Sanchez v. Olig et al
Filing
85
ORDER DISMISSING CASE signed by Judge Pamela Pepper on 3/21/2018. 65 Plaintiff's MOTION for Summary Judgment DENIED. 70 Defendants' MOTION for Summary Judgment GRANTED. (cc: all counsel, via mail to Salvador Sanchez)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SALVADOR SANCHEZ,
Plaintiff,
v.
Case No. 15-cv-935-pp
TODD OLIG, et al.,
Defendants.
DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 65), GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 70) AND DISMISSING CASE
The plaintiff, who is representing himself, filed this lawsuit under 42
U.S.C. §1983, alleging that the defendants violated his constitutional rights.
The court allowed the plaintiff to proceed on two claims: first, that defendants
Paul Ludvigson, Todd Olig and Jeremy Westra retaliated against him, violating
the First Amendment; and second, that Olig used excessive force against him,
violating the Eighth Amendment. Both the plaintiff and the defendants filed
motions for summary judgment. The court grants the defendants’ motion for
summary judgment, denies the plaintiff’s motion for summary judgment and
dismisses the case.
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I.
RELEVANT FACTS1
The plaintiff was housed at Waupun Correctional Institution (Waupun) at
the time the incidents underlying this lawsuit occurred. Dkt. No. 67 at ¶2; Dkt.
No. 72 at ¶1. Defendant Todd Olig worked there as a correctional officer,
defendant Jeremy Westra worked as a Supervising Officer 2 (Captain), and
defendant Paul Ludvigson worked as the corrections program supervisor in the
Restrictive Housing Unit (RHU). Dkt. No. 72 at ¶¶2-4.
On June 9, 2015, Olig worked first shift on the B wing of the RHU, where
the plaintiff was housed. Id. at ¶6. Olig passed out medication as part of his
normal duties, a process referred to as “medication pass.” Id. at ¶7. Officers
control the medication for inmates on the A and B wings of the RHU. Id. at ¶8.
Medical staff members place the medications on a cart for the correctional
officer assigned to each wing to deliver to the inmates. Id. The morning
medication pass begins at 6:00 a.m., starting with an announcement over the
intercom. Id. at ¶ 9. In order to receive his medications, an inmate must be
standing at his cell door with the light on, wearing a minimum of pants. Id. at
¶10. The “Segregation Unit Handbook,” which is given to all inmates on entry
to the RHU, outlines the medication pass process. Id. at ¶11. Inmates are
expected to read the handbook and comply with the rules it outlines. Id.
The court takes the relevant facts from the plaintiff’s proposed findings of fact,
dkt. No. 68, the plaintiff’s declaration in support of his motion for summary
judgment, dkt. no. 67, the defendants’ proposed findings of fact, dkt. no. 72,
and the plaintiff’s response to the defendant’s proposed findings of fact, dkt.
no. 81.
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2
According to Olig, the plaintiff was not at his door with the light on when
Olig went past on the morning of June 9, 2015, so Olig continued without
delivering medication to the plaintiff; he also did not deliver medication to other
inmates on the B wing who were not, according to Olig, following RHU rules. Id.
at ¶¶12-13. Olig alleges that the plaintiff began to complain loudly about being
skipped for medication pass. Id. at ¶14. He says that he walked over to the
plaintiff’s cell and told him that he did not give the plaintiff his medication
because the plaintiff didn’t follow RHU rules, and that Olig would come back if
he had time. Id. at ¶15. Olig indicates that he left the plaintiff’s door, and
denies that he ever intentionally kicked or hit the plaintiff’s door. Id. at ¶16-17.
Later, Olig alleges, he went back to all the cells of B wing inmates who were not
at their door for the initial medication pass to give them their medicine. Id. at
¶18.
According to the plaintiff, jail staff did not give the inmates on the B wing
proper notice that medication pass was going to begin, though he states that
he did follow RHU procedure and was at his cell door. The plaintiff confirms
that he began to complain loudly when Olig went past his cell without giving
him his medication. Dkt. No. 68 at ¶4. The plaintiff alleges that Olig walked
back over to his cell, ultimately kicking the plaintiff’s cell door. Id. at ¶¶5-6;
Dkt. No. 67 at ¶6. According to the plaintiff, his finger was pinched in the door,
causing severe pain and bleeding behind the fingernail. Id. at ¶7.
