United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON, District Judge
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.
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.
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
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.
July 18, 2011
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.
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.
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.
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.
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.).
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.
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 ...