Apkarian, Quentin v. Lincoln Hills School

Filing 128

ORDER granting Defendant Jeff Jaeger's 100 Motion for Summary Judgment; granting in part the state defendants' 105 Motion for Summary Judgment. Defendants Sunde, Westerhaus, Wall, and Jaeger are DISMISSED from the case. The remai ning schedule, including trial date, is STRUCK. Apkarian and the remaining defendants may have until September 30, 2019, to respond regarding the defendant-identification issues discussed this opinion. Signed by District Judge James D. Peterson on 9/9/2019. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

QUENTIN APKARIAN,
Plaintiff,
v.
OFFICER MCALLISTER, ED WALL, MS. KRUEGER,
DOUG CURTIS, JAMES SCHMIDT,
DUSTIN MEUNIER, JOHN OURADA,
BRUCE SUNDE, PAUL WESTERHAUS,
JOHN DOE OFFICERS #3 and #5,
and JEFF JAEGER,

OPINION and ORDER
17-cv-309-jdp

Defendants.
Plaintiff Quentin Apkarian, appearing pro se, alleges that while he was housed at
Lincoln Hills School, state officials violated his constitutional rights by physically and sexually
abusing him when they responded to a fight and failing to provide him with follow-up medical
care, and that state and county officials failed to take action to stop a pattern of abuse at the
facility.
Both the state defendants and defendant Lincoln County Sheriff Jeff Jaeger have filed
motions for summary judgment. Dkt. 100 and Dkt. 105. Both sets of defendants move for
summary judgment on the substance of Apkarian’s claims, and the state defendants also
contend that certain claims should be dismissed because Apkarian has failed to properly
identify some of the defendants. I will grant the state defendants’ motion in part and Sheriff
Jaeger’s motion in its entirety. But there are genuine disputes of material fact over whether
state officials physically and sexually abused Apkarian and failed to provide him medical care,
so I will deny the state defendants’ motion in part and the case will proceed to trial on those

claims. Because there are problems with the identification of several defendants, I will strike
the remaining schedule to give the parties more time to identify those defendants.

UNDISPUTED FACTS
In September 2014, plaintiff Quentin Apkarian was a juvenile detainee at Lincoln Hills
School, in Irma, Wisconsin. On September 10, Apkarian was housed in Dubois Cottage at the
facility. That day, Apkarian was in a physical altercation with his roommate. After the
altercation, Apkarian got on the ground and put his hands behind his back.
Apkarian says that the following events then occurred: defendant officers James
Schmidt and Doug Curtis beat him “viciously.” Dkt. 109, at 1–2, ¶ 4. Then, as Apkarian was
being transported to Krueger Cottage, a more secure housing unit, defendant Officer McAllister
entered the transport van and assaulted Apkarian by punching, elbowing, and choking him and
by throwing him on the ground and against the van. In the course of transporting Apkarian to
segregation, defendant Dustin Meunier punched him, slammed his face against the wall, and
choked him to the point that he thought he was going to pass out. Then Meunier and John
Doe No. 31 physically and sexually assaulted Apkarian by “battering” him, touching his testicles
and buttocks in a sexual way, and making jokes about his penis. Defendant Schmidt says that
he has never witnessed or participated in a beating or a strip search like Apkarian described in
his complaint.

1

Apkarian was able to identify three of the five “John Doe” officers against whom he brought
claims. I have retained the original numbering of the Doe defendants to be consistent with my
previous orders.

2

After these assaults, Apkarian says that he made complaints requesting to be seen by
health unit staff, but no one helped him. Apkarian says that defendant Ms. Krueger, the unit
manager, told him that she did not think health staff needed to see him because he had only
minor injuries. Defendants produce a medical rounds log, Dkt. 89-7, at 1, stating that Apkarian
was seen by medical staff on September 12 and 19, 2014, that Apkarian was responsive, had
no complaints, had no signs of injury or illness, and presented no mental health concerns.
Apkarian met with medical staff on September 30, and he did not seek medical care for injuries
from the alleged abuse. Apkarian says that this is because his injuries had “visibly healed,” he
had already started complaining about the abuse through other channels, and he did not think
that medical staff would help because they had already ignored the problem.
Apkarian says that he attempted to report the abuse, but that defendant John Ourada,
the Lincoln Hills superintendent, threatened Apkarian with harsh punishments if he continued
to report abuse at the facility. About a year after the alleged abuse, defendants Ourada and
DOC Director of Juvenile Corrections Paul Westerhaus received a letter from Apkarian about
his abuse, which they forwarded to other DOC employees, who in turn sent the letter to the
Lincoln County Sheriff’s Office. Over the course of the next two years, a detective interviewed
Apkarian, other inmates who also complained about staff abuse, and several Lincoln Hills staff
members, including defendants Schmidt and McAllister. The detective sent investigatory
materials to the district attorney, stating that he did not believe that there was enough evidence
to charge staff with a crime.

