Paul KNOX, Plaintiff-Appellant, v. Kenneth L. MCGINNIS and Thomas Roth, Defendants-Appellees.
No. 91-3527.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 12, 1992. Decided July 20, 1993.
1405
MR. LOFTUS: I can make those filings now?
THE COURT: Yes, you can give those to Mr. Fulbright. So, in effect, the two motions are under advisement, and the Court will rule in due course.
The record indicates that despite several notices that the March 22 proceedings would include a “prove-up” hearing, RJO did not submit any evidence relating to damages. Furthermore, at no time did RJO object to O‘Brien‘s written submission of evidence on the issue of damages or the court‘s statements that it would consider entering judgment on the default in the event the motion to vacate was denied. Thus, we find remand unnecessary—RJO had an opportunity to submit its position on the proper amount of damages at the March 22 “prove-up” hearing or seek a delay in decision on damages to allow it to submit such evidence; it failed to do either thus, in the absence of any contradicting evidence, the district court properly entered judgment limited to the amount O‘Brien alleged in his complaint.
Conclusion
RJO asserts that it has received unfair and unequal treatment because the district court refused to vacate its default, after twice relieving O‘Brien from dismissal for failure to attend scheduled hearings. The nature of litigation usually requires that one party win and the other lose. Well pleaded, well prepared and well presented cases sometimes place judges in the difficult position of choosing between two equally meritorious positions. On the other hand, when both parties ignore the rules of procedure and engage in slipshod practice, the court may necessarily be required to declare victorious a less than deserving party, which in this case is O‘Brien.
Accordingly, the order of default and the entry of default judgment are AFFIRMED.
Todd A. Smith, Corboy & Demetrio, David A. Novoselsky (argued), Novoselsky & Associates, Chicago, IL, for plaintiff-appellant.
Jan E. Hughes, Asst. Atty. Gen., Civ. Appeals Div., Chicago, IL (argued), for defendants-appellees.
Before MANION and ROVNER, Circuit Judges, and REYNOLDS, Senior District Judge.*
In this prisoner civil rights action, Paul Knox alleges that officials at Stateville Correctional Center (“Stateville“) subjected him to cruel and unusual punishment in violation of the eighth amendment when they restrained him with a mechanism comprised of a waist chain, handcuffs, and a “black box.” Prison officials used this restraint on Knox and on all other segregation prisoners when they were transported outside the segregation unit. The district court granted summary judgment in favor of defendants Ken-
I. FACTS
Knox is an inmate at Stateville. On February 21, 1990, prison officials discovered four homemade knives, two of which were approximately twenty inches long, two metal bar pieces, a metal file, and several pieces of sandpaper in Knox’ cell in a hollowed-out section of a board that was used as a bookshelf. Although he alone had occupied the cell for the preceding four to five months, Knox maintained that the contraband did not belong to him. A disciplinary report issued against Knox, and he ultimately was found guilty of possessing dangerous contraband. Prison officials accordingly revoked one year of Knox’ statutory “good time” and transferred him to the segregation unit.
As a “segregation” prisoner, Knox was required to wear handcuffs, a waist chain, and a black box whenever he left the segregation unit either to receive visitors or to visit the prison hospital or law library.2 The black box and waist chain were not used when Knox was in his cell, when he was taken to the shower, or during meals. The “black box” is a hard plastic box placed over the lock apparatus that runs between the prisoner‘s handcuffs. The box does not cover the hands, but is situated between them.3 A chain runs through the box and encircles the prisoner‘s waist. The chain is tightened and then locked in back so that the prisoner‘s hands, restrained by handcuffs and the black box, are pulled against his stomach. The black box is used on all segregation prisoners to prevent them from picking the locks on their handcuffs.
Knox remained in segregation from March 1 to October 1, 1990, and was subject to use of the black box during that period.4 He has since returned to the general prison population.
