In the
United States Court of Appeals
For the Seventh Circuit

No. 98-4252

Ricky Outlaw,

Plaintiff-Appellant,

v.

Herb Newkirk and Cameron Mable,
in his individual capacity,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 97 C 396--Robert L. Miller, Jr., Judge.

Argued February 22, 2001--Decided August 3, 2001


  Before Bauer, Coffey, and Manion, Circuit
Judges.

  Bauer, Circuit Judge. Ricky Outlaw, an
aptly named prison inmate, appeals the
district court’s grant of summary
judgment against him on his pro se claim
of excessive force which he had brought
under 42 U.S.C. sec. 1983. We affirm.

BACKGROUND

  Outlaw is currently an inmate at the
Indiana State Prison in Michigan City,
Indiana. However, the incidents giving
rise to this suit occurred on January 29,
1997, when Outlaw was incarcerated at the
Maximum Control Facility at Westville,
Indiana. On that date, correctional
officer Cameron Mable entered the section
of the prison where Outlaw was housed in
order to deliver to each prisoner a pair
of gray gym shorts. These shorts were
routinely distributed to prisoners
through the cuffport door, which is a
small hatch within the cell door. After
Mable gave the shorts to Outlaw through
the cuffport, Outlaw placed his hand in
the cuffport while holding some garbage,
and Mable closed the cuffport door on
Outlaw’s hand. Outlaw filed suit under 42
U.S.C. sec. 1983, claiming that Mable
violated his Eighth Amendment right to be
free from cruel and unusual punishment
(as well as the Indiana law of battery)
by "slam[ming] [his] hand in the cuff-
port hatch, causing severe pain, swelling
and bruising." The complaint also stated
that Outlaw and Mable had had prior
conflicts and that Mable had previously
harassed Outlaw, and it attempted to
state a sec. 1983 claim against Herb
Newkirk, the prison superintendent, for
taking no action despite being informed
of the previous incidents between them.

  Because Outlaw moved to proceed in forma
pauperis, the district court screened the
complaint pursuant to 28 U.S.C. sec.
1915A. The court found that the complaint
stated a nonfrivolous claim against
Mable, but did not state a claim with
respect to any incidents prior to January
29, 1997. The district court also found
that the complaint stated a claim for
battery under Indiana law, and that both
Mable and Newkirk were proper defendants
as to that claim.

  The defendants then moved for summary
judgment. In support of their motion,
they submitted the affidavits of Mable
and of Anita Miller, a fellow
correctional officer who claimed to have
been present during the incident. In his
affidavit, Mable stated that he delivered
the shorts to Outlaw through the cuffport
door and that "[a]s the cuffport door was
being closed, Offender Outlaw attempted
to throw trash through the opening." He
stated that he heard Outlaw say, "Take
this garbage, you bitch," and that
Outlaw’s hand was caught in the cuffport
door as he attempted to throw his trash
through it. Mable’s affidavit also
asserted that he closed the cuffport door
because it is "necessary for the security
and integrity of the prison" that the
cuffport doors be closed, and that he did
not know that Outlaw intended to put his
hand through the opening when he closed
the door. Mable contended that the
incident was an accident and that he did
not intend to harm Outlaw. Alternatively,
he maintained that even if the incident
had not been purely accidental, it would
have been justified. In support of this,
Mable averred the following in his
affidavit:

In a maximum security prison such as the
Maximum Control Facility, offenders often
throw garbage, feces, urine and other
injurious matter through the cuffport
openings at the correctional officers.
Offenders have even on occasion tried to
attack or grab an officer through the
cuffport opening. These are considered
acts of rebellion and aggression, and
employees and inmates can be injured as a
result. Based on the routine and custom
of the Maximum Control Facility, it is my
understanding that closing the cuffport
door is considered a reasonable response
to this threat. Therefore, even if it
were not purely accidental, I believe it
would have been a reasonable response to
close the cuffport door to prevent
Offender Outlaw from injuring myself or
anyone else.

