Jacobs v. Jacquarts

Filing 46

ORDER signed by Judge J.P. Stadtmueller on 10/20/2017: GRANTING 27 Defendant's Motion for Summary Judgment; DENYING 32 Plaintiff's Third Motion to Appoint Counsel; and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Clancy Louis Jacobs at Oshkosh Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CLANCY LOUIS JACOBS,
Plaintiff,
v.

Case No. 16-CV-904-JPS

ORDER

KYLE WAGNER,
Defendant.
1.

INTRODUCTION
Plaintiff Clancy Louis Jacobs (“Jacobs”), a prisoner, brought this

action pursuant to 42 U.S.C. § 1983 against defendant Kyle Wagner
(“Wagner”), a correctional official at Oshkosh Correctional Institution
(“OCI”), for using excessive force against him in violation of his Eighth
Amendment rights. Wagner filed a motion for summary judgment, and the
motion has been fully briefed. (Docket #27-31, #33-40, #41-43). For the
reasons stated below, the Court will grant summary judgment in favor of
Wagner and dismiss this action with prejudice.
2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that 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 Boss v. Castro, 816 F.3d 910, 916 (7th
Cir. 2016). A fact is “material” if it “might affect the outcome of the suit”
under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Id. The
court construes all facts and reasonable inferences in the light most
favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016). The court must not weigh the evidence presented
or determine credibility of witnesses; the Seventh Circuit instructs that “we
leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688,
691 (7th Cir. 2010). The party opposing summary judgment “need not
match the movant witness for witness, nor persuade the court that [his] case
is convincing, [he] need only come forward with appropriate evidence
demonstrating that there is a pending dispute of material fact.” Waldridge
v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).
3.

RELEVANT FACTS1
Jacobs is an inmate in the custody of the Wisconsin Department of

Corrections. At all times relevant to this lawsuit, Jacobs was incarcerated at
OCI and Wagner was a correctional officer at OCI.
The focal point of this lawsuit arose from a brief encounter between
Jacobs and Wagner on December 30, 2015. That evening, Jacobs was in a
dayroom, or common area, of his housing unit at OCI, seated on chair near
a table with his feet propped up on another chair, chatting with two other
inmates. Wagner entered the dayroom and walked in Jacobs’ direction. As
he turned to walk around the table where Jacobs was seated, Wagner
looked the other way and, as he did, his foot made contact with the chair
on which Jacobs’ feet were resting. The chair slid away and Jacobs’ feet fell
to the floor. According to Jacobs, when his legs fell, his heel hit the ground,

Unless otherwise noted, the facts stated herein are taken from the parties’
proposed findings of fact and responses thereto. (Docket #29, #33, #34, #42, #43).
1

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causing his knee to bend backward. He says this was painful, and though
he did not initially think the injury was very serious, his knee swelled up
after the incident and he continues to suffer from considerable pain. Jacobs
believes Wagner’s action was an “intentional wanton infliction of pain.”
(Docket #34 at 2).
Wagner immediately replaced the chair under the table where Jacobs
and the two other inmates were seated, placed his hands on the back of the
chair, and engaged in a brief conversation with Jacobs. Wagner then left the
dayroom and Jacobs continued in conversation with his two follow inmates
at the table. About nine minutes went by, after which time Jacobs got up to
retrieve ice for his knee. Jacobs returned to the table a few minutes later and
remained in the dayroom for several more hours. He played chess with
fellow inmates and engaged in laughter and conversation.
On January 3, 2016, Jacobs reported his alleged knee injury to a nurse
who examined his knee and did not observe any swelling. The nurse
reported that she observed Jacobs walk with a limp as he left the health
services unit, but that the limping stopped as Jacobs walked down the
sidewalk to his housing unit.
Surveillance video from OCI captured the events of December 30,
2015. (Docket #30-1). The video confirms that as Wagner passed by Jacobs’
table in the dayroom, his foot hit the leg of the chair on which Jacobs’ feet
rested, causing the chair to slide out from under Jacobs’ feet. It is unclear
from the video whether Wagner’s action was accidental or if it was
intentional horseplay. In any event, the video shows that, following the
incident, Jacobs continued to engage in conversation and laughter with his
fellow inmates. As he got up and walked out of the room for a couple
minutes, he did not limp. When he returned to the room and for the
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remainder of the evening, Jacobs did not exhibit any signs or symptoms of
injury or distress.
4.

