McDuffie v. Swiekatowski et al

Filing 46

ORDER signed by Judge J.P. Stadtmueller on 6/27/2018: GRANTING 33 Defendant's Motion for Summary Judgment and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Brandon C. McDuffie at Green Bay Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRANDON C. MCDUFFIE,
Plaintiff,

Case No. 17-CV-984-JPS

v.
WILLIAM SWIEKATOWSKI,

ORDER

Defendant.
Plaintiff Brandon McDuffie (“McDuffie”), a prisoner, brings this
action pursuant to 42 U.S.C. § 1983 against Defendant William
Swiekatowski

(“Swiekatowski”),

a

correctional

officer.

McDuffie

attempted suicide on February 14, 2017 by climbing onto a ventilation
duct in the prison and threatening to jump. Correctional officers tried to
coax him down verbally but were unsuccessful. Eventually, Swiekatowski
shot McDuffie with a pepperball gun in order to encourage him to
descend.
In this suit, McDuffie alleges that Swiekatowski violated his rights
under the Eighth Amendment by using excessive force against him and by
acting with deliberate indifference to his serious medical needs, namely
his suicidality. Swiekatowski has filed a motion for summary judgment as
to each of McDuffie’s claims. (Docket #33). That motion is fully briefed
and, for the reasons stated below, it will be granted.1

Although he asks the Court to dismiss this case in its entirety,
Swiekatowski does not expressly address the medical deliberate indifference
claim in his briefing. See (Docket #34, 44). It seems he overlooked the fact that the
Court allowed McDuffie to proceed on such a claim in addition to the excessive
force claim. (Docket #20). This oversight matters little, as McDuffie has offered
1

1.

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); 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).
2.

RELEVANT FACTS2
McDuffie is a Wisconsin prisoner housed at Green Bay Correctional

his arguments in support of his deliberate indifference claim, (Docket #42 at 12–
16), and the resolution of each claim rests on the same body of undisputed facts,
see Fed. R. Civ. P. 56(f)(3).
Many of McDuffie’s attempts to dispute Swiekatowski’s proffered facts
are unavailing, as he failed to cite admissible evidence contradicting
Swiekatowski’s factual assertions. See, e.g., (Docket #45 ¶ 7); Fed. R. Civ. P.
56(c)(1), (e). Additionally, McDuffie often tried to dispute the facts by writing the
word “Dispute” in his response to Swiekatowski’s statement of facts along with a
citation to his affidavit or other evidence. See, e.g., (Docket #45 ¶ 8). This was the
wrong way for McDuffie to raise disputes of fact, but in view of his pro se status,
and because McDuffie’s claims must be dismissed anyway, the Court generously
reviewed each of McDuffie’s submissions to uncover his version of the facts to
the extent it is supported by admissible evidence.
2

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Institution (“GBCI”). At the time of the events in question, Swiekatowski
was a correctional officer at GBCI with the rank of captain.
On February 14, 2017, at approximately 5:42 p.m., the GBCI
communications center, commonly referred to as “control,” called for first
responders to report to the South Cell Hall. South Cell Hall consists of
four tiers: E-tier, the ground floor; F-tier, the second floor; G-tier, the third
floor; and H-tier, the top floor. Cells run along one side of the hall, with a
walkway in front of them. There is an open space between the walkway
and the wall opposite the cells which spans the entire height of the hall.
McDuffie had jumped from the walkway on F-tier onto the
supervisor’s secure area, called the “sergeant’s cage,” and then onto the
ventilation shaft which ran along the opposite wall. The ventilation shaft
was approximately thirty inches wide, twenty feet long, and ten feet off
the ground.3 McDuffie says he did this because he had a mental break and
was attempting to commit suicide by jumping onto the ventilation system
and then to his death. At the time McDuffie jumped onto the ventilation
duct, many South Cell Hall inmates were returning from the evening
meal.
Lieutenant Timothy Retzlaff (“Retzlaff”) responded to South Cell
Hall, stood on E-tier, looked up, and talked to McDuffie, who was on the
ventilation unit directly above. Mattresses were placed on the floor below
McDuffie in case he fell or jumped. At 5:48 p.m., GBCI nurse Steven Bost
(“Bost”) arrived to provide any needed medical care. Other South Cell
McDuffie maintains it was “three stories” off the ground, not ten feet.
(Docket #43 ¶ 22). But he does not challenge the authenticity of the video footage
Swiekatowski submitted in connection with his motion, and the video
indisputably shows that Swiekatowski is correct. Scott v. Harris, 550 U.S. 372, 380
(2007). The video footage, which also has an audio component, is conclusive as to
the matters it depicts, forestalling any genuine dispute as to such matters. Id.
3

