United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING THE KENOSHA
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 57),
GRANTING DEFENDANT MEGAN KEEFER’S RENEWED MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 133), AND DISMISSING CASE
PAMELA PEPPER United States District Judge.
order resolves the joint motion for summary judgment filed by
defendants David Stauche, Maxwell Isaac, Alvin Burdick, and
“Guard Ray,” dkt. no. 57, and defendant Megan
Keefer’s renewed motion for summary judgment, dkt. no.
June 4, 2015 order screening the plaintiff’s complaint,
the court concluded that the plaintiff was making two kinds
of constitutional claims. Dkt. No. 13 at 7. First, he
appeared to be claiming that two Kenosha County Jail guards
subjected him to excessive force, and were indifferent to his
serious medical needs. Id. Second, it appeared that
the plaintiff was alleging that other Kenosha County guards,
as well as a nurse there, had been deliberately indifferent
to the plaintiff’s serious medical needs. Id.
at 8. The court allowed the plaintiff to proceed on those
claims as to defendants Stauche, Isaac, Burdick and
“Guard Ray,” all guards at the Kenosha County
Jail (“the Kenosha defendants”). The court also
allowed him to proceed on his claim against the nurse, Megan
Keefer filed her original motion for summary judgment on
December 14, 2015, before she had access to the
plaintiff’s medical records. Dkt. No. 48. Keefer later
obtained the plaintiff’s medical records, and filed a
renewed motion for summary judgment. Dkt. No. 133.
Consequently, the court denied the December 2015 motion
without prejudice on February 21, 2017. Dkt. No. 151. In
coming to its decision, the court has considered the
documents supporting Keefer’s original motion for
summary judgment, dkt. nos. 49-51, the plaintiff’s
sworn response, dkt. no. 54, and Keefer’s original
reply brief, dkt. no. 71. The court also has reviewed
Keefer’s renewed motion, dkt. no. 133, the
plaintiff’s response materials, dkt. nos. 139-144, and
Keefer’s final reply brief, dkt. no. 147.
Kenosha defendants filed their motion for summary judgment,
along with supporting documents and evidence, on January 4,
2016. Dkt. Nos. 57-70. In an order entered March 14, 2016,
the court directed the plaintiff to respond to this motion on
or before May 16, 2016. Dkt. No. 78. The court received the
plaintiff’s response briefs, declarations, and proposed
findings of fact on March 24, 2016. Dkt. Nos. 81-88. Several
of these documents, including the plaintiff’s
sixty-page brief, reference 28 U.S.C. §1746, which gives
evidentiary weight to the factual assertions they contain.
After requesting an extension of time, the Kenosha defendants
filed reply materials on April 20, 2016. Dkt. Nos. 96-105.
The plaintiff then submitted surreply materials, dkt. no.
110, which the court agreed in its January 9, 2017 order to
consider when evaluating the motion for summary judgment,
dkt. no. 148.
August 18, 2014, the plaintiff was transferred from the
Racine County Jail to the Kenosha County Jail (Jail) for a
court appearance scheduled to take place on August 19, 2014.
Dkt. No. 68 at ¶9. The next day, after his court
appearance, the plaintiff was transferred back to the Racine
County Jail. Dkt. No. 49 at ¶3. The events alleged in
the complaint took place during those two days.
Dave Stauche participated in booking the plaintiff into the
Jail on August 18, 2014. Stauche indicates that when the
plaintiff arrived in booking, he had with him ACE bandages
and compression socks, the kind of “medical
equipment” that had to be approved before an inmate
could keep it. Dkt. No. 61 ¶3. Stauche says that his
“practice” was to contact the medical department
to ask about the status of approval for such equipment; he
says he informed the plaintiff that the plaintiff could not
keep his ACE bandages and compression socks with him, because
they had not been approved. Id. In contrast, the
plaintiff says that Stauche never contacted the medical
department, and that there was no policy requiring approval
for such equipment. Dkt. No. 74 at 1. The plaintiff says that
he chose to give up his knee wraps, because he did not want
to spend the next twenty-four hours in a holding cell, which
is what Stauche told him would happen if he did not give up
the wraps. Dkt. No. 81 at 4.
defendants assert that inmates are “informed of the
procedures to access medical care” at the time of
booking. Dkt. No. 68 at ¶12. The plaintiff disputes that
“at the time of booking,” inmates “are
informed of the procedures to access medical care.”
