Jordan Whitaker v. Michael Dempsey

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1086
JORDAN WHITAKER ,
Plaintiff-Appellant,
v.
M ICHAEL DEMPSEY , et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:18-cv-50373 — Philip G. Reinhard, Judge.
____________________
A RGUED J ANUARY 17, 2025 — DECIDED J ULY 16, 2025
____________________
Before S YKES , Chief Judge, and HAMILTON and PRYOR ,
Circuit Judges.
HAMILTON , Circuit Judge. Plaintiff Jordan Whitaker is a
prisoner at Dixon Correctional Center with a long history of
mental illness and self-harm. This case involves two incidents
in August 2018 when Whitaker injured himself by reopening
wounds on the inside of his elbow. He claims that Officer
Michael Dempsey and Officer Michael Castenado violated his
Eighth Amendment rights by acting with deliberate

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2 No. 23-1086
indifference to the risk that he would injure himself. He also
alleges that a single burst of pepper spray delivered by
Lieutenant Brandt Boel constituted cruel and unusual
punishment. In the district court, the defendants moved for
summary judgment, arguing that no reasonable jury could
find that Officer Dempsey or Lieutenant Boel violated
Whitaker’s Eighth Amendment rights or that Officer
Castenado caused Whitaker to suffer a compensable injury.
To oppose defendants’ motion for summary judgment,
Whitaker relied exclusively on his deposition testimony,
which contradicts itself and his own prior statements, and
which diverges substantially from Officer Dempsey’s and
Lieutenant Boel’s affidavits. After acknowledging that “he
said, he said” disputes are ordinarily reserved for the fact-
finder at trial, the district court granted summary judgment
to the defendants on all counts. The court explained that this
was the “rare” case where the “plaintiff’s version of what hap-
pened is so flawed and so self-contradictory” that summary
judgment is appropriate. Whitaker v. Dempsey, No. 18 C 50373,
2022 WL 20758240, at *5 (N.D. Ill. Dec. 12, 2022). The court
also held that Whitaker had not suffered a cognizable injury
at the hands of Officer Castenado. We affirm.
Parties and witnesses often contradict themselves or tes-
tify ambiguously. In the vast majority of such cases, the con-
tradictions and other reasons to question credibility do not
justify depriving “the trier of fact of the traditional oppor-
tunity to determine which point in time and with which
words the witness … was stating the truth.” Bank of Illinois v.
Allied Signal Safety Restraint Systems, 75 F.3d 1162, 1170 (7th
Cir. 1996), quoting Tippens v. Celotex Corp., 805 F.2d 949, 953–
54 (11th Cir. 1986). In rare cases, however, and we agree with

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No. 23-1086 3
the district court that this is such a case, internal contradic-
tions on critical facts can become so extreme that a party’s po-
sition may be deemed incredible beyond reasonable dispute.
E.g., In re Chavin, 150 F.3d 726, 728 (7th Cir. 1998).
I. Factual and Procedural Background
During his incarceration at Dixon Correctional Center, Jor-
dan Whitaker has been diagnosed with multiple mental ill-
nesses, including antisocial personality disorder, bipolar dis-
order, and post-traumatic stress disorder. At all times relevant
to this case, Whitaker was housed in the crisis watch area at
Dixon. Prisoners on crisis watch were clothed in smocks and
deprived of sharp objects that they could use to injure them-
selves. Prison policy required correctional officers who
learned that a prisoner was at risk of injuring himself to notify
a superior officer. Prison policy also prohibited correctional
officers from opening the cell door of a prisoner on crisis
watch without a supervisor present, regardless of what they
observed the prisoner to be doing.
Whitaker’s claims involve two incidents, one on August 9,
2018 and one a week later, on August 16, 2018. On August 2nd,
one week before the first disputed incident, Whitaker re-
ceived medical treatment for cutting himself on the inside of
his right elbow. Because he refused to cooperate with prison
medical staff, he had to be taken to a hospital emergency room
to have the laceration sutured. The next day, Whitaker was
placed on a “crisis watch,” with officers checking on him
every ten minutes. On August 8th, his crisis-watch interval
was changed to every fifteen minutes. The first incident giv-
ing rise to Whitaker’s deliberate indifference claim against Of-
ficer Dempsey and his wanton and unnecessary force claim
against Lieutenant Boel occurred the next day.

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4 No. 23-1086
A. The August 9th Incident
On August 9th, Officer Dempsey worked the evening shift
in the crisis watch wing. Dempsey approached Whitaker’s cell
around 9:00 p.m. The parties disagree about what happened
next.
According to Whitaker’s deposition, he asked to speak
with a crisis counselor, but Dempsey refused his request us-
ing coarse language. He claims he then showed Dempsey a
sharp metal object, between two and a half and three inches
in length, and told Dempsey that he was going to cut his arm.
Dempsey responded that he “did not care,” after which Whit-
aker began cutting the inside of his right elbow with the sharp
object. Whitaker testified that Dempsey stood in front of his
cell watching him cut himself for about five minutes before
calling Lieutenant Boel, the supervisor on duty, for help.
Dempsey’s affidavit lays out a different chain of events.
He said that he observed Whitaker “on the floor of his cell
with blood in his immediate area” and believed him to be in-
juring himself. Dempsey denied that Whitaker requested to
speak with a crisis counselor or that he held up a sharp object.
His affidavit further asserted that he directed Whitaker to
stop injuring himself, but Whitaker did not respond or com-
ply with that order. Dempsey then called Boel for assistance.
Pursuant to prison protocol, he waited for Boel to arrive be-
fore entering Whitaker’s cell.
When Boel and other correctional officers arrived at the
cell, Whitaker was lying on the floor with a wound on his arm.
There was blood on the walls and floor of the cell. After Whit-
aker did not respond to commands to move to the cuffing
port, the officers entered the cell and placed him in handcuffs