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Hall inmates were walked back to the unit and locked inside their cells in
order to secure the area, allow staff to concentrate on bringing McDuffie
down from the ventilation system, and minimize the chance that other
inmates may interfere with that effort.
Swiekatowski also responded to the area at this time, was briefed
by Retzlaff, and then consulted with Deputy Warden Schueler
(“Schueler”) regarding the incident. They decided to call for Sergeant
Antonio Cummings (“Cummings”) to speak with McDuffie and try to
convince him to come down. As a member of the GBCI crisis negotiations
team, Cummings has received specialized training regarding de-escalation
techniques and using negotiation to resolve crisis situations. Swiekatowski
is not trained in crisis negotiations.
Cummings reported to the South Cell Hall around 5:50 p.m. He
walked up to the F-tier walkway directly across from McDuffie, who at
that point was sitting on the duct work, and began to speak with him.
According to Cummings, McDuffie said he wanted to kill himself because
he had long sought help from psychological services staff to no avail. At
approximately 6:11 p.m., an extension ladder was placed against the duct
near McDuffie to provide him a safe way to climb down. Cummings’
initial attempts to persuade McDuffie to voluntarily climb down lasted
approximately thirty minutes. McDuffie reports that inmates and
correctional officers, including Cummings, were able to calm him down
by speaking with him.
Swiekatowski then came to F-tier at 6:20 p.m. to check on the
progress of negotiations. Cummings believed he was making headway,
but McDuffie appeared to change his mind when Swiekatowski arrived.
Cummings informed Swiekatowski how upset McDuffie was, that he
Page 4 of 20

wanted to talk to psychological services staff, and that he wanted to kill
himself.
McDuffie accuses Swiekatowski of “re-escalat[ing] the situation”
and derailing efforts to calm him down by “making aggressive statements
and verbal threats, causing [him] to relapse into mental distress.” (Docket
#43 ¶ 14). Specifically, McDuffie avers that
Swiekatowski engaged me and after I told him I wanted to
kill myself, he became sarcastic as if he could care less [and]
then said, “ok yeah, get down.” I became agitated and told
him “you don’t give a fuck if I die or not,” and he continued
with the sarcasm before telling me, “alright that’s enough,
either you get down or I’m gonna get a ladder, come up
there and make you get down,” which caused me to explode
with emotions I fought hard to control and told
Swiekatowski to “get psych or I’m gonna jump over the
mats and kill myself,” and Swiekatowski told me “no” and
“no one is coming,” then walked away.
Id. ¶ 17.
Swiekatowski then left South Cell Hall to update Schueler. With
Swiekatowski away, Cummings and Retzlaff continued negotiations with
McDuffie but, according to them, they made no progress. McDuffie says
that Cummings was trying to reverse the “psychological damage”
inflicted by Swiekatowski but that he was too far gone into the “stream of
emotions” giving rise to his suicidality. Id. ¶ 19.
At approximately 6:35 p.m., McDuffie began banging his fist
against the ventilation system. Staff did not climb the ladder to bring
McDuffie down due to concern that McDuffie had the advantage of being
in an elevated position and could assault officers as they climbed. Staff