3

ANALYSIS
Apkarian brings the following claims:
•

Defendant officers Doug Curtis, James Schmidt, McAllister, Meunier and John
Doe officer Nos. 3 and 5 beat Apkarian following an altercation between him
and another inmate.

•

Meunier and Doe No. 5 “verbally and physically humiliated” him during a strip
search.

•

He did not receive medical care following these events, at least in part because
defendant Ms. Krueger, the segregation unit manager, stated that she did not
want medical staff involved.

•

Supervisory officials, including defendants Superintendent John Ourada,
Security Director Bruce Sunde, DOC Director of Juvenile Corrections Paul
Westerhaus, and DOC Secretary Ed Wall, were all aware of numerous physical
and sexual assaults occurring at Lincoln Hills, but they did nothing to address
the safety concerns.

•

Defendant Lincoln County Sheriff Jeff Jaeger was also aware of the abuse at
Lincoln Hills, but he did not investigate those incidents or refer facility staff to
the district attorney to be charged.

Two sets of defendants—the state defendants and Sheriff Jaeger—have each filed a
motion for summary judgment. To succeed on a motion for summary judgment, defendants
must show that there is no genuine issue of material fact and that they are entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A
genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party
exists to permit a jury to return a verdict for that party.” Brummett v. Sinclair Broad. Grp., Inc.,
414 F.3d 686, 692 (7th Cir. 2005). All reasonable inferences from the facts in the summary
judgment record must be drawn in the nonmoving party’s favor. Baron v. City of Highland Park,
195 F.3d 333, 338 (7th Cir. 1999). If the nonmoving party fails to establish the existence of
an essential element on which that party will bear the burden of proof at trial, summary
judgment should be granted to the moving party. Celotex, 477 U.S. at 322.

4

A. Proper legal standard
In screening Apkarian’s excessive force, strip search, medical care, and failure-to-protect
claims against Lincoln Hills staff, I noted that the law is unsettled regarding the appropriate
constitutional standard to apply to claims brought by juvenile detainees. If Apkarian had been
a convicted prisoner at the time of the events of this case, Eighth Amendment standards would
govern these claims. Under the Eighth Amendment, plaintiffs are protected against cruel and
unusual punishment. To win on an Eighth Amendment claim, a plaintiff generally needs to
show that the defendant intentionally harmed him or consciously disregarded a risk of harm
to him.
But in Wisconsin, an adjudication of juvenile delinquency “is not a conviction of a
crime.” See Wis. Stat. § 938.35(1). Claims by prisoners who are not convicted—such as pretrial
detainees or civilly committed sex offenders under Wis. Stat. Ch. 980—are ordinarily governed
by the Fourteenth Amendment, under which plaintiffs need not prove the defendant’s
subjective state of mind; they need show only that the defendant’s actions were “objectively
unreasonable.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (discussing an excessive
force claim); Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018) (expanding Kingsley’s
rationale to medical care claims). Rather than the Eighth Amendment’s prohibition on cruel
and unusual punishment, the Fourteenth Amendment prohibits any type of punishment.
See Youngberg v. Romeo, 457 U.S. 307, 320 (1982); Bell v. Wolfish, 441 U.S. 520, 535 (1979)
(“under the Due Process Clause, a detainee may not be punished prior to an adjudication of
guilt in accordance with due process of law”). I asked the parties to provide briefing on the
appropriate legal standards for Apkarian’s claims here. Dkt. 21, at 4–5.

