`To be cited only in accordance with
`Fed. R. App. P. 32.1
`
`United States Court of Appeals
`For the Seventh Circuit
`Chicago, Illinois 60604
`
`Submitted February 22, 2012*
` Decided March 7, 2012
`
`Before
`
` RICHARD A. POSNER, Circuit Judge
`
` ILANA DIAMOND ROVNER, Circuit Judge
`
`JOHN DANIEL TINDER, Circuit Judge
`
`Nos. 11-2050 & 11-2051
`
`ARQUINCY LEE CARR,
`Plaintiff-Appellant,
`
`Appeals from the United States District
`Court for the Eastern District of Wisconsin.
`
`v.
`
`Nos. 10-C-997 & 10-CV-1017
`
`DAVID BETH, et al.,
`Defendants-Appellees.
`
`Aaron E. Goodstein,
`Magistrate Judge
`
`O R D E R
`
`Arquincy Carr, a Wisconsin inmate serving 114 months in prison for battery,
`strangulation, and witness intimidation, brought two suits under 42 U.S.C. § 1983 claiming
`that jailers in Kenosha County violated his rights under the Fourteenth Amendment while
`he was a pretrial detainee. A magistrate judge, presiding with Carr’s consent, see 28 U.S.C.
`§ 636(c)(1), screened and dismissed both complaints with prejudice for failure to state a
`claim, see id. § 1915A(b)(1). We have consolidated Carr’s appeals.
`
`*
` The defendants were not served with process in the district court and are not
`participating in these appeals. After examining the appellant’s briefs and the records, we
`have concluded that oral argument is unnecessary. Thus, the appeals are submitted on the
`appellant’s briefs and the records. See FED. R. APP. P. 34(a)(2)(C).
`
`
`
`Nos. 11-2050 & 11-2051
`
`Page 2
`
`Since Carr’s complaints were dismissed at the pleading stage, we assume for
`analysis that his allegations are true. See Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011).
`Carr’s first complaint (appeal no. 11-2050) recounts a series of minor altercations with jail
`employees. A few examples are characteristic. On one occasion he landed in segregation
`after he flooded a holding cell (apparently by clogging the sink or toilet) in protest of a
`guard’s verbal abuse. A few weeks later, after Carr had ignored a guard’s directive to end a
`phone call, she “grabbed his upper arm very roughly and squeezed it” while taking him to
`his cell. The next day Carr again flooded his cell, this time because he was not allowed to
`use the telephone. The guards who cleaned up the mess stripped Carr’s cell of bedding and
`hygiene supplies and did not give them back for two days. Another time Carr returned
`from a session with his therapist to find his mattress overturned and a legal envelope torn.
`Four days later a guard pushed him in the chest as he tried walking out of his cell after the
`door had been opened inadvertently.
`
`In his second complaint (appeal no. 11-2051), Carr recounts two physical altercations
`with guards. The first came after Carr grudgingly accepted an opportunity to shower on
`the condition that he wear handcuffs and a restraint around his waist. He fell in the
`shower, and at the same time the drain had become clogged—coincidentally, Carr
`says—from debris, soap, and soap wrappers. Carr announced that he could not shut off the
`water because he injured an arm and shoulder, and so Nicole Cheney, the attending guard,
`told Carr to exit the shower stall but leave the water running. Meanwhile, guard Duane
`Corso entered the room and began “lecturing” Carr about the running faucet and growing
`flood. When Carr replied that Cheney had told him to let the water run, Corso yanked him
`out of the shower by his lame arm, almost causing him to fall again. Cheney and Corso
`then escorted Carr back to his cell, where they were joined by two other guards. After
`entering the cell, Cheney pulled on the waist restraint and kicked Carr in the leg, knee, and
`side, causing tremendous pain, while Corso continuously twisted his arm. Carr told them
`to stop and lunged at Cheney when they did not. Corso shouted at her to spray Carr with
`pepper spray, which she did. Carr choked and was blinded by the chemical burning his
`eyes and face.