Page 5 of 20

were also concerned that if they were able to successfully climb the ladder,
the extra weight on the duct might cause it to collapse.4
Cummings continued to reason with McDuffie to persuade him to
voluntarily climb down. Once again, his attempts failed. Swiekatowski
decided to use physical force to persuade McDuffie to come down.
Swiekatowski says he was motivated by a need to ensure McDuffie’s
safety and abate the situation, which was agitating the other inmates.
McDuffie disagrees, saying the Swiekatowski wanted to punish McDuffie
for having an episode of mental illness and for holding up the dinner
service and showers.
While conversing with Schueler, Swiekatowski explained that they
were not making any progress getting McDuffie to come down
voluntarily and suggested bringing the pepperball gun as a means to gain
compliance. The pepperball gun is a non-lethal high-pressure air launcher
that fires a fragile projectile containing a powdered chemical, called “OC
powder,” that can irritate the eyes and nose in a manner similar to pepper
spray. As a part of his training, Swiekatowski was shot with the
pepperball gun, and he found it to be very similar to being shot with a
paintball gun.
At this time, Swiekatowski had another officer start taking video
footage of the situation. At the start of the video, Swiekatowski, standing
in a security office, provides a brief to the viewer, stating that he was
given permission by Schueler to use the pepperball gun on McDuffie. This
Swiekatowski asserts that he went back to South Cell Hall to speak with
McDuffie again around this time, that he instructed McDuffie to come down, and
that McDuffie refused. McDuffie counters that this second visit by Swiekatowski
did not actually occur. He maintains that Swiekatowski only came to South Cell
Hall twice—the first encounter already described and the second in which he
shot McDuffie with the pepperball gun, which will be detailed below.
4

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option was chosen as it would not incapacitate McDuffie to the point that
he may fall and injure himself, but would make him uncomfortable due to
the impact of the projectile and the effects of the OC powder.
Swiekatowski and Schueler were concerned that if the OC chemical was
deployed using a streamer or fogger—called a “Projectojet”—it would
contaminate the entire unit and might incapacitate McDuffie to the point
that he would fall. Similarly, because incapacitation might lead to a fall, a
taser was also not an option.5
Swiekatowski retrieved the pepperball gun, the Projectojet, and
masks. Officers held the Projectojet with them as a show of force only. At
approximately 6:43 p.m., an hour after McDuffie had jumped onto the
ventilation shaft, Swiekatowski, carrying the pepperball gun and followed
by the officer operating the video camera, proceeded up to F-tier in South
Cell Hall. Swiekatowski then briefed the nurse, Bost, of his plan to use the
pepperball gun. As the video depicts, during the officers’ entire
interaction with McDuffie, other inmates were locked in their cells but
were observing the situation and offering a near-constant stream of angry
shouting and epithets directed at the officers.
Shortly after Swiekatowski’s arrival, Cummings left the area
because his attempts at gaining voluntary compliance had failed.
McDuffie asked who was coming up onto the vent with him. Staff
informed him no one was going to do that and again asked him to come
down. McDuffie then stated “let’s rock” and asked again “who’s coming
up?” Swiekatowski repeatedly ordered McDuffie to come down
Swiekatowski avers that if McDuffie had not come down voluntarily, the
only other option to safely bring McDuffie down would have been to construct
scaffolding next to the vent, send staff up to McDuffie’s level, and physically
wrestle McDuffie. This option would have been very risky, to say the least.
5