5

Apkarian does not discuss the issue other than to apply Eighth Amendment standards
to his claims. But Apkarian is a pro se prisoner who has no legal education, so his invocation
of Eighth Amendment standards doesn’t settle the matter. Case law on the question is mixed.
The Court of Appeals for the Seventh Circuit long ago applied the Eighth Amendment
in a case about the use of corporal punishment and tranquilizing drugs at a juvenile institution.
See Nelson v. Heyne, 491 F.2d 352, 354–57 (7th Cir. 1974). But much more recently, the court
of appeals has stated that the correct standard to apply to juvenile cases remains unclear, noting
specially that the United States Supreme Court has avoided answering the question. See Reed
v. Palmer, 906 F.3d 540, 549 (7th Cir. 2018). Some courts have applied the Eighth Amendment
and others the Fourteenth. See Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 259 (3d Cir.
2010); Tribble v. Arkansas Dep’t of Human Servs., 77 F.3d 268, 270 (8th Cir. 1996); Morales v.
Turman, 562 F.2d 993, 998 n.1 (5th Cir. 1977) (all applying the Eighth Amendment);
but see Milonas v. Williams, 691 F.2d 931, 942 (10th Cir. 1982); Gary H. v. Hegstrom, 831 F.2d
1430, 1432 (9th Cir. 1987); J.S.X. Through D.S.X. v. Foxhoven, 361 F. Supp. 3d 822, 832 (S.D.
Iowa 2019) (all applying the Fourteenth Amendment).
The state defendants contend that the Eighth Amendment makes more sense as a
standard because Apkarian, like a convicted prisoner, is a “posttrial detainee.” I take them to
be arguing that—unlike other non-convicted detainees—he has received trial process and the
state is free to punish juvenile delinquents, making a delinquency more similar to a criminal
case than to pretrial detention or Chapter 980 proceedings. To support this, they note that the
Wisconsin Legislature has identified “hold[ing] each juvenile offender directly accountable for
his or her acts” as a purpose of the state’s Juvenile Justice Code, which they say means that
punishment is one purpose of juvenile-delinquency detentions. Wis. Stat. § 938.01(2)(b).

6

This argument doesn’t square with the Wisconsin Supreme Court’s own analysis of the
Juvenile Justice Code. In In re Hezzie R., 219 Wis. 2d 848, 580 N.W.2d 660 (1998), three
juveniles challenged amendments to the juvenile code that removed their right to a jury trial.
The court concluded that provisions subjecting a juvenile to adult prison were unconstitutional
because “they essentially subject a juvenile to the consequences of a ‘criminal prosecution’
without the right to a trial by jury.” Id. ¶ 55. The court upheld the bulk of the code—including
the provision allowing placement in a juvenile institution—despite the removal of jury trials.
The court explicitly stated that “[p]lacement in a juvenile facility is not criminal punishment and
does not convert the [juvenile justice code] into a criminal code.” Id. ¶ 50 (emphasis added).
The court stated that even with the elimination of jury trials, the “rehabilitation of juveniles is
a primary objective” of the code. Id. ¶ 33.
A juvenile delinquency adjudication, in Wisconsin as elsewhere, is not a criminal
conviction and the accused juvenile’s trial does not come with the same procedural safeguards
as in a criminal proceeding. “The State has a parens patriae interest in preserving and promoting
the welfare of the child, which makes a juvenile proceeding fundamentally different from an
adult criminal trial.” Schall v. Martin, 467 U.S. 253, 263 (1984) (internal quotation and
citation omitted). This suggests that delinquencies are more akin to other types of detention
where the primary objective is something other than punishment, like civil commitments of
sexually violent persons or pretrial detentions. Those are situations in which the Fourteenth
Amendment applies. See J.S.X. Through D.S.X., 361 F. Supp. 3d at 832 (“Given the expressly
non-penal, non-criminal nature of Iowa juvenile delinquency adjudications and dispositions,
the Court finds Plaintiffs’ Eighth and Fourteenth Amendment claims more appropriately arise
under the Fourteenth Amendment only.”).

7

The state defendants are correct that a juvenile adjudicated delinquent is a “posttrial
detainee.” But so is someone civilly committed under Wis. Stat. Chapter 980. And yet,
Wisconsin still affords the respondent in those proceedings the right to a jury trial, unlike a
juvenile facing a delinquency adjudication. Wis. Stat. § 980.03(3). That the juvenile has
received some amount of process before imprisonment is not decisive. Ultimately, because
juvenile adjudications are not criminal in nature, I conclude that the proper standard to apply
to Apkarian’s claims against Lincoln Hills staff is the Fourteenth Amendment.
B. Apkarian’s claims
The summary judgment analysis for Apkarian’s claims about directly about the alleged
assaults and lack of medical care is relatively simple. Apkarian says that defendants beat him,
sexually humiliated him, and failed to provide him with medical care. Defendants say that they
did none of these things. But they provide very little direct evidence rebutting Apkarian’s
version of events.
It’s commonplace in these types of cases for each of the defendants to provide a
declaration explaining their version of the disputed events. The only state defendant submitting
a declaration is defendant Schmidt, who says that he’s never seen nor taken part in beatings or
strip searches of the kind described by Apkarian. That’s enough to rebut Apkarian’s version of
the initial beating in which he says that Schmidt was present. But Schmidt wasn’t present for
the transport to Krueger Cottage or the strip search, so he cannot rebut Apkarian’s version of
those events. And even so, all Schmidt’s testimony accomplishes is to create a dispute of
material fact about the incidents that he says he witnessed.
Otherwise, the state defendants attempt to rebut those events by citing the medical and
psychological rounds log showing that Apkarian was visited by staff two days and nine after

