Troy Hammer v. CHRISTOPHER BORTZ and CHRISTOPHER OLSON

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 2, 2024*
Decided May 24, 2024
Before
DIANE S. SYKES, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 23-1842
TROY HAMMER,
Plaintiff-Appellant,
v.
CHRISTOPHER BORTZ and
CHRISTOPHER OLSON,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 20-cv-202-wmc
William M. Conley,
Judge.
O R D E R
Troy Hammer, a former Wisconsin prisoner, sued two corrections officers under
42 U.S.C. § 1983 seeking damages arising from the officers’ efforts to secure him in a
restraint chair for transport to a suicide-watch unit. Hammer accuses Officer
Christopher Bortz of using excessive force in violation of the Eighth Amendment and
* 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. 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NONPRECEDENTIAL DISPOSITION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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Lieutenant Christopher Olson of failing to intervene to stop the alleged constitutional
violation. Ruling on the officers’ motion for summary judgment, the district judge
concluded that the evidence—including video recordings of the incident—could not
support an inference that Officer Bortz acted maliciously to inflict pain rather than to
maintain safety and order. And because there was no underlying constitutional
violation, Lieutenant Olson could not be liable for failure to intervene. The judge
accordingly entered judgment for both officers. We affirm.
We take the following factual account from the summary-judgment record,
reviewing the evidence in the light most favorable to Hammer and drawing reasonable
inferences in his favor as the non-moving party, Moore v. W. Ill. Corr. Ctr., 89 F.4th 582,
590 (7th Cir. 2023), except to the extent that his account is clearly contradicted by the
video evidence in the record, see Scott v. Harris, 550 U.S. 372, 380 (2007).
In November 2018 Hammer was serving a sentence in Wisconsin’s Columbia
Correctional Institution and was housed in the prison’s restrictive housing unit. On the
evening of November 6, Hammer cut his arm using a metal shard and yelled to guards
that he was suicidal. A short while later, he interrupted the nightly distribution of
medication by refusing to close his cell’s trap door, so Lieutenant Olson responded to
assess the situation. Hammer repeated that he was suicidal, showed Olson the
laceration on his arm, and asked to be put on suicide watch. Olson initiated the steps
necessary to move Hammer to a suicide-watch cell. Hammer did not comply with his
directives. The parties disagree about the extent to which Hammer was uncooperative,
but it’s undisputed that his refusal to follow instructions prompted Olson to call for an
extraction team to remove him from his cell.
Officer Christopher Bortz and several other officers responded, one of whom
recorded the events with a handheld camera. Olson also captured the incident on his
body-worn camera. The officers removed Hammer from his cell and restrained him
without incident. They searched him and his cell for the metal shard but did not find it.
The officers then escorted Hammer to the shower area for a strip search. A nurse
arrived and treated Hammer’s cut. Throughout the strip search, Hammer continued to
threaten to harm himself, so the officers put him in a restraint chair equipped with
shoulder straps. Officer Bortz attested that as he wheeled the restraint chair around to
face a wall, Hammer began rolling his right shoulder to manipulate the shoulder strap
and it fell off his shoulder. Hammer disputes that he was trying to manipulate the
restraints, attesting that he merely “tried to readjust [himself] a few times” because he

