The Estate of Jason Thomson v. Vaubel et al

Filing 127

DECISION AND ORDER signed by Judge William C Griesbach on 11/26/2024, GRANTING 48 Motion for Summary Judgment filed on behalf of Brown County, Bryce Haines, Kayla Kuchta, Clint Pelischek, Adam Schartner, and Matthew West and Plaintiff's claims against them are dismissed; AND GRANTING 65 Motion for Summary Judgment filed on behalf of the City of Green Bay, Thomas Behn, Scott Delsart, Ben Harvath, Michael ODonnell, Karen Pineda, Christopher Vaubel, and Alex Wanish and Plaint iff's claims against them are likewise dismissed. Rebecca Warren's Motion for Summary Judgment 59 , however, is DENIED. All motions addressing the previously scheduled trial, 117 , 120 , 122 , 123 , and 124 , are DENIED AS MOOT. The Clerk is directed to set this matter on the court's calendar for a telephone conference to discuss further proceedings on the remaining claim against Nurse Warren. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THE ESTATE OF JASON THOMSON,
Plaintiff,
v.

Case No. 23-C-84

CHRISTOPHER VAUBEL, et al.,
Defendants.
DECISION AND ORDER
Late in the evening on February 9, 2020, Jason Thomson suffered a seizure at a homeless
shelter in Green Bay, Wisconsin. Thomson was transported to a hospital by ambulance, where he
received treatment. As he was being discharged, Thomson became loud and combative, and
hospital staff contacted the Green Bay Police Department for assistance. Responding officers
restrained Thomson in handcuffs, as well as a device that immobilized his lower body, and
transported him to the Brown County Jail, formally known as the Brown County Detention Center.
Thomson repeatedly complained to officers that he could not breathe, but because he had just been
treated and released by hospital staff, had exhibited significant strength in resisting them, and was
able to speak with them, the officers did not believe he was having a medical emergency. When
officers arrived with Thomson at the jail, however, the officer in charge and the jail nurse
determined that Thomson was not medically fit and refused to accept him. As officers prepared
to take Thomson back to the hospital for medical clearance, he became unresponsive and pulseless
and stopped breathing. The officers, the jail nurse, and first responders attempted to resuscitate
Thomson but were unsuccessful.

Thomson’s Estate, Plaintiff, filed this action for damages under 42 U.S.C. § 1983 against
the police officers that restrained and transported Thomson to the jail, the jail officers that helped
carry him from the squad car to the arrest area and then back to the squad car, the jail lieutenant
who declined to admit him without medical clearance, and the jail nurse who assessed him,
alleging violations of Thomson’s constitutional rights. Specifically, Plaintiff alleges that Green
Bay Police Officers Ben Harvath, Karen Pineda, Christopher Vaubel, Michael O’Donnell, Alex
Wanish, Scott Delsart, and Sergeant Thomas Behn (collectively, the Green Bay Officers) used
excessive force against Thomson in violation of the Fourth Amendment. Plaintiff also alleges the
Green Bay Officers and Brown County Jail Officers Adam Schartner, Clint Pelischek, Matthew
West, Bryce Haines, and Kayla Kuchta (collectively, the BCJ Officers), as well as jail nurse
Rebecca Warren failed to provide Thomson adequate medical care in violation of the Fourth
Amendment. Lastly, Plaintiff alleges Thomson’s death was the result of the City of Green Bay
and Brown County’s failure to train and supervise their employees. The court has jurisdiction over
Plaintiff’s § 1983 claims under 28 U.S.C. § 1331. The case is now before the court on Defendants’
motions for summary judgment. For the following reasons, summary judgment will be denied as
to Nurse Warren. As to all other Defendants, summary judgment will be granted and the claims
against them dismissed.
BACKGROUND *
On February 9, 2020, shortly before midnight, Thomson, a homeless male, suffered a
seizure at St. John’s Homeless Shelter in Green Bay, Wisconsin. Dkt. No. 84 ¶¶ 1, 3. A staff
member at St. John’s called 911, and the Emergency Medical Services unit of the Green Bay Fire

Most of the events that gave rise to this action were captured in video recordings taken by the surveillance
cameras at the hospital, the squad car in which Thomson was transported, and the Brown County Jail. For the most
part, however, there is no audio recording.
*

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Department transported Thomson to St. Vincent Hospital for treatment. Id. ¶¶ 4–6. After
treatment was provided, Thomson was discharged, but before his actual release, he accused one of
the hospital nurses of rolling her eyes at him and he became agitated. Shortly before 3:00 a.m. on
February 10, 2020, St. Vincent staff called the Green Bay Police Department because Thomson
was yelling and refusing to cooperate with medical staff. Id. ¶¶ 7–9.
Officers Michael O’Donnell and Christopher Vaubel were dispatched to St. Vincent. Dkt.
No. 93 ¶ 6. O’Donnell was the first to make contact with Thomson, entering the St. Vincent
emergency room via the south hall at 2:43 a.m. Id. ¶ 8. Upon entering, O’Donnell observed
Thomson facing the opposite direction with his shirt and shoes off, as well as two nurses and two
hospital security officers. Dkt. No. 92-36 at 2:11. O’Donnell followed Thomson, who still had
his back toward O’Donnell, down the hospital hallway. Id. at 2:11–2:21. Roughly 15 seconds
after entering the emergency room hallway, O’Donnell made physical contact with Thomson. Id.
at 2:30. O’Donnell then forced Thomson up against a wall. Id. at 2:35. Thomson resisted and
ultimately fell to the floor with O’Donnell still grasping his waist and shoulder/neck area. Id. at
2:57. As Thomson continued to struggle, O’Donnell maintained control by placing his knee
against Thomson’s back. Id. at 2:57–3:15. At this point, Thomson was on the ground face down
and the two hospital security officers began to assist O’Donnell in restraining Thomson. Id. at
3:20–3:52.
At 2:45 a.m., Vaubel entered the emergency room hallway and began to assist O’Donnell
in restraining Thomson. Id. at 3:52–4:19. Upon Vaubel’s arrival, the two hospital security officers
stopped assisting and backed away. Id. at 4:19. While Thomson continued to flail, Vaubel
attempted to restrain Thomson’s lower body and O’Donnell attempted to restrain Thomson’s upper
body. Id. at 4:20–5:20. Officer Wanish arrived on the scene at 2:47 a.m. and attempted to grab

3

Thomson’s left arm. Id. at 5:24. Eventually, the three officers were able to move Thomson’s arms
behind his back and handcuff him. Dkt. No. 87-35 at 4. Sergeant Behn arrived on scene moments
later and began assisting. Thomson can be heard complaining that he could not breathe and was
going to die on the audio recording device that Sergeant Behn was wearing which transmitted to
his squad car. Dkt. No. 92-34 at 4:20–4:32. Officers responded to Thomson, stating “if you can
talk, you can breathe” and “you’re not going to die.” Id.
At 2:52 a.m., Officers Scott Delsart, Ben Harvath, and Karen Pineda arrived on scene
carrying a restraint device called the WRAP system. Dkt. No. 92-36 at 10:25–10:55. Officer
Delsart laid the WRAP on the hospital floor so that the officers could place Thomson in it. Id. at
11:00. “Auxiliary restraint devices,” like the WRAP, “are intended for use during long-term
restraint or transportation.” Dkt. No. 92-7 at 2. The Green Bay Police Department’s WRAP
procedures authorize use of the system “[t]o limit violent/combative subjects from causing injury
to themselves or others,” as well as for the “transportation of violent/combative subjects.” Id. at
5. The WRAP immobilizes a person’s lower body by placing it in a fabric casing that is held on
with shoulder straps, as the illustration below depicts:

