Miller v. Nickaebich et al

Filing 139

ORDER denying 68 the plaintiff's Motion for Summary Judgment and denying 96 the defendants' Motion for Summary Judgment signed by Magistrate Judge Nancy Joseph on 11/13/2015. The Clerk of Court's office is directed to contact the parties to schedule a conference call with the parties to discuss next steps. (cc: all counsel) (teb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICKEY MILLER,
Plaintiff,
v.

Case No. 14-CV-1603

MICHAEL NINKOVIC, et al.,
Defendants.
DECISION AND ORDER DENYING PARTIES’
CROSS-MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Mickey Miller is currently incarcerated at the Racine County Jail. On
March 27, 2015, the Honorable J.P. Stadtmueller entered an order allowing Miller to
proceed on retaliation, excessive force, and deliberate indifference claims that allegedly
arose while he was incarcerated at the Milwaukee County Jail (the “Jail”). (Docket # 12.)
The case was reassigned to me on consent of the parties on May 26, 2015.
On September 10, 2015, Miller filed a motion for summary judgment (Docket # 68),
and on October 8, 2015, defendants Melinda Andrzejewski and Keltoum Mezraoui filed a
cross-motion for summary judgment on the deliberate indifference claims. 1 Both motions
are now fully briefed. For the reasons stated below, I deny the parties’ cross-motions for
summary judgment.

The remaining defendants (Michael Ninkovic, Devonta Townes, Jeffrey Andrykowski, Crystalina Montano,
Brian Capak, Jacob Gennrich, Derek Spidell, Pedro Ruiz, and Amir Mizdrak) responded to Miller’s summary
judgment motion but did not file a cross-motion for summary judgment.

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SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d
665, 668 (7th Cir. 2011). “Material facts” are those under the applicable substantive law that
“might affect the outcome of the suit.” Anderson, 477 U.S. at 248. A dispute over “material
fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id.
A party asserting that a fact cannot be disputed or is genuinely disputed must support
the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters
stated.” Fed. R. Civ. P. 56(c)(4).