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No. 23-1086 5
with his hands in front, pursuant to prison policy. The officers
then waited for nursing staff to arrive. Here, again, Whitaker’s
testimony diverged from the affidavits of the correctional of-
ficers.
Boel’s affidavit asserted that Whitaker became “respon-
sive and combative” when nursing staff arrived and that he
refused to let them treat him. He began “waving his arm
around,” which prevented nursing staff from dressing his
wound and resulted in his blood landing on surrounding staff
members. Boel ordered Whitaker to stop flailing his arm
around so that nursing staff could treat him and to prevent
more blood from landing on staff members. Boel says he then
warned Whitaker that he would use pepper spray if Whitaker
failed to comply with his orders to stop moving. Because
Whitaker continued to move his arm and fling blood on staff
members, Boel delivered a single burst of pepper spray at
Whitaker’s face, after which Whitaker calmed down and be-
came compliant.
Whitaker admits that blood was spilled on correctional
staff, including Boel, but he denies that he ever flailed his arm
or intended to get blood on staff members. He further denies
that he ever became uncooperative, refused medical treat-
ment, or pulled away from medical personnel. He also denies
that Boel ordered him to stop moving or warned him about
the pepper spray burst.
Although the parties dispute when Whitaker became com-
pliant, all agree that a nurse was eventually able to treat his
wound. After his wound had been dressed and approxi-
mately thirty minutes after being pepper-sprayed, Whitaker
was taken to an eye-wash station. Because the nurses were

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6 No. 23-1086
unable to stop the bleeding on Whitaker’s arm, he was taken
to the hospital, where he received sutures.
Whitaker also testified in his deposition that at some point
before he was removed from his cell, he managed to hide the
metal object that he had used to cut himself in a vent in the
wall. Following the incident, prison staff searched plaintiff’s
cell for sharp objects and found none.
B. The August 16th Incident
The second incident occurred on August 16th, a week after
the first. Whitaker testified that he showed the same sharp ob-
ject that he had used to injure himself on August 9th to Officer
Castenado, the officer on duty on the 16th. He then asked to
speak to “psych.” He testified that Castenado responded that
he did not care and stood there while Whitaker cut his right
arm. He further testified that Castenado waited seven
minutes before calling his supervisor. After Castenado’s su-
pervisor arrived, prison staff opened Whitaker’s cell and
placed him in handcuffs, and a nurse attended to his cut. Later
that day, around 7:30 p.m., a nurse cleaned the cut and noted
no active bleeding at that time. Whitaker did not allow her to
dress the wound.
C. Procedural Background
Whitaker filed this suit pro se against Officer Dempsey,
Officer Castenado, and Lieutenant Boel. After the district
court recruited counsel for him, Whitaker filed an amended
complaint alleging three Eighth Amendment violations. He
claimed that Officers Dempsey and Castenado had been de-
liberately indifferent to the serious risk that he would injure
himself and that Lieutenant Boel’s use of pepper spray consti-
tuted unnecessary and wanton force.

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No. 23-1086 7
After discovery, the district court granted the defendants’
motion for summary judgment. The court concluded first that
Whitaker failed to offer evidence that he suffered a cognizable
injury on August 16th. The court then concluded that no rea-
sonable jury could find that Dempsey or Boel violated Whita-
ker’s Eighth Amendment rights on August 9th.
II. Analysis
We review de novo the district court’s grant of summary
judgment for the defendants, interpreting all facts and draw-
ing all reasonable inferences in favor of Whitaker, the non-
moving party. Sinn v. Lemmon, 911 F.3d 412, 419 (7th Cir.
2018). We must emphasize here that Whitaker is entitled only
to reasonable inferences in his favor. Summary judgment is ap-
propriate only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue is
“genuine” only if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The “mere exist-
ence of a scintilla of evidence in support of the plaintiff’s po-
sition” will not suffice. Id. at 252.
A. Deliberate Indifference Claim Against Dempsey
Whitaker claims that Dempsey was deliberately indiffer-
ent to the serious risk that he would harm himself on August
9th. Prison officials violate the Eighth Amendment’s prohibi-
tion on cruel and unusual punishment when they act or fail
to act with “deliberate indifference to serious medical needs
of prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). To suc-
ceed on a claim of deliberate indifference to a serious medical
need, a plaintiff must show that (1) he faced a substantial risk