  Officer Miller’s affidavit related an
account of the incident which echoed
Mable’s in several respects. Miller
stated that she heard Outlaw say, "Take
this garbage, you bitch" as the cuffport
door was being closed, that inmates at
the facility frequently attempt to throw
harmful matter and occasionally try to
grab the correctional officers through
the cuffport, and that "based upon the
routine and custom of the Maximum Control
Facility, closing the cuffport door is
considered a reasonable response to this
threat." Miller also stated: "based on my
personal observations and the information
given to me at the time, I have no reason
to believe that [Mable’s] decision to
close the cuffport door stemmed from
anything other than a good faith effort
to maintain the security of the prison."
However, she did not explicitly claim to
have personally observed Outlaw
attempting to throw trash through the
cuffport, stating merely that "it is my
understanding that as the cuffport door
was being closed, Offender Outlaw
attempted to throw trash through the
opening," and that his hand was caught in
the cuffport door as he attempted to
throw trash through it. (Emphasis added).

  In opposition to defendants’ motion,
Outlaw filed a memorandum to which he
attached various supporting materials as
exhibits. Between the memorandum and the
exhibits, Outlaw included a notarized
document with the heading "Affidavit,"
which reads: "I, Ricky Outlaw, hereby
state and affirm under the penalties for
perjury that the following exhibits
attached herewith, are true and correct
in their stated and represented
form."/1 In his memorandum, Outlaw
claimed that prior to the cuffport
incident, he and Mable had a disagreement
over the exchanging of linens, and as
support for this claim he included as an
exhibit the grievance that he had filed
with the prison authorities recounting
this incident. He also produced his
grievance with respect to the January 29,
1997 incident, which stated that while
Mable was delivering linens, he (Outlaw)
had "attempt[ed] to place 2-[S]tyrofoam
drinking cups and an ice-cream cup on the
food hatch to be thrown away from the
last meal," and that "[w]hile placing the
item[s] on the hatch Mable slam[m]ed the
hatch on my hand. . . ." Among other
exhibits, Outlaw also produced Mable’s
response to one of Outlaw’s prior
grievances in which Mable confirmed that
relations between he and Outlaw were
strained.

  Moreover, Outlaw denied that he was
attempting to throw trash through the
cuffport when Mable shut the door on his
hand. In support of this assertion,
Outlaw submitted as an exhibit Mable’s
incident report, which had been prepared
immediately after the event, noting that
the report did not state that Outlaw had
attempted to throw trash. The report
stated that: "As I was closing the
cuffport, Offender Outlaw shoved his hand
through the cuffport (with some garbage
in his hand) stopping me from the contin
ued closing of the cuffport and said,
’Take this garbage you Bitch.’" In his
memorandum, Outlaw contended that no
facts would support the claim that he
attempted to throw trash through the
cuffport, and he further stated that he
had never thrown anything through the
cuffport and that Mable’s alleged fear of
an imminent attack was unwarranted.

  In granting the defendants’ summary
judgment motion, the court noted that
because the defendants had supported
their motion with sworn affidavits, and
because the motion concerned as issue on
which Outlaw would bear the burden of
proof at trial, in order to survive
summary judgment Outlaw was obligated to
go beyond the pleadings and allege
specific facts demonstrating a genuine
issue for trial through his own
affidavits, depositions, answers to
interrogatories, or admissions on file.
The court found that neither of the
"affidavits" submitted by Outlaw
accomplished this. It noted that one
affidavit merely addressed a procedural
legal issue (by swearing that Outlaw
submitted a Notice of Tort claim "to
counselo[r] Wilson . . . for mailing to
the Indiana Attorney General Office"),
while the other affidavit (in which
Outlaw "affirms under the penalties for
perjury that the following exhibits
attached herewith are true and correct in
their stated and represented form"),
merely certified the exhibits rather than
swearing to the truth of their content.
The court also ruled that none of
Outlaw’s supporting materials "cast any
light on whether Mr. Outlaw threw trash
at Officer Mable or handed it to him, or
whether Officer Mable was justified in
slamming the cuffport door on Mr.
Outlaw’s hand." The court reviewed
Outlaw’s exhibits and found that the only
one which addressed these central issues
of the case was Mable’s response to
Outlaw’s grievance regarding the January
29, 1997 incident. However, while it
noted in passing that Mable’s response to
Outlaw’s grievance was "not necessarily
consistent" with his affidavit (since it
did not state that Outlaw had attempted
to "throw" trash through the cuffport),
the court found that this "apparent
inconsistency" did not constitute
probative evidence that Mable
intentionally slammed the cuffport door
on Outlaw’s hand without justification,
and therefore was not sufficient to
forestall summary judgment. Having
dismissed Outlaw’s only federal claim,
the court refused to exercise
supplemental jurisdiction over his
remaining state law claim. Outlaw
appealed.

