Westedt v. Franklin
Filing
88
ORDER signed by Magistrate Judge William E Duffin on 9/9/16. IT IS HEREBY ORDERED that Franklin's motion for summary judgment (ECF No. 58 ) is DENIED. Telephonic Status Conference set for 9/23/2016 10:00 AM before Magistrate Judge William E Duffin. The court will initiate the call. (cc: all counsel) (mlm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSHUA L. WESTEDT,
Plaintiff,
v.
SGT. DARRYL FRANKLIN,
Defendant.
Case No. 15‐CV‐129
ORDER
Plaintiff Joshua Westedt, a Wisconsin state prisoner who is currently confined at
Waupun Correctional Institution (Waupun), filed a civil rights action pursuant to 42
U.S.C. § 1983, alleging that his civil rights were violated when defendant Darryl
Franklin used force against him during a cell extraction at the Wisconsin Resource
Center (WRC). Judge Charles N. Clevert, Jr. (to whom this case was assigned at the
time) screened Westedt’s complaint pursuant to 28 U.S.C § 1915A(a) and allowed him to
proceed with Eighth Amendment claims alleging that Franklin used excessive force
during a cell extraction and was then deliberately indifferent to Westedt’s serious
medical needs. (ECF No. 4.)
The parties subsequently consented to have this court resolve this matter. (ECF
Nos. 3, 9.) This case is now before the court on Franklin’s motion for summary
judgment. (ECF No. 58.) Westedt moved to dismiss his medical care claim, so the
court’s consideration of Franklin’s motion will be limited to Westedt’s excessive force
claim. (ECF No. 73, 87.)
I.
RELEVANT FACTS
The facts in this section are taken primarily from “Defendants’ Reply to
Plaintiff’s Response to Defendant’s Proposed Findings of Fact” and “Defendant’s
Response to Plaintiff’s Proposed Additional Facts.” (ECF Nos. 85, 86.) The court will
note disputes of fact.
At all relevant times Westedt was confined at the Wisconsin Resource Center
(WRC). (ECF No. 85, ¶ 1.) Franklin is employed by the State of Wisconsin Department
of Health Services as a Psychiatric Care Supervisor at WRC. (Id. at ¶ 3.)
At WRC, Unit F‐12 is a housing unit that functions as an open unit and focuses
on inmates who suffer from mental illness and inmates who have intellectual issues.
(Id. at ¶ 13.) Many of the inmates are in a restricted status but have proven their ability
to interact appropriately on an open unit. (Id.) The goal of Unit F‐12 is to reintegrate
long term restricted‐status inmates back into the general population. (Id.) Instead of
relying on conduct reports, Unit F‐12’s program uses a level system to deter
misconduct. (Id.) Unit F‐12 inmates are allowed to move around freely and attend off
2
unit activities. (Id.) Unit F‐12’s program allows inmates who display misconduct to be
secured in their cell instead of being moved to a high management unit. (Id.) However,
if the inmate’s behavior is a risk to security or the inmate continues to have a negative
and interfering impact on the unit, he must be moved to a higher security unit. (Id.)
On March 9, 2011, at approximately 3:04 p.m., Psychiatric Care Technician –
Advanced Alissa Sabel was conducting the 3:00 p.m. census check on Unit F‐12 at WRC.
(Id. at ¶¶ 9, 12.) While Sabel was conducting the census check, Westedt began arguing
with another inmate in the dayroom after the other inmate saw Westedt making
inappropriate gestures at Sabel. (Id. at ¶ 14.) Sabel directed both inmates to stop
arguing, but Westedt continued yelling, “Hey man shut the fuck up!” (Id.) Sabel and
Psychiatric Care Technician Heidi Kloiber both directed Westedt to lock in his room.
(Id. at ¶¶ 6, 15.) Westedt said, “I’m not locking in!” (Id. at ¶ 15.) Westedt was given
several more directives to lock in his room, which he refused. (Id.) Correctional Officer
Mike Natzke ordered all the inmates in the dayroom to lock in. (Id. at ¶ 16.) This time,
Westedt proceeded to his room and locked in. (Id.)