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8 No. 23-1086
of harm due to an objectively serious medical condition and
that (2) a prison official knew of and disregarded the risk.
Palmer v. Franz, 928 F.3d 560, 563–64 (7th Cir. 2019). A genuine
risk of suicide or self-harm constitutes an objectively serious
medical condition. Lisle v. Welborn, 933 F.3d 705, 716 (7th Cir.
2019) (suicide); Miranda v. County of Lake, 900 F.3d 335, 349
(7th Cir. 2018) (self-harm).
Whitaker’s deposition testimony regarding the August 9th
incident conflicts with Officer Dempsey’s affidavit and creates
two disputed issues of fact material to Whitaker’s deliberate
indifference claim against Dempsey. First, the parties dispute
whether Dempsey saw Whitaker hold up a sharp metal object
and threaten to injure himself before cutting his arm. They
also dispute whether Dempsey waited five minutes after see-
ing Whitaker begin to cut himself with the sharp object before
calling Lieutenant Boel. If a jury resolved both factual dis-
putes in Whitaker’s favor, it could find that Dempsey was
aware that Whitaker faced a serious risk of self-harm and that
he was deliberately indifferent to that risk. See Lewis v.
McLean, 864 F.3d 556, 563–64 (7th Cir. 2017) (a brief delay in
treatment that exacerbates a prisoner’s injury or unnecessarily
prolongs his pain may constitute deliberate indifference); cf.
Estate of Perry v. Wenzel, 872 F.3d 439, 458 (7th Cir. 2017) (jury
could find that nurse acted objectively unreasonably by wait-
ing three minutes after concluding that bleeding detainee was
“medically unfit to be booked” before calling an ambulance).
At first glance, the factual issues about the sharp object and
the five-minute delay appear to be classic “he said, he said”
disputes. When two witnesses disagree, deciding which per-
son to believe requires assessing credibility and weighing
conflicting evidence. It is axiomatic that district courts

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No. 23-1086 9
presiding over summary judgment proceedings may not
weigh conflicting evidence or make credibility determina-
tions, “both of which are the province of the jury.” Omnicare,
Inc. v. UnitedHealth Group, Inc., 629 F.3d 697, 704–05 (7th Cir.
2011). We have reversed district courts time and again for re-
lying on one party’s version of disputed facts to grant sum-
mary judgment. See, e.g., Taylor v. City of Milford, 10 F.4th 800,
804–05, 807 (7th Cir. 2021); Gupta v. Melloh, 19 F.4th 990, 996,
1002 (7th Cir. 2021); McCottrell v. White, 933 F.3d 651, 670–71
(7th Cir. 2019); Miller v. Gonzalez, 761 F.3d 822, 827–28, 830 (7th
Cir. 2014); Lewis v. Downey, 581 F.3d 467, 476–78 (7th Cir.
2009); Payne v. Pauley, 337 F.3d 767, 773, 780–81 (7th Cir. 2003)
(also laying to rest “the misconception that evidence pre-
sented in a ‘self-serving’ affidavit is never sufficient to thwart
a summary judgment motion”).
The law recognizes, however, a narrow exception to that
rule in extreme cases, consistent with the narrow scope of
summary judgment motions. “The principal function of sum-
mary judgment is to prevent unnecessary trials by screening
out factually unsupported claims.” James v. Hale, 959 F.3d 307,
315 (7th Cir. 2020). A trial is necessary if “there are any genu-
ine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in fa-
vor of either party.” Anderson, 477 U.S. at 250. The key words
in that statement are “genuine” and “reasonably.” It is not
enough for the non-moving party to raise a “metaphysical
doubt as to the material facts.” Matsushita Electric Industrial
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). There “must
be evidence on which the jury could reasonably find” for the
non-moving party. Anderson, 477 U.S. at 252.

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10 No. 23-1086
The requirement that factual disputes be genuine to defeat
summary judgment has heightened importance where a party
relies exclusively on his own testimony to oppose summary
judgment. In such a case, we cannot determine whether “gen-
uine” factual issues exist without assessing whether a reason-
able jury could rely on the party’s sworn statements. See
James, 959 F.3d at 315 (judges may “scrutinize the substance
of an affidavit offered in response to a summary-judgment
motion to determine whether a reasonable jury could rely on
the factual statements it contains”). If a party’s sworn state-
ments are “utterly implausible in light of all relevant circum-
stances,” a court may reject them without a trial. In re Chavin,
150 F.3d 726, 728 (7th Cir. 1998) (affirming summary judg-
ment denying bankruptcy discharge where debtor had de-
frauded creditors; despite debtor’s sworn denial of fraudulent
intent, no reasonable person could believe his stated reasons
for his false representations and omissions).
Where that high standard is met, trial would serve no pur-
pose because “no reasonable person” could resolve the mate-
rial factual disputes in the non-movant’s favor. Seshadri v.
Kasraian, 130 F.3d 798, 802 (7th Cir. 1997) (affirming summary
judgment in copyright authorship dispute; plaintiff admitted
defendant’s joint authorship, and plaintiff’s “blind affidavit”
to the contrary that failed to explain inconsistencies with his
prior statements did not present genuine issue of material
fact); see also, e.g., Reich v. City of Elizabethtown, 945 F.3d 968,
980–81 (6th Cir. 2019) (affirming summary judgment when no
reasonable fact-finder could credit plaintiff’s allegation be-
cause her deposition testimony contradicted itself, medical
evidence, and sworn assertions of defendant-officers and
other eyewitnesses); Chenari v. George Washington Univ., 847
F.3d 740, 747–48 (D.C. Cir. 2017) (recognizing “well-accepted