8

the incidents. For both days, the record shows that Apkarian was responsive, had no
complaints, had no signs of injury or illness, and presented no mental health concerns. Dkt. 897, at 1. Armed with this record, defendants say that the events could not have occurred the
way Apkarian says they did because he showed no visible injuries, even though he alleges that
he was visibly bruised and bloodied.
Apkarian disputes this, saying no one visited him on these days. The state defendants
contend there is not a dispute over the authenticity of the round log because Apkarian
submitted a copy of it as well, calling it “true and correct.” Dkt. 110, at 3 ¶ 3. But Apkarian is
very clear throughout his summary judgment materials that he thinks that the record is
incorrect and perhaps fabricated. Apkarian followed defendants’ reply by submitting a letter
stating that by “true and correct” he meant that he received the document from defendants
and he did not alter it in any way. Dkt. 123. This court disfavors sur-replies, but this one
merely confirms what any reasonable reviewer would have concluded given Apkarian’s version
of events: Apkarian meant that the document is a true copy of the DOC’s document, not that
the substance of the record is true. So Apkarian has sufficiently disputed the round log.
Defendants also note that it is undisputed that Apkarian appeared at his disciplinary
hearing two days after the incidents, and the record of that hearing “do[es] not include a single
suggestion that he was injured at the time he appeared.” Dkt. 87, at 15. But they do not explain
why the form recapping the disciplinary proceeding, Dkt. 89-4, would include details about
Apkarian’s injuries. This court keeps minutes of its proceedings too, but those documents do
not describe the physical appearance of the people appearing before it. The hearing record’s
extremely cursory recap of the evidence presented gives me no reason to believe that Apkarian’s
physical appearance was a matter in issue, so the hearing record’s silence doesn’t raise an

9

inference either way about the existence of Apkarian’s injuries. Of course, even if the record
said that Apkarian looked uninjured, Apkarian’s own testimony would be enough to place that
issue in dispute.
Defendants contend that the details of Apkarian’s story have changed between his
original and amended complaints, and that the allegations in his complaints are too vague to
support claims. But I’ve already ruled that Apkarian stated claims for relief against defendants;
it’s too late for defendants to ask for reconsideration of that ruling now. Whether Apkarian’s
story has shifted is a matter of credibility to be taken up on cross-examination at trial. At the
summary judgment stage, I have to resolve factual disputes in Apkarian’s favor. And his
declaration testimony of the alleged beatings, sexual humiliation, and lack of medical care is
enough for a jury to conclude that defendants’ conduct regarding each of these claims was
objectively unreasonable.
That leaves Apkarian’s claims that DOC supervisory officials didn’t do anything to
address safety at Lincoln Hills, and that Lincoln County Sheriff Jaeger discriminated against
him by not investigating his allegations. With one exception, Apkarian fails to provide any
evidence that shows that these officials violated his rights.
In screening Apkarian’s claims against DOC supervisory officials Ourada, Sunde,
Westerhaus, and Wall, I told him that to prove his claims he would need to provide evidence
showing that these officials were truly aware of a pattern of abuse and that they failed to take
action to protect the Lincoln Hills detainees. Defendants say that when Apkarian finally gave
Ourada and Westerhaus a letter about a year after the incidents, they forwarded it on to DOC
officials who forwarded it to the sheriff. Apkarian does not dispute this proposed fact or

