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Soto v. Rickey

United States District Court, W.D. Wisconsin

May 25, 2017

JOSE SOTO, Plaintiff,
v.
KELLY RICKEY, MATTHEW GRANT, RICK DONOVAN, WILLIAM GEE, JASON KROCKER, TRAVIS BITTELMAN, and WILLIAM LEFEVRE, [1] Defendants.

          OPINION & ORDER

          JAMES D. PETERSON, District Judge

         Plaintiff Jose Soto, represented by counsel, is proceeding on claims that defendants violated his rights under the Eighth Amendment by using excessive force against him and that certain defendants violated his rights under the First Amendment by retaliating against him when he mounted a hunger strike to protest the excessive force used against him.

         Defendants move for summary judgment. Dkt. 47. The court will grant defendants' motion in part and dismiss Soto's First Amendment claim against defendant Travis Bittelman. But genuine issues of material fact preclude entry of summary judgment on Soto's excessive force claims against the remaining defendants, so those claims will proceed to trial.

         UNDISPUTED FACTS I draw the following facts from the parties' summary judgment materials and previous documents submitted in this litigation. The facts are undisputed except where noted.

         Plaintiff Jose Soto is a prisoner in the custody of the Wisconsin Department of Corrections (DOC). He was incarcerated at Columbia Correctional Institution (CCI), where defendants worked, during the relevant events in this case.

         A. July 18, 2011

         On the morning of July 18, 2011, Soto met with a doctor concerning an injury to his foot. The doctor refused to treat or document the injury. When the appointment ended, defendant Correctional Officer William LeFevre began to escort Soto back to his cell. Soto's hands were secured with handcuffs in front of his body, and the cuffs were attached to a belt around his waist. LeFevre's left hand was placed on Soto's right arm as they walked together towards Soto's cell. As they passed the “bubble” (a command center encased in glass from which correctional officers monitor activity and open and close fortified doors), Soto told defendant Correctional Sergeant William Gee, who was stationed in the bubble, that he wanted to talk to a ranking officer about his foot injury.

         What happened in the next few minutes is at the heart of Soto's Eighth Amendment claims and is highly disputed, even though there is a silent security camera video showing part of the incident. According to Soto, LeFevre “yanked” Soto's arm, causing Soto to spin, and then “slammed” Soto to the floor. Dkt. 46 (Soto Dep. 13:21). As Soto lay on the floor, defendant Correctional Officer Jason Krocker and non-party Correctional Officer Gray arrived and helped LeFevre pin Soto to the floor (despite Soto's lack of resistance). Defendant Correctional Sergeant Rick Donovan secured handcuffs to Soto's ankles. LeFevre, Krocker, and Gray then “yanked” Soto to his feet and ordered Soto to walk. Id. (Soto Dep. 17:24). Soto told them that he couldn't walk because of his foot injury and because the handcuffs on his ankles were too tight to allow for movement. Krocker said, “Fuck this shit! You're going to walk fast and now!” Id. (Soto Dep. 18:7-8). When Soto did not comply, Krocker took Soto by the neck and dragged him across the room until a senior officer ordered Krocker to stop, pointing out that Soto could not walk because his ankles were secured with handcuffs.

         According to defendants, Soto tried to stop at the bubble. When LeFevre told Soto to return to his cell, Soto spun and tried to pull away from LeFevre. LeFevre put his hands on Soto's shoulders, but his hands slipped and LeFevre started to fall. LeFevre “directed Soto to the floor, ” where LeFevre tried to “stabilize” him. Dkt 51, ¶ 10. When Soto refused to roll onto his stomach, LeFevre told him to stop resisting. Krocker and Gray arrived and helped LeFevre restrain Soto. Donovan went to the bubble and asked Gee for a pair of leg restraints. Gee gave Donovan “what appeared to be leg restraints, ” but were in fact handcuffs made for people with extra-large wrists. Id. ¶ 12. Donovan put the restraints on Soto's ankles while defendant Correctional Officer Kelly Rickey held Soto's legs. The officers helped Soto kneel and then stand. Rickey and defendant Correctional Officer Matthew Grant tried to escort Soto to his cell, but Soto stopped and tried to get non-party Unit Manager Ashworth's attention. Rickey ordered Soto to face forward and continue walking, but Soto did not comply. Rickey repeated the order. Soto refused to walk and “became loud and disruptive.” Dkt. 52, ¶ 10. Krocker “secured Soto's head to [Krocker's] chest” by placing one hand on Soto's forehead and another hand on Soto's chin, “turned Soto around, and instructed him to walk.” Id. ¶ 11. Soto did not walk, but Krocker did: Krocker walked backwards for 10 to 12 feet as Soto dragged his feet. Krocker again ordered Soto to walk. Soto said he could not do so. Krocker and his fellow officers then realized that Soto's ankles were bound with handcuffs instead of leg restraints, “meaning there was not enough length of chain between the restraints to allow his feet to go back and forth.” Id. ¶ 14.

         The parties' versions of events reconverge at this point. They agree that Gray brought in a wheelchair, which the officers used to escort Soto to the Health Services Unit for a standard medical evaluation.

         B. Hunger strike

         After the July 18 incident, Soto began a hunger strike to protest what he viewed as the excessive use of force against him. At that time, Soto was housed on the Disciplinary Separation 1 Unit at CCI, where defendant Correctional Officer Travis Bittelman worked the first shift (from 6 a.m. until 2 p.m.).

         Again, the parties' versions of events diverge. According to Soto, Bittelman was upset about the extra paperwork that Soto's hunger strike was creating, so around September 5, 2011, he started turning on the light in Soto's cell and directing other guards to leave the light on. This deprived Soto of sleep. Bittelman also refused Soto his medications.

         According to Bittelman, he never refused Soto his medications, used the light in Soto's cell to harass Soto, or directed any other guards to do so. Nor was he especially upset by the hunger strike, which ...


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