Benjamin v. Does et al
Filing
106
ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 12/29/2023. 92 Defendant's motion for summary judgment GRANTED. (cc: all counsel)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LESHAUN BENJAMIN,
Plaintiff,
v.
Case No. 18-cv-570-pp
ALICIA SANCHEZ,
Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 92) AND DISMISSING CASE
Plaintiff Leshaun Benjamin, who is represented by counsel, is proceeding
under 42 U.S.C. §1983 on an Eighth Amendment claim against a nurse at the
Milwaukee Mental Health Complex (MMHC). The defendant has moved for
summary judgment. Dkt. No. 92. The plaintiff opposes the motion. Dkt. No.
104. The court finds that the defendant is entitled to qualified immunity as a
matter of law and will grant her motion and dismiss the case.
I.
Facts
A.
Procedural Background
On April 11, 2018, the court received the plaintiff’s complaint asserting
claims against over a dozen defendants (at the time, the plaintiff was
representing himself). Dkt. No. 1. On May 10, 2018, the court received the
plaintiff’s motion to supplement his claims and add new defendants. Dkt. No.
9. On September 12, 2018, the court denied that motion and ordered the
plaintiff to file an amended complaint containing all the related claims that he
1
wished to pursue in this lawsuit. Dkt. No. 11. The plaintiff did not file an
amended complaint by the deadline the court gave him, but he did notify the
court that he had been released from custody and was living in Milwaukee.
Dkt. No. 14. On November 29, 2018, the court extended to December 28, 2018
the deadline for the plaintiff to file an amended complaint, and sent that order
to him at the address he had provided to the court. Dkt. No. 15. The court did
not receive an amended complaint by the December 28, 2018 deadline, but it
did receive from the plaintiff a letter asking for information. Dkt. No. 16. The
court learned from the envelope in which he mailed that letter that the plaintiff
again was incarcerated. Dkt. No. 17 at 2. On January 11, 2018, the court
updated the plaintiff’s address and issued an order giving him a final deadline
of March 15, 2019 by which to file an amended complaint. Id. at 3. The court
advised the plaintiff that if it did not receive an amended complaint by that
deadline, the court would dismiss the case without prejudice. Id.
On January 23, 2019, the court received the plaintiff’s amended
complaint, naming Nurse Alicia Sanchez as the only defendant. Dkt. No. 18.
On March 4, 2019, the plaintiff notified the court that he had been transferred
to Waupun Correctional Institution. Dkt. No. 19. The court screened the
amended complaint and allowed the plaintiff to proceed on a claim that Nurse
Sanchez had injected the plaintiff with “what were possibly antipsychotic drugs
against his will while he possibly was involuntarily committed at the MMHC in
September 2016.” Id. at 6–7. The court observed that it was unclear whether
the plaintiff was a pretrial detainee or a convicted incarcerated person at the
2
time of the events described in the complaint, but it concluded that in either
scenario the plaintiff’s claim was based on alleged violations of the Due Process
Clause of the Fourteenth Amendment. Id. at 5–6.
On July 13, 2020, the court referred the case to Magistrate Judge Nancy
Joseph to handle pretrial matters. Dkt. No. 22. On August 19, 2020, Judge
Joseph issued a scheduling order setting deadlines by which the parties must
complete discovery and file dispositive motions. Dkt. No. 30. On August 24,
2020, the plaintiff filed a motion asking the court to allow him to amend his
complaint—again. Dkt. No. 31. Judge Joseph denied that motion but updated
the plaintiff’s request for relief to reflect his demand of $1 million in damages.
Dkt. No. 32. On January 1, 2021, the case was returned to this court for all
further proceedings.
On April 12, 2021, in response to a slew of filings from the plaintiff, the
court stayed all pending deadlines and ordered the parties to appear for a May
12, 2021 status conference. Dkt. No. 57. During that hearing, the court
granted the plaintiff’s request to reopen discovery, denied his motions for
preliminary relief or a temporary restraining order and granted the plaintiff’s
motion to recruit counsel. Dkt. No. 60. On December 8, 2021, the court issued
an order notifying the parties that Attorney James Santelle had agreed to
represent the plaintiff on a volunteer basis. Dkt. No. 63.
On February 10, 2022, the court held a status conference with the
parties, including newly recruited counsel for the plaintiff. Dkt. No. 71. The
court scheduled another status conference for March 30, 2022 to allow counsel
3
for both sides more time to become more familiar with the case. Id. At the
March 30, 2022 status conference, the court issued new deadlines by which
the parties must complete discovery and file amended pleadings. Dkt. No. 73.
The court scheduled another status conference for October 12, 2022. Neither
party filed anything between the March 30 and October 12, 2022, conferences.
During the October 12, 2022 conference, the plaintiff’s counsel told the
court that he had prepared an amended complaint but would not be ready to
file it for another week or two. Dkt. No. 75. The court ordered counsel to file the
amended complaint by October 24, 2022 and scheduled another status
conference for November 10, 2022. Id. At the October 24, 2022 deadline, the
court received plaintiff’s motion to amend his complaint and the proposed
amended complaint. Dkt. No. 76. On November 10, 2022, the defendant filed a
response in opposition to the motion to amend. Dkt. No. 77. The same day, the
court held another status conference. Dkt. No. 80. The plaintiff’s counsel
explained that he had reviewed defendant’s opposition to the motion to amend
the complaint and asked for time to file a reply. Id. The court denied that
request, advising counsel that it had concluded that the proposed amended
complaint failed to state a claim against Milwaukee County and no longer
included the claim against Nurse Sanchez. Id. The plaintiff’s counsel asked the
court to allow him to file an amended motion and a proposed third amended
complaint “to address the court’s concerns.” Id. The court granted that request,
ordered counsel to file the motion and third amended complaint no later than
November 21, 2022, allowed defense counsel to file a response by December 2,
4
2022 and ordered the plaintiff to file a reply (if he chose to do so) by December
9, 2022. Id.
On November 21, 2022, the court received the plaintiff’s amended motion
to amend his complaint and the proposed third amended complaint. Dkt. No.
81. The defendant again filed a brief opposing the plaintiff’s motion, dkt. no.
82, and the plaintiff filed his reply brief in support, dkt. no. 83. On June 11,
2023, the court issued an order denying the plaintiff’s motion to amend his
complaint. Dkt. No. 86. The court explained that the proposed third amended
complaint sought to proceed against three new defendants, but the claims
against those defendants were untimely; the only defendant named in both the
original and third amended complaint was Nurse Sanchez. Id. at 12–13. The
court concluded that allowing the plaintiff to amend his complaint and to
proceed on the third amended complaint “would be futile because it fails to
state a plausible claim against Sanchez.” Id. at 18. The court explained that it
had received a letter from the plaintiff himself (not his attorney) expressing
concern about his recruited counsel’s representation. Id. at 21. The court
“encourage[d] the plaintiff to be patient and to try to cooperate with his lawyer.”
Id. at 22. The court explained that the plaintiff’s amended complaint (Dkt. No.
18) remained the operative complaint. Id. at 23.
On June 14, 2023, the court issued an amended scheduling order,
providing a deadline of August 14, 2023 by which the parties must file
dispositive motions. Dkt. No. 87. On August 8, 2023, the court granted the
defendant’s unopposed motion to extend that deadline to August 28, 2023.
5
Dkt. No. 90. At the August 28, 2023 deadline, the court received the
defendant’s motion for summary judgment. Dkt. No. 92. The court twice
granted the plaintiff’s motions for an extension of time to file his response to
the defendant’s motion. Dkt. Nos. 101, 103. On November 3, 2023, the court
received the plaintiff’s response and supporting materials. Dkt. No. 104. The
defendant’s motion is now fully briefed and ready for disposition.
B.
Factual Background
1.
The Allegations in the Amended Complaint
The plaintiff filed the amended complaint on the court’s form for
incarcerated persons proceeding without an attorney. Dkt. No. 18. The plaintiff
signed his complaint and “declare[d] under penalty of perjury that” its contents
are “true and correct.” Id. at 5. The court treats the verified complaint as “the
equivalent of an affidavit for purposes of summary judgment, because it
‘contains factual allegations that if included in an affidavit or deposition would
be considered evidence, and not merely assertion.’” Beal v. Beller, 847 F.3d
897, 901 (7th Cir. 2017) (quoting Ford v. Wilson, 90 F.3d 245, 246 (7th Cir.
1996)).