DISCUSSION

  We review a district court’s grant of
summary judgment de novo, viewing the
record and all reasonable inferences that
may be drawn from it in the light most
favorable to the nonmovant. Summary
judgment is warranted only if "there is
no genuine issue as to any material fact
and [ ] the moving party is entitled to
a judgment as a matter of law." Fed. R.
Civ. P. 56(c). In ruling on a motion for
summary judgment, the judge’s role is not
to evaluate the weight of the evidence or
to determine the truth of the matter, but
instead to determine whether there is a
genuine issue of triable fact. All doubts
should be resolved in the nonmoving
party’s favor.

  The party moving for summary judgment
carries the initial burden of production
to identify "those portions of the
pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any,
which it believes demonstrate the absence
of a genuine issue of material fact."
Logan v. Commercial Union Ins. Co., 96
F.3d 971, 978 (7th Cir. 1996) (citing
Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986) (citation and internal
quotation omitted)). The moving party may
discharge this burden by "’showing’--that
is, pointing out to the district court--
that there is an absence of evidence to
support the nonmoving party’s case."
Celotex, 477 U.S. at 325. Once the moving
party satisfies this burden, the
nonmovant must "set forth specific facts
showing that there is a genuine issue for
trial." Fed. R. Civ. P. 56(e). "The
nonmovant must do more, however, than
demonstrate some factual disagreement
between the parties; the issue must be ’material.’"
Logan, 96 F.3d at 978. "Irrelevant or
unnecessary facts do not preclude summary
judgment even when they are in dispute."
Id. (citation omitted). In determining
whether the nonmovant has identified a
"material" issue of fact for trial, we
are guided by the applicable substantive
law; "[o]nly disputes that could affect
the outcome of the suit under governing
law will properly preclude the entry of
summary judgment." McGinn v. Burlington
Northern R.R. Co., 102 F.3d 295, 298 (7th
Cir. 1996) (citation omitted).
Furthermore, a factual dispute is
"genuine" for summary judgment purposes
only when there is "sufficient evidence
favoring the nonmoving party for a jury
to return a verdict for that party."
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986). Hence, a "metaphysical
doubt" regarding the existence of a
genuine fact issue is not enough to stave
off summary judgment, and "the nonmovant
fails to demonstrate a genuine issue for
trial ’where the record taken as a whole
could not lead a rational trier of fact
to find for the non-moving party . . . .’"
Logan, 96 F.3d at 978 (quoting Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)).