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was uncomfortable. The videos do not clearly resolve this dispute because Bortz’s body
blocks the handheld camera’s view, and Olson’s camera was pointed away.
The videos confirm, however, that the strap fell off Hammer’s shoulder, and
regardless of how it came loose, the unsecured shoulder strap was a safety concern.
Bortz told Hammer to stop messing with the restraints and initiated a “compliance
hold” by wrapping his fingers beneath Hammer’s jaw and tilting his head backwards.
Olson and the other officers then secured the strap. Hammer continued to protest that
he was not manipulating the restraints. Once the strap was secure, Bortz released the
hold. In all, the hold lasted less than a minute. Olson then called the mental-health unit,
determined that Hammer did not need to be monitored, and returned him to his cell.
Hammer sued for damages under § 1983 accusing Bortz of using excessive force
in violation of the Eighth Amendment and Olson of failing to intervene to stop him. The
district judge screened the complaint and permitted the claims to move forward; the
officers eventually moved for summary judgment. Bortz attested that he used the
compliance hold because Hammer manipulated the restraints and made the shoulder
strap fall off, had cut himself earlier in the evening, continued to threaten to harm or kill
himself, and could have hurt himself or others if he escaped the chair. Hammer attested
that he was only readjusting his body, that the strap was only “slightly” off his
shoulder, that Bortz used a “pressure point” hold in violation of prison policy, and that
he felt extreme pain during the hold. The officers maintained that Hammer did not
report injuries traceable to the hold. But Hammer pointed to medical requests he filed
after the encounter in which he had reported neck and back pain for which he blamed
Bortz.
The judge entered judgment for the officers, explaining that a reasonable jury
could not find that Bortz acted maliciously and sadistically in using force because there
was no dispute that Hammer was moving around, that the strap was out of place, and
that Hammer had cut his arm and was threatening to further harm himself. The judge
noted that Bortz’s response was proportionate because he held Hammer’s head in place
rather than yanking or pulling on him, he let go as soon as the strap was secure,
Hammer was able to speak normally and did not struggle or cry out in pain, and the
hold lasted less than a minute. Hammer’s contention that he suffered extreme pain was
undermined by the fact that he had been able to speak normally during the hold and
did not immediately complain that he was in pain. Moreover, Hammer lacked evidence
that the type of hold Bortz used violated prison policy or was meant to cause extreme

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pain. Finally, the judge explained that Olson could not be liable for failing to intervene
because the force Bortz used was not excessive.
Judgment was entered on January 25, 2023. Hammer did not file a notice of
appeal within 30 days as required by 28 U.S.C. § 2107(a). In April, he inquired about the
status of the case, and the judge sent him the summary judgment order. On April 28,
Hammer mailed a notice of appeal and a declaration stating that he first received the
court’s dispositive order on April 21. We construed the declaration as a motion to
reopen the time to appeal, see 28 U.S.C. § 2107(c); F ED. R. A PP . P. 4(a)(6), and directed it
to the district judge. On June 27 the judge granted the motion to reopen, making the
following findings pursuant to § 2107(c): (1) the docket did not reflect proper service of
the order on Hammer; (2) Hammer filed his notice and declaration within 14 days of
receiving the order; and (3) reopening the time to appeal would not prejudice any party.
Hammer did not file a new notice of appeal. In July he moved for relief from the
judgment under Rule 60(b) of the Federal Rules of Civil Procedure and for sanctions
under Rule 11, asserting that Bortz and Olson lied in affidavits supporting their
summary judgment motion. The judge denied the motions, and Hammer did not appeal
that order.
We begin with appellate jurisdiction. Although the officers have not raised a
jurisdictional objection, we have an independent duty to ensure that jurisdiction is
secure. See India Breweries, Inc. v. Miller Brewing Co., 612 F.3d 651, 657 (7th Cir. 2010).
In civil cases, the timely filing of a notice of appeal is required for appellate
jurisdiction. Bowles v. Russell, 551 U.S. 205, 209–10 (2007). Here, Hammer filed an
untimely notice of appeal together with a declaration that we construed as a motion to
reopen the time to appeal; he did not, however, file a new notice of appeal after the
district judge granted the motion. Other circuits that have addressed this question have
reached divergent conclusions on whether the failure to file a new notice of appeal after
the time is reopened deprives the appellate court of jurisdiction. A divided panel of the
Fourth Circuit concluded that an untimely notice of appeal does not spring into effect
when a motion to reopen under § 2107(c) is granted; the court held that the appellant
must file a new notice of appeal. Parrish v. United States, 74 F.4th 160, 165–66 (4th Cir.
2023). The Sixth Circuit reached the opposite conclusion, ruling that a second notice of
appeal is not necessary; the court held that when a judge reopens the time to appeal
under § 2107(c), the first notice “ripens when the [new] window to appeal begins.”

