Rivera v. Lindmeier, et al.

Filing 54

ORDER signed by Chief Judge William C Griesbach on 12/19/2013 granting Defendants' 34 Motion for Summary Judgment, denying Plaintiff's pending motions 42 , 43 , 45 , 47 , 48 , and 52 , and dismissing this case. (cc: all counsel via CM/ECF, Natanael Rivera via U.S. Mail) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
NATANAEL RIVERA,
Plaintiff,
v.

Case No. 13-C-124

ROBIN LINDMEIER,
Defendant.

DECISION AND ORDER

Plaintiff, an inmate at Green Bay Correctional Institution at all times relevant to this lawsuit,
brought this action alleging that Defendant Robin Lindmeier violated the Eighth Amendment when
she placed Plaintiff in restraints and shackles for twelve hours on May 23, 2011. The Defendant
has moved for summary judgment on the grounds that Plaintiff failed to exhaust his administrative
remedies. She also argues that even if Rivera did exhaust his remedies, he cannot make out an
Eighth Amendment violation. For the reasons given below, the motion will be granted and the case
will be dismissed.
I. Background
Most of the operative facts are uncontested, as Rivera did not file a response to the
Defendant’s proposed findings of fact or file any admissible evidence to the contrary. (He filed an
affidavit and some other evidentiary materials, but these do not pertain to the facts surrounding his
placement in restraints.) On the evening of May 23, 2011, Rivera began banging on the door of his
cell, apparently upset that he did not have certain items of his property that he wanted. He

