Allen Payette v. Randy Hoenisch

After examining the briefs and the record, we have concluded that oral argument is*
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 7, 2008*
Decided July 7, 2008
Before
RICHARD D. CUDAHY, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 07-3249
ALLEN PAYETTE,
Plaintiff-Appellant,
v.
RANDY HOENISCH, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of
Wisconsin
No. 07-C-242
John C. Shabaz,
Judge.
O R D E R
During his time at Marathon County Jail in Wausau, Wisconsin, Allen Payette was a
very difficult inmate. Aside from attempting to destroy jail property, he also repeatedly
and seriously attempted to harm himself. Over the course of ten days, Payette had to be
transported away from the jail to a hospital three times, first to remove a plastic razor he
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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had hidden in his anus, then because he swallowed a staple, and again because he
swallowed a piece of metal from his cell sink. Although jail officials knew that the hospital
treating Payette had recommended that he receive mental health treatment, the jail
disregarded the recommendation. Instead, after Payette’s last trip to the hospital and until
he was transferred to a different facility seven days later, the jail immobilized him in leg,
wrist, and waist restraints. According to Payette, the jail’s decision to disregard the
hospital’s recommendation for mental health care and instead shackle him with painful
restraints, caused his mental health to deteriorate further, leading to loss of sleep, recurring
nightmares, anxiety attacks, chest pains, and bouts of paranoia, all of which he continues to
suffer.
Payette brought this pro se action against several jail employees, alleging several
constitutional violations relating to the use of restraints and other conditions of his
confinement. The district court screened Payette’s complaint, see 28 U.S.C. § 1915A, and
allowed him to proceed on his claims under the First and Eighth Amendments. After some
discovery, appellees moved for summary judgment and the district court granted the
motion. Because the district court erred by not considering the evidence submitted by
Payette that precludes summary judgment on some of his claims, we affirm in part, vacate
in part, and remand.
We begin with a procedural point. The district court based its ruling only on facts
submitted by the appellees, incorrectly believing that Payette “failed to submit any
evidence which contradicts the affidavits submitted by the defendants.” While Payette did
not follow the usual method of submitting firsthand evidence—that is, filing a separate
affidavit—he did assert facts in his complaint and in his response to appellees’ motion for
summary judgment. By declaring under penalty of perjury that the complaint and the
response were true, Payette “converted” those filings into affidavits; accordingly, the
district court should have considered them evidence. See Dale v. Lappin, 376 F.3d 652, 655
(7th Cir. 2004) (response to summary judgment motion); Ford v. Wilson, 90 F.3d 245, 247 (7th
Cir. 1996) (complaint). Appellees defend this part of the district court’s ruling by pointing
to a district court’s discretion to treat one party’s proposed facts as undisputed when the
other party does not comply with a local rule for motions related to summary judgment.
See, e.g., Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006). But here the district court did
not invoke its discretion under local rules, and under similar circumstances, we have
refused to second-guess such a decision. Jessup v. Luther, 227 F.3d 993, 999 n.5 (7th Cir.
2000); McGann v. Northeast Regional Commuter R.R. Corp., 8 F.3d 1174, 1178 n.3 (7th Cir.
1993). In recounting the facts, then, we consider the entire summary judgment record, and
as usual, we consider the facts in the light most favorable to the nonmoving party, Payette,

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and draw all reasonable inferences in his favor. See, e.g., Lewis v. School Dist. #70, 523 F.3d
730, 741 (7th Cir. 2008).
Payette was housed at Marathon County Jail between March and October of 2006.
As we noted, he was a particularly difficult inmate and was subjected to a number of
administrative and disciplinary sanctions; he blames his behavior on severe depression that
was exacerbated by the conditions of which he complains. Specifically, in June, when jail
officials found Payette with a homemade rope made out of bed linens tied around his neck,
they moved him to a different cell to better observe him until an evaluation by the jail’s
mental health provider cleared him as safe to return to his cell. In August, after Payette
used a metal nail clipper to carve concrete from the walls in his cell, he was placed in
administrative segregation. In September, while still in administrative segregation, Payette
and his cellmate used a homemade chisel to carve concrete from the walls in their cell.
(Payette later pleaded guilty to criminal damage of property based on this incident.) In
response, jail guards placed Payette in a cell with glass windows so that they could observe
him better. The next day, Payette broke a telephone in a visitation room and hid pieces of it
in his waistband before guards searched him and discovered the pieces. While Payette was
out of his cell, jail guards were searching his belongings and found a piece of metal that
Payette had broken from a drinking fountain.
In response to Payette’s destructive behavior, Jail Administrator Bob Dickman
ordered him placed in restraints. A complete description of the restraints is not in the
record, but both sides agree they included bindings of the legs, wrists, and waist. Payette
reports that the restraints caused him constant pain and made it difficult for him to eat, use
the toilet, and sleep. According to appellees, Payette remained in restraints for five days.
Three days after the restraints were removed, Payette began a series of acts of self-
mutilation. First, he slashed both his forearms with a sharpened staple. Jail guards
considered the wound to be “superficial” and treated it with bandages, but Payette
counters that the wound was much worse; he says that he cut his arms open. Second,
about a week later, the guards gave Payette a plastic razor for shaving. After about 45
minutes, Payette told guards that he had accidentally flushed the razor down the toilet, but
a strip search revealed that he had inserted a piece of the plastic razor in his anus, which
required a trip to the hospital for removal. (Payette adds that the guards strip searched
him in a cell with a large glass window through which other inmates and guards of both
sexes could see him.) Finally, Payette returned to the hospital twice more in the next ten
days, once because he said he swallowed a staple and again because he swallowed another
piece of metal, this time from the sink in his cell.