The court detailed the complaint’s allegations in the screening order:
The plaintiff alleges that on September 8—he
doesn’t say which year—Milwaukee Police Department
officers escorted him to the Milwaukee Mental Health
Complex. Dkt. No. 18 at 2. There, the plaintiff says he
spoke with a Nurse Alicia Sanchez. He states that he
attempted to explain to Nurse Sanchez what had
happened to him while he was at St. Francis Hospital
and how his medications had been misplaced. Id. He
asserts that Nurse Sanchez began to doubt him, telling
him that he was lying after laughing at him. Id. The
6
plaintiff says that this caused him to become very upset
and defensive. Id.
The plaintiff says that after his conversation with
Nurse Sanchez, he walked to the television area where
he watched television for about forty minutes. Id. He
states that “out of the blue,” Nurse Sanchez and
security came and “escorted [him] to the restraint bed
where [he] was then stuck with a needle.” Id. He states
he “told ‘Sanchez’ that she [could not] force medication
upon [him] against [his] will which is a violation of [his]
constitutional rights.” Id. at 2-3.
Dkt. No. 21 at 3–4. The plaintiff seeks $1 million in compensatory and punitive
damages. Id. at 4; Dkt. No. 32.
2.
Psychiatric Crisis Services at the Milwaukee County
Behavioral Health Division
At all relevant times, defendant Sanchez was a registered nurse working
for Milwaukee County. Dkt. No. 93 at ¶9.1 On September 9, 2018, the
defendant was working at the Psychiatric Crisis Services Emergency Room
(PCS) at Milwaukee County Behavioral Health Hospital. Id. at ¶¶10–11. The
plaintiff was a patient at the hospital on the morning of that day. Id. at ¶11.
The defendant submitted a declaration from Dr. Larry Sprung, a
psychiatrist who worked for Milwaukee County Behavioral Health Division
(BHD) as a psychiatrist assigned to the PCS at the hospital. Dkt. No. 95 at ¶¶1–
2. Dr. Sprung explains that individuals whom law enforcement detain under
The court has not relied heavily on the defendant’s proposed findings of fact,
dkt. no. 93, because those facts rarely cite the correct supporting evidence. The
plaintiff does not dispute most of the proposed facts and did not offer his own
proposed facts. Accordingly, the court has relief on the declarations, exhibits
and deposition transcripts in its effort to recount an accurate explanation of all
versions of the facts.
1
7
Wis. Stat. §51.15 “come through PCS” under what is considered “an emergency
detention.” Id. at ¶6. Those individuals must pass through PCS for an
assessment to determine if they meet the criteria for admission to the BHD. Id.
at ¶4. Wisconsin Statute §51.15 allows for emergency detention and “treatment
by the least restrictive means appropriate” of an individual who meets several
criteria, including that they “(1) are mentally ill, drug dependent, or
developmentally disabled; (2) are dangerous to themselves or others as defined
in the statute; and (3) are reasonably believed to be unable or unwilling to
cooperate with voluntary treatment.” Dkt. No. 93 at ¶13; see Wis. Stat.
§51.15(1)(ag)(1.)–(3.).
The defendant also submitted a declaration from Doctor of Osteopathy
Tony W. Thrasher, who is the Medical Director of Crisis Services at the BHD.
Dkt. No. 96 at ¶¶2, 4. Dr. Thrasher avers that in September 2016, when law
enforcement brought an individual to the BHD under an emergency detention,
a physician within the PCS would conduct a medical evaluation of the
individual. Id. at ¶5. The physician would then determine whether the
individual should be admitted into the BHD under §51.15, transferred to a
private psychiatric unit or discharged to an outpatient or community level of
care. Id.
3.
Events of September 9, 2016
On September 9, 2016, Milwaukee Police Officers detained the plaintiff
under an emergency detention. Dkt. No. 95 at ¶7. Before that, he was a
voluntary patient in the psychiatric unit at St. Francis–Ascension Hospital. Id.
8
at ¶¶8–9. During his stay at St. Francis-Ascension, the plaintiff had reported
feeling suicidal and depressed, and he told hospital staff that he believed that
people were “trying to harm him or kill him.” Dkt. No. 97-3 at 5.2 He was
concerned that prison staff had “tr[ied] to poison him” during a previous
incarceration, and he said that “police [were] trying to kill him and had planted
gone [sic] on him.” Id. The plaintiff eventually became “physically aggressive
towards property and verbally aggressive towards staff;” staff attempts to
verbally deescalate the situation were unsuccessful, and the arrival of security
agitated the plaintiff further. Id. at 13. Security deemed it necessary to call the
police; as hospital staff waited for the police to arrive, the plaintiff made further
threatening statements, became combative, took his clothes off and lay on the
floor screaming. Id. The police arrived, spoke with the plaintiff and decided that
he “was too violent and the threats that [he] was making were too severe to
remain at St. Francis.” Id. A doctor discharged the plaintiff and the police
handcuffed the plaintiff, removed him from the hospital and transferred him to
the BHD. Id.; Dkt. No. 95 at ¶9.
The plaintiff was admitted to the PCS, and he signed a form consenting
to “care and treatment as may be deemed proper in the judgement [sic] of the
The nurse’s notes reflect that when the plaintiff arrived on the unit near
midnight, he’d refused to answer admission questions until someone found his
prescription Xanax. Dkt. No. 97-3 at 13. The nurse wrote that she contacted
the emergency department, the pharmacy and security, but that no one had
seen the plaintiff with a prescription bottle. Id. The nurse relayed that
information to the plaintiff; that is what appears to have caused him to become
aggressive. Id. It appears that during the events at St. Francis, the plaintiff
referred, more than once, to needing the medication and to people having
stolen it. Id.
2
9
clinical staff of the Milwaukee County Behavioral Health Division.” Dkt. No.
96-1 at 3. By signing this form, the plaintiff also acknowledged that he
authorize[d] and consent[ed] to any services of an emergency nature,
including but not limited to psychiatric interview and other
diagnostic procedures, laboratory procedures, medical, and other
hospital services which are deemed necessary or advisable to by the
attending physician(s) and rendered to [him] under the general or
specific instructions of said physician(s).
Id. The plaintiff was provided and signed a copy of an acknowledgment of his
rights as a patient in the BHD. Id. at 4. This form acknowledged that staff had
provided the plaintiff a copy of the “Client Rights and the Grievance Procedure
for Inpatient Services” brochure given to hospital patients. Id.
A registered nurse at the PCS (not the defendant) conducted an initial
nursing assessment of the plaintiff at 3:06 a.m. on September 9, 2016. Dkt.
No. 95 at ¶11; Dkt. No. 96-1 at 9. The nurse wrote that the plaintiff was
agitated, paranoid and depressed. Dkt. No. 96-1 at 9. He complained that staff
at St. Francis “robbed [him], they took [his] xanax,” they “lied to [him], then
they said [he was] lying, that[’]s real bullshit.” Id. The plaintiff explained that he
was “on [his] edge” because his sister “shot her head.” Id. He said he was
“ready to kill and ready to die,” “tired of living like this” and “tired of going to
county jail mistreating [him], starving [him].” Id. He told the nurse that he
“want[ed] to know whole world to make news.” Id. The plaintiff told the nurse
that “he was going to kill hospital staff and the police would have to kill him to
get him to stop.” Id. The nurse recorded the plaintiff as saying, “I[’]m going to
make you all kill me.” Id. At 4:07 a.m., the same nurse entered a progress note
about her assessment of the plaintiff. Id. at 16. This note reiterates many of the
10
details from her assessment. Id. It also notes that the plaintiff claimed that he
was supposed to take Xanax twice per day, and that he had last taken the
medication at 6:00 p.m. while at St. Francis. Id. The nurse noted that staff
would “monitor pt [patient] for unsafe behavior.” Id.
The defendant was assigned as the plaintiff’s primary nurse when she
arrived at work at 6:45 a.m. Dkt. No. 93 at ¶¶19, 27. At around the same time,
Dr. Sprung performed a medical screening and status of the plaintiff, and he
completed a doctor’s assessment about an hour after that. Dkt. No. 95 at
¶¶12–13; Dkt. No. 96-1 at 6–7, 18–19. Dr. Sprung’s assessment showed that
the plaintiff was fully alert, and he “presented with an irritable, elevated and
angry mood.” Dkt. No. 95 at ¶14; Dkt. No. 96-1 at 6. The plaintiff expressed
homicidal and suicidal thoughts and showed poor judgment. Dkt. No. 95 at
¶14; Dkt. No. 96-1 at 6. He “also displayed suspicious, blaming, entitled and
agitated behaviors.” Dkt. No. 95 at ¶14; Dkt. No. 96-1 at 7.