Olig indicates that the plaintiff reported the pinched finger to Olig, who
called the Health Services Unit (HSU) to let the nurse know. Dkt. No. 72 at ¶19.
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Nurse DeYoung saw the plaintiff at his cell door at 8:50 a.m., and noted that he
had a “1/2 by 1/4 [inch] abrasion split thickness over DIP (distal
interphalangeal joint) of 4th finger and no active bleeding.” Dkt. No. 72 at ¶20;
see also Dkt. No. 68 at ¶9. Nurse DeYoung told the plaintiff that she would
evaluate him in the HSU exam room as soon as possible. Dkt. No. 72 at ¶21.
Around 11:45 a.m., Olig escorted the plaintiff to the HSU examination
room so that Nurse DeYoung could assess his injury. Id. at ¶22; Dkt. No. 68 at
¶9. The plaintiff says that, in Olig’s presence, he told the nurse that Olig had
kicked his door and caused the injury, and he says Olig did not deny it or write
the plaintiff up for lying. Dkt. No. 68 at ¶10. Olig says he doesn’t remember the
plaintiff telling the nurse he had kicked Sanchez’s door. Dkt. No. 72 at ¶23.
The nurse’s notes from her visit to the plaintiff’s cell indicate that the plaintiff
told her that his finger was pinched when Olig kicked his door. Dkt. No. 67-3
at 1-2. The nurse did not note or feel any signs of deformity “other than
abrasion.” Dkt. No. 72 at ¶24.
The next day, June 10, 2015, the plaintiff submitted an information
request to the security office in which he alleged that Olig kicked his door
during the 6:00 a.m. medication pass the previous day, causing injury to his
right ring finger. Id. at ¶25; Dkt. No. 68 at ¶11. Defendant Paul Ludvigson
states that he interviewed the plaintiff about the incident, dkt. no. 72 at ¶26;
the plaintiff says that Ludvigson never interviewed him, dkt. no. 81 at ¶26.
Ludvigson then downloaded three video clips from the video recording
system at Waupun. Dkt. No. 72 at ¶26. The first clip begins at 6:08:44 a.m.
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and shows Olig walking back towards the plaintiff’s cell from the opposite end
of the hallway. Id. at ¶27; Dkt. No. 74-1. Olig then speaks to the plaintiff
through the door, gesturing at the plaintiff, then walks back down the hall.
Dkt. No. 74-1. The clip ends at 6:09:46. Id. The plaintiff alleges that the video
“skips” at 6:09:05 for one to two seconds, and that it was during this time that
Olig kicked the door. Dkt. No. 68 at ¶14.
The next clip begins at 6:28:30, and shows Olig delivering medications to
the plaintiff. Dkt. No. 72 at ¶28; Dkt. No. 74-1. The final clip, which picks up
where the second one left off and begins at 6:29:47, begins with three to four
seconds of a “frozen” image, then shows Olig closing the trap on the plaintiff’s
cell door and walking away, pushing the cart. Dkt. No. 72 at ¶29; Dkt. No. 741.
Having reviewed the clips, Ludvigson found no evidence that Olig had
kicked the plaintiff’s cell door. Dkt. No. 72 at ¶30. On June 23, 2015,
Ludvigson issued Conduct Report No. 2639723 to the plaintiff for lying about
an employee, violating Wis. Admin. Code. §DOC 303.32. Id. at ¶¶31, 33. Olig
had no part in writing that particular conduct report. Id. at ¶32; Dkt. No. 68 at
¶12. On June 24, 2015, the Security Director’s designee approved the report to
proceed as a major offense, noting that the plaintiff recently had “been warned
about the same or similar conduct and … created a risk of serious disruption
at the facility or in the community.” Dkt. No. 72 at ¶36. Staff provided the
plaintiff with a copy of the conduct report and a Notice of Major Disciplinary
Hearing Rights, and assigned him a staff representative. Id. at ¶¶37. The
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plaintiff says that the only contact he had with a representative was a
substitute he met with the night before the hearing. Dkt. No. 68 at ¶13.