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No. 23-1086 11
rule” that courts may disregard incredible testimony but
holding that district court erred by setting aside plaintiff’s tes-
timony); Pina v. Children’s Place, 740 F.3d 785, 798–99 & n.15
(1st Cir. 2014) (finding that no reasonable jury could credit
plaintiff’s allegation where it contradicted her amended com-
plaint, deposition testimony, and other evidence); Rojas v. Ro-
man Catholic Diocese of Rochester, 660 F.3d 98, 105 (2d Cir. 2011)
(affirming summary judgment where district court “scrupu-
lously detailed plain inconsistencies between the facts ad-
vanced by Rojas in opposition to summary judgment and
those alleged in her original and amended complaints, in
sworn interrogatory responses, in portions of her deposition
testimony, in her complaints before the EEOC, and in prior
sworn testimony”).
The utter-implausibility exception to the general prohibi-
tion on resolving factual disputes at summary judgment is re-
served for the “exceptional” and “extreme” case. Chavin, 150
F.3d at 728. There is no foolproof way to determine when a
case qualifies as exceptional, but “sham-affidavit” cases and
cases applying the utter-implausibility exception in the Sev-
enth Circuit and elsewhere are a good place to start.1 As we
have cautioned in the sham-affidavit context, there is a differ-
ence between “discrepancies which create transparent shams
and discrepancies which create an issue of credibility or go to
the weight of the evidence.” Bank of Illinois, 75 F.3d at 1169–
70, quoting Tippens, 805 F.2d at 953; see also Castro v. DeVry
1 The sham-affidavit rule authorizes a judge to disregard a “sham”
affidavit—i.e., an affidavit that tries to create a factual issue capable of de-
feating summary judgment by contradicting the affiant’s prior sworn
statements, at least without explanation or justification. See James, 959 F.3d
at 316–17.

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12 No. 23-1086
University, Inc., 786 F.3d 559, 571 (7th Cir. 2015) (sham affida-
vit principle must be applied with “great care;” “[f]ew honest
witnesses testify at any length without at least occasional
lapses of memory or needs for correction or clarification”).
In the overwhelming majority of cases, variations and con-
tradictions in a witness’s statements over time and over the
course of litigation create only “an issue of credibility as to
which part of the testimony should be given the greatest
weight if credited at all.” Bank of Illinois, 75 F.3d at 1170, quot-
ing Tippens, 805 F.2d at 954. But in rare cases, “a party’s incon-
sistent and contradictory statements transcend credibility
concerns and go to the heart of whether the party has raised
genuine issues of material fact to be decided by a jury.” Rojas,
660 F.3d at 106. This is one such case.
The only evidence supporting Whitaker’s deliberate
indifference claim against Officer Dempsey is his own
testimony. We assess that testimony to determine whether a
reasonable jury could credit his version of the disputed facts
that could support a verdict in his favor. Our review leads us
to the same conclusion the district court reached. Whitaker’s
account of the August 9th incident is “so flawed and so self-
contradictory” that no reasonable jury could resolve in his
favor the factual disputes about the sharp metal object and the
five-minute gap. Whitaker, 2022 WL 20758240, at *5.
1. The Sharp Object
The most significant problem with Whitaker’s account of
the August 9th incident is his inconsistent descriptions of the
object that he purportedly used to injure himself. First, on Au-
gust 9th, Whitaker told a prison nurse that he cut himself with
his fingernail. Later that evening, he told hospital staff that he

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No. 23-1086 13
used a pen. Next, in his grievances and pro se complaint,
Whitaker identified an unspecified sharp metal object as the
cutting instrument. Then, in his amended complaint, he re-
ferred to two pieces of sharp metal of different sizes and
shapes, one used on August 9th and the other on August 16th.
Finally, in his deposition, Whitaker testified that he used the
same piece of sharp metal during both incidents, and he
claimed for the first time that he found and hid the sharp
metal object in a wall vent in his crisis cell.
We cannot see how any reasonable jury could reconcile
these different statements. Nearly every time that Whitaker
has recounted the events of August 9th, his description of the
cutting instrument has changed. Taken alone, the sheer
variety of Whitaker’s descriptions of the cutting instrument
poses a serious problem for his claim. Although Whitaker’s
pre-litigation statements are not binding, we find it striking
that he could not offer a consistent description of the cutting
instrument even in the hours immediately following the
incident. The conflict between Whitaker’s description of the
cutting instrument in his amended complaint, filed with the
help of counsel, and his sworn testimony is even more
damaging. See Moran v. Calumet City, 54 F.4th 483, 494 (7th
Cir. 2022) (“An allegation in a complaint is a judicial
admission that can be used against the plaintiff.”); United
States v. Kasuboski, 834 F.2d 1345, 1350 (7th Cir. 1987)
(“Affidavits and depositions entered in opposition to
summary judgment that attempt to establish issues of fact
cannot refute default admissions.”).
Whitaker has not even acknowledged, let alone provided
an explanation for, his inconsistent descriptions of the cutting
instrument. As we have explained in the sham-affidavit

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14 No. 23-1086
context, a factual dispute is much more likely to be a sham
when “a witness has contradicted directly his or her own ear-
lier statements without explaining adequately the contradic-
tion or without attempting to resolve the disparity.” Bank of
Illinois, 75 F.3d at 1168. Whitaker has also never expressed un-
certainty about the object that he used to injure himself, elim-
inating the possibility that he was confused or demonstrably
mistaken when he made his earlier statements. Cf. James, 959
F.3d at 317 (an affidavit contradicting prior testimony is not
considered a sham where initial testimony was ambiguous,
confusing, or demonstrably mistaken). We cannot think of a
plausible explanation for how a person could honestly mis-
take a cutting instrument for his own fingernail, a pen, two
sharp objects of different sizes and shapes, and one sharp ob-
ject discovered in a vent.
The unexplained and irreconcilable contradictions in
Whitaker’s descriptions of the cutting instrument show
fabrication, not momentary confusion or ordinary lapses and
vagaries of memory. Courts are not compelled to treat as true
an assertion in a party’s deposition or affidavit that is plainly
false when considered alongside the rest of the record. See
Chavin, 150 F.3d at 728 (affirming summary judgment despite
debtor’s sworn denial of fraudulent intent); Jeffreys v. City of
New York, 426 F.3d 549, 552, 555 & n.2 (2d Cir. 2005)
(disregarding plaintiff’s testimony that police officers pushed
him out the window in part because he failed to explain three
pre-litigation confessions saying he had jumped out the
window); Seshadri, 130 F.3d at 804 (disregarding plaintiff’s
testimony because it contradicted “numerous and
unequivocal” pre-litigation admissions and his attempt to
explain his prior inconsistent statements was both
“incredible” and “incomplete”). “Otherwise, the very