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voluntarily, but he refused. He continued to challenge Swiekatowski to
come up the ladder, stating, “the difference between me and you is I ain’t
scared. Let’s do this,” “I ain’t got nothing to lose,” “get Ski up here,” and
“I am going to show him that he ain’t bulletproof like he claim he is.”
Due to McDuffie’s continued refusal to comply with directives,
Swiekatowski aimed the pepperball gun at him and continued to order
him to come down. McDuffie gave no reaction whatsoever. Swiekatowski
then fired a burst of approximately six rounds that struck McDuffie in the
chest area. They had little to no effect.
Swiekatowski then targeted McDuffie’s thigh and left knee area
with another six rounds. The video shows that McDuffie hardly reacts
except to slightly turn his body away from Swiekatowski. He then
exclaims, “you just shot me,” but his response is one of umbrage, not
physical distress. Indeed, he proceeds to argue with Swiekatowski in a
defiant tone, apparently unaffected by the projectiles’ impact or the OC
powder.
Swiekatowski then shot McDuffie twice more in the leg in an effort
to get him to come down, but he still refused. McDuffie told Swiekatowski
that he had asthma and that he could not breathe. McDuffie says that
Swiekatowski already knew he was asthmatic and knew that the OC
powder would have a strong adverse effect on him. Yet McDuffie’s
physical comportment and continued arguing with Swiekatowski did not
reflect his reported breathing difficulty.
Swiekatowski continued to instruct McDuffie to descend from the
ventilation shaft, and inmates continued to shout at Swiekatowski and the
other officers. McDuffie remained disobedient, continuously replying to
each of Swiekatowski’s orders, “you just shot me.” McDuffie then told
Page 8 of 20

Swiekatowski to “go get some real bullets” because he was “ready to die.”
McDuffie stated that he was not scared to die because he had “lost
everything.” McDuffie explained that he planned to remain on the shaft
until he could no longer breathe from the OC powder.
McDuffie continued shouting at Swiekatowski and staff to come up
the ladder and refused repeated directives to come down. He even
taunted Swiekatowski, saying “are you scared?” when Swiekatowski
refused to come up onto the duct. McDuffie proceeded to complain about
being shot and stated his desire to harm Swiekatowski should he join
McDuffie on the ventilation shaft.
McDuffie then told Swiekatowski to call “psych” or he was going
to jump. There were no psychological services staff present at the
institution at the time of this incident, as it was too late in the evening.
Swiekatowski informed McDuffie of this and gave McDuffie further
orders to go to the ladder and come down. McDuffie reported ongoing
respiratory distress and became more agitated, exclaiming epithets at
Swiekatowski while repeating his requests for psychological care.
As McDuffie seemed particularly distressed by Swiekatowski’s
presence, blaming him for derailing Cumming’s progress, Swiekatowski
decided it might calm McDuffie if he left the area. Swiekatowski left to
monitor the situation from control and requested that Cummings resume
negotiations.
Cummings and Retzlaff returned and again tried to persuade
McDuffie to climb down voluntarily. McDuffie became very agitated for a
time, and tears were visible on his face. He continued to scream about
being repeatedly denied the psychological help he had requested, saying
“I’m tired” over and over again. Eventually, Retzlaff asked McDuffie to
Page 9 of 20

come down so they could talk further, and McDuffie replied that he
wanted “out of here then. I want out of here.” Retzlaff informed McDuffie
that they could not talk about that while he was sitting on the duct.
Retzlaff and Cummings talked about options for help when McDuffie
needed it and continued to ask McDuffie to come down.
McDuffie finally agreed to climb down on the condition that only
Retzlaff and Cummings handle his restraint placement and escort out of
the unit. They agreed and McDuffie climbed down the ladder at
approximately 7:06 p.m. Thus, McDuffie was on the ventilation shaft for
nearly one and a half hours.
Cummings and Retzlaff secured McDuffie in handcuffs and took
him to the health services unit for a medical assessment. Bost examined
him. Bost observed swelling in the knee area and told McDuffie he would
be given ice and ibuprofen. McDuffie did not make any complaints of
breathing problems during this assessment. However, McDuffie now
explains that he had “at least 21 bruises on [his] swollen thigh and a large
knot on [his] left knee cap,” while “the brief walk outside” to the health
services unit “kinda helped with my breathing to the point I felt I could
manage.” (Docket #43 ¶ 30). McDuffie claims that he must permanently
wear a left knee brace in order to walk and has a medical restriction to
that effect.
Retzlaff conferred with GBCI’s on-call psychologist, Dr. Amy
Zirbel, after McDuffie descended from the duct. Based on that
conversation, McDuffie was placed on observation status in the restricted
housing unit. Observation status is a very restrictive form of confinement
used to prevent an inmate from harming himself or others. Inmates in
observation are closely monitored by security and psychological services
Page 10 of 20