Dr. Sprung conducted a Risk Assessment of the plaintiff, finding that he
“displayed moderate self-harm behavior due to his suicidal ideation” and “also
displayed as a risk for violent behavior due to his verbal aggression and violent
ideations.” Dkt. No. 95 at ¶15; Dkt. No. 96-1 at 14. At 6:50 a.m., Dr. Sprung
entered a progress note that the plaintiff “was agitated” at St. Francis and
claimed that staff there “stole his xanax upon check in.” Dkt. No. 95 at ¶16;
Dkt. No. 96-1 at 15. The plaintiff told Dr. Sprung that he “was to be treated for
mood swings and he has been off depakote by ‘bad choices.’” Dkt. No. 96-1 at
15. The plaintiff reported feeling that “people are after him, the police are
11
harassing him, that he will be killed on the streets as he is out of control and
will go after the security people at [S]t. [F]rancis and the police will shoot him
there.” Id. Dr. Sprung reported that the plaintiff was “labile, intense and
ruminative.” Id. He planned to place the plaintiff on observation, resume the
medication Depakote “and monitor for detox from benzos.” Dkt. No. 95 at ¶17;
Dkt. No. 96-1 at 15.
Dr. Sprung avers that, according to the plaintiff’s medical records,
sometime after 7:00 a.m. the plaintiff “engaged in disruptive behavior on the
unit.” Dkt. No. 95 at ¶18. Dr. Sprung avers that the plaintiff “was verbally
aggressive, making verbal threats and physical threats to harm the defendant
. . .” Id. The defendant entered a progress note at 10:43 a.m. further describing
the plaintiff’s behavior. Dkt. No. 96-1 at 15. The note says that the plaintiff
“has been verbally loud on phone, making verbal threats on how he is going to
buy [g]uns, 2 different types of guns, verbally stating [his] threats to kill people
when he gets out of here.” Id. The defendant documented that the plaintiff had
threatened her, saying “I’m going to kill, wait til I get out of here! You are dead,
wait til I get out of here, I’m coming back to get you, you’re dead!” Id. The
plaintiff was pacing and threatening “to phys[ic]ally destroy unit,” was “verbally
loud, verbally aggressive, disrupting unit.” Id.
Based on the plaintiff’s behavior, Dr. Sprung authorized the use of
seclusion and restraints. Dkt. No. 95 at ¶19; Dkt. No. 96-1 at 21. The plaintiff
voluntarily walked himself into the Seclusion Room with staff and security.
Dkt. No. 96 at ¶9; Dkt. No. 96-1 at 24. Staff applied four-point restraints on
12
the plaintiff, and registered nurse Stephen Bradford administered “an
intramuscular injection to calm him so that he would no longer be an
immediate danger to his self or others.” Dkt. No. 95 at ¶19; Dkt. No. 96-1 at
21. The plaintiff’s records from the BHD pharmacy show that the injections
contained Benadryl (diphenhydramine) and Haldol. Dkt. No. 96-1 at 20. The
defendant’s progress note about this incident says that the plaintiff “spit at RN
Alicia [presumably the defendant], aimed but spit was missed.” Id. at 15. At
around 8:00 a.m., the defendant extended the plaintiff’s seclusion an
additional hour because of his continued behavioral issues. Id. at 15, 20. Staff
called the Milwaukee County Sherriff’s Office to report the plaintiff’s “abuse
with RN,” and sheriff’s deputies arrived to take the plaintiff “to Jail for
disposition.” Id. at 15. The plaintiff was discharged from the PCS at around
9:30 or 9:35 a.m. Id. at 22, 24.
Dr. Sprung avers that it “was medically appropriate to medicate” the
plaintiff because of “his behavior and the risk that he posed to himself and
others.” Dkt. No. 95 at ¶20. He says that the use of the injection and restraints
accorded with the BHD’s “policy regarding the use of restraints and the
emergent use of psychotropic medications.” Id. Dr. Thrasher agrees with those
assertions and avers that Dr. Sprung “appropriately ordered” the injections
“under the circumstances.” Dkt. No. 96 at ¶10. The defendant attached to
Dr. Sprung’s declaration a copy of various BHD policies and procedures. Dkt.
No. 95-1. The policy on “Psychotropic Medications” that Dr. Sprung mentions
provides that “[i]nvoluntary emergency medications may be administered
13
without the patient’s consent only when there is clear evidence of behavior that
poses a substantial risk or occurrence of serious self-injurious behavior and/or
serious physical assault to others.” Id. at 2.
4.
The Defendant’s Deposition Testimony
The defendant attached a transcript of a deposition that the plaintiff’s
counsel conducted of the defendant in August 2022. Dkt. No. 97-1. The
testimony added detail to the events of September 9, 2016. The defendant
testified that the main waiting area of the emergency room at PCS is “all open,”
and providers and patients “can hear everything.” Id. at 17:10–11. There is a
nurses’ station and a doctors’ station nearby, there are four “assessment
booths” for intake and there are “recliners” instead of beds where patients may
sit. Id. at 17:2–20. As the plaintiff’s medical documents show, the defendant
arrived at 6:45 a.m. and became the plaintiff’s primary nurse for her shift. Id.
at 18:15–18. She recounted that the plaintiff was at the BHD involuntarily, and
that police officers had brought him there from St. Francis “because he
destroyed the inpatient unit” there and “threatened to kill everybody inside St.
Francis Hospital.” Id. at 19:19–21:4. She noted that the plaintiff “signed his
acknowledgement from administration,” but said that staff “were trying to
figure out why he even came to PCS because he should not have come in the
first place.” Id. at 21:23–22:4. She explained that there “should have been a
report, doctor to doctor or nurse to nurse” determining whether the plaintiff
met the criteria to be at PCS “because he destroyed the unit at St. Francis.” Id.
14
at 22:8–13. The defendant could not answer when asked why the “normal
process” was not followed. Id. at 23:3–9.
The defendant testified that she first spoke with the plaintiff when she
“got on the floor, and that’s when he started acting out.” Id. at 25:22–23. She
testified that “he was pacing all over the unit” where other patients and the
recliners were. Id. at 26:3–9. She recounted the notes of her initial assessment
with the plaintiff, during which he claimed that St. Francis staff “robbed” him
and “took [his] Xanax,” and he was “ready to kill” and “ready to die.” Id. at
30:20–31:10. She clarified that her notes in her assessment were “quotes from
[the plaintiff]” that she took contemporaneously on September 9, 2016. Id. at
31:19–32:7. She explained that, “[a]s a nurse, you document as you go . . . as it
is happening.” Id. at 58:10–13. She added that all nurses and medical staff at
PCS “have to document ethically” what happens at the PCS. Id. at 62:5–8.
The defendant also recounted the details from her progress note,
explaining that the plaintiff had “been verbally loud on the phone” and “was
severely banging on the phone with harsh force, making verbal threats on how
he’s going to buy guns, two different types of guns, verbally stating homicidal
threats to kill people when he gets out of here.” Id. at 32:12–21. She explained
that the phone was “an old public phone” that is “mounted on the wall” at PCS
for use by all patients. Id. at 34:16–20. She testified that the plaintiff “was
banging it, banging the head—the hand-held set on the device.” Id. at 35:8–10.
The defendant recounted the plaintiff’s “verbal threats to the nurse,
meaning [her],” stating that he was “going to kill” and that he was “coming
15
back to get [her].” Id. at 32:22–33:1. She testified that the plaintiff was targeted
“‘and focusing on—on nurse,’ which is [her].” Id. at 33:7–8. The defendant
explained that the plaintiff was “pacing, amping, pacing, physically aggressive,
he is yelling on the top of his lungs and just yelling, screaming out of normal
tone behavior.” Id. at 35:15–18. She testified that his behavior was “all
continuous, nonstop pacing, screaming, yelling, banging back and forth,
pacing all over the unit . . . threatening behavior, like he’s going to charge and
destroy the unit.” Id. at 35:24–36:7. The defendant noted that “[a]ll working
staff there that day” could hear the plaintiff “because he’s yelling” in the open
area. Id. at 36:8–13.
The defendant also testified about Dr. Sprung’s decision to medicate the
plaintiff. Id. at 38:15–19. She testified that, after Dr. Sprung “gives [the] order,”
id. at 38:24, security staff grabbed the plaintiff “arm to arm, but he didn’t
resist at all. He was cooperative. He walked himself into the seclusion room
along with the nurses . . . .” id. at 39:1–5. She explained that the seclusion
room is “just a couple feet away, around the corner” from the main area of the
PCS. Id. at 39:12–15. PCS staff uses the room when patients “are a harm to
themselves or others or, like, extreme violence, aggression. It’s going to be, like,
an extreme, violent episode.” Id. at 39:18–21. She testified that staff restrained
the plaintiff “by [his] wrists and ankles” with “Velcro restraints,” and he was
lying face up on a small bed “a couple of inches off the floor.” Id. at 40:5–24.