Dkt. No. 81 at 3. The defendants state that “[j]ail
rules and procedures . . . are posted in every housing unit
of the Jail.” Dkt. No. 68 at ¶12. The plaintiff
contends that jail rules and procedures were not posted in
his housing unit between July 2013 and August 2014. Dkt. No.
81 at 3.
booking, the plaintiff was housed in Medical Ward 2, Bunk 5.
Dkt. No. 68 at ¶18.
Transport to X-Block
approximately 2:05 p.m., defendant Isaac received a telephone
call from Nurse Autumn in the Health Services Unit (HSU).
Id. at ¶18. Autumn told Isaac that the
plaintiff was not approved to have a wheelchair in the
housing unit; she said that the plaintiff was permitted a
wheelchair only for long distances. Id. The
plaintiff disputes that Isaac got a phone call from a nurse,
dkt. no. 81 at 4, but the defendants submitted (as an exhibit
to the affidavit of Marc Levin, the detentions commander for
the jail) a video that shows Isaac on the telephone, dkt. no.
70 at clip 14E5798, and an e-mail from Nurse Autumn indicates
that she had talked to a nurse at the Racine County Jail and
confirmed that the plaintiff only needed a wheelchair for
long distances, dkt. no. 101-1.
indicates that after the call, Isaac informed the plaintiff
that he would have to give up his wheelchair because it was
not permitted by HSU, but the plaintiff said he could not
walk without it. Dkt. No. 68 at ¶19. The plaintiff
refused to give up his wheelchair unless he could get his
“wraps” back. Id. at ¶¶19-22.
When the plaintiff continued to refuse, Isaac ordered the
plaintiff “to pack his property for movement to
X-Block.” Id. at ¶23. The plaintiff says
he had no property to pack. Dkt. No. 81 at 5. The plaintiff
also believes that Isaac made him give up his wheelchair in
retaliation for the plaintiff’s persistent and
consistent requests for his ACE bandages and bedding.
Id. at 4.
radioed for additional officers to help him transport the
plaintiff to X-Block. Dkt. No. 68 at ¶24. The plaintiff
says Isaac never used his radio and that he used his phone
instead, dkt. no. 81 at 5, but the video shows Isaac using
the radio attached to his shirt, then making a telephone
call, dkt. no. 70 at clip 14E5798.
Stauche and Mottinger arrived to assist with the transport.
Dkt. No. 68 at ¶24. Isaac placed handcuffs on the
plaintiff, id. at ¶25; the plaintiff says they
were so tight that they instantly caused pain to both his
wrists. Dkt. No. 88, ¶25.
to the defendants, the plaintiff repeatedly attempted to
impede progress by wrapping his feet around the bunks or by
putting his feet on the ground in order to prevent the
wheelchair from moving forward. Dkt. No. 68 at
¶¶26, 32-33. The defendants also aver that the
plaintiff yelled disrespectful statements and made threats to
officers during transport. Id. at ¶¶33-34.
contrast, the plaintiff says that Isaac pushed the wheelchair
into two beds, a table, four doors and a door frame. Dkt. No.
88 at ¶26; dkt. no. 86 at ¶¶28-32, 34. He also
says the wheelchair had no footrest and his legs were not
strong enough to hold his feet up or wrap around anything.
