In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3471

ROGER FORREST, JR.,

Plaintiff-Appellant,

v.

MICHAEL PRINE,

Defendant-Appellee.

Appeal from the United States District Court 

for the Central District of Illinois.

No. 4:07-cv-04086-JAG—John A. Gorman, Magistrate Judge.

ARGUED APRIL 14, 2010—DECIDED AUGUST 31, 2010

Before POSNER, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge. Roger Forrest brought this action

against Officer Michael Prine and Rock Island County

Sheriff Michael Huff, asserting, among other things, an

excessive force claim against Officer Prine under 42

U.S.C. § 1983. The district court granted summary judgment for the defendants. Mr. Forrest appeals only the

dismissal of his excessive force claim against Officer

Prine. For the reasons stated in this opinion, we affirm

the judgment of the district court.
2 No. 09-3471

I

BACKGROUND

A.

On March 8, 2007, the police responded to a 911 call from

Mr. Forrest’s son, who reported that Mr. Forrest was

hitting people in their home. The police arrived and

found Mr. Forrest to be uncooperative. The police forcefully entered the home, and an altercation ensued during

which Mr. Forrest struck a police officer in the face. In

order to subdue Mr. Forrest, the police employed a taser

device several times. Several police officers then escorted

Mr. Forrest to the Rock Island County Jail. Mr. Forrest

ultimately was charged with aggravated battery of a

police officer, a felony charge.

Rock Island County has a policy that any person charged

with a felony is required to submit to a complete strip

search as part of the booking process in order to ensure

that no weapons or contraband are brought into the jail.

This policy is meant to protect the safety of imprisoned

individuals and officers in the jail. The strip search includes a visual body cavity search.

Mr. Forrest was escorted to a holding cell for the

strip search. He estimated that between six and seven

officers remained in the area. The officers observed that

Mr. Forrest appeared to be under the influence of something, possibly alcohol. Mr. Forrest removed most of his

clothing, but refused to remove his underwear. Officer

Michael Prine entered the cell with a taser and ordered

Mr. Forrest to remove his underwear. Officer Prine had
No. 09-3471 3

In accordance with the jail’s established strip search

1

protocols, the officers commanded Mr. Forrest to bend over,

spread his buttocks, squat down and cough. 

Mr. Forrest apparently was disabled due to a leg injury, and

2

had, on some occasions in the past, walked with a cane. However, Mr. Forrest did not testify that he was limping on this

occasion, and the officers denied that Mr. Forrest exhibited a

limp during the course of events that evening. Thus, no evidence exists from which we may draw the reasonable inference that Mr. Forrest was limping on March 8, 2007.

At the time of the events in question, Mr. Forrest was 42

years old. His approximate height and weight were 5’11” and

280 pounds. Officer Prine was 6’1” and weighed 295 pounds. 

been trained in the use of tasers. Although he had not

arrested Mr. Forrest earlier that evening, Officer Prine was

aware that a taser already had been employed several

times on Mr. Forrest during the course of the arrest. Officer

Prine warned Mr. Forrest that he would employ the

taser if he did not comply with the strip search commands. Mr. Forrest called the officers “faggots” and used

other expletives. See Forrest Dep. 48:19-22, Oct. 22, 2008;

Prine Dep. 33:23-25, Oct. 22, 2008.

Mr. Forrest eventually removed his underwear but

would not comply with the rest of the strip search commands. Shouting obscenities and with fists clenched, 1

Mr. Forrest began pacing back and forth while facing

Officer Prine. Mr. Forrest never approached Officer 2

Prine and remained 7-10 feet away. Over the course of

several minutes, Officer Prine repeatedly told Mr.

Forrest that unless he complied with the strip search
4 No. 09-3471

 In his appellate brief, Mr. Forrest states that he testified that 3

he did not duck. See Appellant’s Br. 6-7. However he does not

comply with Federal Rules of Appellate Procedure 10(b)(2) and

28(a)(7), or Circuit Rule 28(c), which require Mr. Forrest to

(continued...)

commands, the officer would use the taser. Officer

Prine testified that he did not believe it was safe to approach Mr. Forrest any closer.

Officer Prine finally employed the taser on Mr. Forrest.

