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Hicks v. Facktor

United States District Court, E.D. Wisconsin

June 23, 2017

ERIC L. HICKS, Plaintiff,
v.
CHARLES FACKTOR, et al., Defendants.

          ORDER GRANTING THE DEFENDANTS' MOTION FOR PLAINTIFF'S THIRD MOTION TO APPOINT COUNSEL (DKT. NO. 45), AND DENYING THE PLAINTIFF'S MOTION FOR AN ORDER REQUIRING THE DEFENDANTS TO MEET WITH THE PLAINTIFF (DKT. NO. 47)

          HON. PAMELA PEPPER United States District Judge.

         Plaintiff Eric L. Hicks, a Wisconsin state prisoner who is representing himself, filed this case under 42 U.S.C. §1983, alleging that the defendants violated his civil rights at the Green Bay Correctional Institution (“GBCI”). Dkt. No. 1. On March 31, 2016, Judge Rudolph Randa, who was assigned to the case at the time, issued a screening order allowing the plaintiff to proceed with Eighth Amendment claims against Captain Lesatz, Correctional Officer Glades, and Complaint Examiners Michael Mohr and Charles Facktor. Dkt. No. 8. Defendants Mohr and Facktor have filed a motion for partial summary judgment. Dkt. No. 30. The defendants concede that the plaintiff's excessive force claims against Lesatz and Glades involve disputed facts that require a trial. Dkt. No. 40 at 2. The plaintiff has filed a motion asking the court to order the defendants to meet with him to attempt to resolve the case short of trial. Dkt. No. 47. He also has filed a third motion to appoint counsel. dkt. no. 45.

         I. MOTION FOR PARTIAL SUMMARY JUDGMENT

         A. Facts[1]

         1. Parties

         The plaintiff is an inmate at GBCI. Dkt. No. 41, ¶ 1. Michael Mohr is an Inmate Complaint Examiner (“ICE”) at GBCI (id., ¶ 2); Charles Facktor is a Corrections Complaint Examiner (“CCE”) for the Department of Corrections (id., ¶ 3).

         2. The Undisputed Facts

         This case arises from an offender complaint that the plaintiff filed on October 17, 2013 against Correctional Officer Glades, “Unknown CO, ” and Captain Lesatz, alleging that they used excessive force during his transfer to disciplinary segregation. Id., ¶ 5. According to the offender complaint, Glades and “Unknown CO” (under the supervision of Lesatz) went to the plaintiff's cell on October 6, 2013 to escort him to the segregation unit. Id. Dkt. No. 33-1 at II. Glades and “Unknown CO” cuffed the plaintiff's wrists, and the plaintiff stated at that time that he had an injury on his right shoulder. Id. No one responded to the plaintiff's comment. Id. Someone then ordered the plaintiff to kneel, and they cuffed his ankles. Id.

         Glades and “Unknown CO” placed their hands on the plaintiff's biceps and ordered the plaintiff to stand up. Id. As the plaintiff stood up, Glades and “Unknown CO” pulled up on the plaintiff's shoulder, “forcing [the plaintiff's] shoulder to rise slightly.” Id. at 12. The plaintiff stated, “you're hurting me, ” but they continued to pull upward until the plaintiff came to his feet. Id.

         Later, all four individuals walked down the hall toward the segregation unit. Id. Several inmates spoke to the plaintiff along the way, saying things like “stay up bro” and “write me when you get a chance.” Id. At the end of the hall, the plaintiff heard a voice that he didn't recognize. Id. When the plaintiff turned around to see who it was, Glades “roughly yanked [the plaintiff's] arm upwards and forward.” Id. at 13. The plaintiff felt “excruciating pain that brought tears to [his] eyes, and, made [him] yell out.” Id. He asked Lesatz to order the COs to “lighten up” and Lesatz told the plaintiff to “just shut up.” Id.

         Glades and “Unknown CO” continued to apply force to the plaintiff's arms until they reached the security gate at the end of the hall. Id. The plaintiff asked to see a nurse, and “they” told him to file a blue slip instead. Id. A few days later, the plaintiff went to see the nurse, and learned that he had a “new injury to the nerve.” Dkt. No. 1 at 3.

         On October 17, 2013, the plaintiff filed offender complaint GBCI-2013-20153 regarding the incident. Dkt. No. 33-1 at 11. Inmate Complaint Examiner (“ICE”) Mohr interviewed Lesatz about what happened. Dkt. No. 41, ¶ 6. According the ICE report, Lesatz told Mohr that the plaintiff did not notify them of his shoulder injury until after he was already on his feet and halfway down the hall. Dkt. No 33-1 at 2. Lesatz stated that had the plaintiff informed them of his injury earlier, they may have used another method of escorting the plaintiff. Id. Based on Lesatz's statement, Mohr concluded that there were “no work rule violations” and he recommended dismissing the complaint. Id.; see also Dkt. No. 41, ¶ 7. The warden (not a defendant in the case) accepted the recommendation, and dismissed the complaint on November 27, 2013. Dkt. No. 41, ¶ 8.

         On or around December 9, 2013, the plaintiff filed an appeal of the decision dismissing his offender complaint. Id., ¶ 9; Dkt. No. 33-1 at 5. Among other things, the plaintiff asserted that videotape footage would have proved what really happened. Dkt. No. 33-1 at 19-23. Facktor reviewed Mohr's decision and recommended dismissing the appeal, because Mohr's decision “reasonably and appropriately” addressed the issue. Dkt. No. 33-1 at 6. Facktor concluded that the plaintiff “presented no information” to warrant recommending overturning the decision. Id. The ...


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