United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted February 13, 2017*

Decided February 15, 2017

Before

FRANK H. EASTERBROOK, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 15-3772

ALLEN N. CAFFEY,

Plaintiff-Appellant,

v.

LUCAS MAUE, et al.,

Defendants-Appellees.

Appeal from the United States District 

Court for the Southern District of Illinois.

No. 3:13-CV-322-NJR-DGW

Nancy J. Rosenstengel,

Judge.

O R D E R

Allen Caffey, an Illinois inmate, contends in this suit under 42 U.S.C. § 1983 that 

guards violated the First Amendment by punishing him for engaging in protected 

speech and also violated the Eighth Amendment by using excessive force and refusing 

medical care for a resulting head injury. The district court granted summary judgment 

for the guards on all claims, reasoning that Caffey lacks evidence he was punished 

because of his speech, that the guards used only de minimis force, and that Caffey’s head 

injury was not serious or ignored. Caffey has appealed, and although we agree with him 

 

* We have agreed to decide this case without oral argument because the briefs 

and record adequately present the facts and legal arguments, and oral argument would 

not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 15-3772 Page 2

that his claim of excessive force must be remanded for trial as to one defendant, we 

otherwise affirm the judgment.

Much of the evidence at summary judgment is disputed, and to the extent that 

disagreements between the parties exist, we recount the facts in the light most favorable 

to Caffey, the opponent of summary judgment. See Carson v. ALL Erection & Crane Rental 

Corp., 811 F.3d 993, 994 (7th Cir. 2016). Caffey worked as a janitor at Menard Correctional 

Center and was on duty in the law library when another inmate in the library assaulted a 

guard. Investigators suspected that the attack was gang related and interviewed dozens 

of prisoners, including Caffey. Two of the defendants, Chad Hasemeyer and 

Sean Henry, interviewed Caffey (the defendants dispute that they participated in this

interview, but we accept Caffey’s version). Hasemeyer and Henry warned Caffey that he 

would be isolated from the general population—as authorized by a third defendant, 

Major Richard Moore—if he refused to divulge what he knew. Caffey refused to talk

and, during the interview, called his interrogators “unprofessional” for threatening him.

After the interview Hasemeyer and Henry recommended placing Caffey in investigative 

segregation. Major Moore agreed, and Caffey was segregated for 30 days. 

Upon his release from segregation, Caffey was told he was being transferred to 

Pontiac Correctional Center. Guard Lucas Maue, a fourth defendant, cuffed Caffey’s 

hands and made him walk with his head down to a waiting bus. While descending a 

stairway, Caffey lost his shoes, became unsteady, and leaned against the handrail while 

asking Maue to slow down and hold him upright. Maue instead struck him on the head 

with a wooden stick and asked if he wanted to be hit again. Caffey has an affidavit from 

another inmate who says he saw Maue strike Caffey without provocation.

As Caffey reached the bus, he heard men yelling for a doctor and joined in,

shouting that he needed a doctor because his “head hurt.” Todd Scott, a fifth defendant 

who was guarding the inmates on the bus, was in earshot of Caffey, but instead of 

calling for medical attention, he readied Caffey for transport by grabbing his head,

pressing it against a window, and shackling his feet. Caffey complained that one of the 

shackles was too tight and hurting his ankle. He also repeated that his head injury 

required treatment, but Scott told him to “shut up.” Caffey did not have a visible wound, 

but by his account, he was experiencing ringing in his head, pressure around his eyes 

and face, and sharp pain every three minutes. The shackles were removed from his legs 

upon reaching Pontiac, leaving only an imprint on Caffey’s skin that went away after a 

few hours.
No. 15-3772 Page 3

Caffey’s property was transported to Pontiac separately, and Mary Richard, the 

last of the six defendants, processed it 20 days after receipt. When Caffey received his 

possessions, he discovered that an item of jewelry was missing and other property was 

damaged. Richard, who disclaims prior knowledge of Caffey’s accusations against 

Menard staff, attributes the processing delay to a backlog of items to inventory and 

insists that she released Caffey’s property in the same condition it was received.

Caffey claims that (1) Hasemeyer, Henry, Moore, and Richard violated the First 

Amendment by sending him to segregation, initiating his transfer to Pontiac, and 

converting and damaging his property because he refused to cooperate in their

investigation and called Hasemeyer and Henry unprofessional; (2) Maue and Scott 

violated the Eighth Amendment by gratuitously striking him and pressing his head 

against the bus window; and (3) Scott violated the Eighth Amendment by refusing 

medical care for his head injury. The defendants moved for summary judgment on all 

but the claims of excessive force against Maue and Scott. On the First Amendment claim,

the defendants argued that Caffey did not engage in protected speech by refusing to 

cooperate or by calling Hasemeyer and Henry unprofessional, and thus he did not suffer 

an actionable deprivation.