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No. 23-1086 15
purpose of the summary judgment motion—to weed out
unfounded claims, specious denials, and sham defenses—
would be severely undercut.” Babrocky v. Jewel Food Co., 773
F.2d 857, 861 (7th Cir. 1985).
Focusing on only Whitaker’s deposition testimony adds
internal contradiction to the mix. In particular, Whitaker tes-
tified that before he was taken to the hospital, he hid the sharp
object in a vent on the wall. Even by Whitaker’s own account,
we cannot identify any moment when he could have hidden
the sharp object. According to Whitaker, he spent the entire
August 9th incident sitting or lying on the floor—either be-
cause he was cooperating with orders given by correctional
staff or because he was bleeding and unresponsive from blood
loss. Between being handcuffed, pepper-sprayed, treated for
his wound, taken to the eye–wash station, and then trans-
ferred to the hospital, there would have been no time when
Whitaker could have moved to the cell wall and hidden a
sharp object without being seen. The hall-facing walls of crisis
cells have massive transparent windows to facilitate observa-
tion, and Whitaker was surrounded by medical and correc-
tional staff for the majority of the incident. None of them re-
ported seeing him move around except to flail his arms when
nurses initially approached him.
Despite these unexplained contradictions in Whitaker’s
story, perhaps he might offer some corroborating evidence to
support the version that he discovered and hid a sharp object
in a vent in his cell? See Hubbard v. Rewerts, 98 F.4th 736, 749
(6th Cir. 2024) (when a witness changes his story multiple
times, “a reasonable juror would likely need ‘corroborating
evidence’ to discern which version of the witness’s story is
true” (quoting Davis v. Bradshaw, 900 F.3d 315, 330 (6th Cir.

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16 No. 23-1086
2018))). But there is no physical evidence that Whitaker had
access to a sharp object in his crisis cell. Prisoners housed in
crisis cells are dressed in smocks and denied access to any
sharp objects. While we assume mistakes can happen, correc-
tional officers did not find any sharp object when they
searched Whitaker’s cell after he was taken to the hospital. Cf.
Jeffreys, 426 F.3d at 552–53, 555 (absence of physical evidence
supporting plaintiff’s inconsistent testimony supported sum-
mary judgment).
Whitaker attempts to explain away the lack of evidence of
a cutting instrument by suggesting that prison staff never con-
ducted a search or that any search was “perfunctory and in-
adequate.” But Whitaker lacks personal knowledge of
whether prison officers conducted a thorough search of his
cell, and he has not presented any evidence contradicting the
sworn statement of Officer Dempsey, who does have such
knowledge. Whitaker is entitled to all reasonable inferences
in his favor, but mere speculation or conjecture cannot defeat
summary judgment. FKFJ, Inc. v. Village of Worth, 11 F.4th 574,
585 (7th Cir. 2021).
Further, if Whitaker showed Dempsey a sharp object be-
fore he began to cut himself, common sense dictates that some
evidence of that object would be in the record—if only be-
cause a prisoner with a sharp object and an apparent willing-
ness to use it creates an obvious and serious security risk.
Whitaker testified that Dempsey had a clear view of the sharp
object in his hand. If so, it is highly unlikely that Dempsey
would have omitted that detail when relaying the situation to
Boel. Prison officers consider sharp metal objects to be “excep-
tionally dangerous contraband.” The presence of a sharp ob-
ject in Whitaker’s cell would have endangered all the

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No. 23-1086 17
correctional and medical staff who needed to be in close quar-
ters with Whitaker to secure his arms and attend to his
wound. That is especially true in light of Whitaker’s known
history of failing to comply with orders and attacking guards.
2. The Five-Minute Gap
The impossibility of reconciling Whitaker’s statements
before and during the litigation about the metal object also
sinks his testimony that Dempsey waited five minutes after
seeing him cut his arm before calling Boel. Standing alone,
Whitaker’s testimony about the delay is vague. He has not
explained what Dempsey was doing during the alleged five-
minute gap; presumably, Dempsey was just standing in front
of Whitaker’s cell silently the entire time. As the district court
explained, it seems “odd, though not inconceivable, that a
guard would just stand there, hovering, doing nothing.”
Whitaker, 2022 WL 20758240, at *5; cf. Jeffreys, 426 F.3d at 552,
555 (district court properly granted summary judgment
where, among other inconsistencies, plaintiff could not
identify or describe officers who allegedly attacked him).
In addition, Whitaker’s testimony has vacillated between
his original allegation in his pro se complaint that Dempsey
called for help immediately after he observed Whitaker bleed-
ing and his later allegation in his amended complaint that
Dempsey waited five minutes after seeing Whitaker injure
himself before calling Boel. Although his pro se complaint has
since been superseded, its allegations are still evidentiary ad-
missions that Dempsey could offer at trial to attack Whitaker’s
credibility. See Davis v. Freels, 583 F.2d 337, 342 (7th Cir. 1978);
accord, Seshadri, 130 F.3d at 801. The fact that Whitaker testi-
fied to both versions of the story within five minutes in his
deposition weighs sharply against his credibility. Like the

