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Ards v. Anderson

United States District Court, W.D. Wisconsin

December 29, 2017

TYRONE D. ARDS, Plaintiff,
v.
THEODORE ANDERSON, RANDY SCHNEIDER, MICHAEL J. THOMPSON, PATRICK STELLICK, and MAURY THILL, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Pro se plaintiff Tyrone D. Ards, a state prisoner now incarcerated at the Wisconsin Secure Program Facility (WSPF), is proceeding against correctional officers at his previous prison, the Columbia Correctional Institution (CCI).

         The case arises from an incident in which Ards apparently attempted to hang himself in the restrictive housing unit at CCI. Despite the fact that Ards was on suicide watch, he was given a bed sheet, with which he contends he hung himself. In the cell extraction and strip search that followed the hanging, Ards contends that he was subjected to excessive force that caused him enduring injuries.

         Defendants move for summary judgment, despite that fact that the record is full of genuine factual disputes about what actually happened and why the defendants did what they did. Leaving a suicidal man in solitary confinement with a bed sheet knowing that he might hang himself with it can be cruel and unusual punishment. And although prison staff can use force on an unresponsive inmate for safety reasons, the force cannot be excessive. A reasonable jury could find that defendants Thompson and Stellick disregarded Ards's risk of suicide, that Schneider and Thill used excessive force, and that Anderson ignored the use of excessive force. I will deny defendants' motion for summary judgment.

         Ards has filed nine motions, including a motion for assistance in recruiting counsel. I will attempt to recruit counsel who is willing to represent him. I will address his other motions below.

         PRELIMINARY MATTERS

         I begin with a few preliminary matters. First, I will not entertain new claims at summary judgment. See Anderson v. Donahoe, 699 F.3d 989, 997 (7th Cir. 2012) (“[A] plaintiff ‘may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment.'” (quoting Grayson v. O'Neill, 308 F.3d 808, 817 (7th Cir. 2002))). Ards says defendants subjected him to a humiliating strip search on April 26, but this is not a claim that he raised in his complaint, so I will not assess whether the strip search was unlawful.

         Second, Ards moves for reconsideration of Magistrate Judge Steven Crocker's order extending the deadline for defendants' summary judgment motion. Dkt. 76. Setting deadlines is a matter committed to the court's discretion, see Gonzalez v. Ingersoll Mill. Mach. Co., 133 F.3d 1025, 1030 (7th Cir. 1998), and I will deny defendants' summary judgment motion on the merits, so Ards has suffered no prejudice from the extension. Ards's motion for reconsideration is denied.

         Third, Ards moves to strike the declaration of Lon Becher. Dkt. 99. Becher's declaration authenticates Ards's medical records, describes the redness on his neck caused by the April 26 incident, and suggests that Ards suffered no severe injury from hanging himself. Dkt. 84, ¶¶ 6-11. Ards contends that I should exclude Becher's declaration because defendants failed to disclose Becher as a witness by the deadline for disclosing experts. But regardless of whether Becher is an expert or whether the disclosure is untimely, Ards suffered no prejudice. Whether Ards suffered severe, physical injury on his neck does not preclude his deliberate indifference claims or otherwise affect the analysis below. Ards's motion to strike is denied.

         Fourth, Ards moves to compel production of color copies of his neck injury and to sanction prison officials for failure to produce those photographs. Dkts. 112-13. The court has received those photographs in color, so I will deny Ards's motions as moot.

         The last preliminary issue. Ards moves for leave to file a sur-reply brief in opposition to defendants' summary judgment motion. Dkt. 125. He has filed a proposed sur-reply brief. Dkt. 129. I will grant his motion and consider his arguments in the sur-reply brief.

         UNDISPUTED FACTS

         The following facts are undisputed unless otherwise noted.