Knox maintains that the black box caused him severe discomfort and physical injury. The device required that his arms remain in close proximity to one another and to his chest, making it impossible for him to bring his arms or hands together. This posture caused the handcuffs to cut into Knox’ wrists whenever he moved his arms. The device left indentations on Knox’ wrists and sometimes caused bleeding.5 Knox also experienced persistent pain in his hands and numbness in his thumb. He still occasionally has pain in his left hand that prevents him from making a fist. Although Knox took Tylenol for the pain, he did not seek any other medical treatment. He did request that prison or hospital officials loosen or remove the device once he arrived at the hospital or visiting room, but those requests were refused.
II. ANALYSIS
A. Lack of a Response to the Summary Judgment Motion.
Knox initially challenges the district court‘s refusal to accept his tardy response to defendants’ summary judgment motion. Although his response was due by September 5, 1991, and although the district court ruled on September 30, 1991, Knox argues that the district court should have accepted his response to the summary judgment motion when it was filed on October 2, 1991.7 Knox contends that his inability to respond enabled the district court to assume the truth of defendants’ factual assertions and to disregard any factual disputes that he might have raised. See Rules 12(m), (n) of the General Rules of the United States District Court for the Northern District of Illinois; see also Wienco, Inc. v. Katahn Assoc., Inc., 965 F.2d 565, 567 (7th Cir.1992); Appley v. West, 929 F.2d 1176, 1179-80 (7th Cir.1991); Skagen v. Sears, Roebuck & Co., 910 F.2d 1498, 1500 (7th Cir.1990).
The district court did not abuse its discretion in refusing to accept the tardy response. See In re Narowetz Mechanical Contractors, Inc., 898 F.2d 1306, 1309-10 (7th Cir.1990). The district court already had issued its opinion when Knox’ court-appointed counsel requested permission to file the response. Thus, this is not a situation where the district court refused to accept a submission that was a few days late. This response was almost one month late and was submitted only after the district court had issued its decision. In today‘s climate of crowded dockets and limited judicial resources, a district court is not required to accept and to consider a response that is submitted after the court has ruled on a motion. See United States v. Kasuboski, 834 F.2d 1345, 1351-52 (7th Cir.1987) (affirming refusal to consider response to motion for summary judgment where both request for extension of time and response itself were submitted after decision on summary judgment motion). Instead, we agree with the district court that Knox waived his right to file a response.8
B. Qualified Immunity.
We review a district court‘s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn therefrom in the light most favorable to Knox. Williams v. Anderson, 959 F.2d 1411, 1413 (7th Cir.1992). We must determine whether the record reveals the absence of a genuine issue of material fact such that defendants would be entitled to judgment as a matter of law. Id.;
Our analysis of the qualified immunity question begins with Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), where the Supreme Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S. at 818, 102 S.Ct. at 2738; see also Williams, 959 F.2d at 1414. Qualified immunity focuses on the “objective legal reasonableness” of defendants’ conduct. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987); see also Marshall v. Allen, 984 F.2d 787, 792 (7th Cir.1993). As we have previously explained, “[a]ctions taken by local officials are considered objectively unreasonable only if the right allegedly violated is clearly established in a sufficiently particularized sense, at the time of the actions at issue.” Hall v. Ryan, 957 F.2d 402, 404 (7th Cir.1992); see also Marshall, 984 F.2d at 792; Azeez v. Fairman, 795 F.2d 1296, 1301 (7th Cir.1986). The qualified immunity defense therefore depends on the state of the law at the time of the alleged constitutional violation. Marshall, 984 F.2d at 792; Williams, 959 F.2d at 1414.
Our task, then, is to determine whether it was clearly established between March 1 and October 1, 1990, that use of the black box restraint on a segregation prisoner who was taken outside the segregation unit would violate the eighth amendment. The district court determined that it would not, noting that prior case law has “looked in the other direction,” with the only circuit considering the question finding use of the black box consistent with the Constitution. See Knox, 783 F.Supp. at 351-52 (citing Fulford v. King, 692 F.2d 11 (5th Cir.1982)).9 But Knox argues that immunity should not attach here because the prison officials did not limit themselves to the particular use of the black box condoned in Fulford—that is, in this case, unlike Fulford, officials used the black box inside as well as outside the prison confines. According to Knox, the qualified immunity defense “is available to protect defendant[s] only as far as case law establishes that th[e] use is constitutional. Beyond these limits, qualified immunity does not apply.” (Knox Br. at 18 (emphasis in original).)