  The substantive law that guides our
review in this case is that governing
claims of excessive force under the
Eighth Amendment. The Eighth Amendment’s
Cruel and Unusual Punishments Clause
prohibits the "unnecessary and wanton
infliction of pain" on prisoners. See
Hudson v. McMillian, 503 U.S. 1, 5
(1992); Estelle v. Gamble, 429 U.S. 97,
102-03 (1976). In cases involving the
claimed use of excessive force, "the core
judicial inquiry" is "whether force was
applied in a good-faith effort to
maintain or restore discipline, or
maliciously and sadistically to cause
harm." Hudson, 503 U.S. at 7 (citation
omitted). In conducting this inquiry, a
court must examine a variety of factors,
including "the need for an application of
force, the relationship between that need
and the force applied, the threat reason
ably perceived by the responsible
officers, the efforts made to temper the
severity of the force employed, and the
extent of the injury suffered by the
prisoner." DeWalt v. Carter, 224 F.3d
607, 619 (7th Cir. 2000) (citing Hudson,
503 U.S. at 7). With regard to the last
of these factors, while a plaintiff need
not demonstrate a significant injury to
state a claim for excessive force under
the Eighth Amendment, "a claim ordinarily
cannot be predicated on a de minimis use
of physical force." DeWalt, 224 F.3d at
620 (citing Hudson, 503 U.S. at 9-10).
Indeed, "the Eighth Amendment’s
prohibition of cruel and unusual
punishments necessarily excludes from
constitutional recognition de minimis
uses of physical force, provided that the
use of force is not of a sort repugnant
to the conscience of mankind." Hudson,
503 U.S. at 9-10 (citation and internal
quotations omitted). Therefore, not every
"malevolent touch by a prison guard"
gives rise to a federal cause of action,
even if the use of force in question "may
later seem unnecessary in the peace of a
judge’s chambers." Id. at 9 (citation and
quotation omitted).

   Outlaw argues that
the defendants failed to meet their
initial burden of production, and
therefore that the burden of setting
forth specific facts demonstrating a
genuine issue of material fact never
shifted to him. Outlaw notes that the
defendants moved for summary judgment on
the theory that Outlaw could not
establish that Mable slammed the cuffport
door on Outlaw’s hand with the malicious
intent to harm him. While the defendants
did not dispute that Mable closed the
cuffport door on Outlaw’s hand, they
claimed that the action was either
accidental or justifiable. Outlaw asserts
that the only competent evidence that the
defendants offered in support of this
theory was Mable’s affidavit because
Miller’s affidavit was not based on
personal observation of the incident.
Moreover, Outlaw maintains that he
produced admissible documentary evidence
which presented specific reasons to
challenge Mable’s credibility, thereby
creating a genuine issue of material
fact. In his affidavit, Mable stated that
Outlaw was attempting to throw trash
through the cuffport just as Mable was
closing the cuffport door. However,
Outlaw produced Mable’s
contemporaneously-prepared incident
report, which did not reference Outlaw’s
attempting to throw trash. Outlaw
contends that it would be reasonable to
expect that this important fact would
have been included in the incident
report, especially considering Mable’s
subsequent claim that such behavior by
prisoners represents a security concern.
Relying on Cameron v. Frances Slocum Bank
& Trust Co., Outlaw asserts that the
contradiction between the incident report
and the affidavit raised an issue as to
Mable’s credibility sufficient to require
a trial: (". . . if the credibility of
movant’s witnesses is challenged by the
opposing party and specific bases for
possible impeachment are shown, summary
judgment should be denied and the case
allowed to proceed to trial, inasmuch as
this situation presents the type of
dispute over a genuine issue of material
fact that should be left to the trier of
fact." 824 F.2d 570, 575 (7th Cir. 1987)
(quotation and citation omitted)).

  We disagree. As the Advisory Committee
Notes to Fed. R. Civ. P. 56(e) indicate,
issues of credibility defeat summary
judgment only "[w]here an issue as to a
material fact cannot be resolved without
observation of the demeanor of witnesses
in order to evaluate their credibility"
(emphasis added). See Advisory Committee
Notes, 1963 Amendment to Fed. R. Civ. P.
56(e); see also Schoonejongen v.-Curtiss-
Wright Corp., 143 F.3d 120, 130 (3d Cir.
1998). Such is not the case here, for the
defendants would be entitled to summary
judgment even assuming the truth of
Outlaw’s version of the incident. It is
undisputed that prisoners at the maximum
control facility occasionally attempted
to throw garbage or other deleterious
materials and to grab the guards through
the cuffport openings. It is also
undisputed that such activities could
present a hazard to both guards and
inmates. Outlaw presented no evidence
contesting Mable’s sworn claim that he
said "Take this garbage, you bitch," as
Mable was closing the cuffport door./2
Finally, although Outlaw’s complaint
alleges that the cuffport incident caused
him "severe pain, swelling, and
bruising," one of Outlaw’s own
submissions forces the conclusion that
the injury was in fact quite minor.
Prison Nurse Colleen Collins examined
Outlaw’s hand after the incident, and in
her incident report (which Outlaw
submitted as an exhibit to his
memorandum) she wrote the following:

