MICHAEL B. KINGSLEY, Plaintiff-Appellant,
STAN HENDRICKSON, ET AL., Defendants-Appellees
Argued April 23, 2013
This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:10-cv-00832-bbc, Barbara B. Crabb, Judge.
For MICHAEL B. KINGSLEY, Plaintiff - Appellant: Jeffrey Stephen Ward, Attorney, Wendy M. Ward, Attorney, MERCHANT & GOULD P.C., Madison, WI.
For STAN HENDRICKSON, FRITZ DEGNER, Defendants - Appellees: Andrew A. Jones, Attorney, WHYTE HIRSCHBOECK DUDEK S.C., Milwaukee, WI.
Before RIPPLE and HAMILTON, Circuit Judges, and STADTMUELLER, District Judge.[*] HAMILTON, Circuit Judge, dissenting.
Ripple, Circuit Judge.
Michael Kingsley brought this action under 42 U.S.C. § 1983 against six staff members of a Wisconsin county jail, where he had been held as a pretrial detainee in 2010. Mr. Kingsley alleged that during his forcible transfer to a new cell, which included the application of a taser, the defendants had violated various of his constitutional and statutory rights. The district court granted partial summary judgment for the defendants; a single claim of excessive force against Sgt. Stan Hendrickson and Deputy Fritz Degner proceeded to trial. The jury returned a verdict for the defendants.
Mr. Kingsley now appeals the judgment entered on the verdict, contending that the jury received erroneous and confusing instructions. Specifically, Mr. Kingsley contends that the district court conflated the standards for excessive force under the Eighth and Fourteenth Amendments and, as a result, wrongly instructed the jury to consider the subjective intent of the defendants. Mr. Kingsley also contends that the instructions misstated the harm that he must prove to obtain relief. We hold that the instructions were not an erroneous or confusing statement of the law of this circuit and that Mr. Kingsley affirmatively acquiesced to the instruction dealing with harm. Accordingly, we affirm the judgment of the district court.
In April 2010, Mr. Kingsley was booked into the Monroe County Jail in Sparta, Wisconsin, as a pretrial detainee. On May 1, he was transferred to the facility's south cell block.
On May 20, 2010, a deputy performing a cell check noticed a sheet of yellow legal paper covering the light above Mr. Kingsley's bed and ordered him to take it down. Mr. Kingsley refused the order and answered that he had not put the paper there. The deputy moved on. When he returned for a further cell check later in the evening, he noticed that the paper had not been removed and again ordered Mr. Kingsley to take it down. After another refusal and a warning of possible disciplinary action, the deputy issued him a minor violation and reported it to Sgt. Hendrickson. Sgt. Hendrickson informed Deputy Karl Blanton that Mr. Kingsley would have to remove the paper in the morning.
When Deputy Blanton made his morning rounds, he ordered Mr. Kingsley to take down the paper. Mr. Kingsley did not respond and did not remove the paper. A few minutes later, Sgt. Hendrickson came to deliver Mr. Kingsley's medication, and he again ordered Mr. Kingsley to take down the paper. After several requests, Mr. Kingsley again refused, stating once again that he had not put the paper there. Sgt. Hendrickson next called the jail administrator, Lieutenant Robert Conroy.
Lt. Conroy then went to Mr. Kingsley's cell. After Mr. Kingsley refused his order, Lt. Conroy said jail staff would take the paper down and would have to transfer Mr. Kingsley to another cell in the interim. He also threatened discipline.
A few minutes later, Sgt. Hendrickson, Deputy Blanton, Lt. Conroy, Deputy Fritz Degner and Deputy Sheriff Shisler arrived at the cell. They ordered Mr. Kingsley to stand up and to back up to the door with his hands behind his back. Mr. Kingsley asked why and protested that he had done nothing wrong. Deputy Degner told Mr. Kingsley to follow the order or he would be tasered. He was again ordered to get up, but he continued to lie facedown on his bunk. He did, however, put his hands behind his back.
