# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted December 7, 2018 *

Decided December 10, 2018

Before

MICHAEL S. KANNE, Circuit Judge

AMY C. BARRETT, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

No. 17

‐ 3337

J ULIAN J. MILLER,

Plaintiff

‐ Appellant

,

v

.

CLINT PEACHEY, et al.,

Defendants

‐ Appellees

. Appeal from the United States

District Court for the Eastern District

of Wisconsin.

No. 16

‐ CV

‐ 204

Lynn Adelman,

J udge

.

O R D E R

Julian Miller, a Wisconsin prisoner, sued three correctional officers for using

excessive force when they injured his wrist and neck while transferring him to a

segregation unit. The district court granted the correctional officers’ motion for

* 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. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 17

‐ 3337 Page 2

summary judgment, concluding that no reasonable jury could find in Miller’s favor.

Because that conclusion is correct, we affirm.

Several hours after Miller threw a newspaper at a correctional officer named

Reyes, striking him in the face and shoulder, three other officers—Drifften Kitzman,

Jerry Harrington, and Clint Peachey—moved Miller to a temporary segregation unit.

Kitzman and Harrington handcuffed Miller and, each holding one of Miller’s elbows

and wrists, escorted him to the unit, with Peachey following closely behind. Miller says

that he warned the officers that his left wrist was tender, having been broken twice

before. At one point, the group crossed paths with Reyes. Miller shouted at him,

demanding to know why he filed a conduct report. Peachey told Miller to “shut up.”

Miller’s account differs slightly from the officers’ but, recounting the facts in the light

most favorable to him, see Tradesman Int’l, Inc. v. Black

, 724 F.3d 1004, 1009 (7th Cir.

2013), his left wrist was reinjured when Kitzman and Harrington tightened their grips,

causing him to tense up. Peachey then grabbed Miller by the neck and head, shoving his

head back in a manner that Miller characterizes as a “chokehold.” When Miller began

choking on a piece of candy he had been eating, Peachey released him. Peachey asked

Miller if he was okay, and Miller replied that he was and started walking on his own.

Peachey then corralled Miller by the neck and head once more and asked him if he was

“going to go like a man or a girl.” Peachey restrained Miller for about a minute until the

group reached the segregation unit. Miller later saw a nurse and reported that his pain

lasted for one or two hours.

Miller filed a grievance alleging excessive force during the transfer. The

grievance was eventually denied, but an initial response from inmate complaint

examiner Joanne Bovee—describing Security Director R. Phillips’s review of the

matter—contained the misstatement that “excessive force was used” (according to

Bovee’s sworn declaration, the response should have expressed Phillips’s finding that

“excessive force was not used”).

Miller sued Peachey, Kitzman, and Harrington under 42 U.S.C. § 1983 for using

excessive force and failing to intervene to stop the use of excessive force by others.

Miller also asserted that Peachey retaliated against him and that the conditions of his

confinement were unconstitutional.

After the officers moved for summary judgment, Miller argued that the

evidence—including Phillips’s statement, a declaration by a fellow inmate witness

supporting Miller’s account of the facts, and an anonymous inmate’s prior grievance

alleging a similar use of excessive force by Peachey—established genuine issues of

material fact. But the district court granted summary judgment for the defendants,No. 17

‐ 3337 Page 3

concluding that nothing in the record suggested either that Kitzman and Harrington

applied any more force than they believed was necessary, or that Peachey acted

maliciously or sadistically with the intent to harm Miller. Peachey’s taunting Miller,

perhaps crude and unprofessional, was “hardly enough to show that Peachey was

sadistically trying to harm [him],” the court continued. As for the statement in Bovee’s

report about the use of excessive force, the court excluded it as hearsay. (The district

court also rejected Miller’s other claims, which he does not address further on appeal.)

Miller then moved to alter or amend the judgment, F ED

. R. C IV

. P. 59(e), arguing

that the court did not consider the fellow inmate’s declaration or Bovee’s reference in

her report to Phillips’s statement that excessive force was used. The court denied the

motion, explaining that the inmate’s declaration was redundant because the court—in

its summary

‐ judgment analysis—had adopted Miller’s account of the facts, and

Phillips’s statement was hearsay.

On appeal, Miller contends that the court “failed to view his evidence in a light

most favorable to him” and focused exclusively on his lack of serious injury and the

short duration of the encounter. He asserts generally that the court erred in not

accepting his characterization of the officers’ force as malicious and sadistic.

As the district court explained, however, it accepted the facts as asserted by

Miller. Even if the degree of force was what Miller alleged it to be, the court explained,

no reasonable jury could find that the force applied was anything more than

unreasonable. And conduct that is merely unreasonable is insufficient to support an

Eighth Amendment excessive

‐ force claim. See Rice ex rel. Rice v. Corr. Med. Servs.

,

675 F.3d 650, 667–68 (7th Cir. 2012). With regard to the court’s mention of Miller’s minor

injuries and the short duration of the encounter, the court is free to consider these

factors because they, among others, are relevant to determining whether the force was

applied in good faith or maliciously and sadistically. Id. at 668.

Next, Miller argues that the court wrongly excluded favorable relevant evidence,

particularly Bovee’s reference in her report to Phillips’s out

‐ of

‐ court statement. This

statement, he contends, is either not hearsay because it is an admission by a party

‐

opponent under F ED

. R. E VID

. 801(d)(2)(D), or alternatively, qualifies as a hearsay

exception for records of a regularly conducted activity or public records under F ED

. R.

E VID

. 803(6) and 803(8).

The district court properly excluded the statement. The statement is not an

admission by a party

‐ opponent because Phillips is not a party—the district court

dismissed him as a defendant at screening, see 28 U.S.C. § 1915A(a), months before

either party moved for summary judgment. Nor does the statement qualify as anNo. 17

‐ 3337 Page 4

exception under Federal Rule of Evidence 803(6) or (8), given that those exceptions

would apply only to Bovee’s report and not to Phillips’s statement contained within it.

See F ED

. R. E VID

. 805; Jordan v. Binns

, 712 F.3d 1123, 1129–30 (7th Cir. 2013).

Miller also asserts that the court overlooked his argument about the anonymous

inmate’s grievance against Peachey. But Miller failed to develop this argument in the

district court and has not explained how this grievance supports his claim.

AFFIRMED