Slight swelling noted to outer aspect of
offender’s hand. A small area of
decoloration noted to outer part
ofoffender’s right hand. Area tender when
touched by writer. Offender also
complained of not being able to move his
last two finders on his right hand.
Capillary refill brisk, [s]kin warm to
dry. No deformities noted to right hand
or fingers. Offender voiced no complaints
of pain when writer moved fingers on
[o]ffender’s right hand. Ace wrap
applied. OTC Motrin given for pain. Ice
pack given. Offender instructed to
elevate right hand.

This was the only account of the injury
that Outlaw presented in his evidentiary
materials.

  Given all of this evidence, Outlaw
cannot escape summary judgment even if
his own account of the incident is
accepted as true (that is, even if he was
merely attempting to "place" rather than
to "throw" the garbage through the
cuffport when Mable closed the door on
his hand). As we have noted, Eighth
Amendment claims based on de minimis uses
of physical force by prison guards are
not cognizable unless they involve "force
that is repugnant to the conscience of
mankind." Hudson, 503 U.S. at 9-10. All
of the evidence adduced in this case
suggests that Mable had a legitimate
security reason to close the cuffport
door, whether Outlaw was actually
attempting to throw the garbage or merely
holding it through the cuffport while
uttering hostile words, and that in
closing the door Mable applied only
enough force to cause superficial
injuries to Outlaw’s hand. Even viewing
the facts in a light most favorable to
Outlaw, a rational jury could draw one of
only two possible conclusions: that the
incident was an accident, or that Mable
deliberately and perhaps unnecessarily
applied a relatively minor amount of
force to achieve a legitimate
securityobjective. Neither scenario would
involve a use of force that was
"repugnant to the conscience of mankind."

  Moreover, the minor nature of Outlaw’s
injuries strongly suggests that the force
applied by Mable was de minimis. See
DeWalt, 224 F.3d at 620 (upholding the
dismissal of plaintiff-inmate’s claim
that a correctional officer used
excessive force when he shoved the
plaintiff into a door frame, where the
shove was "a single and isolated act,
unaccompanied by further uses of force,"
and where the bruising suffered by the
plaintiff did "not appear to have been
particularly serious"); Lunsford v.
Bennett, 17 F.3d 1574, 1582 (7th Cir.
1994) (upholding grant of summary
judgment against a plaintiff-inmate on
his Eighth Amendment excessive force
claim, and holding that a prison guard
applied only de minimis physical force
that "[did] not offend the conscience"
when he poured a bucket of water on a
prisoner and caused the bucket to hit him
on the head, thereby causing the
plaintiff to suffer daily headaches that
did not prevent him from working). While
a plaintiff need not demonstrate a
significant injury to state a claim for
excessive force under the Eighth
Amendment, "the degree of injury is
relevant to determining whether the use
of force could plausibly have been
thought necessary in a particular
situation," Lunsford, 17 F.3d at 1582
(citation and internal quotation
omitted), and a minor injury supports the
conclusion that the incident was "at most
. . . a de minimis use of force not
intended to cause pain or injury to the
inmate." Id. Outlaw’s evidence does not
suggest that his injury was more than
minor, nor does it identify any other
fact sufficient to raise a genuine issue
on the question of whether Mable shut the
cuffport door "maliciously and
sadistically for the very purpose of
causing harm." This distinguishes
Outlaw’s case from cases wherein courts
have held that a plaintiff has stated a
cognizable claim of excessive force under
the Eighth Amendment. See Hudson, 503
U.S. at 10 (ruling that correctional
officers applied more than de minimis
force when they punched and kicked an
inmate while holding him in place,
causing bruises, swelling, loosened
teeth, and a cracked dental plate);
Thomas v. Stalter, 20 F.3d 298, 302 (7th
Cir. 1994) (holding that jurors could
reasonably conclude that the defendant
prison guard acted maliciously and
sadistically to cause harm--and therefore
that the plaintiff-inmate made out a
prima facie case of excessive force--
where the plaintiff claimed that the
guard punched him in the mouth with a
clenched fist while he was being held
immobilized by at least nine other
people, and told the inmate to "shut up"
immediately afterwards). Given the
circumstances presented here, even if we
were to find Mable’s action to be an
unnecessary application of force, the
minor nature of the injury coupled with
the absence of any other indicia of
malice on Mable’s part would force us to
conclude that it does not rise to the
level of a constitutional violation. See
Lunsford, 17 F.3d at 1582. While Outlaw
did submit evidence that there had been
prior conflicts between him and Mable and
that relations between the two were
strained, this does not constitute
evidence that Mable used force on the
occasion in question maliciously with the
intent to cause harm. The Supreme Court
has not included the history of (non-
violent) conflict between an inmate and a
guard among the factors that should be
considered in determining whether a
guard’s use of force on a given occasion
is malicious or unjustified.