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During each hospital visit following Payette’s self-mutilating acts, doctors
consistently recommended that the jail furnish him with mental health treatment. Payette
attached the records of these doctors’ recommendations to his brief in response to
appellees’ motion for summary judgment, but because he did not authenticate them and
because appellees objected to their use, they are not part of the summary judgment record.
See Scott v. Edinburg, 346 F.3d 752, 759 (7th Cir. 2003). Nevertheless, appellees themselves
admit that Jail Administrator Dickman knew about Payette’s self-inflicted injuries and
knew that the hospital recommended that Payette see a forensic psychiatrist. Dickman did
not follow the recommendation. He asserts that he relied on advice that he had earlier
received from the jail’s health care provider. That advice, which came two months before
Payette’s repeated attempts at self-mutilation required three trips to the hospital, was that
Payette could safely live in his cell.
Disregarding the fresh recommendation for mental health treatment provided after
Payette’s self-inflicted injuries and hospital visits, Dickman ordered Payette to be placed in
restraints for another seven days until he was transferred to a different facility. Payette
reports that because he was immobilized by the restraints, he had difficulty sleeping (a
situation exacerbated by the painful restraints, by a constantly illuminated light, and by the
jail’s decision not to allow him a blanket to protect against the cold) and suffered anxiety
attacks. During one attack, guards came into his cell, removed his mattress, lifted him two
or three feet in the air and dropped him onto the concrete slab that had held the mattress.
Payette also reports that after he was placed in the restraints, he began to experience chest
pains, bouts of paranoia, sleeplessness, and nightmares.
The district court addressed five of Payette’s claims. We take them in turn. First,
the court held that Payette’s placement in restraints was not cruel and unusual punishment
because Payette failed to show that it was done maliciously or sadistically. That is the
correct test for excessive force claims brought under the Eighth Amendment, see Whitley v.
Albers, 475 U.S. 312, 321-22 (1986); Harper v. Albert, 400 F.3d 1052, 1065 (7th Cir. 2005), and
Payette cannot satisfy it because he failed to produce evidence to rebut appellees’
assertions that he was placed in restraints for the legitimate purpose of preventing him
from harming jail property or himself.
By contrast, Payette can prove his second claim, that his conditions of confinement
were cruel and unusual, without showing malicious intent. See Farmer v. Brennan, 511 U.S.
825, 837 (1994). Conditions of confinement violate the Eighth Amendment if they deny an
inmate the “minimal civilized measure of life's necessities” and prison officials act with
“deliberate indifference,” to the conditions in question. Id. at 834; Townsend v. Fuchs, 522
F.3d 765, 773 (7th Cir. 2008). “Deliberate indifference” means that prison officials know of

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and disregard an excessive risk to inmate health and safety. Farmer, 511 U.S. at 837.
Shackling a prisoner based on a valid penological reason for a short period of time
ordinarily does not violate the constitution, see, e.g., Key v. McKinney, 176 F.3d 1083, 1086
(8th Cir. 1999); Bruscino v. Carlson, 854 F.2d 162, 166 (7th Cir. 1988), but the seven days that
Payette remained in restraints without mental health treatment after the hospital alerted
jail officials to his need for such treatment is evidence that jail officials disregarded a
significant risk to his health. Indeed, the Eighth Circuit has recognized as clearly
established that restraints on a psychiatric patient may be used only under close medical
supervision. Buckley v. Rogerson, 133 F.3d 1125, 1131 (8th Cir. 1998). Consistent with that
holding, regulations requiring close medical supervision of prisoners placed in restraints
for more than a brief period of time have been adopted by the American Correctional
Association, AMERICAN CORRECTIONAL ASSOCIATION, STANDARDS FOR ADULT CORRECTIONAL
INSTITUTIONS at 52-53 (4th ed. 2003), the United States Bureau of Prisons, 28 C.F.R.
§ 552.24(f), and the Wisconsin Department of Corrections, WIS. ADMIN. CODE DOC
§ 306.11(3)(e). Notably, Wisconsin correctional institutions—Marathon County Jail is not
one, though—may not keep an inmate in restraints for more than twelve hours without a
psychologist’s recommendation. Id.
Payette’s claim about the restraints is best conceptualized under the heading of
deliberate indifference to medical needs. The district court held that there was no evidence
that any of the appellees knew that Payette was at risk of serious harm or acted with
callous disregard to that risk because Payette received medical treatment following every
incident of self-destructive behavior. See Farmer, 511 U.S. at 834, 837. But Payette did not
receive any mental health treatment even though Dickman knew that the hospital
recommended it after repeated episodes of self-mutilation. Appellees argue that they were
not required to follow the recommendations of the outside doctors because their own
doctors had made a different recommendation earlier. Indeed, “[a] difference of opinion as
to how a condition should be treated does not give rise to a constitutional violation.”
Garvin v. Armstrong, 236 F.3d 896, 898 (7th Cir. 2001). But the health care provider at the jail
who earlier determined that Payette was not at risk did so two months before he slashed
his arms, twice swallowed pieces of metal, and inserted part of a plastic razor into his anus,
all of which necessitated three hospital visits. By disregarding the fresh advice for mental
health treatment prompted by recent shocking behavior, and by using only painful
restraints to control a patient for whom mental health treatment was now recommended,
jail officials seriously imperiled Payette’s mental health. According to Payette, as a result of
the jail’s conduct, he has suffered from anxiety attacks, chest pains, nightmares,
sleeplessness and bouts of paranoia following his release from the jail. On this record,
therefore, there is a genuine fact dispute over whether the appellees were deliberately
indifferent to Payette’s mental health needs.

