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White v. Tanula

United States District Court, W.D. Wisconsin

October 24, 2017

KEITH TANULA, Defendant.



         Plaintiff Erik Demetrius White is proceeding pro se on a claim that defendant Keith Tanula used excessive force against him while he was confined at the Douglas County Jail in Superior, Wisconsin. Pending before the court is defendant's motion for summary judgment, which will be denied because there are genuine disputes of material fact regarding whether defendant's use of force was excessive, and defendant has not shown that he is entitled to qualified immunity.


         On June 19, 2013, plaintiff Erik White was serving a sentence at the Douglas County Jail in Superior, Wisconsin. Defendant Keith Tanula and another officer, S. Lobermeier, were retrieving dinner trays from inmates. As officer Lobermeier took a tray from the cell next to plaintiff, Tanula approached White's cell and asked him to put his dinner tray on the feeder trap of the door. White was using his toilet at the time and told Tanlua to “hold on.” Tanula asked White a second time to put his tray in the feeder trap, and White again failed to comply because, as White asserts, he was using his restroom. Tanula could see White's dinner tray on the cell floor next to the door, so he opened the cell door to retrieve it.

         About the same time that Tanula opened the cell door, White flushed his toilet and started walking toward his door, with the intention of picking up his tray to hand it to Tanula. White states that when he leaned over to pick up the tray, Tanula “struck” him twice in the sternum and yelled, “Back the fuck up and get against the wall!” Tanula disputes this, admitting only that he “extended his left arm toward White.” Video footage from the cell confirms that Tanula extended his arm, but it is unclear whether he made contact. Unfortunately, the footage does not contain audio. If there was contact, it appears from the video to have been minimal, and no reasonable trier of fact could find it unjustified given White's surprise appearance immediately in front of the door.

         Upon entering White's cell, Tanula noticed White had several pictures affixed to his cell walls in violation of Douglas County Jail Rules. Tanula ordered White to remove them. Tanula also reports telling White that he would put the pictures into White's property bin, so that White would be able to retrieve them later, but White denies this. Regardless, White objected because he'd had the photos on his wall for a week and no other officer had ordered him to take them down. After Tanula repeated his order to take the pictures down, White became agitated and argumentative, although he eventually took down the photos near his toilet. Around the same time, officer Lobermeier overheard the confrontation between White and Tanula and entered the doorway of White's cell.

         Tanula then ordered White to remove additional pictures affixed to the cell wall near his bunk, holding out his hand for the pictures. Now angry, While said to officer Lobermeier, “What is this guy's issue?” Lobermeier responded by shrugging and telling White to comply with Tanula's directions. At that point, White told Tanula, “You got what you came for - can you leave my cell?” According to Tanula, White also began acting defensively, pacing and shifting his weight from side to side. White denies shifting his weight, but alleges that Tanula had his hand on his pepper spray in a threatening manner. On this, the video would seem to support White's version more, in that: (1) if White was shifting his weight or pacing at all, it was minimal; and (2) Tanula appears to be placing his hand to his belt where he stored his pepper spray. White then yelled, “that's my fucking family - nobody is getting those, ” referring to the photographs on the wall. Around this time, Lobermeier radioed for additional officers to assist.

         As White neared his bunk, the video next shows that he picked up a black t-shirt and put it around his neck and shoulders. White says he did so to protect his face because Tanula had his hand on his pepper spray, and he believed Tanula was about to spray him. According to White, Tanula proceeded to pepper spray him shortly after he picked up the shirt and then began to punch him repeatedly. White admits that he hit Tanula, but says it was only to defend himself. In contrast, Tanula says he did not even put his hand on his pepper spray until White picked up the shirt and began yelling in an agitated manner. Instead, Tanula claims that White stepped toward him, pulled the shirt off his shoulders and whipped it toward Tanula's face. Tanula says he then put his right hand up to deflect the shirt from his face, and extended his left arm out toward White's body. White then lunged at Tanula and punched him in the face multiple times.

         Although the video footage is grainy, Tanula's version of events is again suspect. Rather, the video shows White picking up the shirt after Tanula had already placed his hand on or near his pepper spray. Still, it is simply too difficult to determine from the video: (1) whether Tanula deployed the pepper spray before or after White made any movement with the shirt; or (2) whether Tanula or White threw the first punch. When playing in slow-motion, however, it appears Tanula may have swung first.

         At some point during the struggle, the parties agree that Tanula used his pepper spray on White, and Lobemeier then ran into the cell to separate White and Tanula. Within seconds, Tanula and Lobemeier were able to get White to the ground. Even so, Tanula says that White continued to struggle, which required Tanula to use his body weight to hold down White's legs and arms while Lobemeier handcuffed him. White also disputes this, stating that he did not struggle or resist once on the ground and instead lay down and put his hands behind his back to be cuffed. Moreover, White says that Tanula jumped on his back and pepper sprayed him, even though he was lying docile on the ground. Tanula denies this.

         Unfortunately, the video does not resolve these factual disputes; nor does it fully support Tanula's version of events. From the video, whether White was pepper sprayed while on the ground is hard to discern, although the video does show that Tanula climbed on White's back after White was already laying on the ground with his hands behind his back. It is also unclear from the video whether White was struggling at that point or how much pressure Tanula used.

         Once handcuffed, Tanula and Lobemeier pulled White to his feet and took him to the hallway. As Tanula was bleeding and Lobermeier had blood on her clothing and gloves, several other officers arrived on the scene to take over the transport of White. Tanula was taken to the local emergency room for medical treatment. (Neither party submitted evidence describing the extent of Tanula's injuries.)

         Officers took White to a decontamination area, so he could run water over his face and eyes. After a few minutes, White told officers he was doing better. According to White, he told the officers that nothing would have happened if Tanula had just “t[aken] the tray and not str[uck] him.” Documents from the incident report, however, state that White told officers he had been acting to defend himself against Tanula's attempt to take pictures of his family. Officers inspected White for visible injuries, and they did not see any active bleeding, but noticed some abrasions on his face and arms. They notified a nurse. Within an hour, a nurse checked on ...

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