United States District Court, E.D. Wisconsin
STEVEN D. PILLOW, Plaintiff,
CITY OF APPLETON, CASEY VOSS, GARY LEWIS, and DR. DENNIS LAUNDRIE, Defendants.
DECISION AND ORDER GRANTING DR. DENNIS LAUNDRIE'S
MOTION FOR SUMMARY JUDGMENT
William C. Griesbach, Chief Judge United States District
Steven Pillow sued the City of Appleton, Casey Voss, and Gary
Lewis under 42 U.S.C. § 1983 for allegedly violating his
constitutional rights. He has also raised a state law battery
claim against Dr. Laundrie who performed a forced
catheterization. Arising under federal law, Pillow's
§ 1983 claim provides this court with jurisdiction under
28 U.S.C. § 1331. The court also has supplemental
jurisdiction over the state law claim pursuant to 28 U.S.C.
§ 1367. Before the court is Dr. Laundrie's motion
for summary judgment. For the following reasons, Dr.
Laundrie's motion will be granted.
following facts are taken from Dr. Laundrie's proposed
findings of fact. (Def.'s Proposed Findings of Fact
(DPFOF), ECF No. 49.) Because Pillow did not dispute Dr.
Laundrie's proposed findings, the court deems them
admitted. See Civil L.R. 56(b)(4) (“The Court
will deem uncontroverted statements of material fact admitted
solely for the purpose of deciding summary judgment.”).
approximately 9:00 p.m. on July 23, 2013, Pillow overdosed on
heroin at a bus stop, resulting in a seizure and loss of
consciousness. (DPFOF ¶¶ 1-3.) Paramedics and law
enforcement were called to the scene. Pillow was reported to
be a “pulseless non-breather, ” and the
paramedics noted he continued to have difficulty breathing
when they arrived. Pillow was ultimately taken to the St.
Elizabeth Hospital Emergency Department for further
treatment. The Appleton Police Department accompanied Pillow
to the emergency department to obtain medical clearance to
take him into custody. (Id. ¶ 12.)
was “quite disoriented” when he arrived at the
hospital and went in and out of consciousness throughout his
stay. (Id. ¶ 14.) He was attached to a cardiac
monitor, received oxygen, and remained handcuffed to his bed
under police custody. The triage assessment revealed Pillow
was drowsy and had pain in his face. Pillow indicated he was
a current every day smoker and a current user of alcohol,
street drugs, heroin, and IV drugs. (Id. ¶ 16.)
Laundrie, the physician in the emergency department that
evening, noted Pillow had a history of seizure, a possible
injury to his head, and a possible intake of “bad
heroin.” (Id. ¶ 13.) During a
neurological examination, Dr. Laundrie observed Pillow had a
slow response time and continued to be drowsy, confused, or
in an altered state of mind. (Id. ¶¶ 22,
34.) After the examination, Dr. Laundrie believed it was
medically necessary to obtain blood and urine samples to
determine the origin of Pillow's mental state and seizure
and to evaluate whether his current condition could cause a
life-threatening adverse reaction. (Id. ¶ 24.)
Dr. Laundrie was concerned Pillow would “crash”
while in police custody which would result in another seizure
or other serious medical complications. (Id. ¶
Pillow was compliant with the blood sample, he was unable to
provide a urine sample. (Id. ¶ 29.) Dr.
Laundrie instructed staff to continue observing Pillow to
give him the opportunity to produce a urine sample
organically. Pillow's altered mental state and grogginess
continued for three hours. Dr. Laundrie concluded there was
an emergent need to identify the substances in Pillow's
system and to evaluate their effects, which could only be
accomplished through urine testing. As a result of
Pillow's inability to provide a urine sample after the
three-hour period, Dr. Laundrie ordered a straight
catheterization. Dr. Laundrie explained the procedure to
Pillow prior to administering the catheter, though Pillow did
not have the capacity to consent to it. Pillow did not
struggle or fight the procedure, which involved placing a
catheter in Pillow's urethra to drain the urine directly
from his bladder. (Id. ¶ 35.) Pillow's
urine sample tested positive for cocaine, methamphetamine,
marijuana, and opiates. Medical staff continued monitoring
Pillow's condition. Dr. Laundrie gave medical clearance
to Pillow at 2:30 a.m. after he concluded Pillow no longer
had emergent medical conditions that would preclude
Pillow's discharge from the hospital and his entrance
into a behavioral health unit, crisis facility, or jail.
Nevertheless, Dr. Laundrie's discharge instructions
ordered that Pillow be monitored with frequent checks about
every fifteen minutes for the first one to two hours after
leaving the hospital.
basis of these facts, Pillow commenced this action against
the City of Appleton and Officers Voss and Lewis. He asserted
claims under § 1983, alleging that the officers used
excessive force when they tackled him at the bus stop and
violated his rights by participating in the forced
catheterization. On May 4, 2016, Pillow filed an amended
complaint adding claims for battery and medical malpractice
against Dr. Laundrie and the health care facility where the
catheterization occurred. The court dismissed Pillow's
medical malpractice claim against these defendants on July
15, 2016. Dr. Laundrie has now moved for summary judgment on
the battery claim.
judgment is appropriate when the moving party shows that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). All reasonable inferences are construed
in favor of the nonmoving party. Foley v. City of
Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party
opposing the motion for summary judgment must “submit
evidentiary materials that set forth specific facts showing
that there is a genuine issue for trial.” Siegel v.
Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010)
(citations omitted). “The nonmoving party must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Id. Summary judgment is
properly entered against a party “who fails to make a
showing sufficient to establish the existence of an element
essential to the party's case, and on which that party
will bear the burden of proof at trial.” Parent v.
Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir.
2012) (internal quotations omitted).
claims Dr. Laundrie committed battery when he administered a
catheter against Pillow's will. To prevail on a civil
battery claim, a plaintiff must demonstrate that the
defendant intentionally caused bodily harm to the plaintiff
without his consent. Wis. JI-Civil 2005. Bodily harm includes
“physical pain or injury, illness, or any impairment of
physical condition.” Id. A plaintiff may
establish that the defendant intentionally caused bodily harm
by demonstrating that the defendant had the mental purpose to
cause bodily harm or was aware that his conduct was
practically certain to cause it. Id.; see also
Vandervelden v. Victoria, 177 Wis.2d 243, 249, 502
N.W.2d 276 (1993); Insolia v. Phillip Morris Inc.,
216 F.3d 596 (7th Cir. 2000). Dr. Laundrie argues Pillow is
unable to establish the elements of battery. Alternatively,
he argues that even if Pillow can demonstrate that Dr.
Laundrie's actions constituted civil battery, his conduct
was justified under the medical emergency exception.
the evidence in the light most favorable to the nonmoving
party, the record demonstrates that Dr. Laundrie committed
civil battery against Pillow when he administered the
catheter without his permission. Both the United States
Supreme Court and the Wisconsin Supreme Court have recognized
an individual's right to refuse unwanted medical care.
See Cruzan v. Mo. Dept. of Health, 497 U.S. 261,
304-05 (1990) (acknowledging that “a competent person
has a constitutional right to avoid unwanted medical
care”); Trogun v. Fruchtman, 58 Wis.2d 569,
596, 207 N.W.2d 297 (1973) (recognizing claims for battery
against treating physicians). In this case, the parties do
not dispute that Pillow did not voluntarily seek medical
treatment from Dr. Laundrie or that he did not consent to the
catheterization. Moreover, the evidence shows Dr. Laundrie
intentionally caused bodily harm during the procedure. Even
if Dr. Laundrie did not act with malice or intend to ...