She reiterated that the plaintiff “cooperatively walked himself in and laid
himself down on the restraint bed” with “[n]o resistance at all.” Id. at 41:12–15.
16
She repeated that “everything that is said or done, is all documented,”
including restraining the plaintiff and his time in the seclusion room. Id. at
43:18–19.
The defendant testified that Dr. Sprung initially ordered Geodon,3 but the
plaintiff “claimed that he’s allergic to Geodon.” Id. at 44:10–11. She told the
plaintiff “what he was receiving, and he refused that because he stated that he
was allergic to it.” Id. at 45:4–6. Dr. Sprung then changed the medicine to
10mg of Haldol4 and 50mg of Benadryl, which Nurse Bradford gave the plaintiff
at 8:10 a.m. Id. at 44:12–15. The defendant explained that there was a team of
nurses, Dr. Sprung, a certified nursing assistant (CNA) and security staff
present for the injections; it was “a team effort . . . for the safety of the working
staff, everybody involved.” Id. at 47:19–21. The defendant explained that Haldol
is “a psychiatric medicine” that “helps with agitation, aggression, with
psychosis, with mood, so it helps them be calm.” Id. at 45:22–24. Benadryl is
“also a form to help them relax, but it’s just also to ensure there’s no side
effects.” Id. at 46:1–2. She explained that the injections were given separately.
Id. at 46:13–14.
“Geodon” is the brand name for ziprasidone, a medication used in treating
schizophrenia and bipolar disorder by balancing dopamine and serotonin
levels. https://my.clevelandclinic.org/health/drugs/18590-ziprasidonecapsules.
3
Haldol is the brand name for haloperidol, an antipsychotic that regulates
dopamine levels. https://my.clevelandclinic.org/health/drugs/19626haloperidol-tablets.
4
17
The defendant denied that the plaintiff objected to receiving the
injections of Haldol and Benadryl. Id. at 48:23–49:6. She testified that the
plaintiff “agreed with it because he refused the Geodon, so he was okay with
receiving the Haldol and the Benadryl injection which he did not refuse.” Id. at
49:6–9. She reiterated that “he was cooperative” while Nurse Bradford gave the
plaintiff the injections. Id. at 49:9–11. She again denied that the plaintiff had
opposed or refused the medications “because he was informed prior to
receiving those medications. He was cooperative.” Id. at 49:12–18. The
defendant testified that the plaintiff “was completely cooperative and accepted
these two medications verbally and physically.” Id. at 49:22–24. When the
plaintiff’s counsel continued to press the defendant about the plaintiff’s
consent to receive the injections, she reiterated, “He did not object in any way,
shape or form. He was completely cooperative in every way, shape and form. He
was informed of all medicines, and he was very well aware of the whole
process.” Id. at 50:12–16. She gave the same answer to counsel’s repeated
questions about whether the plaintiff opposed the injections. Id. at 51:2–8.
The defendant testified that after the plaintiff received the injections, staff
monitored him for an hour “to ensure that there’s no adverse effects” from the
medications. Id. at 51:14–17. She explained that the plaintiff had “no adverse
reactions. He was completely safe. And, in fact, it helped him.” Id. at 51:20–22.
But the defendant testified that after staff explained “the process of why he’s in
seclusion, so then that’s when he spit at [her]. He launched a big phlegm and
spit it at [her].” Id. at 52:1–5. She testified that she “saw it coming, so [she]
18
stepped sideways to avoid that, that spit.” Id. at 52:5–7. She testified that when
the plaintiff continued “to be verbally aggressive post the restraint of one hour,”
PCS staff “extended it to an additional hour.” Id. at 51:23–25. She added that
PCS “staff did not feel safe,” so they extended the plaintiff’s time in seclusion
“because the sheriffs were on their way.” Id. at 56:4–6. The defendant added
that the plaintiff seemed “just focused on [her],” possibly “because [she] was
the primary assigned nurse, but there was no rhyme or reason of why.” Id. at
53:3–10. She testified that he was not focused on other staff and “was just
ranting in general.” Id. at 53:11–14.
The defendant testified that the Milwaukee County sheriffs arrived at
9:30 a.m., and PCS staff “released [the plaintiff] out of restraints and
discharged [him] to the sheriffs for a transfer to the Milwaukee County Jail.” Id.
at 53:25–54:4. She did not know who called the sheriff’s office, but she opined
that “they had to be called because of the spitting.” Id. at 54:5–9. She testified
that if the plaintiff had not spit at her, “he would have been moved then to the
observation unit for further observation.” Id. at 54:14–17. The defendant again
emphasized that all PCS staff—herself, the other nurses, Dr. Sprung and the
CNA—documented these events in their assessments and notes. Id. at 62:18–
63:17. She pointed out that “all the nurses co-signed with [her]” the plaintiff’s
seclusion assessment, and that the CNA completed an “assessment for safety
documentation.” Id. at 63:12–15.
19
5.
The Plaintiff’s Response to the Defendant’s Proposed Facts
and Declaration
The plaintiff’s responses to the defendant’s proposed findings of fact
generally agree or disagree with each proposed fact. See Dkt. No. 104-2. The
plaintiff does not disagree with what the medical records show, but he contests
the conclusions the court should draw from those records and often responds
with “but see Declaration of the Plaintiff,” listing specific paragraphs. See,
e.g., id. at ¶¶16–18, 29–32, 41, 44, 48, 52, 59, 67–69. He occasionally
expresses “some disagreement” with a proposed fact and cites paragraphs from
his declaration. See, e.g., id. at ¶¶35–37, 43, 49–50, 56. The only proposed
facts to which he registers “Disagreement and objection” are those discussing
whether he consented to receive the injections and was cooperative while
receiving them. Id. at ¶¶46–47. The plaintiff explains in his brief in opposition
to summary judgment that “he is compelled by his lack of recollection and his
present uncertainty to respond variously in substantial agreement, partial
agreement, some disagreement, and complete disagreement to the
recommended findings in” the defendant’s proposed facts. Dkt. No. 104 at 3.
At the conclusion of his responses to the defendant’s proposed findings
of fact, the plaintiff asserts that there exists an additional, contested fact that
requires the denial of the defendant’s motion for summary judgment. Dkt. No.
104-2 at 13. The plaintiff says that he
recalls with certainty and affirms with clarity that, at no time
throughout his inpatient presence at the Milwaukee County
Behavioral Health Division (BHD) on September 9, 2016, did he
authorize, consent to, or otherwise approve of the intravenous
administration to him of any psychiatric medicines, including but
20
not limited to Geodon, Haldol, or Benadryl, by and through the
medical staff, including but not limited to Registered Nurse Alicia
Sanchez.
Id. at ¶73. In support he cites several paragraphs of his declaration. Id. He
adds in a footnote that there are “both substantial or insubstantial
disagreements between the parties” about the details of the events from
September 9, 2016. Id. at ¶73, n.1. He clarifies that none of those
disagreements “rises to the level or even approaches the significance of a
genuine dispute as to a material fact sufficient to require a trial.” Id. He
explains that “the singular, highly important disagreement” that precludes the
entry of summary judgment is “whether consent and authorization was given
for the administration of intravenous psychiatric medicines or, as the Plaintiff
. . . maintains, he expressly, verbally, loudly, and repeatedly rejected and
refused such consent and authorization.” Id.
In his declaration, the plaintiff avers that on September 9, 2016, he
voluntarily admitted himself to St. Francis Hospital because he felt “that [he]
was about to have a mental health ‘breakdown’, which [he] had experienced
before.” Dkt. No. 104-1 at ¶¶3–4. He recalls making threats to injure himself
and others at St. Francis, which he “attribute[s] to [his] long-standing,
continuing challenges with mental illness.” Id. at ¶5. He notes that his
prescription of Xanax “had been either stolen or taken from [him] without [his]
permission; this made [him] very angry, which [he] expressed loudly.” Id. at ¶6.
The plaintiff recalls law enforcement officers transporting him from
St. Francis to the BHD and telling him that he “would be released the following
21
morning if there were no patient beds available for [him] at the BHD.” Id. at
¶¶7–8. He recalls a doctor and other medical staff, including the defendant,
examining him at the BHD,. Id. at ¶9. The plaintiff agrees that during his
examinations, he “was alert, oriented to [his] surroundings, and responsive to
the questions and comments” from medical staff. Id. at ¶10.
