration. And
Stephens swears that he spread Lewis’s buttocks using only the bladed‐hand technique.
The video did not resolve this dispute because the officers who surrounded Lewis
blocked the camera’s view. When the search ended, Anderson gave Lewis a towel to wrap
around his body. Lewis was then placed back in a cell.
Lewis sued Anderson, Stephens, and the two officers who held Lewis during the
search. Lewis asked for counsel, but the district judge denied his request because he had
not shown that he could not obtain an attorney on his own. After discovery, the court
granted the defendants’ motion for summary judgment for all defendants except

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No. 17‐1285 Page 3
Stephens. It reasoned that a strip search was justified but a fact dispute about the manner
in which Stephens conducted it required a trial.
Before trial Lewis asked again for recruited counsel. He now supplied evidence
that he was unable to obtain counsel, suffered from post‐traumatic stress disorder (from
being shot three times), and would have trouble presenting evidence and examining
witnesses. To establish the last point, he attached an affidavit from another inmate who
swore that he had drafted the complaint and other court papers. The judge denied the
motion without addressing this affidavit. The judge explained that Lewis had only “one
task for trial: to tell his side of the story about what happened during his strip search.”
The PTSD, the judge continued, would not affect his ability to testify. After a two‐day
jury trial, the jury returned a verdict for Stephens.
On appeal, Lewis first challenges the grant of summary judgment to Lieutenant
Anderson. He argues that Anderson violated the Fourth and Eighth Amendments by
ordering a staff‐assisted strip search rather than a self‐directed one, and by conducting
the search in the shower area in view of other officers and a nearby inmate.
Anderson did not violate the Fourth Amendment. Under the Fourth Amendment,
we balance “the significant and legitimate security interests of the institution against the
privacy interests of the inmate.” Canedy v. Boardman, 16 F.3d 183, 186 (7th Cir. 1994)
(quoting Bell v. Wolfish, 441 U.S. 520, 560 (1979)). Lewis has not furnished any evidence
that Anderson ordered the search for a non‐penological reason. Moreover, a jury has
already ruled that in carrying out Anderson’s order, Stephens conducted the search in a
reasonable manner. Given these facts and Lewis’s diminished privacy rights as an inmate,
see Hudson v. Palmer, 468 U.S. 517, 527–28 (1984), we conclude that the search was
reasonable.
That brings us to the Eighth Amendment. See Hudson, 468 U.S. at 530; Peckham v.
Wis. Depʹt of Corr., 141 F.3d 694, 697 (7th Cir. 1998). “[S]trip searches may be unpleasant,
humiliating, and embarrassing to prisoners, but not every psychological discomfort a
prisoner endures” violates the Eighth Amendment. Calhoun v. DeTella, 319 F.3d 936, 939
(7th Cir. 2003). Only those searches that are “maliciously motivated, unrelated to
institutional security, and hence ‘totally without penological justification’ are considered
unconstitutional.” Whitman v. Nesic, 368 F.3d 931, 934 (7th Cir. 2004) (quoting Meriwether
v. Faulkner, 821 F.2d 408, 418 (7th Cir. 1987)).
Applying these principles, we conclude that no reasonable jury could find that
Anderson violated the Eighth Amendment by ordering the staff‐assisted strip search.
Anderson ordered the search for a legitimate penological reason: to protect prison
officials and Lewis from harm after Lewis stopped complying and vowed to fight any

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No. 17‐1285 Page 4
officer who tried to search him. On appeal Lewis replies that he filed an inmate complaint
a week earlier about Anderson denying Lewis a smock and mat. He argues that a jury
could rationally infer that Anderson ordered the search in retaliation for that grievance.
He is incorrect. Lewis has not supplied evidence that Anderson even knew about the
grievance. And anyway “timing alone is insufficient to establish a genuine issue of
material fact to support a retaliation claim.” Kampmier v. Emeritus Corp., 472 F.3d 930, 939
(7th Cir. 2007). Thus no jury could find that in ordering the search Anderson violated the
Eighth Amendment.
We also conclude that Anderson could not be liable for the manner in which others
conducted the search. To survive summary judgment on that type of Eighth Amendment
claim, Lewis must supply evidence that Anderson ordered others to search him in a
“harassing manner intended to humiliate and cause psychological pain.” Mays v.
Springborn, 575 F.3d 643, 649 (7th Cir. 2009). He has not. Anderson ordered that Lewis be
taken to the most private part of the segregation unit, the shower area. The video record
shows that he faced a wall and was surrounded by officers who substantially blocked the
view of others, including a nearby inmate. Although Lewis swears that Stephens
penetrated his anus, as we said earlier, Lewis has furnished no evidence that Anderson
ordered this. Finally, the search lasted only five minutes, and at the end Lewis had a towel
wrapped around his lower body. Under these circumstance, no rational jury could
conclude that Anderson ordered that the search humiliate Lewis.
Lewis last contends that the judge abused his discretion in refusing to recruit
counsel for him before his trial against Stephens, but this argument fails. Lewis notes that
in evaluating his request, the judge never addressed his “explanation that another inmate
helped him draft the very documents that the court looked to for evidence of his capacity
to litigate.” Robinson v. Scrogum, 876 F.3d 923, 925 (7th Cir. 2017) (citing Pruitt v. Mote, 503
F.3d 647, 655 (7th Cir. 2007) (en banc)). But even if the judge should have addressed this
point, for us to reverse Lewis must show that he was prejudiced, see Pruitt, 503 F.3d at
659. He cannot because he has not provided us with a trial transcript. Lewis knew that he
needed this transcript, see Federal Rule of Appellate Procedure 10(b)(2), for he asked us
to order the district court to have the court reporter prepare it. We denied his motion,
explaining that he must first ask the district court to order the transcript before coming
to us. See FED. R. A PP. P. 10(b)(1)(A)(iii). He ignored our instruction. Therefore we cannot
meaningfully review whether he was prejudiced at trial without counsel. See Tapley v.
Chambers, 840 F.3d 370, 375 (7th Cir. 2016).
AFFIRMED.

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