Bergeron Davila v. Teeling et al

Filing 170

ORDER signed by Judge J.P. Stadtmueller on 9/25/2018. 140 and 143 Plaintiff's Motions for leave to file sur-replies are DENIED. 144 and 145 Plaintiff's Motions related to summary judgment evidence are DENIED. 128 , 132 , [13 9], 148 and 152 Parties' Motions related to the exhaustion of remedies defense are DENIED as moot. 169 Plaintiff's Motion for Sanctions is DENIED. 129 and 168 Plaintiff's Motions to Appoint Counsel are DENIED. [10 6] Defendant Gregory Bucholtz's Motion for Summary Judgment is GRANTED. 110 Defendants Barbara A. Teeling, Brad Friend, Melissa Moran, Anthony Lacombe, Robert A. Mastronardi, Steven M. Clope, and Nicole L. Petersen's Motion for Summary Judgment is GRANTED. Case is DISMISSED with prejudice. See Order. (cc: all counsel, via mail to Raymond J. Bergeron Davila at Green Bay Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RAYMOND J. BERGERON DAVILA,
Plaintiff,
v.
BARBARA A. TEELING, BRAD
FRIEND, MELISSA MORAN,
ANTHONY LACOMBE, GREGORY
BUCHOLTZ, ROBERT A.
MASTRONARDI, STEVEN M.
CLOPE, and NICOLE L. PETERSEN,

Case No. 17-CV-337-JPS

ORDER

Defendants.
1.

INTRODUCTION
On May 23, 2017, the Court screened Plaintiff’s complaint. (Docket

#11). The complaint alleges that Plaintiff was mistreated in various ways
while he was incarcerated at the Racine County Jail (the “Jail”). Plaintiff was
allowed to proceed on four claims. The first two, for cruel and unusual
punishment and conducting an unreasonable search, arose from a body
cavity search conducted on Plaintiff. Id. at 3–5. The other two claims, for
deliberate indifference to Plaintiff’s self-harming activities and intentional
discrimination against him, stemmed from Plaintiff biting the inside of his
mouth while in a restraint chair. Id. at 5–8. Plaintiff was later given leave to
amend his complaint to name a few new defendants, but his claims did not
change. (Docket #28).
On February 20, 2018, Defendant Gregory Bucholtz (“Bucholtz”), a
Wisconsin Department of Corrections jail inspector, filed a motion for
summary judgment. (Docket #106). The remaining defendants, various

employees of the Jail (“Defendants”), filed their own summary judgment
motion two days later. (Docket #110). Plaintiff responded only to
Defendants’ motion. (Docket #122) (Plaintiff’s response brief directed only
at Defendants, making no mention of Bucholtz); (Docket #125) (Plaintiff’s
response to Defendants’ statements of fact). Bucholtz’s motion thus stands
unopposed and it will be granted on that basis. Civ. L. R. 7(d); Hill v.
Thalacker, 210 F. App’x 513, 515 (7th Cir. 2006) (noting that district courts
have discretion to enforce procedural rules against pro se litigants). The
Court is left to address only Defendants’ motion. For the reasons explained
below, it must be granted.1
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.

Plaintiff has filed multiple motions for leave to submit sur-replies to
Defendants’ summary judgment motion. (Docket #140 and #143). Those motions
will be denied. The Court expects that litigants will comply with the rules of
procedure and provide all of their arguments within the constraints of the briefing
permitted by those rules. Indeed, Plaintiff filed a substantially overlong response
brief without asking for leave to do so. (Docket #122) (49-page response brief); Civ.
L. R. 56(b)(8)(A) (principal briefs are limited to 30 pages). The Court could have
struck the brief but, in light of Plaintiff’s pro se status and the fact that his brief is
handwritten, it chose to show leniency. The Court sees no reason to extend that
generosity to allow further excess briefing. The same is true for other various
motions by Plaintiff related to the evidence the parties submitted with their
summary judgment materials. (Docket #144 and #145) Each is a meaningless
distraction from the merits of the summary judgment motion and will likewise be
denied.
1

Page 2 of 25

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).
3.

RELEVANT FACTS
The following facts are material to the disposition of Defendants’

motion. They are drawn from the parties’ factual briefing, (Docket #111 and
#125), unless otherwise noted. The Court will discuss the parties’ principal
factual disputes as appropriate. The Court notes that it has otherwise
disregarded as improperly presented many of Plaintiff’s attempted
disputes of Defendants’ proposed facts.2
For example, Defendants assert that the Jail has a suicide prevention
policy that is used when dealing with a suicidal inmate. (Docket #111 ¶ 23).
Plaintiff says he disputes that fact because Defendants did not physically intervene
to stop his biting activity on June 16, 2016. (Docket #125 ¶ 23). As support for his
dispute, Plaintiff cites only to his own affidavit wherein he describes the incident.
(Docket #124 ¶ 27). Nowhere in his response to Defendants’ statement of facts or
his affidavit does Plaintiff indicate which provision of the 22-page suicide
prevention policy was not followed during this incident. The Court cannot
construct arguments on litigants’ behalf, even when they proceed pro se. Anderson
v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001). The Court must, therefore, disregard
this attempted dispute. For brevity’s sake, the Court will not engage in a similar
discussion for each of Plaintiff’s many improper attempted disputes of fact, unless
the attempted dispute is material to the Court’s analysis.
2