The plaintiff avers that he called his mother to “discuss with her some
difficult and troubling family issues relating to [his] brother and [his] sister.” Id.
at ¶11. He says that during this call, “medical staff told [him] that [he] was
being too loud and asked [him] to ‘quiet down,’ which [he] did.” Id. He avers
that the defendant also asked him “what was ‘going on,’ and [he] told her:
‘You’re not concerned. Mind your own stupid ass business, bitch.’” Id. at ¶12.
The plaintiff says that the defendant and other medical staff “were laughing
and ridiculing [him] and acting in a hostile manner toward [him].” Id. at ¶13.
He says that he “became very agitated and verbally abusive, eventually calling
the defendant a ‘bitch’ and a ‘whore.’” Id. He denies being “physically aggressive
or threatening violence to” staff of the BHD or himself “during any of these first
discussions.” Id. at ¶14. He says he described being “extremely angry” about
his missing medication from St. Francis. Id.
The plaintiff “recall[s] that” after about an hour at the BHD, he “was
watching television.” Id. at ¶15. He says that the defendant and other staff
“asked [him] to follow them into a room that was adjacent to the area in which
[he] was first examined.” Id. The plaintiff “voluntarily did do [sic], walking
behind them” into an area that was “isolated from other people at the BHD.” Id.
22
The plaintiff says staff instructed him “to lay down on a medical bed, which [he]
did voluntarily.” Id. at ¶16. He says he “let the medical staff strap [him] to the
bed with restraints on [his] torso, arms, and legs that prevented [him] from
moving in any way.” Id. He told medical staff that he “needed to urinate,” and
staff brought him “a portable urinal . . . so that [he] could do so, as [he]
remained restrained on the medical bed.” Id. at ¶17. The plaintiff reiterates
that he did not object to being in “that restrained and immovable position.” Id.
at ¶18. He says he “understood from conversation among the medical staff,
including the defendant, that they were about to administer to [him] a
psychiatric medicine identified as Geodon.” Id. He told staff that he is allergic
to Geodon. Id. at ¶19.
The plaintiff then avers, “Significantly, [he] also expressed clearly and
unmistakably [his] strong and vigorous objection to the administration of any
intravenous medicines to [him], because [he has] long had a strong aversion to
needles and to their use on [him].” Id. at ¶20. He says that medical staff,
including the defendant, “unmistakably heard and understood [his] vocal
opposition to any intravenous medicines.” Id. at ¶21. He also “asked to be
released from the bed restraints and permitted to leave the BHP [sic].” Id. The
plaintiff avers that, despite his “repeated, vigorous objections to any
intravenous medicines and [his] request to leave the facility completely, the
medical staff, including [the defendant], proceeded to inject [him] with
psychiatric medicines.” Id. at ¶22. He says he only “later learned” that the
medicines were Haldol and Benadryl. Id. The plaintiff avers that he “was very
23
upset by the decisions and actions of the medical staff, including [the
defendant], to administer these psychiatric medicines to [him] contrary to [his]
will and in complete disregard of [his] repeated statements in opposition.” Id. at
¶23. The plaintiff says that, as he was objecting to being medicated, “[the
defendant] again laughed at [him].” Id. at ¶24. He says he “became very angry
and spat at her, but not on her.” Id. He also recalls threatening medical staff,
saying, “I wish I had an AK-47. I’d fuck you all up.” Id. at ¶25.
The plaintiff avers that officers from the Milwaukee County Sheriff’s
Department arrived shortly after he was medicated, took him into their custody
and transported him to the Milwaukee County Jail, where he “was charged
with disorderly conduct.” Id. at ¶26. He used his own money “to bail [him]self
out of jail” after several hours and return to St. Francis Hospital “to attempt to
get a new prescription of Xanax, replacing the one that was previously stolen or
taken from [him].” Id. at ¶27. He says he eventually got a replacement
prescription “but only after filing a written complaint with the Milwaukee Police
Department about the theft or taking of [his] Xanax prescription.” Id. at ¶28.
He says the disorderly conduct charge “was eventually dismissed.” Id. at ¶29.
The plaintiff reiterates, “At no time did I authorize the administration to
me of any psychiatric medicines by the medical staff, including [the defendant],
at the BHD, and I was loudly and repeatedly vocal in objecting to any
intravenous objections throughout my stay there.” Id. at ¶30. He says that he
“suffered various severe physical reactions and irritating responses” to the
medications, including “headache and body aches, pain and joint constrictions,
24
limb soreness and discomfort, and other similarly unpleasant, troublesome,
and harsh ailments, sicknesses, and disorders.” Id. at 31.
6.
The Plaintiff’s Deposition
Defense counsel deposed the plaintiff via Zoom on November 13, 2020,
before the court had recruited counsel to represent him. Dkt. No. 97-2. The
plaintiff first explained his voluntary stay at St. Francis and his missing Xanax
that caused him to “los[e] [his] cool,” after which he said the police escorted
him to the BHD. Id. at 5:8–19. He says that he told the defendant “what was
going on . . . and she laughed at [him] and kind of was being rude.” Id. at 5:24–
6:1. He got “real irritated” and told the defendant, “‘If you don’t want to know
what’s going on, don’t ask me, you stupid bitch.’” Id. at 6:2–4. He testified that
he went to watch television and that after about forty minutes, the defendant
“and the security team” approached him and told him to go with them. Id. at
6:7–11. He followed them to “the strap-down bed, and then stuck [him] with a
needle.” Id. at 6:11–12. He says he asked staff why they were “all doing this”
and insisted he was “clearly calm, chilling, watching TV.” Id. at 6:13–14.5
Defense counsel asked the plaintiff to provide more details about his
allegations. Id. at 6:16–18. The plaintiff denied becoming physically aggressive
at St. Francis and opined that “when you get loud, they say that’s physical
aggression.” Id. at 9:4–6. The plaintiff denied threatening to kill anyone or to
shoot anyone at St. Francis with “an AK.” Id. at 10:2–11:2. The plaintiff
The plaintiff repeatedly mentioned cameras or footage of the September 9,
2016 incident. See Dkt. No. 97-2 at 6:6, 6:19, 16:19–22, 26:16–17, 29:25–30:1.
Neither party submitted camera footage or video evidence from the incident.
5
25
testified that the officers who took him from St. Francis to the BHD “could have
let [him] go back home. Like [he] could have done without all that stuff that
happened at Milwaukee County.” Id. at 15:3–6. But he then testified that he
went to the BHD “voluntarily” and that he “told them that’s fine . . . they can
take [him] there.” Id. at 15:14–18. The plaintiff claimed that he was not
detained and was not taken to the BHD on “an emergency detention.” Id. at
15:19–25.
The plaintiff testified that he spoke with a doctor and then the defendant
and he reiterated that the defendant “got really rude with [him] and laughed at
[him] like [he] was lying or something.” Id. at 16:13–15. He then “called her a
‘B’ word, and then [he] went and sat down in the TV area.” Id. at 16:17–18. He
testified that there were “two other patients there.” Id. at 43:23–24. The
plaintiff said that after about forty minutes, the defendant “came back with all
of the security and asked [him] to walk with them. [He] didn’t resist. [He]
walked with them.” Id. at 16:22–25. He said he allowed security to “strap [him]
down” and “was just thinking that was going to be that.” Id. at 17:1–3. But
then “[t]his lady went and got a needle and stuck [him] in the arm as calm as
[he] was, and [he] got angry.” Id. at 17:3–5. The plaintiff testified that he “tried
to spit on her afterwards, and [he] missed.” Id. at 17:7–8. He “tried to spit on
her because she had no right sticking [him] with that needle.” Id. at 27:15–17.
He reiterated that he did not consent to receiving the injection. Id. at 17:23–24.
The plaintiff claimed that it was the defendant who gave him the
intramuscular injection. Id. at 17:25–18:4. He testified that he knew the
26
defendant and had seen her “once before” during another stay at the BHD. Id.
at 18:14–18. The plaintiff testified that if he had not told the defendant to leave
him alone, “then she would have never stuck [him] with a needle.” Id. at 25:20–
24. The plaintiff recalled telling BHD staff “when they stuck [him] with the
needle . . . ‘I wish I had an AK-47.’ . . . ‘I would go fucking nuts on all you
devils who just abuse me.’” Id. at 11:13–16.
The plaintiff did not specifically remember speaking with Dr. Sprung and
did not recall saying that he was angry that St. Francis staff stole his Xanax;
but he testified that he remembered “telling everybody that asked [him] what
happened.” Id. at 20:16–21:5. He did recall telling Dr. Sprung that his mood
was unstable, that he felt anxious and agitated, that people were after him and
that the police were harassing him. Id. at 39:3–40:2. He claimed that in 2016,
“the cops was killing everybody all over America, and they was waiting to do
that to [him]. . . . [He believed] they wanted to take the melanin out of [his] skin
so they can inject it for their own personal uses, so they want to kill people that
look like [him].” Id. 40:7–12.
