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Mosay v. Hoegger

United States District Court, W.D. Wisconsin

May 19, 2016

CLINT S. MOSAY, Plaintiff,
v.
DALE HOEGGER and DAVID WISNIEWSKI, Defendants.

          OPINION & ORDER

          WILLIAM M. CONLEY, DISTRICT JUDGE

         Pro se plaintiff Clint S. Mosay, an inmate at Green Bay Correctional Institution (“GBCI”), was granted leave to proceed on claims that two of its correctional officers, defendants Dale Hoegger and David Wisniewski, violated his rights under the Eighth Amendment. Specifically, Mosay claims that Hoegger used excessive force against him when he activated a Band-It electronic control device attached to his ankle while he was receiving care at a hospital. He further claims that Wisniewski failed to protect him from Hoegger’s use of excessive force.

         Defendants filed a motion for summary judgment, along with proposed findings of fact and supporting evidence, on November 23, 2015. (Dkt. ##22, 24.) Mosay failed to file any opposition or other response to defendants’ motion for summary judgment. After reviewing the evidence, the court will now grant defendants’ motions for summary judgment in its entirety.

         UNDISPUTED FACTS[1]

         A. The Parties and Setting.

         Mosay’s claims arise from an incident on August 6, 2012. On that date, Mosay was receiving inpatient medical care at St. Vincent Hospital in Green Bay. Correctional officers Hoegger and Wisniewski were supervising Mosay at the hospital. Corrections personnel refer to this type of shift as a “hospital vigil.”

         In order to maintain safety of hospital staff, corrections staff and inmates, corrections staff use a “Band-It” device when inmates are receiving in-patient medical care at a hospital. The Band-It is attached to an inmate’s ankle, and can be activated to deliver an electric shock to the inmate. The Band-It is intended to deter inmates from engaging in uncooperative or dangerous behavior. During a hospital vigil, at least one supervising officer must be trained in use of the Band-It device and the remote must be monitored at all times.[2]

         B. The Band-It Device.

         The Band-It device is activated by a rocker-type switch. There is a safety strap over the switch, which helps prevent accidental pressure on the switch. After the switch is depressed for approximately a half second of continuous pressure, there is one audible alert beep. After approximately one second of additional constant pressure, the Band-It device is then activated. In order for the device to go off, the switch must be depressed for that entire time. The Band-It device runs for approximately eight seconds after activation. Once activated, the switch no longer needs to be depressed. If the device is equipped with a SAFE (self-activation feature), which is a lanyard type attachment, and the lanyard was not fastened securely, the device may be activated without depressing the switch.

         The Band-It device affects everyone differently. When activated on an individual, the affected muscles between the contact points on the Band-It will quickly contract, generally immobilizing that area of the body. Once the approximate eight second cycle is completed, an individual generally gains normal operation of the affected muscle. Typically, an individual can speak and control movement in other parts of his body throughout the activation cycle, though there are times when the entire body tenses up, effectively preventing any movement until the cycle is complete. Even so, many individuals react to activation by falling to the ground, yelling, and losing the ability to speak in a normal tone.

         The shock of the device itself does not cause any known lasting effects to a person’s overall health and wellbeing, although there can be secondary injuries from a person falling and hitting an object.

         The Band-It does leave two circular burn marks approximately 3.5 inches apart after activation. There is not a set, or even approximate, time frame when these signature burn marks go away; it depends on the person and how quickly they heal. The affected muscle group may also be sore for a day or so.

         Finally, whether or not activated, the device can leave impression marks where the contact points are placed due to the tightness of the Band-It when applied and secured. In some cases, impression marks last for a couple of days. Similarly, the device can cause marks on a person without activation if the person ...


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