United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
Jose Antonio Sanchez De Anda (“Sanchez De Anda”),
a prisoner, brings this action against Defendant Joel Wener
(“Wener”), the Pepin County Sheriff, pursuant to
42 U.S.C. § 1983. Sanchez De Anda alleges that Wener
violated the Eighth Amendment prohibition on the use of
excessive force by grabbing his neck in a way that choked him
and caused bruises and injuries to his trachea. On May 1,
2017, Wener filed a motion for summary judgment, supported by
a brief, affidavits, and proposed facts. (Docket #24-#29). On
May 30, 2017, Sanchez De Anda timely responded by filing a
brief, a declaration, a response to Wener's proposed
facts, and proposed facts of his own. (Docket #31-34). On
June 13 and 14, 2017, Wener replied in support of his motion
and responded to Sanchez De Anda's proposed facts.
(Docket #35-#36). The motion is fully briefed and, for the
reasons explained below, it will be denied.
STANDARD OF REVIEW
Rule of Civil Procedure 56 provides that the court
“shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d
910, 916 (7th Cir. 2016). A fact is “material” if
it “might affect the outcome of the suit” under
the applicable substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact
is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Id. The court construes all facts and
reasonable inferences in the light most favorable to the
non-movant. Bridge v. New Holland Logansport, Inc.,
815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh
the evidence presented or determine credibility of witnesses;
the Seventh Circuit instructs that “we leave those
tasks to factfinders.” Berry v. Chicago Transit
Auth., 618 F.3d 688, 691 (7th Cir. 2010). The party
opposing summary judgment “need not match the movant
witness for witness, nor persuade the court that [his] case
is convincing, [he] need only come forward with appropriate
evidence demonstrating that there is a pending dispute of
material fact.” Waldridge v. Am. Hoechst
Corp., 24 F.3d 918, 921 (7th Cir. 1994).
all times relevant to this suit, Sanchez De Anda was
incarcerated at the Pepin County Jail (the
“Jail”) in Durand, Wisconsin. Defendant Wener was
the Sheriff of Pepin County. Greg Balow (“Balow”)
was Wener's chief deputy, and Janet Krogstad-Bechel
(“Bechel”) was a communications and corrections
officer at the Jail. Here end the relevant facts on which the
to Sanchez De Anda, he began a hunger strike on December 28,
2015 because he was denied Muslim clergical representation at
the Jail. (Docket #33 at 1). That day he began to feel
abdominal pain and noticed blood in his stool. Id.
As his pain became more intense, he paced in his dorm area
and informed Bechel that he needed an ambulance. Id.
Bechel said she would help after she was done delivering
medication to another dorm, and Sanchez De Anda escalated his
cries for help. Id. Bechel closed the trap door to
Sanchez De Anda's dorm, and Sanchez De Anda started
banging on the door to get attention. Id.
Wener and Balow arrived. Id. at 2. Wener, looking
upset and agitated, asked Sanchez De Anda what was wrong with
him and yelled that he would take Sanchez De Anda to the
hospital himself but would not call for medical help.
Id. Sanchez De Anda told Wener he was scaring him
and would go to the hospital with anyone but him.
Id. Wener responded with profanity and entered the
dorm stating “I'm going to get you now,
fucker.” Id. Sanchez De Anda backed up,
fearing for his safety, and Wener started chasing Sanchez De
Anda around the dorm. Id.
physical assault became imminent, Sanchez De Anda put his
hands up to protect his face, but Wener managed to get his
hands on Sanchez De Anda's neck and apply pressure.
Id. at 3. Wener said, “I got you now
fucker” and “my mother just died a week ago,
don't let me take this out on you, fucker.”
Id. Just as Sanchez De Anda began to go limp,
Wener released enough pressure for him to breathe and scream
that he was being choked. Id. Balow and Bechel
looked on but did not offer any help. Id. Sanchez De
Anda escaped Wener's grip briefly but Wener pushed
Sanchez De Anda up against lockers and again applied a choke
men eventually left the dorm, with Wener still trying to gain
access to Sanchez De Anda's throat until Balow gestured
toward the camera, implying to Wener that he should stop.
Id. Wener patted Sanchez De Anda on the shoulder as
if nothing had happened. Id. Balow's and
Wener's reports following the incident both indicate that
Wener put his hands on Sanchez De Anda's neck to direct
him against the lockers during the altercation. (Docket #34-1
at 2-3). Sanchez De Anda was taken to segregation and later
taken to a nearby hospital to be treated for his injuries.
(Docket #33 at 3-4).
De Anda produced photographs of bruises on his neck and a
medical report from River Falls Area Hospital indicating
that, in addition to the hemorrhoid that had caused his
bloody stool, he was treated for “ecchymosis of the
neck, initial encounter, fracture closed, thyroid cartilage,
initial encounter, and facture, thyroid cartilage closed,
initial encounter.” (Docket #34-1 at 8, 11-15). Two
weeks later, Sanchez De Anda attempted suicide allegedly
because of the psychological damage he incurred. (Docket #33
tells a different story. He says that he and Balow responded
to Bechel's call for backup when Sanchez De Anda became
extremely agitated, yelling and cursing at Bechel for medical
attention, kicking the door of his dorm, and screaming about
his constitutional rights. (Docket #28 at 2-3). They
immediately noticed that Sanchez De Anda had covered the dorm
camera with some type of wet paper and had spread some type
of liquid substance on front of the dorm door. Id.
at 3. Sanchez De Anda was wearing his shirt on his head in
violation of Jail policy. Id. at 4. The officers
agreed that Sanchez De Anda would have to be moved to a
holding cell to protect him and others, but Sanchez De Anda
did not obey Wener's order to exit the dorm. Id.
offered to take Sanchez De Anda to the hospital, but Sanchez
De Anda refused, demanding an ambulance instead. Id.
After a few minutes of this, Wener stepped into the dorm and
approached Sanchez De Anda, who responded by crouching down
into a defensive position, clenching his fists, and
threatening Wener. Id. at 5. When Wener could not
calm Sanchez De Anda down, he engaged Sanchez De Anda
physically, first by grabbing his arm, and then, after
Sanchez De Anda resisted, by pushing him toward the
inmates' lockers with his hands on Sanchez De Anda's
collarbone. Id. at ...