Relatedly, after the summary judgment briefing had concluded, Plaintiff
filed a rambling motion seeking to clarify or correct certain aspects of his briefing.
(Docket #129). Plaintiff states that he has various mental illnesses and takes various
medications which impede his ability to concentrate. Id. He asks that the Court
appoint him counsel to “fix” his filings. Id. The Court has already denied a prior
motion for appointment of counsel. (Docket #53). To the extent the instant motion
seeks to renew that request, it must be denied. As the Court explained to Plaintiff
many months ago, appointment of counsel may be made if 1) he has made
reasonable attempts to secure counsel himself, and 2) the case exceeds his capacity
to present it. Id. at 1; Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007). Plaintiff does

Page 3 of 25

3.1

Background

The Jail employs a suicide prevention policy to deal with suicidal
inmates. Once an inmate has been identified and assessed as a possible
suicide risk, steps are taken to protect the inmate from self-harm. Jail staff
members remain alert for indications of possible suicide risk including, but
not limited to, talk of suicide or actual physical harm or attempts to harm
oneself. Though the policy provides that officers will make an incident
report following any suicide attempt, Plaintiff notes that many of the
officers involved in his June 16, 2016 biting incident did not write such a
report.
An inmate who has been placed on suicide watch status may only be
removed from such status by the recommendation of mental health staff.
Inmates may be further classified as “suicide close watch” (“SCW”), which
involves additional suicide prevention measures. These include putting the
inmate in a suicide gown and removing all personal items from their cell,
not satisfy either element. As to the first, he makes no mention of any attempts to
retain counsel on his own. As to the second, while Plaintiff’s submissions are not
the picture of clarity, the Court has largely been able to understand his positions
and locate relevant evidence within his submissions. Plaintiff suggests that various
medications and medical diagnoses have interfered with his ability to litigate.
Plaintiff fails, however, to present any medical evidence supporting these
statements. In any event, Plaintiff’s submissions demonstrate a firm grasp of his
claims and the evidence underlying them. Plaintiff’s motion for appointment of
counsel will, therefore, be denied.
Finally, Plaintiff filed yet another request for appointed counsel on August
29, 2018, claiming that he needs a lawyer to help him obtain medical records from
the hospital where the cavity search occurred. (Docket #168). Plaintiff further
suggests that he needs expert medical testimony to evaluate the x-rays that were
taken of him at that time. Id. The motion will be denied. It comes far too late;
discovery in this case closed long ago and the parties’ summary judgment motions
were fully briefed months ago. If Plaintiff had concerns about his submissions,
they needed to be raised during the discovery period or at time the motions were
being briefed.

Page 4 of 25

save for a suicide-proof blanket and mattress. SCW inmates are monitored
by officers at least every fifteen minutes, who then note the inmate’s status
in the inmate’s activity log.
Plaintiff has a lengthy history of disruptive and self-harming
behavior while at the Jail. This includes spitting blood, threatening staff
with harm and occasionally attacking them, damaging Jail property, and
escaping various forms of restraints. Plaintiff has also threatened Jail staff
with future lawsuits. In one instance, officers confronted Plaintiff about
scratching himself with a metal object and determined that he should be
placed in the restraint chair. As they transported him there, Plaintiff said
“[g]et ready for the lawsuit I am stealing all your money bitch.” See, e.g.,
(Docket #114-2).3 From August 2015 to June 2016, Plaintiff engaged in
hundreds of self-harming incidents requiring at least ten hospital visits.
Plaintiff was, unsurprisingly, placed on SCW status at the Jail. In
light of his particular problems, the Jail employed additional procedures for

Plaintiff says he disputes Defendants’ characterization of his behavioral
history, but he cites no evidence in support. (Docket #125 ¶ 35). Instead, he says
that “[P]laintiff has a right to counsel in the face of criminal allegations and also
exercises his right to remain silence [sic] until appointed counsel regarding [the
allegations].” Id. Assuming this is an invocation of the right to avoid selfincrimination under the Fifth Amendment, it fails to genuinely dispute the matter
for two reasons. First, there is no evidence that Plaintiff’s assertion of the right is
proper. To invoke one’s right to silence in a civil case, “the answer one would give
if one did answer it (and answer it truthfully) must have some tendency to subject
the person being asked the question to criminal liability.” In re High Fructose Corn
Syrup Antitrust Litig., 295 F.3d 651, 663–64 (7th Cir. 2002). There is nothing to
suggest that Plaintiff’s behavior, while disruptive and manipulative, would
subject him to criminal consequences. Second, asserting the right does not help
Plaintiff here. A court may apply a negative inference against a person invoking
the Fifth Amendment as to the subject matter about which they refused to answer.
Evans v. City of Chi., 513 F.3d 735, 740–41 (7th Cir. 2008). The Court sees no reason
not to apply such an inference here.
3

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Plaintiff alone. This included stricter movement controls and, eventually,
round-the-clock one-on-one monitoring. Plaintiff’s cell was also modified
to reduce the possibility that he could obtain implements therein to
facilitate self-harm.
3.2

June 9, 2016 Cavity Search

On June 8, 2016, an officer noticed Plaintiff cutting his arm with
something while in his cell. Though he was asked to stop, Plaintiff turned
away from the guard and continued. Additional officers and Defendant
Brad Friend (“Friend”), a supervisor, responded to the scene. An officer saw
Plaintiff put an object in his mouth before Friend and the others could enter
Plaintiff’s cell and secure him. As they spoke with Plaintiff, the officers
could tell that something was in his mouth.
Friend asked Plaintiff to spit the item out. When Plaintiff initially
refused, Friend said that he would obtain a warrant to conduct a body
cavity search. Plaintiff says that he then spit the item out. This assertion is
based on his own testimony and the fact that no contraband was recovered
from the search performed the next day. Defendants maintain that he did
not spit out the object. Plaintiff was placed in the Jail’s emergency restraint
chair (“ERC”) for his safety and security.
Friend then prepared an affidavit in support of a request for a search
warrant. The affidavit recounts various incidents where Plaintiff harmed
himself using small objects and threatened to hurt others. Friend noted that
during the incident earlier that day, Plaintiff stated that he had metal objects
in his mouth and underneath his skin, and that he intended to use them to
hurt himself. Plaintiff reiterates that he gave up his contraband, and thus
Friend had lied in the affidavit when he claimed that Plaintiff had
contraband and presented a danger to himself and Jail security. Based on
Page 6 of 25

