                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 03-2728
JEFFREY WHITMAN,
                                           Plaintiff-Appellant,
                              v.


VEROLJUB NESIC and CHRISTOPHER ELLERD,
                                        Defendants-Appellees.

                        ____________
          Appeal from the United States District Court
              for the Eastern District of Wisconsin.
          No. 01 C 21—William C. Griesbach, Judge.
                        ____________
     ARGUED JANUARY 5, 2004—DECIDED MAY 18, 2004
                    ____________



  Before CUDAHY, POSNER, and KANNE, Circuit Judges.
  KANNE, Circuit Judge. On April 22, 1998, while incarcer-
ated at the Racine Correctional Institution (“RCI”), Jeffrey
Whitman was strip searched as part of RCI’s random drug-
testing program and made to stand naked for twenty
minutes in a bathroom stall until he produced a urine
sample. He brought this suit under 42 U.S.C. § 1983
against the correctional officer who conducted the strip and
body-contents search, Veroljub Nesic, and against RCI’s
security director, Christopher Ellerd. Whitman, who has
served approximately twelve years in the Wisconsin state
2                                               No. 03-2728

prison system, admits he has been strip searched possibly
dozens of times without complaint. Yet, he alleges that the
April 22, 1998 search constituted cruel and unusual
punishment under the Eighth Amendment because it was
unnecessary in conjunction with routine drug testing and
because of the length of time he was made to stand naked
while attempting to produce the required sample. The
district court, in a thorough and well-written opinion,
granted Nesic’s and Ellerd’s motion for summary judgment.
We affirm.


                     I. Background
  The facts are essentially not in dispute, and where they
are—such as the amount of time Whitman was made to
stand naked before he produced the urine sample—we have
credited Whitman’s version of events. See Chortek v. City of
Milwaukee, 356 F.3d 740, 745 (7th Cir. 2004) (noting that
when reviewing a grant of summary judgment, “[w]e view
all facts and draw all inferences in the light most favorable
to the nonmoving party”). At the time of the search in
question, the Wisconsin Department of Corrections (“DOC”)
maintained a drug-testing program that subjected inmates
in its prison system, including those at RCI, to random
testing, also called a “body-contents search.” Every week, a
computer program randomly selected five percent of the
prison populace for testing based on cell, bed, or bunk
numbers—not by name. That list was forwarded to a
designated coordinator at each institution, and prisoners
occupying the designated cells, beds, or bunks would be
tested. At RCI, correctional officers on third shift (10:30
p.m. to 6:30 a.m.) would perform the testing. The purpose
of the testing was to ensure the safety and security of the
inmates, staff, visitors, and community by maintaining a
drug-free prison populace. Random drug testing, combined
with appropriate sanctions, was believed to suppress drug
No. 03-2728                                               3

use, drug trafficking, and drug-related infractions in the
institutions, to reduce recidivism, and to help ensure that
inmates released from DOC facilities were drug free.
  On April 22, 1998, Nesic woke Whitman around 3:00 a.m.
for drug testing. Nesic escorted Whitman to the common
bathroom facilities used by inmates. Whitman entered a
bathroom stall and completely disrobed for a strip search.
The stall was in full view of the guard station some ten-to-
thirty feet away; the station was staffed that night by two
female officers. However, the opaque walls of the stall came
up to Whitman’s waist so that he could only be observed
from the waist up and knees down by the female staff.
Except for one inmate who walked in and walked right back
out, Whitman was alone in the bathroom with the guards.
The strip search consisted of Nesic’s visual inspection of
Whitman’s nude body for contraband substances that could
be used to contaminate the urine sample. It involved
Whitman showing Nesic his hands, inside of his mouth,
ears, bottoms of his feet, anus, and under his testicles.
  After Nesic completed his visual inspection, he handed
Whitman the specimen bottle and Whitman turned to the
wall to produce the urine sample. Nesic remained outside
of the stall, about two feet behind Whitman, and searched
Whitman’s clothes to ensure they contained no contam-
inants or someone else’s “clean” urine sample that Whitman
might attempt to substitute for his own. Contaminated
urine samples or providing substitute samples was a
demonstrated problem at RCI.
  Whitman could not immediately produce a sample and
asked that he be allowed to dress. Nesic instructed him that
he could not until he produced a urine sample. Whitman
believes it took him approximately twenty minutes to
provide the required specimen. During that time, Nesic did
not touch him, ridicule him, make fun of him, express any
anger toward him, or threaten him; Whitman complains
4                                               No. 03-2728

