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De Anda v. Wener

United States District Court, E.D. Wisconsin

August 28, 2017

JOEL WENER, Defendant.


          J.P. Stadtmueller U.S. District Judge.

         1. INTRODUCTION

         Plaintiff 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.


         Federal 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).

         3. RELEVANT FACTS

         During 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 parties agree.

         According 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.

         Soon 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.

         As a 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.[1] 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 hold. Id.

         Both 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).

         Sanchez 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 at 4).

         Wener 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. at 3-5.

         Wener 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 ...

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