At this point, Sgt. Hendrickson and Deputy Blanton entered the cell, and, with some difficulty (which they attribute to Mr. Kingsley " tensing" his arms and holding them apart), they were able to handcuff him. Mr. Kingsley would not follow an order to stand, so they pulled him to his feet. Mr. Kingsley then fell to his knees;
he claimed that, in pulling him off of the bed, the officers had smacked his feet on the bedframe, causing him pain. He claimed that the pain was so severe that he could not stand or walk. The officer therefore carried him out of the cell by holding him under his arms and placed him facedown in the hallway. When he would not answer questions about his foot injury, he was taken in the same manner to a receiving cell and placed facedown on the bunk.
Once he was on the receiving-cell bunk, the officers attempted to remove the handcuffs. The evidence at trial was conflicting on the later course of events. The defendants say that Mr. Kingsley resisted their effort, pulling the handcuffs apart and trying to get up. Mr. Kingsley denied this resistance at trial. At some point, Sgt. Hendrickson put his knee in Mr. Kingsley's back, and Mr. Kingsley told him, in colorful language, to get off him. Mr. Kingsley claims that the defendants then smashed his head into the concrete bunk, an allegation the defendants deny.
After some further verbal exchange, Deputy Degner applied a taser for five seconds on Mr. Kingsley's back. Lt. Conroy then ordered all of the staff to clear the cell. Fifteen minutes later, the staff returned and were able to remove the handcuffs. Mr. Kingsley was placed on a medical watch, but refused the attention of a nurse.
In December 2010, Mr. Kingsley, proceeding pro se, brought this action in the district court. His principal theory was that the defendants had violated his due process rights under the Fourteenth Amendment. His initial complaint presented several claims against seven Monroe County defendants, including an excessive force claim relating only to Sgt. Hendrickson and Deputy Degner.
The parties cross-moved for summary judgment. The district court granted partial judgment for the defendants on a procedural due process claim relating to Mr. Kingsley's discipline by jail staff. It concluded, however, that material issues of fact remained that precluded judgment on the excessive force claim based on the officers' conduct in the receiving cell. Specifically, the court identified " a dispute about whether defendants slammed plaintiff's head into the concrete bed and used a taser against him solely for the purpose of causing him harm."  Although the officers clearly had difficulty removing the handcuffs, Mr. Kingsley claims that it was because they had been applied too tightly and Sgt. Hendrickson's kneeling on his back had caused his body to tense; the
officers claim that Mr. Kingsley was resisting. The court observed that, from the video, " it is not clear... whether plaintiff was resisting or struggling. [He] does not appear to be moving his body around aggressively or very much at all." 
The court noted the case law that held that it was reasonable to use force against an inmate who refused to comply with orders but concluded that the issue in the case was " whether [the] defendants' response to plaintiff's obstinance was reasonable under the circumstances or whether it was excessive and was intended to cause [the] plaintiff harm."  The court also concluded that, because a jury could find that the defendants had acted with malice, qualified immunity was not available. Although the court, in its ruling, concluded that the relevant constitutional right was contained within the Fourteenth Amendment because of Mr. Kingsley's status as a pretrial detainee, the court applied Eighth Amendment excessive force standards in assessing the claim.
Following the grant of summary judgment, the parties stipulated to the dismissal with prejudice of all outstanding claims except the excessive force claim against Sgt. Hendrickson and Deputy Degner. Counsel was appointed for Mr. Kingsley and the case proceeded to trial. In pretrial proceedings, the district court proposed an instruction on excessive force to which both parties objected, and the court made various modifications. At the close of the evidence, the parties revisited the instruction and again objected to its content. Again, the district court made some modification and added a clarifying instruction. The court finally settled on the following instruction:
Excessive force means force applied recklessly that is unreasonable in light of the facts and circumstances of the time. Thus, to succeed on his claim of excessive use of force, plaintiff must prove each of the following factors by a preponderance of the evidence:
(1) Defendants used force on plaintiff;
(2) Defendants' use of force was unreasonable in light of the facts and circumstances at the time;
(3) Defendants knew that using force presented a risk of harm to plaintiff, but they recklessly disregarded plaintiff's safety by failing to take reasonable measures to minimize the risk of harm to plaintiff; and
(4) Defendants' conduct caused some harm to plaintiff.