Dkt. No. 88 at ¶26. According to the plaintiff, Isaac
rammed the plaintiff into numerous objects and injured the
plaintiff, and tried to dump the plaintiff out of the
wheelchair. Dkt. No. 86 at ¶39, dkt. no. 88 at ¶31.
the video does not show the approximately one minute that the
officers were in the medical ward getting the plaintiff into
the wheelchair, various cameras follow the group’s
progress through the hallways from the medical ward to
X-Block. Dkt. No. 70 at clips 14E5802, 14E5804, 14E5807,
14E5811, 14E5813, 14E5816, 14E5818, 14E5821, 14E5824, 14E5827
and 14E5831. The video does not have sound, and consists of
still images taken approximately every six seconds. In the
video, the plaintiff sits passively in the wheelchair with
his feet on the floor and his hands in his lap. There are no
signs that the plaintiff was wrapping his feet around things.
Nor are there any signs that the plaintiff was in distress.
In contrast to the plaintiff’s claims that Isaac rammed
him into beds and a table, the video clips show no beds or
tables; nowhere on the clips does the wheelchair come into
contact with anything other than the floor as it moves along.
Transfer to Cell
to the defendants, once they were outside the “Zone 5
entrance to X-Block,” Isaac ordered the plaintiff to
stand up and walk to the cell, but the plaintiff said that he
could not walk without assistance. Dkt. No. 68 at ¶35.
Isaac and Stauche assisted the plaintiff by holding him under
his arms while he walked to the cell. Id. at
¶36. They got the plaintiff into his bunk without
incident, and Officer Mottinger removed the handcuffs, while
Isaac aimed his OC spray at the plaintiff due to the threats
the plaintiff had made during transport. Id. at
¶¶37-38. The officers then left the cell, while the
plaintiff continued to yell threats and disrespectful
statements. Id. at ¶39.
plaintiff’s version of events, he was not making
threats, but asking and shouting for help. Dkt. No. 88 at
¶34. He says that Isaac never ordered the plaintiff to
walk. Id. at ¶35. Instead, Isaac snatched the
plaintiff out of the wheelchair, slammed the plaintiff into a
wall and searched him. Id. The plaintiff says he was
dragged down the hall, id., and that Isaac and
Stauche had full control of his body, dkt. No. 81 at 6. Next,
the plaintiff avers that Isaac threw the plaintiff to the
floor and sat on him while pointing his OC spray at the
plaintiff and calling him a bitch. Id.
number 14E5833 of the video shows the plaintiff in the
hallway, hunched over but with his feet on the ground, and
with one officer holding each of his arms. The video does not
show anyone slamming the plaintiff into a wall, or dragging
him down the hall; the wheelchair is parked in front of the
door to the cell. The two officers went in the cell for
approximately thirty seconds; during that time, they (and the
plaintiff) were out of view of the video camera. A third
officer stood at the door while the first two were inside
with the plaintiff.
the officers present-Isaac, Stauche or Mottinger-observed any
injury to the plaintiff, or saw that he was in need of
emergency medical care. Dkt. No. 68 at ¶43. They
indicate that they would have directed the plaintiff to fill
out an “Inmate Medical Request Form” if he had
requested non-emergency care. Id. at ¶44. They
stated that the plaintiff never requested medical attention
or an inmate medical request form from Isaac, Stauche or
Mottinger. Id. at ¶45.
to the plaintiff, the defendants did not observe his injuries
because they didn’t want to. Dkt. No. 81 at 7. He
states that they ignored his cries for medical help during
the whole trip from the medical ward to the X-Block (although
he says a different officer came from another zone in
response to his cries). Dkt. No. 81 at 7. The plaintiff
states that he did not know he needed to fill out a medical
request form, because “he had just been assaulted by an
officer and [was] bleeding [with] skin hanging from the
cuts;” he assumed that this would have appeared to the
officers to be a medical emergency. Id.
after the officers left the plaintiff in his cell in X-block,
the video shows water start to seep out from under the
plaintiff’s cell door. Dkt. No. 70 at clip 14E5836. In
contrast to the short clips that tracked the trip from the
medical ward to the X-Block, this clip is forty-two minutes
long. It is clear that the water was coming from only one
cell-the plaintiff’s. The clip shows the water increase
from a trickle to a flow, filling the hallway outside the
cell and traveling away from the camera. The water passed
three neighboring cells, moved into another section of the
hallway, and eventually traveled as far as six cell doors
down the hall.
twenty minutes later, defendant Officer Alvin Burdick entered
X-Block and noticed water coming from the plaintiff’s
cell. Dkt. No. 68 at ¶46. The video shows Burdick
approach the plaintiff’s cell, stand in the hallway and
talk to the plaintiff for approximately thirty seconds. Dkt.