Knox misunderstands the qualified immunity doctrine. The question is not whether the conduct is clearly constitutional, but whether it is clearly unconstitutional. Knox’ proposed test would focus on whether courts have specifically sanctioned particular conduct, whereas the correct inquiry is
Knox concedes that during the relevant time period, case law clearly established that use of the black box in the transportation of prisoners outside the prison did not violate the eighth amendment. Knox maintains, however, that the same cannot be said for use of the black box when transporting segregation prisoners within the prison. In advancing this argument, Knox attaches considerable weight to Fulford‘s brief mention of that distinction. See 692 F.2d at 14-15. From this, Knox presumably would argue that case law clearly established that use of the black box on a segregation prisoner inside the prison constituted cruel and unusual punishment.10 We cannot agree that Fulford or any other decision would have alerted defendants that their use of the black box within the prison walls would violate a prisoner‘s eighth amendment rights.
Between March and October 1990, Fulford was the major circuit court decision addressing use of the black box. The plaintiffs in that case had been confined in the “close cell restricted” (“CCR“) unit of a state penitentiary. This unit was set aside for prisoners who either presented a danger to others or who might themselves be at risk if housed in the general prison population. 692 F.2d at 12-13. The plaintiffs challenged two distinct prison policies: (1) that they be “fully restrained” by handcuffs, a waist chain, and leg shackles on trips to other parts of the prison, and (2) that they wear a black box over their handcuffs when traveling outside the prison. Id. at 13. The Fifth Circuit found that the first policy did not violate the prisoners’ equal protection rights because it was rationally related to the state‘s interest in maintaining prison security. Id. at 13-14.11 As for the black box, the court found this additional restraint justified “by the greater risk of escape when prisoners are outside the institution and [by] the reduced number of guards available to oversee the prisoners during those journeys.” Id. at 14. The Fifth Circuit explained that
[r]equiring all CCR prisoners to wear a black box when outside the prison does not violate the eighth amendment. Its use may inflict some discomfort, such as numbness of the arms and temporary marks, but the record does not show that prisoners are exposed to great pain or that any of their discomfort is occasioned either deliberately, as punishment, or mindlessly, with indifference to the prisoners’ humanity. The box‘s use outside of the prison is for a rational reason, security, and is directed by a standard prison policy, not left to unfettered discretion of guards. Under these circumstances, it is not within our power to substitute our judgment for that of the prison officials.
As Knox points out, Fulford also noted trial testimony indicating that the black box may have been used inside the prison at the discretion of a supervisor. However, the court found no evidence that the black box “was frequently so used or that its use was arbitrary or punitive.” Id. at 15. Although the court discredited the prisoners’ contention that the box was used in retaliation for their lawsuit, it did note that “use of the black box as a retaliatory or punitive measure would be an element in deciding whether black boxes are impressed on inmates within the prison as punishment and, as such, whether this use violates the eighth amendment.” Id. Although Fulford thus leaves open the possibility that retaliatory or punitive use of the black box may be unconstitutional, it does not create a clearly established right to be free from use of the black box inside the prison such that a reasonable prison official would understand that the conduct here would violate that right. See McDonald, 966 F.2d at 293. This is especially true where the black box is consistently used on all segregation prisoners moved outside the segregation unit and is not used arbitrarily or only at the discretion of a prison official.