continued banging despite being told to stop. Several hours later Rivera was still pounding on his
cell and refused to comply with an order to stop.
When Lt. Lindmeier arrived at Rivera’s cell, she noted that the sound of the banging was
echoing throughout the entire wing, which was disruptive to other inmates and encouraged them
to act out as well. Lindmeier told Rivera that he would be placed in Control Status due to his
continued failure to adhere to guards’ orders to stop banging. Soon after, Rivera began banging
again and yelled at the guards to “suit up motherf—kers,” a reference to the fact that guards would
require protective gear to perform a cell extraction on him. He continued yelling and cursing at the
guards.
The warden gave permission for the guards to use incapacitating agents. Lindmeier first
cleared this with a prison nurse, who indicated that Rivera had no medical issues that would prevent
the use of gas. When Lindmeier returned to Rivera’s cell, he had pressed his mattress up against
the cell door to prevent the gas from being shot into his cell. Lindmeier repeatedly asked Rivera
to comply and to place his hands outside to be handcuffed, but he failed to respond. Two more
orders to comply were ignored. At this point Lindmeier ordered the use of tear gas. Despite
Rivera’s efforts to block his cell door, guards were able to shoot a jet of gas into the food trap.
The guards soon noticed that Rivera had a foreign object inside his mouth, which Rivera
says was part of a milk carton and which Lindmeier describes as a piece of soap. Lindmeier (not
knowing what it was at the time) believed the object could be used to harm Rivera or staff during
an extraction. Rivera refused to spit the object out, and ultimately Lindmeier ordered another shot
of tear gas after Rivera continued to hold the object in his mouth. This finally resulted in Rivera
spitting the object out and placing his hands in the trap door to receive handcuffs. A guard then
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placed leg restraints on Rivera, after which Rivera refused to get up off the floor. Officers then had
to lift Rivera off the floor and transport him using a restraint chair.
At some point Rivera’s clothes were removed. Lindmeier states that this was necessary
because he would be given a shower immediately to wash the tear gas off, and also because his
clothes had been exposed to the gas. While in the restraint chair, Rivera was given a shower and
was then moved to a different cell. At some point, as shown in the DVD video of the incident, a
towel was placed over his mid-section. (ECF Nos. 36, 41.) Rivera continued to resist being moved,
however, telling the guards that “you’re gonna have to gas me again.” (DPFOF ¶ 57.)
Eventually the guards lifted Rivera onto what’s called a restraint bed, a concrete structure
with a thin mattress and sidebars that restraints can be attached to. RIPP restraints (RIPP is a brand
name) are straps or belts that preclude movement when fastened, and Rivera was strapped around
his chest, thighs, wrists and ankles. He also continued to have shackles on his ankles, which
according to Lindmeier was a safety procedure adopted after inmates had managed to slip out of
RIPP restraints in the past. Once Rivera was restrained, a nurse checked to see that the straps were
not too tight, and a psychologist assessed Rivera. Soon after Rivera was secured in restraints,
Lindmeier left and went home. (Her shift ended at 10:00 p.m.) Rivera was restrained a total of 11
hours and 5 minutes.
II. Analysis
Summary judgment is appropriate where there are no genuine issues of material fact and the
moving party shows it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Facts and
reasonable inferences are construed against the moving party. Good v. Univ. of Chicago Med. Ctr.,
673 F.3d 670, 673 (7th Cir. 2012).
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A. Exhaustion of Remedies
The exhaustion requirement is mandated by statute. 42 U.S.C. § 1997e(a). Inmates in
Wisconsin must use the Inmate Complaint Review System set forth in Chapter 310 of the Wisconsin
Administrative Code before they may file a federal civil rights claim. Wis. Admin. Code DOC
§ 310. This entails the filing of an offender complaint within fourteen days of the incident. It is
undisputed that Rivera did not file such a complaint.
Plaintiff argues no such complaint was necessary—or even allowed—because a different
section of the administrative code states that inmates cannot use the ICRS to raise issues relating
to a conduct report. Wis. Admin. Code DOC § 310.08(2)(a) (“An inmate may not use the ICRS to
raise the following issues: Any issue related to a conduct report, unless the inmate has exhausted
the disciplinary process in accordance with ch. DOC 303.”). Rivera was issued a conduct report for
his behavior on May 23, 2011—the very behavior that precipitated the Defendant’s use of shackles