The district court concluded that both actions were protected but reasoned that 

Caffey could not prevail on his First Amendment claim because the defendants had 

given an unrebutted explanation for placing him in segregation that has nothing to do 

with his speech, he lacks evidence that any defendant was personally involved in the 

decision to move him to Pontiac, and he cannot establish that Richard knew about the 

events at Menard when she processed his incoming property at Pontiac. The claim of 

deliberate indifference also warranted summary judgment, the court continued, because 

in a deposition Caffey had said he felt only a “little pain,” which even if objectively 

serious, had not been ignored by Scott, who anticipated that Caffey would see medical 

personnel upon arriving at Pontiac. And, finally, as to Caffey’s allegations of excessive 

force, the court notified Caffey that it would enter summary judgment sua sponte unless 

he offered evidence that Maue and Scott had acted maliciously and used more than 

de minimis force. See FED. R. CIV. P. 56(f); Ellis v. DHL Exp. Inc. (USA), 633 F.3d 522, 529 

(7th Cir. 2011) (permitting the district court to enter summary judgment on its own after 

notice and reasonable time to respond). Caffey’s response did not satisfy the judge.
No. 15-3772 Page 4

On appeal1 Caffey argues that all of his claims should have survived summary 

judgment, so we start with the First Amendment. To prevail on that claim, Caffey 

needed evidence that he was penalized for engaging in protected speech. See Perez v. 

Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015); Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 

2009). The district court thought that Caffey had engaged in protected speech when he 

refused to help Hasemeyer and Henry investigate the law-library assault and also when 

he called them “unprofessional.” We disagree that this speech was protected, and that’s 

reason enough to uphold the dismissal of Caffey’s First Amendment claim.

Prison administrators often use the “stick” of withholding amenities and 

privileges to facilitate cooperation with their goals. See United States v. Boyd, 608 F.3d 331, 

334 (7th Cir. 2010) (discussing federal Inmate Financial Responsibility Program). More 

importantly, prisoners may be compelled to disclose information during internal 

investigations provided they are not punished for refusing to make self-incriminating 

statements without immunity. Riggins v. Walter, 279 F.3d 422, 430 (7th Cir. 2001). Caffey 

never hinted that answering the investigators’ questions might incriminate him, so he 

was not privileged to refuse.

Neither was his name-calling protected speech. Inmates retain a First 

Amendment right to complain about prison staff, whether orally or in writing, but only 

in ways consistent with their status as prisoners. See Turner v. Safley, 482 U.S. 78, 89–90 

(1987); Watkins v. Kasper, 599 F.3d 791, 796–97 (7th Cir. 2010); Pearson v. Welborn, 471 F.3d 

732, 741 (7th Cir. 2006); Simpson v. Nickel, 450 F.3d 303, 307 (7th Cir. 2006). Insubordinate, 

verbal remarks to prison staff are inconsistent with the status of a prisoner, see Kervin v. 

Barnes, 787 F.3d 833, 834 (7th Cir. 2015) (concluding that a prisoner engaged in 

unprotected backtalk by insisting on speaking with a lawyer after the guard had said 

“no”); Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008) (calling a hearing officer “foul 

and corrupted bitch” was not protected speech because the remark was “insulting, 

derogatory, and questioned her authority”); Freeman v. Tex. Dep't of Criminal Justice, 

369 F.3d 854, 858, 864 (5th Cir. 2004) (concluding that an inmate who during a religious 

 

1 The defendants contend that Caffey's notice of appeal was untimely because it 

was not received by the clerk of the district court until four days after the due date. 

Caffey tendered to this court a declaration averring that he placed his notice of appeal, 

with prepaid postage, in a prison mail system before the deadline expired. He thus was 

entitled to the benefit of the prison mailbox rule, and his notice of appeal was timely. 

See FED. R. APP. P. 4(c)(1); Ford v. Wilson, 747 F.3d 944, 948 (7th Cir. 2014); Hurlow v. 

United States, 726 F.3d 958, 962–64 (7th Cir. 2013).
No. 15-3772 Page 5

service accused a chaplain of theological errors had engaged in an unprotected challenge 

to institutional authority). Caffey called the guards unprofessional for warning him that 

his uncooperative attitude could cost him privileges. He made his comment directly to 

Hasemeyer and Henry during a security interview, outside the prison’s grievance 

process, which Caffey eventually used without repercussion. His statement wasn’t an 

attempt to complain to a supervisor; it was directed at the guards as a challenge to their 

authority.