Dkt. No. 79 at 7 n.2. Vaubel led in applying the WRAP to Thomson, and Delsart, Wanish, and
Behn assisted. Dkt. No. 94 ¶ 54. While the officers applied the WRAP, Thomson continued to
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claim that he could not breathe. Dkt. No. 93 ¶¶ 29–30. After restraining him in the WRAP, Delsart
placed a foam helmet on Thomson’s head, though Delsart did not tighten the helmet’s chin strap.
Dkt. No. 92-21 at 7–8. Officers then carried Thomson, while in the WRAP, down the south hall
of the emergency room to Harvath and Pineda’s squad car. Dkt. Nos. 92-36 at 13:52–14:06; 93
¶ 44.
Once outside, officers placed Thomson in the back seat of Harvath and Pineda’s squad car.
Dkt. No. 92-33 at 10:48–11:41. Thomson’s breathing was labored but he was speaking as officers
secured him with the car’s seat belts. Id. at 11:45–12:10. Wanish climbed into the back seat to
secure Thomson and heard him say he was going to die. Dkt. No. 92-47 at 7–8. When Thomson
was first placed in the squad, the foam helmet was positioned so that his nose and mouth can be
seen in the front opening. One of the officers, Officer Wanish, was shown re-positioning the
helmet on Thomson’s head. The view of Thomson was then obstructed as the officers apparently
strapped Thomson into the vehicle. When Officer Wanish steps out of the vehicle, the helmet has
been turned 180 degrees so that the chin strap is behind Thomson’s neck and the back side of the
helmet covers Thomson’s eyes, nose, and most of his mouth. Dkt. No. 92-33 at 12:27–12:40. The
rear door of the squad was then closed, and Harvath and Pineda left for the Brown County Jail. Id.
at 14:05.
Before the squad left the hospital, Sergeant Behn submitted a medical clearance form for
Thomson to the St. Vincent Hospital staff. Dkt. No. 74 ¶ 79. Notations on the form indicate that
Thomson had been seen at the hospital for a seizure and had fought with officers.
Dr. Christopher K. Gerwing, the attending ER physician, checked a box next to the statement
“Patient Uncooperative. To the best of my knowledge a medical emergency does not exist.” Dkt.

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No. 66-2. Sergeant Behn then signed the form and gave it to Officer Vaubel to provide to the jail.
Dkt. No. 74 ¶ 84.
During the eight-to-ten-minute drive, Thomson struggled to twist the loosely-fitted helmet
around to expose his nose and mouth for over four minutes, eventually succeeding, Dkt. No. 9233 at 13:00–17:30, and ultimately removing the helmet completely, id. at 20:32. Thomson
repeatedly told Harvath and Pineda that he could not breathe during transport but refused to tell
the officers why he could not breathe unless they removed the WRAP. Dkt. No. 92-24 at 8. While
Officer Pineda drove, Officer Harvath was able to view Thomson both directly and by the backseat
video camera that displayed to him on a screen in the front of the squad car. Because there was
nothing impeding Thomson’s breathing and because he continued talking to them and negotiating
over removal of the WRAP, the officers did not believe he was in distress and continued enroute
to the jail. Dkt. Nos. 92-24 at 9; 92-31 at 9–10. The officers also knew that the jail had a health
services unit.
At 3:10 a.m., Harvath and Pineda arrived at the Brown County Jail and parked in the sally
port. Dkt. No. 92-41 at 0:26. Vaubel also arrived in a separate vehicle. Id. Dispatch had notified
the jail that officers from the Green Bay Police Department would be arriving with “an unhappy
individual.” Dkt. No. 89 ¶ 8. Thus, eight jail officers met Harvath, Pineda, and Vaubel in the sally
port. Dkt. No. 92-41 at 1:20. One of those officers, Corporal Kayla Kuchta, introduced herself to
Thomson and asked if he would cooperate with jail officials so they could remove him from the
car; Thomson did not respond. Dkt. No. 89 ¶ 31. At 3:14 a.m., Kuchta and Corporal Matthew
West accessed the rear passenger door of the squad car and removed Thomson from the vehicle.
Dkt. No. 92-41 at 1:50–2:50. The other jail officers then assisted West and Kuchta in carrying
Thomson into the jail arrest area—a room with a counter, benches, and floorspace. Dkt. No. 92-

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40 at 8:58–9:15. After placing Thomson on the floor of the arrest area next to the counter, West
placed his hand in the small of Thomson’s back to keep him in an upright sitting position, while
Kuchta knelt on Thomson’s right side with her hand placed in Thomson’s right armpit to keep him
upright. Dkt. No. 92-39 at 3:26. West shook Thomson and flicked his ear multiple times to elicit
a reaction, but Thomson did not respond. Id. at 4:45–4:55. Meanwhile, Officer Bryce Haines and
Officer Clint Pelischek, as well as Harvath, Pineda, and Vaubel observed from nearby. Id. at 3:25.
As part of standard booking procedures, Pelischek retrieved a Portable Breath Test (PBT) to test
Thomson’s alcohol saturation levels. Dkt. No. 89 ¶¶ 57–58. Instead of blowing, Thomson bit
down on the PBT tube. Id. ¶ 59. Pelischek, West, and Haines all noted that Thomson’s skin color
was abnormal. Id. ¶¶ 60–62. Pelischek then exited the arrest area and conveyed to Lieutenant
Schartner his view that Thomson should not be booked into the jail in his condition. Id. ¶ 66.
West was also concerned about admitting Thomson in his current medical state, so he directed
Haines to call Health Services Unit (HSU) to come assess Thomson. Id. ¶¶ 42–43.
At approximately 3:15 a.m., Nurse Rebecca Warren, accompanied by Schartner, entered
the arrest area. Dkt. No. 92-40 at 11:39. Upon arrival, Vaubel informed Warren that Thomson
had a seizure earlier in the evening, was taken to St. Vincent for treatment, became combative, and
was ultimately arrested. Dkt. No. 89 ¶ 70. Vaubel also showed Warren some paperwork, but it
was not the usual St. Vincent medical clearance paperwork with which Warren was familiar. Id.
¶ 71. Warren observed Thomson was diaphoretic, pale, and drooling, and his head was hunched
over such that his chin was touching his chest. Dkt. No. 88 ¶¶ 49, 52. Though Thomson never
uttered any complete words, Warren observed Thomson groan, moan, shake his head “yes” and
“no,” and verbalize “uh-huh.” Dkt. No. 87-22 at 21–22. Warren took Thomson’s pulse and
counted his respirations but was unable to take his blood pressure. Dkt. No. 88 ¶¶ 55–56.

7

Ultimately, Warren concluded that Thomson needed to be reevaluated at the hospital as his skin
was pale, he was lethargic, and the jail did not receive proper discharge paperwork indicating what
treatment Thomson received at St. Vincent or what follow-up care was necessary. Id. ¶ 58.
Schartner agreed, observing that Thomson was drooling, his head was hunched over, and he
appeared to need medical care. Dkt. No. 89 ¶ 89. Thus, the jail refused to admit Thomson. Dkt.
No. 87-20 at 32–33.
Jail officials then carried Thomson, who was still in the WRAP, out of the arrest area and
placed him back in Harvath and Pineda’s squad car. Dkt. No. 88 ¶ 63. By 3:22 a.m., all BCJ
Defendants had retreated back into the jail arrest area. Dkt. No. 89 ¶ 106. As Harvath and Pineda
secured Thomson in the car, Harvath observed Thomson’s condition worsen and described his
breathing as “more and more shallow.” Dkt. Nos. 87-23 at 63; 92-41 at 10:30; 89 ¶ 112. Warren
had accompanied the officers to the sally port and could see Thomson through the rear driver-side
door opening; she too, observed Thomson’s condition worsen. Dkt. No. 92-41 at 10:45–13:40;
see Dkt. No. 89 ¶ 113. Approximately five minutes after Thomson was placed back into the squad
car, officers removed him and placed him on the floor of the sally port. Dkt. No. 92-41 at 15:15.
At 3:26 a.m., dispatch was notified that Thomson was not breathing and CPR was in progress.
Dkt. No. 88 ¶ 71. The WRAP was removed, Vaubel retrieved an Automated External Defibrillator
from his squad car, and Warren began chest compressions. Dkt. No. 92-41 at 16:00–17:50. At
3:27 a.m., Haines told Kuchta, West, and Schartner that CPR had been initiated on Thomson. Dkt.
No. 89 ¶ 126. West, Haines, and Schartner exited to the sally port to assess the situation. Id. ¶¶
128–29. Attempts to revive Thomson continued for the next six minutes until Green Bay EMS
arrived. Dkt. No. 92-41 at 17:50–23:05. Thereafter, EMS personnel attempted to resuscitate
Thomson for 14 minutes before loading him into the ambulance on a stretcher. Id. at 23:05–37:40.