`
`The second incident involved guard Jeremy May, who stood outside Carr’s cell and
`told him to relinquish a pen. Instead of complying, Carr said, “I’ll think about it.” May
`went away momentarily but returned and pointed a canister of pepper spray at Carr
`through the meal slot. By then Carr had kicked the pen under the door and out of his cell,
`but May demanded his sheet and blanket. Carr responded by throwing “everything” at the
`door. May told him to turn around, and when Carr refused, May gathered reinforcements,
`including Steve Rae and “Corporal Honey.” The guards told Carr to extend his hands
`through the meal slot, and when he did, May roughly pulled on them, causing his arms to
`scrape against the top of the slot. May ignored Carr’s demand to stop pulling. May tried to
`open the cell door, but Carr held it shut. Another guard eventually slammed the door of the
`
`
`
`Nos. 11-2050 & 11-2051
`
`Page 3
`
`meal slot on Carr’s finger, stunning him long enough for Rae to spray him with pepper
`spray. Carr surrendered and was taken to a “sally port,” where May sprayed his face with
`water from a hose, preventing him from breathing. The incident caused cuts and bruises.
`
`The magistrate judge construed Carr’s first complaint as alleging that the
`defendants violated his rights under the Fourteenth Amendment by placing him in
`administrative segregation without due process of law, searching his cell and temporarily
`removing some items, and using force he describes as excessive. In dismissing the action,
`the magistrate judge concluded that, even by Carr’s account, the defendants were justified
`in holding Carr in segregation to prevent him from creating further safety hazards by
`flooding his cell in the general population. Moreover, the court reasoned, the search of
`Carr’s cell and the temporary confiscation of his property did not violate his right to due
`process, and his recitation describes uses of force that were necessary to maintain order.
`The magistrate judge construed Carr’s second complaint as again alleging that the
`defendants used unconstitutionally excessive force, and again the court dismissed this
`complaint on the understanding that the force used against Carr was not malicious or
`sadistic, but justified by the need to maintain order.
`
`In appealing the dismissal of his first complaint, Carr does not challenge the
`magistrate judge’s conclusions or develop a legal argument. See FED. R. APP. P. 28(a)(9)(A);
`Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001). Aside from noting the magistrate
`judge’s disposition and making the broad assertion that the court “seemed not to show
`concern for plaintiff’s pro se status,” Carr in his brief merely repeats the factual allegations
`and legal conclusions included in his complaint—and adds some more not included in his
`complaint. What is missing is argument about why the magistrate judge purportedly erred
`in dismissing Carr’s claims for failure to state a claim. Although we construe pro se briefs
`liberally, we will not craft litigants’ arguments for them. See Anderson, 241 F.3d at 545–46.
`The first appeal is thus dismissed.
`
`Carr’s brief in his second appeal is not much better, but at least he breaks up his
`presentation into what appears to be a “facts” section and an “argument” section, which
`makes it easier to discern how he thinks the magistrate judge erred. We understand him to
`be arguing that the magistrate judge erred in concluding that guards Cheney, Corso, May,
`and Rae did not act to punish him. (Carr’s brief also mentions Corporal Honey, but Honey
`is not a named defendant.) Carr argues that he posed no threat to anyone when Corso
`yanked his arm in the shower and afterward twisted his arm in his cell, or when Cheney
`kicked him in the leg and side and sprayed him with pepper spray, so their use of force
`was malicious and thus excessive. Carr further contends that he was complying with May’s
`commands when May pulled his hands through the meal slot, when Rae sprayed him with
`pepper spray, and when May sprayed him with the hose.
`
`
`
`Nos. 11-2050 & 11-2051
`
`Page 4
`
`We agree with Carr that his complaint states a claim against Cheney and Corso for
`excessive force. The Fourteenth Amendment right to due process affords pretrial detainees
`at least as much, and probably more, protection against punishment as does the Eighth
`Amendment’s ban on cruel and unusual punishment. See Smith v. Knox Cnty. Jail,
`No. 10-1113, slip op. at 3 (7th Cir. Jan. 23, 2012); Miller v. Dobier, 634 F.3d 412, 414–15 (7th
`Cir. 2011); Forrest v. Prine, 620 F.3d 739, 744 (7th Cir. 2010). When jailers are accused of
`using excessive force, the core inquiry is “whether force was applied in a good-faith effort
`to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v.