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FACTS 2
1. Parties
Miller was transferred to the Jail from Dodge Correctional Institution on December
5, 2013. (Docket # 106 ¶ 1.) All of the defendants worked at the Jail during the relevant
time period: Michael Ninkovic, Devonta Townes, Jeffrey Andrykowski, Crystalina
Montano, Brian Capak, Jacob Gennrich, 3 Derek Spidell, Pedro Ruiz, and Amir Mizdrak
were correctional officers; Melinda Andrzejewski was a psychiatric social worker; and
Keltoum Mezraoui was a licensed practical nurse. (Docket # 1 ¶¶ 1-14; Docket # 98 ¶¶ 1-2)
2. Miller’s Version of the Events
On December 5, 2013, Miller was sent to the Jail for a court appointment. (Docket
#1 ¶16.) While waiting in the booking room to be processed, Miller states that he asked
Ninkovic if he could have a bag lunch, to which Ninkovic allegedly responded, “Your bitch
ass will eat when everyone else do. Now shut your bitch ass up and sit down.” (Docket # 1
¶18.) Miller replied, “I didn’t disrespect you, just asked you for something to eat. You don’t
have to be a bitch about it.” (Docket # 1 ¶ 18.) Ninkovic then said, “Wail til I get your little
bitch ass upstairs, I’m gonna beat you up. Watch!” (Docket # 1 ¶ 20.)
After Miller was processed, Ninkovic, Townes, Gennrich, Capak, and Spidell
escorted Miller to segregation via the elevator. (Docket # 106 ¶5.) While in the elevator,
Miller claims Townes ordered him to face the back of the elevator, at which time Ninkovic
slammed Miller’s head into the wall. (Docket # 1 ¶¶ 23-24.) Miller screamed, “Aaah, that
I take the facts from “Defendants’ Response to Plaintiff’s Statement of Facts,” (Docket #106), “Plaintiff’s
Reply to Defendants’ Keltoum and Melinda Proposed Findings of Facts” (Docket #134), and Miller’s sworn
complaint, which the Seventh Circuit has instructed district courts to construe as an affidavit at the summary
judgment stage. Ford v. Wilson, 90 F.3d 245, 246-47 (7th Cir. 1996). The facts in this section are undisputed
unless otherwise indicated.
3
On September 10, 2015, I granted Miller’s motion requesting that then-defendant Jason Mielke be replaced
by Jacob Gennrich. (Docket #67.)
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hurted! You busted by nose. Why did you do that? You won’t get away with this, you’re on
camera!” (Docket # 1 ¶ 24.) Ninkovic said, “So, dumb fuck! This is the elevator where the
camera doesn’t work.” (Docket # 1 ¶ 24.)
Miller claims they then then took him to the recreation cages, also known as the
Dogwalk. (Docket # 106 ¶ 6.) He states that his handcuffs and “rip belt” were removed, at
which time Ninkovic allegedly said, “Yeah boys! We about to beat Miller and show this
little bitch who’s boss around here.” (Docket # 1 ¶ 26.) Miller claims that Ninkovic,
Townes, Gennrich, Capak, and Spidell tried to provoke him by calling him names, but
when that did not work, they surrounded him and began to beat him. (Docket # 1 ¶¶ 27-28.)
Ninkovic allegedly slapped Miller in the face “with brute force causing Miller[’s] head to
snap back.” (Docket # 1 ¶ 28.) According to Miller, Ninkovic kneed him in the face while
Townes, Gennrich, Capak, and Spidell repeatedly kicked him and snatched his hair out.
(Id.) Miller states that Ninkovic said, “Yeah bitch! You like to write complaints on me and
my co-workers here at the jail, huh? Huh? You’re not so tough now bitch.” (Docket # 1 ¶
30.)
Miller claims that Ninkovic, Townes, Gennrich, Capak, and Spidell repeatedly
kicked his legs, back, and head; kneed him in the face; and snatched out his hair for
approximately five to ten minutes. (Docket # 1 ¶ 31.) They left him locked in the recreation
cage, laying in a fetal position, with “scrapes, abrasions, knots, bruises, and blood coming
from his nose, mouth, and forehead.” (Id.)
Miller states that Mizdrak and Ruiz escorted him to his cell. He claims he told them
that he had just been beaten and was in need of immediate medical attention. (Docket # 1 ¶
32.) According to Miller, Mizdrak and Ruiz responded, “Yeah, we know you just got beat
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by our co-workers! We see your injuries on your face, but so the fuck what! You got what
you deserved and we’re not giving you any medical attention.” (Id.)
Miller explains that about three hours later, Andrzejewski, a psychiatric social
worker assigned to the Jail, performed a mental health assessment on Miller. (Docket # 106
¶ 8.) Miller indicates he told her that he was not doing well because he had just been beaten
for no reason and his request for medical attention had been denied. (Docket # 1 ¶ 33.)
Miller states that Andrzejewski responded, “So! What do you want me to do?” and “Aaah!
Stop talking to me about this, I don’t care! I’m done talking to you Mr. Miller.” (Docket # 1
¶¶ 34-35.)
Miller claims that at the 9:00 p.m. medication pass, Miller gave a medical slip to
Mezraoui complaining about the beating and the resulting injuries. (Docket # 1 ¶ 36.)
Mezraoui allegedly said, “You’re always complaining. You just got here today, you don’t
need medical.” (Id.)
Miller also states that the following day as he was being escorted to court, he