10

otherwise present evidence showing officials’ disregard for his safety. So I will grant the state
defendants’ motion for summary judgment on all of these supervisory-official claims but one.
The exception is that Apkarian says that at some point, he attempted to report the
abuse, but that defendant John Ourada, the Lincoln Hills superintendent, threatened him with
“harsh punishments” if he continued to report abuse at the facility. He presents a declaration
from fellow inmate Lamar Smalls, who says that he heard Ourada threaten Apkarian “to stop
reporting assaults or he would be crucially punished.” Dkt. 111, at 2. Neither Apkarian nor
Smalls explain exactly when this incident took place, but I take them to be saying that it
predated Apkarian’s September 2015 letter that Ourada passed on to other DOC officials. So
regardless of what appropriate step Ourada took in September 2015, Apkarian says that
Ourada acted unreasonably toward a safety complaint before then, despite knowing about how
Apkarian had already been harmed. So I will deny defendants’ motion for summary judgment
on a failure-to-protect claim against Ourada.
As for the equal protection claim against Sheriff Jaeger, “class-of-one” equal protection
claims under the Fourteenth Amendment “can be brought based on allegations of the irrational
or malicious application of law enforcement powers.” Geinosky v. City of Chicago, 675 F.3d 743,
747 (7th Cir. 2012); see also Hilton v. City of Wheeling, 209 F.3d 1005, 1007 (7th Cir. 2000)
(“If the police decided to withdraw all protection from Hilton out of sheer malice, or because
they had been bribed by his neighbors, he would state [an equal protection] claim.”). But
Apkarian provides no evidence showing that the sheriff’s office discriminated against him or
even that Jaeger was personally involved in any decisions about the investigation of his
incident. Jaeger presents evidence showing that Apkarian’s incident was part of a broader
investigation by the office regarding alleged abuse by Lincoln Hills staff, albeit one that did not

11

result in charges. Because Apkarian does not present any evidence that could support an equal
protection claim against Jaeger, I will grant Jaeger’s motion for summary judgment and dismiss
him from the case.
C. Qualified immunity
Defendants also say that they are entitled to summary judgment under the doctrine of
qualified immunity. “[Q]ualified 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.’” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Put a bit more bluntly,
qualified immunity protects “all but the plainly incompetent or those who knowingly violate
the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). The doctrine translates into a two-part
test: (1) whether the public official violated the plaintiff’s constitutional rights; and (2) whether
those rights were clearly established at the time of the alleged violation. Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011). A right is “clearly established” when a reasonable official would know
that his “conduct was unlawful in the situation he confronted.” Hernandez v. Cook Cty. Sheriff’s
Office, 634 F.3d 906, 915 (7th Cir. 2011) (citations omitted).
I’ve already concluded that there are factual disputes on the excessive force, strip search,
medical care, and failure-to-protect claims. The state defendants contend that Apkarian’s rights
concerning these claims are not clearly established, in part because of the lack of clarity in
which constitutional amendment applies to juvenile detainees, and in part because they call
Apkarian’s allegations vague and including no proof of injuries. Apkarian initially did not
respond to the qualified immunity argument. He later filed a proposed supplement, Dkt. 124,

12

which does not address specific case law. I conclude that he doesn’t have to, given the severity
of his allegations.
Defendants do not cite any authority for the proposition that claims regarding juveniles
are doomed because the precise constitutional standard has not yet been articulated by the
Supreme Court. But the Court of Appeals for the Seventh Circuit rejected a similar argument
in Kingsley, stating that qualified immunity was not available to defendants upon remand from
the Supreme Court decision clarifying the standard to be applied in pretrial-detainee excessive
force cases. Kingsley v. Hendrickson, 801 F.3d 828, 833 (7th Cir. 2015) (“To accept the defense
of qualified immunity here, we would have to accept the dubious proposition that, at the time
the officers acted, they were on notice only that they could not have a reckless or malicious
intent and that, as long as they acted without such an intent, they could apply any degree of
force they chose. As we have noted, however, the law clearly established that the amount of
force had to be reasonable in light of the legitimate objectives of the institution.”).
Regardless of the exact legal standard to apply to Apkarian’s claims here, it has long
been clearly established that state prison or detention-facility staff cannot beat a prisoner or
conduct a sexually humiliating strip search for no legitimate penological reason. I’ve already
dismissed defendants’ objection to the vagueness of Apkarian’s allegations and the argument
fares no better regarding qualified immunity. Apkarian’s version of events describes defendants’
conduct as so egregious that there is no question it violated his clearly established rights. So I
conclude that defendants are not entitled to qualified immunity. Accordingly, I will deny the
state defendants’ motion for summary judgment on all of Apkarian’s excessive force, strip
search, and medical care claims, and his failure-to-protect claim against defendant Ourada.