The plaintiff testified that he did not become angry until “that lady was
being rude to [him] and laughing in [his] face.” Id. at 21:7–8. The plaintiff
denied telling anyone that he was “going to get [him]self killed on the streets
after [he] go[es] after the people at St. Francis.” Id. at 21:13–17. He did not
“recall ever saying no sick stuff like that.” Id. at 21:19–20. But the plaintiff later
said he was “not sure” whether he told a different nurse that he “wanted to
commit suicide by police or security while [he] was at St. Francis” or that he
27
would “kill hospital staff.” Id. at 23:16–25. He also testified that by the time he
arrived at the BHD, he was “pretty calm” and no longer agitated. Id. at 24:14–
16.
The plaintiff recalled talking to his mother on the phone, but he did not
recall telling her that he was “going to buy guns” or “going to buy two different
types of guns.” Id. at 26:22–24, 28:10–15. He testified that his “mind was
racing, and [he] probably was saying some stupid shit.” Id. at 28:15–16.
Defense counsel asked the plaintiff if he remembered telling his mother that he
was “going to kill people when [he] got out of there” or threatening to kill
anyone. Id. at 28:18–24. The plaintiff testified that he did not “recall telling [his]
mama no shit like that.” Id. at 28:20–21. He reiterated that he “cursed them
out” after they “stuck [him] with that needle,” but he did not recall “exactly
what [he] said.” Id. at 28:25–29:17. He later recalled telling medical staff, “Just
because you violating me right now, you’re going to have to see me later. I’ll be
back.” Id. at 29:20–21. He testified that he was loud during his phone call, but
that he quieted down when staff asked him to. Id. at 31:2–8. He denied pacing
around the PCS area after he spoke with his mother. Id. at 30:17–31:1. The
plaintiff insisted that the defendant’s rude demeanor “didn’t make [him] angry,
because if [he] was angry, [he] would’ve became [sic] violent, and [he] never
became violent with anyone.” Id. at 32:24–33:1. He said that calling the
defendant “a bitch” was not anger but “was kind of like tit for tat.” Id. at 33:3–
8. He claimed that his comment “made her angry,” but he was not angry. Id. at
28
33:16–17. The plaintiff repeatedly denied threatening the defendant at her desk
before he received the injections. Id. at 33:18–34:8, 34:23–35:2.
The plaintiff testified that three or four security guards were in the
restraint room with him and the defendant. Id. at 36:23–37:2. He did not recall
whether other nurses were in the room. Id. at 37:2–7. He declined seeing a
doctor in the room before the injections. Id. at 37:8–14. The plaintiff
“remember[ed] blinking a few times” after the injections and then “waking up
being handcuffed by the sheriffs and charged with disorderly conduct,
misdemeanor.” Id. at 37:17–18. He said that he “blanked out” or “passed out”
after the injections. Id. at 46:7, 22.
The plaintiff said he “probably” told the defendant that he was “sick of
living like this.” Id. at 41:17–19. He denied threatening “to destroy the unit”
and again said he was “calmly watching TV minding [his] own business.” Id. at
42:2–5. He claimed that “the people [defense counsel is] defending” were “just
saying that to make it seem like they just was perfectly in the right for doing
[him] like that.” Id. at 42:12–15. He again denied being verbally aggressive
toward the defendant and “just called her a bitch.” Id. at 42:16–19. He said
other staff members did not hear him speaking with the defendant “because it
ain’t like [he] was screaming and yelling like [he] was angry or something.” Id.
at 50:8–17. He testified that after he called the defendant a bitch, he “could
just see how evil she was looking . . . like she wanted to kill [him] or
something.” Id. at 51:14–18. The plaintiff believed “it was her intention to
29
justify harming [him], but [he] didn’t give her no justification because [he]
calmly walked away and sat down and watched TV.” Id. at 52:5–8.
The plaintiff testified that he suffered headaches and body soreness from
the injections. Id. at 44:12–14. He said that he “probably got cancer. . . . she
could have put something in [him] like they did those kids in Africa.” Id. at
44:17–19. He suggested that he “probably got HIV now.” Id. at 44:19. He
repeated that he did not know what was in the injections, but that he “didn’t
consent for her to do it.” Id. at 44:19–20, 23–24. He testified that his “back
hurt,” and he had “breathing problems like [he has] lung cancer or something.”
Id. at 45:3–4. He said that his HIV tests have been negative, and x-rays showed
“no tumors or nothing” in his chest. Id. at 45:12–14.
The plaintiff testified that he has had memory problems since September
7, 2005, when he “was hit in the head” and spent about a month in the ICU at
Aurora Sinai. Id. at 35:8–36:8. He said he was diagnosed with “malneurogatory
[sic] trauma.” Id. at 36:8–9. He testified that previously, when he was
incarcerated at Mendota Mental Health Institute, doctors told him that he is
paranoid or that he suffers from paranoid delusions. Id. at 57:5–11.
II.
Discussion
A.
Summary Judgment Standard
A party is entitled to summary judgment if it shows that there is no
genuine dispute as to any material fact and it is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). “Material facts” are those that “might affect the
30
outcome of the suit.” See Anderson, 477 U.S. at 248. A dispute over a “material
fact” is “genuine” if “the evidence is such that a reasonable jury could return a
verdict for the non-moving party.” Id.
Summary judgment is proper “against a party who fails to make a
showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To survive a motion for
summary judgment, a non-moving party must show that sufficient evidence
exists to allow a jury to return a verdict in its favor. Brummett v. Sinclair
Broad. Grp., Inc., 414 F.3d 686, 692 (7th Cir. 2005).
B.
Analysis
The defendant asserts that she is entitled to summary judgment for three
reasons: 1) she did not personally administer the psychotropic drugs to the
plaintiff and personally cannot be held liable for violating his rights;
2) administering the drugs to the plaintiff “was appropriate and medically
necessary” for the safety of the plaintiff and the BHD staff; and 3) she is
entitled to qualified immunity. Dkt. No. 94 at 9.
1.
Personal Liability
The defendant asserts that “[a]s a matter of law, the plaintiff’s claim
against [the defendant] fails because [the defendant] did not participate in the
alleged constitutional violation of which [the plaintiff] complains.” Dkt. No. 94
at 13. She cites a recent decision in which she says this court “grant[ed]
summary judgment in favor of defendant in a § 1983 action where he could not
31
be liable due to lack of personal involvement.” Id. (citing Lux v. City of
Whitewater, 631 F. Supp. 3d 647, 667 (E.D. Wis. Sept. 28, 2022)). The
defendant says that “the undisputed facts show that [the defendant] did not
personally administer drugs to [the plaintiff] as he claims while he was at PCS.”
Id. at 12. The defendant asserts that it was Nurse Bradford who administered
the medication, and that the defendant “had no part in that administration.”
Id. at 13. The defendant contends that because she “was not the perpetrator of
any alleged violation of [the plaintiff’s] rights but a victim of his outburst and
threats,” the court should grant her motion and dismiss this case. Id. at 14.
The defendant is correct that under §1983, a plaintiff’s cause of action
must be “based on personal liability and predicated upon fault; thus, liability
does not attach unless the individual defendant caused or participated in a
constitutional violation.” Hildebrant v. Ill. Dep’t of Nat. Res., 347 F.3d 1014,
1039 (7th Cir. 2003) (quoting Vance v. Peters, 97 F.3d 987, 991 (7th Cir.
1996)); see also Lux, 631 F. Supp. 3d at 667 (quoting Minix v. Canarecci, 597
F.3d 824, 833 (7th Cir. 2010)) (“[I]ndividual liability under § 1983 requires
personal involvement in the alleged constitutional deprivation.”) (internal
quotation omitted). But the defendant’s assertion that it is undisputed whether
she was personally involved in administering the medication to the plaintiff is
incorrect.
The defendant testified during her deposition that Nurse Bradford
injected the plaintiff with the medications. The plaintiff’s medical records also
say that Bradford is the person who performed the injections. Dkt. No. 96-1 at
32
20. But the plaintiff provides two alternate versions of the facts, both of which
assert that the defendant was involved. The verified, amended complaint
alleges that the defendant and security escorted the plaintiff to the restraint
bed, he “was then stuck with a ne[e]dle” and the plaintiff told the defendant
“that she [could] not [sic] force medication upon [him].” Dkt. No. 18 at 2–3.
These allegations imply that the defendant was the person who administered
the medication, although they do not directly assert that she was. As the court
explained above, the verified, amended complaint is the same as an affidavit for
purposes of summary judgment. See Beal, 847 F.3d at 901.