While inmates in Unit F‐12 were being led out for recreation, unit staff informed
Franklin that Westedt had become disruptive and disrespectful. (Id. at ¶ 17.) Staff
redirected Westedt to secure back in his cell several times before he complied. (Id.) As
he locked in, Westedt started yelling at staff, telling them to “fuck off” and calling them
“bitches.” (Id.) When Franklin arrived at Westedt’s cell door, Westedt was yelling that
3
he would kill staff and was calling them “bitch” and “cunts,” along with other insults.
(Id. at ¶ 18.) When Franklin attempted to interject, Westedt focused his anger towards
Franklin and called him “bitch.” (Id.) Franklin avers that Westedt threatened to cause
Franklin physical harm and death and said he would return to the WRC parking lot
after his release to kill Franklin; Westedt disputes this. (Id.)
All attempts to calm Westedt down failed. (Id.) Franklin determined that Westedt
needed to be moved to a more secure unit, F‐11. (Id. at ¶ 19.) Unit F‐11 is a high security
unit where the focus is security and control. (Id.) While Unit F‐11 does offer some
treatment options, it is not considered a long‐term housing placement. (Id.)
When Franklin informed Westedt that he would be moving to a high security
unit, Westedt refused to comply. (Id. at ¶ 20.) When asked to comply with directives to
place his hands out of the trap, Westedt stated, “Fuck that. Get a suit up team.” (Id.)
Franklin also avers that Westedt told Franklin he was going to kill Franklin and the staff
members at the desk and that he would return to the parking lot of WRC to kill Franklin
after his release; Westedt denies that he made these threats. (Id.)
The purpose of a suit up team is to physically remove an inmate from an area
when he refuses to comply. (Id. at ¶ 21.) From Franklin’s experience, when Westedt
said, “get a suit up team,” it suggested that he was ready to fight or physically resist the
escorting team. (Id.)
4
Franklin attempted to persuade Westedt away from his threats of physical
violence by asking “is that really the way you want to leave the unit?” (Id. at ¶ 21.)
Westedt responded, “yes.” (Id.) Franklin closed the trap and asked Sergeant Victor Bode
to set up a team for entry. (Id. at ¶ 23.) As Sergeant Bode walked away from the cell,
Westedt decided that he would comply with the transfer to Unit F‐11. (Id.) As restraints
were being placed on Westedt’s wrists, he continued to yell and call staff “bitch” and
threaten Franklin. (Id. at ¶ 24.) Westedt admits that he threatened Franklin but denies
threatening any other staff members at this point. (Id.) After the wrist restraints were
secure, Sergeant Bode directed Westedt to place his hands back in the cell, but Westedt
refused and continued to threaten Franklin. (Id. at ¶ 25.)
When wrist restraints are placed on an inmate through the trap in the cell door, it
causes the inmate to bend over at the waist. (Id. at ¶ 26.) To decrease the chance of
injuries, staff ask the inmate to stand up as the door opens. (Id.) If the inmate keeps his
hands through the trap, it could cause the inmate to fall, and it puts added pressure on
the inmate’s spinal cord. (Id.) In addition, some inmates will attempt to grab staff
through the trap in the cell door or will resist after they are secured. (Id.) If the inmate’s
hands are inside the door, staff can close the trap and reevaluate the situation. (Id.)
Also, if the inmate’s hands are inside the door, the inmate cannot control the door as
staff open it. (Id.) The cell doors open outward and weigh approximately 200‐300
5
pounds. (Id.) If the inmate’s hands are on the door, he can slam it open into staff and
cause injuries. (Id.)
According to Westedt, he followed the door as Bode opened it and then stood up
straight and followed the door about five seconds later. (ECF No. 84 at 2.) Once the door
was open, an unknown staff member told Westedt to face the door. (Id.) Westedt said,
“what” because he did not understand, but was again told to face the door. (Id.)
Westedt asked why because he was already facing forward, and an unknown staff
member slammed Westedt’s face into the door. (Id.) Westedt swore and called the staff
member a bitch; he was then decentralized. (Id.)
