In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-2960

D ARRYL L. L EWIS,
                                              Plaintiff-Appellant,
                                v.

M ICHAEL D. D OWNEY, T ODD S CHLOENDORF,
M ICHAEL S HREFFLER, JEAN FLAGEOLE,
M IGUEL A YALA, and K ANKAKEE C OUNTY,

                                           Defendants-Appellees.


            Appeal from the United States District Court
                  for the Central District of Illinois.
        No. 06 C 02091—David G. Bernthal, Magistrate Judge.



    A RGUED M ARCH 30, 2009—D ECIDED S EPTEMBER 4, 2009




  Before K ANNE, W OOD , and W ILLIAMS, Circuit Judges.
  K ANNE, Circuit Judge. Darryl Lewis was a federal pris-
oner in custody at a county jail facility in northern Illi-
nois. Lewis filed a civil action pursuant to 42 U.S.C. § 1983
after jail officials shot him with a taser gun when
he failed to comply with an order to rise from his bed.
Lewis claimed the taser shot constituted cruel and
unusual punishment in violation of the Eighth Amend-
2                                                  No. 08-2960

ment. He also attempted to present a Fourteenth Amend-
ment claim arising from his placement in segregation
without the benefit of a hearing. The district court dis-
missed Miguel Ayala, for lack of personal involvement,
and we affirm that dismissal. Further, the district court
granted summary judgment in favor of all other defen-
dants. Darryl Lewis did not challenge on appeal the entry
of summary judgment in favor of defendants Michael D.
Downey, Todd Schloendorf, Jean Flageole and Kankakee
County. The grant of summary judgment in favor of those
defendants is affirmed. However, as to the remaining
defendant pursued in this appeal, we are obligated to
accept Lewis’s version of events, and we vacate the grant
of summary judgment in favor of Michael Shreffler and
remand that portion of this case for further proceedings.


                      I. B ACKGROUND
  In November 2005, a federal jury found Lewis guilty of
being a felon in possession of a firearm. While awaiting
sentencing and the entry of final judgment, Lewis was
held in the Jerome Combs Detention Center, a county jail
facility in Kankakee County, Illinois.1 On January 26,
2006, Lewis engaged in a physical altercation with


1
  Due to a significant and unfortunate lack of federal pretrial
detention housing throughout the United States, it is not
unusual for federal prisoners awaiting trial or sentencing to be
held in county jail facilities. See 18 U.S.C. § 4002 (empowering
the Attorney General to contract with states or their political
subdivisions “for the imprisonment, subsistence, care, and
proper employment” of federal prisoners).
No. 08-2960                                                  3

another inmate. Guard Todd Schloendorf entered the
cell block, restrained Lewis, and placed him in segregation
in the jail’s maximum security area. According to Lewis,
he was never given any type of hearing regarding his
stay in segregation. The next day, Lewis began a hunger
strike during which he refused to eat the jail’s three
daily meals. He continued the hunger strike for approxi-
mately twenty days, ending around February 15.
  February 6 was Lewis’s eleventh day of fasting. That
morning, he rang the intercom in his cell and requested
medical assistance because he was not feeling well. The
officer responding to the call denied Lewis’s request,
asserting that Lewis had recently refused medical treat-
ment. Lewis, who had previously received a bottle of
Motrin-brand ibuprofen tablets from the nurse, held the
bottle up to the security camera and told the officer
over the intercom that he would “take care of my pain
myself.” In anger, he threw the bottle to the floor, and
the pills and bottle scattered around his cell and under
his bunk. Lewis then claims he became dizzy and tired.
He laid down. Several minutes later, three guards—
defendants Michael Shreffler2 and Miguel Ayala and non-
party Marlin Woods—entered Lewis’s cell. Shreffler
ordered Lewis off the bed.