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Thomson was pronounced dead at 4:09 a.m. at Aurora BayCare Medical Center; his cause
of death was determined to be “[c]ardiac arrhythmia of an undetermined etiology following police
restraint.” Dkt. Nos. 87-31 at 2, 6; 88 ¶ 77.
It is over this roughly two-hour stretch, from hospital to jail, that Plaintiff alleges
Thomson’s constitutional rights were violated. Plaintiff claims that the Green Bay Officers
violated the Fourth Amendment by using excessive force in restraining Thomson and that all
Defendants violated the same Amendment by failing to provide him medical care.

These

violations, Plaintiff further contends, were the result of the City of Green Bay’s and Brown
County’s failure to adequately train and supervise the officers.
LEGAL STANDARD
Summary judgment is appropriate when the movant shows there is no genuine issue of
material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Material facts” are those under the
applicable substantive law that “might affect the outcome of the suit.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute over a “material fact” is “genuine” if “the evidence is
such that a reasonable jury could return a verdict for the non-moving party.” Id. In deciding a
motion for summary judgment, the court must view the evidence and make all reasonable
inferences in the light most favorable to the non-moving party. Johnson v. Advocate Health &
Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018) (citing Parker v. Four Seasons Hotels, Ltd., 845
F.3d 807, 812 (7th Cir. 2017)). This means the court must refrain from making credibility
determinations. Anderson, 477 U.S. at 255 (“Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a
judge.”). “This principle is particularly relevant where . . . the witness most likely to contradict

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the officer’s testimony—the victim—cannot testify.” Cyrus v. Town of Mukwonago, 624 F.3d
856, 862 (7th Cir. 2010). The party opposing the motion for summary judgment must “submit
evidentiary materials that set forth specific facts showing that there is a genuine issue for trial.”
Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (citations omitted). “The nonmoving
party must do more than simply show that there is some metaphysical doubt as to the material
facts.” Id. Summary judgment is properly entered against a party “who fails to make a showing
to establish the existence of an element essential to the party’s case, and on which that party will
bear the burden of proof at trial.” Austin v. Walgreen Co., 885 F.3d 1085, 1087–88 (7th Cir. 2018)
(citing Celotex Corp., 477 U.S. at 322).
Additionally, as relevant here because of the availability of video evidence, “[w]hen
opposing parties tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 381 (2007).
ANALYSIS
A. Excessive Force
Plaintiff does not contest the legality of Thomson’s arrest. Instead, Plaintiff claims the
Green Bay Officers used excessive force against Thomson in effectuating that arrest and
restraining him with the WRAP. Fourth Amendment excessive force claims are assessed under
the objective reasonableness test. Graham v. Connor, 490 U.S. 386, 388 (1989). The nature and
extent of force that may reasonably be used to effectuate an arrest depends on the specific
circumstances of the arrest, including “the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight.” Id. at 396. “Determining whether the force used to effect

10

a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of
‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against
the countervailing governmental interests at stake.” Id. (quoting United States v. Place, 462 U.S.
696, 703 (1983)).
“Objective reasonableness of force is a legal determination rather than a pure question of
fact for the jury to decide.” Phillips v. Cmty Ins. Corp., 678 F.3d 513, 520 (7th Cir. 2012) (citing
Bell v. Irwin, 321 F.3d 637, 640 (7th Cir. 2003)). As the court explained in Phillips, “a
constitutional tort is not ‘an analog of civil negligence.’” Id. In a traditional negligence case, the
jury determines whether conduct was reasonable under the circumstances. But in an excessive
force case, while the jury makes findings of fact, the court “must independently review the jury’s
interpretation of what is reasonable under the Fourth Amendment.” Id. (citing Ornelas v. United
States, 517 U.S. 690, 697 (1996) (“A policy of sweeping deference by appellate courts to
factfinders’ determinations of probable cause would permit . . . the Fourth Amendment’s incidence
to turn on whether different factfinders draw general conclusions that the facts are sufficient or
insufficient to constitute probable cause. Such varied results would be inconsistent with the idea
of a unitary system of law.” (cleaned up))).
The Green Bay Officers argue that the undisputed evidence demonstrates conclusively that
they did not use excessive force in restraining and arresting Thomson at St. Vincent Hospital in
the early morning hours of February 10, 2020. They contend that “the undisputed record shows
that the manner of restraint was reasonable—if not imperative—to overcome Thomson’s
resistance, maintain control and remove him from the hospital emergency room.” Dkt. No. 79 at
11. Thomson was not punched or struck by any of the officers either before or after he was
handcuffed. As far as the video shows, no more force was used than was necessary to subdue and

11

restrain him when he refused to comply with the directions given him by both the hospital staff
and the responding officers. The deposition testimony and declarations confirm what the video
depicts.
Plaintiff contends that Thomson was only passively resisting arrest, and therefore was
entitled to be free from “significant” force. See Miller v. Gonzalez, 761 F.3d 822, 829 (7th Cir.
2014). But that is not true. Thomson was not passive in his resistance—he was active. O’Donnell
first grabbed Thomson’s wrist as he continued walking away from him. That was reasonable.
Turner v. City of Champaign, 979 F.3d 563, 569 (7th Cir. 2020) (holding an officer was not
objectively unreasonable in grabbing a fleeing arrestee’s shoulder). Thomson did not respond to
this initial contact by complying with commands. Instead, the video evidence shows Thomson
trying to pull his hand away from O’Donnell’s grasp. Dkt. No. 92-36 at 2:24.
Thomson’s resistance continued after O’Donnell attempted to gain control by forcing him
against the wall. Thomson used his arms and legs to resist O’Donnell and push away from the
wall. Id. at 2:35–2:52. Then, once on the ground, Thomson continued to roll around requiring
O’Donnell to use his knee to control Thomson as two other officers joined in to assist him. Id. at
2:55–3:30. Finally, while prone, Thomson kicked and flailed his legs. Id. at 3:29, 5:25–5:30.
Such behavior is not akin to the “passive resistance” recognized in Miller: “lying motionless and
spread-eagled on the ground . . . obeying every order except for the order to move his hands behind
his back.” 761 F.3d at 829. Faced with this resistance, O’Donnell and the other officers were
justified in using the amount of force needed to overcome Thomson and gain control of him.
Fitzgerald v. Santoro, 707 F.3d 725, 734 (7th Cir. 2013) (compiling cases). O’Donnell was
entitled to escalate the amount of force used to the demands of the situation. Estate of Phillips v.
City of Milwaukee, 123 F.3d 586, 593 (7th Cir. 1997) (citing United States v. Montoya de