and restraints. Thus, Rivera believes the administrative code prevented him from filing a grievance
because it “related to” behavior that gave rise to a conduct report.
That is not what § 310.08(2)(a) means. Rivera is not grieving his conduct report in this
action. He does not claim, for example, that he was innocent of the charges, or that the guards
trumped up evidence. Nor does he dispute that he told the guards to “suit up” and refused all of
their demands that he comply with their instructions. Instead, he is grieving the response of the staff
to his behavior that happened also to have given rise to a conduct report. His complaint alleges that
he was in pain for hours as a result of what Defendant Lindmeier ordered. That is the substance of
his federal complaint. That is not something that would have been germane to the question of his
guilt or innocence of the underlying behavior, nor does it relate to the conduct report.
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On the whole, what the regulations mean is that inmates should not use the ICRS grievance
process to contest the merits of their disciplinary actions. That is what the disciplinary review
hearings are for. In fact, Rivera has filed records indicating that some of his other complaints have
been rejected for this very reason. On one instance he filed a complaint complaining that he had
been given a conduct report on August 27, 2009. That complaint was rejected under § 310.08(2)(a)
because that section prohibits complaints about conduct reports that have not been adjudicated
through the disciplinary process. (ECF No. 46-5 at 8.) By contrast, here the grievance would not
have been about the conduct report itself but about the correctional officers’ response to his
behavior. The conduct report had not even been written yet when his 11 hours in restraints ended.
(Id. at 14-16.)
In short, nothing in the code says that an inmate cannot file an ICRS complaint about what
correctional officers do in response to an inmate’s conduct. Presumably it is quite common that
conduct reports will be issued in conjunction with the imposition of punishments, and such
punishments are often subject to Eighth Amendment claims brought under Section 1983. The mere
fact that a conduct report was issued in a given case does not mean the inmate cannot file a
grievance alleging that the punishment he received was cruel and unusual. It merely means that if
he wants to challenge the validity of the conduct report, he must do so through the disciplinary
process rather than ICRS.
In another recent case Judge Adelman quoted a complaint examiner’s rejection of an
inmate’s complaint under § 310.08(2)(a):
The complainant states a conduct report has been written, and is complaining of
matters involved with the alleged incident. The complainant is challenging the
factual basis of the conduct report or describing mitigating factors to explain the
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complainant's actions and behavior. Those matters are considered during summary
disposition or by a hearing officer/committee acting as an independent fact-finding
body, and its judgment must be accepted. Once a conduct report is issued, the
disciplinary process is initiated, and complaints of this nature are outside the scope
of the inmate complaint review system as noted under DOC 310.08(2)(a), Wis.
Admin. Code.
Walker v. Hamblin, 2013 WL 1080440, *7 (E.D. Wis. March 14, 2013).
That paragraph ably explains that it is only matters about the inmate’s behavior that are
exclusively the purview of the disciplinary process—not issues relating to the constitutionality of
the punishment subsequently imposed. This is made especially clear when read in conjunction with
Wis. Admin. Code § DOC 310.08(3), which says that, after the conduct report has been resolved
through the disciplinary process, prisoners may file a grievance “to challenge only the procedure
used in the ... disciplinary process.” Thus, inmates challenging conduct reports can only file
grievances relating to the procedure of the disciplinary process—not the constitutionality of the
punishment imposed. Plaintiff’s reading of the regulations would mean that he would have access
to no grievance procedure for his punishment merely because a conduct report had been issued.
That is not what the regulations mandate. Instead, although matters relating to his own behavior
and the validity of the conduct report were not subject to the ICRS, the complaint he now makes
could have been raised through an ICRS grievance. Plaintiff never attempted to do so, and as such
his claim is not properly exhausted.
At the same time, it is also true that the regulation is broadly worded: the inmate may not
raise “any issue related to a conduct report.” Wis. Admin. Code DOC § 310.08(2)(a). The conduct
report at issue here mentions the fact that Rivera was placed in restraints. Accordingly, it is
conceivable that his present complaint is an issue “related to” that report. See, e.g., Vasquez v.