2
  Throughout the record below, and the filings with this court,
this defendant-appellee, has alternately been referred to as
Michael Shreffler or Schreffler. For the sake of consistency,
we will use the spelling as it appears in the district court’s
order of summary judgment: Michael Shreffler.
4                                                No. 08-2960

  The parties dispute the events that followed.
According to Lewis, he was weak from the hunger
strike and sick from ingesting Motrin, rendering him
sluggish and unable to respond quickly to Shreffler’s
directive. Instead of standing, Lewis says that he turned
his head toward the officers, and before he could
explain his failure to comply and without further
warning or provocation, Shreffler shot him in the leg
with a taser gun. Lewis asserts that the shock from
the taser lasted several seconds and caused him to slide
to the floor. The officers then handcuffed Lewis, took
him from the cell, and cleaned up the scattered pills.
   Shreffler, Ayala, and Woods each filed an affidavit.
According to their version of events, they entered the
cell in response to Lewis’s threat to take an overdose of
Motrin, which jail officials viewed as a suicide threat. Once
inside, the officers claim that Shreffler ordered Lewis to
lie on the floor with his hands behind his back so that
they could handcuff him, an order that Shreffler
repeated at least three times. Lewis refused each of these
orders, cursing and yelling at the officers. It was then
that Woods, the group’s ranking member, ordered
Shreffler to shoot Lewis with the taser, which he did. The
officers removed Lewis from the cell and cleaned up the
pills.
 Acting pro se, Lewis filed a civil action pursuant to 42
U.S.C. § 1983.3 The complaint contained two allegations


3
  An interesting question not presented by either party is the
applicability of § 1983 to employees of a local correctional
                                                (continued...)
No. 08-2960                                                      5

relevant to this appeal. First, Lewis alleged that Shreffler
and Ayala violated Lewis’s Eighth Amendment right to
be free of cruel and unusual punishment by shooting
him with the taser. Second, Lewis averred that Officer
Schloendorf ran afoul of the Fourteenth Amendment by
placing him in segregation without a hearing.
 The defendants filed a motion for summary judgment,
which a federal magistrate judge granted on July 2,




3
   (...continued)
facility that is housing federal inmates under contract between
the federal and local governments. See 18 U.S.C. § 4002. A county
employee caring for federal prisoners arguably becomes a
federal actor, rather than the requisite state actor, rendering
§ 1983 inapplicable. See 42 U.S.C. § 1983; cf. Wilkinson v. Dotson,

, 87 (2005) (Scalia, J., concurring) (noting, in a
different context, that federal prisoners whose custodians
are not acting under color of state law cannot sue pursuant to
§ 1983); Sandoval v. Wackenhut Corr. Corp., No. 93-8582, 

, at *2 n.3 (5th Cir. Apr. 28, 1994) (recognizing
that employees of a privately run correctional facility operated
under contract with the federal government were not state
actors for purposes of § 1983). Because it is not currently
before us, we reserve our answer to the question for another
day. We doubt, however, that the contractual relationship does
anything to change the status of county jail employees as state
actors. Cf. Logue v. United States, 

, 528-32 (1973)
(declining, for purposes of federal government liability
under the Federal Tort Claims Act, to characterize as federal
employees county jailers who were caring for federal prisoners).
6                                                   No. 08-2960

2008.4 In pertinent part, the magistrate judge found “that
the force applied to Plaintiff was done in a good faith
effort to maintain discipline and jail security and not to
maliciously or sadistically cause harm to Plaintiff.” The
court further held that the taser was a de minimis use
of force that did not implicate Eighth Amendment con-
cerns. The court also dismissed Officer Ayala as a party
to the lawsuit, stating that “he lacked any personal in-
volvement in the February 6, 2006, incident.” The court
did not address Lewis’s due process claim arising from
his placement in segregation without a hearing.


                         II. A NALYSIS
  On appeal, Lewis contends that the magistrate judge
erred by (1) dismissing Officer Ayala from the lawsuit;
(2) granting the defendants’ motion for summary judg-
ment on his Eighth Amendment claim; and (3) refusing
to address his Fourteenth Amendment claim.