Although Fulford did not expressly authorize all uses of the black box within a prison, leaving the door open for Knox’ argument here, a later district court decision, which we affirmed on appeal, arguably extends Fulford to encompass defendants’ conduct. In Bruscino v. Carlson, 654 F.Supp. 609 (S.D.Ill.1987), aff‘d, 854 F.2d 162 (7th Cir.1988), cert. denied, 491 U.S. 907, 109 S.Ct. 3193, 105 L.Ed.2d 701 (1989), Control Unit inmates at the federal correctional facility in Marion, Illinois argued that prison officials violated their constitutional rights by restraining them with handcuffs, a black box, and leg restraints during visits with their attorneys, which occurred within the prison facility. The inmates alleged that the additional restraints, especially the black box, caused tremendous discomfort and made it difficult for them to communicate meaningfully with their attorneys. Although the district court appreciated the inmates’ inconvenience and discomfort, it concluded that “the security concerns of prison administrators justify the measures that have been taken.” 654 F.Supp. at 617. The court therefore held that “restraining Control Unit inmates with cuffs, a black box and leg restraints during legal visits does not violate their right of access to the courts or any other constitutional right.” Id. (emphasis added). We affirmed but made only passing reference to use of the black box: “[t]he handcuffing, the shackling, [and] the boxing of the handcuffs . . . are reasonable measures in view of the history of violence at the prison and the incorrigible, undeterrable character of the inmates.”13 854 F.2d at 166.14
Finally, the district court in Hanna v. Lane, 610 F.Supp. 32 (N.D.Ill.1985), sanctioned the use of a security belt and handcuffs on a segregation prisoner while he received visitors. The district court reasoned that courts should be reluctant to interfere with security measures instituted by prison officials and explained that such a measure does not violate the eighth amendment “absent some showing that it constitutes a wanton infliction of pain that is totally without penological justification.” Id. at 35; see also Caldwell v. Miller, 790 F.2d 589, 600 (7th Cir.1986); Wells v. Franzen, 777 F.2d 1258, 1264 (7th Cir.1985). The court then focused on the plaintiff‘s status as a segregation prisoner, explaining that
[p]risoners in segregation are usually those who have violated prison rules or are under investigation for possible disciplinary action. It is not unreasonable to assume that as a class those prisoners represent a potential threat to security. Therefore, courts have sanctioned the use of mechanical restraints on prisoners in segregation-type status whenever they are taken out of the segregation unit. . . . For Eighth Amendment purposes, the mere fact of segregation is sufficient to justify use of handcuffs and a security belt for purposes of receiving contact visits.
On the whole, these decisions sanction use of restrictive mechanisms, including the black box, on special status prisoners when they are taken outside the prison or when they move inside the prison to particularly vulnerable areas such as the law library or visiting areas. The case law thus fails to delineate a right to be free from use of the black box or other restrictive devices while a segregation prisoner is outside the segregation unit. Because reasonable prison officials would not have understood that their conduct would violate the eighth amendment, defendants are entitled to qualified immunity from Knox’ claim for damages.
Of course, qualified immunity shields defendants only in their individual capacities (see Akins v. Board of Governors of State Colleges and Universities, 840 F.2d 1371, 1375-76 (7th Cir.1988), vacated, 488 U.S. 920, 109 S.Ct. 299, 102 L.Ed.2d 319 (1988) on remand, 867 F.2d 972 (7th Cir.1988) (reinstating original opinion as to named plaintiff); Hadi v. Horn, 830 F.2d 779, 782-83 (7th Cir.1987)), and Knox seeks damages against defendants in their official capacities as well. (R. 1.) We agree with defendants, however, that the official capacity claims are barred by the eleventh amendment. It is by now well settled that “[a] suit for damages against a state official in his or her official capacity is a suit against the state for Eleventh Amendment purposes.” Shockley v. Jones, 823 F.2d 1068, 1070 (7th Cir.1987); see also Papasan v. Allain, 478 U.S. 265, 278, 106 S.Ct. 2932, 2940, 92 L.Ed.2d 209 (1986); Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3106, 87 L.Ed.2d 114 (1985); Scott v. O‘Grady, 975 F.2d 366, 369 (7th Cir.1992), cert. denied, U.S., 113 S.Ct. 2421, 124 L.Ed.2d 643 (1993). Because the State of Illinois has not consented to being sued in federal court in the statute creating its Department of Corrections (see Ill.Rev.Stat. ch. 38, ¶¶ 1001-1201), the official capacity claims for damages are barred by the eleventh amendment. See Shockley, 823 F.2d at 1070.