only that Nesic “hovered” outside the stall, making it
difficult to provide the sample. Nesic was required to watch
the urine being deposited into the container, again to
ensure the sample was not contaminated or substituted.
  After Whitman succeeded in producing the sample, he
was allowed to dress and return to his bunk. Both Whitman
and Nesic admit there is no history of animosity between
them, either before or after the April 22, 1998 search. While
at RCI, Whitman was never the subject of sexual ridicule or
ridicule because of his body.
  Ellerd, Nesic, and Whitman agree that the procedure fol-
lowed by Nesic on the night of April 22, 1998 was standard
practice for the random drug tests performed at RCI (al-
though Whitman’s inability to produce a sample for twenty
minutes was unusual). Prisoners were always made to pro-
duce the urine sample while nude. According to Ellerd,
having inmates provide the sample while undressed helped
to ensure a “clean” sample. For example, if allowed to dress,
the inmate could access contraband not detected in the
guard’s search of the clothing. Whitman alleges he suffered
psychological damage because of the strip search and
prolonged nudity.
  Although Ellerd was in charge of security for RCI, he had
no personal involvement in drug-testing Whitman on April
22, 1998 or in training guards on the proper procedure for
conducting a body-contents search.


                       II. Analysis
   We review a district court’s grant of summary judgment
on a 42 U.S.C. § 1983 claim de novo. Chortek, 356 F.3d at
745. Whitman makes much of the fact that early on in this
litigation he survived the defendants’ Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss, arguing that since a
district judge found his complaint stated a claim under
No. 03-2728                                                  5

§ 1983 at the preliminary stages of the litigation, his
complaint must also survive summary judgment. His reli-
ance on the favorable Rule 12(b)(6) decision is misguided.
Where Whitman could rest on his pleadings when chal-
lenged by the Rule 12(b)(6) motion to dismiss, see, e.g.,
Sanville v. McCaughtry, 266 F.3d 724, 732 (7th Cir. 2001),
he cannot do so in opposing a summary-judgment mo-
tion—he must affirmatively demonstrate that there is a
genuine issue of material fact for trial, Payne v. Pauley, 337
F.3d 767, 771 (7th Cir. 2003) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986)). Where, as here, the plaintiff has
failed to do so, the moving party is entitled to judgment as
a matter of law. Chortek, 356 F.3d at 745 (citing Fed. R.
Civ. P. 56(c)).
  On summary judgment, the district court found that the
April 22, 1998 strip search in conjunction with the random
body-contents search did not constitute cruel and unusual
punishment under the Eighth Amendment as understood in
our constitutional jurisprudence. We agree.
  “The Eighth Amendment prohibits punishments which
involve the unnecessary and wanton infliction of pain, are
grossly disproportionate to the severity of the crime for
which an inmate was imprisoned, or are totally without
penological justification.” Meriwether v. Faulkner, 821 F.2d
408, 415 (7th Cir. 1987) (citing Rhodes v. Chapman, 452
U.S. 337, 346 (1981); Caldwell v. Miller, 790 F.2d 589, 600
(7th Cir. 1986)). In evaluating Eighth Amendment claims,
courts conduct both an objective and a subjective inquiry.
The objective prong asks whether the alleged deprivation or
condition of confinement is “sufficiently serious” so that “a
prison official’s act or omission results in the denial of the
minimal civilized measure of life’s necessities.” Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (quotations omitted). If
the conditions complained of pass this threshold, courts
then must determine the prison official’s subjective state of
mind; that is, whether “he knows that inmates face a
6                                                No. 03-2728

substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.” Id. at 847;
see also Johnson v. Phelan, 69 F.3d 144, 149 (7th Cir. 1995).
  In the context of bodily searches performed upon those
incarcerated in our prison system, only those searches that
are “maliciously motivated, unrelated to institutional
security, and hence ‘totally without penological justification’
                                                             ”
are considered unconstitutional. Meriwether, 821 F.2d at
418 (quoting Rhodes, 452 U.S. at 346); see also Calhoun v.
DeTella, 319 F.3d 936, 939 (7th Cir. 2003). In other words,
the search must amount to “ ‘calculated harassment unre-
lated to prison needs,’ ” Meriwether, 821 F.2d at 418 (quot-
ing Hudson v. Palmer, 468 U.S. 517, 530 (1984)), with the
intent to humiliate and inflict psychological pain, Fillmore
v. Page, 358 F.3d 496, 505 (7th Cir. 2004) (citing Calhoun,
319 F.3d at 939).
  The strip search accompanying the body-contents search
at issue here was plainly constitutional. Whitman doesn’t
challenge RCI’s right to conduct random drug testing as a
matter of institutional security. Rather, he objects to RCI’s
practice of strip searching inmates prior to taking the sam-
ple, requiring inmates to provide the sample naked, and, in
his case, subjecting him to a prolonged period of nudity
when he could not immediately produce a sample. Yet,
RCI articulated cogent reasons for why it instituted the
procedure as experienced by Whitman, supplying the
“penological justification” necessary to defeat Whitman’s
constitutional claims. Specifically, RCI believed the strip
search and nude collection reduced the opportunity for in-
mates to contaminate or substitute their urine samples and
thwart RCI’s attempts to maintain a drug-free facility. In
crediting RCI’s justification for its policy, we acknowledge
that “[p]rison officials must be accorded wide-ranging
deference in matters of internal order and security.”
Meriwether, 821 F.2d at 417; see also Johnson, 69 F.3d at
145 (noting that the animating theme of the Supreme
No. 03-2728                                                         7