    A. Officer Ayala’s Dismissal from the Lawsuit
  In their motion for summary judgment, the defendants
argued that the court should dismiss Officer Ayala from
the suit due to his lack of personal involvement in the


4
  Lewis filed his original action in the United States District
Court for the Northern District of Illinois. The case was later
transferred to the Central District of Illinois, where Kankakee
County is located, after which the parties consented to
proceed before a magistrate judge. See Fed. R. Civ. P. 73.
No. 08-2960                                              7

events surrounding the February 6 taser shot. The magis-
trate judge agreed and dismissed Ayala, a decision
Lewis now claims was in error.
  It is uncontested that Ayala played no direct role in the
taser incident. Officer Shreffler fired the taser at the
command of his superior officer, Corporal Woods. Even
as a bystander, however, Ayala can be held liable under
§ 1983 if Lewis can show that Ayala (1) had reason to
know that a fellow officer was using excessive force or
committing a constitutional violation, and (2) had a
realistic opportunity to intervene to prevent the
act from occurring. See Chavez v. Ill. State Police, 

, 652 (7th Cir. 2001); see also Harper v. Albert,

, 1064 (7th Cir. 2005).
  According to Lewis’s version of events, which, as we will
discuss below, we must accept as true on a motion for
summary judgment, see Anderson v. Liberty Lobby, Inc., 

, 255 (1986) (“The evidence of the non-movant is
to be believed, and all justifiable inferences are to be
drawn in his favor.”), Ayala did not have a realistic
opportunity to stop Shreffler from discharging the taser
gun. In his deposition, Lewis discussed at length how
quickly Shreffler shot him with the taser after ordering
him off the bed. Lewis said that the shot came “[b]efore
I could say I can’t get up.” Even assuming Lewis was
as sluggish as he claims, if the time between the order
and the shot was so brief that Lewis could not respond,
we decline to hold Officer Ayala liable for failing to
respond as well. Ayala’s dismissal from the lawsuit
was appropriate.
8                                                 No. 08-2960

    B. Lewis’s Excessive Force Claim
  Turning next to Lewis’s excessive force claim, we
review de novo the district court’s decision to grant sum-
mary judgment. See Outlaw v. Newkirk, 

, 836
(7th Cir. 2001). Summary judgment is appropriate if,
after resolving all disputed facts and drawing all reason-
able inferences in favor of Lewis, the nonmoving party,
there remains no genuine issue of material fact. See Fed. R.
Civ. P. 56(c); Celotex Corp. v. Catrett, 

, 322
(1986); see also 

(stating that
summary judgment is precluded “if the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party”).
  Lewis filed suit pursuant to 42 U.S.C. § 1983, which
provides that a person may not be deprived of any consti-
tutional right by an individual acting under color of
state law. The act authorizes claimants to sue persons in
their individual capacities who are alleged to have
violated such rights. See Lekas v. Briley, 

, 606
(7th Cir. 2005) (“[A § 1983] plaintiff must allege that
the defendants deprived him of a right secured by the
Constitution or laws of the United States, and that the
defendants acted under color of state law.” (quotations
omitted)); see also 42 U.S.C. § 1983; Gomez v. Toledo, 

, 640 (1980).
    Lewis’s claim on appeal is that Shreffler 5 applied exces-


5
  Officers Ayala and Woods entered Lewis’s cell with Shreffler.
We have approved Ayala’s dismissal from the suit, and Lewis
did not name Woods as a defendant, leaving Shreffler as the
                                                (continued...)
No. 08-2960                                                  9

sive force when he shot Lewis with a taser gun, thereby
violating the Eighth Amendment’s prohibition on cruel
and unusual punishment. Before addressing that
question, however, we consider the Eighth Amendment’s
applicability to someone in Lewis’s position, i.e., a person
found guilty but awaiting sentencing and final judgment.


    1.   The Eighth Amendment’s Applicability to Pre-Sentencing
         Detainees
  Although the Supreme Court has not provided a defini-
tive answer, we doubt that the Eighth Amendment was
the proper vehicle for Lewis’s suit. As we will explain, it
is unlikely that Lewis, who was awaiting sentencing
and the entry of final judgment, had yet accrued Eighth
Amendment protections. Instead, Lewis’s claims should
have been framed in terms of the Fourteenth Amend-
ment’s Due Process Clause.
  The scope of an individual’s right to be free from punish-
ment—and, derivatively, the basis for an excessive force
action brought under § 1983—hinges on his status within
the criminal justice system. See Brown v. Budz, 

,
910 (7th Cir. 2005). On one end of the spectrum are sen-
tenced prisoners. The Eighth Amendment protects these
individuals only from the infliction of cruel and unusual
punishment, which is often defined in the prison context as
the “ ‘unnecessary and wanton infliction of pain.’ ” Wilson



5
  (...continued)
only remaining defendant on appeal of Lewis’s excessive
force claim.
10                                               No. 08-2960

v. Williams, 

, 875 (7th Cir. 1996) (quoting Whitley
v. Albers, 

, 319 (1986)).
  Pretrial detainees, by contrast, have not been convicted
or sentenced and thus are not yet “punishable” under the
law. See Bell v. Wolfish, 

, 535 (1979) (“[A pre-
trial] detainee may not be punished prior to an adjudica-
tion of guilt in accordance with due process of law.”).
This means that pretrial detainees “may not be ‘pun-
ished’ by the state in any way.” 