Friend’s affidavit, a Racine County Circuit Court judge found probable
cause for the search. A warrant for the search was issued later that day. The
warrant commanded that an x-ray and cavity search be performed by
medical personnel.
Plaintiff was taken to the hospital the next morning. Plaintiff was
escorted by two officers and Defendant Anthony LaCombe (“LaCombe”),
another Jail supervisor. LaCombe says that he went along only to document
the incident, but Plaintiff claims that he did much more. According to
Plaintiff, LaCombe told the medical staff that he had items hidden in his
rectum. Plaintiff asserts that he told everyone—the officers, LaCombe, and
the medical staff—that he had no contraband. Defendants counter that
Plaintiff was given ample time to review the warrant and had no questions
about it.
Medical staff proceeded to conduct the search. They first x-rayed
Plaintiff. Plaintiff claims that the x-ray was negative for contraband, but that
LaCombe nevertheless instructed medical staff to continue with a cavity
search. Plaintiff further states that, prior to the cavity search being
performed, LaCombe made comments to him about the search suggesting
that it was intended to humiliate him rather than discover contraband. See
(Docket #124 ¶ 44). LaCombe denies giving any direction to medical staff
on how to execute the warrant. The cavity search was conducted by a doctor
and likewise did not turn up any contraband. Plaintiff and the officers
returned to the Jail.
3.3

June 16, 2016 Self-Harm Incident

Early in the morning on June 16, 2016, an officer observed Plaintiff
kneeling on the floor of his cell. Due to Plaintiff’s behavioral history, the
officer believed that he was harming himself or seeking objects with which
Page 7 of 25

to do so. The officer called for help and moved in closer to Plaintiff’s cell.
He saw Plaintiff digging into his forearm with a small metal object. Plaintiff
was ordered to stop but ignored the command. Plaintiff cut off a piece of
skin and put it on the plexiglass cell window. Plaintiff was also seen with
another hard object, apparently pencil lead.
A number of other officers, including Defendants Robert A.
Mastronardi (“Mastronardi”) and Melissa Moran (“Moran”), moved in to
help control Plaintiff. Plaintiff put the objects in his mouth. He complied
with the officers’ request to lay on his bunk, but refused to give up the items
from his mouth. A spit mask was placed over Plaintiff’s mouth and medical
staff arrived to treat his forearm cut. Plaintiff made a number of statements
indicating his intention to continue his self-harming behavior that day.
Prior to the other officers’ arrival, Plaintiff said that “this was suppose [sic]
to be the big bang today,” which he later explained meant that he wanted
to cut his arm such that it would bleed profusely. See (Docket #114-2 at 220–
22).
For Plaintiff’s safety and security, he was taken to the ERC. The ERC
was placed in one of the Jail’s observation cells in the intake area. Plaintiff
physically resisted being strapped into the chair but was eventually
secured. Medical personnel checked Plaintiff’s vital signs and the tightness
of his straps. Defendant Steven M. Clope (“Clope”), another Jail officer,
conducted regular SCW checks on Plaintiff approximately every fifteen
minutes. Medical staff also observed Plaintiff’s condition regularly, about
every hour from 8:00 a.m. until 3:00 p.m.
Beginning at about noon, Plaintiff was observed biting his lip and
cheeks. The spit mask had apparently been removed, as Plaintiff proceeded
to spit blood all over the cell. Officers entered the cell to assess Plaintiff and
Page 8 of 25

asked to see the inside of his mouth. He opened his mouth to reveal a small
puncture wound on his cheek. Defendants state that Clope was the only
defendant involved at this stage. Plaintiff avers that Moran, Mastronardi,
and Defendants Barbara A. Teeling (“Teeling”) and Nicole L. Petersen
(“Petersen”) were all in the intake area, observed Plaintiff’s behavior, and
could have intervened to stop it.
A nurse was called to perform a medical assessment. The nurse
concluded

that

Plaintiff’s

self-inflicted

injuries

did

not

require

hospitalization. Friend was advised of the situation at about 2:30 p.m.
Friend attempted to talk to Plaintiff, but Plaintiff continued to bite himself.
Medical staff tried to evaluate Plaintiff again at around 2:40 p.m., but he
would not open his mouth. After Plaintiff’s refusal, they informed the
security staff that Plaintiff should be taken to the hospital.4
Officers transported Plaintiff to a local hospital at approximately 3:00
p.m. The hospital’s medical staff cleaned off the dried blood from Plaintiff’s
body. As discussed further below, the parties dispute the extent of
Plaintiff’s injuries. Plaintiff says he bit off a portion of his lip. The physician
assistant who evaluated Plaintiff, Daniel Teska (“Teska”), noted only mild
abrasions on the inside of his cheek. Plaintiff’s injuries did not require
stitches; Teska said they would heal on their own. Plaintiff was cleared to
return to the Jail.