12

Hernandez, 473 U.S. 531, 542 (1985)); see also Fitzgerald, 761 F.3d at 734 (affirming summary
judgment for officers who grabbed detainee by arms, used an arm-bar and wrist-lock technique,
and forced her onto a gurney while she screamed, tried to pull her arms away, and tried to fight
the officers); Padula v. Leimbach, 656 F.3d 595, 603 (7th Cir. 2011) (affirming summary judgment
for officers who forcibly removed a detainee from his car after he failed to respond to the officers’
commands); Turner, 979 F.3d at 569–70 (affirming summary judgment for an officer who placed
a resisting arrestee in a prone position, handcuffed him, placed a knee on his shoulder for control,
and hobbled his legs). Further, O’Donnell did not strike or beat Thomson but used “minimally
forceful techniques designed to subdue non-complaint subjects and prevent escalation.”
Fitzgerald, 707 F.3d at 734.
In sum, O’Donnell responded to a call requesting assistance in controlling a disorderly
male. He arrived at the hospital to find Thomson combative, yelling, and non-complaint. A
reasonable officer in O’Donnell’s position could have determined that Thomson’s resistance posed
a threat to hospital staff and its operations, and to O’Donnell himself. The fact that Thomson had
not yet hurt anyone is irrelevant. He was walking up and down the hallways of a hospital, yelling
at staff, and refusing to calm down and cooperate with staff’s efforts to discharge him. Thus,
O’Donnell’s use of force in the “tense, uncertain, and rapidly evolving” circumstances was
objectively reasonable. Graham, 490 U.S. at 396–97.
Plaintiff next contends that Vaubel, Behn, Delsart, Wanish, Harvath, and Pineda used
excessive force in applying the WRAP after Thomson had already been handcuffed. Vaubel,
O’Donnell, and Wanish all testified that the WRAP was applied because Thomson continued to
resist after being handcuffed by raising his hips off the ground, trying to stand, and kicking his
legs. Dkt. Nos. 92-23 at 20; 92-20 at 6; 92-47 at 4. Plaintiff cites only to the security camera

13

footage in arguing that Thomson was not resisting. But no reasonable juror could view the security
camera footage and determine that Thomson was not resisting. Though the footage is blurry, and
Thomson’s body is often obfuscated by the officers, it is clear that he was refusing to exercise selfcontrol and creating a disturbance in the hospital emergency department both before and after
officers arrived. Dkt. No. 92-36 at 10:30–13:30. The deposition testimony and declarations of the
officers and hospital staff only confirm what the video shows. Plaintiff has not presented evidence
demonstrating a material factual dispute concerning Thomson’s resistance. As such, the officers
were reasonable in escalating the use of force to meet the needs of the current situation. Estate of
Phillips, 123 F.3d at 593 (citing another source).
Plaintiff cites Estate of Sanchez v. County of Stanislaus as support for its contention that
the use of the WRAP constitutes excessive force. No. 1:18-cv-00977-ADA-BAM, 2023 WL
7612399, at *22–*23 (E.D. Cal. Nov. 14, 2023). But that case is inapposite. In Estate of Sanchez,
the court concluded that the WRAP system constitutes more force than handcuffs alone and that a
material dispute existed as to whether the arrestee was resisting. Id. Thus, the court could not
determine whether use of the WRAP system was reasonable and denied summary judgment for
the defendants. Id. at *23. Here, however, as just discussed, there is not a material dispute about
whether Thomson was resisting after being handcuffed. The undisputed video evidence shows he
was. Therefore, even if this court accepts the Estate of Sanchez court’s finding that the WRAP is
a greater use of force than handcuffs, such a finding is not dispositive. The officers here were free
to use a greater quantum of force to control Thomson as he was still resisting after being
handcuffed. And since he was to be transported to the jail, the use of the WRAP to restrain his
lower extremities so as to prevent damage to their squad car was also reasonable.

14

Based on the undisputed facts of the case, the Green Bay Officers’ use of force was
objectively reasonable under the circumstances. No reasonable jury could find that the force used
to restrain Thomson after he became unruly and refused to comply with the realistic directions of
the hospital staff and police was unreasonable. Therefore, the court grants summary judgment in
their favor and dismisses Plaintiff’s excessive force claim.
B. Failure to Provide Adequate Medical Care
Plaintiff alleges Thomson’s constitutional right to adequate medical care was violated at
three junctures: (1) by all individual Green Bay Officers while at St. Vincent Hospital, (2) by
Harvath and Pineda while in transport to the Brown County Jail, and (3) by Vaubel, Harvath,
Pineda, the BCJ Officers, and Nurse Warren while at the Brown County Jail. After setting forth
the standard, the court will address each juncture separately.
“[W]hen the State takes a person into its custody and holds him there against his will, the
Constitution imposes upon it a corresponding duty to assume some responsibility for his safety
and general well-being”—i.e., provide adequate medical care. DeShaney v. Winnebago Cnty.
Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989). Where law enforcement is tasked with
providing adequate medical care, they “will either procure treatment, provide treatment, or both.”
Florek v. Vill. of Mundelein, 649 F.3d 594, 599 (7th Cir. 2011). Thomson was arrested without a
warrant and had not yet had a probable cause hearing. Thus, the Fourth Amendment’s objectively
unreasonable standard governs. Lopez v. City of Chicago, 464 F.3d 711, 719 (7th Cir. 2006). In
determining whether a defendant’s response to medical need was objectively unreasonable, the
court considers four factors: “(1) whether the officer has notice of the detainee’s medical needs;
(2) the seriousness of the medical need; (3) the scope of the requested treatment; and (4) police
interests, including administrative, penological, or investigatory concerns.” Ortiz v. City of

15

Chicago, 656 F.3d 523, 530 (7th Cir. 2011) (citing Williams v. Rodriguez, 509 F.3d 392, 403 (7th
Cir. 2007)). The plaintiff must also show “the defendant’s conduct caused the harm of which she
complains.” Id. (citing Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010)).
Under the objective reasonableness standard, the subjective intent or awareness of the
officer, or other state actor, is not relevant once it is determined that his or her actions or failure to
act were “purposeful, knowing or possibly reckless.” Kingsley v. Hendrickson, 576 U.S. 389, 396
(2015); Miranda v. Cnty. of Lake, 900 F.3d 335, 351–54 (7th Cir. 2018). For a claim of failure to
provide medical care, a plaintiff need prove, in addition to causation, only “that the defendants did
not take reasonable available measures to abate the risk of serious harm to [the plaintiff], even
though reasonable officers under the circumstances would have understood the high degree of risk
involved, making the consequences of the defendants’ conduct obvious.” Pittman by & through
Hamilton v. Madison Cnty., 108 F.4th 561, 572 (7th Cir. 2024) (Pittman IV). “The objective
reasonableness of a decision to deny medical care does not consider the defendant’s subjective
views about risk of harm and necessity of treatment. Instead, the proper inquiry turns on whether
a reasonable officer in the defendant’s shoes would have recognized that the plaintiff was seriously
ill or injured and thus needed medical care.” Id. at 570. At the same time, the Court has cautioned
that the objective reasonableness standard cannot be applied “mechanically.” Kingsley, 576 U.S.
at 397. Rather, the court must examine the “facts and circumstances of each particular case”
through the lens of a reasonable officer and refrain from invoking the “20/20 vision of hindsight.”
Id. (citing Graham, 490 U.S. at 396). In other words, the fact that Thomson later died cannot be
used as evidence that Defendants’ decisions to act or not act were unreasonable at the time they
were made. As in most areas, what is objectively reasonable for a law enforcement officer often
falls within a range of possible responses to a set of circumstances. Florek, 649 F.3d at 600 (“Just

