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Hanson v. Ermen

United States District Court, E.D. Wisconsin

October 27, 2016

DANIEL L. HANSON, Plaintiff,
v.
SEAN VAN ERMEN, and ROBERT AMUNDSON, Defendants.

          ORDER

          LYNN ADELMAN District Judge.

         Plaintiff Daniel Hanson, a Wisconsin state prisoner who is representing himself, filed this lawsuit pursuant to 42 U.S.C. § 1983 and was granted leave to proceed on his claims that defendants Robert Amundson and Sean Van Ermen violated his civil rights. Specifically, plaintiff alleges that Amundson used excessive force while performing an impermissible Terry pat-down and that Van Ermen directed nurses to inject plaintiff with an antipsychotic drug following his arrest on November 3, 2008. Before me now are the parties' cross-motions for summary judgment.

         I. BACKGROUND

         The relevant facts are taken from the “Proposed Findings of Fact in Support of Defendants' Motion for Summary Judgment” (ECF No. 108), plaintiff's sworn motion for summary judgment (ECF No. 117), and plaintiff's sworn response to defendants' motion for summary judgment (ECF No. 134). Facts that plaintiff failed to dispute are deemed admitted solely for the purpose of deciding summary judgment. Civil L. R. 56(b)(4).

         Plaintiff is currently incarcerated at the Prairie Du Chien Correctional Institution, although at the relevant time, he was not incarcerated. Van Ermen and Amundson were sheriff's deputies with the Marinette County Sheriff's Department (MCSD).

         On November 3, 2008, at about 7:00 a.m., plaintiff's truck, which he states was being driven by his son, veered into a ditch. Plaintiff exited the truck and asked a bystander “not to call the police because he didn't want to go back to prison.” ECF No. 108, ¶ 4. Despite this request, the bystander called the police. Plaintiff fled through the woods and ended up in the yard of a residence about 1.5 miles away.

         When police found plaintiff, he was lying on the ground smoking. Plaintiff states that he was “pretty out of it” and going in and out of consciousness. Id. ¶ 7. When Amundson arrived, plaintiff was lying in the grass in a fetal position and was not responding to attempts to communicate with him. Amundson states that he immediately smelled alcohol on plaintiff's breath.

         Amundson states that he conducted a pat down of plaintiff for bulges in his clothing in order to locate weapons that could pose a danger to plaintiff or others. Plaintiff states that Amundson interrupted medical personnel who were assessing plaintiff to conduct a “rough body search.” ECF No. 117, at 30. Plaintiff asserts that Amundson went “inside his pants up and down the legs, inside the underwear and shirt roughly touching, pulling and stretching the bare skin to the extent of causing excruciating pain.” Id. Amundson disputes this characterization; he asserts that he did not use any force during the pat-down and that his hands remained outside of plaintiff's clothing.

         Plaintiff was arrested (although no handcuffs were applied) for operating a vehicle while intoxicated. Officers decided to arrest plaintiff because he smelled of alcohol, was non-responsive, and fled from the scene of a vehicle in a ditch. Plaintiff was then transferred to a local medical center via ambulance.

         Van Ermen states that he followed the ambulance to the medical center, and when he arrived, plaintiff was unconscious, snoring, and did not respond to people shouting his name. Van Ermen read plaintiff the “informing the accused” form, which was required under Wisconsin's Implied Consent Law for blood draws related to operating a vehicle while intoxicated, and ordered a blood draw.

         When a lab technician arrived to draw blood from plaintiff, plaintiff woke up and became agitated. Van Ermen called for assistance from nursing staff. When a nurse arrived, plaintiff, who was still strapped onto a long board, ripped off his neck brace, swung his arms at the hanging IV bags, and broke a nurse's wrist. Van Ermen was eventually able to handcuff both of plaintiff's arms to the bedrails.

         Dr. Dennis Smith ordered a nurse to inject plaintiff with Haldol, an antipsychotic medication. According to plaintiff, he was given two shots of Haldol. Eventually, plaintiff fell asleep, and the blood draw was completed.

         II. ANALYSIS

         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). 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). For the purposes of deciding these motions, I resolve all factual disputes and ...


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