staff and have most of their personal effects, clothing, and bedding taken
away. Staff visually check on an observation status inmate every fifteen
minutes to make sure he is not harming himself or in distress.
While being placed in observation, McDuffie asked Retzlaff why
Swiekatowski had shot him. Retzlaff replied, “I have no idea but I’ll be
sure to have him come up tonight and tell you because he is working a
double.” Id. ¶ 31. Swiekatowski and McDuffie did speak that night.
Swiekatowski claims he spoke to McDuffie only once, at 1:11 a.m., and
explained that he shot McDuffie because McDuffie was not allowed on the
vents, his behavior posed a safety risk, and staff could not allow him to
stay up there indefinitely. Further, while he was on the duct, staff had to
lock all inmates in the unit in their cells in order to secure the area.
Resolving the incident with him would have allowed staff to continue
with their regular activities, including completing showers for the
inmates. McDuffie maintains that Swiekatowski came to see him a second
time that night, at 1:53 a.m., and at that time he said only that he shot
McDuffie “because we had to get showers done and you already held up
dinner.” Id.6
3.

ANALYSIS
McDuffie says that Swiekatowski’s conduct amounted to both

excessive force and deliberate indifference to his serious medical needs,
both in violation his rights under the Eighth Amendment. The Court will
consider each claim in turn.

Prison records do not reflect that this second visit occurred, but the
Court accepts that it did out of appreciation for the standard of review applied at
summary judgment.
6

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3.1

Excessive Force

First is McDuffie’s claim that Swiekatowski’s use of the pepperball
gun rose to the level of excessive force. 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 a prison 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);
Santiago v. Walls, 599 F.3d 749, 757 (7th Cir. 2010). Several factors can
inform this determination, including the need for force, the amount
applied, the threat the 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; Fillmore v. Page, 358 F.3d 496, 504
(7th Cir. 2004).
The Supreme Court has instructed that the question is not whether
the force employed, viewed with the benefit of hindsight, was
appropriate,

but whether

it was motivated

by

“obduracy

and

wantonness.” Whitley v. Albers, 475 U.S. 312, 319 (1986). As a result, on
summary judgment “courts must determine whether the evidence goes
beyond a mere dispute over the reasonableness of a particular use of force
or the existence of arguably superior alternatives. Unless it appears that
the evidence, viewed in the light most favorable to the plaintiff, will
support a reliable inference of wantonness in the infliction of pain under
the standard we have described, the case should not go to the jury.” Id. at
322.
Here, it is uncontested that McDuffie caused a major disturbance
by leaping from a second-floor walkway onto the ventilation system. This
Page 12 of 20