         Ards has a history of self-harm and suicide attempts. He refused to eat or drink in numerous instances between 2014 and 2017, and prison officials obtained court orders to force-feed him. He alleges that he attempted to overdose on medicine in July 2014, April 2015, June 2015, August 2015, October 2016, March 2017, April 2017, and December 2017. Dkt. 61, at 2; Ards v. Saylor, No. 17-cv-458, Dkts. 1, 50. This is not an exhaustive list. Some prison officials found Ards's suicidal ideations credible; others saw them as attempts to manipulate prison staff. See, e.g., Dkt. 90-1, at 11, 15.[1]

         This case arises from an incident during Ards's confinement in the Restrictive Housing Unit (RHU) at CCI. On April 25, 2014, Ards informed prison staff that he had thoughts of killing himself. A psychologist and a correctional officer at CCI found Ards “credible” and placed him on “close” observations status at 6:30 p.m. Dkt. 90-1, at 15. Close observation status usually requires correctional officers to observe the inmate every 15 minutes and record what they observe in an observation log. In Ards's case, prison officials decided to have Ards observed every five minutes. His property was restricted to a suicide-resistant smock, a security mattress, a soap, a washcloth, bag meals, toilet paper, paper forms for requesting health or psychological services, and a crayon. He was confined in his own cell because the cells designated for inmates on observation status were already occupied.

         A. Suicide attempt

         The parties agree that defendant Michael J. Thompson gave Ards a bed sheet on April 26 sometime around 6:30 p.m., during defendant Patrick Stellick's shift to conduct observation checks on Ards. They also agree that between 7:15 p.m. and 7:45 p.m., Ards told Stellick multiple times that he was suicidal, and in one instance, he asked to see a clinician from the Psychological Services Unit (PSU). No PSU clinician came to Ards's cell, and Stellick later discovered Ards lying motionless on the floor around 8:00 p.m. The parties dispute the details of what happened between 6:30 p.m. and 8:00 p.m.

         At about 6:30 p.m., Thompson was on sheet-exchange duty, and he was collecting used bed sheets from inmates in exchange for clean sheets. Ards did not have a used bed sheet, but Thompson gave him a new sheet anyway. Dkt. 106-6, ¶ 21; see also Dkt. 39, ¶ 21. Ards asked Thompson in an interrogatory why he gave him a sheet when he did not have a used one, but Thompson did not recall the reason. Dkt. 106-1, ¶ 22. The parties agree that Ards was not allowed to have a bed sheet while he was on close observation status.

         Thompson says he gave Ards the bed sheet by mistake. He was new to the job: he had been working at CCI for about a month, and he had never worked in the RHU. Thompson also says he did not know that Ards was on observation status: Ards was confined in his own cell, instead of a cell designated for observation status. On the other hand, Ards's observation log indicates that Thompson performed five-minute observation checks on Ards on that day before giving him the bed sheet. He had performed the observation checks between 11:43 p.m. April 25 and 12:33 a.m. April 26, and again between 3:35 a.m. and 6:00 a.m. on April 26. Thompson also wrote on the observation log describing what Ards was doing during the observation checks and signed his name on the observation log. Dkt. 85-1, at 11-15. The cover page of the observation log indicates that Ards was on clinical observation. Id. at 5. When Thompson gave Ards the bed sheet, Ards was wearing a suicide-resistant smock. Dkt. 106-4, ¶ 16. Ards's cell door also had a magnet that said “OBS.” Dkt. 121, ¶ 6.

         Thompson also denies knowing that Ards was not supposed to have a bed sheet. Ards, on the other hand, states in his declaration that he told Thompson that he was suicidal and that he would hang himself with the bed sheet when Thompson gave the sheet to him. Dkt. 106, ¶¶ 11, 13. Ards also adduces a declaration of James J. Davis, an inmate who was confined in a cell across the hall from Ards's cell. Davis states in his declaration that Davis himself told Thompson after Ards got the bed sheet that Ards was not supposed to have a sheet. Dkt. 107, ¶¶ 2-4. According to Davis, Thompson replied, “Oh, he's alright nobody wants to be cold, ” and walked away. Id. ¶¶ 5-7.

