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Peterson v. Meisner

United States District Court, W.D. Wisconsin

November 2, 2017


          OPINION & ORDER

          JAMES D. PETERSON, District Judge

         Pro se prisoner Erick Peterson is proceeding on a number of claims arising out of a cell extraction that took place in July 2012. Peterson alleges that various officials used excessive force against him, provided inadequate medical care for his injuries, wrongfully denied his grievances, and failed to provide due process in the context of both the disciplinary proceedings and the criminal case filed against him related to his conduct during the cell extraction.

         Most of the defendants have filed motions for summary judgment in two groups, those who are employed by the state (Michael Meisner, Janel Nickel, Lon Becher, Timothy Casiana, Ryan Blount, Nathan Preston, Tracy Kopfhamer, Benjamin Neumaier, Scott Royce, Travis Haag, David Hautamaki, Dalia Suliene, Melissa Thorne, Karen Anderson, Joanne Lane, Cindy Francois, Cindy O'Donnell, Deirdre Morgan, Dennis Schuh, and Charles Facktor), and two defendants who are employed by Columbia County (Dennis Richards and Alexander Agnew). Dkt. 69 and Dkt. 75. I will refer to the first group as "the state defendants" and the second group as "the county defendants." Defendant Emily Steele is not included in either group.[1]Although she was served with the complaint, Dkt. 64, she has not yet filed an answer.[2]

         I will deny the state defendants' motion for summary judgment as to most aspects of the excessive force claim because it is clear that the parties genuinely dispute many of the facts relevant to whether the force the officers used was excessive. I will also deny the state defendants' motion for summary judgment on the question whether defendant Suliene failed to provide adequate medical care to Peterson when she first examined him on August 30 and the question whether Suliene used medical judgment when delaying treatment for Peterson's ulnar neuropathy for more than two months. I will grant the state defendants' summary judgment motion in all other respects and will grant the county defendants' summary judgment motion in full.

         As for defendant Steele, it appears to be clear from the undisputed facts that Peterson cannot show that she violated his rights under the Eighth Amendment. Accordingly, I will direct Peterson to show cause why his claim against Steele should not be dismissed.

         Also before the court is the parties' motion to change the trial date. Dkt. 102. Because the November 13, 2017 trial date is no longer feasible, I will grant the motion and strike the trial date. Once I resolve Peterson's claim against Steele, I will schedule a telephone conference to determine a new trial date and trial-related deadlines.

         UNDISPUTED FACTS The following facts are undisputed, unless otherwise noted.[3]

         A. Ice medical restriction

         At the time relevant to this case, Peterson was incarcerated at the Columbia Correctional Institution, which is in Portage, Wisconsin. On July 19, 2012, Peterson submitted a health service request in which he complained about joint pain in his fingers, knees, back, and neck. Defendant Dalia Suliene, a physician at the prison, examined Peterson and prescribed ibuprofen and ice twice a day to address his joint pain. Suliene also observed that Peterson was sweating a lot, which she believed was due to his large size. (At the time, Peterson weighed almost 400 pounds.) She prescribed a wash cloth to address the sweating.

         B. Events on July 24, 2012

         1. Dispute about ice

         On July 24, 2012, defendant Nathan Preston (a correctional officer at the prison) delivered ice to Peterson in accordance with the medical restriction. Preston brought the ice in a bag, but Peterson said it was supposed to be in a cup. Peterson says that Preston also put black pepper on the ice, but Preston denies this.

         Preston contacted defendant Melissa Thorne, a nurse in the health services unit, who informed Preston that the ice was supposed to be in a bag. When Preston refused to put the ice in a cup, Peterson stated, "what the fuck is this shit you playing games and bullshit with my ice." Peterson began to kick and bang on his cell door. Despite several orders to stop, Peterson continued this behavior from 6:45 p.m. to 7:25 p.m.

         Peterson called Preston "scum of the earth" and a "dirtbag." Preston contacted defendant Timothy Casiana, a correctional officer supervisor, to inform Casiana what was happening. Casiana told Preston to tell Peterson that he would receive a conduct report and be transferred to "DS-1" if he did not stop his disruptive behavior. DS-1 stands for disciplinary segregation 1, which is a more restrictive unit where prisoners are initially housed in response to behavioral problems.

         Around 8:30 p.m., Preston was distributing medication. Preston alleges that Peterson said, "Preston if you don't get me my second bag of ice for this shift I am going to fucking kill you and I want a white shirt right now bitch." Peterson says he threatened only to file a lawsuit.

         2. Decision to move Peterson

         Preston notified Casiana about the alleged threat and then wrote Peterson a conduct report for making threats, disrespectful conduct, and disobeying orders. Casiana directed Preston, along with defendants Tracy Kopfhamer, Benjamin Neumaier, and Scott Royce (all correctional officers) to move Peterson to DS-1.