was not something he was permitted to do, it placed him at great physical
risk, and it arrested the attention of both nearby inmates and correctional
officers. McDuffie’s conduct necessitated a response from correctional
officers, who are charged with the unenviable task of maintaining order
and discipline in the prison environment. The officers negotiated with
McDuffie for over an hour and gave repeated verbal direction for him to
descend. He refused each time. They then made a show of force with the
Projectojet and pepperball gun and repeated their requests for compliance.
Again, it had no effect. All the while, other inmates in the hall became
more agitated and aggressive. This is just the sort of blatantly
insubordinate and dangerous conduct, coupled with ever-more-chaotic
conditions, that warranted the judicious application of force.
As the undisputed facts make clear, Swiekatowski only applied
physical force when lesser measures proved ineffective. As such, this case
is analogous to Guitron v. Paul, 675 F.3d 1044, 1046 (7th Cir. 2012). There,
the officer first ordered the inmate to “get against the wall,” which the
inmate refused to do. Id. at 1045. The officer bent the inmate’s wrist, but
still the inmate did not comply. Id. Finally, he “slammed” the inmate
against the wall. Id. The Seventh Circuit did not find this use of force
excessive, observing that the officer “did not use any force until [the
inmate] disobeyed a command that was designed to maintain order
within the prison; and, when [he] applied modest force, [the inmate]
remained defiant. [The officer] did not violate the Constitution by
applying additional force.” Id. at 1046.
Of course, this case is different from Guitron in that Swiekatowski
did not graduate from lesser to greater forms of physical force; the only
force he applied was the pepperball gun. But what matters is that here, as
Page 13 of 20

in Guitron, lesser forms of coercion were ignored. After an hour of verbal
negotiations, officers made a show of force with the Projectojet and
pepperball gun. When that show of force also failed, there was no way to
apply physical force to McDuffie while perched on the ventilation system
other than with a projectile. Although the pepper balls admittedly cause
pain and discomfort, their use was not unjustified under these
circumstances. Indeed, other options, like the Projectojet or taser, would
have placed McDuffie at even greater risk because they were less
controlled than the pepperball gun. Similarly, joining McDuffie on the
duct would have been exceedingly dangerous given his agitated state and
belligerent statements. Thus, while McDuffie complains that he can no
longer walk without a knee brace, it is hard to charge Swiekatowski with
choosing an overly severe form of force under these peculiar
circumstances.
McDuffie believes that other, non-force measures would have been
more appropriate, including permitting verbal negotiations to continue
with Cummings, a trained crisis negotiator, or obtaining the help of
psychological services staff. McDuffie contends that Swiekatowski did
nearly everything wrong, from being sarcastic and callous toward his
suicidality, to refusing his requests for psychological services staff, to
shooting him, an asthmatic, with a pepperball gun while he was atop an
unstable ventilation duct. (Docket #43 ¶ 33). All this, says McDuffie, was
done in retaliation for the onset of his mental illness, something he cannot
control, and was inconsistent with crisis negotiation practices. Id. In
McDuffie’s view, this incident was a psychological clinical emergency that
should have been dealt with by mental health professionals.

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But the Eighth Amendment is not concerned with what the best
approach would have been in a given situation. Indeed, it is not even
concerned with whether Swiekatowski’s use of force was objectively
reasonable, except to the extent that the reasonableness of his actions
reflects his subjective intent. Whitley, 475 U.S. at 322. In this case, those
objective considerations demonstrate that Swiekatowski’s conduct, under
the strain of the situation, was within the permissible bounds of his
discretion, notwithstanding his purportedly sarcastic tone. See Bell v.
Wolfish,

441

U.S.

520,

547

(1979)

(noting

that

“[p]rison

administrators. . .should be accorded wide-ranging deference in the
adoption and execution of policies and practices that in their judgment are
needed to preserve internal order and discipline and to maintain
institutional security”). As the Supreme Court explained in Whitley, when
facing prison disturbances, officers are often forced into “decisions
necessarily made in haste, under pressure, and frequently without the
luxury of a second chance.” Whitley, 475 U.S. at 320. Courts are ill-suited to
sit in judgment of those decisions. In McDuffie’s case, no reasonable jury
could infer from the undisputed facts that Swiekatowski’s conduct was
animated by a malicious desire to cause McDuffie harm. Id. at 322.
Certainly, this case is nothing like Thomas v. Bryant, 614 F.3d 1288,
1303–04 (11th Cir. 2010), cited by McDuffie, where officers aggravated a
prisoner’s mental instability by spraying him with chemical agents while
he was secured in his cell. Even there, the court emphasized that the use of
chemical agents is not per se unconstitutional. Id. at 1310 (citing Soto v.
Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984)). Here, by contrast, McDuffie’s
conduct created a palpable, ongoing risk to his safety, the safety of
institution staff, and the order and discipline of the entire institution.
Page 15 of 20