         Stellick was another correctional officer who performed the five-minute observation checks on Ards. On April 26, Stellick performed the observation checks between 2:05 p.m. and 10:00 p.m. Dkt. 85-1, at 20-25. At 7:15 p.m., Ards told Stellick that he had thoughts of hanging himself and that he wished to see a PSU clinician. At 7:35 p.m., Ards told Stellick that he had “strong urges to self-harm.” Dkt. 85, ¶ 17. At 7:45 p.m., Ards warned Stellick again, but neither Ards nor Stellick describes what Ards said at 7:45 p.m. Davis says in his declaration that he heard Ards telling Stellick that “the next round he would be dead.” Dkt. 107, ¶ 13.

         Stellick says that after each time Ards warned him about suicidal ideations, he informed one of his supervisors. Stellick says after the first and second warnings, he informed the shift sergeant, but he does not give the shift sergeant's name. Defendant Randy Schneider says he was the shift sergeant at the time, Dkt. 87, ¶ 5, but he does not say in his declaration that Stellick informed him about Ards's suicide risk, see Id. Instead, Schneider says Stellick contacted him around 8:10 p.m. when Stellick discovered Ards lying on the floor unresponsive. Id. ¶ 6. Stellick says after the third warning, he called a shift captain; again Stellick does not give the captain's name. Stellick says that the shift captain told him that the captain contacted clinical staff. According to Ards, Timothy Casiana, one of the defendants whom I dismissed earlier in the case, was the captain on duty, but when Ards asked Casiana in an interrogatory why he did not report Ards's suicide risk, Casiana did not recall being informed about Ards's suicidal statements. Dkt. 106-1, ¶ 9. All defendants except Thompson adduced incident reports that they prepared for the April 26 incident. Dkt. 85-2 (Stellick's incident report); Dkt. 86-1 (Thill's incident report); Dkt. 87-1 (Schneider's incident report); Dkt. 88-2 (Anderson's incident report). None of the incident reports indicates that Stellick informed the shift sergeant or the shift captain. The parties agree that no one from the PSU came to Ards's cell during the evening of April 26, even after Stellick found Ards lying on the floor. Stellick does not say that he took any action other than informing a supervisor.

         Stellick denies that he knew that Ards had a bed sheet. Ards admitted during his deposition that he did not tell Stellick that he had the bed sheet. Dkt. 123 (Ards Dep. 38:13- 14). The observation log indicates that Stellick conducted an observation check around 6:30 p.m., the approximate time when Thompson was on sheet-exchange duty. (The precise time when Thompson gave Ards the bed sheet is unclear.) Stellick did not have a constant view of Ards's cell during his observation shift because he continually patrolled various tiers of the RHU to check other inmates. Dkt. 85, ¶ 11. On the other hand, inmate Davis states in his declaration that he told Stellick that Ards had a bed sheet and that Ards was talking about hanging himself. Dkt. 107, ¶ 11.

         The parties dispute whether Ards actually hung himself. Ards says he hung himself with the bed sheet by tying one end of it to a vent in his cell and the other end to his neck. He says after he hung himself, he suffocated to the point where he lost consciousness, but the sheet got loose and detached from the vent. Dkt. 106, ¶ 17; Dkt. 123 (Ards Dep. 41:16-23). Defendants point out that Ards's allegation in his amended complaint that he “was lying motionlessly on the floor” does not establish that he hung himself. Dkt. 120, ¶ 13 (citing Dkt. 8, ¶ 18). They argue that because Ards verified his amended complaint under penalty of perjury, his allegation is a prior testimony that contradicts his current testimony that he hung himself. Dkt. 120, ¶ 13 (citing Dkt. 8, ¶ 18). But Ards alleges elsewhere in the amended complaint that he did hang himself. Dkt. 8, ¶ 14 (“[P]laintiff hung himself and was able to [suffocate] himself, with the bed sheet”). And the allegation about lying on the floor does not contradict the proposition that he first hung himself. Defendants also contend that the bed sheet was loosely wrapped around his neck when Stellick discovered Ards. But depending on how Ards tied the knot, he could hang himself on a noose larger than his neck, and the proposition that the sheet was loosely wrapped around his neck when he was discovered does not contradict Ards's testimony that it choked him earlier.

