Gillis v. Pollard

554 F. App'x 502
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 30, 2014
DocketNo. 13-2924
StatusPublished
Cited by16 cases

This text of 554 F. App'x 502 (Gillis v. Pollard) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gillis v. Pollard, 554 F. App'x 502 (7th Cir. 2014).

Opinion

ORDER

In this suit under 42 U.S.C. § 1983, Wisconsin prisoner Nathan Gillis contends that prison guards rubbed and hit his genitals during pat-down searches in violation of the Eighth Amendment. He also maintains that those guards, and others, violated the First Amendment by retaliating against him for reporting the guards’ actions. Lastly, he contends that law enforcement violated the equal protection clause of the Fourteenth Amendment by refusing to investigate his and other prisoners’ criminal complaints. The district court dismissed the equal-protection claim at screening, see 28 U.S.C. § 1915A, and granted summary judgment for defendants on all other claims. Because video recordings conclusively refute Gillis’s claims about the pat-down searches, and he has no equal-protection right to a criminal investigation, we affirm.

We recount the facts that are pertinent to this appeal, construing the evidence in Gillis’s favor. At all relevant times, Gillis was housed in the segregation unit of the Waupun Correctional Institution. The prison’s policy requires guards to conduct patdown searches of segregation-unit inmates every time they leave their cells. This policy ensures the safety of inmates and staff by preventing the smuggling of contraband — including weapons — and identifying evidence of an assault or a self-inflicted injury. Under the policy, a proper pat-down search is performed with both hands in a “bladed position” (all fingers straightened and together). The pat-down begins at the collar and proceeds down the body. Because the search is designed to check the groin as a potential hiding place, a properly executed search will result in some contact between the guard’s hand and the prisoner’s genitals over his clothing.

Gillis swears that, during four of these pat-down searches from May to June 2012, he “had his penis and testicles rubbed [and] hit[ ] sexually” and painfully by two guards, Wesley Bebo and Andrew Moun-gey. The two guards insist that they performed the pat-downs according to prison policy and without hitting or sexual rubbing.

[504]*504Although the sworn testimony is conflicting, three of the searches that Gillis challenges were captured in video recordings. One recording shows an unobstructed view of the pat-down through a sequence of silent, low-resolution frames separated at half-second intervals: Using two hands, a guard lightly pats each of Gillis’s arms, quickly taps the sides of his abdomen, and then swiftly touches each outer and inner leg with a downward motion. The pat-down lasts less than ten seconds, and Gillis never flinches or recoils. The two other recorded pat-downs are similar, lasting under ten seconds each and showing no flinching. The camera view of the lower part of Gillis’s body is briefly obstructed in these two recordings as other guards pass by. But Gillis does not argue that these two searches, or the one unrecorded search, were conducted any differently than the search with the unobstructed view.

Gillis submitted four prison grievances alleging that the guards either hit or groped his genitals during the four pat-downs. A staff member investigated the grievance of the first search by reviewing the surveillance video of the pat-down and interviewing Gillis, Bebo, and Moungey (who was present during the search). Comparing Gillis’s version of events to Bebo’s and Mounge/s — as well as to the video of the search — the investigator concluded that Bebo had not inappropriately rubbed Gillis’s genitals. The investigator issued Gillis a conduct report for lying about staff, and after a disciplinary hearing, Gillis was sentenced to 360 days of administrative segregation.

In his other three grievances, Gillis accused Moungey of hitting him in the genitals during three separate pat-down searches. The first of these grievances was not investigated (the record does not indicate why), but the staff member who investigated the other two grievances concluded that Gillis had again lied about what had occurred during the pat-downs. The investigator issued two more conduct reports. Video recordings of both searches were reviewed by the investigator and by the hearing officer at Gillis’s disciplinary hearings; both staff members concluded that the video recordings reflected a properly-executed pat-down search and refuted Gillis’s allegation that Moungey had hit him in the groin. Gillis was disciplined two more times for lying about staff, once for each of the investigated grievances against Moungey.

In addition to filing these grievances, Gillis wrote to the district attorney and sheriff of Dodge County, asking them to launch criminal investigations of Moungey and Bebo. The district attorney replied to Gillis’s request by forwarding his complaints to the warden, the Department of Corrections Legal Counsel,, and the Wisconsin Attorney General. He also wrote Gillis a letter informing him that the district attorney’s office “does not prosecute inmate complaints unless the institution to which he or she is confined has already found sufficient evidence of misconduct on the part of the correctional staff to warrant internal discipline” because the office does “not have the resources to prosecute other matters.”

Gillis then sued in federal court. He alleged that Bebo and Moungey “hit” and “rubbed” his “penis and testicles” in violation of the Eighth Amendment; that prison staff, the warden, and officials at the Department of Corrections retaliated against him by issuing invalid conduct reports and subjecting him to prison disciplinary procedures; and that the district attorney and the sheriff had entered into a “secret agreement” with the warden and officials at the Department of Corrections to protect them from wrongdoing. (Gillis [505]*505also brought other claims that are not at issue on appeal.)

The district court screened the complaint under 28 U.S.C. § 1915A and dismissed the claim against the district attorney and the sheriff, reasoning that the “allegations related to the secret agreement are unclear and do not make sense.” Gillis asked for reconsideration, pointing to the letter he had received from the district attorney. He explained that the district attorney was treating prisoners unequally by consulting with the warden before investigating their criminal complaints. The district court did not allow Gillis to proceed on the claim. It observed that the warden’s involvement in a criminal investigation did not, by itself, violate Gillis’s constitutional rights.

The parties cross-moved for summary judgment. On the Eighth Amendment challenge to the pat-downs, the court granted the defendants’ motion. The court found that the three surveillance videos submitted by the defendants showed searches that conformed to the prison’s pat-down policy and that the video evidence refuted Gillis’s description of the pat-down searches. It concluded that, based on the videos, “no reasonable juror could believe [Gillis’s] version of events.” The judge also pointed out that Gillis had not offered any evidence to suggest that the pat-down searches lacked a penological justification. On Gillis’s First Amendment claim that prison staff had issued the conduct reports to retaliate against him for complaining about the pat-down searches, the judge also concluded that the defendants were not liable.

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Bluebook (online)
554 F. App'x 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gillis-v-pollard-ca7-2014.