Taking McDuffie at his word that his conduct was the result of a mental
breakdown and was not meant to cause a disturbance, see (Docket #43 ¶
35), the presence of mental illness in the churn of the incident does not
conclusively determine whether Swiekatowski acted appropriately.
Similarly, while McDuffie accuses Swiekatowski of violating prison
policy regarding how to deal with inmates who threaten self-harm,
including the need to reach out to psychological services staff, id. ¶¶ 36,
54, violation of prison policy is not, on its own, a violation of the
Constitution, Lewis v. Richards, 107 F.3d 549, 553 n.5 (7th Cir. 1997);
Langston v. Peters, 100 F.3d 1235, 1238 (7th Cir. 1996). Under these
circumstances, Swiekatowski’s approach was not unwarranted despite
any claimed variance with standard prison rules.
Finally, the Court finds unavailing McDuffie’s reliance on
Swiekatowski’s late-night admission that he only shot McDuffie because
he had held up dinner service and showers. The objective indicia
regarding the use of force as the incident actually unfolded tell a far
different tale. In any event, Swiekatowski’s stated reasons conform to the
permissible purposes of restoring order and function in the institution. As
a result, no reasonable jury could conclude that the use of force was
undertaken maliciously to cause McDuffie harm rather than in a goodfaith effort to derail his suicide attempt and restore institutional order.
Hudson, 503 U.S. at 7. McDuffie’s excessive force claim is without merit.
3.2

Deliberate Indifference to Serious Medical Needs

McDuffie raises one other claim, arguing that Swiekatowski acted
with deliberate indifference to his serious medical needs. To prove this,
McDuffie must show: (1) that he suffered from an objectively serious
medical condition; (2) that Swiekatowski knew of the condition and was
Page 16 of 20

deliberately indifferent in treating it; and (3) this indifference caused
McDuffie some injury. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).
On the first, element, the parties agree that suicidality is a serious medical
need. Sanville v. McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001). Their
dispute relates instead to whether Swiekatowski’s actions evince
deliberate indifference to that condition.
The deliberate indifference inquiry has two components. “The
official must have subjective knowledge of the risk to the inmate’s health,
and the official also must disregard that risk.” Id. Even if an official is
aware of the risk to the inmate’s health, “he is free from liability if he
‘responded reasonably to the risk, even if the harm ultimately was not
averted.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 843 (1994)); Estate of
Novack ex rel. Turbin v. Cnty. of Wood, 226 F.3d 525, 529 (7th Cir. 2000);
Fisher v. Lovejoy, 414 F.3d 659, 662 (7th Cir. 2005). This is a heavy burden;
the Seventh Circuit has emphasized that deliberate indifference
“comprehends more than mere negligence but less than the purposeful or
knowing infliction of harm.” Estate of Novack, 226 F.3d at 529; Peate v.
McCann, 294 F.3d 879, 882 (7th Cir. 2002). Indeed, the Court of Appeals
has characterized the required showing “as ‘something approaching a
total unconcern for [the prisoner’s] welfare in the face of serious risks.’”
Collins v. Seeman, 462 F.3d 757, 762 (7th Cir. 2006) (quoting Duane v. Lane,
959 F.2d 673, 677 (7th Cir. 1992)). The operative inquiry is not whether the
inmate believes some other course of treatment would have been better.
Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996); Reynolds v. Barnes, 84 F.
App’x 672, 674 (7th Cir. 2003) (“[T]he Constitution does not mandate that
a prisoner receive exactly the medical treatment he desires.”).

