Hanson v. Brey et al

Filing 137

ORDER signed by Judge Lynn Adelman on 10/27/16 that plaintiffs motion for summary judgment 116 is DENIED. Further ordering that defendants motion for summary judgment 106 is GRANTED as to defendant Sean Van Ermen and DENIED as to defendant Robert Amundson. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________
DANIEL L. HANSON,
Plaintiff,
v.

Case No. 14-CV-1024

SEAN VAN ERMEN, and
ROBERT AMUNDSON,
Defendants.
______________________________________________________________________
ORDER
_____________________________________________________________________
Plaintiff Daniel Hanson, a Wisconsin state prisoner who is representing himself,
filed this lawsuit pursuant to 42 U.S.C. § 1983 and was granted leave to proceed on his
claims that defendants Robert Amundson and Sean Van Ermen violated his civil rights.
Specifically, plaintiff alleges that Amundson used excessive force while performing an
impermissible Terry pat-down and that Van Ermen directed nurses to inject plaintiff with
an antipsychotic drug following his arrest on November 3, 2008. Before me now are the
parties’ cross-motions for summary judgment.
I. BACKGROUND
The relevant facts are taken from the “Proposed Findings of Fact in Support of
Defendants’ Motion for Summary Judgment” (ECF No. 108), plaintiff’s sworn motion for
summary judgment (ECF No. 117), and plaintiff’s sworn response to defendants’ motion
for summary judgment (ECF No. 134). Facts that plaintiff failed to dispute are deemed
admitted solely for the purpose of deciding summary judgment. Civil L. R. 56(b)(4).

Plaintiff is currently incarcerated at the Prairie Du Chien Correctional Institution,
although at the relevant time, he was not incarcerated. Van Ermen and Amundson were
sheriff’s deputies with the Marinette County Sheriff’s Department (MCSD).
On November 3, 2008, at about 7:00 a.m., plaintiff’s truck, which he states was
being driven by his son, veered into a ditch. Plaintiff exited the truck and asked a
bystander “not to call the police because he didn’t want to go back to prison.” ECF No.
108, ¶ 4. Despite this request, the bystander called the police. Plaintiff fled through the
woods and ended up in the yard of a residence about 1.5 miles away.
When police found plaintiff, he was lying on the ground smoking. Plaintiff states
that he was “pretty out of it” and going in and out of consciousness. Id. ¶ 7. When
Amundson arrived, plaintiff was lying in the grass in a fetal position and was not
responding to attempts to communicate with him. Amundson states that he immediately
smelled alcohol on plaintiff’s breath.
Amundson states that he conducted a pat down of plaintiff for bulges in his
clothing in order to locate weapons that could pose a danger to plaintiff or others.
Plaintiff states that Amundson interrupted medical personnel who were assessing
plaintiff to conduct a “rough body search.” ECF No. 117, at 30. Plaintiff asserts that
Amundson went “inside his pants up and down the legs, inside the underwear and shirt
roughly touching, pulling and stretching the bare skin to the extent of causing
excruciating pain.” Id. Amundson disputes this characterization; he asserts that he did
not use any force during the pat-down and that his hands remained outside of plaintiff’s
clothing.

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Plaintiff was arrested (although no handcuffs were applied) for operating a
vehicle while intoxicated. Officers decided to arrest plaintiff because he smelled of
alcohol, was non-responsive, and fled from the scene of a vehicle in a ditch. Plaintiff
was then transferred to a local medical center via ambulance.
Van Ermen states that he followed the ambulance to the medical center, and
when he arrived, plaintiff was unconscious, snoring, and did not respond to people
shouting his name. Van Ermen read plaintiff the “informing the accused” form, which
was required under Wisconsin’s Implied Consent Law for blood draws related to
operating a vehicle while intoxicated, and ordered a blood draw.
When a lab technician arrived to draw blood from plaintiff, plaintiff woke up and
became agitated. Van Ermen called for assistance from nursing staff. When a nurse
arrived, plaintiff, who was still strapped onto a long board, ripped off his neck brace,
swung his arms at the hanging IV bags, and broke a nurse’s wrist. Van Ermen was
eventually able to handcuff both of plaintiff’s arms to the bedrails.
Dr. Dennis Smith ordered a nurse to inject plaintiff with Haldol, an antipsychotic
medication. According to plaintiff, he was given two shots of Haldol. Eventually, plaintiff
fell asleep, and the blood draw was completed.
II. ANALYSIS
A party is entitled to summary judgment if it shows that there is no genuine
dispute as to any material fact and it is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). To survive a motion for summary judgment, a non-moving party must
show that sufficient evidence exists to allow a jury to return a verdict in its favor.
Brummett v. Sinclair Broad. Grp., Inc., 414 F.3d 686, 692 (7th Cir. 2005). For the

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purposes of deciding these motions, I resolve all factual disputes and make all
reasonable factual inferences in favor of the non-moving party. Springer v. Durflinger,
518 F.3d 479, 483-84 (7th Cir. 2008).
A. Defendant Amundson
In Terry v. Ohio, the Supreme Court held that a police officer “may temporarily
stop a person to investigate whether the person has or is about to commit a crime.”
United States v. Rivers, 121 F.3d 1043, 1045 (7th Cir. 1997) (citing Terry v. Ohio, 392
U.S. 1 (1968)). The police officer must be able to articulate facts and rational inferences
drawn from those facts to reasonably warrant the intrusion. Id. (citing Terry, 392 U.S. at
21). In addition, if during the stop, the police officer believes, based on the totality of the
circumstances, that he may be dealing with an armed and dangerous individual, he
“may conduct a non-invasive pat-down search of a detainee to ensure for his own safety
and that of others nearby that the detainee does not possess a weapon.” Id. (citing
Terry, 392 at 27); United States v. Brown, 188 F.3d 860, 865 (7th Cir. 1999).
Here, Amundson explains that he received a call that a car was in a ditch and
that an adult male had fled the scene. Before he arrived at the scene of the accident, he
was directed to a residential yard where a man was reported to be lying on the lawn. An
officer who was already at the yard informed Amundson that the man’s name was
Daniel Hanson. Amundson states that he smelled alcohol on plaintiff’s breath
immediately upon approaching him and that plaintiff was not responding to attempts to
communicate with him. I have no trouble finding that these circumstances are sufficient
to justify a brief Terry stop.