reported to Andrykowski and Montano that he had been beaten and he showed them his
injuries. (Docket # 1 ¶37.) Miller says that they responded with, “Oh well! There’s nothing
we can do about it. You probably deserved it.” (Id.) According to Miller, they too denied
his request for medical attention. (Id.)
3. The Defendants’ Version of the Events
Defendants Ninkovic, Townes, Andrykowski, Montano, Capak, Gennrich, Spidell,
Ruiz, and Mizdrak state that they did not make any of the statements or engage in any of
the actions that Miller attributes to them. (Docket # 133 ¶ 1.) In addition, Mizdrak, Ruiz,
Andrykowski, and Montano state that they did not observe any injuries on Miller, Miller
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did not make statements about being injured, and Miller did not request medical care.
(Docket # 133 ¶¶ 2-3.)
Andrzejewski states that on December 5, 2013, she was asked to follow up with
Miller, who had just arrived at the Jail and whose booking screening identified as having
chronic mental health issues. (Docket # 134 ¶ 11.) She was in Miller’s cell from 4:27 p.m.
until 4:38 p.m., after which she noted that Miller had told her that he had a mental health
diagnosis for which he was taking medication, although he denied being hospitalized for
psychiatric reasons or for suicide attempts. (Docket # 134 ¶ 15.) Andrzejewski’s notes from
her evaluation state that Miller claimed officers “beat him up again.” (Id.) She observed him
to be alert and oriented, although rude and combative. (Id.) She did not note any injury to
Miller. (Id.)
Mezraoui does not remember interacting with Miller on December 5, 2013. (Docket
# 134 ¶ 19.)
DISCUSSION
1. Retaliation Claim
To establish that defendants Ninkovic, Townes, Gennrich, Capak, and Spidell
violated Miller’s First Amendment rights by beating him in retaliation for his filing
grievances, Miller must demonstrate that he engaged in activity protected by the First
Amendment; that he suffered a deprivation that would deter First Amendment activity; and
that the First Amendment activity was “at least a motivating factor” in the defendants’
decision to take the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).
Miller cannot prevail on summary judgment because he did not establish that he filed
any grievances prior to December 2013. In fact, the only grievances that Miller points to in
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any of his motion papers are dated after the alleged beating. Without showing that he
engaged in protected activity before the alleged beating, he cannot demonstrate that the
alleged misconduct of these defendants was motivated by Miller engaging in activity
protected by the First Amendment. In other words, while Miller’s sworn statement that he
previously filed grievances is sufficient to state a claim against these defendants, it is not
sufficient for Miller to prevail on that claim at the summary judgment stage.
In any event, defendants Ninkovic, Townes, Gennrich, Capak, and Spidell deny that
they beat Miller or made any of the statements that Miller attributes to them. As such,
genuine disputes over material facts exist, so summary judgment on this claim would be
improper.
2. Excessive Force Claim
Miller alleges that at the relevant time he was both a convicted prisoner being held
on a probation violation and a pretrial detainee pending new charges. Defendants suggest
his excessive force claims should be evaluated under both the Eighth and Fourteenth
Amendments. Under the Eighth Amendment, the central question in evaluating an
excessive force claim is “whether the force was applied in a good faith effort to maintain or
restore discipline or maliciously and sadistically for the very purpose of harm.” Fillmore v.
Page, 358 F.3d 496, 503 (7th Cir. 2004) (citations omitted). However, to establish a
Fourteenth Amendment claim, Miller “must show only that the force purposely or
knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 135
S.Ct. 2466, 2472 (2015).
Regardless of the standard, Miller’s motion for summary judgment on this claim
must be denied. Defendants Ninkovic, Townes, Gennrich, Capak, and Spidell deny ever
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hitting, striking, assaulting, or injuring Miller in any way. Thus, as with Miller’s retaliation
claim, there exists a he-said, they-said dispute that cannot be resolved on summary
judgment.
3. Deliberate Indifference Claim
Miller claims that Andrykowski, Montano, Mezraoui, Andrzejewski, Mizdrak, and
Ruiz were deliberately indifferent to his serious medical condition when they refused to
provide him medical care for the injuries he says he suffered as a result of the alleged
beating. In his complaint, Miller states he suffered “scrapes, abrasions, knots, bruises, [and]
blood coming from [his] nose, mouth, and forehead.” (Docket # 1 at ¶ 31.)
The Eighth Amendment 4 protects against “deliberate indifference to a serious
medical need.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prevail, Miller must show that
a state official acted with the requisite culpable state of mind (deliberate indifference), which