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18 No. 23-1086
district court, however, we think these observations alone
would not support summary judgment, particularly in light
of Whitaker’s speech impediment and the ambiguity of his
testimony on this point.
The more serious problem is that we cannot disentangle
the question whether Whitaker had a metal object from
whether Dempsey waited five minutes after seeing Whitaker
injure himself before calling his supervisor. It is possible to
imagine a scenario with a five-minute delay but no sharp ob-
ject, but no evidence in the record supports that scenario.
Whitaker testified that Dempsey watched him cut himself
with the sharp metal object for five minutes before calling
Boel. Because no reasonable jury could credit Whitaker’s tes-
timony that he waved a sharp metal object or cut himself with
a sharp metal object, neither could it conclude that Dempsey
waited five minutes after seeing Whitaker cut himself with
that sharp metal object to call Boel. Mere speculation about a
hypothetical scenario to which Whitaker did not testify can-
not defeat summary judgment. See FKFJ, 11 F.4th at 585.
In short, the factual disputes about the sharp object and
the five-minute gap are material but not genuine. A jury, con-
sidering the record as a whole, could conclude only that Whit-
aker’s testimony about the sharp object and the five-minute
gap was fabricated. Without those allegations, a jury could
not find that Dempsey was deliberately indifferent to the risk
that Whitaker would harm himself. By Dempsey’s account, he
called Boel as soon as he observed Whitaker lying on the
ground injured. His prompt call to Boel, pursuant to prison
policy, negates Whitaker’s assertion that “he acted with the
reckless or malicious intent required to sustain a deliberate-
indifference claim.” Earl v. Racine County Jail, 718 F.3d 689, 692

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No. 23-1086 19
(7th Cir. 2013) (no deliberate indifference where officer
promptly called nurse after being informed that plaintiff was
having an allergic reaction); see Rasho v. Jeffreys, 22 F.4th 703,
710 (7th Cir. 2022) (“Evidence that the defendant responded
reasonably to the risk, even if he was ultimately unsuccessful
in preventing the harm, negates an assertion of deliberate in-
difference.”). We therefore affirm the district court’s grant of
summary judgment to Officer Dempsey.
We emphasize once more that this is an exceptional case,
not an invitation for defendants to move for summary judg-
ment or for district courts to grant summary judgment based
on ordinary conflicts, ambiguities, and inconsistencies in a
plaintiff’s testimony. Like the sham-affidavit rule, the utter-
implausibility exception to the ordinary prohibition on mak-
ing credibility decisions at summary judgment “ought to be
applied with great caution.” Bank of Illinois, 75 F.3d at 1169.
Common failures of memory or mundane instances of confu-
sion or ambiguity will not justify summary judgment. Id. at
1169–70.
B. Wanton and Unnecessary Force Claim Against Boel
Whitaker also argues that the single burst of pepper spray
that Lieutenant Boel delivered to his face constituted wanton
and unnecessary force in violation of the Eighth Amendment.
Both sides agree that Whitaker’s wrists were in handcuffs at
the time of the pepper spray, but they dispute whether Whit-
aker was cooperative or combative. Whitaker testified that he
complied with all orders and cooperated with nurses’ efforts
to dress his wound. Boel’s affidavit asserts that when medical
staff entered the cell, Whitaker became combative and refused
treatment. It further asserts that Whitaker waved his arms,
preventing the nurses from dressing his wound and causing

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20 No. 23-1086
blood to splash on other people in the cell. Whitaker admits
that blood splashed on Boel and other officers. He maintains
that he did not deliberately spray blood, fling his arms, or pre-
vent nurses from treating his wound.
The district court was also right to grant summary judg-
ment to Boel on this claim. The Eighth Amendment protects
prisoners from physical force that amounts to the “unneces-
sary and wanton infliction of pain.” Whitley v. Albers, 475 U.S.
312, 319 (1986), quoting Ingraham v. Wright, 430 U.S. 651, 670
(1977). “What matters—and what will generally be the deci-
sive factor in cases such as this—is the mindset of the individ-
ual applying the force.” Lewis v. Downey, 581 F.3d 467, 476 (7th
Cir. 2009). A prison officer’s use of force is unnecessary and
wanton if he intends “maliciously and sadistically” to cause
harm to a prisoner. Forrest v. Prine, 620 F.3d 739, 744 (7th Cir.
2010), quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992). Force
used in “a good-faith effort to maintain or restore discipline”
does not violate the Eighth Amendment. Id. (internal quota-
tion marks omitted), quoting Hudson, 503 U.S. at 7.
As in many cases, the record lacks any direct evidence that
Boel sprayed Whitaker with malicious intent. In lieu of direct
evidence, we consider whether circumstantial evidence could
support a reasonable inference of malicious intent. See Smith
v. Kind, 140 F.4th 359, 366 (7th Cir. 2025) (courts assess circum-
stantial evidence of intent in Eighth Amendment cases alleg-
ing wanton and unnecessary force because “direct evidence
of intent rarely exists”); Santiago v. Walls, 599 F.3d 749, 757 (7th
Cir. 2010) (affirming dismissal where officer used mace only
after plaintiff had hit another inmate). We consider several
factors, including “(1) the need for the application of force; (2)
the relationship between the need and the amount of force