Defendant Jeremy Westra was assigned as the hearing officer for the
disciplinary hearing on Conduct Report No. 2639723. Dkt. No. 72 at ¶38.
Westra had no prior knowledge of or involvement in the incidents at issue in
the Conduct Report. Id. at ¶39. On June 24, 2015, Westra received an
“Inmate’s Request for Attendance of Witness/Evidence” form from the plaintiff.
Id. at ¶40; see also Dkt. No. 68 at ¶13. The plaintiff asked that Olig, Ludvigson
and a nurse appear as witnesses at the disciplinary hearing; he also asked for
his medical records from June 9, 2015 and the video evidence from Olig’s 6:00
a.m. medicine pass. Dkt. No. 72 at ¶40. Westra approved the video evidence
and all the witnesses except the nurse (because the plaintiff did not specify a
name). Id. at ¶41. The plaintiff says that he also asked for the RHU movement
log, but that he did not receive that log or his medical records. Dkt. No. 81 at
¶41.
The hearing took place on July 9, 2015. Dkt. No. 72 at ¶43; Dkt. No. 68
at ¶14. The plaintiff gave a verbal statement that Olig kicked his cell door
during the medication pass, “pinching his hand in the door.” Dkt. No. 72 at
¶43. Ludvigson testified that when he watched the video, he did not see Olig hit
or kick the plaintiff’s door. Id. at ¶44. Olig testified that he didn’t hit or kick the
plaintiff’s door. Id. at ¶45. Westra reviewed the video evidence. Id. at ¶47. The
plaintiff claims that he told Westra that the video was missing footage, dkt. no.
81 at ¶51; Westra said he had no reason to believe that any footage was
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missing, and that he “assumed” that he’d been given the video evidence the
plaintiff had requested, dkt. no. 72 at ¶51. The defendants assert that the video
was not the “sole deciding factor” in Westra’s decision to find the plaintiff guilty
of the violation. Dkt. No. 72 at ¶52. Westra asserts that, after learning of the
plaintiff’s claim that footage was missing, he went back and reviewed the clips
at Dkt. No. 74-1, and that his review did not “reveal any information that
would have changed his finding at the disciplinary hearing.” Id. at ¶53.
Westra ordered the plaintiff to serve ninety days in disciplinary
separation. Id. at ¶58.
II.
DISCUSSION
A. 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, 247-48 (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.” 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 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
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(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).
B. The Court’s Analysis
The court allowed the plaintiff to proceed on four claims: (1) a retaliation
claim against Ludvigson, who issued the conduct report claiming that the
plaintiff lied about staff; (2) a retaliation claim against Olig, who testified at the
disciplinary hearing that he did not kick the plaintiff’s door; (3) a retaliation
claim against Westra, who conducted the disciplinary hearing and issued the
sanction of additional segregation; and (4) an excessive force claim against Olig,
who the plaintiff claims kicked his cell door, resulting in the plaintiff’s finger
being pinched between the door and the door jam. Dkt. No. 17 at 10-11.
1. Retaliation Claims
At the summary judgment stage, the plaintiff has the initial burden to
make out a prima facie2 case of retaliation by showing that: “(1) he engaged in
activity protected by the First Amendment; (2) he suffered a deprivation likely
A prima facie case is a case in which there is enough evidence to show that
the plaintiff could prove his claim, unless the defendants present substantial
contradicting proof.
2
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to deter such activity; and (3) the First Amendment activity was at least a
motivating factor in the decision to impose the deprivation.” Hawkins v.
Mitchell, 756 F.3d 983, 996 (7th Cir. 2014). If the plaintiff makes this prima
facie showing, the defendants then must show that they would have taken the
adverse action even if the plaintiff had not exercised his First Amendment
right. Mays v. Springborn, 719 F.3d 631, 634 (7th Cir. 2013); see also, Greene
v. Doruff, 660 F.3d 975, 979 (7th Cir. 2011) (if inmate meets all three elements,
burden shifts to show that officers would have taken the same actions “even in
the absence of protected conduct”). If the defendants meet this burden, the
burden shifts back to the plaintiff to show that the non-retaliatory reason the
defendants gave for taking the action was a “pretext”—made up to cover up the
real reason, which was the intent to retaliate. Thayer v. Chiczewski, 705 F.3d
237, 252 (7th Cir. 2012).
a.