(emphasis added). 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. See 

; Butera v. Cottey,

, 605 (7th Cir. 2002); Pardue ex rel. Estate of
Cole v. Fromm, 

, 259 n.1 (7th Cir. 1996).
  In some contexts, such as claims of deliberate indif-
ference to medical needs, the Eighth and Fourteenth
Amendment standards are essentially interchangeable.
See, e.g., Williams v. Rodriguez, 

, 401 (7th Cir.
2007); Guzman v. Sheahan, 

, 856-57 (7th Cir.
2007); Whiting v. Marathon County Sheriff’s Dep’t, 

, 703 (7th Cir. 2004). But the distinction between
the two constitutional protections assumes some impor-
tance for excessive force claims because the Due
Process Clause, which prohibits all “punishment,” affords
broader protection than the Eighth Amendment’s pro-
tection against only punishment that is “cruel and un-
usual.” See 

(noting that the Four-
teenth Amendment’s protection “necessarily extends
beyond the prohibition of merely ‘cruel and unusual’
No. 08-2960                                              11

punishment,” resulting in “a higher standard [of protec-
tion] than that provided by the Eighth Amendment”); see
also Anderson v. Gutschenritter, 

, 349 (7th Cir.
1988). Although the exact contours of any additional
safeguards remain undefined, see 

,
it is nonetheless important that we identify the appro-
priate source of Lewis’s constitutional protection
against the use of excessive force, see Graham v. Connor,

, 394 (1989) (noting that analysis of
excessive force claims brought pursuant to § 1983
“begins by identifying the specific constitutional right
allegedly infringed”).
  At the time of relevant events, Lewis was neither a
pretrial detainee nor a sentenced prisoner. He had been
found guilty in a federal court and was in a county jail
awaiting sentencing and the entry of final judgment. The
question is whether a person in this purgatory within
our criminal justice system is cloaked with the Eighth
Amendment’s limited safeguards against only “cruel and
unusual” punishment or the Fourteenth Amendment’s
broader protections against punishment “in any way.”
See 

.
  The Supreme Court has not directly addressed whether
the Eighth Amendment is applicable to presentencing
detainees, but it has indicated that the answer is no.
According to the Court, “the State does not acquire the
power to punish with which the Eighth Amendment
is concerned until after it has secured a formal adjudica-
tion of guilt in accordance with due process of law.”
Ingraham v. Wright, 

, 671 n.40 (1977). The
Court later confirmed that such a “formal adjudication”
12                                                 No. 08-2960

includes both conviction and sentence. 

n.6 (noting that Ingraham established that “the
Eighth Amendment’s protections did not attach until
after conviction and sentence” (emphasis added)); see also

(“The Eighth Amendment . . . is
applicable only to those criminals who are serving a
sentence.”); Bailey v. Andrews, 

, 373 (7th
Cir. 1987) (“[T]he eighth amendment right . . . is applicable
only to sentenced criminals.”).
  This would mean that Eighth Amendment rights had
not yet vested in Lewis, who had not been sentenced.
Absent Eighth Amendment protections, his status would
be analogous to that of a pretrial detainee, meaning that
the basis for his § 1983 action should have been the Four-
teenth Amendment Due Process Clause. See 

; Pardue ex rel. Estate of 

n.1.
   The problem is that Lewis, acting pro se, alleged viola-
tions of only the Eighth Amendment, a line of argument
that his appointed counsel maintains on appeal. Further
complicating the issue is that defendants have not
objected to the improper basis for Lewis’s action—a
calculated move perhaps, given that Lewis is seeking
more limited protection than he might otherwise de-
serve. Cf. Blake v. Katter, 