Plaintiff attempts to dispute whether he refused to be seen by the medical
staff at this time. (Docket #125 ¶ 64). The evidence he cites does not support his
dispute. His affidavit testimony suggests that the security staff ignored him but
says nothing about his interactions with the medical staff. (Docket #124 ¶ 27).
Medical records, as well as an incident report prepared by Clope, confirms
Plaintiff’s intransigence with medical personnel. (Docket #114-8 at 26–28; Docket
#114-2 at 232).
4

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4.

ANALYSIS
As noted above, Plaintiff proceeds on four claims. The first two stem

from the June 9, 2016 body cavity search. The next two claims relate to the
biting episode of June 16, 2016. The Court will begin by addressing the first
two claims together, and then the third and fourth claims in turn.5
4.1

June 9, 2016 – Cruel and Unusual Punishment and
Unreasonable Search

Plaintiff brings two claims with respect to the June 9 cavity search,
for which he holds both Friend and LaCombe responsible. First, Plaintiff
alleges that the cavity search was unreasonable, and thus violated his rights
under the Fourth Amendment. Second, Plaintiff maintains that the search
was motivated solely by a desire to harass and humiliate him, in violation
of his right to be free of cruel and unusual punishment under the Eighth
Amendment.

The Prison Litigation Reform Act requires that inmates exhaust their
administrative remedies within a prison system before they may bring a claim to
court. 42 U.S.C. § 1997e(a). This is an affirmative defense to be pleaded and proven
by a defendant. Pavey v. Conley, 544 F.3d 739, 740-41 (7th Cir. 2008). Defendants
originally asserted that Plaintiff failed to exhaust his administrative remedies as to
all of his claims. (Docket #112 at 13–15). After the parties traded a seemingly
unending series of motions, counter-motions, memoranda, and exhibits,
Defendants agreed to withdraw their assertion of the exhaustion defense. (Docket
#165). Each of those exhaustion-related motions will be denied as moot. (Docket
#128, #132, #139, #148, and #152).
5

Long after these motions were exchanged and Defendants withdrew their
exhaustion defense, Plaintiff filed a motion for sanctions, suggesting that
Defendants pursued the defense knowing it was bogus. (Docket #169). The motion
will be denied. The parties simply disagree as to whether Plaintiff exhausted his
remedies. Nothing in Defendants’ submissions suggests that they presented the
defense in bad faith. Defendants appear to have withdrawn the exhaustion
defense because they did not want to bear the expense of a hearing on the matter.
See (Docket #162).

Page 10 of 25

The Court begins with the Fourth Amendment claim. The Fourth
Amendment protects persons from unreasonable searches. U.S. Const.
amend. IV. Searches done pursuant to warrants are presumptively
reasonable. Archer v. Chisholm, 870 F.3d 603, 613–14 (7th Cir. 2017). As
described above, Plaintiff’s case deals with a warrant-based search. Even
warranted searches may run afoul of the Fourth Amendment, however.
There are two facets of reasonableness to consider in warrant cases.
First is the issuance of the warrant. Guzman v. City of Chi., 565 F.3d 393, 396
(7th Cir. 2009). A warrant is only valid if it is supported by probable cause
and describes with particularity the things to be searched. Id. Warrants
must generally be issued by a neutral magistrate. Id. Once armed with a
valid warrant, government officials must properly execute it. Id. at 397.
Officials may not go beyond the bounds determined by a warrant or
execute one which they know is ambiguous. Id.; Jones v. Wilhelm, 425 F.3d
455, 462–63 (7th Cir. 2005).
As relevant to Plaintiff, a prisoner’s right to be free of invasive
searches “is significantly lessened by punitive purposes of prison and the
very real threats to safety and security of prisoners, correctional staff, and
visitors.” King v. McCarty, 781 F.3d 889, 900 (7th Cir. 2015). Nevertheless,
“the Fourth Amendment protects, to some degree, prisoners’ bodily
integrity against unreasonable intrusions into their bodies.” Id. (emphasis
in original). In assessing whether a cavity search is reasonable, courts
consider the scope of the intrusion, the manner in which it was conducted,
the justification for the intrusion, and the place where it was conducted. Bell
v. Wolfish, 441 U.S. 520, 559 (1979). Courts must also “give considerable
deference to judgments of prison officials about matters of institutional

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safety and security,” though “the deference is not complete.” King, 781 F.3d
at 899.
Evaluated against all of these standards, the cavity search did not
offend the Fourth Amendment. Preliminarily, Plaintiff’s right to privacy
was largely trumped by the Jail’s security and safety interests. The Court
must also defer to the Jail’s approach to such matters, as its staff, not the
Court, are the experts in correctional activity. Mindful of these issues, which
lessen the already low probable cause requirement, the Court concludes
that the warrant was validly issued. Friend’s application recounted
Plaintiff’s safety and security threats. It noted that Plaintiff not only had
objects in his mouth, but also under his skin. The warrant was issued by a
Racine County Circuit Court judge, who agreed that probable cause existed
for the search, and directed that medical personnel perform both an x-ray
and cavity search.
The warrant was also appropriately executed. Plaintiff was
transported to the hospital, where both the x-ray and cavity searches were
conducted by medical staff. Considering the Bell factors, while the search
was certainly invasive, it was animated by safety and security concerns, and
was completed in as comfortable and neutral an environment as possible.
In sum, the cavity search was the result of a valid, reasonably executed
warrant. It did not, therefore, violate the Fourth Amendment. See Rodriques
v. Furtado, 950 F.2d 805, 809–11 (1st Cir. 1991) (as a general matter, “a
manual body cavity search conducted by a licensed physician, in a private
and hygienic setting and medically approved manner, pursuant to a
warrant issued on probable cause” in not unreasonable); Everett v. Witcher,
65 F. App’x 153, 154 (9th Cir. 2003) (similar, further holding that the search
did not violate either the Fourth or Eighth Amendments); Spencer v. Roche,
Page 12 of 25