The plaintiff’s deposition testimony follows the allegations of his amended
complaint, and he repeatedly testified that it was the defendant who injected
him with the medications. He did not recall any other nurse being present in
the seclusion room. Defense counsel conducted this deposition, and the
defendant submitted the transcript of the deposition with her materials in
support of her motion for summary judgment. Dkt. No. 97-2. The defendant
cannot claim that it is “undisputed” whether she personally administered the
medications when she herself provided evidence demonstrating the factual
dispute. The plaintiff’s declaration alternatively asserts that “medical staff,
including [the defendant]” injected him with the medicines. Dkt. No. 104-1 at
¶¶21–23. Although this statement is vague, it nonetheless suggests that the
defendant personally “caused or participated in” administering the drugs to the
plaintiff. The plaintiff asserts that the “apparent factual chasm between the
parties about who actually injected the drugs augurs in favor of a trial—during
33
which that issue would presumably be central to presentations on both sides.”
Dkt. No. 104 at 4.
Under either of the plaintiff’s versions of the facts, the defendant was
directly or indirectly involved in administering Haldol and Benadryl to the
plaintiff. Her assertion that she was not, and that Nurse Bradford performed
the injection, creates a genuine dispute of fact whether the defendant
personally injected the plaintiff with the medications and whether she may be
held personally liable. The defendant is not entitled to summary judgment on
this basis.
2.
Appropriate and Medically Necessary
The court explained in the screening order that the amended complaint
did not make clear whether, at the time of the alleged events, the plaintiff was
detained on criminal charges, voluntarily committed or involuntarily committed
under state law. Dkt. No. 21 at 4. The evidence in the parties’ summary
judgment submissions clarifies that the plaintiff voluntarily sought care at
St. Francis Hospital before officers escorted him to the BHD on an emergency
detention order under Wis. Stat. §51.15. That suggests that he was
temporarily, involuntarily detained for emergency care because of his perceived
mental illness and risk to himself or others. He was not facing charges at that
time and was not detained pending a trial or hearing. It was only after the
events at the BHD that the plaintiff was charged with disorderly conduct and
taken to the jail to await a hearing and process on that charge.
34
In the screening order, the court cited Mills v. Rogers, 457 U.S. 291, 299
n.16 (1982), for the proposition that “involuntarily committed mental patients
do retain liberty interests protected directly by the Constitution . . . [and] these
interests are implicated by the involuntary administration of antipsychotic
drugs.” Dkt. No. 21 at 5. But that statement was dictum, tucked in a footnote
in the Supreme Court’s decision. The Court explained that it was “[o]nly
‘assuming’ the existence of such interests,” and took “no view as to the weight
of such interests in comparison with possible countervailing state interests.”
Mills, 457 U.S. at 299 n.16.
This court also explained in the screening order that the Supreme Court
has held that a sentenced and incarcerated person “‘possesses a significant
liberty interest in avoiding the unwanted administration of antipsychotic
drugs,’” id. at 5–6 (quoting Washington v. Harper, 494 U.S. 210, 221 (1990)),
and that pretrial detainees receive “at least” that same level of protection, id. at
6 (citing Riggins v. Nevada, 504 U.S. 127, 135 (1992)). The Seventh Circuit has
extended the same liberty interest afforded to pretrial detainees and convicted
persons to parolees. In Felce v. Fiedler, 974 F.2d 1484, 1485 (7th Cir. 1992), a
Wisconsin parolee was required to choose between remaining on parole—a
condition of which required him to receive monthly injections of an
antipsychotic drug—or serving the remainder of his sentence in prison. The
Seventh Circuit held that the parolee had “a liberty interest in not being
subjected involuntarily to the administration of [antipsychotic] drugs except
35
when there is an ‘overriding justification for their use and a determination of
medical appropriateness.’” Id. at 1494 (quoting Riggins, 504 U.S. at 135).
This court more recently confronted a claim nearly identical to the
plaintiff’s. In Bond v. Bond, Case No. 20-cv-910-pp, 2021 WL 5770931, at *3
(E.D. Wis. Dec. 6, 2021), the plaintiff claimed that a CNA at the BHD “bound
her to the bed and injected her with medications against her will.” Id. The court
did not cite Mills and observed that “neither the Supreme Court nor the
Seventh Circuit has decided whether civilly committed individuals have a
constitutional right to refuse psychotropic drugs.” Id. (citing Kreger-Mueller v.
Doe, Case No. 18-cv-708, 2019 WL 4256832, at *4 (W.D. Wis. Sept. 9, 2019)).
The court quoted the same excerpt from Washington quoted above, adopted the
analysis from the decision in Kreger-Mueller and allowed the plaintiff’s claim to
proceed. Id.
These cases suggest that the plaintiff, who was involuntarily committed
at the BHD but was neither a pretrial detainee nor charged with or convicted of
any crime at the time, had a protected liberty interest in not being involuntarily
administered the Haldol and Benadryl with which he was injected on
September 9, 2016. But they also suggest that the State has a competing
interest that may outweigh the plaintiff’s liberty interest. See Washington, 494
U.S. at 220–21. As one court in the Western District of Wisconsin explained,
forcing antipsychotic medications on “a nonconsenting individual ‘represents a
substantial interference with that person’s liberty,’ that is justifiable only if the
individual’s liberty interest is outweighed by a state interest of sufficient
36
importance.” Enis v. Dep’t of Health & Soc. Res. of the State of Wis., 962 F.
Supp. 1192, 1197 (W.D. Wis. 1996) (quoting Washington, 494 U.S. at 220)
(internal citation omitted); see also Kreger-Mueller, 2019 WL 4256832, at *5
(citing Washington, 494 U.S. at 225) (“Any interest in avoiding unwanted
administration of medication must be balanced against the state’s competing
interests, such as its interest in preserving public safety and the safety of the
patient in question.”). This analysis implies that the court should make two
factual inquiries: Did the plaintiff consent to receive the medications? And if he
did not, was there an overriding state interest to justify forcibly medicating the
plaintiff?
The evidence shows that there is a genuine dispute whether the plaintiff
consented to receive the medication or whether the defendant (and/or other
medical staff) administered the medications against the plaintiff’s wishes and
despite his adamant refusal. The defendant testified that the plaintiff
consented to the treatment, accepted the medications “verbally and physically”
and cooperated during the procedure. She stated multiple times that the
plaintiff showed no opposition in any way, shape or form to receiving the
injections. The defendant testified that the plaintiff refused Geodon because of
an allergy and was fully informed that he instead would receive Haldol and
Benadryl.
The plaintiff’s medical records from the BHD do not state whether he
consented or objected to receiving the injections. But he did sign the form
consenting to “care and treatment as may be deemed proper in the judgement
37
[sic] of the clinical staff” at the BHD. Dkt. No. 96-1 at 3. Neither party mentions
this form or analyzes whether it provided a basis for medical staff to administer
the medications to the plaintiff even without his verbal consent at the time of
the injections. But Drs. Sprung and Thrasher aver that the use of
intramuscular injections was medically necessary given the plaintiff’s behavior
and that the injections were administered in accordance with the BHD’s policy.
The plaintiff testified that he consented to being strapped down, but he
said that the defendant then suddenly “stuck him with a needle” without his
approval. He testified that the defendant personally injected him, that he did
not know what was in the needle (he surmised it may have even been cancer or
HIV) and that he never consented to the injection. He similarly avers in his
declaration that he cooperated and volunteered to be strapped down in the
seclusion room, but that he “clearly and unmistakably” objected to receiving
the injections. Dkt. No. 104-1 at ¶20. He says that he only “later learned” that
the injections were Haldol and Benadryl. Id. at ¶22.
That leaves the question of whether medicating the plaintiff against his
will was nonetheless justified. The defendant asserts that, even if the plaintiff
did not consent to receiving the medications, his “outburst and threatening
behavior at PCS” justified the BHD employees’ decision to medicate him
forcibly and against his will. Dkt. No. 94 at 14. The plaintiff does not directly
challenge this statement, asserting instead that evidence about “the practical
propriety and medical necessity of the adopted and pursued course of medical
care could and would . . . be the subject[] of evidentiary presentations” at trial.
38
Dkt. No. 104 at 5. He asserts, without elaboration, that “the need to safeguard
both [the plaintiff] and the medical staff from harm . . . however legitimate and
well-founded they may have been[, ]simply do not warrant the entry of
judgment short of trial.” Id.
