United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 21, 2014*

Decided May 21, 2014

Before

RICHARD A. POSNER, Circuit Judge

          JOEL M. FLAUM, Circuit Judge

          FRANK H. EASTERBROOK, Circuit Judge

No. 13‐3604

NATANAEL RIVERA,

Plaintiff‐Appellant,

v.

MICHAEL SCHULTZ, et al.,

Defendants‐Appellees.

Appeal from the United States District

Court for the Western District of Wisconsin.

No. 12‐cv‐240‐bbc

Barbara B. Crabb,  

Judge.

O R D E R

Natanael Rivera, a Wisconsin prisoner, sued under 42 U.S.C. § 1983 claiming that

four guards at the Green Bay Correctional Institution violated his Eighth Amendment

rights when they conducted a pat‐down search during which his pants fell to the

ground. The suit proceeded to trial, but the district court concluded that the jury could

not reasonably find from Rivera’s evidence that the defendants had committed a

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

*

After examining the parties’ 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)(C).
No. 13‐3604 Page 2

constitutional violation and granted them judgment as a matter of law. Rivera, who

represented himself throughout the case, challenges that decision as well as the denials

of his motions to recruit counsel and to compel discovery. We affirm the judgment.

Before trial Rivera had asked the district court six times to recruit counsel. He

made the first two requests before the defendants had answered his complaint and

asserted that counsel was needed because his claim was legally complex, he had limited

access to a law library, and he suffers from mental impairments, including

schizoaffective disorder and mild mental retardation, that would prevent

self‐representation. The court responded that it was too early to evaluate whether

Rivera’s impairments would impede his efforts. In Rivera’s next four motions, he

repeated the reasons given previously but added that he no longer was receiving help

from a jailhouse lawyer and opined that his pro se status already had hampered his

discovery efforts. This time the judge explained that Rivera had been “cogent,

articulate, and well‐prepared” when interacting with the court. And given the

“straightforward nature” of Rivera’s claim, the court reasoned, his most important task

would be to recount the details of the pat‐down.

Rivera also moved twice before trial to compel discovery, including a

security‐camera video of the pat‐down. The first time the district court explained that

the defendants had complied adequately with Rivera’s requests and noted that the

pat‐down had not been recorded. The court rejected Rivera’s second motion as

untimely but noted also that some of the documents he wanted were irrelevant and

others had been addressed with his first motion.

At trial Rivera never disputed that a pat‐down was authorized as he was leaving

the recreation area. But he said that Samuel Menning, the guard conducting the

pat‐down, had grabbed his pants at the knee and pulled them down, exposing his

underwear. Menning then made a comment that elicited laughter from the other guards

who were present, but Rivera could not recall what was said. Seconds later, Rivera

continued, he told Menning to pull up his pants and the guard complied.

Menning and two other defendants, Michael Schultz and Lawrence Peterson,

gave a slightly different version. Menning explained that he accidently caught his glove

on Rivera’s pants, which were too big and loose fitting. Menning added that within two

seconds he had said, “Oops, sorry,” and pulled up Rivera’s pants. Menning admitted

laughing during the incident but insisted he was laughing at the situation, not Rivera.

Schultz then testified that he was nearby and saw Rivera’s pants fall as Menning was
No. 13‐3604 Page 3

swiping his legs. Schultz could not recall if he or the other guards laughed, but he

estimated that Rivera’s pants were down only for a second or two before Menning

pulled them up. Peterson, one of two guards restraining Rivera during the pat‐down,

corroborated his coworkers’ testimony.

At the close of the evidence, the defendants moved for judgment as a matter of

law. See FED. R. CIV. P. 50(a). The jury could not reasonably find an Eighth Amendment

violation, the defendants asserted, because the pat‐down had been authorized, Rivera’s

outer pants were down only for seconds, and even his testimony did not suggest

malicious intent. The district court agreed. The judge expressed surprise that the

defendants had not moved for summary judgment and explained that she had

understood Rivera to allege in his complaint that the defendants stripped him naked

and laughed at him for their own sexual gratification. Yet even Rivera’s testimony, the

judge continued, revealed only that his pants were down exposing his underwear for at

most two seconds. The court concluded that Menning’s actions, even if deliberate, did

not constitute an Eighth Amendment violation.