659 F.3d 142, 148 (1st Cir. 2011) (a prior negative manual cavity search does
not dispel probable cause for a more complete x-ray search); but see United
States v. Booker, 728 F.3d 535, 545–547 (6th Cir. 2013) (manual rectal
examination done without a warrant, and after the plaintiff had to be
sedated and intubated without consent his, was unreasonable).
Plaintiff offers various contrary assertions on this issue, none of
which change the result. Plaintiff maintains that he spit out the contraband
he had hidden in his mouth, eliminating the basis for the search. For two
reasons, no reasonable jury could find that he did so. First, the assertion is
based solely Plaintiff’s affidavit testimony, which is contradicted by every
other piece of evidence, including the incident reports by non-defendant
officers. It is beyond belief that Defendants would continue to pursue the
warrant and search if Plaintiff had given up the contraband at the outset.
More importantly, Plaintiff’s contention that he spit out the
contraband is entirely new at this point in this case. It was never even
suggested, much less expressly alleged, in either of his lengthy, detailed,
and verified complaints. (Docket #1 at 7–14, 21–26; Docket #29 at 7–13, 20–
25). Rather, the entirety of his claim had, to date, been based on the fact that
the x-ray was “negative,” which Plaintiff believes meant he was free of
contraband. See, e.g., (Docket #1 at 25) (“[P]laintiff alleges Defendant
Friend’s search warrant lacked probable cause the moment hospital staff
medically cleared that Plaintiff was free of contraband and by x-ray
imaging and no more probable cause existed to continue, thus, any further
of a search would be illegal at that point[.]”).
This glaring difference between Plaintiff’s prior and current
positions evokes the sham affidavit rule. That rule prohibits litigants from
manufacturing issues of fact with affidavits that contradict their prior
Page 13 of 25

sworn testimony. Janky v. Lake Cnty. Convention & Visitors Bureau, 576 F.3d
356, 362 (7th Cir. 2009). Otherwise, the ability of a court on summary
judgment to “weed out unfounded claims, specious denials, and sham
defenses—would be severely undercut.” Bank of Ill. v. Allied Signal Safety
Restraint Sys., 75 F.3d 1162, 1168–69 (7th Cir. 1996). While not directly
contradictory, it is clear that the difference is not due to a simple lapse in
memory between time the complaint and the present affidavit were drafted.
Rather, Plaintiff’s extensive and meticulous filings, combined with his legal
savvy, as shown by both his litigation experience and his manipulative
threats of lawsuits, leads to one conclusion—Plaintiff contrived the
surrender of the contraband in preparing his opposition to summary
judgment. No reasonable jury could infer otherwise.
Plaintiff further states that because no contraband was found, the
warrant and resultant searches must be considered invalid. This is
incorrect. Searches regularly fail to turn up evidence and yet do not violate
the Constitution. Rather, the only relevant inquiry is whether the search
was properly supported before it was executed. As discussed above, the
search was authorized by a valid warrant. The lack of results is immaterial.
In the same vein, Plaintiff contends that the “negative” x-ray proves
that the subsequent cavity search should not have been performed. Plaintiff
has not, however, produced any evidence of what the x-ray showed or why
it was considered “negative.” Plaintiff’s belief, in turn, implicates
LaCombe’s alleged malicious statements, which Plaintiff says prompted
medical personnel to continue with the cavity search. Again, however, he
lacks evidence to support his theory. Plaintiff testifies that medical
personnel “cleared Plaintiff from contraband announcing negative x-rays.”
(Docket #125 ¶ 52). What the medical staff told him is hearsay. Fed. R. Evid.
Page 14 of 25

801(c). Plaintiff has not produced the x-rays themselves or the medical
records reflecting the interpretation of the x-rays. Finally, the overarching
problem for Plaintiff is that the search warrant demanded both an x-ray and
a body cavity search. Neither LaCombe nor the medical staff went beyond
what the warrant permitted. Plaintiff’s Fourth Amendment rights were not
infringed.
The Court now turns to the Eighth Amendment claim. As noted
above, the Court permitted Plaintiff to proceed on a claim of cruel and
unusual punishment with respect to the cavity search. (Docket #11 at 4–5;
Docket #28 at 1). In their summary judgment briefing, the parties have
characterized the claim as one of excessive force. (Docket #112 at 1; Docket
#122 at 1). The excessive force analysis is not a good fit for this scenario;
Plaintiff was not being unruly, and no officers applied any force to him. The
Court will, therefore, analyze the claim as it was screened: as one of alleged
cruel and unusual punishment.6
As previously noted, prisoners’ rights to privacy and to be free of
government searches are drastically lessened compared to those of regular
citizens. A strip or cavity search of a prisoner can nevertheless constitute
cruel and unusual punishment when it is done “by a desire to harass or
humiliate rather than by a legitimate justification, such as the need for order
and security in prisons.” King, 781 F.3d at 897. King further explains:

The Court may have been the source of the parties’ confusion. The
screening order initially analyzes the claim as one of cruel and unusual
punishment. (Docket #11 at 4–5). However, in recounting the various claims upon
which Plaintiff could proceed, the Court said that the claim was for “[e]xcessive
force in causing the cavity search to be performed, in violation of the Eighth
Amendment.” Id. at 8. Despite the Court’s typographical error, the screening
order’s analysis must control.
6