Westedt admits that he started to resist when staff first started to bring him to the
floor because he thought he was being attacked. (ECF No. 84 at 2.) However, he says he
complied and allowed himself to be brought to the floor without any further resistance
after he was told to stop resisting. (Id.) Westedt says that after he was on the ground on
his back and fully restrained Franklin choked him. (Id.) Franklin’s hands were by
Westedt’s Adam’s apple, not his chin, which is why Westedt believes Franklin was not
using a mandibular hold. (Id.)
Westedt says that he was not fighting with staff or moving any part of his body
while Franklin choked him. (ECF No. 84 at 3.) His legs were restrained by another staff
member, and his hands were secured with handcuffs that were attached to a waist belt
that was secured to the cell door with a tether. (Id.) Westedt says that Franklin
6
continued to choke him until the leg restraints were on and staff started bringing
Westedt to his feet. (Id.)
Franklin’s version of events is very different. Franklin asserts that by the time he
went around the door and took center position, using the door to stabilize Westedt was
not an option because it was open. (ECF No. 85 at ¶ 27.) This meant that floor
decentralization was the last available option to stop Westedt’s resistance. (Id.) Floor
decentralization means that Westedt was directed to the ground in a controlled manner
by staff; it is a trained technique. (Id. at ¶ 28.)
Franklin says that Westedt continued to resist, his yelling escalated, and he
threatened to kill staff. (ECF No. 85 at ¶ 29.) Franklin then took control of Westedt’s
head and secured a mandibular position. (Id.) The mandibular compliance hold focuses
on the nerve cluster at the angle of the chin. (Id. at ¶ 30.) The hold is designed to cause
some discomfort in order to quickly gain compliance from the inmate. (Id.) It is used to
get the attention of the non‐compliant person, not to cause harm. (Id.) Franklin asked
Westedt if he would comply with directives and stop resisting, but Westedt responded
with more expletives and attempted to pull away. (ECF No. 85 at ¶ 29.) Franklin
applied pressure in Westedt’s mandibular area, and only then did Westedt agree to
comply. (Id.) Franklin says he used the mandibular compliance hold to stop Westedt
from resisting staff and to gain his compliance with directives. (Id. at ¶ 31.) Westedt was
out of control, he was actively resisting and disobeying orders, and his behavior had
7
elevated to a dangerous level and someone could have been injured, including Westedt.
(Id.)
According to Franklin, once Westedt was under control, Franklin told him to
follow staff orders. (ECF No. 85 at ¶ 32.) Westedt said he would. (Id.) Leg restraints
were then applied, Westedt was returned to his feet and escorted toward the exit. (Id.)
Franklins says that leg restraints are only used during a move if an inmate physically
resists; verbal outbursts do not always require the use of leg restraints. (Id.)
There is a dispute regarding whether Westedt continued to yell throughout the
escort to Unit F‐11 and whether he threatened the staff members at the desk and called
them “bitches” and “cunts.” (ECF No. 85 at ¶ 33.) Per policy, all inmates entering a high
security unit must be strip searched to make sure that no contraband enters the secure
environment and that the inmate has nothing on him that could be used to cause injury.
(Id. at ¶ 34.) Westedt refused to comply with the strip search, so the escorting team
secured him to his new cell door and performed a staff‐assisted strip search at the cell
door. (Id. at ¶ 35.) During the search, all the windows in the area were covered to
provide privacy to Westedt. (Id.)
Once Westedt was on Unit F‐11, Franklin noticed that Westedt had some small
scrapes on his hand. (ECF No. 85 at ¶ 37.) Franklin asked Westedt if he would like to see
a nurse and informed medical. (Id.) A nurse checked the scrapes Westedt received
during the struggle. (Id.)
8
Sabel completed Adult Conduct Report #2207001 on March 9, 2011, charging
Westedt with Disobeying Orders, Disrespect, and Disruptive Conduct regarding the
incident. (ECF No. 85 at ¶ 44.) Westedt was present at a disciplinary hearing on March
12, 2011, for the conduct report. (Id. at ¶ 45.) He was found guilty on all charges and did
not appeal the disciplinary hearing committee’s decision. (Id. at ¶¶ 46‐47.)
II.
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 that “might affect the
outcome of the suit.” See Anderson, 477 U.S. at 248. A dispute over a 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 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
9
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).
III.