Ludvigson
It is undisputed that on June 10, the plaintiff submitted an information
request, alleging that Olig kicked his door and injured his finger. It is
undisputed that because the plaintiff made that information request,
Ludvigson issued the conduct report against him. While the parties don’t
directly address it, the court assumes for the purposes of summary judgment
that getting a conduct report is the kind of action that could chill an inmate
from exercising his First Amendment rights in the future.
Outside the prison setting, this would look like a prima facie case of
retaliation in violation of the First Amendment. But when a court considers a
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prisoner’s allegation that his constitutional rights were violated, the analysis
changes. This is because of the unique challenges posed by a prison setting.
Prisoners, like anyone else, have constitutional rights that federal courts must
recognize. See Turner v. Safley, 482 U.S. 78, 84 (1987) (citing Procunier v.
Martinez, 416 U.S. 396, 405 (1974)). At the same time, “[r]unning a prison is
an inordinately difficult undertaking that requires expertise, planning, and the
commitment of resources, all of which are peculiarly within the province of the
legislative and executive branches of government.” Id. at 84-85. When a court
analyzes a prisoner’s claim that a member of the prison staff may have violated
his constitutional rights, that court must consider both “the policy of judicial
restraint regarding prisoner complaints and . . . the need to protect
constitutional rights.” Id. at 85 (quoting Procunier, 416 U.S. at 406). In striking
this balance, the Supreme Court has held that “when a prison regulation
impinges on inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.” Id. at 89.
In deciding whether a prison regulation is reasonably related to
legitimate penological interests, a lower court must determine whether there is
a “valid, rational connection” between the regulation and the government’s
interest; whether there are alternative means of exercising their rights open to
inmates; the impact accommodating the prisoner’s right will have on guards
and other inmates; and whether there are any “ready alternatives” to the action
that deprived the prisoner of his rights. Id. at 89-90.
Here, the government action that the plaintiff challenges is Ludvigson’s
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issuance of the conduct report against him for lying. There is a regulation—
Wis. Admin. Code. §DOC 303.32—that prohibits an inmate from lying about a
prison employee. There is a connection between prohibiting an inmate from
lying about prison employees and a legitimate penological interest. That
interest is prison order and security. The Supreme Court has held that
“maintaining institutional security and preserving internal order and discipline
are essential goals that may require limitation or retraction of the retained
constitutional rights of both convicted prisoners and pretrial detainees.” Bell v.
Wolfish, 441 U.S. 520, 546 (1979). On this basis, the plaintiff cannot prove a
retaliation claim against Ludvigson.
Even if the law did not allow some impingement on a prisoner’s
constitutional rights if that impingement has a reasonable connection to a
legitimate penological interest, the plaintiff still could not prove a retaliation
claim against Ludvigson. If the court assumes that the plaintiff was engaging in
speech protected by the First Amendment when he said in the information
request that Olig kicked his door and injured his finger, then arguably the
plaintiff presented a prima facie case for First Amendment retaliation. But the
analysis does not end there. The burden then shifts to the defendant—in this
case, Ludvigson—to show that he did not issue the conduct report as
retaliation, but for some legitimate reason. Ludvigson has presented that
evidence.
The evidence shows that Ludvigson reviewed the plaintiff’s grievance,
watched the video footage, then issued the conduct report. The video clips—
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which are part of the court record—do not show Olig kicking the door. There is
no evidence that Ludvigson had reason to doubt the video. The evidence shows
that Ludvigson had reason to believe that the plaintiff lied about Olig kicking
the door. Ludvigson argues—and the evidence supports this argument—that he
issued the conduct report because he had reason to believe that the plaintiff
lied about a prison employee. As the court noted, there is a regulation that
prohibits inmates from lying about prison employees. Ludvigson has given the
court a non-retaliatory reason for issuing the conduct report.