Page 15 of 25

Even where prison authorities are able to identify a
valid correctional justification for the search, it may still
violate the Eighth Amendment if conducted in a harassing
manner intended to humiliate and cause psychological pain.
In short, where there is no legitimate reason for the
challenged strip-search or the manner in which it was
conducted, the search may involve the unnecessary and
wanton infliction of pain in violation of the Eighth
Amendment.
Id. (citation and quotations omitted).
For many of the same reasons discussed above, Plaintiff has not
adduced evidence sufficient to create a triable issue on whether the cavity
search violated the Eighth Amendment. Defendants had a clear penological
justification for the search. The warrant, approved by a neutral judge,
further solidified the appropriateness of the search. Plaintiff says that
Friend and LaCombe’s only motivation was to humiliate him, and taken as
true, LaCombe’s comments at the hospital are deplorable. However, the
harassing nature of the search is not borne out in the record. The search was
done in accordance with the warrant’s instructions and was carried out
solely by medical personnel, in the privacy of a hospital room. While
certainly uncomfortable and intrusive, no reasonable jury could find that
the cavity search served no legitimate purpose.
4.2

June 16, 2016 – Fourteenth Amendment Due Process

When the Court screened Plaintiff’s complaint, it allowed him to
proceed on an Eighth Amendment claim for deliberate indifference to his
serious medical needs in relation to the June 16 incident. This was not quite
accurate. Convicted prisoners’ access to medical care is protected by the
Eighth Amendment. However, as of June 2016, Plaintiff was merely a
pretrial detainee. Thus, his right to medical care arose through the

Page 16 of 25

Fourteenth Amendment Due Process Clause, rather than the Eighth
Amendment. At the time of screening, this was a distinction without
difference; courts applied the same standards to a claim about inadequate
medical care, regardless of the underlying constitutional basis. Whiting v.
Marathon Cnty. Sheriff’s Dep’t, 382 F.3d 700, 703 (7th Cir. 2004).
Just last month, the Seventh Circuit held that based on the Supreme
Court’s 2015 Kingsley decision, this was no longer appropriate. Miranda v.
Cnty. of Lake, No. 17-1603, 2018 WL 3796482 (7th Cir. Aug. 10, 2018); Kingsley
v. Hendrickson, 135 S. Ct. 2466 (2015). Convicted prisoners are properly
subject to punishment. The Eighth Amendment proscribes only
punishment of a “cruel and unusual” variety. That standard is quite
difficult for plaintiffs to meet. Miranda, 2018 WL 3796482, at *9. Miranda
explains that
[p]retrial detainees stand in a different position: they have not
been convicted of anything, and they are still entitled to the
constitutional presumption of innocence. Thus, the
punishment model is inappropriate for them.
...
That said, we have typically assessed pretrial
detainees’ medical care (and other) claims under the Eighth
Amendment's standards, reasoning that pretrial detainees are
entitled to at least that much protection. In conducting this
borrowing exercise, we have grafted the Eighth
Amendment’s deliberate indifference requirement onto the
pretrial detainee situation. Missing from this picture has been
any attention to the difference that exists between the Eighth
and the Fourteenth Amendment standards.
The Supreme Court recently disapproved the
uncritical extension of Eighth Amendment jurisprudence to
the pretrial setting in Kingsley v. Hendrickson, ––– U.S. ––––,
135 S.Ct. 2466, 192 L.Ed.2d 416 (2015). There the Court held
that a pretrial detainee bringing an excessive-force claim did
not need to prove that the defendant was subjectively aware
Page 17 of 25

that the amount of force being used was unreasonable. Id. at
2472–73. Rather, the plaintiff needed only to show that the
defendant’s conduct was objectively unreasonable. Id.
Miranda, 2018 WL 3796482, at *9. (citations omitted). After discussing the
positions that other circuits have taken on Kingsley, Miranda concluded that
Kingsley’s logic should extend to Fourteenth Amendment claims regarding
medical care, not just claims of excessive force. Id. at *11. Miranda then
explained the contours of this approach:
The defendants here worry that an objectivereasonableness standard will impermissibly constitutionalize
medical malpractice claims, because it would allow mere
negligence to suffice for liability. A careful look at Kingsley,
however, shows that this is not the case; the state-of-mind
requirement for constitutional cases remains higher.
Here is what the Court had to say about this problem
in Kingsley:
We consider a legally requisite state of
mind. In a case like this one, there are, in a sense,
two separate state-of-mind questions. The first
concerns the defendant’s state of mind with
respect to his physical acts—i.e., his state of
mind with respect to the bringing about of
certain physical consequences in the world. The
second question concerns the defendant’s state
of mind with respect to whether his use of force
was “excessive.” Here, as to the first question,
there is no dispute. As to the second, whether to
interpret the defendant’s physical acts in the
world as involving force that was “excessive,”
there is a dispute. We conclude with respect to
that question that the relevant standard is
objective not subjective. Thus, the defendant’s
state of mind is not a matter that a plaintiff is
required to prove.
135 S.Ct. at 2472. As applicable here, the first of those inquiries
asks whether the medical defendants acted purposefully,
Page 18 of 25

knowingly, or perhaps even recklessly when they considered
the consequences of their handling of Gomes’s case. See id. at
2472, 2474 (discussing purposeful or knowing conduct and
leaving open the possibility that recklessness would also
suffice). The courts of appeals that have applied Kingsley to
detainees’ claims in contexts other than excessive force have
taken that step, while continuing to recognize that it will not
be enough to show negligence or gross negligence. [Gordon v.
Cnty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018)] (under
Kingsley, a detainee must “prove more than negligence but
less than subjective intent—something akin to reckless
disregard” (quoting [Castro v. Cnty. of L.A., 833 F.3d 1060, 1071
(9th Cir. 2016)]); accord [Darnell v. Pineiro, 849 F.3d 17, 36 &
n.16 (2d. Cir. 2017)]. As Kingsley instructs, the second step is
the objective one.
Id. at *12. Finally, Miranda applied these rules to the facts presented:

Id.