         Kopfhamer told Peterson to place his hands through the trap in the cell door so that he could be restrained and escorted to DS-1. Peterson refused multiple times. Peterson says this was because Casiana refused to return the ice and the document showing Peterson's medical restriction.

         Peterson complained to Casiana about the issue with the ice. Casiana told Peterson that he would look into the complaint, but that Peterson needed to be moved to DS-1 now. Peterson refused to leave the cell until the issue about the ice was resolved. Casiana told Peterson that he would address the issue after Peterson was moved.

         Peterson continued to refuse to move. He stated, "put on your rubber chicken suits and get your gas and come in and get me. I know all about that gas." Casiana again stated that he would look into the medical issue, but he perceived Peterson's statement to be a threat. Officers left the area to allow Peterson to calm down.

         Casiana returned and asked Peterson whether he would allow himself to be restrained for a transfer to DS-1. Peterson refused and repeated his demand for ice in a cup. Casiana said that he would get the ice, but Peterson would still be moved.

         Casiana called staff in the health services unit, who stated that Peterson was supposed to receive ice in a bag. Casiana repeated this information to Peterson, who began to argue again.

         Casiana gave Peterson one more opportunity to comply. This time, Peterson agreed and placed his hands through the trap. Kopfhamer restrained Peterson's wrists. Kopfhamer told Peterson to back out of the cell when the door opened. Peterson did not comply with this order but instead "stood sideways" at the door. Peterson says that he could not comply with the order because the officers did not open the door far enough for his large frame to fit through it.

         3. Use of force

         In response to Peterson's failure to comply with the order, defendants Neumaier, Kopfhamer, and Royce placed Peterson in a hold. One officer was on each side holding Peterson's arm and wrist and applying pressure downward on his wrists. Peterson says that Casiana "intentionally twisted [Peterson's] right hand within the handcuff, " Dkt. 94, ¶ 18, causing great pain.

         Unspecified staff told Peterson to face the cell door. Officers placed a waist belt on Peterson and directed him to open his hands so that they could determine whether he was concealing anything. Peterson initially refused but eventually complied.

         Peterson refused multiple orders to face forward and instead turned his head to look at staff. He then flexed his shoulders and back muscles and clenched his hands together. Peterson says he clenched his hands together to prevent further injury to his hand and wrist. Peterson also says that he complained to Casiana at this point about how much pain he was in.

         Casiana directed the officers to press Peterson against the wall to gain control of him. Peterson says that defendants "slammed [his] head into the concrete wall." Id., ¶ 21. When Peterson attempted to pull away from the officers' hold on him, Neumaier and Kopfhamer attempted to apply more pressure to Peterson's wrists, but Peterson grabbed on to the cell door handle. Peterson says he did this "to keep from falling." Id., ¶ 22.

         Casiana directed the officers to bring Peterson to the floor, but they were unable to do so. Defendants say that Neumaier used his knee to strike Peterson's thigh in an attempt to create muscle dysfunction and allow the officers to regain control. Peterson says that the officers "mobbed" him, "punching and kicking him" and "pulling [him] to the floor while applying extreme pressure to [his] pressure points." Id., ¶ 23.

         Casiana "secured Peterson's head from the inside position based on the way he was positioned, " but Casiana "was unable to position himself directly behind Peterson." Dkt. 87, ¶ 112. Peterson ended up on the floor on his stomach.

         According to Peterson, the officers "attacked" him once he was on the floor, "manipulating several pressure points to cause pain." Dkt. 94, ¶ 24. The officers hit Peterson's right leg with a metal baton. Officers applied "wrestling holds" to Peterson's upper body and were "going for" his neck. Id., ¶¶ 29-31. One of the officers "entered [Peterson's] mouth and began to force [his] chin to [his] neck/chest, choking [him] with [his] own chin." Id., ¶ 33.

         According to defendants, Peterson kicked his feet at the officers and bit Casiana's right forearm, continuing to pull from the officers' hold on him.

         Casiana "struck his man-down alarm, " Dkt. 87, ¶ 117, and Travis Haag, a sergeant, responded to the call. Haag and Casiana performed a "trained head control technique" to prevent Peterson from biting. Id., ¶ 119. Haag turned Peterson's head to the side, placed one hand above Peterson's ear on the side of Peterson's head, and placed Haag's other hand below Peterson's ear on the same side of Peterson's head, the side that was facing up. With his arms extended, Haag pressed down on Peterson's head.

         Officers Rataczak, Kyburz, and Risen (not defendants) arrived on the scene. They assisted in securing Peterson and placing leg restraints on him. Peterson says that the officers put the restraints on so tightly that the "edges of the cuffs d[u]g into [his] skin." Dkt. 94, ¶ 28.

         Peterson calmed down and officers assisted him to his feet. Rataczak relieved Haag and "took control of Peterson's head, " using the same technique as Haag. Id., ¶¶ 125-26. Haag placed his right hand on the back of Peterson's right hand and "attempted to move Peterson's hand towards Peterson's forearm in an attempt to cause discomfort and pain to generate voluntary compliance." Id., ¶ 128.