We next turn to Caffey’s contention that he established a triable issue on his claim 

of deliberate indifference against Scott. According to Caffey, he conveyed to Scott that he 

was in pain, yet Scott brushed him off. To establish a triable issue, Caffey needed

evidence that he suffered an objectively serious medical need and that Scott was 

deliberately indifferent to that condition. Farmer v. Brennan, 511 U.S. 825, 834 (1994); 

Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010). Since Caffey had just been struck on 

the head and was experiencing pressure, ringing, and sharp, recurring pain, we can 

assume for purposes here that he suffered from an objectively serious medical condition. 

See Dobbey v. Mitchell-Lawshea, 806 F.3d 938, 941 (7th Cir. 2015) (noting that pain can be 

an objectively serious medical condition); Hayes v. Snyder, 546 F.3d 516, 523 (7th Cir. 

2008) (same). But Caffey did not present evidence from which to infer that Scott actually 

comprehended the extent of his pain and consciously disregarded the risk it posed. 

See Farmer, 511 U.S. at 837; Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) (en banc). 

Caffey testified that once he got onto the bus, he shouted—in concert with other men 

yelling for treatment—that he needed a doctor because his head was hurt and that he

directly asked Scott for a doctor. Caffey did not tell Scott, however, about the nature or 

extent of his head injury. See Dale v. Poston, 548 F.3d 563, 569 (7th Cir. 2008) (concluding 

that a prisoner’s vague statements were inadequate to put guards on notice of risk of 

harm). Scott did not know that Maue had struck Caffey, whose head injury was not 

visually apparent. Because Scott did not know the extent of Caffey’s injury, ignoring his

request for a doctor did not constitute deliberate indifference.

That leaves the claims of excessive force against Scott and Maue. To establish a 

triable issue, Caffey had to present evidence that the defendants applied force

maliciously and sadistically to cause harm rather than in a good-faith attempt to 

maintain or restore discipline. Hudson v. McMillian, 503 U.S. 1, 6–7 (1992); Rice ex rel. Rice 

v. Corr. Med. Servs., 675 F.3d 650, 668 (7th Cir. 2012). Factors relevant to a defendant’s

mental state include the need for force, the amount of force used, the threat reasonably 

perceived by officers, efforts made to temper severity of the force, and the extent of 

injuries caused by the force. Whitley v. Albers, 475 U.S. 312, 321 (1986); Rice, 675 F.3d 
No. 15-3772 Page 6

at 668. In this case no reasonable trier of fact could conclude that Scott used excessive 

force by pressing Caffey’s head against the bus window while shackling his legs. Some 

force is necessary in placing a prisoner in restraints, see Lunsford v. Bennett, 17 F.3d 1574, 

1582 (7th Cir. 1994), and Caffey offered nothing suggesting that the force Scott used was 

unnecessary or that it was applied for the purpose of causing harm.

The evidence against Maue, on the other hand, is sufficient to require a trial. The 

district court concluded—and Maue does not dispute—that a jury could find from the 

evidence that he deliberately used “unnecessary” force. Yet, the court reasoned, the force 

used was de minimis and Caffey’s injury “quite minor,” so gratuitously striking him in 

the head with a stick did not violate the Eighth Amendment.

That reasoning is incorrect. A “prisoner need not show a ‘significant injury’ in 

order to have a good claim under the [E]ighth [A]mendment, if a guard inflicted pain 

maliciously or sadistically.” Guitron v. Paul, 675 F.3d 1044, 1046 (7th Cir. 2012) (citing 

Hudson, 503 U.S. at 7). A blow to the head with a wooden weapon cannot be 

characterized as a mere offensive touch, and the degree of injury would have been 

relevant only if Maue could have thought the force he used was necessary to keep Caffey

under control. See Wilkins v. Gaddy, 559 U.S. 34, 37 (2010); Hendrickson v. Cooper, 589 F.3d 

887, 891 (7th Cir. 2009); Outlaw v. Newkirk, 259 F.3d 833, 840 (7th Cir. 2001). But Maue did 

not offer any evidence that Caffey posed a security threat when he struck him, and on 

this record a jury could find that his use of force was malicious. This claim must be tried 

to a jury.

The district court’s judgment in favor of Lucas Maue on Caffey’s claim of 

excessive force is VACATED, and that claim is REMANDED for further proceedings. In 

all other respects, the judgment is AFFIRMED.