The allegations here easily fit the mold of Gordon,
Darnell, and Castro. A properly instructed jury could find that
Drs. Elazegui and Singh made the decision to continue
observing Gomes in the jail, rather than transporting her to
the hospital, with purposeful, knowing, or reckless disregard
of the consequences. (The jury could also reject such a
conclusion.) It would be a different matter if, for example, the
medical defendants had forgotten that Gomes was in the jail,
or mixed up her chart with that of another detainee, or if Dr.
Elazegui forgot to take over coverage for Dr. Kim when he
went on vacation. Such negligence would be insufficient to
support liability under the Fourteenth Amendment, even
though it might support state-law liability. Here, there is
evidence that Drs. Elazegui and Singh deliberately chose a
“wait and see” monitoring plan, knowing that Gomes was
neither eating nor drinking nor competent to care for herself.
See [Glisson v. Ind. Dep’t of Corr., 849 F.3d 372, 382 (7th Cir.
2017)] (recognizing inaction as a choice). Because the Estate
does not claim merely negligent conduct, a jury must decide
whether the doctors’ deliberate failure to act was objectively
reasonable.

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As controlling precedent in this area, the Court is bound to apply
Miranda rather than the old rule of equivalence between the Eighth and
Fourteenth Amendments. Toward that end, the Court must determine
whether a genuine dispute of material facts exists as to whether
Defendants’ conduct was objectively reasonable. To make this assessment,
the Court considers whether the evidence suggests that Defendants “acted
purposefully, knowingly, or perhaps even recklessly when they considered
the consequences of their handling of [Plaintiff’s self-harming behavior].”
Id. If this question is answered in the affirmative, the Court then asks
whether a reasonable jury could potentially find that Defendants’ conduct
was unreasonable.
A preliminary consideration colors—in fact, dominates—the Court’s
analysis of those two elements. Plaintiff’s self-harming behavior did not
present a serious medical emergency. For about three hours, he bit the
inside of his mouth and spit blood throughout the observation cell. He was
under the watchful eye of both guards and medical staff the entire time.
Indeed, multiple sets of medical personnel found nothing particularly
wrong with Plaintiff. The Jail’s medical staff evaluated him once and
determined that hospitalization was not necessary. They eventually sent
him to the hospital only because Plaintiff refused to let them see the inside
of his mouth. Once at the hospital, Teska found that Plaintiff had only
“edema and mild abrasions” on his cheek, without “laceration or [a]
bleeding wound.” (Docket #114-8 at 22). Teska determined that Plaintiff
“ha[d] not sustained any significant injuries to [the] inside of [his] mouth[.]”
Id. at 24. Rather than showing that Plaintiff had an obvious or medically
diagnosed injury, the evidence reveals that quite the opposite was true.

Page 20 of 25

Plaintiff’s argument to the contrary is unavailing. He says that he did
in fact sustain a significant injury during the biting episode, namely by
biting off a portion of his lip. For the next ten days, this injury allegedly
caused him substantial pain, interfered with his ability to eat, and made it
difficult to speak. (Docket #122 at 42–43; Docket #125 ¶ 67). The primary
basis for Plaintiff’s contention is his own testimony on the matter and an
affidavit from Douglas Wearing (“Wearing”), another Jail guard. Wearing
produced the affidavit on June 17, 2016 in an effort to obtain authorization
from the Racine County Circuit Court to perform an involuntary medical
evaluation of Plaintiff. (Docket #124-1 at 84–86). Wearing recounted
Plaintiff’s self-harming history since August 2015 to support his request. Id.
He further stated that the June 16 incident resulted in Plaintiff “bit[ing]
away a portion of his lower lip[.]” Id. Plaintiff also points to pictures of his
bloody cell to suggest that his injury was worse than Teska believed. In the
same vein, a June 18, 2016 observation note from a Jail guard stated that in
speaking with Plaintiff, who was being manipulative and combative at the
time, “recent self inflicted injuries to [his] cheecks/mouth/lips [sic] caus[ed]
some changes in speech[.]” Id. at 100.
Plaintiff’s evidence would not permit a reasonable jury to find in his
favor on this issue. First, neither he nor Wearing is a doctor. The actual
medical personnel were unanimous in their assessment that Plaintiff had
no meaningful injuries. Surely a bitten off lip would not have escaped their
notice. Further, the fact that the observation cell was bloody and that guards
noticed a speech impediment two days after the biting incident is not proof
that he had bitten off his lip or suffered any injury beyond what Teska
observed. Plaintiff points to no other medical evidence to establish that he
injured himself in the manner he describes.
Page 21 of 25