, 682-83 (7th Cir. 1982)
(liberally construing pro se complaint and remanding when
district court, acting on defendant’s motion, dismissed
action for improperly seeking redress under the Eighth
Amendment), overruled on other grounds by Wilson v. Garcia,

(1985).
  As we have made clear, anything that would violate the
Eighth Amendment would also violate the Fourteenth
No. 08-2960                                                 13

Amendment. See City of Revere v. Mass. Gen. Hosp., 

, 244 (1983) (“[T]he due process rights of a
person . . . are at least as great as the Eighth Amendment
protections . . . .”); 

. Thus, we con-
clude that although we must evaluate Lewis’s claims
under what we believe is the proper basis—here, the
Fourteenth Amendment—we will do so only insofar as
the alleged conduct would have violated the Eighth
Amendment as well; we will not consider any safe-
guards the Fourteenth Amendment provides beyond
those it shares with the Eighth Amendment. Lewis has
argued only for these more limited protections. See
Pardue ex rel. Estate of 

n.1 (finding
claim of broader Fourteenth Amendment rights
forfeited when plaintiff sought redress only under
Eighth Amendment standard). With that understanding,
we turn now to Lewis’s claims.


  2. Use of a Taser Gun to Compel Compliance
  The “unnecessary and wanton infliction of pain” on a
prisoner violates his rights under the Eighth Amendment.
Whitley v. Albers, 

, 319 (1986) (quotations
omitted); see also Hudson v. McMillian, 

, 5 (1992).
But not every “malevolent touch” by a security officer
implicates the Constitution. 

. The
use of de minimis force, so long as it “is not of a sort repug-
nant to the conscience of mankind,” is not of Eighth
Amendment concern. 

(quotations omitted). If
the force were more than de minimis, we must consider
whether it “was applied in a good-faith effort to main-
14                                                 No. 08-2960

tain or restore discipline, or maliciously and sadistically
to cause harm.” 

  a. Taser Gun: De Minimis Application of Force?
  As one basis for his decision, the magistrate judge found
that the use of the taser gun was a de minimis application
of force. We disagree. It is undisputed that the taser sent
an electric shock through Lewis’s body strong enough
to cause him to fall from the bed and render him
helpless while officers secured him and removed him
from the cell.
   As the Supreme Court has said, pain, not injury, is the
barometer by which we measure claims of excessive
force, see 

and one need not have personally en-
dured a taser jolt to know the pain that must accompany
it, see Hickey v. Reeder, 

, 757 (8th Cir. 1993) (“[A]
stun gun inflicts a painful and frightening blow [that]
temporarily paralyzes the large muscles of the body,
rendering the victim helpless.”); see also Matta-Ballesteros
v. Henman, 

, 256 n.2 (7th Cir. 1990) (noting
that a taser “sends an electric pulse through the body of
the victim causing immobilization, disorientation, loss of
balance, and weakness”). Thus, we hold, as the first
rung in the ladder of our analysis, that the use of a taser
gun against a prisoner is more than a de minimis applica-
tion of force.
  Although such force against an inmate rises above the
inconsequential and into the constitutional realm, we
reiterate an obvious point: simply because a taser gun’s
No. 08-2960                                               15

use is more than de minimis force does little, if anything,
to alter its appropriate use within our detention system.
See 

(finding a taser’s use more than
de minimis only “if inflicted without legitimate reason” (em-
phasis added)). We remain cognizant of the important
role that non-lethal, hands-off means—including taser
guns—play in maintaining discipline and order
within detention facilities. See Soto v. Dickey, 

, 1267-70 (7th Cir. 1984).
  Our conclusion merely shifts the focus of our inquiry
away from the act and to the actor, away from the
objective and to the subjective. See 

(distinguishing between the objective question of
whether an act is “harmful enough” and the subjective
question of whether an actor possessed a culpable state
of mind); 

. What matters—and
what will generally be the decisive factor in cases such
as this—is the mindset of the individual applying the
force. That is the question to which we now turn.


  b. Officer Shreffler’s State of Mind
  As we stated above, only the “unnecessary and wanton
infliction of pain” violates a prisoner’s rights under the
Eighth Amendment. 

(quotations
omitted). The Constitution is not offended when force is
used “in a good-faith effort to maintain or restore disci-
pline.” 