ANALYSIS
Jacobs raises an Eighth Amendment claim for excessive force, and

Wagner opposes it by arguing, first, that his use of force was de minimis and,
second, that he is entitled to qualified immunity. The Court begins with the
merits of Jacobs’ Eighth Amendment claim.
The Eighth Amendment prohibits the “unnecessary and wanton
infliction of pain” on prisoners. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th
Cir. 2001). When an official is accused of using excessive force, the core
inquiry is “whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.” Hudson v.
McMillian, 503 U.S. 1, 7 (1992); Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d
650, 668 (7th Cir. 2012). Several factors are relevant to this determination,
including the need for force, the amount applied, the threat an officer
reasonably perceived, the effort made to temper the severity of the force
used, and the extent of the injury caused to the prisoner. Hudson, 503 U.S.
at 7; Caffey v. Maue, 679 F. App’x 487, 491 (7th Cir. 2017).
But even when an officer’s use of force serves no good-faith
disciplinary purpose, the force may be so minor, or de minimis, that it does
not violate the Eighth Amendment. Hudson, 503 U.S. at 9–10 (“The Eighth
Amendment’s prohibition of cruel and unusual punishments necessarily
excludes from constitutional recognition de minimis uses of physical force,
provided that the use of force is not of a sort repugnant to the conscience of
mankind.”) (quotation and internal marks omitted). “[N]ot every push or
shove by a prison guard violates a prisoner’s constitutional rights.” DeWalt
v. Carter, 224 F.3d 607, 620 (7th Cir. 2000). This is particularly true when the
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use of force “was a single and isolated act, unaccompanied by further uses
of force.” Id.
The force Wagner applied was de minimis. The instant lawsuit grew
from the single incident of Wagner causing a chair to slide out from under
Jacobs’ feet such that Jacobs’ feet fell to the floor. To be sure, this is a use of
force. But no reasonable factfinder could conclude that Wagner’s use of
force was of the type that is “repugnant to the conscience of mankind.”
Hudson, 503 U.S. at 10. Wagner’s act of kicking a chair out from under
Jacobs’ elevated feet, even if intentional, does not amount to a constitutional
violation. Compare DeWalt v. Carter, 224 F.3d 607, 620-21 (7th Cir. 2000)
(shoving an inmate into a door frame causing bruising characterized as de
minimis) and Lunsford v. Bennett, 17 F.3d 1574, 1582 (7th Cir. 1994) (pouring
bucket of water on inmate and causing the bucket to hit him in the head
characterized as de minimis), with Thomas v. Stalter, 20 F.3d 298, 301–02 (7th
Cir. 1994) (punching inmate with a closed fist, while held down by other
officers, qualified as more than de minimis).
Critical to this analysis and the Court’s conclusion is the surveillance
video of the incident. This video provides the definitive source for the facts
notwithstanding the favorable standard of review for Jacobs. Scott v. Harris,
550 U.S. 372, 378–81 (2007). In Scott, the Supreme Court found that despite
having to draw reasonable inferences in favor of the non-movant on
summary judgment, the court was not constrained to believe the nonmovant’s version of events when a videotape existed that “utterly
discredited” it. Id. The Court observed that “[w]hen opposing parties tell
two different stories, one of which is blatantly contradicted by the record,
so that no reasonable jury could believe it, a court should not adopt that

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version of the facts for purposes of ruling on a motion for summary
judgment.” Id.
Such is the case here, as no reasonable jury could believe Jacobs’
characterization of Wagner’s use of force in light of the videotape. The
surveillance video shows that Wagner’s foot collided with the chair on
which Jacobs rested his feet, and that Jacobs’ feet fell a very short distance
to the floor. Jacobs did not exhibit immediate signs of pain or anger.
Although he says that he got up to retrieve ice for his knee several minutes
later, the video shows that he returned to the dayroom where he remained
for several more hours, laughing and playing chess. Put simply, Jacobs’
assertion that Wagner’s act was an “intentional wanton infliction of pain,”
(Docket #34 at 2), is contradicted by actual footage of the event.
Because the use of force about which Jacobs complains was de
minimis, the Court is constrained to grant judgment in Wagner’s favor and
dismiss Jacobs’ claim. The Court need not consider Wagner’s qualified
immunity defense.2
5.

CONCLUSION
The Court finds that Jacobs has failed to proffer evidence raising

triable issues of fact as to his Eighth Amendment claim. Rather, on the
undisputed facts and evidence in the record, the Court must grant Wagner
judgment as a matter of law and dismiss this action.

One final matter for this Court is a motion to appoint counsel filed by
Jacobs during the pendency of Wager’s summary judgment motion. (Docket #32).
Jacobs asked for the appointment of counsel twice previously in this case, see
(Docket #6, #22), and the Court denied both requests because the defendant has
proven capable of litigating this case on his own. Nothing has changed since
Jacobs’ first two motions for the appointment of counsel, and the Court will
therefore deny his third.
2

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Accordingly,
IT IS ORDERED that defendant Kyle Wagner’s motion for
summary judgment (Docket #27) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that plaintiff Clancy Louis Jacobs’ third
motion for the appointment of counsel (Docket #32) be and the same is
hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 20th day of October, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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