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That said, I cannot conclude as a matter of law, based on the record before me,
that Amundson was entitled to conduct a pat-down search of plaintiff. Amundson does
not state that he believed he was dealing with an armed and dangerous individual,
which is required before an officer may progress from a Terry stop to a Terry search.
Instead, he states only that
a pat down for weapons is MCSD standard procedure when a Deputy is
confronted with someone in the condition the Plaintiff’s [sic] was in on
November 3, 2008; namely the Plaintiff was not responsive to attempts to
communicate with him, appeared to have fled the scene of a one-vehicle
accident, and I detected intoxicants on Plaintiff’s breath.
ECF No. 110, ¶ 11. Standard procedure or not, “under the law, officers are not free to
pat down citizens at will.” Gentry v. Sevier, 597 F.3d 838, 847 (7th Cir. 2010). I find that
a genuine dispute exists as to whether a Terry pat-down was reasonable under the
circumstances.
Further, even if there were no question about the permissibility of the pat-down
search, there is a genuine dispute about how the pat-down search was conducted. The
Fourth Amendment is violated if the manner in which a search is conducted exceeds the
proper parameters. Terry, 392 U.S. at 28–29. A Terry search “must be limited to that
which is necessary for the discovery of weapons which might be used to harm the
officer or others nearby.” Id. at 26. If a protective search exceeds the scope necessary
to determine if a person is armed, it is unconstitutional. Minnesota v. Dickerson, 508
U.S. 366, 373 (1993).
If a jury believes plaintiff’s description of the search, it could reasonably conclude
that the manner in which Amundson conducted the Terry search violated the Fourth
Amendment because the search exceeded the scope necessary to determine if plaintiff
was armed. Also, a jury could reasonably conclude that the search was unconstitutional
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because Amundson used an unreasonable amount of force under the circumstances.
See Lester v. City of Chicago, 830 F.2d 706, 709 (7th Cir. 1987) (citations omitted). As
such, I find that questions of material fact exist about the scope of the search, whether
force was used during the search, and, if force was used, whether the force used was
reasonable under the circumstances.
Amundson argues that, even assuming plaintiff’s version is true, he is entitled to
qualified immunity because he did not “violate a clearly-established constitutional right.”
ECF No. 128, at 1. However, it was well established at the time of the events that a
protective search for weapons is an extremely limited search that may involve the
patting of a suspect’s clothing to determine if weapons are present, only after an officer
has “at a minimum some articulable suspicion that the subject is concealing a weapon
or poses a danger to the [officer] or others.” United States v. Pedroza, 269 F.3d 821,
827 (7th Cir. 2001) (citing Terry, 392 U.S. at 27).
On the record before me, neither party is entitled to summary judgment on this
claim.
B. Defendant Van Ermen
Plaintiff initially alleged that Van Ermen ordered nurses to inject plaintiff with
Haldol to facilitate a blood draw. 1 However, as this case progressed, plaintiff abandoned
that allegation and admitted that Dr. Dennis Smith (who is no longer a defendant)
ordered the injections. See ECF No. 109-4 (“This is an admission that the chemical

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Plaintiff argues at length in his motion for summary judgment and in his response to
defendants’ motion for summary judgment that Van Ermen violated the Constitution
when he ordered a blood draw despite plaintiff’s refusal to consent to a blood draw.
Plaintiff was not permitted to proceed on this claim (ECF No. 24, at 6), so I will not
address that argument.
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restraint was ordered by Dr. Dennis Smith, MD. . . . This is only to show that this Dr.
Smith did order the chemical restraint on Daniel L. Hanson.”). Admitting that someone
other than Van Ermen ordered the Haldol injections is fatal to plaintiff’s claim against
Van Ermen.
Section 1983 limits liability to public employees who are personally responsible
for a constitutional violation. See Burks v. Raemisch, 555 F.3d 592, 595–96 (7th Cir.
2009). For liability to attach, the individual defendant must have caused or participated
in a constitutional violation. See Hildebrandt v. Ill. Dep’t of Nat. Res., 347 F.3d 1014,
1039 (7th Cir. 2003). Here, because the parties agree that Van Ermen did not order the
Haldol injections, he cannot be liable. Defendant Ermen is entitled to summary
judgment on this claim.
III. CONCLUSION
THEREFORE, IT IS ORDERED that plaintiff’s motion for summary judgment
(ECF No. 116) is DENIED.
IT IS FURTHER ORDERED that defendants’ motion for summary judgment (ECF
No. 106) is GRANTED as to defendant Sean Van Ermen and DENIED as to defendant
Robert Amundson.
Dated at Milwaukee, Wisconsin, this 27th day of October, 2016.

s/ Lynn Adelman
______________________
LYNN ADELMAN
District Judge

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