In deciding whether one or more defendants used " unreasonable" force against plaintiff, you must consider whether it was unreasonable from the perspective of a reasonable officer facing the same circumstances that defendants faced. You must make this decision based on what defendants knew at the time of the incident, not based on what you know now.
Also, in deciding whether one or more defendants used unreasonable force and acted with reckless disregard of plaintiff's rights, you may consider such factors as:
o The need to use force;
o The relationship between the need to use force and the amount of force used;
o The extent of plaintiff's injury;
o Whether defendants reasonably believed there was a threat to the safety of staff or prisoners; and
o Any efforts made by defendants to limit the amount of force used.
Mr. Kingsley's counsel objected to the inclusion of " harm" as an element of an excessive force claim. He contended that the jury might confuse the element of harm for some sort of lasting or significant injury. Counsel first requested a clarifying instruction that " pain is considered harm."  When the court began to offer a preferred alternative, " [A] person can be harmed even if he does not suffer a lasting injury or...," plaintiff's counsel interjected, " Or severe injury."  Following this exchange, the jury was instructed that " [a] person can be harmed even if he did not suffer a severe injury." 
The jury returned a verdict for the defendants, and the district court entered judgment dismissing the case. Mr. Kingsley timely appeals the judgment. He submits that the instruction misstated the law and confused the jury on the subjects of both the intent and harm necessary to establish an excessive force claim in the pretrial detainee context.
On appeal, Mr. Kingsley raises two challenges to the jury instructions. First, he claims that the instruction wrongfully conflated the standard for excessive force claims under the Eighth and Fourteenth Amendments and that, as a result, the instructions incorrectly required him to demonstrate that the defendants acted with reckless disregard for his safety. Second, Mr. Kingsley claims that the instruction regarding harm, which stated that harm was an element of the claim and that it could be demonstrated without a showing of " severe injury," was both incorrect and confusing.
We shall assess each of his objections to the instructions in turn. Our review of jury instructions is de novo. Huff v. Sheahan, 493 F.3d 893, 899 (7th Cir. 2007). We must " determine whether, taken as a whole, [the instructions] correctly and completely informed the jury of the applicable law." Id. " We defer to the district court's phrasing of an instruction that accurately states the law; however, we shall reverse when the instructions misstate the law or fail to convey the relevant legal principles in full and when those shortcomings confuse or mislead the jury and prejudice the objecting litigant." Id. (citation omitted) (internal quotation marks omitted).
A claim of excessive force, like the one at issue here, is, at bottom, one that seeks to impose liability for " physically abusive governmental conduct." Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The right to be free from such abuse derives from various provisions of the Bill of Rights. The Fourth Amendment affords protection to the person in the context of a seizure, id.; the Eighth Amendment applies when, following the constitutional guarantees of our criminal process, there has been an adjudication of guilt and an imposition of sentence, Ingraham v. Wright, 430 U.S. 651, 671 n.40, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). Between the status of arrestee and sentenced prisoner is the intermediate
status of the detainee, who similarly is entitled to protection from physically abusive government conduct. The constitutional source of that protection lies in the right to be free from deprivations of liberty without due process of law. Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 & n.16 (1979).
In sum, we evaluate a claim of excessive force not under " some generalized 'excessive force' standard," but " by reference to the specific constitutional standard which governs that right." Graham, 490 U.S. at 394. Mr. Kingsley was a pretrial detainee at the time of the tasing incident; therefore, the Fourteenth Amendment's Due Process Clause is the source of his substantive right and determines the applicable standards to evaluate his claim. See Ingraham, 430 U.S. at 672 n.40; Forrest v. Prine, 620 F.3d 739, 743-44 (7th Cir. 2010).
