United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 65), GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT (DKT. NO. 70) AND DISMISSING
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, who is representing himself, filed this lawsuit
under 42 U.S.C. §1983, alleging that the defendants
violated his constitutional rights. The court allowed the
plaintiff to proceed on two claims: first, that defendants
Paul Ludvigson, Todd Olig and Jeremy Westra retaliated
against him, violating the First Amendment; and second, that
Olig used excessive force against him, violating the Eighth
Amendment. Both the plaintiff and the defendants filed
motions for summary judgment. The court grants the
defendants' motion for summary judgment, denies the
plaintiff's motion for summary judgment and dismisses the
plaintiff was housed at Waupun Correctional Institution
(Waupun) at the time the incidents underlying this lawsuit
occurred. Dkt. No. 67 at ¶2; Dkt. No. 72 at ¶1.
Defendant Todd Olig worked there as a correctional officer,
defendant Jeremy Westra worked as a Supervising Officer 2
(Captain), and defendant Paul Ludvigson worked as the
corrections program supervisor in the Restrictive Housing
Unit (RHU). Dkt. No. 72 at ¶¶2-4.
9, 2015, Olig worked first shift on the B wing of the RHU,
where the plaintiff was housed. Id. at ¶6. Olig
passed out medication as part of his normal duties, a process
referred to as “medication pass.” Id. at
¶7. Officers control the medication for inmates on the A
and B wings of the RHU. Id. at ¶8. Medical
staff members place the medications on a cart for the
correctional officer assigned to each wing to deliver to the
inmates. Id. The morning medication pass begins at
6:00 a.m., starting with an announcement over the intercom.
Id. at ¶ 9. In order to receive his
medications, an inmate must be standing at his cell door with
the light on, wearing a minimum of pants. Id. at
¶10. The “Segregation Unit Handbook, ” which
is given to all inmates on entry to the RHU, outlines the
medication pass process. Id. at ¶11. Inmates
are expected to read the handbook and comply with the rules
it outlines. Id.
to Olig, the plaintiff was not at his door with the light on
when Olig went past on the morning of June 9, 2015, so Olig
continued without delivering medication to the plaintiff; he
also did not deliver medication to other inmates on the B
wing who were not, according to Olig, following RHU rules.
Id. at ¶¶12-13. Olig alleges that the
plaintiff began to complain loudly about being skipped for
medication pass. Id. at ¶14. He says that he
walked over to the plaintiff's cell and told him that he
did not give the plaintiff his medication because the
plaintiff didn't follow RHU rules, and that Olig would
come back if he had time. Id. at ¶15. Olig
indicates that he left the plaintiff's door, and denies
that he ever intentionally kicked or hit the plaintiff's
door. Id. at ¶16-17. Later, Olig alleges, he
went back to all the cells of B wing inmates who were not at
their door for the initial medication pass to give them their
medicine. Id. at ¶18.
to the plaintiff, jail staff did not give the inmates on the
B wing proper notice that medication pass was going to begin,
though he states that he did follow RHU procedure and was at
his cell door. The plaintiff confirms that he began to
complain loudly when Olig went past his cell without giving
him his medication. Dkt. No. 68 at ¶4. The plaintiff
alleges that Olig walked back over to his cell, ultimately
kicking the plaintiff's cell door. Id. at
¶¶5-6; Dkt. No. 67 at ¶6. According to the
plaintiff, his finger was pinched in the door, causing severe
pain and bleeding behind the fingernail. Id. at
indicates that the plaintiff reported the pinched finger to
Olig, who called the Health Services Unit (HSU) to let the
nurse know. Dkt. No. 72 at ¶19.
DeYoung saw the plaintiff at his cell door at 8:50 a.m., and
noted that he had a “1/2 by 1/4 [inch] abrasion split
thickness over DIP (distal interphalangeal joint) of 4th
finger and no active bleeding.” Dkt. No. 72 at
¶20; see also Dkt. No. 68 at ¶9. Nurse
DeYoung told the plaintiff that she would evaluate him in the
HSU exam room as soon as possible. Dkt. No. 72 at ¶21.
11:45 a.m., Olig escorted the plaintiff to the HSU
examination room so that Nurse DeYoung could assess his
injury. Id. at ¶22; Dkt. No. 68 at ¶9. The
plaintiff says that, in Olig's presence, he told the
nurse that Olig had kicked his door and caused the injury,
and he says Olig did not deny it or write the plaintiff up
for lying. Dkt. No. 68 at ¶10. Olig says he doesn't
remember the plaintiff telling the nurse he had kicked
Sanchez's door. Dkt. No. 72 at ¶23. The nurse's
notes from her visit to the plaintiff's cell indicate
that the plaintiff told her that his finger was pinched when
Olig kicked his door. Dkt. No. 67-3 at 1-2. The nurse did not
note or feel any signs of deformity “other than
abrasion.” Dkt. No. 72 at ¶24.