No. 70 at clip 14E5836. He appears calm and, in the
time-lapsed images, looks forward, turns his head to face the
cell door, and then looks forward again before he leaves the
and the plaintiff describe this interaction very differently.
According to Burdick, he asked the plaintiff why he was
flooding his cell, and the plaintiff started yelling at
Burdick, stating that he wanted a nurse and that “he
should not be in there.” Dkt. No. 68 at ¶47.
Burdick tried to explain to the plaintiff that flooding his
cell would not get the nurse over to see him, and the
plaintiff responded, “I don’t care bitch.”
Id. at ¶48. Burdick asked another officer to
retrieve the pipe chase key and turn the water off until
maintenance could shut it off. Id. at ¶49.
Burdick grabbed a couple of dirty sheets and blankets to put
in front of the plaintiff’s door to try to stop the
water from coming out. Id. at ¶51. The
plaintiff called Burdick a “bitch” and began
making threats, while Burdick ignored the plaintiff and
monitored the inmate workers who were cleaning up the water.
Id. at ¶¶52-55. Burdick indicates that he
did not observe an emergency situation requiring emergency
medical attention, and that the plaintiff never requested an
inmate medical request form from Burdick. Id. at
¶¶56, 58. When Burdick asked the plaintiff about
the nature of his alleged medical emergency, the plaintiff
refused to respond to the question or explain why he needed
emergency medical attention. Id. at ¶57.
Instead, he continued to yell and make threats to Burdick.
plaintiff alleges that when the plaintiffs in the X-Block saw
Isaac sitting on the plaintiff, pointing the OC spray can at
him and calling him names, they became so enraged that they
started kicking and banging on their doors, trying to get the
attention of other jail staff. Dkt. No. 1 at 5. He alleges
that when the inmates couldn’t get staff attention that
way, they “started flooding [their] cells.”
Id. The plaintiff disputes Burdick’s assertion
that Burdick saw water coming out of his cell. Dkt.
No. 81 at 7.
plaintiff says that when Burdick asked him what was wrong,
the plaintiff clearly and concisely told Burdick that he
needed medical attention because an officer he did not know
has just tried to break his legs and knee caps by pushing the
plaintiff’s wheelchair into beds, a table, door frames,
and a door. Id. at 8. The plaintiff reported that he
had several long cuts and two punctures that were caused by
the beds. Id. The plaintiff asked to have the wounds
cleaned and the hanging skin removed; he also wanted a
tetanus shot. Id. The plaintiff says Burdick
responded by saying that “no one gives a fuck,”
and told the plaintiff several minutes later, “I hope
you die in that cell.” Id. at 8-9. The
plaintiff avers that he did not make any threats to Burdick,
and did not say “I don’t care bitch.”
Id. at 8. The plaintiff says he was never excited
and that he was calm and matter-of-fact at all times during
two conversations with Burdick. Id. at 9.
video shows that the clean-up process was extensive. Various
correctional officers came in and out of the area; some
talked to the plaintiff through the door to his cell, others
did not. Some talk to inmates in other cells through their
doors; some do not. The clean-up efforts start with Burdick
putting the sheets and blankets in front of the door; the
fabric becomes soaked, and the sheets and blankets sink
beneath the water to the floor. An officer (perhaps Burdick)
then brings a squeegee with a long handle; after a few
moments, he appears to realize that the squeegee is useless
given the amount of water. Eventually, inmates in what appear
to be black-and-white-striped prison garb appear, along with
an officer who ...