16

as the Fourth Amendment does not require a police officer to use the least intrusive method of
arrest, neither does it require an officer to provide what hindsight reveals to be the most effective
medical care for an arrested suspect.” (quoting Tatum v. City of San Francisco, 441 F.3d 1090,
1098 (9th Cir. 2006))).
With these standards in mind, the court will now turn to the three junctures at which
Defendants are alleged to have failed to respond to Thomson’s medical needs, beginning at the
first juncture: St. Vincent Hospital.
1. St. Vincent Hospital
Plaintiff alleges that all individual Green Bay Officers involved in taking Thomson into
custody at St. Vincent Hospital were objectively unreasonable in failing to provide adequate care
given Thomson’s physical condition and complaints about breathing while at the hospital. The
Green Bay Officers contend that they were not on notice that Thomson was experiencing a serious
medical emergency but nonetheless claim they reasonably responded to Thomson’s complaints.
Upon consideration of all the facts and circumstances of the case, the court agrees.
As to notice, Plaintiff contends that it is undisputed that Thomson expressly stated he could
not breathe when the officers were struggling with him in the hospital even before he was placed
in the WRAP. He continued to claim he was unable to breathe after he was restrained in the
WRAP. Plaintiff notes that there is also evidence that Thomson was breathing heavily and
sweating. Dkt. No. 92-23 at 5. In Plaintiff’s view, this is more than sufficient to establish that the
Green Bay Officers had notice of Thomson’s need for medical assistance.
It is true that “[o]fficers can be placed on notice of a serious medical condition either by
word or through observation of . . . physical symptoms.” Braun v. Vill. of Palatine, 56 F.4th 542,
551 (7th Cir. 2022) (quoting Estate of Perry v. Wenzel, 872 F.3d 439, 454 (7th Cir. 2017)).

17

Although Delsart, Pineda, and Harvath dispute ever hearing Thomson complain of an inability to
breathe at the hospital, Thomson can be heard complaining that he couldn’t breathe on the audio
recording from Sergeant Behn’s squad car and O’Donnell testified that Thomson complained of
an inability to breathe “a few more times” while the officers applied the WRAP. Dkt. No. 83-10
at 6–7; see also Dkt. No. 92-34 at 9:25–9:30. While the WRAP was being applied, all seven
officers were in the immediate vicinity of Thomson, and therefore, a reasonable jury could
conclude that each officer heard Thomson’s complaint. Thus, there is evidence from which a jury
could find that all of the Green Bay Officers heard Thomson claim he could not breathe.
But while it is true that officers can be placed on notice of a serious medical need by the
explicit report of an arrestee, it does not follow that officers effecting an arrest of an unruly person
must accept as true whatever the person says. If every arrestee was able to avoid being physically
restrained for transport to jail and instead be taken to the hospital simply by stating “I can’t
breathe,” law enforcement officers would be tasked with forever transporting them back and forth
from the hospital. That would plainly be unreasonable. In this case, the officers did not believe
that Thomson was experiencing a medical emergency when he complained about his difficulty
breathing. They arrived at this conclusion for a number of reasons.
First, when Thomson first complained that he could not breathe, they were already at the
hospital. Police were summoned to the hospital where Thomson had just been treated and released,
and they were surrounded by health care professionals. Indeed, it was hospital personnel who
called police because Thomson had become unruly and combative as they were going through the
process of discharging him. None of the health care workers witnessing the struggle apparently
recognized any serious medical need, and the doctor who treated him signed the discharge

18

certification after the struggle occurred indicating that Thomson was “uncooperative” and “to the
best of [the doctor’s] knowledge, a medical emergency [did] not exist.” Dkt. No. 66-2.
Second, while Thomson’s rapid breathing and sweating can be sign of a medical need, it
can also be the result of strenuous physical exertion. At the time Thomson first complained that
he couldn’t breathe, he had just been struggling with police as they attempted to restrain him. It
took three or four officers several minutes to gain control of him, indicating a degree of strength
that was hardly indicative of a person experiencing a medical emergency. And given Thomson’s
physical exertion during the struggle, it was not unreasonable to attribute his heavy breathing and
sweating to his efforts to resist the officers, as opposed to a medical emergency. This is especially
true given the fact that he had just been discharged by the hospital and medical staff had essentially
witnessed the same behavior they had seen.
Plaintiff contends that it was objectively unreasonable for the Green Bay Officers to use
the WRAP to restrain Thomson under the circumstances of this case. But at the time the officers
placed Thomson in the WRAP, he was kicking and flailing his lower extremities. It took two
officers to control his upper extremities and he continued kicking even after he was handcuffed.
As the photograph above shows, the WRAP system restrains a person’s lower torso; it does not
cover a person’s nose or mouth, compress a person’s chest, or otherwise interfere with breathing.
It is designed and intended to prevent an unruly person from using his lower extremities to inflict
injury upon the officer or damage to a squad car during transport. Given Thomson’s behavior at
the hospital, it was not unreasonable to use the WRAP to restrain him, especially since it was done
in the presence of hospital staff.
Plaintiff argues that the failure to remove the WRAP immediately when Thomson began
complaining that he couldn’t breathe violated the Green Bay Police Department’s Policy 302 on

19

Handcuffing and Restraints. The Policy states: “If the restrained complains of or shows signs of
breathing distress (shortness of breath, sudden calmness, a change in facial color, etc.), medical
attention should be provided immediately.” Dkt. No. 92-7 at 6. Plaintiff argues that the Green
Bay Officers’ failure to comply with this policy was objectively unreasonable and thus a violation
of Thomson’s rights under the Fourth Amendment. But, again, the Green Bay Officers did not
believe Thomson was in distress and, for the reasons set forth above, their belief was reasonable
in light of the surrounding facts and circumstances.
As to the severity of the medical need, an inability to breathe is surely serious. Evans v.
Gallinger, No. 18-cv-194-wmc, 2021 WL 39608, at *6 (W.D. Wis. Jan. 5, 2021) (collecting cases).
But the Green Bay Officers argue that under these circumstances, it was reasonable to conclude
that Thomson’s claimed inability to breathe was not due to medical distress. The Green Bay
Officers argue they confirmed Thomson was still breathing—his ability to make verbal complaints
confirmed as much—and verified his airways were not restricted. No nurses or doctors expressed
a concern about Thomson’s condition even though the ER nurse’s station was immediately
adjacent to where the altercation took place. See generally Dkt. No. 92-37. And Dr. Gerwing
medically cleared Thomson for transport. Dkt. No. 66-2 at 1.
The most troublesome aspect of the officers’ behavior at the hospital was what appears to
have been the rotation of the foam helmet once Thomson was placed in the back seat of the squad
so that the chin strap was behind Thomson’s neck and the back side of the helmet covered
Thomson’s eyes, nose, and most of his mouth. Dkt. No. 92-33 at 12:27–12:40. The Green Bay
Officers offer no explanation for why this was done, but instead seem to deny it was done
intentionally or claim it was the result of Thomson’s own movements. Because the loose-fitting
helmet did not obstruct his breathing, however, and Thomson was able to move it back to the