         The precise time when Ards attempted to hang himself is unclear, but Stellick says, at 8:05 p.m., he returned to Ards's cell for another observation check and found Ards lying on the floor with a bed sheet wrapped around his neck. He saw Ards's chest rise and fall, from which he inferred that Ards was breathing. Stellick spoke to Ards, but he did not respond. Stellick then notified Schneider that Ards was unresponsive.[2] Davis tells a slightly different version of what happened around 8:00 p.m. He says that he saw Stellick at 8:00 p.m. in front of Ards's cell with a shocked facial impression and looking into Ards's cell. Dkt. 107, ¶ 15. Davis says Stellick then left and he returned to Ards's cell with Schneider at 8:05 p.m. Id. ¶ 19. The parties agree that after Stellick discovered Ards and contacted Schneider, Schneider then contacted defendant Theodore Anderson telling him that Ards was found unresponsive. Dkt. 85, ¶ 21.

         B. Emergency cell entry and use of force

         The parties agree that Anderson assembled an emergency cell-extraction team and that the team extracted Ards from his cell using some level of force in the process. They also agree that the team escorted Ards to a dayroom for questioning, that a group of correctional officers carried Ards to a shower area, and that at the shower area, the officers conducted a strip search on Ards. Below are the details.

         The cell extraction team included seven members: Anderson himself, Thill, Stellick, and Schneider, and three other non-defendant correctional officers. Dkt. 91, ¶ 15. Once the extraction team arrived at Ards's cell, Anderson ordered Ards to open the cell door, but Ards did not respond. Ards testified that he was unconscious at this point. Dkt. 123 (Ards Dep. 41:16-42:5). Then Schneider, Thill, and Stellick entered Ards's cell. Dkt. 119, ¶ 63. The cell extraction was not recorded on video, even though the Division of Adult Institution requires prison staff to video-record uses of force. Dkt. 106-9, at 3. Defendants say that the cell extraction was not recorded because it was an emergency.

         Inside Ards's cell, Schneider used a plexiglass shield to restrain Ards. Correctional officers are trained to place a plexiglass shield on an inmate during an emergency cell extraction to restrict the inmate's movement and to prevent the inmate from harming the officers or himself. Dkt. 87, ¶ 11; see also Dkt. 89-2 (photographs of a plexiglass shield). Schneider says he “stabilize[d]” Ards against the floor by placing a plexiglass shield on his back. Dkt. 87, ¶ 11. Ards says Schneider “jumped” on his back with the shield, and the force from this jump caused him to regain his consciousness. Dkt. 106, ¶ 23 and Dkt. 123 (Ards Dep. 41:22-23). If Ards was unconscious until Schneider used the shield on his back, Ards would lack personal knowledge whether Schneider actually jumped on him. Ards testified during his deposition that he suffered an injury due to Schneider using the shield on his back, Dkt. 123 (Ards. Dep. 7:6- 8:16), so I take Ards to be saying that Schneider placed the shield on his back with such force that it felt like Schneider jumped on him. While Schneider was on Ards's back, other officers placed restraints on Ards's legs.

         Thill says he restrained Ards's right arm and ordered him to present his left arm so Thill could apply wrist restraints. According to defendants, Ards “refused” to follow Thill's orders and resisted by keeping his left arm under his body. See, e.g., Dkt. 119, ¶ 67. Earlier in this case, Schneider admitted in a response to Ards's request for admission that Ards's left arm was under his body when the officers entered the cell. Dkt. 39, ¶ 20. Ards says having Schneider's weight on top of him prevented him from moving his left arm, Dkt. 106, ¶ 24, and that he did not recall Thill asking him to present his left arm, Dkt. 123 (Ards Dep. 65:3-5). On the basis that Ards refused to comply with the orders that he present his left arm, Thill applied a “compliance hold” on Ards's right wrist by bending the wrist. Dkt. 86, ¶ 10. The parties agree that a compliance hold causes pain. Thill says Ards presented his left arm after the compliance hold, id. ¶ 11; Ards says he could present his left arm at this point because Schneider reduced some of the pressure on his back. Dkt. 123 (Ards. Dep. 65:3-5). The officers then placed restraints on Ards's wrists, and Schneider cut the bed sheet that was wrapped around his neck.