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No. 23-1086 21
that was used; (3) the extent of injury inflicted; (4) the extent
of the threat to the safety of staff and inmates, as reasonably
perceived by the responsible officials on the basis of the facts
known to them; and (5) any efforts made to temper the sever-
ity of a forceful response.” McCottrell v. White, 933 F.3d 651,
663 (7th Cir. 2019), citing Whitley, 475 U.S. at 321.
On this record, no reasonable jury could find that Boel ma-
liciously and sadistically inflicted pain on Whitaker. It is un-
likely that a reasonable jury could credit Whitaker’s testi-
mony that he was docile and compliant at the time of the pep-
per spray burst. Shortly before being pepper-sprayed, Whita-
ker had failed to comply with multiple direct orders, at least
one of which Boel had delivered personally. Whitaker admit-
ted that his blood splashed on multiple staff members, includ-
ing Boel. He has not offered any explanation for how his
blood splashed on staff members if he was lying on the
ground and complying with orders given by medical and cor-
rectional staff. It’s also undisputed that after the pepper spray
burst, no more blood was spilled on the officers, and nurses
were able to attend to the wound on Whitaker’s right arm.
Those undisputed facts strongly suggest that Whitaker’s con-
duct changed after the spray, consistent with Boel’s sworn as-
sertions.
Boel’s description of Whitaker when the nurses arrived is
also corroborated by Dixon’s internal investigation, Whita-
ker’s “Offender Health Status Transfer Summary,” and Whit-
aker’s disciplinary card, all of which characterized Whitaker
as uncooperative during the August 9th incident. Dixon’s in-
ternal investigation report included the statements of three of-
ficers who were present at the time of the pepper spray burst.
They all reported that Whitaker flailed his arms in close

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22 No. 23-1086
proximity to correctional and medical officers. Whitaker him-
self said in his interview for the incident investigation that
Boel pepper-sprayed him because Boel claimed that he was
attempting to fling blood on staff.
The undisputed facts and record evidence thus strongly
support Boel’s story that Whitaker flailed his arms in close
enough proximity to prison officers to get blood on them and
to prevent nurses from treating his wound. However, we are
wary of relying on the utter-implausibility exception to re-
solve Whitaker’s claim against Boel. Given the strength of
Boel’s evidence relative to Whitaker’s, there may be a tempta-
tion to extend the deference owed to correctional officers un-
der substantive Eighth Amendment law to defer improperly
to the officers’ testimony when deciding a summary judg-
ment motion. See McCottrell, 933 F.3d at 671 (“deference to
prison officials” does not justify disregarding factual dis-
putes; vacating grant of summary judgment to correctional
officers alleged to have used wanton and unnecessary force
against prisoners); Miller v. Gonzalez, 761 F.3d 822, 827 (7th
Cir. 2014) (vacating grant of summary judgment to police of-
ficer alleged to have used excessive force: “Sometimes the
heftiness of the evidence on one side, or the credulity of a par-
ticular litigant makes our task of suspending factual and cred-
ibility determinations difficult, but whatever the difficulty, we
must stick to the task on summary judgment.”). In the end,
though, we need not rely on the internal contradictions in
Whitaker’s testimony to resolve his claim against Boel. Even
if we assume, as Whitaker claimed in response to defendants’
motion for summary judgment, that Whitaker himself in-
tended to comply with officers’ orders, he has presented insuf-
ficient evidence that Boel acted with a malicious and sadistic
state of mind.

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No. 23-1086 23
Whether Whitaker was unable or unwilling to cooperate
with nurses’ efforts to address his injury, it remains undis-
puted that he was splattering blood on Boel and other staff
members. So even if we assumed his intent was benign, that
would not change the significance of that key fact. Assuming
that he was unable to cooperate—and no evidence suggests
he was—Whitaker has not provided any evidence that Boel
could or should have appreciated that he was “unable, as op-
posed to unwilling, to comply.” Rice ex rel. Rice v. Correctional
Medical Services, 675 F.3d 650, 668 (7th Cir. 2012), abrogated
on other grounds by Kingsley v. Hendrickson, 576 U.S. 389
(2015). Faced with a bleeding prisoner who had a long history
of noncompliance and aggression toward staff, Boel reasona-
bly perceived a threat to the safety of both prison officers and
Whitaker himself. Boel had sound reasons to act quickly to
protect himself and other staff members from bloodborne dis-
eases and to restore order so that Whitaker could be treated.
Having reasonably perceived a need for force, Boel’s sin-
gle, short burst of pepper spray was also proportional to the
gravity of the threat. See Smith, 140 F.4th at 368 (proportion-
ality between need for force and amount of force used is rele-
vant in wanton and unnecessary force inquiry). In general,
many prisoners “may experience pepper spray as a relatively
minor use of force.” Id. at 369. In this situation, pepper spray
was less intrusive than, and likely preferable to, a physical
struggle to control Whitaker’s bleeding. See Padula v.
Leimbach, 656 F.3d 595, 603 (7th Cir. 2011) (“pepper spray is
generally of limited intrusiveness” and “a very reasonable al-
ternative to escalating a physical struggle with an arrestee”
(quoting Vinyard v. Wilson, 311 F.3d 1340, 1348 (11th Cir.
2002))). A physical struggle could have worsened Whitaker’s
injury and increased the risk of bloodborne illnesses or other