20

proper position and remove it entirely within a relatively short time, it does not appear to have
been a cause of Thomson’s death, and Plaintiff offers no evidence that it was. For this reason, this
fact alone, though troubling, does not preclude entry of summary judgment for the Green Bay
Officers involved in restraining Thomson at St. Vincent Hospital.
2. Transport
Likewise, the court concludes that the actions of Harvath and Pineda in transporting
Thomson from St. Vincent Hospital to the Brown County Jail were objectively reasonable. During
the roughly 10-minute car ride, Thomson continued to complain he could not breathe, was going
to die, and struggled to remove the foam helmet that covered his nose and mouth. Harvath and
Pineda discussed Thomson’s complaints and observed him directly and on the front seat video
screen but provided no medical care. Plaintiff, relying heavily on departmental policy, argues this
was unreasonable. Harvath and Pineda do not dispute they heard Thomson complain he could not
breathe but argue they did not believe medical care was required.
Because Harvath and Pineda were present when Thomson was restrained at the hospital
and loaded into their squad car, the reasons that led them to such a conclusion were the same as
those of the other officers. Thomson had been seen by the medical staff at the hospital and
discharged as no longer needing medical care. He became combative with the staff, resulting in a
call to police. Three or four police officers overcame his resistance in the emergency room
hallway, placed him in the WRAP, and transferred him to their squad car with the hospital staff
looking on. Sergeant Behn obtained Dr. Gerwing’s signature on the form indicating that, to the
best of his knowledge, a medical emergency did not exist.
Harvath and Pineda offered additional reasons why they did not believe that Thomson was
having a medical emergency, despite his repeated complaints. Because Pineda was driving,

21

Harvath was the officer most responsible for monitoring Thomson’s condition as they drove to the
Brown County Jail. Harvath explained that they did not ignore Thomson’s complaint, but when
he asked Thomson why he couldn’t breathe, Thomson responded by in effect saying, “take this off
and I will explain it to you.” Dkt. No. 66-9 at 40. Harvath explained that “to me, that meant that
he was possibly trying to have officers take him out of the restraining device so that he could
potentially escape or continue to be combative towards officers.” Id. Harvath added that Thomson
had already been “medically cleared at the hospital” and he was “under the impression that any
known medical issues would have been addressed as part of that medical clearance.” Id. at 40–41.
Pineda offered similar reasons. She noted that Harvath had discussed during her training
that people who are uncooperative during arrest will sometimes say untruthful things to law
enforcement to have them either pull over and remove restraints or loosen handcuffs. Harvath
noted to Pineda that Thomson was “in the back seat talking, his chest was rising up and down, and
he was trying to negotiate with us.” Dkt. No. 66-8 at 42–43. Based upon her own observations
and her conversation with Harvath, Pineda explained that “at that time [she] did not believe that
there was a medical emergency.” Id. at 45. Finally, Harvath and Pineda also argue their actions
were reasonable because they were transporting Thomson to a facility with a health services unit
where he would receive medical care—the Brown County Jail—and that care would be made
available in less than ten minutes. Under these circumstances, the conclusion Pineda and Harvath
drew was not unreasonable.
The facts of this case contrast sharply with those of Estate of Perry v. Wenzel, 872 F.3d
439 (7th Cir. 2017). Unlike the arrestee in that case, Thomson had exhibited normal health and
strength by fighting with the officers when he was taken into custody after having been medically
cleared at the hospital. He had no difficulty walking, at least until he was placed in the WRAP,

22

and was able to talk with the officers and even engage in what they took to be negotiations. Unlike
Perry, Thomson did not urinate or defecate in his pants as he was dragged from a squad car to a
holding cell where a police lieutenant told him he would be treated “like an animal,” he wasn’t
moaning and drooling, and blood did not ooze from under a spit mask that completely covered his
face. Cf. Estate of Perry, 872 F.3d at 446–51. In this case, by contrast, Thomson appeared to have
been conscious and able to communicate until the squad arrived at the sally port of the Brown
County Jail and he was taken into the jail arrest area. In light of these facts, the failure of Officers
Pineda and Harvath to return him to the hospital or take other action was objectively reasonable.
3. Brown County Jail
Lastly, Plaintiff alleges Vaubel, Harvath, Pineda, the BCJ Officers, and Nurse Warren
failed to provide Thomson adequate medical care while at the Brown County Jail. Prior to Harvath
and Pineda’s arrival, the BCJ Officers were advised Thomson, “an unhappy individual,” was in
route. Taking the facts in the light most favorable to Plaintiff, Thomson was nonverbal upon
arrival. None of the Green Bay Officers told the BCJ Officers the reason for Thomson’s hospital
visit, nor that he was complaining he could not breathe in the car. Nonetheless, it appears that
Thomson’s condition had deteriorated, and the BCJ Officers recognized as much. Thomson’s skin
was pale, he could not form a coherent sentence—supplying only groans and moans, his head was
slouched, he was drooling, his legs would shake, and he was sweating. BCJ Officers Pelischek
and West were concerned with Thomson’s medical state, so Pelischek advised Schartner the jail
should not admit Thomson, and West directed Haines to call for a nurse. Nurse Warren arrived,
attempted unsuccessfully to take Thomson’s blood pressure while he was still in restraints and
quickly concluded that Thomson should not be admitted to the jail. She did not ask to have the
restraints removed and made no effort to check his blood/oxygen level or conduct a more thorough

23

examination. The officers then carried Thomson back out to the squad car where his breathing
became shallower. When Thomson became pulseless and breathless, the WRAP was removed,
and an ambulance was called.
In support of their motion for summary judgment, the BCJ Officers argue that Thomson
was never in their custody since they refused to admit him. But this argument is foreclosed by
Estate of Perry, 872 F.3d at 457. There, the court held that, for constitutional purposes, the
county’s policy of refusing to take custody of prisoners deemed medically unfit did not control
over the facts of the case. To hold otherwise “would allow municipalities to easily isolate
themselves from liability by enacting policies that have the effect of dictating when their
constitutional duties begin.” Id. Instead, the court considered the fact that “County officers
assisted in dragging Perry into the facility and placed him inside the facility, behind a door that
could only be opened by a County officer.” Id. The court also considered the fact that while the
jail nurse “examined Perry, two County officers (not City officers) physically restrained him on
the bench.” Id. These and the other surrounding circumstances convinced the court that “no
reasonable jury could conclude that Perry was not in the County’s custody.” Id. In this case, the
BCJ Officers helped carry Thomson from the squad car in the sally port to the jail arrest area where
they placed him on the floor and called upon Warren to examine him. Under these circumstances,
it is certainly arguable that he was no more free to leave the jail than Perry was to leave the
Criminal Justice Facility, or at least a jury could so find.
The BCJ Officers also argue they were entitled to rely on Nurse Warren’s professional
judgment and thus their failure to take other action was objectively reasonable. This argument
finds strong support in Perry. As the court explained in Perry, such a rule has long been recognized
in this circuit. Id. at 458 (collecting cases). Plaintiff nonetheless argues the BCJ Officers’ reliance

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was inappropriate given Thomson’s condition. Plaintiff is correct in recognizing that a nonmedical defendant cannot rely on professional medical advice when they “had reason to know that
the medical staff was failing to treat or inadequately treating an inmate.” McGee v. Parsano, 55
F.4th 563, 569 (7th Cir. 2022) (cleaned up) (quoting Miranda, 900 F.3d at 343). But that exception
does not apply here. The exception only applies when the non-medical defendant has actual
knowledge the medical profession is mistreating or failing to treat an arrestee. King v. Kramer,
680 F.3d 1013, 1018 (7th Cir. 2012). The BCJ Officers did not have comprehensive medical
training and were not capable of assessing whether Nurse Warren’s conduct was appropriate. Id.
Nor can it be said that the BCJ Officers “ignored” Thomson as Plaintiff suggests after they
place him back in the Green Bay Police squad car. Yes, the BCJ Officers returned to the arrest
room after the decision was made not to admit Thomson and he was carried out to the squad car,
but Warren continued to observe Thomson during and after he was placed back in the squad car.
Thus, the BCJ Officers relied on Warren’s continued monitoring, which is what the law
encouraged them to do. Cf. McGee v. Macon Cnty. Sheriff’s Dep’t, 473 F. Supp. 3d 818, 839 (C.D.
Ill. 2020), rev’d and remanded sub nom. McGee v. Parsano, 55 F.4th 563 (7th Cir. 2022) (denying
summary judgment for officers who carried ill inmate out of medical unit away from jail nurse).
Under these circumstances, the actions of the BCJ Officers, as well as those of Green Bay Officers
Harvath, Pineda, and Vaubel upon their arrival at the jail, were objectively reasonable.
That leaves the claim against Nurse Warren. Nurse Warren concluded that Thomson was
not medically fit to be booked into the jail, yet she did not instruct the WRAP to be removed or
call an ambulance. There is evidence from which a jury could conclude she should have done
more. She was told that Thomson had come from the hospital where he was seen after suffering a
seizure at a homeless shelter. He was pale, lethargic, sweating profusely, drooling on himself, and