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Payette has another, narrower, claim for deliberate indifference to his medical
needs—the medical treatment to his arms after he cut them with a staple—but the district
court correctly granted summary judgment on that claim. After Payette used the staple to
cut his forearms, he was bandaged by jail staff and not given further medical attention.
Payette says that this treatment left him with permanent scars, but he does not suggest that
the scars could have been avoided by another treatment that the staff knew about and
ignored. To survive summary judgment on this claim, Payette needed to present evidence
that a different treatment would have resulted in less scarring, cf. Williams v. Liefer, 491 F.3d
710, 714-15 (7th Cir. 2007) (plaintiff must provide verified medical evidence to show that a
delay in treatment harmed him), and he failed to do that.
The next claim that the district court addressed is Payette’s contention that he was
denied access to the courts because jail officials denied his requests to speak to his lawyer
and would not allow him to have paper and pencil. Payette argues that his inability to
communicate with his lawyer “allowed the defendants to continue to put [him] through
inhumane conditions.” But he is challenging those conditions in court now and does not
attest to any harm from the alleged denial of access that would require a remedy greater
than any remedy for his conditions-of-confinement claim. Thus, summary judgment on the
access-to-courts claim was proper. See Christopher v. Harbury, 536 U.S. 403, 415 (2002)
(backward-looking access claim must “identify a remedy that may be awarded as
recompense but not otherwise available in some suit that may yet be brought”).
Finally, the district court held that Payette was not denied a reasonable opportunity
to practice his religion when appellees denied him access to his bible because he failed to
allege that “he needed a bible to practice his religious beliefs or what those beliefs were.”
Putting this reasoning to the side, we affirm the district court’s ruling as to Payette’s
religious-freedom claim, first, because appellees did not target Payette’s religious practice;
they removed all books from his cell because they believed he had previously used a part of
a book to create a chisel. Thus, the bible was removed based on a rule of general
applicability that did not target religious practice. See Church of Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 531 (1993). And even if removal of the bible were considered to
be an infringement on Payette’s freedom to exercise his religion, Payette has not rebutted
appellees’ explanation that any infringement was reasonably related to legitimate
penological interests. See Turner v. Safley, 482 U.S. 78, 89 (1987); Kaufman v. McCaughtry, 419
F.3d 678, 682-83 (7th Cir. 2005).
Finally, the district court did not address Payette’s claim that the way jail guards
searched him for the missing plastic razor violated his Fourth and Eighth Amendment
rights. At the screening stage, the district court did not mention the Fourth Amendment

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claim so we assume it intended to dismiss that claim. In any event, we have held that
prisoner strip-search claims are better addressed under the Eighth Amendment, see
Peckham v. Wisconsin Dept. of Corrections, 141 F.3d 694, 697 (7th Cir. 1998), and the district
court allowed Payette to proceed on his claims under the Eighth Amendment. Payette’s
evidence—his verified observation—is that he was strip searched in front of a window in
which everyone in the booking department, including inmates and officials of both sexes,
could see him. Payette does not contest the jail’s valid penological reason for searching
him; he contests the manner of the search. And his assertions create a triable dispute
whether the search was conducted "in a harassing manner intended to humiliate and inflict
psychological pain." Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003); cf. Fillmore v. Page,
358 F.3d 496, 505 (7th Cir. 2004) (no constitutional violation when strip search was
conducted “in a discreet and expeditious manner” in a cell that was out of view of other
inmates).
Accordingly, we AFFIRM the district court’s grant of summary judgment as to the
excessive-force claim, access-to-courts claim, religious-freedom claim, and the claim of
deliberate indifference to medical needs regarding the bandaging of Payette’s arms. We
VACATE the court’s grant of summary judgment on the other claims and REMAND for
proceedings consistent with this order.

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