`McMillian, 503 U.S. 1, 7 (1992); see Santiago v. Walls, 599 F.3d 749, 757 (7th Cir. 2010). Several
`factors are relevant to this determination, including the need for force, the amount applied,
`the threat a guard reasonably perceived, the effort made to temper the severity of the force
`used, and the extent of the injury caused to the prisoner. Hudson, 503 U.S. at 7; Fillmore v.
`Page, 358 F.3d 496, 504 (7th Cir. 2004). Here, Carr alleges that Corso entered the shower
`room and yanked his arm, and then needlessly twisted his arms while telling Cheney to
`spray him with pepper spray while he was in restraints. And Cheney did spray him, and
`also kicked him in the leg and side for no reason, or so we must assume at this stage. It may
`be that Carr’s allegations are untrue, or that he’s omitted other pertinent facts that would
`explain the need and reasonableness of the force that was used. But with nothing more, we
`cannot infer that these actions were taken in a good-faith effort to maintain and restore
`discipline. And the allegations, construed in Carr’s favor, are severe enough that they rise
`above de minimis contact that is not sadistic or malicious. See Wilkins v. Gaddy, 130 S. Ct.
`1175, 1178–79 (2010); Hendrickson v. Cooper, 589 F.3d 887, 891 (7th Cir. 2009); Williams v.
`Curtin, 631 F.3d 380, 384 (6th Cir. 2011); Martinez v. Stanford, 323 F.3d 1178, 1180, 1184 n.2
`(9th Cir. 2003); United States v. Walsh, 194 F.3d 37, 41–42, 50 (9th Cir. 1999).
`
`But we reach a different conclusion for one of the claims against May and the claim
`against Rae. According to his complaint, Carr had refused May’s commands to relinquish
`the pen and turn around in his cell before May pulled Carr’s hand through the meal slot.
`Carr also had refused to open his cell door before Rae sprayed him with pepper spray.
`Even if these allegations are true, a finder of fact could not reasonably infer from the
`guards’ actions that their motive was anything more than a need to restore discipline: By
`his own admission, Carr was disobeying the guards’ orders. See Santiago, 599 F.3d at 757.
`One claim, though, still stands against May. Carr alleges that May suffocated him with
`water from a hose after the guards had succeeded in removing him from his cell and
`moving him to the “sally port.” Because it is unclear from the complaint whether Carr was
`complying with the guards’ commands at that point, and we must construe the facts in his
`favor, we cannot infer that May was acting to restore discipline. Thus, we conclude that the
`magistrate judge properly dismissed the claims against May and Rae regarding the
`altercation in the cell, but improperly dismissed the claim against May regarding the
`altercation in the sally port.
`
`
`
`Nos. 11-2050 & 11-2051
`
`Page 5
`
`We have reviewed Carr’s other contentions, and none has merit. Given that Carr has
`not alleged that any of the other six defendants named in his second complaint were
`personally involved in the use of force against him, the magistrate judge properly
`dismissed the complaint as against them. See Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir.
`2006); Palmer v. Marion County, 327 F.3d 588, 593–94 (7th Cir. 2003).
`
`Appeal no. 11-2050 is DISMISSED. For that litigation Carr has incurred two
`“strikes” under 28 U.S.C. § 1915(g), one for filing a complaint that fails to state a claim and
`a second for appealing the dismissal. See Hains v. Washington, 131 F.3d 1248, 1250 (7th Cir.
`1997).
`
`The judgment in appeal no. 11-2051 is VACATED in part and, as to defendants
`Cheney, Corso, May, and Rae, the case is REMANDED for further proceedings consistent
`with this order. In all other respects that judgment is AFFIRMED. And given this outcome,
`Carr has not incurred a strike for that litigation. See Turley v. Gaetz, 625 F.3d 1005, 1012 (7th
`Cir. 2010).