25

not responsive to questions. Nurse Warren attempted to obtain vital signs, first trying to measure
his blood pressure while his hands were cuffed behind his back. Not surprisingly, she was
apparently unable to obtain a measurement. But instead of having the handcuffs and WRAP
removed so she could examine him further, she told staff that he should be sent back to the hospital.
Lloyd V. Biggs, a registered nurse with over 21 years of experience in the correctional
health setting, has opined that “the intake screening and nursing assessment of Mr. Thomson by
Registered Nurse Rebecca Warren was inadequate, causing a detrimental delay in him receiving
urgently needed emergency care.” Dkt. No. 83-31 at 6. Combined with the other evidence
submitted, this is more than enough to defeat Nurse Warren’s motion for summary judgment. In
Estate of Perry, the jail nurses were in a similar position as Nurse Warren. The nurses in that case
were advised that Perry had previously been at the hospital for seizures but did not know that he
had expressed trouble breathing. 872 F.3d at 450. They did not take Perry’s vitals, provide aid,
ask that Perry’s spit mask be removed, or call for an ambulance. Id. Simultaneously, however,
one of the nurses determined Perry was not fit for admission to the jail because Perry was seeping
blood through his spit mask and had soiled himself. Id. The nurse took no action until another
nurse removed Perry’s spit mask and found him to be pulseless. Id. The Seventh Circuit
determined there was a factual dispute as to whether the nurses’ actions were objectively
reasonable.
It is true that, unlike Perry, Thomson was not bleeding from his head, he had not soiled
himself, and Nurse Warren was not notified of Thomson’s trouble breathing. Warren argues these
considerations diminish the seriousness of Thomson’s medical need such that she was reasonable
in not calling an ambulance, and that checking his vitals and continuing to monitor him was
enough. To be sure, these are factors that a jury may consider. But they are not enough for the

26

court to conclude as a matter of law that Warren’s actions were objectively reasonable. Because,
at this point in time, Thomson appeared lethargic and limp, the burden of having the restraints
removed was not great, nor was calling an ambulance. As such, the severity of Thomson’s medical
need did not have to be great to trigger such responses. Based on the evidence before the court,
including the expert opinion submitted on Plaintiff’s behalf, a jury could conclude that Warren
was objectively unreasonable for failing to take further action in the face of Thomson’s
deteriorated condition. Plaintiff’s claim against her must go to a jury.
4. Causation
Defendants also argue that any alleged constitutional violation did not cause Thomson’s
harm. In essence Defendants argue that Thomson’s cause of death was determined to be cardiac
arrhythmia of an unknown source, not asphyxiation. Therefore, any failure to attend to Thomson’s
inability to breathe could not have been the cause of his death. But this misunderstands the
causation inquiry. The harm at issue is not narrowed to death just because Thomson ended up
dying. “Where an obviously ill detainee dies in custody and the defendants’ failure to provide
medical care is challenged, the causation inquiry is quite broad: ‘the constitutional violation in
question here is the failure to provide adequate medical care in response to a serious medical
condition, not causing her death.’” Ortiz, 656 F.3d at 535 (quoting Gayton, 593 F.3d at 619).
Thus, it is not dispositive that Thomson complained of an inability to breathe but ultimately died
of cardiac arrhythmia. The only thing Plaintiff needs to show is that Defendants’ failure to provide
any medical care exacerbated Thomson’s medical problems. Plaintiff’s expert, Dr. Kenneth Stein,
opined:
Within a reasonable degree of medical probability failure by the police officers and
correctional officers to recognize that Mr. Thomson was having respiratory distress,
failure to promptly remove The WRAP and failure to promptly call for a medical

27

emergency or obtain an immediate medical evaluation for Mr. Thomson at a hospital
was the major cause of his death.
Dkt. No. 92-44 at 2. Thus, Plaintiff has made an adequate showing here, and a reasonable “jury
could conclude that although [Thomson] ultimately died of a heart condition, it was the delay in
providing any treatment that caused the harm.” Estate of Perry, 872 F.3d at 459.
5. Qualified Immunity
The Green Bay and BCJ Officers argue in the alternative that they are entitled to summary
judgment under the doctrine of qualified immunity. Although the court has concluded that these
officers did not violate Thomson’s Fourth Amendment rights, for completeness it will address this
argument as well.
Under the doctrine of qualified immunity, government officials performing discretionary
functions are immune from civil liability for constitutional violations “as long as their actions
could reasonably have been thought consistent with the rights they are alleged to have violated.”
Anderson v. Creighton, 483 U.S. 635, 638 (1987). “Qualified immunity attaches when an official’s
conduct does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Kisela v. Hughes, 584 U.S. 100, 104 (2018) (per curiam) (quoting
White v. Pauly, 580 U.S. 73, 78–79 (2017) (per curiam)). In short, the doctrine “protects all but
the plainly incompetent or those who knowingly violate the law.” Mullenix v. Luna, 577 U.S. 7,
12 (2015) (quoting another source). And qualified immunity is not just a defense to liability—it
is an absolute immunity from suit. Saucier v. Katz, 533 U.S. 194, 200–01 (2001). Thus, “it is
effectively lost if a case is erroneously permitted to go to trial.” Id. at 201 (quoting Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)).
The doctrine reflects an accommodation between the public interest in safeguarding
constitutional guarantees on the one hand, and on the other, the concern that subjecting government
28

officials to personal liability and harassing litigation would inhibit them in the performance of their
duties. Kisela, 584 U.S. at 104. Moreover, as applied to law enforcement officers, the doctrine
takes into consideration a unique feature of their job: officers are frequently required “to make
split-second decisions in life-or-death situations.” Horton v. Pobjecky, 883 F.3d 941, 950 (7th Cir.
2018). Thus, qualified immunity shields those officers who make reasonable, yet ultimately
mistaken, decisions in the real-time, rapidly evolving, and often tense line of duty. Saucier, 533
U.S. at 205.
Although qualified immunity is available to the defendants in a § 1983 suit, the plaintiff
has the burden to overcome the defense. Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 1999).
Qualified immunity requires the plaintiff to show “(1) conduct violating the plaintiff’s
constitutional or statutory rights that is (2) clearly established at the time of the violation such that
a reasonable official would understand that what he is doing violates that right.” Findlay v.
Lendermon, 722 F.3d 895, 899 (7th Cir. 2013) (internal quotation marks omitted). It has been
argued that where the substantive constitutional standard is one of objective reasonableness, the
qualified immunity analysis becomes duplicative. See Saucier, 533 U.S. at 210 (Ginsburg, J.,
concurring in the judgment) (citing other sources) (“[P]aradigmatically, the determination of
police misconduct in excessive force cases and the availability of qualified immunity both hinge
on the same question: Taking into account the particular circumstances confronting the defendant
officer, could a reasonable officer, identically situated, have believed the force employed was
lawful?”). But the majority in Saucier squarely rejected this view, noting that the qualified
immunity inquiry “has a further dimension.” 533 U.S. at 205; see also Findlay, 722 F.3d at 900
(citing Saucier, 533 U.S. at 200–07).