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McDuffie’s

evidence

does

not

permit

the

inference

that

Swiekatowski acted with deliberate indifference to his suicidality.7 First,
unlike many deliberate indifference claims, here one must appreciate the
context in which the alleged indifference arose: a dangerous disturbance
by an inmate who jumped onto a ventilation shaft as part of a suicide
attempt. No one would praise Swiekatowski’s sarcastic commentary
during his first interaction with McDuffie, but in the heated and risky
circumstances presented, the Court cannot say that this amounted to
deliberate indifference. Notably, Swiekatowski did not simply walk away
and ignore McDuffie; instead, he and the other officers continued their
efforts to dissuade McDuffie from his suicide attempt while maintaining
safety and order.
Further, Swiekatowski’s refusal to summon psychological services
staff and his use of the pepperball gun were not motivated by deliberate
indifference to McDuffie’s suicidality. Rather than punish McDuffie for a
psychotic break, Swiekatowski faced the difficult task of regaining
institutional order and simultaneously ensuring the safety of McDuffie
and prison staff. McDuffie does not complain that he was denied
additional psychological treatment after this incident, whether by
Swiekatowski or anyone else. See Greeno v. Daley, 414 F.3d 645, 656 (7th
Cir. 2005) (non-medical correctional staff may rely on expert care afforded
by medical professionals so long as the correctional staff does not entirely
ignore the prisoner).
In his summary judgment briefing, McDuffie at times suggests that he
wants to hold Swiekatowski responsible for aggravating his asthma condition
with the OC powder, but he never previously framed his deliberate-indifference
claim as pertaining to his asthma. He cannot switch horses at this late juncture.
Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir. 2002); EEOC v. Lee’s Log Cabin, Inc.,
546 F.3d 438, 443 (7th Cir. 2008).
7

Page 18 of 20

As with his excessive force claim, here McDuffie leans heavily on
his allegation that Swiekatowski violated prison policy by failing to call
the psychological services staff upon request. But, as before, deliberate
indifference does not arise from a violation of prison policy standing
alone. Lewis, 107 F.3d at 553 n.5; Langston, 100 F.3d at 1238. McDuffie must
do more than line up Swiekatowski’s conduct against the prison
handbook. See Gayton, 593 F.3d at 622–23 (nurse not deliberately
indifferent by failing to follow protocol when she responded reasonably to
the inmate’s complaints). Under the circumstances, it was sufficient that
Swiekatowski made an effort to restore prison discipline while at the same
time preventing McDuffie from harming himself or others. See Bowers v.
Pollard, 602 F. Supp. 2d 977, 993 (E.D. Wis. 2009) (noting that a suicidal
inmate presents prison officials with “a dilemma with no easy options”).
He may have harbored more concern for McDuffie’s disobedience than his
suicidality, but McDuffie’s claim cannot rest solely on the idea that
Swiekatowski was not sufficiently sensitive. Riccardo v. Rausch, 375 F.3d
521, 525 (7th Cir. 2004) (prison officials are not required to perform their
duties “flawlessly”). The Court cannot say that McDuffie’s desired
response was the only way for Swiekatowski to reasonably respond to his
suicide risk.
At a minimum, Swiekatowski’s decisions were neither reckless, nor
did they display anything approaching total unconcern for McDuffie’s
safety. Collins, 462 F.3d at 762. No reasonable jury could find otherwise.
4.

CONCLUSION
McDuffie could not hold his institution hostage, creating a major

and dangerous disturbance, and then dictate the terms of engagement.
The undisputed facts demonstrate that Swiekatowski did not violate
Page 19 of 20

McDuffie’s constitutional rights during the February 14, 2017 incident. As
a result, his claims must be dismissed.
Accordingly,
IT IS ORDERED that Defendant’s motion for summary judgment
(Docket #33) 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 27th day of June, 2018.
BY THE COURT:

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

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