. Non-de minimis force
runs afoul of the Eighth Amendment only when it is
intended “maliciously and sadistically to cause harm.” 

08-2960

  The court below could have rested the grant of sum-
mary judgment on its finding of de minimis force alone,
see 

(excluding from “constitutional recognition”
the application of de minimis physical force), but the
magistrate judge, as an alternative basis, found that
Officer Shreffler used the taser gun “in a good faith effort
to maintain discipline and jail security and not to mali-
ciously or sadistically cause harm to Plaintiff.” Resolving,
as we must, disputed facts in Lewis’s favor, we cannot
agree.
   Lewis argues that the use of the taser gun was
without penological purpose and was therefore per se
malicious. See Fillmore v. Page, 

, 504 (7th Cir.
2004) (noting that the infliction of pain is per se
malicious if it is done “ ‘totally without penological just-
ification’ ” (quoting Hope v. Pelzer, 

, 737
(2002))). On the contradictory record before us, we
cannot conclude, as a matter of law, that Shreffler’s
actions were without penological justification. Such a
determination rests upon disputed questions of fact that
should be left to the jury to resolve.
  Jails are dangerous places, and it is without rational
dispute that security officials are justified in maintaining
decorum and discipline among inmates to minimize
risks to themselves and other prisoners. See 

(“[M]aintaining institutional security and
preserving internal order and discipline are essential
goals that may require limitation or retraction of the
retained constitutional rights of both convicted prisoners
and pretrial detainees.”); 

(according
No. 08-2960                                                17

prison officials wide-ranging deference to adopt and
execute policies “needed to preserve internal order and
discipline”). We have previously discussed how
important it is that prisoners follow orders:
    Orders given must be obeyed. Inmates cannot be
    permitted to decide which orders they will obey,
    and when they will obey them. . . . Inmates are
    and must be required to obey orders. When an
    inmate refuse[s] to obey a proper order, he is
    attempting to assert his authority over a portion
    of the institution and its officials. Such refusal
    and denial of authority places the staff and other
    inmates in danger.

; see also Colon v. Schneider, 

, 668-69 (7th Cir. 1990).
  In many circumstances—often when faced with aggres-
sion, disruption, or physical threat—compelling compli-
ance with an order is a valid penological justification
for use of a taser. See 

(recognizing
that prison officials “may compel compliance with legiti-
mate prison regulations” through the use of summary
physical force). But such justification does not neces-
sarily exist every time an inmate is slow to comply with
an order. See Treats v. Morgan, 

, 873 (8th Cir.
2002) (“Not every instance of inmate resistance justifies
the use of force . . . .”). What must be decided in each case,
and the issue to which we next turn, is whether the
facts surrounding the taser’s deployment—as Lewis
portrays them—demonstrated actual malice or sadistic
purpose on the part of the user.
18                                              No. 08-2960

  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.

; see also 

.
The exact sequence of events leading to the taser’s use
in this case is strongly disputed, but we are required to
view the facts in the light most favorable to Lewis. Ander-

. Doing so, we conclude that Lewis
has raised a genuine issue of material fact regarding
Shreffler’s mental state at the time he discharged the
taser, thereby precluding summary judgment.
  In cases upholding the use of taser guns, the victims
have been violent, aggressive, confrontational, unruly, or
presented an immediate risk of danger to themselves
or others. Such behavior certainly increases the need for
force and often poses a threat to the security officers. In
Jackson v. Thalacker, 

(8th Cir. 1993), for exam-
ple, a prisoner verbally threatened a guard, clenched his
fists, and then lunged at the guard. 

The Eighth
Circuit condoned the use of a taser to subdue the inmate.

Caldwell v. Moore, 

(6th
Cir. 1992), the Sixth Circuit upheld the use of a stun
gun against an inmate who became aggressive and con-
frontational when his requests to be let out of his isola-
tion cell were denied. 

602. For seven hours,
he shouted at the jailer and kicked the cell door,
persisting in this behavior despite warnings that he
would be forced to comply if he did not calm down. 