         Ards says Schneider and Thill caused him injuries during the cell extraction. He testified that he had been taking Tylenol and ibuprofen for the injuries on his lower back and right wrist on the day of his deposition, September 5, 2017, even though the incident occurred more than three years ago, on April 26, 2014. Dkt. 123 (Ards. Dep. 7:6-8:16).

         After the cell extraction, the officers escorted Ards to a dayroom, sat Ards on a chair, and questioned him about his injuries. Anderson asked Ards whether he was injured, and Ards did not respond. Anderson says he observed two small red marks on Ards's neck and that he took photographs of Ards's neck. Dkt. 88, ¶ 25; see also Dkt. 88-1 (photographs of Ards's neck); Dkt. 123 (Ards. Dep. 42:19-22).

         Anderson and other correctional officers then escorted Ards to a shower area for a strip search to check Ards's body for contraband. Thill, Anderson, Stellick, and Schneider were present during the strip search. See Dkt. 86, ¶ 14 (Thill); Dkt. 88, ¶ 26 (Anderson); Dkt. 85, ¶ 28 (Stellick); Dkt. 87, ¶ 17 (Schneider). Thompson was in the control bubble, where he could see the strip search. Dkt. 91, ¶ 16; Dkt. 106-5; Dkt. 106-11, ¶ 18. It is not clear whether anyone else was present.

         The strip search was not video recorded. Ards asked Schneider in an interrogatory why Anderson had a chance to grab a camera to take photographs in the dayroom but not a chance to record the strip search; Schneider did not know. Dkt. 106-11, at 5.

         The parties dispute what happened during the strip search. Ards says he did not refuse any order given by the officers; defendants say that Ards remained unresponsive and ignored the officers' orders when they tried to get Ards to conduct a self-directed strip search, which would allow him to remove his own clothes and move his own body parts with no physical contact with an officer. Stellick says once Ards and the officers arrived at the shower area, Ards was tethered to a door, Dkt. 85, ¶ 28, and Stellick admitted earlier in the case in a response to Ards's request for admission that an inmate cannot comply with a strip search with his hands cuffed beyond his back, Dkt. 106-5, ¶ 14. Defendants say that because Ards failed to respond, they carried out a staff-assisted strip search, which meant that an officer removed Ards's clothes and moved his body parts. Schneider conducted the staff-assisted strip search on Ards.

         Ards says that during the strip search, Schneider shoved a metal-mesh glove into his mouth and slammed his head against a metal door. Dkt. 106, ¶ 37. Defendants agree that Schneider wore a metal-mesh glove and put his hand wearing the glove in Ards's mouth. See Dkt. 89-2 (photographs of metal-mesh gloves). They say that the glove was meant to protect an officer's hand against an inmate biting the hand or other potential injury caused by any contraband hidden inside the mouth. Schneider admits that the use of a metal-mesh glove is not part of the prison's policy. Dkt. 106-4, ¶ 11. Defendants say that Schneider put his hand in Ards's mouth wearing the metal glove because Ards refused to comply with the officers' orders to open his mouth. Ards says he did not refuse any order from the officers. Dkt. 106, ¶¶ 36, 46.[3]

         As for slamming Ards's head against a metal door, defendants deny that it happened at all. Dkt. 120, ¶ 27. Ards says it did happen. Dkt. 106, ¶ 37 and Dkt. 123 (Ards. Dep. 43:2- 22).

         Ards was released from observation status on April 29, 2014. After the incident, Schneider filed a conduct report against Ards on the basis that Ards “created a risk of serious disruption at the institution or in the community.” Dkt. 106-8, at 2. A disciplinary hearing committee held an evidentiary hearing, but Ards refused to attend. After reviewing evidence, the disciplinary hearing committee found Ards not guilty. The committee noted, “Offender was in ...


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