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Winters v. Taskila, 88 F.4th 665, 671 (6th Cir. 2023) (citing FirsTier Mortg. Co. v. Investors
Mortg. Ins. Co., 498 U.S. 269, 273 (1991)).
Our practice has aligned with the Sixth Circuit’s. See Norwood v. E. Allen Cnty.
Schs., 825 F. App’x 383, 387 (7th Cir. 2020); Dobbey v. Miller, 730 F. App’x 375, 376–77
(7th Cir. 2018). Neither § 2107(c) nor Rule 4(a)(6) expressly requires the appellant to file
a second notice of appeal within the reopened window for appeal. Rule 4(a)(2) provides
that a notice of appeal that is filed prematurely—after the court’s decision or order but
before entry of judgment—“is treated as filed on the date of and after the entry” of
judgment. In that context, the rule recognizes that “certain premature notices do not
prejudice the appellee and that the technical defect of prematurity therefore should not
be allowed to extinguish an otherwise proper appeal.” FirsTier Mortg. Co., 498 U.S.
at 273. Like a premature notice of appeal under Rule 4(a)(2), the technical defect here
did not prejudice the defendants: Hammer had already filed a notice of appeal with his
declaration explaining that he had not received notice of the judge’s summary judgment
decision, which we construed as a motion to reopen the time to appeal. Moreover, the
purpose of a notice of appeal is to give notice of the filing party’s intent to appeal. See
Smith v. Barry, 502 U.S. 244, 248–49 (1992). Here, Hammer’s original notice did so; the
problem was timeliness, and that defect vanished when the judge accepted Hammer’s
explanation and granted the motion to reopen. At that point—and as our practice
reflects—his notice of appeal became effective. See Norwood, 825 F. App’x at 387; Dobbey,
730 F. App’x at 376–77.
Moving to the merits, Hammer argues that he presented sufficient evidence from
which a reasonable jury could conclude that Bortz used excessive force. A prison official
may be found liable for an Eighth Amendment violation if he used force against a
prisoner “maliciously and sadistically to cause harm” rather than “in a good-faith effort
to maintain or restore discipline.” Hudson v. McMillian, 503 U.S. 1, 6–7 (1992). That
standard is subjective, Lewis v. Downey, 581 F.3d 467, 476 (7th Cir. 2009), so Hammer
cannot prevail by showing that Bortz’s use of force was unreasonable, Whitley v. Albers,
475 U.S. 312, 322 (1986). Instead, he must produce evidence to support “a reliable
inference of wantonness in the infliction of pain.” Id. The Supreme Court has identified
several non-exhaustive considerations to guide this inquiry: (1) the need for the force;
(2) the relationship between that need and the amount of force used; (3) the extent of
any injury; (4) the threat reasonably perceived; and (5) efforts to temper the force’s
severity. Hudson, 503 U.S. at 7. (De minimis force does not raise Eighth Amendment
concerns, id. at 9–10, but the defendants have not argued that Bortz’s force was
de minimis.)

