United States District Court, W.D. Wisconsin
TYRONE D. ARDS, Plaintiff,
THEODORE ANDERSON, RANDY SCHNEIDER, MICHAEL J. THOMPSON, PATRICK STELLICK, and MAURY THILL, Defendants.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE.
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).
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.
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.
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
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
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.
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.
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.
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.
following facts are undisputed unless otherwise noted.
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,
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.
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
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.
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.
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.
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,
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
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.
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.
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. 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.
Emergency cell entry and use of force
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
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
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.
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.
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).
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.
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.
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.
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
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.
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.
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