Dontre Johnson v. DON UHERKA and JARED GRADY

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 19, 2023*
Decided May 22, 2023
Before
DIANE P. WOOD, Circuit Judge
JOHN Z. LEE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-2589
DONTRE JOHNSON,
Plaintiff-Appellant,
v.
DON UHERKA and JARED GRADY,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 18-cv-767-wmc
William M. Conley,
Judge.
O R D E R
Dontre Johnson, a Wisconsin prisoner, challenges the summary judgment ruling
on his claim that two correctional officers strip-searched him in a manner that violated
his Fourth and Eighth Amendment rights. See 42 U.S.C. § 1983. The district court
concluded that the officers were shielded by qualified immunity with respect to the
* 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 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NONPRECEDENTIAL DISPOSITION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. 22-2589 Page 2
Fourth Amendment claim, and that Johnson produced no evidence that the officers
searched him in a way meant to humiliate or harass, in violation of the Eighth
Amendment. We affirm.
Johnson’s claims arise out of an episode in the aftermath of a family visit at
Waupun Correctional Institution in 2018. After the visit, Johnson had been strip-
searched by correctional officer Don Uherka to verify that he did not have contraband.
Waiting to be escorted to his housing unit, Johnson opened a staff-entrance door
bearing a sign “Do Not Enter” and exchanged words with inmate workers in the
adjoining room. Uherka told Johnson not to open the door, but Johnson did so again,
saying he had to use the restroom. In Uherka’s view, Johnson’s conduct necessitated a
second strip search. According to prison policy, another officer needed to be present at
this second search, so Jared Grady stepped in to assist.
Uherka put Johnson into a holding cell and proceeded to supervise a visual
search. Uherka closed the cell door and had Johnson hand over his clothing through an
opening in the door. During the handoff, their hands momentarily touched. Johnson
stated that Uherka threatened him with a conduct report for this contact.
While inspecting Johnson’s mouth, Uherka grew annoyed when Johnson opened
and shut his mouth too quickly. Johnson says that Uherka responded by prolonging the
search, forcing him to lift his testicles for an extended time. Throughout the inspection,
Johnson says that Uherka laughed at him. All the while, Grady stood to the side of
Uherka but did not have a view of Johnson. Uherka found no contraband, so Johnson
dressed, and Uherka escorted him to the restroom and then to a holding cell.
Johnson sued various prison employees, including Uherka and Grady, for
violating his Fourth and Eighth Amendment rights during the second strip search. He
also sued Dr. Kristina DeBlanc, a psychiatrist at the prison, for refusing to see him for
mental-health care following the search. Johnson later amended his complaint to add
references to the Wisconsin constitution and prison administrative code.
The court screened the complaint. 28 U.S.C. § 1915A. It dismissed several
defendants against whom Johnson had failed to state a claim, including DeBlanc. The
court found that Johnson had not offered facts to suggest that DeBlanc acted
unreasonably in refusing to see him or that she even had reason to know that Johnson
was facing an objectively serious condition when he reached out for mental health care.
The court allowed Johnson to proceed on claims against Uherka and Grady, since it

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No. 22-2589 Page 3
would be reasonable to infer that Uherka intended for the second search to humiliate
Johnson and that Grady should have intervened.
After a period of discovery, Uherka and Grady moved for summary judgment on
grounds that they were shielded by qualified immunity. They argued that
constitutional protections for inmates undergoing visual strip searches were not clearly
established until 2020. See Henry v. Hulett, 969 F.3d 769, 774, 783 (7th Cir. 2020) (en
banc). They argued further that Johnson’s Fourth Amendment claim regarding the strip
search failed because they did not conduct any intrusion into his body; the only
physical contact preceded the visual search, when Uherka’s hands grazed Johnson’s
during the transfer of clothing—minimal contact that was not part of the search.
In response to their motion, Johnson submitted a declaration asserting that,
during the search, Uherka “smacked” him on his buttocks while he was undressed and
bent over.
The court granted Uherka’s and Grady’s motion for summary judgment. The
court concluded, first, that the officers were shielded by qualified immunity because in
2018 it was not clearly established that prisoners were entitled to Fourth Amendment
protections in the context of a visual strip search. The court added that the strip search
indisputably constituted a visual inspection only. The court refused to consider
Johnson’s contrary statements in his declaration—statements the court deemed barred
by the “sham affidavit” rule, which prohibits a party from introducing an affidavit that
contradicts prior deposition testimony. James v. Hale, 959 F.3d 307, 316 (7th Cir. 2020).
As for Johnson’s Eighth Amendment claims, the court concluded that the record of
Uherka’s conduct would not allow a jury to find any violation. The court pointed out
that Uherka offered legitimate justification for the second strip search and that his
alleged laughter, without other indications of inappropriate conduct, did not amount to
cruel and unusual punishment. And without any underlying constitutional violation,
the court ruled that Johnson’s failure-to-intervene claim against Grady also failed.
On appeal, Johnson challenges the district court’s ruling to exclude his
declaration under the sham affidavit rule. He argues that the declaration clarified his
deposition testimony about the physical contact with Uherka, creating a fact question
over the nature and extent of that contact.
The district court correctly excluded Johnson’s declaration under the sham
affidavit rule. Although we have recognized exceptions to the rule (i.e., where an
affidavit offers newly discovered evidence, contradicts a demonstrably mistaken

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statement from a prior deposition, or clarifies ambiguous or confusing deposition
testimony), id. at 317, Johnson’s declaration does not meet any of those exceptions.
Indeed, it contradicts a key statement from his deposition, in which he affirmed that the
“only physical contact [he] had with Officer Uherka is when [Johnson] handed him [his]
clothes.”
Johnson also challenges the district court’s screening order, arguing that the
court did not allow him to amend his complaint a second time to elaborate on his claims
against DeBlanc. If allowed to amend, he says, he would have fleshed out his claim that
DeBlanc’s refusal to see him caused him psychological trauma.
But Johnson never asked to amend his complaint after his claims against DeBlanc
were dismissed. Although a court should “freely give leave” to file an amended
complaint when justice so required, F ED. R. CIV. P. 15(a)(1), (2), nothing in Rule 15 or our
caselaw suggests that a district court must give leave to amend where a party does not
request it. See Haywood v. Massage Envy Franchising, LLC, 887 F.3d 329, 335 (7th Cir.
2018).
AFFIRMED

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