next day, June 10, 2015, the plaintiff submitted an
information request to the security office in which he
alleged that Olig kicked his door during the 6:00 a.m.
medication pass the previous day, causing injury to his right
ring finger. Id. at ¶25; Dkt. No. 68 at
¶11. Defendant Paul Ludvigson states that he interviewed
the plaintiff about the incident, dkt. no. 72 at ¶26;
the plaintiff says that Ludvigson never interviewed him, dkt.
no. 81 at ¶26.
then downloaded three video clips from the video recording
system at Waupun. Dkt. No. 72 at ¶26. The first clip
begins at 6:08:44 a.m. and shows Olig walking back towards
the plaintiff's cell from the opposite end of the
hallway. Id. at ¶27; Dkt. No. 74-1. Olig then
speaks to the plaintiff through the door, gesturing at the
plaintiff, then walks back down the hall. Dkt. No. 74-1. The
clip ends at 6:09:46. Id. The plaintiff alleges that
the video “skips” at 6:09:05 for one to two
seconds, and that it was during this time that Olig kicked
the door. Dkt. No. 68 at ¶14.
next clip begins at 6:28:30, and shows Olig delivering
medications to the plaintiff. Dkt. No. 72 at ¶28; Dkt.
No. 74-1. The final clip, which picks up where the second one
left off and begins at 6:29:47, begins with three to four
seconds of a “frozen” image, then shows Olig
closing the trap on the plaintiff's cell door and walking
away, pushing the cart. Dkt. No. 72 at ¶29; Dkt. No.
reviewed the clips, Ludvigson found no evidence that Olig had
kicked the plaintiff's cell door. Dkt. No. 72 at
¶30. On June 23, 2015, Ludvigson issued Conduct Report
No. 2639723 to the plaintiff for lying about an employee,
violating Wis. Admin. Code. §DOC 303.32. Id. at
¶¶31, 33. Olig had no part in writing that
particular conduct report. Id. at ¶32; Dkt. No.
68 at ¶12. On June 24, 2015, the Security Director's
designee approved the report to proceed as a major offense,
noting that the plaintiff recently had “been warned
about the same or similar conduct and … created a risk
of serious disruption at the facility or in the
community.” Dkt. No. 72 at ¶36. Staff provided the
plaintiff with a copy of the conduct report and a Notice of
Major Disciplinary Hearing Rights, and assigned him a staff
representative. Id. at ¶¶37. The plaintiff
says that the only contact he had with a representative was a
substitute he met with the night before the hearing. Dkt. No.
68 at ¶13.
Jeremy Westra was assigned as the hearing officer for the
disciplinary hearing on Conduct Report No. 2639723. Dkt. No.
72 at ¶38. Westra had no prior knowledge of or
involvement in the incidents at issue in the Conduct Report.
Id. at ¶39. On June 24, 2015, Westra received
an “Inmate's Request for Attendance of
Witness/Evidence” form from the plaintiff. Id.
at ¶40; see also Dkt. No. 68 at ¶13. The
plaintiff asked that Olig, Ludvigson and a nurse appear as
witnesses at the disciplinary hearing; he also asked for his
medical records from June 9, 2015 and the video evidence from
Olig's 6:00 a.m. medicine pass. Dkt. No. 72 at ¶40.
Westra approved the video evidence and all the witnesses
except the nurse (because the plaintiff did not specify a
name). Id. at ¶41. The plaintiff says that he
also asked for the RHU movement log, but that he did not
receive that log or his medical records. Dkt. No. 81 at
hearing took place on July 9, 2015. Dkt. No. 72 at ¶43;
Dkt. No. 68 at ¶14. The plaintiff gave a verbal
statement that Olig kicked his cell door during the
medication pass, “pinching his hand in the door.”
Dkt. No. 72 at ¶43. Ludvigson testified that when he
watched the video, he did not see Olig hit or kick the
plaintiff's door. Id. at ¶44. Olig
testified that he didn't hit or kick the plaintiff's
door. Id. at ¶45. Westra reviewed the video
evidence. Id. at ¶47. The plaintiff claims that
he told Westra that the video was missing footage, dkt. no.
81 at ¶51; Westra said he had no reason to believe that
any footage was missing, and that he “assumed”
that he'd been given the video evidence the plaintiff had
requested, dkt. no. 72 at ¶51. The defendants assert
that the video was not the “sole deciding factor”
in Westra's decision to find the plaintiff guilty of the
violation. Dkt. No. 72 at ¶52. Westra asserts that,
after learning of the plaintiff's claim that footage was
missing, he went back and reviewed the clips at Dkt. No.
74-1, and that his review did not “reveal any
information that would have changed his finding at the
disciplinary hearing.” Id. at ¶53.
ordered the plaintiff to serve ninety days in disciplinary
separation. Id. at ¶58.