C. Injunctive Relief.
Neither qualified immunity nor the eleventh amendment shield defendants from
The district court found that Knox’ standing to assert a claim for injunctive relief was questionable because he was released from segregation on October 1, 1990, and returned to the general prison population, where he is no longer subject to use of the black box. Knox, 783 F.Supp. at 352-53. Knox’ claim for injunctive relief is therefore based only on the possibility that he may again be transferred to the prison‘s segregation unit. The district court thought this possibility insufficient to establish an actual case or controversy under City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). See Knox, 783 F.Supp. at 353. We agree.
In Lyons, the plaintiff sued the City of Los Angeles and several police officers, alleging that the officers had stopped him for a routine traffic violation and applied a chokehold without provocation. Among other things, the plaintiff requested an injunction against further use of the chokehold unless the suspect threatened deadly force. The Supreme Court held that Lyons lacked standing to seek such relief because he could not show a real or immediate threat of future harm. 461 U.S. at 105, 103 S.Ct. at 1667. In reaching that conclusion, the Court relied on its earlier decision in O‘Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), where a class of plaintiffs had alleged discriminatory enforcement of the criminal laws. The O‘Shea Court explained that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” 414 U.S. at 495-96, 94 S.Ct. at 675-76. The Court found no case or controversy because “the threat to plaintiffs was not ‘sufficiently real and immediate . . . simply because [the plaintiffs] anticipate violating lawful criminal statutes and being tried for their offenses. . . .‘” Instead, “[i]t was to be assumed that ‘[plaintiffs] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners.‘” Lyons, 461 U.S. at 103, 103 S.Ct. at 1665 (quoting O‘Shea, 414 U.S. at 496-97, 94 S.Ct. at 676).
Utilizing this reasoning, the Lyons Court explained that “Lyons’ standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers.” 461 U.S. at 105, 103 S.Ct. at 1667. The Court found the allegation of an earlier choking sufficient to confer standing for a damage claim, but it did
nothing to establish a real and immediate threat that [Lyons] would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part. The additional allegation in the complaint that the police in Los Angeles routinely apply chokeholds in situations where they are not threatened by the use of deadly force falls far short of the allegations that would be necessary to establish a case or controversy between these parties.
Lyons and O‘Shea are controlling here. Like the plaintiffs in those cases, Knox cannot establish a real and immediate threat that he again will be subject to use of the black box. Although Stateville uses the black box on all segregation prisoners, the mere possibility that Knox may sometime in the future be returned to the segregation unit does not establish a real and immediate case or controversy. Presumably, Knox would be returned to segregation only if he were to violate a prison rule, such as the one prohibiting the possession of dangerous contraband. Although that may be a very real possibility given that contraband was found in Knox’ cell twice in four years, we must assume that Knox will abide by prison rules and thereby avoid a return to segregation status. See O‘Shea, 414 U.S. at 496, 94 S.Ct. at 676; see also Nelsen v. King County, 895 F.2d 1248, 1253 (9th Cir.1990); Mann v. Hendrian, 871 F.2d 51, 53 (7th Cir.1989).
Our discussion of Lyons is in accord with our earlier decision in Robinson v. City of Chicago, 868 F.2d 959 (7th Cir.1989), cert. dismissed, 493 U.S. 1012, 110 S.Ct. 708, 107 L.Ed.2d 729 (1989), and cert. denied, 493 U.S. 1035, 110 S.Ct. 756, 107 L.Ed.2d 773 (1990), where the plaintiffs had challenged two City of Chicago policies that authorized the pre-hearing detention of arrestees pending further criminal investigations or clearance of their fingerprints. We held that the plaintiffs lacked standing under Lyons because, assuming that their future conduct would not provide police with probable cause to arrest them, the plaintiffs could not expect a further encounter with the City‘s pre-hearing detention policies. Thus, “even if the police were to continue to detain others for investigation . . . the possibility that [the plaintiffs] would suffer any injury as a result of that practice is too speculative.” Id. at 966. Similarly, although other segregation prisoners here are still subject to the black box restraint in accordance with prison policy, the possibility that Knox would again be subject to the black box is similarly speculative. See Brown v. Fauver, 819 F.2d 395, 400 (3d Cir.1987) (plaintiff lacked standing to obtain declaratory or injunctive relief against future application of state prison regulation in disciplinary proceedings because he failed to show a “real likelihood” or an “immediate threat” that he again would be the subject of a prison disciplinary hearing); Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.1985) (prisoner‘s claim for injunctive relief seeking improvement of prison conditions moot where prisoner had been moved to another prison unit; for the same reason, prisoner lacked standing to seek declaratory relief).