On appeal Rivera first challenges the district court’s refusal to recruit counsel. He

contends that the court should have considered whether the lawsuit was beyond his

ability to litigate because of its complexity and his mental impairments. But the district

court did exactly that. As the court noted, Rivera consistently was articulate and well

prepared despite his impairments. See Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007)

(en banc) (explaining that district judges should consider “pleadings, communications

from, and any contact with the plaintiff” when evaluating plaintiff’s competence to

litigate without counsel). Rivera had managed to prepare motions and interrogatories,

and had participated by telephone in a pretrial conference. Moreover, the court noted,

Rivera’s claim was simple, not complex, and not beyond his ability to litigate pro se.

See Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013); Santiago v. Walls, 599 F.3d 749, 762

(7th Cir. 2010); Pruitt, 503 F.3d at 655; Ward v. Smith, 721 F.3d 940, 943 (8th Cir. 2013).

We see no abuse of discretion.

Rivera also contends that the district court should have ordered the defendants

to produce a video of the pat‐down. But the court accepted the defendants’

representation that the incident had not been recorded. Rivera cannot argue that the

court should have compelled production of evidence that does not exist. See James v.

Hyatt Regency Chi., 707 F.3d 775, 784 (7th Cir. 2013); Packman v. Chicago Tribune Co., 267

F.3d 628, 646–47 (7th Cir. 2001).
No. 13‐3604 Page 4

Rivera finally argues that the district court should have allowed the jury to

decide his case. We disagree. Even when we draw all reasonable inferences in Rivera’s

favor, see Harper v. Albert, 400 F.3d 1052, 1061 (7th Cir. 2005), we cannot conclude that he

presented sufficient evidence for the jury to find in his favor, see Estate of Escobedo v.

Martin, 702 F.3d 388, 403 (7th Cir. 2012); Velez v. City of New York, 730 F.3d 128, 134 (2d

Cir. 2013); Burley v. Gagacki, 729 F.3d 610, 621 (6th Cir. 2013).

The testimony reflects that the incident was brief and occurred during the course

of a properly authorized pat‐down. No jury reasonably could find on this evidence that

Menning conducted the pat‐down in a harassing manner designed to humiliate Rivera

and cause him psychological pain. See Mays v. Springborn, 575 F.3d 643, 649 (7th Cir.

2009). Menning’s actions fell short of other pat‐down conduct that we have found could

constitute an Eighth Amendment violation. Compare Washington v. Hively, 695 F.3d 641,

642, 644 (7th Cir. 2012) (reversing grant of summary judgment for guard on inmate’s

Eighth Amendment claim that guard gratuitously fondled his genitals for five to seven

seconds during pat‐down and for two or three seconds during strip search),

with Watison v. Carter, 668 F.3d 1108, 1113–14 (9th Cir. 2012) (upholding dismissal,

under FED. R. CIV. P. 12(b)(6), of inmate’s claim that guard had violated Eighth

Amendment by smiling in “sexual” manner while deliberately brushing his thigh

against naked thigh of plaintiff sitting on toilet), and Berryhill v. Schriro, 137 F.3d 1073,

1076 (8th Cir. 1998) (upholding dismissal at summary judgment of inmate’s claim that

defendants had groped his buttocks to cause humiliation, since, even viewed in light

most favorable to inmate, evidence showed only that defendants had engaged in brief

though inappropriate “horse play”). We do not condone Menning’s conduct if it was

intentional, but we agree with the district court that the jury could not reasonably have

found from the trial evidence that Rivera suffered an Eighth Amendment deprivation.

AFFIRMED.