The officer held the taser with both hands, outstretched

from his body. The officer testified that he aimed the

taser gun at Mr. Forrest’s upper back. Another police

officer, Christopher Young, testified that, at some point

during the events, he saw the taser’s laser sighted on

Mr. Forrest’s torso. A third officer, Michael Mendoza,

testified similarly, clarifying that the laser was sighted

“chest to waist.” Mendoza Dep. 54:11, Mar. 23, 2009.

Mr. Forrest testified that the taser was pointed at his

face, although he could not see the red dot of the

taser’s laser. He told Officer Prine to get the taser out of

his face. Forrest Dep. 46:24-47:11, Oct. 22, 2008.

Officer Prine testified that, as he fired the taser,

Mr. Forrest “kind of bent down.” Prine Dep. 64:13-16,

Oct. 22, 2008. Officer Young testified that Mr. Forrest

“ducked down and turned just as the taser was deployed.” Young Aff. 2, June 23, 2009. Officer Mendoza

testified that Mr. Forrest made some kind of unusual

movement, “almost like a duck.” Mendoza Dep. 54:19-22,

Mar. 23, 2009. Mr. Forrest did not testify to the contrary.3
No. 09-3471 5

(...continued)

support his contention with citations to the summary judgment

record. We have found no support for Mr. Forrest’s contention,

and, thus, we shall not credit it.

One taser discharge hit Mr. Forrest’s face, near his eye;

another dart struck his arm. Mr. Forrest fell and struck

his face against the back wall of the holding cell, causing

a mild depressed deformity of his left zygomatic arch

(his cheekbone).

B.

Mr. Forrest brought this action against Officer Prine

and Sheriff Huff. The section 1983 count relevant to

this appeal alleged that Officer Prine employed excessive

force when he used the taser to subdue Mr. Forrest.

Mr. Forrest alleged that he sustained an injury when

he struck the wall of the cell; he does not allege an

injury from the actual impact of the taser. The complaint identified the Fourth and Fourteenth Amendments to the Constitution as bases for the excessive

force claim. Officer Prine moved for summary judgment, contending that no genuine issue of material fact

existed as to whether he had used excessive force. The

district court, applying the Eighth Amendment standard

prohibiting the malicious and sadistic infliction of

harm, agreed and granted summary judgment for

Officer Prine. Mr. Forrest appeals only that portion of

the district court’s ruling.
6 No. 09-3471

II

DISCUSSION

We review de novo a district court’s grant of summary

judgment. See Lewis v. Downey, 581 F.3d 467, 472 (7th Cir.

2009). Summary judgment should be granted “if the

pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c)(2). All disputed facts are resolved and reasonable

inferences are drawn in favor of the non-moving party,

Mr. Forrest. See Lewis, 581 F.3d at 472; see also Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986). The

summary judgment standard 

mirrors the standard for a directed verdict under

Federal Rule of Civil Procedure 50(a) . . . . [T]he

genuine issue summary judgment standard is

very close to the reasonable jury directed verdict

standard . . . . [T]he inquiry under each is the

same: whether the evidence presents a sufficient

disagreement to require submission to a jury or

whether it is so one-sided that one party must

prevail as a matter of law.

Anderson, 477 U.S. at 250-51; see also Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986).

To prevail in this section 1983 action, Mr. Forrest must

establish (1) that he had a constitutionally protected

right, (2) that he was deprived of that right, (3) that

Officer Prine intentionally deprived him of that right
No. 09-3471 7

and (4) that Officer Prine acted under color of state law.

See Cruz v. Safford, 579 F.3d 840, 843-44 (7th Cir. 2009).

The third and fourth elements are not at issue in this

case. Our focus, therefore, must be on the first and

second elements. 

A.

Although Mr. Forrest’s complaint alleges that Officer

Prine deprived him of his Fourth Amendment right to

be free from unreasonable search and seizure, he

invites our attention primarily to authorities based on

the Fourteenth Amendment. As the district court appeared to recognize, the Fourth Amendment right to

be free from unreasonable searches and seizures has

temporal limitations, see Lee v. City of Chicago, 330 F.3d

456, 462-63 (7th Cir. 2003), and does not extend throughout the entire pretrial detention process, see Payne v.