  Therefore, it is not the case that the
resolution of any material fact issue
hinges on an assessment of Mable’s
credibility. The question of whether
Outlaw was actually attempting to throw
garbage (which is the only point on which
Mable’s statements could possibly be seen
as being inconsistent) is not a material
dispute for summary judgment purposes,
since the resolution of this dispute is
not outcome-determinative under the
governing Eighth Amendment substantive
law. See generally Anderson, 477 U.S. at
248. Hence, even if Mable’s affidavit’s
claim that Outlaw attempted to throw
trash is assumed to be an equivocation or
a change of his story rather than merely
a clarifying explanation or elaboration,
it would not bear on a material issue in
dispute and therefore would not defeat
the defendants’ summary judgment motion.
See Capital Options Investments, Inc. v.
Goldberg Bros. Commodities, Inc., 958
F.2d 186, 191 (7th Cir. 1992). This
distinguishes Outlaw’s case from Cameron,
wherein the movant’s witness made
statements in a key document as well as
in his deposition which could be
interpreted as contradicting another
statement in his deposition, and where
the contradictory statements concerned a
vital material issue. See Cameron, 824
F.3d at 574. Conversely, here the
conflicts between the two accounts of the
incident which Mable provided would at
most be "fodder for impeachment if th[e]
case went to trial." See Dugan v.
Smerwick Sewerage Co., 142 F.3d 398, 406
(7th Cir. 1998). The mere prospect of
challenging a witness’s credibility in
this manner is not enough, standing
alone, to avoid summary judgment. See
id.; cf. Fife v. Harmon, 171 F.3d 1173,
1176 (8th Cir. 1999) (ruling that when
the credibility of the parties to a
summary judgment motion is in doubt, "the
fact questions must be tried unless one
side is clearly entitled to judgment as a
matter of law") (emphasis added). In this
case, despite Mable’s arguably
inconsistent testimony regarding Outlaw’s
attempting to throw garbage and the
resulting fact dispute over that issue,
"the record as a whole points in one
direction and the dispute is not ’genuine.’"
Schoonejongen, 143 F.3d at 130 (citing
Matsushita, 475 U.S. at 586).