29

This “further dimension” exists because the law does not always provide clear guidance as
to what will be deemed reasonable—sometimes, the law provides only a “hazy border.” Saucier,
533 U.S. at 205. This is especially true where the constitutional touchstone is reasonableness: a
standard designed to “accommodate limitless factual circumstances.” Id. And as mentioned
above, qualified immunity serves to protect where “reasonable mistakes” are made “as to the legal
constraints on particular police conduct.” Id. Thus, the substantive constitutional analysis
considers the reasonableness of the action the officer took. But the qualified immunity analysis
considers whether an officer’s mistaken belief that their action was lawful was a reasonable
mistake to make. That seems to be the essence of the “further dimension.”
The qualified immunity analysis effectuates the “further dimension” through notice—the
constitutional or statutory right at issue must be clearly established at the time of the violation.
Findlay, 722 F.3d at 899; see also Saucier, 533 U.S. at 206 (“Qualified immunity operates . . . to
ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.”). To
show a defendant was on notice, a plaintiff is not required to present a case directly on point, but
“existing precedent must have placed the statutory or constitutional question beyond debate.”
Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011). A plaintiff can also demonstrate that the violative
act was so plainly unreasonable “that, as an objective matter, the police officers would have been
on notice that they were violating the Fourth Amendment.” Findlay, 722 F.3d at 899 (quoting
another source).
The second option is not available to Plaintiff here, so it must point to existing precedent.
In recent years, the Supreme Court has “repeatedly told courts . . . not to define clearly established
law at a high level of generality” and has reversed federal courts in qualified immunity cases where
the lower courts “wrongly subject individual officers to liability.” City of San Francisco v.

30

Sheehan, 575 U.S. 600, 611 & n.3 (2015) (internal quotation marks omitted). The Supreme Court
has instructed: “An officer cannot be said to have violated a clearly established right unless the
right’s contours were sufficiently definite that any reasonable official in his shoes would have
understood that he was violating it, meaning that existing precedent placed the statutory or
constitutional question beyond debate.” Id. (cleaned up). In short, “[q]ualified immunity attaches
unless not even one reasonable officer, placed in the defendants’ shoes, would have thought that
her conduct was lawful.” Royal v. Norris, 776 F. App’x 354, 358 (7th Cir. 2019) (citing Plumhoff
v. Rickard, 572 U.S. 765, 779 (2014)).
Here, though the court has concluded otherwise, even if it were assumed that the first prong
of the qualified immunity analysis is satisfied (i.e., that the defendant officers violated Thomson’s
constitutional rights), the defendants were not on notice that their actions would be deemed
unlawful. Plaintiff asserts it has long been established that arrestees have a right to adequate
medical care under the Fourth Amendment. This is undoubtedly true. Sides v. City of Champaign,
496 F.3d 820, 828 (7th Cir. 2007); Lopez, 464 F.3d at 719. Plaintiff continues by citing to Estate
of Perry for the general proposition that “failure to take any action in light of a serious medical
need would violate that standard.” 872 F.3d at 460. But as the Defendants officers assert, such a
framing of the constitutional right is too general, and Estate of Perry is distinguishable.
As to the level-of-generality problem, Plaintiff does not “clearly establish the right in a
particularized sense, rather than in an abstract or general sense.” Abbott v. Sangamon Cnty., 705
F.3d 706, 731 (7th Cir. 2013) (citing other sources). Nothing about an arrestee’s general right to
adequate medical care would have put the Defendant officers on notice that their actions under
these particular facts were unconstitutional. It was not unreasonable for the Green Bay Officers
to disbelieve Thomson’s claim that he could not breathe when he had just been treated and released

31

by the hospital physician, was acting irrationally, and had actively resisted them to such an extent
that it took three or four officers to restrain him. It was also not unreasonable to attribute his
shortness of breath and sweating to the physical exertion he exhibited in resisting the officers. This
is especially true considering the fact that hospital staff witnessed Thomson’s complaints and
struggle with the officers and did not intervene. The fact that Thomson was responding to Officer
Harvath during the drive from the hospital to the jail and, when asked why he could not breathe,
refused to say unless they removed the restraints, confirmed their belief that Thomson was not in
immediate need of medical treatment. It was not until they arrived at the jail that it became
apparent that Thomson was having a medical emergency. At that point, Nurse Warren was called
upon to assess him. As noted above, it was reasonable for the officers to defer to her in deciding
how to proceed.
Estate of Perry is also distinguishable. In Estate of Perry, the defendant officers took no
action in response to the obvious need for medical care. 872 F.3d at 460 (“And, if by 2010, it was
clearly established that an officer or prison nurse’s actions were judged by the objectively
reasonable standard of the Fourth Amendment, the failure to take any action in light of a serious
medical need would violate that standard.”). Here, by contrast, Officer O’Donnell confirmed there
was nothing obstructing Thomson’s breathing and monitored Thomson’s breathing by placing his
hand on Thomson’s back and felt the rising and falling with every one of Thomson’s breaths. Dkt.
No. 94 ¶ 68. Other officers also visually confirmed that nothing was obstructing Thomson’s
breathing, and he was able to respond. Officer Harvath asked Thomson why he could not breathe,
and Thomson refused to say unless the restraints were removed. Thus, “[b]ecause the officers did
not ‘fail to take any action,’ Estate of Perry would not have put them on notice that their response
to Royal was clearly unconstitutional.” Royal v. Norris, 776 F. App’x 354, 358 (7th Cir. 2019).

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In sum, Plaintiff has failed to meet its burden of showing the Defendant officers were on
notice of violating a clearly established right. “Qualified immunity attaches unless not even one
reasonable officer, placed in the defendants’ shoes, would have thought that her conduct was
lawful.” Id. For the reasons set forth above, the court concludes that reasonable officers, placed
in the shoes of the Defendant officers, would have thought their conduct was lawful. It thus
follows that even if the Defendant officers’ conduct did violate Thomson’s Fourth Amendment
rights, they are nevertheless entitled to qualified immunity, and consequently, to summary
judgment on this ground as well.
C. Monell Claim for Failure to Train
Plaintiff alleges the City of Green Bay and Brown County failed to properly train their
respective officers on use of the WRAP system. A Monell claim against Green Bay and Brown
County for failure to train cannot survive because “a municipality cannot be liable under Monell
when there is no underlying constitutional violation by a municipal employee.” Sallenger v. City
of Springfield, 630 F.3d 499, 504 (7th Cir. 2010) (citing other sources). Because the court finds
that the Green Bay Officers and the BCJ Officers are entitled to summary judgment, so too are the
City of Green Bay and Brown County. Plaintiff’s Monell claim against both the City and the
County are therefore dismissed.
CONCLUSION
For the reasons set forth above, the motion for summary judgment filed on behalf of Brown
County, Bryce Haines, Kayla Kuchta, Clint Pelischek, Adam Schartner, and Matthew West (Dkt.
No. 48) is granted and Plaintiff’s claims against them are dismissed. The motion for summary
judgment filed on behalf of the City of Green Bay, Thomas Behn, Scott Delsart, Ben Harvath,
Michael O’Donnell, Karen Pineda, Christopher Vaubel, and Alex Wanish (Dkt. No. 65) is also

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granted and Plaintiff’s claims against them are likewise dismissed. Rebecca Warren’s motion for
summary judgment (Dkt. No. 59), however, is denied. All motions addressing the previously
scheduled trial (Dkt. Nos. 117, 120, 122, 123, 124) are denied as moot. The Clerk is directed to
set this matter on the court’s calendar for a telephone conference to discuss further proceedings on
the remaining claim against Nurse Warren.
SO ORDERED at Green Bay, Wisconsin this 26th day of November, 2024.
s/ William C. Griesbach
William C. Griesbach
United States District Judge

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