ANALYSIS
For an excessive force claim under the Eighth Amendment, the “core judicial
inquiry” is “whether force was applied in a good‐faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34,
37 (2010) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). “When prison officials
maliciously and sadistically use force to cause harm, contemporary standards of decency
always are violated.” Hudson, 503 U.S. at 9.
Franklin argues that his use of force was necessary given Westedt’s non‐
compliance with the staff’s orders and his resistance. He also asserts that the force used
was not malicious or sadistic for the purpose of causing harm. Thus, he contends he is
entitled to summary judgment on Westedt’s excessive force claim.
Westedt argues that genuine issues of material fact exist as to what occurred on
March 9, 2011. He disputes that Franklin used a mandibular hold on him, contending
that he was choked by Franklin. He claims that Franklin choked him gratuitously after
he was already on the ground, restrained, and compliant. These factual disputes, he
argues, preclude the entry of summary judgment for Franklin.
10
Whether Franklin applied a mandibular hold or choked Westedt and whether
Westedt was resisting when Franklin used force are material facts. Genuine disputes
exist over those material facts. As such, the court must deny Franklin’s motion for
summary judgment. The court “do[es] not judge the credibility of the witnesses,
evaluate the weight of the evidence, or determine the truth of the matter. The only
question is whether there is a genuine issue of fact.” Gonzalez v. City of Elgin, 578 F.3d
526, 529 (7th Cir. 2009).
Franklin argues that Westedt’s claims are internally inconsistent because Westedt
agreed to a proposed finding of fact that states:
Once they were in control of Westedt’s actions, Franklin
verbally directed him to follow all staff orders. Westedt
stated that he understood and would follow all staff orders.
Once they had confirmation from Westedt that he was ready
to comply with Franklin’s orders, leg restraints were
applied, he was returned to his feet, and he was escorted
toward the wing end door, exiting the unit. Leg restraints
are only used during a move if an inmate becomes
physically resistive. Verbal outbursts do not always require
the use of leg restraints.
(ECF No. 63, ¶ 33.) Conversely, Westedt submits in a notarized affidavit:
While Franklin was choking me I was not fighting with staff
or moving any part of my body as my legs were restrained
by PCT Matschi and my hands were secured with handcuffs
that were attached to a waist belt, and the waist belt was
secured to my cell door with a tether.
(ECF No. 84, ¶ 17.) The court does not see an inherent inconsistency in these two
statements and wonders whether Franklin misinterpreted Westedt’s statement that his
11
legs were being restrained by an officer to mean that the leg restraints had already been
applied. Perhaps Franklin wants the court to infer from the fact that leg restraints were
applied that Westedt was physically resistive. Either way, the court will not hold
Westedt to an admitted fact where his sworn affidavit unequivocally creates disputes of
material facts.
The Court of Appeals for the Seventh Circuit has made it clear that “summary
judgment cannot be used to resolve swearing contests between litigants.” McCann v.
Iroquois Memorial Hosp., 622 F.3d 745, 752 (7th Cir. 2010) (quoting Payne v. Pauley, 337
F.3d 767, 770 (7th Cir. 2003). Nor may the court “weigh the evidence or decide which
testimony is more credible.” McCann, 622 F.3d at 752 (citations omitted). Disputes of
material facts preclude the court from granting Franklin’s motion for summary
judgment.
Franklin also argues that he is entitled to qualified immunity because there is no
case law that would support a finding of unconstitutional conduct in Franklin’s
decision to use the mandibular compliance hold. But there are questions of fact
regarding whether Franklin used the mandibular compliance hold technique or choked
Westedt. Based on Westedt’s version of events, a reasonable jury could conclude that
Franklin applied force “maliciously and sadistically to cause harm” rather than “in a
good‐faith effort to maintain or restore discipline.” Wilkins, 559 U.S. at 37.
12
IV.
CONCLUSION
WHEREFORE, IT IS HEREBY ORDERED that Franklin’s motion for summary
judgment (ECF No. 58) is DENIED.
IT IS FURTHER ORDERED that the court will hold a telephonic status
conference on September 23, 2016, at 10:00 a.m. The court will initiate the call.
Dated at Milwaukee, Wisconsin this 9th day of September, 2016.
WILLIAM E. DUFFIN
U.S. Magistrate Judge
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?