There is a genuine dispute of material fact as to whether medical staff’s
decision to inject the plaintiff with antipsychotic medications was justified by
his actions sufficient to overcome his putative liberty interest in not being
forcibly medicated. Much of the evidence suggests that the plaintiff had been
verbally aggressive, agitated and threatening toward staff at both St. Francis
and the BHD. His medical records from both facilities document his outbursts
and behavior, which included threatening to shoot and kill staff with two types
of guns. The defendant testified to the same in her deposition, though much of
what she said about the events involved her simply reading the plaintiff’s
medical records. But the plaintiff testified during his deposition that, although
he may have been loud, he did not threaten anyone. He admitted calling the
defendant a “bitch,” but he said he did so only in response to her own behavior
and to anger her, not to threaten her. He denied being angry or saying the “sick
stuff” referenced in his medical records. He testified that he was calm by the
time he arrived at the BHD, and that he was calmly watching television when
the defendant and security took him to the seclusion room and injected him
with the medications.
The plaintiff admits in his declaration that he was “agitated and
disturbed” during the doctors’ and nurses’ assessments. Dkt. No. 104-1 at ¶10.
39
He echoes the statements in his deposition that he was loud on the phone with
his mother, and he concedes he called the defendant a “bitch” and told her to
mind her “own stupid business.” Id. at ¶12. The plaintiff also admits to
becoming “very agitated and verbally abusive” toward the defendant and other
medical staff. Id. at ¶13. But he avers that “[a]t no time during any of these
first discussions and initial verbal exchanges with the medical staff at BHD
was [he] physically aggressive or threatening violence to them or to [him]self.”
Id. at ¶14. He admits telling them he “was extremely angry” about what
allegedly had happened at St. Francis involving his missing Xanax prescription.
Id. But the plaintiff says he “became verbally abusive and threatening” only
after staff administered the medication. Id. at ¶25. He says it was then that he
spit at the defendant and threatened medical staff. Id. at ¶¶24–25. He testified
to much of the same in his deposition. See, e.g., Dkt. No. 97-2 at 11:13–16.
Each party provided sufficient evidence to allow a reasonable jury to find
in their favor on the question of whether the plaintiff consented to receive the
Haldol and Benadryl injections and, if he did not, whether the BHD medical
staff were justified in administering the medications to the plaintiff against his
will. The court may not decide which of the competing versions of the facts is
the correct one or which of the parties is more credible. Those decisions are for
a jury to make. See Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697,
704–05 (7th Cir. 2011) (“[D]istrict courts presiding over summary judgment
proceedings may not weigh conflicting evidence or make credibility
determinations, both of which are the province of the jury.” (quotation marks
40
and internal citations omitted)). The defendant is not entitled to summary
judgment on this basis.
3.
Qualified Immunity
Finally, the defendant contends that even if she is not entitled to
summary judgment on the merits, she is entitled to qualified immunity. Dkt.
No. 94 at 15. The defendant asserts that she “did not and could not have
violated the plaintiff’s alleged liberty interest in avoiding the unwanted
administration of antipsychotic drugs.” Id. at 16. This is because, under her
version of the facts, she neither ordered nor administered the medications to
the plaintiff, and even if she had, “the administration of the drug [sic] was
based on a physician’s order and was medically necessary to prevent [the
plaintiff] from harming himself or others.” Id. She asserts that she is entitled to
qualified immunity because “[t]here is no clearly established constitutional
right to be free from an injection of psychotropic drugs that is medically
necessary under the circumstances in this case.” Id.
The plaintiff asserts that whether the defendant is entitled to qualified
immunity would be “most sensibly resolved by a factual presentation of her
actual role in the events about which [the plaintiff] complains.” Dkt. No. 104 at
6. He suggests that this question would be “most accessibly and efficiently
addressed . . . in the context of a trial.” Id. at 5.
Qualified immunity “‘protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.’”
41
Figgs v. Dawson, 829 F.3d 895, 905 (7th Cir. 2016) (quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted)).
Qualified immunity is an affirmative defense. To defeat the defendant’s
assertion of qualified immunity, the plaintiff must show that 1) the defendant
violated his constitutional right, and 2) the right at issue was clearly
established at the time of the violation. Pearson, 555 U.S. at 232. The plaintiff
“bears the burden of convincing the court that a clearly established
constitutional right existed at the time of the actions in question.” Sherman v.
Four Cnty. Counseling Ctr., 987 F.2d 397, 408 (7th Cir. 1993). If the plaintiff
fails to satisfy either inquiry, the defendant is entitled to qualified immunity.
See Muhammad v. Pearson, 900 F.3d 898, 904 (7th Cir. 2018) (citing Gibbs v.
Lomas, 755 F.3d 529, 537 (7th Cir. 2014)).
The defendant improperly applies her qualified immunity analysis only to
her version of the facts. For purposes of qualified immunity, the court must
view the evidence in the light most favorable to the plaintiff because he is the
nonmoving party. See Rainsberger v. Benner, 913 F.3d 640, 647 (7th Cir.
2019). As the court explained above, a reasonable jury could believe the
plaintiff’s evidence and conclude that he was calmly watching television at the
BHD when the defendant and security escorted him to the seclusion room,
where the defendant personally injected him with medications without his
consent and without justification.
But as the court explained above and noted in a previous decision,
“neither the Supreme Court nor the Seventh Circuit has decided whether civilly
42
committed individuals have a constitutional right to refuse psychotropic
drugs.” Bond, 2021 WL 5770931, at *3; see Kreger-Mueller, 2019 WL 4256832,
at *4. In Mills, the Supreme Court assumed that “involuntarily committed
mental patients” had such a protected liberty interest, but it did not make that
holding. See Mills, 457 U.S. at 299 n.16. This court and others have allowed
claims like the plaintiff’s to move beyond screening under 28 U.S.C. §1915A.
But the fact that similar claims have survived screening does not make the
right on which they proceeded “clearly established.” The plaintiff must show
that the issue is “‘dictated by controlling authority or a robust consensus of
cases of persuasive authority, such that it would be clear to a reasonable
[actor] that his conduct was unlawful in the situation he confronted.’” Holloway
v. City of Milwaukee, 43 F.4th 760, 767 (7th Cir. 2022) (quoting Estate of Davis
v. Ortiz, 987 F.3d 635, 638 (7th Cir. 2021) (internal quotation omitted));
see Wilson v. Layne, 526 U.S. 603, 617 (1999). The plaintiff has cited no cases
discussing whether he had a right to refuse antipsychotic medication at the
BHD. He has not addressed the absence of controlling authority on the
question and he has not suggested that there exists a consensus of persuasive
authority establishing this right. His insistence that a jury should decide the
defendant’s entitlement to qualified immunity at trial is a nonstarter because
“qualified immunity ‘is a matter of law for the court’”; it is “‘not a jury
question.’” Smith v. Finkley, 10 F.4th 725, 734 (7th Cir. 2021) (quoting
Riccardo v. Rausch, 375 F.3d 521, 526 (7th Cir. 2004) and Warlick v. Cross,
969 F.2d 303, 305 (7th Cir. 1992)).
43
As of at least as recently as 2021, neither the Seventh Circuit nor the
Supreme Court had determined whether a person involuntarily committed
under an emergency detention had a constitutional right to refuse
antipsychotic medication. That means that right could not have been “clearly
established” five years earlier when the events in this case occurred. The
defendant is entitled to qualified immunity as a matter of law, and the court
will grant her motion for summary judgment.
III.
Conclusion
The court grants the defendant’s motion for summary judgment. Dkt. No.
92.
The court ORDERS that this case is DISMISSED. The clerk will enter
judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
See Federal Rules of Appellate Procedure 3, 4. This court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Fed. R.
App. P. 4(a)(5)(A).). If the plaintiff appeals, he will be liable for the $605
appellate filing fee regardless of the outcome of the appeal. If the plaintiff seeks
to proceed on appeal without prepaying the appellate filing fee, he must file a
motion in this court. See Fed. R. App. P. 24(a)(1). The plaintiff may be assessed
a “strike” by the Court of Appeals if it concludes that his appeal has no merit. If
44
the plaintiff accumulates three strikes, he will not be able to file a case in
federal court (except a petition for habeas corpus relief) without prepaying the
full filing fee unless he demonstrates that he is in imminent danger of serious
physical injury. Id.
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Rule 59(e) must be filed within 28 days of the entry of judgment. The court
cannot extend this deadline. See Federal Rule of Civil Procedure 6(b)(2). Any
motion under Rule 60(b) must be filed within a reasonable time, generally no
more than one year after the entry of the judgment. The court cannot extend
this deadline. See Federal Rule of Civil Procedure 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 29th day of December, 2023.
BY THE COURT:
_________________________________________
HON. PAMELA PEPPER
Chief United States District Judge
45
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?