         Officers brought Peterson to the dayroom, where he was placed in a wheelchair and taken to the health services unit. To prevent Peterson from biting, Rataczak "placed one hand under Peterson's chin and one hand on Peterson's forehead, and pulled Peterson's head back to rest on his chest or head rest of a restraint chair if one was in place." Id., ¶ 131. Neumaier and Haag held Peterson's arms down on the armrest.

         4. Examination in the health services unit

         Officers took Peterson to the health services unit, where defendant Thorne examined him. Peterson says that Haag "appl[ied] constant painful pressure to pressure points in [Peterson's] chin and jaw, " preventing him from talking to Thorne. Dkt. 94, ¶ 38. Peterson also says that Casiana directed Thome's examination.

         Haag denies that he was holding Peterson's head during the exam. Rather, Haag says Rataczak was holding Peterson's head in place. Casiana denies that he spoke for Peterson during the exam.

         Thome's examination focused on Peterson's ankle. Thorne did not observe any deformity, swelling, bruising, or redness, but she did observe that the ankle had a limited range of motion because of pain. She determined that Peterson did not require treatment beyond the ibuprofen and ice that he was already prescribed.

         5. Placement in DS-1

         After the exam, Peterson needed to ascend a flight of stairs to get to his cell. Peterson says that the officers told him to walk up them himself. When he told them that he could not do so because of his injuries, they "dragged" him up the stairs. Id., ¶ 41. According to defendants, officers "maintained a hold on Peterson's head and an officer was located at each arm to assist Peterson as he walked up the stairs." Dkt. 87, ¶ 139. Peterson was then placed in acellonDS-1.[4]

         C. Follow-up medical care

         1. Peterson's attempts to obtain medical care before August 30, 2012

         Defendant Emily Steele is a phlebotomist, which is someone who is trained to draw blood. On July 26, 2012, Steele drew Peterson's blood "because Peterson had bitten Casiana during the altercation on July 24, 2012." Id., ¶ 177. Peterson says that Suliene was present as well and that he tried to show both Suliene and Steele his bruises, but Steele told him to file a health service request and Suliene said that she was there for another patient and did not have time to examine him. Suliene denies that she was present at this appointment.

         Peterson filed a health service request in which he alleged that his wrist was broken and his arm was fractured. In response, a nurse (not a defendant) informed Peterson that he was scheduled to be seen in the health services unit, but the nurse did not say when. According to defendants, Peterson was scheduled to be seen on July 27, but he refused to see nursing staff on that date. Peterson denies that he refused an appointment and says that no one told him about the appointment or came to bring him to the appointment.

         On August 2, Peterson wrote defendant Karen Anderson, the health services unit manager, that he had not received treatment for painful and debilitating injuries he sustained during the use of force. In response, a nurse (not a defendant) told Peterson to submit a health service request.

         On August 7, Peterson submitted a health service request about bruising and numbness in his right calf and painful spasms and weakness in his right hand and wrist. On August 10, a nurse (not a defendant) examined Peterson. He said that he felt "electrical twinges" in his right hand and pain whenever he tried to grip something because he had been cuffed too tightly. He acknowledged that he suffered from carpal tunnel syndrome. (Peterson concedes that he began suffering from carpal tunnel syndrome long before the use of force incident. Dkt. 94, ¶ 18.) He also said that his right leg was numb from the knee down. The pain was an eight out of ten at its worst, but ibuprofen helped the pain somewhat.

         The nurse observed "faint bruising" on Peterson's right wrist, but no swelling or limitations in the wrist's range of motion. His grip strength was weaker in his right hand than his left. She also observed a bruised area on his right calf, approximately four inches by two inches wide, but no swelling or reduced range of motion.

         The nurse scheduled Peterson to see a physician the following week to determine whether he needed further treatment. In the meantime, she directed him to continue taking ibuprofen.

         On August 12, Peterson submitted a health service request in which he asked why he had not seen a physician yet. In response, a nurse (not a defendant) wrote that Peterson was scheduled to see a physician that week. When he was not called for an appointment, he submitted another request on August 17. In response, a nurse (not a defendant) stated that the physician was not at the prison that week, but an appointment would be scheduled the following week.

         2. Treatment by defendant Suliene

         On August 30, defendant Suliene examined Peterson to assess his complaints of right wrist pain and right calf numbness. She observed no hematoma or tenderness at either location. Suliene says that she prescribed ibuprofen and capsaicin cream (a topical pain reliever). Peterson says that Suliene conducted "a brief visual examination but provided no treatment or pain relief whatsoever for [his] injuries." Dkt. 94, ¶ 54.

         On September 6, Suliene ordered an electromyography (EMG) and a splint for Peterson's right wrist because of his history of carpal tunnel syndrome. (The parties do not say what prompted the order.) An electromyography is a diagnostic procedure to assess the health of muscles and the nerve ...

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