Knox argues that he nonetheless has standing because the prison policy here is one that is “capable of repetition, yet evading review.” This principle operates to confer standing “where a claim is so transitory that a plaintiff may have standing when litigation begins but loses it—loses his personal stake—as the litigation continues.” Robinson, 868 F.2d at 967; see also Feit v. Ward, 886 F.2d 848, 857 (7th Cir.1989). Knox argues that the black box policy will evade review because once a prisoner files a lawsuit challenging the policy, he will be returned to the general prison population, depriving him of the opportunity to seek injunctive relief. This assumes, of course, that prison officials will elevate legal maneuvering over the genuine concerns for prison security that presumably prompted an assignment to segregation. We need not comment on the likelihood of such maneuvering, however, because the “capable of repetition, yet evading review” doctrine applies only where repetition of the conduct “is likely to embroil the same parties to the dispute.” Robinson, 868 F.2d at 967 (quoting Holmes v. Fisher, 854 F.2d 229, 232 (7th Cir.1988)). Because Knox cannot make a reasonable showing that “he will again be subject to the alleged illegality,” the “capable of repetition” doctrine does not apply.16 Id.; see also Lyons, 461 U.S. at 110, 103 S.Ct. at 1669 (“the capable-of-repetition doctrine applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality.“); Feit, 886 F.2d at 857. Knox therefore lacks standing to pursue a claim for injunctive relief.
For the foregoing reasons, defendants are entitled to qualified immunity from Knox’ individual capacity claims for damages. Knox’ official capacity damages claims are barred by the eleventh amendment. Finally, Knox lacks standing to seek an injunction against future use of the black box on segregation prisoners. The judgment of the district court is
AFFIRMED.
REYNOLDS, Senior District Judge, concurring.
I agree with the majority that we should affirm the district court‘s decision, but I think we should do so by reaching the merits of the underlying claim. Plaintiff-appellant Paul Knox was put in segregated confinement twice between 1986 at 1990 and remains under the total control of those who put him there. If put there again, he will automatically be placed in the black box whenever he leaves his cell. Periods of segregated confinement are relatively short in duration; Knox’ most recent one began in March 1990, and ended in October 1990, about five months after this action was filed.
On these facts, I think it is safe to say that the challenged action in this case is “capable of repetition, yet evading review,” and that therefore Knox’ claim for injunctive relief is not moot. Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982). See Clark v. Brewer, 776 F.2d 226, 229 (8th Cir.1985) (holding that prisoner‘s challenge to conditions of segregated confinement was not mooted by his release from it).
The instant case is quite unlike City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), where the plaintiff was held to lack standing to seek injunctive relief against a police department‘s use of the chokehold. That decision was based not on the assumption that the plaintiff would not be stopped by police in the future, but on the assumption that even if he were stopped, it would be highly unlikely that the police would “again render him unconscious without any provocation.” Lyons, 461 U.S. at 105-06, 103 S.Ct. at 1667. In this case, by contrast, there is no question that Knox will be forced to wear the black box if he is segregated again. Further, as noted above, he remains under the complete control of those who decide whether to segregate him.
A review of the merits of Knox’ claim is constrained by the district court‘s refusal to accept his late-filed summary judgment response, for I agree that the refusal was not an abuse of discretion. It follows, I think, that we must accept as undisputed the defendants-appellees’ assertion below that the black box serves the legitimate penological purpose of preventing high-risk prisoners from tampering with their handcuffs while outside their cells. If we accept that assertion, then there seems to be no genuine issue of fact as to “whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 998, 117 L.Ed.2d 156 (1992).
Thus, I believe Knox’ claim fails because he has not attempted to challenge defendants’ assertion regarding the penological justification for the black box, not because he lacks standing.
ILANA DIAMOND ROVNER
UNITED STATES CIRCUIT JUDGE