Given that, the burden shifts back to the plaintiff to show that
Ludvigson’s explanation is a pretext. The plaintiff has presented no evidence
that Ludvigson’s reason was pretextual. In fact, the evidence supports
Ludvigson’s belief that there was no evidence to show that Olig purposefully
kicked the plaintiff’s door, or purposefully injured him. Ludvigson issued the
conduct report because he believed that the plaintiff had lied about Olig, and
lying about a prison employee is prohibited conduct.
The Seventh Circuit Court of Appeals confronted just this situation in
Hasan v. U.S. Dept. of Labor, 400 F.3d 1001 (7th Cir. 2005). In Hasan, the
inmate plaintiff alleged that the defendants issued a conduct report against
him in retaliation for his filing a grievance. Id. at 2005. The court rejected that
claim, because “the defendants presented uncontradicted evidence that they
punished [the plaintiff] not because he tried to exercise free speech but because
his accusation was a lie; and if as we must assume this was their true motive,
there was no retaliation.” Id. See also, McClain v. Leisure, 192 Fed. Appx. 544,
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550 (7th Cir. 2006) (rejecting the plaintiff’s retaliation claim “because the
prisoner was punished for making false accusations, not for his exercise of a
First Amendment right” (citing Hasan, 400 F.3d at 1005)); Watkins v. Kasper,
599 F.3d 791, 799 (7th Cir. 2010) (citing Smith v. Mosley, 532 F.3d 1270, 1277
(11th Cir. 2008) (concluding that speech found to be false and insubordinate
under a valid prison regulation was unprotected).
In sum, Ludvigson has presented uncontradicted evidence showing that
he issued the conduct report because he believed the plaintiff lied about Olig.
He has shown that he had a non-retaliatory motive for issuing the conduct
report. And even if the issuance of that conduct report might have chilled the
plaintiff’s exercise of his First Amendment rights, Ludvigson’s action, and the
regulation he cited, had a reasonable connection to a legitimate penological
interest. The court will grant summary judgment in favor of Ludvigson.
b.
Westra
The evidence shows that Westra had nothing to do with the decision to
file the conduct report; he presided over the disciplinary hearing, and found the
plaintiff guilty of lying about Olig. The plaintiff has not presented any evidence
that Westra’s decision finding the plaintiff guilty of lying was motivated by a
desire to retaliate against the plaintiff. Westra states that he heard testimony,
watched the video evidence, and determined from that evidence that the
plaintiff lied about Olig kicking the cell door. The plaintiff has not presented
any evidence to rebut this proof of a non-retaliatory motive. The court will
grant summary judgment in favor of Westra.
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c.
Olig
As the court discussed above, one of the things the plaintiff must show to
prove a prima facie case of retaliation is that the defendant deprived him of
something in retaliation for the exercise of the plaintiff’s First Amendment
rights. The plaintiff has not alleged that Olig deprived him of anything as a
result of the plaintiff telling other prison staff that Olig had kicked his door. He
has not presented proof that Olig was involved in writing the conduct report or
in reaching a decision on the conduct report and deciding the appropriate
punishment. Liability under §1983 requires personal involvement, Vance v.
Peters, 97 F.3d 987, 991 (7th Cir. 1996), and there is no evidence Olig was
personally involved with depriving the plaintiff of anything as a result of the
plaintiff’s allegations. Because the plaintiff has not shown that Olig deprived
him of anything, or that Olig was personally involved in issuing or ruling on the
conduct report, the court will grant summary judgment in favor of Olig on the
plaintiff’s retaliation claim.
2. Excessive Force Claim
The Eighth Amendment to the Constitution protects citizens from cruel
and unusual punishment. Where prison officials are accused of using excessive
physical force in violation of 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)).
Courts look at several factors, including the need for the application of the
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force, the amount of force applied, the threat an officer reasonably perceived,
the effort made to temper the severity of the force used, and the extent of the
injury that force caused to an inmate. Fillmore v. Page, 358 F.3d 496, 504 (7th
Cir. 2004) (citing DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000)).