Court’s prison jurisprudence is the requirement that judges
respect hard choices made by prison administrators).1
  Further, we note that Whitman’s attestations that he felt
humiliated, particularly by the twenty-minute period he
remained naked until he could produce a sample, is un-
availing considering that “a prisoner’s expectation of
privacy is extremely limited in light of the overriding need
to maintain institutional order and security.” Meriwether,
821 F.3d at 418 (citing Bell v. Wolfish, 441 U.S. 520, 537
(1979)); see also Calhoun, 319 F.3d at 939 (“There is no
question that strip searches may be unpleasant, humili-
ating, and embarrassing to prisoners, but not every psy-
chological discomfort a prisoner endures amounts to a
constitutional violation.”). Being made to stand naked
twenty minutes as part of a random drug-testing policy is
not a “sufficiently serious” condition of confinement to rise
to the level of a constitutional violation. Significantly,
Whitman was regularly and repeatedly nude in front of
prison staff during his twelve years of incarceration—while



1
   Whitman challenges RCI’s practice of strip searching inmates
prior to collection of the sample and its practice of requiring that
the sample be provided in the nude because it appears to conflict
with Wis. Stat. § 306.16, outlining under what circumstances a
strip search may be conducted. Whitman also claims that RCI’s
practice may be inconsistent with the DOC’s, and even RCI’s own,
written procedure regarding random drug testing. The district
judge rightly concluded, though, that Whitman’s argument is
immaterial. Regardless of a plaintiff ’s insistence that a defendant
failed to follow state law, the mere fact that state rules or statutes
are violated does not in and of itself amount to a constitutional
violation or give rise to an actionable § 1983 claim. See Snowden
v. Hughes, 321 U.S. 1, 11 (1944), cited in Archie v. City of Racine,
847 F.2d 1211, 1216-17 (7th Cir. 1988); Pasiewicz v. Lake Co.
Forest Pres. Dist., 270 F.3d 520, 526 (7th Cir. 2001) (“The federal
government is not the enforcer of state laws.”).
8                                                   No. 03-2728

showering, during other strip searches—without complaint
or apparent psychological damage, and Nesic did and said
nothing to harass, humiliate, or intimidate Whitman during
the incident in question.
  Not only did Whitman fail to meet the objective prong of
the Eighth Amendment inquiry, as his treatment on April
22, 1998 was not sufficiently serious to warrant possible
liability, he has also failed under the subjective prong.
Whitman provided no evidence tending to show Nesic or
Ellerd intended to deliberately harm him, either through
Nesic’s administration of the strip and body-contents
searches on April 22, 1998 or through Ellerd’s possible im-
plementation, maintenance, or approval of the practice
followed by Nesic on April 22, 1998.2 Whitman admits that
Nesic did not touch, badger, ridicule, threaten, or intimidate
him during the searches, or at any time before or after. In
administering the test as he did, it is undisputed that Nesic
followed RCI’s procedure as he understood it and did not
deviate from it in order to increase Whitman’s embarrass-
ment and discomfort. Whitman presented no evidence
tending to show that Ellerd acted out of any motivation
other than legitimate interest in the safety and security of
the staff, prison populace, and community in maintaining
the random drug-testing program as administered in this
case.



2
   42 U.S.C. § 1983 does not provide for respondeat superior
liability. Sanville, 266 F.3d at 740. To prove Ellerd liable for a
constitutional deprivation, he must be personally responsible for
it, meaning, in this case, that the alleged strip search and nude
sample collection occurred at his direction or with his knowledge
and consent. Id. We assume, without specifically finding, as did
the district court, that Whitman showed the requisite affirmative
link between Ellerd, as director of security, and the conduct
complained about as part of the random drug-testing program
under Ellerd’s purview.
No. 03-2728                                               9

  Because we find no Eighth Amendment violation, we do
not reach Nesic’s and Ellerd’s qualified immunity argu-
ment.


                     III. Conclusion
 For the foregoing reasons, the district court’s decision is
AFFIRMED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—5-18-04
