United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON, District Judge
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.
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.Although she was served with the complaint,
Dkt. 64, she has not yet filed an answer.
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.
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.
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.
FACTS The following facts are undisputed, unless otherwise
Ice medical restriction
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.
Events on July 24, 2012
Dispute about ice
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
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.
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.
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
Decision to move Peterson
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
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.
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.
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.
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.
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
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
Use of force
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.
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.
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.
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.
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.
"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.
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.
to defendants, Peterson kicked his feet at the officers and
bit Casiana's right forearm, continuing to pull from the
officers' hold on him.
"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.
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.
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.
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.
Examination in the health services unit
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.
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.
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
Placement in DS-1
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.
Follow-up medical care
Peterson's attempts to obtain medical care before August
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.
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.
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.
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
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.
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.
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.
Treatment by defendant Suliene
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.
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 ...