Churchich, 161 F.3d 1030, 1039 & n.10 (7th Cir. 1998);

Wilkins v. May, 872 F.2d 190, 192-94 (7th Cir. 1989). Although we have not yet had occasion to define

precisely the contours of those temporal limitations, the

events that unfolded in this case place Mr. Forrest’s

claim outside the temporal bounds of the Fourth Amendment. Cf. Wilkins, 872 F.2d at 192-93 (concluding that no

Fourth Amendment right applied at the moment the

plaintiff alleged excessive force in a pretrial prison

setting because the plaintiff had been “seized” for purposes of the Fourth Amendment when he was arrested

previously, and not when the excessive force incident

occurred). See generally Mitchell W. Karsch, Note, Excessive
8 No. 09-3471

Force and the Fourth Amendment: When Does Seizure End?,

58 Fordham L. Rev. 823 (1990).

As the case comes to us, therefore, Mr. Forrest’s primary

contention is that he was deprived of his Fourteenth

Amendment right to due process when Officer Prine

employed the taser on him. This provision provides the

appropriate constitutional standard against which to

measure Mr. Forrest’s claim because he was a pretrial

detainee at the time he alleges his constitutional rights

were violated. See Estate of Moreland v. Dieter, 395 F.3d

747, 758 (7th Cir. 2005) (“Because Moreland was a

pretrial detainee in the jail at the time of his death in

custody, the plaintiffs’ claim falls within the Fourteenth

Amendment . . . .”); Payne, 161 F.3d at 1039-40 (“[I]t is

clear that Mr. Hicks essentially is alleging maltreatment while in custody as a pretrial detainee. Under the

prevailing case law, such allegations are treated as

claims under the Due Process Clause of the Fourteenth

Amendment.”); Wilson v. Williams, 83 F.3d 870, 875 (7th

Cir. 1996) (“Between the status of free citizen and convicted prisoner lies the ‘pretrial detainee,’ protected by

the due process clause of the Fourteenth Amendment.”).

In a similar context, we have explained:

The scope of an individual’s right to be free from

punishment—and, derivatively, the basis for an

excessive force action brought under § 1983—

hinges on his status within the criminal justice

system. On one end of the spectrum are sentenced

prisoners. The Eighth Amendment protects these

individuals only from the infliction of cruel and
No. 09-3471 9

In Lewis v. Downey, 581 F.3d 467 (7th Cir. 2009), the plaintiff 4

had been convicted, but was awaiting sentencing. Thus, his

constitutional status, for purposes of his section 1983 excessive

force claim, fell somewhere in between pretrial detainee

and sentenced prisoner. We held that the Fourteenth Amendment provided the basis for his claim. Mr. Forrest was

awaiting arraignment at the time Officer Prine employed the

taser. Mr. Forrest therefore falls within the pretrial detainee

category and the Fourteenth Amendment serves as the basis

for his excessive force claim. 

unusual punishment, which is often defined in

the prison context as the unnecessary and wanton

infliction of pain. 

Pretrial detainees, by contrast, have not been

convicted or sentenced and thus are not yet

punishable under the law. As such, pretrial detainees couch excessive force claims as violations

of their Fourteenth Amendment rights to due

process, not infringements on the Eighth Amendment’s ban on cruel and unusual punishment.

Lewis, 581 F.3d at 473 (internal quotation marks and

citations omitted). The Fourteenth Amendment right to

4

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. Id.

at 475 (citing City of Revere v. Mass. Gen. Hosp., 463 U.S.

239, 244 (1983)); see also Wilson, 83 F.3d at 875. Mr. Forrest

has not explained, however, how any protections guaranteed by the Fourteenth Amendment provide him with

more protection than he would receive under tradi-
10 No. 09-3471

Indeed, “the exact contours of any additional safeguards 5

[guaranteed by the Fourteenth Amendment] remain undefined.” Lewis, 581 F.3d at 474.

tional Eighth Amendment standards. We therefore 5

shall borrow Eighth Amendment standards to analyze

Mr. Forrest’s Fourteenth Amendment section 1983 claim.

Cf. Lewis, 581 F.3d at 475 (refusing to consider, absent

the parties’ raising the issue, “any safeguards the Fourteenth Amendment provides beyond those it shares

with the Eighth Amendment”).