13

D. Parties
Although it’s clear which claims survive summary judgment, there are still some
lingering problems with identifying some of the defendants.
Apkarian named several defendants as “John Does” and was able to identify some of
them by providing physical descriptions of them in his amended complaint. See Dkt. 39. But
he does not remember any identifying characteristics of Doe No. 3 and he did not follow up
with further attempts to identify Doe No. 5 after defendants said that they could not identify
the person.
Apkarian also named “Ms. Krueger,” the Krueger Cottage unit manager, as the
defendant on his medical care claim. Defendant accepted service on behalf of this defendant.
But now at summary judgment they say that the claim should be dismissed because no one by
that name worked in Krueger Cottage in September 2014. The court appreciates the state
defendant working with Apkarian on his discovery requests to identify the Doe defendants.
But because they did not raise the Krueger identity problem before summary judgment, they’ve
given Apkarian little chance to fix the problem. In response, Apkarian says that he has learned
that this defendant was actually the Dubois Cottage manager during the time in question. My
review of the employee work schedules provided by defendants does not show a Ms. Krueger
working in the Dubois Cottage either. But it does show that there was an employee named
Krueger working on the Roosevelt Cottage on September 10 and some of the following days.
See, e.g., Dkt. 89-5, at 10, 11, 16. Neither party addresses this information.
My review of the employee log raises another potential defendant-identity problem.
The state defendants contend that they should be granted summary judgment on Apkarian’s
claim against defendant McAllister because McAllister did not work in either the Dubois or

14

Krueger cottages during the time in question. Apkarian says that he did not make that
assertion: his allegation is that McAllister was present during his transport. In any event, the
log shows more than one McAllister working at Lincoln Hills on September 10, 2014:
a D. McAllister and a R. McAllister. Id. at 10. I can’t tell from the parties’ filings whether they
agree on who the correct McAllister is.
Apkarian could have been more diligent in pursuing further discovery to identify the
Doe defendants, but crafting effective discovery for this type of this issue is a difficult task for
a pro se litigant. Apkarian points out that a schedule listing names of employees has limited
utility, given that he cannot necessarily place names to each individual involved. And
defendants are in part responsible for the problems with defendants Krueger and McAllister. I
conclude that the most equitable solution is to strike the remaining schedule and conduct at
least one more round of discovery in attempt to identify Does No. 3 and 5, Krueger, and
McAllister.
Defendants say that they submitted their “best good faith response” regarding the Does
after receiving Apkarian’s physical descriptions. Dkt. 47, at 6. But other than the Lincoln Hills
employee schedule, defendants do not explain precisely what documents they referred to in an
effort to identify the officers taking part in the events following Apkarian’s altercation with
another juvenile. I will give defendants a short time to explain whether there are any other
documents, such as an incident report, transportation log, or strip-search log, that would
identify the officers involved in those events, and to provide those documents to Apkarian and
the court. Alternatively, they can provide Apkarian and the court with photographs of each
male officer who could have reasonably have taken part in the response to the altercation, the
transport, or the strip search. Because Apkarian also identified Doe No. 5 as transporting him

15

to the hospital in 2013 for surgery on his finger, defendants should explain whether there are
any records of that transport that would identify the Doe.
To identify defendants Ms. Krueger and Officer McAllister, I will have Apkarian
respond first; he should provide defendants and the court with physical descriptions of these
defendants, as he did for the Doe defendants. Or perhaps Apkarian already knows which
McAllister he means to sue; if so, he should explain that. Defendants should respond to
Apkarian’s filing by either naming those defendants, or if they cannot, by explaining who
worked as the segregation cottage manager and Dubois Cottage manager during the times in
question (the employee logs do not appear to show which of the listed employees, if any,
worked as unit managers). Defendants should also explain why the staff member named
Krueger is not the correct defendant for this claim. If Apkarian cannot then identify
Ms. Krueger, I will expect them to submit photographs of all of the female staff members who
could possibly have met with him during the time in question to discuss his injuries.

16

ORDER
IT IS ORDERED that:
1. Defendant Jeff Jaeger’s motion for summary judgment, Dkt. 100, is GRANTED.
2. The state defendants’ motion for summary judgment, Dkt. 105, is GRANTED IN
PART as discussed in the opinion above.
3. Defendants Sunde, Westerhaus, Wall, and Jaeger are DISMISSED from the case.
4. The remaining schedule, including trial date, is STRUCK.
5. Apkarian and the remaining defendants may have until September 30, 2019, to
respond regarding the defendant-identification issues discussed above.
Entered September 9, 2019.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

17