                                           19

at 597. The Tenth Circuit, in an unpublished decision,
also approved the use of a taser to force compliance
with an order given moments after the prisoner had
engaged in a physical altercation with security officers.
Hunter v. Young, 238 F. App’x 336, 339 (10th Cir. 2007).
Finally, this court has previously upheld the use of a
stun gun to calm a prisoner who was banging his head
against his concrete bed and struggling against the
guards who were attempting to restrain him. Dye v.
Lomen, 40 F. App’x 993, 995-96 (7th Cir. 2002).
  Similar examples of aggressive or threatening behavior
are noticeably absent from Lewis’s version of events. At
the time he was shot, Lewis asserts that he was merely
lying on his bunk, weak and sluggish from more than ten
days without food, when Shreffler ordered him to get up.
Lewis claims that he said nothing and had time only to
turn his head toward the doorway before Shreffler shot
him with the taser. In Lewis’s story, he was given a
single order that was not repeated or accompanied by
any warning that his failure to comply would result in
use of the taser.
  Looking at the sequence of events as alleged by
Lewis, we find several facts troubling: the absence of any
agitation or threat from Lewis; the short passage of time
between Shreffler’s order and the taser shot; Shreffler’s
single, unrepeated order; and the dearth of warnings
regarding the consequences of Lewis’s failure to comply.
  We do not intend to mandate a checklist that detention
officers must follow before they may constitutionally
20                                               No. 08-2960

employ a taser. As we have said, we entrust officers
with the discretion to act appropriately in light of the
circumstances confronting them. In a jail or prison
setting, it is not hard to imagine any number of scenarios
that would justify the immediate and unadvertised use
of summary force, including taser guns.
  But, based on Lewis’s facts, we cannot say that Shreffler
acted in good faith. Nor can we say that he acted mali-
ciously or wantonly. Our only conclusion is that if
we accept as true Lewis’s version of the events surround-
ing the taser shot, he has raised a genuine issue of
material fact regarding Officer Shreffler’s state of mind
when Shreffler fired the taser gun. That is enough to
preclude summary judgment. What he will be able to
prove at trial is a different question altogether, but Lewis
has presented enough here that if the jury accepted his
story, it could find in his favor. That is all we require. See

(stating that summary judgment
is precluded “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party”).


  3. Qualified Immunity
  Shreffler’s only remaining basis to support summary
judgment is through the protection of qualified immunity,
an argument that he presented in his motion to the magis-
trate judge. See Harlow v. Fitzgerald, 

, 818
(1982). The magistrate judge decided the case on other
grounds and did not reach the immunity question. We
consider it now and conclude that Officer Shreffler is
not immune from potential liability.
No. 08-2960                                               21

  To defeat a defense of qualified immunity, Lewis must
demonstrate (1) that the guard’s conduct violated his
constitutional rights, and (2) that the violated right was
clearly established at the time of the alleged misconduct.
See Siegert v. Gilley, 

, 232 (1991); see also

; Payne v. Pauley, 

, 775
(7th Cir. 2003). As should be clear from the preceding
discussion, the answer to the first part of this test hinges
on the resolution of fact questions that are now in the
jury’s hands. See Hill v. Shelander, 

, 717-18
(7th Cir. 1993). Thus, we can dismiss the case on sum-
mary judgment only if we find that the right that
Shreffler allegedly violated was not clearly established
at the time of the purported misconduct. See 

This is a question of law. Marshall v. Allen, 

,
793 (7th Cir. 1993) (citing Mitchell v. Forsyth, 

, 528 (1985)).
  To remove from Shreffler the shield of qualified immu-
nity, the right that he allegedly violated must be clearly
established “ ‘in a particularized sense.’ ” 

(quoting Juriss v. McGowan, 

, 350 (7th
Cir. 1992)). This does not mean that the “very action in
question” must have previously been held unlawful.

(quotations omitted). Instead, we
must determine whether, operating under the state of
the law as it existed at the time of relevant events, “a
reasonable officer would have known that the
particular action at issue . . . was unlawful.” Id.; see also

(stating that the contours of a consti-
tutional right “must be sufficiently clear that a rea-
sonable official would understand that what he is
22                                               No. 08-2960

doing violates that right” (quotations omitted)); 

.
  We hold that a reasonable officer would understand
that employing a taser gun under the version of the
facts that Lewis has described would violate the
prisoner’s constitutional rights. Our case law makes this
clear. In Soto, 

, for example, a case the defen-
dants cite at length, we approved the use of chemical
agents, including mace and tear gas, “when rea-
sonably necessary to prevent riots or escape or to
subdue recalcitrant prisoners.” 