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Hilbert, 2008 WL 2224394 (W.D. Wis. 2008) (“In this case . . . the officer who issued the conduct
report made it related by including the information in the conduct report.”); Shaw v. Jahnke, 607
F. Supp.2d 1005, 1009 (W.D. Wis. 2009) (noting that “ambiguity in the regulations is a problem
because prisoners may not have sufficient guidance on the appropriate course of action”). I
therefore address the merits of his claim as well.
B. There is no Eighth Amendment Violation
Even if Rivera had properly exhausted his administrative remedies, he has not shown any
Eighth Amendment violation. The substance of his claim is that he was placed in shackles and
RIPP restraints for roughly 11 hours. He alleges that was very painful.
An Eighth Amendment claim has two components—objective and subjective. To satisfy
the objective component, “the deprivation alleged must be, objectively, ‘sufficiently serious.’”
Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir.1999) (citing Farmer v. Brennan, 511 U.S. 825,
834 (1994)). This means that “extreme deprivations are required to make out a
conditions-of-confinement claim.’” Id. (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)).
The subjective component requires a plaintiff to show that the Defendant acted with a
purposeful state of mind or, more commonly, a mental state called deliberate indifference. This
means a plaintiff must show either that the defendant intended to cause harm to the plaintiff or that
he had sufficient knowledge to know that harm could easily arise out of the conditions of
confinement. Delaney v. DeTella, 256 F.3d 679, 683 (7th Cir. 2001).
Here, Rivera fails on both components. First, eleven hours in restraints does not constitute
a situation so onerous that the Eighth Amendment is implicated. Given Rivera’s actions that gave
rise to the restraints, it was clear that some kind of restraint was required to secure his compliance
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with reasonable demands and to get him to calm down. Courts are not in the business of
micromanaging prison staff on such matters, particularly when they take care to involve a nurse and
a psychologist in the process. Cunningham v. Eyman, 17 Fed. Appx. 449, 454 (7th Cir. 2001)
(“Cunningham spent 16 hours in shackles and four to five hours in soiled clothing. Though certainly
unpleasant, these hardships were temporary and as this court's case law makes clear, they were not
of sufficient severity to implicate the Eighth Amendment.”)
Rivera’s allegation that he was in excruciating pain is belied by the approximately one-hour
video of the half-dozen correctional officers extracting him from his cell (after repeated warnings
that if he did not cease his disruptive behavior, they would inject chemical incapacitating agents into
his cell), cleaning him off in the shower, and placing him in control status. (Decl. of Robin
Lindmeirer, ECF 36, Ex. 1000 at ECF 41.) Although the video does not continue throughout the
night, it is clear from the manner in which the velcro-like RIPP restraints were fastened around his
arms and legs, the precautions taken to insure he was not in pain, and Rivera’s own actions that he
was not restrained in such a way as to cause excruciating pain. Despite Rivera’s explicit threats to
sue them, it is apparent from the video that the correctional officers were taking steps intended to
avoid a lawsuit. Nurse Treml was present to monitor Rivera’s vital signs and to check the restraint
placement to ensure the restraints did not affect his circulation. Psychological Services Unit (PSU)
Dr. Martha Breen also reported to the cell to assess Rivera. He was checked every 15 minutes while
in restraints, and reported to be either awake, yelling, screaming, singing or quiet. (Id. at ¶ 40-43.)
As for the subjective component of the analysis, Rivera cannot show that Lindmeier had
anything to do with keeping him in restraints for eleven hours. She left at the end of her shift
shortly after Rivera was placed in restraint and had no further involvement with him. Whatever
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occurred after she left is outside her responsibility, and Rivera has made no effort to identify any
other defendants.
In sum, an overnight confinement in shackles and restraints appears to be a reasonable
response to the disruptive behavior Rivera engaged in, particularly given that he was taunting the
guards and essentially demanding that he be extracted and placed in restraints. Having brought
about these conditions himself, he cannot seriously expect the courts to come to his rescue when
prison staff ties him to a restraint bed for a single evening. The Eighth Amendment is reserved only
for those conditions of confinement that offend modern standards of decency, and Rivera’s time in
restraints, given his behavior, does not rise to that level.
C. Other Motions
Plaintiff Rivera has a history of filing lots of motions, and this case is no different.
Following the Defendant’s motion for summary judgment, he has filed no fewer than six motions.
Some of these seek information, such as a “motion for docket texts,” whose purpose is unclear. In
others, he alleges he lacks sufficient legal materials and that he is being “harassed,” but his own
spate of filings demonstrates that he has ample ability to address the summary judgment motion and
inform the court as to the nature of his allegations. He also seeks sanctions on the Defendant for
what he views as a frivolous exhaustion defense. This was addressed above: the exhaustion defense
is far from frivolous.
Plaintiff has also filed two motions for appointment of counsel. In another recent case, I
appointed counsel for Rivera, but Rivera was unable to get along with the two attorneys who
represented him. He has demonstrated there, and here, that he is intelligent enough to litigate his
cases without the assistance of counsel, especially in light of the fact that a video was taken of
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almost the entire episode giving rise to his claim. A hearing in his other case revealed that he is
articulate and in firm command of the facts pertinent to his case. That is all that is required,
particularly in a run-of-the-mill Eighth Amendment case like this one. Pruitt v. Mote, 503 F.3d 647
(7th Cir. 2007) (en banc).
III. Conclusion
I conclude that Rivera has not exhausted his administrative remedies. Even if no such
remedy was available to him, I conclude that he has failed to show any facts that would give rise
to an Eighth Amendment violation. For these reasons, the Defendant’s motion for summary
judgment is GRANTED and the case is dismissed. Plaintiff’s other motions are DENIED.
SO ORDERED this

19th

day of December, 2013.

s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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