  Therefore, we find that the defendants
met their initial burden of production in
moving for summary judgment. They
submitted affidavits which represented
that prisoners throwing matter or
grabbing guards through the cuffports is
a security threat and that the cuffport
doors need to be closed to minimize these
hazards. The affidavits also stated that
Outlaw said "Take this garbage, you
bitch" while holding garbage through the
cuffport. Finally, in their memorandum in
support of their summary judgment motion,
the defendants pointed to the minor
nature of Outlaw’s injuries and argued
that such an injury could not support an
inference of malice. The burden then
shifted to Outlaw to present specific
evidence that would demonstrate a genuine
and material issue for trial. To do this,
Outlaw need to present evidence
suggesting that the incident was neither
accidental nor justified, and that Mable
applied more than de minimis physical
force. Outlaw has failed to carry his
burden. He has not presented any direct
evidence that would support a jury
finding that Mable acted maliciously with
the intent to cause harm, nor does the
record support any reasonable inference
to that effect, whether through
circumstantial evidence or otherwise.
Moreover, one of his own evidentiary
submissions suggests that Mable applied
only de minimis force. Under these
circumstances, Outlaw’s bald credibility
questions are not enough to prevent the
entry of summary judgment against him. As
we have said, "[s]ummary judgment is
intended to avoid a useless trial and is
appropriate . . . where it is quite clear
what the truth is." Babrocky v. Jewel
Food Co. & Retail Meatcutters Union,
Local 320, 773 F.2d 857, 861 (7th Cir.
1985).

  One final matter bears mentioning.
Outlaw brought his complaint pro se, and
he argues that neither the defendants nor
the district court adequately warned him
concerning the need to respond to a
summary judgment motion by affidavits, as
required by Lewis v. Faulkner, 689 F.2d
100 (7th Cir. 1982). Because we have held
that the evidentiary materials that
Outlaw submitted were insufficient
toprevent summary judgment as a
substantive matter, (and have not
excluded any of Outlaw’s materials from
consideration on the ground that they did
not qualify as affidavits or were
improperly verified or authenticated),
and because Outlaw does not identify any
other evidence that he would have
presented had he received proper Lewis
warnings, any deficiency in the Lewis
warnings that he received would be
harmless. See Kincaid v. Vail, 969 F.2d
594, 599-600 (7th Cir. 1992) (affirming a
grant of summary judgment against pro se
plaintiff-inmates where "even in light of
the materials the plaintiffs would have
had the district court consider, summary
judgment was appropriate"); Timms v.
Frank, 953 F.2d 281, 286 (7th Cir. 1992)
(". . . [I]f [the plaintiff] could not
have avoided summary judgment if she had
received adequate notice [of the
consequences of failing to respond
properly to a summary judgment motion],
there would be no point in remanding.").
Moreover, even if this were not the case,
Outlaw’s Lewis argument would be
unavailing. We have examined the Lewis
warnings provided by the defendants in
their summary judgment motion, and we
find that they clearly and adequately
apprised Outlaw of the consequences of
failing to respond to the motion with
affidavits, thereby satisfying the
requirements of Lewis.

CONCLUSION

  We have considered Outlaw’s other
arguments, and find them meritless. We
AFFIRM the district court’s grant of
summary judgment to the defendants.

FOOTNOTES

/1 The defendants argue that this "affidavit" did
not attest to the truth of the information con-
tained in the exhibits, but rather merely veri-
fied the accuracy of the copies. Therefore,
defendants contend that the majority of Outlaw’s
exhibits are unsworn and unverified, and cannot
be considered as evidence for summary judgment
purposes. Because we find that Outlaw’s evidence,
even if accepted, fails to raise a genuine issue
of material fact for trial, we assume throughout
this opinion that Outlaw’s exhibits were properly
verified.

/2 Miller’s affidavit arguably bolsters Mable’s on
this point because it seems to be based on
personal knowledge: ("I heard Offender Outlaw
say, ’Take this garbage, you bitch.’"). Further,
it should be noted that although Outlaw denies
having said these words in his memorandum in
opposition to defendants’ motion for summary
judgment, none of his affidavits or supporting
materials support his denial. Therefore, for
summary judgment purposes, Outlaw has presented
no evidence to create a genuine issue of material
fact on this issue. See Scherer v. Rockwell Int’l
Corp., 975 F.2d 356, 361 (7th Cir. 1992) (ruling
that "[a]rgument is not evidence upon which to
base a denial of summary judgment").