“When prison officials maliciously and sadistically use force to cause
harm, … contemporary standards of decency always are violated” and this is
true “whether or not significant injury is evident.” Wilkins, 559 U.S. at 37
(quoting Hudson, 503 U.S. at 9). However, not “every malevolent touch by a
prison guard gives rise to a federal cause of action.” Id. (quoting Hudson, 503
U.S. at 9). A plaintiff cannot support an excessive force claim when the
defendant used de minimis—a minor or insignificant amount of—force.
Fillmore, 358 F.3d at 504. “Thus, not every push or shove by a prison guard
violates a prisoner’s constitutional rights.” DeWalt, 224 F.3d at 620 (citing
Hudson, 503 U.S. at 9). “Even if an officer’s use of force serves no good-faith
disciplinary purpose, the force may be so ‘de minimus’ that it does not violate
the Eighth Amendment.” Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir.
2009) (citations omitted).
Olig denies that he kicked the plaintiff’s cell door on the day in question.
Ludvigson and Westra viewed the video, and it did not show Olig kicking the
plaintiff’s door. For purposes of summary judgment, however, Olig argues that
even viewing the plaintiff’s claim in the light most favorable to the plaintiff, the
plaintiff’s claim that Olig kicked the door during a one- to two-second “skip” in
the video indicates only de minimus use of force.
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Olig returned to Sanchez’s cell door early on in his medication pass. The
video footage shows Olig standing close to the window in the cell door, pointing
into the cell and speaking to Sanchez. His posture and movements suggest he
was frustrated, at the least. It is not entirely clear, but the court reads the
plaintiff’s briefs, declarations, and other filings to allege that it was during this
first encounter that Olig kicked the door. The plaintiff accurately notes that
there are a couple of moments in this video clip where the video “freezes.” The
third and final clip, when Olig was again standing in front of the plaintiff’s
door, begins with four to five seconds of “frozen” footage. So—there is a factual
dispute over whether, during the “frozen” moments of video, Olig kicked the
plaintiff’s cell door.
The question on summary judgment is whether that factual dispute is
“material.” The court finds that it is not. In order for an officer’s use of force to
be excessive, the quantum of force he uses must be “repugnant to the
conscience of mankind.” Hudson, 503 at 10 (internal quotation and citation
omitted). To survive a motion for summary judgment, the plaintiff must offer
evidence that would allow a jury to infer that the defendant wantonly inflicted
pain on the plaintiff. Whitley v. Albers, 475 U.S. 312, 319 (1986). The plaintiff
cannot meet that burden. Even taking the plaintiff’s version of events as true,
Olig kicked the plaintiff’s door; he did not kick, or hit, or exert force against the
plaintiff himself. The plaintiff has presented no evidence that Olig knew the
plaintiff’s finger was between the door and the door jam. The plaintiff has
presented no evidence that Olig kicked the door knowing the plaintiff’s finger
16
would get pinched or injured in some way. While it may have been inadvisable
for Olig to kick the door (if he did), and unnecessary, it only would constitute
excessive force if Olig did it for the purpose of maliciously causing harm to the
plaintiff.
At best, the plaintiff has alleged that Olig kicked his door in frustration,
and in the process, caused the plaintiff injury. Even viewed in the light most
favorable to the plaintiff, that is an allegation of negligence, not intentional use
of force to harm the plaintiff. Negligence (even gross negligence) does not
constitute a constitutional violation. Rosario v. Brawn, 670 F.3d 816, 821 (7th
Cir. 2012).
Because the plaintiff’s allegations, even if true, do not support his claim
that Olig used excessive force against him, the court will grant summary
judgment in favor of Olig on the excessive force claim.
III.
CONCLUSION
The court DENIES the plaintiff’s motion for summary judgment. Dkt. No.
65.
The court GRANTS the defendants’ motion for summary judgment. Dkt.
No. 70.
The court ORDERS that the case is DISMISSED, and will enter judgment
accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
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See Federal Rule of Appellate Procedure 3, 4. This court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Federal
Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Federal Rule of Civil
Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b) must
be filed within a reasonable time, generally no more than one year after the
entry of the judgment. The court cannot extend this deadline. See Federal Rule
of Civil Procedure 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 21st day of March, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge
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