In examining the contours of the right to be free from excessive force as an element of due process, Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), is our primary touchstone. There, the Supreme Court evaluated a claim regarding the conditions of confinement for pretrial detainees. " [U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law." Id. at 535 (emphasis added). As a consequence, " the proper inquiry" is whether the treatment of the detainee " amount[s] to punishment." Id. The Supreme Court markedly contrasted due process protections for detainees against the rights of sentenced inmates: " A sentenced inmate... may be punished, although that punishment may not be 'cruel and unusual' under the Eighth Amendment." Id. at 535 n.16 (emphasis added).
Our cases also have noted that the protection afforded by the Due Process Clause is broader than that afforded under the Eighth Amendment. See Lewis v. Downey, 581 F.3d 467, 474 (7th Cir. 2009) (" [T]he Due Process Clause, which prohibits all 'punishment,' affords broader protection than the Eighth Amendment's protection against only punishment that is 'cruel and unusual.'" ); id. at 475 (noting that, in the excessive force context, " anything that would violate the Eighth Amendment would also violate the Fourteenth Amendment" ); cf. Forrest, 620 F.3d at 743-44 (acknowledging that " [t]he Fourteenth Amendment right to due process provides at least as much, and probably more, protection against punishment as does the Eighth Amendment's ban on cruel and unusual punishment" ). Of course, " [n]ot every disability imposed during pretrial detention amounts to 'punishment' in the constitutional sense." Bell, 441 U.S. at 537. We must ask whether a particular action was taken " for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose." Id. at 538.
Notably, the Due Process Clause provides its own limiting principle; the Clause protects against only abusive conduct that is more than negligence, Daniels v. Williams, 474 U.S. 327, 334, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), or even gross negligence, Archie v. City of Racine, 847 F.2d 1211, 1219 (7th Cir. 1988) (en banc). Indeed, we have said that the official conduct must be at least reckless. See Archie, 847 F.2d at 1219-20. Recklessness, which necessarily incorporates some measure of subjective intent, stands in contrast to the rule under the Fourth Amendment that focuses only on whether the government conduct was " objectively reasonable" in light of all of the facts and circumstances. Graham, 490 U.S. at 397 (emphasis added) (internal quotation marks omitted); see also Common v. City of Chicago, 661 F.3d 940, 943 (7th Cir. 2011).
While these cases make clear the basic theoretical and doctrinal distinction among the constitutional standards governing the various categories of confinement, they do not provide a practical framework for distinguishing the obligations of those constrained by each of the constitutional provisions. Indeed, on more than one occasion, while noting the distinction between pretrial and posttrial incarceration, we have decided the case before us by employing the more familiar Eighth Amendment standard. See, e.g., Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 664 (7th Cir. 2012) ( " [C]ourts still look to Eighth Amendment case law in addressing the claims of pretrial detainees, given that the protections of the Fourteenth Amendment's due process clause are at least as broad as those that the Eighth Amendment affords to convicted prisoners, and the Supreme Court has not yet determined just how much additional protection the Fourteenth Amendment gives to pretrial detainees." (citations omitted)); Forrest, 620 F.3d at 744 (affirming summary judgment for the defendant officers where the plaintiff detainee had " not explained... how any protections guaranteed by the Fourteenth Amendment provide him with more protection than he would receive under traditional Eighth Amendment standards" ); Lewis, 581 F.3d at 474 (reversing summary judgment for officer in Fourteenth Amendment case upon concluding that the plaintiff had raised a genuine issue of fact even when considered under the more stringent standard set by the Eighth Amendment).
Here, we also have no need to delineate, in any comprehensive fashion, the differences between the rights of pretrial detainees and adjudicated criminals. Our task is less ambitious. We must determine the adequacy of an instruction given to a jury tasked with determining whether excessive force was employed against a pretrial detainee. We simply must determine whether the instruction at issue was sufficiently precise in its description of ...