With this in mind, no reasonable jury could believe that Defendants’
response to Plaintiff’s behavior came close to recklessness. That is to say, no
reasonable juror could conclude that any of the Defendants actually
believed that Plaintiff was at a genuine risk of taking his own life and that
this might occur imminently. Again, from their perspective, Plaintiff was
merely chewing on the inside of his mouth. While this generated a
substantial amount of blood, which Plaintiff proceeded to spew around the
cell, Defendants did not ignore Plaintiff. They checked on him regularly
throughout the incident. Additionally, medical personnel assessed
Plaintiff’s condition each hour. King v. Kramer, 680 F.3d 1013, 1018 (7th Cir.
2012) (prison guards are entitled to defer to the care provided by medical
personnel so long as the prisoner is not ignored). At no time was Plaintiff
in a state where he could, or actually came close to, causing himself serious
injury or death.
This determination is reinforced by Plaintiff’s undisputed behavioral
history at the Jail. Plaintiff has a track record of nearly constant disruptive
and threatening behavior. He spits on guards, threatens Jail staff with
violence, has actually attacked them on occasion, and fights against his
restraints. Plaintiff’s behavior is also manipulative. He taunts Jail personnel
with lawsuits during instances of self-harm, strongly suggesting that the
conduct is motivated by spite and a desire for secondary gain, rather than
genuine suicidal ideations.
Defendants were entitled to have this history in mind when
responding to the June 16 biting incident, namely by tempering their
intervention in light of the relatively minor self-inflicted damage Plaintiff
was causing to himself. The thrust of Plaintiff’s briefing is that Defendants
should have interceded more forcefully, physically holding his head and
Page 22 of 25

jaw still to prevent him from biting himself. Not only is Plaintiff not in a
position to dictate how Jail staff respond to his behavior, Arnett v. Webster,
658 F.3d 742, 754 (7th Cir. 2011), but his desired approach might generate
more, rather than fewer, constitutional concerns. Cynically, Plaintiff’s
argument could be viewed as an attempt to generate additional lawsuits
beyond the seven he has already filed against Jail staff since December 2015.
In any event, Defendants had a valid basis to curtail their response to
Plaintiff’s

biting

behavior.

Their

approach

was

not

objectively

unreasonable.7
4.3

June 16, 2016 – Intentional Discrimination

The Equal Protection Clause of the Fourteenth Amendment protects
individuals from discrimination by the government on the basis of their
membership in a particular class. Geinosky v. City of Chi., 675 F.3d 743, 747
(7th Cir. 2012). Typically the class is one of race, national origin, or sex. Id.
However, the Equal Protection Clause also guards against governments
“singling out just one person for different treatment for arbitrary and
irrational purposes.” Id. Known as “class of one” claims, these require proof
that the plaintiff “had been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in
treatment.” Engquist v. Ore. Dep’t of Agric., 553 U.S. 591, 601 (2008)
(quotation omitted).
In their opening brief, Defendants argued that Plaintiff lacks the
evidence necessary to bring his class of one claim before a jury. (Docket #112

Defendants further assert that certain of them were not personally
involved in the relevant events of June 16 such that they could appropriately bear
constitutional liability. (Docket #112 at 21). In light of the Court’s disposition of the
claim on other grounds, it need not reach this contention.
7

Page 23 of 25

at 25–26). He has both failed to identify a similarly situated inmate or show
that Defendants lacked a rational basis to treat Plaintiff differently than
others. Id. Both of these contentions stem from the same fact—Plaintiff was
indeed treated differently than others not for arbitrary reasons, but because
he needed special treatment. Id. Namely, Plaintiff has an extensive history of
disruptive and self-harming behavior which required Jail officials to give
him particularly close attention. Id.
Plaintiff’s response brief offers no defense of his class-of-one claim.
See generally (Docket #122). He mentions the claim in his introduction but
makes no further comments upon it in the remaining 48 pages of his brief.
Id. at 1. The Court cannot fashion arguments on behalf of litigants, even
those proceeding without counsel. Anderson, 241 F.3d at 545. The Court
must, therefore, treat Defendants’ position as conceded and grant their
motion as to the class of one claim. Bonte v. U.S. Bank, N.A., 624 F.3d 461,
466 (7th Cir. 2010) (Failure to respond to an argument—as the Bontes have
done here—results in waiver.”).
5.

CONCLUSION
Bucholtz’s motion must be granted because Plaintiff chose not to

oppose it. Further, on the undisputed facts presented, summary judgment
is appropriate in the other Defendants’ favor on Plaintiff’s claims against
them. The Court must, therefore, grant both motions and dismiss this action
with prejudice.
Accordingly,
IT IS ORDERED that Plaintiff’s motions for leave to file sur-replies
(Docket #140 and #143) and motions related to summary judgment
evidence (Docket #144 and #145) be and the same are hereby DENIED;

Page 24 of 25

IT IS FURTHER ORDERED the parties’ ancillary motions related to
the exhaustion of remedies defense (Docket #128, #132, #139, #148, and #152)
be and the same are hereby DENIED as moot;
IT IS FURTHER ORDERED that Plaintiff’s motion for sanctions
(Docket #169) be and the same is hereby DENIED;
IT

IS

FURTHER

ORDERED

that

Plaintiff’s

motions

for

appointment of counsel (Docket #129 and #168) be and the same are hereby
DENIED;
IT IS FURTHER ORDERED that the motion for summary judgment
of Defendant Gregory Bucholtz (Docket #106) be and the same is hereby
GRANTED;
IT IS FURTHER ORDERED that the motion for summary judgment
of Defendants Barbara A. Teeling, Brad Friend, Melissa Moran, Anthony
Lacombe, Robert A. Mastronardi, Steven M. Clope, and Nicole L. Petersen
(Docket #110) be and the same is hereby GRANTED; 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 25th day of September, 2018.
BY THE COURT:

____________________________
J. P. Stadtmueller
U.S. District Judge

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