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Silva v. State, Department of Corrections

United States District Court, W.D. Wisconsin

June 19, 2018




         Plaintiff Julio de Lima Silva, a sergeant with the Wisconsin Department of Corrections (“DOC”), alleges that he was subjected to discipline after a use-of-force incident because of his race and national origin in violation of both Title VII of the Civil Rights Act and the Equal Protection Clause of the United States Constitution. Before the court is defendants' motion for summary judgment (dkt. #35), which will be granted due to insufficient evidence of discrimination.


         Plaintiff Julio de Lima Silva was born in and remains a citizen of Brazil.[2] After moving to the United States, he became a correctional officer with the DOC and eventually was promoted to the rank of sergeant. At his request, de Lima Silva was transferred to the St. Croix Correctional Center (“SCCC”), where all of the events at issue occurred. Defendants were also employees of the DOC at all relevant times -- Quala Champagne was the warden at SCCC; Andrea Bambrough was an institution human resources director with DOC; David Hicks was an employee relations specialist with DOC; and JoAnn Skalski was a superintendent at SCCC.[3]

         At the heart of this case is a use-of-force incident at SCCC, which took place in the early morning of June 23, 2014. Apparently confronted with an inmate, Fernando Haro, who refused verbal orders to return to his bed as he waited to use the bathroom, de Lima Silva used a technique known as “decentralization, ” which involves forcing an inmate off balance and to the floor. After bringing Haro to the floor, de Lima Silva then held him in place for two minutes and 17 seconds before escorting him to another room without the use of handcuffs. Video footage of the incident was captured by a surveillance camera and submitted to the court for review. Before this incident, de Lima Silva had received positive performance reviews, indicating that he was meeting or exceeding expectations. On July 25, 2014, roughly a month after the use-of-force incident, de Lima Silva was placed on administrative suspension.

         When interviewed, de Lima Silva claimed the inmate had made a target glance, tensed his muscles, and made fists in a fighting stance. (Defs.' Reply to Pl.'s Resp. DFOF (dkt. #87) ¶¶ 22, 44.) De Lima Silva maintains that the inmate “abruptly” raised his arms at 00.28 of the video, but the reaction of at least ten DOC employees who reviewed the video was to doubt de Lima Silva's account of the incident and to question whether his use of force was justified. (Id. at ¶¶ 56, 60, 75, 81, 111, 118.) After reviewing the video, Warden Champagne asked herself, “What is he doing swinging the inmate to the ground and having him on the ground like that?” (Id. at ¶ 43.) As a result, the Warden found that de Lima Silva's use of force “did not seem appropriate” to her. (Id.)

         Nevertheless, to preserve objectivity, a use of force review was conducted by outside personnel. Jason Achterberg, the security director at the Stanley Correctional Institution, and Hans Kuster, a captain at the Oshkosh Correctional Institution, were enlisted to conduct the review. They concluded that:

During this review, it was apparent Sgt. Silva's perception differed greatly from what was observed on the video. Sgt. Silva's perception of threat he explained is not consistent with the actions of Inmate Haro seen on the video. Sgt. Silva claims Haro moved into a boxer's stance. The video does not show Haro move other than a slight head turn and moving his hands forward, not in the direction of Sgt. Silva. Sgt. Silva stated he felt threatened and could not disengage. The video does not show Haro actively resisting or moving in an overt fashion that would preclude someone from disengaging.
For these reasons, it is determined that this use of force was unreasonable under the circumstances. It appears this use of force was to compel the inmate to comply with the rules of the Program and not to prevent an assault of staff or other inmates.

(Defs.' Reply to Pl.'s Resp. DFOF (dkt. #87) ¶ 111.)

         Maria Silao-Johnson, the superintendent at the Gordon Correctional Center in Douglas County, and Jeffrey Jaeger, the superintendent of the Drug Abuse Correctional Center in Winnebago, conducted a separate WCCS personnel investigation and interviewed de Lima Silva on August 20, 2014. De Lima Silva avers that Jaeger laughed at his accent and accused him of being a liar during this interview.[4] After further investigation, Silao-Johnson and Jaeger concluded that de Lima Silva had violated three DOC work rules: Rule # 2 for using excessive force; Rule # 6 for providing false information in his incident report and for telling investigators that the inmate assumed a fighting stance; and Rule # 11 for threatening or attempting to inflict bodily harm on an inmate without provocation or reasonable justification. (Defs.' Reply to Pl.'s Resp. DFOF (dkt. #87) ¶ 60.)

         These personnel investigation findings were then turned over to an Infraction Review Team (“IRT”) for review. The IRT consisted of SCCC Warden Champagne, HR Director Bambrough, Employment Relations Specialist David Hicks and a security director. As a whole, the IRT also agreed that de Lima Silva's use of force was not justified. (Defs.' Reply to Pl.'s Resp. DFOF (dkt. #87) ¶ 81.) Based on their review of the personnel investigation, the IRT further determined that de Lima Silva may have violated work rules and proceeded to a pre-disciplinary hearing.

         After de Lima Silva was notified and given the opportunity to respond to the IRT's findings, Champagne, Bambrough, Hicks and the security director were required to reconvene as the Disciplinary Action Review Team (“DART”) to determine whether and what discipline should be imposed. With the agreement of the other members of DART, Warden Champagne chose to terminate de Lima Silva. She followed up with a formal letter to de Lima Silva that explained he had been terminated for (1) violating use of force policies, (2) intending to harm an inmate, and (3) providing false information. (Second Am. Compl. (dkt. #14) ¶ 14.)

         The matter did not end there, however, because de Lima Silva was subsequently provided a review hearing and reinstated to his position by the Wisconsin Employment Relations Commission, which found that de Lima Silva had not been terminated for “just ...

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