“The ‘unnecessary and wanton infliction of pain’ on a

prisoner violates his rights under the Eighth Amendment.”

Id. (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).

Force used in “a good-faith effort to maintain or restore

discipline,” does not rise to the level of being unnecessary and wanton. Hudson v. McMillian, 503 U.S. 1, 7 (1992).

Only force intended “maliciously and sadistically” to

cause harm to the prisoner falls under that standard. Id.

Several factors are relevant in determining whether

a defendant applied force in good faith or for

purposes of causing harm, including the need

for force, the amount of force used, the threat

reasonably perceived by the officer, efforts made

to temper the severity of the force, and the extent

of the injury caused by the force.

Lewis, 581 F.3d at 477.
No. 09-3471 11

In Lewis, the plaintiff was struck by an officer’s taser while 6

lying in a bed and, according to his version of the facts, without

warning. We determined that a genuine issue of material fact

existed as to whether the officer’s use of force at that moment

was intended as a good faith effort to maintain order or

was excessive. The facts in Mr. Forrest’s case are, of course,

not comparable.

B.

Mr. Forrest contends that Officer Prine had absolutely

no justification for using a taser on him because

Mr. Forrest posed no threat. We must conclude that

no reasonable jury would agree. See Anderson, 477 U.S. at

250-51 (discussing the summary judgment standard).

Officer Prine was aware that Mr. Forrest had attacked

an officer earlier in the night, necessitating at least one

use of the taser to maintain officer safety and public order.

Mr. Forrest does not dispute that he appeared to be

intoxicated, and, consequently, the officer reasonably

could have perceived him as acting unpredictably. The

immediate situation facing Officer Prine was indeed a

very difficult one. Mr. Forrest was a relatively large man

confined in an enclosed space of relatively small area.

Facing Officer Prine, he was pacing in the cell, clenching

his fists and yelling obscenities. Mr. Forrest was not

merely “slow to comply with an order”; his conduct

created a situation where the officers were “faced with

aggression, disruption, [and] physical threat.” Lewis, 581

F.3d at 477. Clearly, Mr. Forrest posed an immediate 6

threat to safety and order within the jail. The use of a

taser in such circumstances constituted a permissible use
12 No. 09-3471

Mr. Forrest suggests that Officer Prine should have used the 7

direct contact feature of the taser, as opposed to the gun

feature. The record makes clear, however, that Officer Prine

reasonably assessed that he could not safely draw sufficiently

close to Mr. Forrest to permit such an application of the

taser. Nor does the record affirmatively establish that such an

application would have resulted in less of a chance of

Mr. Forrest falling and sustaining injuries similar in kind to

those of which he now complains.

of force. See id. at 477-78 (“In a jail or prison setting, it

is not hard to imagine any number of scenarios that

would justify the [use of] . . . taser guns.”).7

Additionally, before employing the taser, Officer Prine

warned Mr. Forrest several times that noncompliance

would result in tasing. Mr. Forrest did not heed the

warnings. Cf. Kinney v. Ind. Youth Ctr., 950 F.2d 462, 466

(7th Cir. 1991) (affirming summary judgment dismissal

of the plaintiffs’ Eighth Amendment section 1983 claims

of excessive force against defendant officer because

officer gave the plaintiffs verbal warnings to stop or be

shot).

In the course of his argument to us, Mr. Forrest contends that a genuine issue of material fact exists as to

whether Officer Prine aimed at Mr. Forrest’s eye. Although

he claims no specific injury to his eye, Mr. Forrest nevertheless submits that, if Officer Prine did aim the instrument at his eye, such a fact would evince a “malicious

and sadistic” intent on Officer Prine’s part to cause

harm, even if some force was permissible under the
No. 09-3471 13

circumstances. See Hudson, 503 U.S. at 7. In Mr. Forrest’s

view, the mere fact that a taser struck near his eye constitutes a “smoking gun” and requires us to infer that

Officer Prine intended that the taser strike that location.

First, as a preliminary matter, we think that such an

inference is an inexorable consequence of the situation.