is a subjective standard, and he must show that his condition was serious, an objective
standard. Dunigan ex rel. Nyman v. Winnebago County, 165 F.3d 587, 590-91 (7th Cir. 1999).
A medical condition is serious if it has been “diagnosed by a physician as mandating
treatment or . . . is so obvious that even a lay person would easily recognize the necessity for
a doctor’s attention.” Guiterrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). In addition, in
evaluating the seriousness of a condition, courts may consider whether the condition
significantly affects the person’s daily activities and whether there is chronic and substantial
pain. Id.
Although the source (i.e., the constitutional amendment) of a prisoner’s rights differs depending on whether
he is a pretrial detainee or a convicted prisoner, the standard by which the defendants’ alleged misconduct is
evaluated is the same because the protections for pretrial detainees are at least as great as the protections
available to convicted prisoners. Thus, regardless of Miller’s status, I will analyze his claim under Eighth
Amendment precedent. Washington v. LaPorte County Sheriff’s Dept., 306 F.3d 515, 517 (7th Cir. 2002) (holding
“there is little practical difference between the two standards”).
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The Seventh Circuit has held that minor physical injuries do not rise to the level of
an objectively serious medical need. See Pinkston v. Madry, 440 F.3d 879, 891 (7th Cir. 2006).
For example, in Pinkston, the Seventh Circuit ruled that a split lip and swollen cheek did
“not qualify as injuries that are so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.” Id. (internal quotations and citations omitted). Similarly,
in Davis v. Jones, it held that “a one-inch laceration to an arrestee’s temple, that was neither
deep enough or long enough to require stitches, and a scraped elbow did not require prompt
medical attention under the Eighth Amendment.” 936 F.2d 971, 972-73 (7th Cir. 1991).
However, the injuries alleged by Miller are more extensive than those that the
Seventh Circuit has ruled do not require prompt medical attention. Miller claims officers
beat him for five to ten minutes, repeatedly kneeing and kicking him in the face and pulling
out his hair. He describes knots and bruises in multiple places with blood coming from his
nose, mouth, and forehead. While an isolated cut or bruise may not rise to a serious medical
condition, those are not the allegations before me.
Defendants Mezraoui and Andrzejewski point to Miller’s interaction with Nurse
Beyer at Dodge Correctional Institution on December 10, 2013, in support of their
argument that no serious medical condition existed. (Docket # 97 at 12.) They note that at
that meeting, Miller said he did not require medical attention but only wanted to document
his injuries. (Id.) At that time, Miller also acknowledged that the only treatment necessary
was over-the-counter pain reliever, and he already had that in his cell (in his cell at Dodge; it
is unclear whether he had this while at the Jail). (Id.) However, this interaction between
Nurse Beyer and Miller occurred five days after the alleged incident. By then, Miller’s
condition was different from his condition in the hours following the alleged incident, when
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Miller alleges he was bleeding, swollen, and in a lot of pain. Although Miller may not have
had a serious medical condition five days after the alleged beating, that does not necessarily
establish that he did not have one when he interacted with Mezraoui and Andrzejewski.
Andrykowski, Montano, Mezraoui, Andrzejewski, Mizdrak, and Ruiz also argue
that, even if Miller can establish a serious medical condition, he cannot establish that they
were deliberately indifferent to that condition. Here, the parties dispute each other’s version
of events. Miller alleges he asked all of these defendants for help and medical treatment,
allegations that each of these defendants denies. In addition, they deny that Miller had any
visible injuries and that they made any of the statements that he attributes to them.
Mezraoui does not recollect even seeing Miller that day. Again, because I am not permitted
to make credibility determinations at the summary judgment stage, I conclude that genuine
issues of material fact exist and that summary judgment in favor of either movant on this
claim would be inappropriate.
ORDER
THEREFORE, IT IS HEREBY ORDERED that the plaintiff’s motion for summary
judgment (Docket # 68) is DENIED.
IT IS FURTHER ORDERED that defendants Mezraoui’s and Andrzejewski’s
motion for summary judgment (Docket # 96) is DENIED.
The Clerk of Court’s office is directed to contact the parties to schedule a conference
call with the parties to discuss next steps.

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Dated at Milwaukee, Wisconsin this 13th day of November, 2015.

BY THE COURT:
s/Nancy Joseph ____________
NANCY JOSEPH
United States Magistrate Judge

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