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24 No. 23-1086
injuries to staff members. In addition, Boel stopped using
pepper spray as soon as Whitaker no longer posed a threat to
himself or prison staff members. Cf. McCottrell, 933 F.3d at 667
(jury could find wanton and unnecessary force where, accord-
ing to plaintiffs’ account, the need for force had passed before
prison guards fired warning shots that injured plaintiffs).
Finally, the extent of the injury caused to Whitaker and the
effort made to temper the severity of the force weigh against
an inference that Boel acted maliciously. Pepper spray is pain-
ful, but Whitaker was taken to an eye-wash station as soon as
possible, and he suffered only mild irritation in the meantime.
Whitaker has not put forth evidence that he suffered any long-
term pain or injuries from the pepper spray. Whitaker’s min-
imal injuries and the steps taken to ameliorate those injuries
do not support a reasonable inference that Boel acted wan-
tonly.2
2 Our analysis does not rely on Boel’s disputed assertion that he gave
Whitaker an oral warning before spraying him. Whitaker denies that he
received an oral warning. Both the incident report and the interview that
Whitaker gave for the incident investigation corroborate Boel’s affidavit,
but the evidence is not so overwhelming as to justify resolving this dis-
puted fact without a jury. We have cautioned that the use of chemical
agents should generally follow “adequate warning[s].” Lewis v. Downey,
581 F.3d 467, 479 (7th Cir. 2009), quoting Soto v. Dickey, 744 F.2d 1260, 1270
(7th Cir. 1984). However, oral warnings are not constitutionally required
in all circumstances. Id. at 478 (“In a jail or prison setting, it is not hard to
imagine any number of scenarios that would justify the immediate and
unadvertised use of summary force ….”). Given the undisputed evidence
that Whitaker was splattering blood on staff members despite their efforts
to control and treat him, Boel’s single burst of pepper spray did not
amount to wanton and unnecessary force on this record regardless of
whether an oral warning was given.

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No. 23-1086 25
On these undisputed facts, Boel’s use of force was a “rea-
sonable response to the institution’s legitimate security con-
cern” about Whitaker’s failure to comply and disease trans-
mission. Soto v. Dickey, 744 F.2d 1260, 1271 (7th Cir. 1984) (no
wanton and unnecessary force where “chemical agent was
used for failure of the inmate to obey a direct order and the
use of mace was a reasonable response to the institution’s le-
gitimate security concern”). It was also “reasonably neces-
sary,” id. at 1270, to prevent Whitaker from worsening his in-
jury and suffering further blood loss. We affirm the district
court’s grant of summary judgment to Lieutenant Boel.
C. Deliberate Indifference Claim Against Castenado
Finally, we affirm the district court’s grant of summary
judgment to Officer Castenado because the August 16th inci-
dent did not result in Whitaker suffering a cognizable injury.
A genuine risk of suicide or self-harm is an objectively serious
medical condition, so the failure to respond to and mitigate a
meaningful risk of either may amount to deliberate indiffer-
ence. But to “succeed in a § 1983 suit, a plaintiff must ‘estab-
lish not only that a state actor violated his constitutional
rights, but also that the violation caused the plaintiff injury or
damages.’” Gabb v. Wexford Health Sources, Inc., 945 F.3d 1027,
1032 (7th Cir. 2019) (emphasis omitted), quoting Roe v. Elyea,
631 F.3d 843, 864 (7th Cir. 2011). The kind and degree of harm
necessary to recover under § 1983 depend on the constitu-
tional claim at issue. See Doe v. Welborn, 110 F.3d 520, 524 (7th
Cir. 1997). We take each case “on its own facts.” Id. Although
a plaintiff’s injury need not be significant, it “must be more
than trifling.” Williams v. Boles, 841 F.2d 181, 183 (7th Cir. 1988)
(“de minimis non curat lex applies to constitutional torts as well

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26 No. 23-1086
as common law torts”), citing Bart v. Telford, 677 F.2d 622, 625
(7th Cir. 1982).
In Lord v. Beahm, we applied those principles to a pris-
oner’s claim that prison officers were deliberately indifferent
to the risk that he would commit suicide. There, the prisoner
displayed a razor blade and threatened to commit suicide. 952
F.3d 902, 903–04 (7th Cir. 2020). We held that the deliberate
indifference claim failed because the prisoner did not suffer
an injury compensable under section 1983. Id. at 905. The pris-
oner’s wounds were limited to a few minor scratches on his
forearm, which were “quickly and easily treated with a gauze
bandage.” Id. He did not provide any evidence that he suf-
fered another form of injury like psychological harm. Because
the plaintiff’s injuries were, by any measure, “trivial—indeed,
almost nonexistent,” he did not present a triable issue about
whether he experienced a cognizable harm. Id.
Like the plaintiff in Lord, Whitaker has provided evidence
of only trivial physical injuries unaccompanied by any other
kind of harm. His physical injuries from the August 16th inci-
dent consisted of at most a few mild scratches that were
treated with a gauze bandage. Without more, those scratches
do not amount to a cognizable injury. Evidence of psycholog-
ical harm can also support the damages element of § 1983, but
Whitaker has not provided any evidence that he experienced
short-term or enduring psychological harm from the incident.
We need not decide whether a jury could find that Caste-
nado’s conduct rose to the level of deliberate indifference. See
Gabb, 945 F.3d at 1033.
Correctional officers must stay vigilant about the real
threat that self-harm and suicide pose to those incarcerated in
our nation’s jails and prisons. See Lord, 952 F.3d at 905 (noting

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No. 23-1086 27
that suicide in prison was on the rise). In this case, the correc-
tional officers who reported to Whitaker’s crisis cell on Au-
gust 9th complied with their constitutional obligations, and
Whitaker’s threat to injure himself on August 16th produced
at worst a superficial wound that required little medical atten-
tion. But the danger to the next prisoner may be much greater
and even fatal. Correctional officials have a constitutional
duty to respond reasonably to such dangers as they arise and
become known.
AFFIRMED.

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