No reasonable person could accept Mr. Forrest’s contention that, because the officer was trained in the use of

tasers, the only possible reason for the taser hitting his

face is that Officer Prine intended that the taser hit his

face because he must have hit precisely where he

was aiming. There is another very obvious explanation

as to why the taser hit Mr. Forrest’s face. As we already have noted, the undisputed evidence shows

that Mr. Forrest was pacing in an agitated manner

when Officer Prine discharged the taser device. No reasonable jury could believe that a police officer, although

trained in the use of tasers, always hits precisely his

target when the target is moving.

More importantly, on this record, it simply would not

be permissible for a jury to infer from the mere fact that

the taser hit Mr. Forrest’s face that Officer Prine maliciously and sadistically intended to cause Mr. Forrest

pain. After an examination of the entire record, we conclude confidently that the evidence would not sustain a

jury verdict premised upon such an inference. As we

already have noted, the record reveals that Officer

Prine confronted, in close quarters, a defiant, belligerent,

intoxicated pretrial detainee. He employed the taser only

after he had warned Mr. Forrest to cooperate. This warning
14 No. 09-3471

In Orem v. Rephann, 523 F.3d 442, 447 (4th Cir. 2008), an officer 8

employed a taser on the plaintiff and told her to “stop it” and to

respect the officer’s authority, immediately after the plaintiff

had cursed at the officer. Those facts, along with the manner

in which the officer used the taser, contributed to the court’s

conclusion that genuine issues of material fact existed as

to whether the officer’s “use of the taser gun was wanton,

sadistic, and not a good faith effort to restore discipline.” Id.

was entirely appropriate under the circumstances and

cannot reasonably be construed as evincing a malicious

intent. Indeed, the record provides affirmative evidence

that Officer Prine was proceeding in a professional

manner to accomplish a difficult task in a dangerous

situation.

Mr. Forrest maintains, however, that we should infer

that Officer Prine was angry and wanted to harm

Mr. Forrest because Mr. Forrest had impugned Officer

Prine’s character with the use of invectives. However, on

this record, that theory is wholly speculative, and

Mr. Forrest is not entitled to such an unsupported inference. See Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir.

2008) (“[I]t is well-settled that speculation may not be

used to manufacture a genuine issue of fact.” (internal

quotation marks omitted)). Unlike in some cases, where

the officer’s response to the detainee’s invectives

supports the inference that the officer was angry when

he employed the taser, cf. Orem v. Rephann, 523 F.3d 442,

446-47 (4th Cir. 2008), there is simply no such evidence 8

in this case.
No. 09-3471 15

Mr. Forrest’s counsel admitted at oral argument that the 9

statement was ambiguous and a reasonable interpretation

would be that Mr. Forrest was using mere “street talk”

to demand that the taser not be used.

Finally, although it is conceivable that Mr. Forrest was

speaking literally when he told Officer Prine to get the

taser out of his face, such an interpretation does not

comport with the evidence before us. The record reveals 9

a chaotic scene in which Mr. Forrest, pacing about in

his cell, had no way of knowing precisely where

Officer Prine was aiming. Our reading of this part of the

record reveals an intoxicated, defiant, angry and belligerent pretrial detainee speaking about the action of an

officer holding a taser device 7-10 feet away while the

officer attempted to convince him to comply with the

prison’s intake procedure. Mr. Forrest’s characterization

of his exclamation in this situation is, at best, the sort of

self-serving and uncorroborated testimony by a party

that does not create a genuine dispute of fact. Mr. Forrest’s

“less than definitive knowledge does not cast sufficient

doubt on what the officer reasonably believed at the

time.” See Valance v. Wisel, 110 F.3d 1269, 1276 (7th Cir.

1997).

Conclusion

A reading of the record reveals that Officer Prine’s use

of the taser was a reasonable, good faith effort to maintain or restore discipline within the jail. There simply is

no genuine issue of triable fact as to whether Officer
16 No. 09-3471

Prine’s decision to employ the taser amounted to a violation of the Due Process Clause of the Fourteenth Amendment. Even taking the evidence in the light most favorable to Mr. Forrest and drawing all reasonable inferences therefrom, no reasonable jury would conclude

that Officer Prine fired the taser with a malicious or

sadistic intent.

Accordingly, we affirm the judgment of the district court.

AFFIRMED

8-31-10