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Here, the first and fourth factors—the need to use force and the threat Bortz
reasonably perceived from Hammer’s conduct—weigh against Hammer. Bortz attested
that he used the compliance hold because Hammer had cut himself, threatened to kill or
further harm himself, was manipulating the restraints, loosened the shoulder strap, and
could have hurt himself if he escaped the restraints. The videos confirm that the strap
had indeed come off Hammer’s shoulder. For the first time on appeal, Hammer says
that he was not moving at all. But in the district court he attested that he was
readjusting his position, so his own evidence does not match his new assertion that he
was immobile. And Hammer admits that he had cut his arm earlier in the evening and
continued to threaten to kill himself mere minutes before Bortz used the compliance
hold.
Hammer argues that his threats of self-harm are irrelevant because he could not
act on them once in restraints, but Bortz had a duty not to ignore the risk Hammer
posed to himself if he were to shake free. See Farmer v. Brennan, 511 U.S. 825, 832 (1994).
Given Hammer’s undisputed self-harm, suicidal threats, movement in the restraint
chair, and the risks posed by the loose shoulder strap, the record does not support a
reasonable inference that Bortz needlessly used force or concocted a pretextual safety
concern.
The second and fifth factors—the relationship between the need for force and the
amount of force used, and the efforts to temper its severity—also weigh against
Hammer. Bortz used force only until Hammer’s restraints were secure. He held
Hammer’s head in place for less than a minute, and Hammer gave Bortz no reason to
think that the hold was inflicting extreme pain. Hammer could speak normally, did not
yell or otherwise complain of pain, and gave no other sign that he was in pain. And
Bortz let go as soon as other guards refastened the shoulder strap. That response was
proportionate to the risks Hammer posed if he were to break free. Cf. Guitron v. Paul,
675 F.3d 1044, 1045–46 (7th Cir. 2012) (slamming prisoner into wall after he disobeyed
order to move was not excessive force). And because Hammer did not signal that he
was in pain, Bortz had no reason to think that he needed to temper the force he was
using.
Hammer maintains that Bortz overreacted by using a pressure-point hold that is
designed to cause extreme pain. But he cites only his declaration as evidence that
pressure-point holds are designed for that purpose. Affidavits must be based on
personal knowledge, Moore, 89 F.4th at 593, and Hammer has never explained how he
knows anything about pressure-point holds.

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As for the third factor, the extent of any injury, Hammer offered some evidence
in the district court that he experienced neck and back pain (although to an unknown
extent). We do not second-guess Hammer’s sworn statement that he experienced pain.
But on appeal he does not mention any injuries, much less argue that his injuries
(whatever they were) are evidence that Bortz knew he was in pain at the time, or that
Bortz acted wantonly. In any event, given the evidence that Bortz was simply
responding to risks associated with Hammer’s self-harm, suicidal ideation, and possible
escape, a reasonable jury could not infer from the mere fact of pain that Bortz acted
maliciously or sadistically to cause harm.
Hammer also argues that Bortz violated prison policy by using the pressure-
point hold and failing to warn him before using force. But he does not specify what law
or policy he thinks Bortz violated, and the regulation governing use of force in
Wisconsin prisons says nothing about holds or warnings. See WIS . A DMIN . C ODE DOC
§ 306.07. Regardless, a violation of state law or prison regulations is not sufficient to
demonstrate a violation of the Constitution. Courtney v. Butler, 66 F.4th 1043, 1052–53
(7th Cir. 2023).
Next, Hammer challenges the ruling for Olson. But a failure to intervene requires
an underlying constitutional violation. Rosado v. Gonzalez, 832 F.3d 714, 718 (7th Cir.
2016). We have concluded that a reasonable jury could not find Bortz’s use of force
excessive, so Olson cannot be liable for failing to intervene.
Finally, Hammer challenges the denial of his Rule 60(b) and Rule 11 motions, but
we lack jurisdiction to consider those arguments. A litigant who files a notice of appeal
and later a Rule 60(b) motion (more than 28 days after judgment) must file a separate
notice of appeal if the motion is denied; otherwise, the appellate court lacks jurisdiction
to review that decision. See F ED. R. A PP . P. 4(a)(4)(A)(vi); F ED. R. C IV. P. 59(b); Sosebee v.
Astrue, 494 F.3d 583, 590 (7th Cir. 2007); Goffman v. Gross, 59 F.3d 668, 672–73 (7th Cir.
1995). The same is true of post-judgment Rule 11 motions for sanctions, which are
collateral to the lawsuit. See Keck Garrett & Assocs., Inc. v. Nextel Commc’ns, Inc., 517 F.3d
476, 488 (7th Cir. 2008). Here, Hammer appealed the summary judgment decision, then
filed his Rule 60(b) and Rule 11 motions months after judgment, and he did not file a
new notice after the judge denied them. We lack jurisdiction to review those rulings.
Hammer’s remaining arguments are not developed enough to merit discussion.
AFFIRMED

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