We also said
that similar means were appropriate in other circum-
stances, such as compelling compliance with orders, but
we cautioned that such force could not be “exaggerated or
excessive” and should generally follow “adequate
warning[s].” 

Similarly, in Dye, 40 F. App’x
993, we upheld a stun gun’s use to subdue a struggling
prisoner who was risking injury to himself and others.

  Lewis claims that he was prone on his bed, weakened,
and docile. He asserts that he was told to rise one time and
was not warned that a taser would be used against him if
he failed to comply. He states that he was scarcely given
enough time to turn his head and did not otherwise
respond to Shreffler’s order. If these truly are the facts, no
reasonable officer would think that he would be justified in
shooting Lewis with a taser gun. Accepting Lewis’s story,
we conclude that Officer Shreffler is not entitled to quali-
fied immunity.
No. 08-2960                                              23

  C. Fourteenth Amendment Right to a Hearing Before Being
     Placed in Segregation
  Lewis’s final argument is that the magistrate judge
erred by failing to address his Fourteenth Amendment
Due Process claim that arose from his placement in segre-
gation without a hearing. We hold that because the
claim was not properly before the magistrate judge, he
was correct not to address it, and we decline to address
the claim as well.
  Section 1915A of Title 28 of the United States Code
establishes a screening procedure by which a district
court evaluates prisoner civil rights claims for purposes
of identifying those that have arguable merit. It provides
that a district court “shall review . . . a complaint in a
civil action in which a prisoner seeks redress from a
governmental . . . officer or employee.” 28 U.S.C.
§ 1915A(a). After conducting this review, the court
“shall identify cognizable claims or dismiss the com-
plaint, or any portion of the complaint, if [it] is
frivolous . . . or fails to state a claim upon which relief
may be granted.” 

  In its local rules, the Central District of Illinois has
specified the procedure that it uses to conduct the § 1915A
screening. See Fed. R. Civ. P. 83(a)(1) (empowering district
courts to enact local rules that are consistent with federal
law and rules of practice). The relevant local rule provides
as follows:
    If practicable, the Court will conduct a merit
    review of the complaint before service is ordered,
    and enter a Case Management Order delineating
24                                                  No. 08-2960

     the viable claims stated, if any. . . . [T]he case shall
     proceed solely on those claims identified in the
     Case Management Order. Any claims not defined
     in the Case Management Order will not be included in
     the case . . . .
C.D. Ill. R. 16.3(C) (emphases added). Thus, one method
the Central District has established for dismissing unwar-
ranted claims, as required under § 1915A, is to omit
them from its case management order. That is what
occurred here.
  On March 19, 2007, the district court conducted a merit
review as provided in Local Rule 16.3. The following
day, it issued a case management order that defined
the issues that Lewis could pursue in his civil action. The
order, to which Lewis never objected, made no mention
of Lewis’s stay in segregation or the jail’s failure to
conduct any related hearings. As set forth in Local Rule
16.3, the absence of any such claim in the case manage-
ment order resulted in its elimination from the case.
  When evaluating the defendants’ motion for sum-
mary judgment, the magistrate judge adhered to the
court’s local rules and considered only those claims
approved in the case management order. Lewis could not
resurrect that claim then, and he cannot resurrect it now.
Were we to now consider its merits, we would be disre-
garding the integrity of the system established by the
district court. This we decline to do.
No. 08-2960                                          25

                   III. C ONCLUSION
  We A FFIRM the magistrate judge’s dismissal of Miguel
Ayala as a party to the lawsuit. Darryl Lewis did not
challenge on appeal the entry of summary judgment in
favor of Michael D. Downey, Todd Schloendorf, Jean
Flageole, and Kankakee County, and that portion of the
summary judgment is A FFIRMED. However, as to Michael
Shreffler, the remaining defendant that was pursued in
this appeal, we V ACATE the grant of summary judgment
in his favor and R EMAND that portion of this case for
further proceedings. Finally, we decline to consider the
merits of Lewis’s due process argument. It is not
properly before us.




                         9-4-09