Cheek, Joshua v. Beeman, Jen et al

Filing 76

ORDER denying defendant Jen Beeman's 30 Motion for partial summary judgment on her assertion that plaintiff's claim against her is barred by Heck v. Humphrey, 512 U.S. 477 (1994). The pretrial conference order, dkt. # 23 , is AMENDED to permit each side to file only one more dispositive motion in this lawsuit. The dispositive motion deadline of September 15, 2014 remains in place. Signed by District Judge Barbara B. Crabb on 7/16/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JOSHUA CHEEK,
OPINION and ORDER
Plaintiff,
13-cv-527-bbc
v.
JEN BEEMAN, CLAIR KRUGER,
SARA CONKLIN and HEATHER,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this civil lawsuit brought under 42 U.S.C. § 1983, plaintiff Joshua Cheek contends
that defendant Jen Beeman, a nurse at the Mendota Mental Health Institute, used excessive
force against him while he was restrained following an altercation between plaintiff and
institute staff. He also contends that Beeman prevented him from receiving medical care
after the altercation. Further, plaintiff says that Beeman conspired with the remaining
defendants, Clair Kruger, Sara Conklin and “Heather,” to retaliate against him for
attempting to gain access to the courts to pursue his claims.
As permitted by this court’s scheduling order, defendant Beeman (hereafter simply
“defendant”) has moved for partial summary judgment on the sole ground that plaintiff’s
excessive force claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994). I conclude that
it is not.
From the parties’ proposed findings of fact, I find that the following facts are
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undisputed.

UNDISPUTED FACTS
In August 2012, plaintiff was a patient at the Mendota Mental Health Institute,
where defendant worked as a registered nurse. On August 29, 2012, plaintiff punched
Mendota staff member Kirsten Ray. When defendant and another staff member came to
Ray’s aid, plaintiff began trying to strangle defendant. (Defendant alleges that when she
broke free, plaintiff began to suffocate her by putting his hand over her nose and mouth;
plaintiff says he only grabbed her by the throat and neck.)
The parties agree that at some point during or soon after the altercation defendant
bit plaintiff’s hand. (Plaintiff alleges that the bite occurred after hospital staff had subdued
him. Defendant alleges that she bit plaintiff while she was still attempting to subdue him
and keep him from suffocating her.)
As a result of the altercation, plaintiff was charged criminally with two counts of
battery: one for his attack on Ray and one for his attack on defendant. He pleaded guilty
to the battery charge involving Ray. The battery charge involving defendant Beeman was
dismissed but “read-in” at plaintiff’s sentencing for the battery of Ray.

(“[W]hen a

defendant agrees to crimes being read in at the time of sentencing, he makes an admission
that he committed those crimes. The trial court considers those read-ins as part of the
defendant’s conduct for sentencing purposes and the state is prohibited from later formally
charging the defendant for those criminal offenses.” State v. Szarkowitz, 157 Wis. 2d 740,

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753, 460 N.W. 2d 819, 824 (Ct. App. 1990).)

OPINION
Defendant argues that plaintiff’s excessive force claim is barred by the Supreme
Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994), which holds that a plaintiff
cannot pursue a claim under 42 U.S.C. § 1983 if that claim would necessarily imply the
invalidity of the plaintiff’s criminal conviction or sentence, unless the conviction or sentence
has been reversed on appeal, expunged by executive order or otherwise invalidated by a
reviewing court. Id. at 486–87. Defendant argues that plaintiff’s excessive force claim
implies the invalidity of his sentence for the battery of Ray because his charge for battering
Beeman was read in at that sentencing. In other words, defendant says that a finding that
she used excessive force would imply that plaintiff did not batter Beeman and that he was
sentenced incorrectly because part of his sentence resulted from his charge for battery of
Beeman.
This is an odd position for a state defendant to take in light of Robinson v. City of
West Allis, 2000 WI 126, ¶ 42, 239 Wis. 2d 595, 616, 619 N.W.2d 693, 702, which holds
that “read-in” charges have no preclusive effect under Wisconsin law and do not count as
convictions or sentences for the purposes of Heck. Because charges read in at sentencing are
not convictions or sentences for the purposes of Heck, any conflict between plaintiff’s
present claim and the read-in charge does not bar plaintiff’s claim. Therefore, I am denying
defendant’s motion for summary judgment.

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As a final note, the pretrial conference order, dkt. #23, gives the parties until
September 15, 2014 to file dispositive motions on the merits. Defendant Beeman has filed
a summary judgment motion on the merits of plaintiff’s medical care claim. Going forward,
the parties are limited to filing only one additional motion for summary judgment on the
merits. This means that each side may file a motion for summary judgment on any or all of
plaintiff’s claims, but must consolidate all arguments into that one motion.

ORDER
IT IS ORDERED that
1. Defendant Jen Beeman’s motion for partial summary judgment on her assertion
that plaintiff’s claim against her is barred by Heck v. Humphrey, 512 U.S. 477 (1994), dkt.
#30, is DENIED.
2. The pretrial conference order, dkt. #23, is AMENDED to permit each side to file
only one more dispositive motion in this lawsuit. The dispositive motion deadline of
September 15, 2014 remains in place.
Entered this 16th day of July, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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