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Holm v. Casiana

United States District Court, W.D. Wisconsin

March 19, 2018

VICTOR HOLM, Plaintiff,



         Pro se plaintiff Victor Holm has been granted leave to proceed on a claim that defendants Captain Casiana, Trisha Anderson, Lt. Anderson, Dr. Steglia and Philip Kerch drew his blood in violation of his rights under the Fourth Amendment. (Plaintiff was also granted leave to proceed on a Fourth Amendment claim based on a urinalysis, but he clarifies in his summary judgment materials that he is challenging only the blood draw. Plt.'s Br., dkt. #35, at 8.) Now before the court is defendants' motion for summary judgment. Dkt. #26. Because I conclude that defendants are entitled to qualified immunity, I am granting the motion.

         From the parties' proposed findings of fact and the evidence in the record, I find the following facts to be material and undisputed unless otherwise noted. Notably, plaintiff filed a motion objecting to defendants' reliance on an expunged conduct report and related incident report. Dkt. #34. I will grant the motion. The conduct report and incident report consist of hearsay statements and I have not relied on either in setting forth the facts below.


         A. The Parties

         At all times relevant to this case, plaintiff Victor Holm was incarcerated at Columbia Correctional Institution, where all defendants worked. Theodore Anderson was a supervising officer; Timony Casiana was a supervising officer II; Philip Kerch and Trisha Anderson were nurses; and Richard Steliga was a doctor.

         B. January 10, 2014 Incident

         On January 10, 2014, plaintiff worked a full shift in the prison wood shop. After his shift, he returned to his cell. He was exhausted and suffering from a herniated disc and shoulder injury at the time, for which he was taking Gabapentin and Ibuprofen. Plaintiff put in his ear plugs and attempted to sleep. Some time later, correctional officer Melinda Babcock was “informed by a confidential informant that [plaintiff] had not been acting normal and that he believed [plaintiff] was high.” Babcock Decl., dkt. #29, ¶ 6. (Babcock provides no details about the confidential informant's tip, such as when the informant provided the information, why the informant was deemed to be reliable or whether the informant provided any details regarding how plaintiff's behavior was abnormal or why he believed plaintiff was “high.”) Babcock went to plaintiff's cell. (The parties dispute what Babcock observed. According to Babcock, plaintiff was struggling to sit up straight, had “glazed” eyes and was avoiding eye contact. Babcock says she asked plaintiff how he was doing, but he did not respond. However, plaintiff says he never saw Babcock come to his cell because he fell asleep shortly after returning from work.)

         After leaving plaintiff's cell, Babcock reported her purported observations to the on-duty sergeant, Sergeant Bartz, who went to check on plaintiff. Bartz arrived at plaintiff's door while plaintiff was sleeping with ear plugs in. Bartz kicked plaintiff's door. As soon as plaintiff heard Bartz, he immediately stood up. Bartz never spoke to plaintiff. (Defendants did not submit a declaration from Sergeant Bartz regarding his observation of plaintiff and rely only on hearsay evidence to describe Bartz's interactions with plaintiff. Therefore, I have not considered defendants' proposed findings of fact regarding Bartz's observations for purposes of summary judgment.)

         Babcock and Bartz later told defendant Lt. Theodore Anderson that plaintiff “was not acting normally and was possibly on some kind of intoxicant.” Lt. Anderson Decl., dkt. #30, ¶ 8. Anderson went to plaintiff's cell with Bartz and two correctional officers and removed plaintiff from his cell and brought him to the day room. In the dayroom, Anderson observed that plaintiff could not keep his eyes open or focus on what was being said and was unable to maintain his balance. Anderson did not believe plaintiff was “acting like himself” and believed plaintiff was under the influence of intoxicants. Id. ¶¶ 18-19. (According to plaintiff, if he was acting strangely it was because he was exhausted and taking strong pain medication.) Anderson took plaintiff to the restrictive housing unit, where defendant Nurse Philip Kerch conducted a medical evaluation.

         Defendant Kerch's “nursing encounter protocols” assessed plaintiff with “no abnormalities” in multiple areas and noted that plaintiff could perform multiple squats. Dkt. #40-5. (Defendant Kerch did not submit a declaration.) Defendant Trisha Anderson, another nurse, says that Kerch told her that plaintiff was not experiencing a “medical emergency” but was “displaying odd behavior.” Trisha Anderson Decl., dkt. #31, ¶ 5. (Because Kerch did not submit a declaration, his alleged statements can be considered only for their effect on Anderson and cannot be considered for the truth of the matter asserted.) Nurse Anderson then spoke with defendants Lt. Anderson and Captain Casiana, who told her they suspected plaintiff was under the influence of intoxicants. Defendants Nurse Anderson, Lt. Anderson and Casiana agreed that plaintiff should be tested for intoxicants.

         Defendant Nurse Anderson called the on-call physician, defendant Dr. Steglia, about her discussion with defendants Lt. Anderson and Captain Casiana. Nurse Anderson says that Steglia gave her a verbal order to take a urinalysis and blood sample from plaintiff and directed her to send the sample to Divine Savior Hospital for toxicology testing. (Defendants did not submit a declaration from Steglia, so any statements attributed by him may be considered only for their affect on Nurse Anderson and may not be considered for the truth of the matter asserted.) Nurse Anderson told plaintiff about Steglia's order and plaintiff responded that he did not want the blood test. (Nurse Anderson says that she told plaintiff he would need to sign a “Refusal of Recommended Health Care” form if he refused the test, which prompted plaintiff to consent to both the blood and urine sample. Plaintiff agrees that he consented to a urinalysis, but denies ever consenting to a blood test. He says that he repeatedly told defendants that taking a blood test was a violation of his constitutional rights and department policy.)

         The urinanalysis apparently tested positive for amphetamines and plaintiff was given a conduct report. However, the conduct report was later expunged because defendants failed to retest the sample. Plaintiff was never provided a copy of the blood test results and ...

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