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McDuffie v. Swiekatowski

United States District Court, E.D. Wisconsin

June 27, 2018



          J. P. Stadtmueller, U.S. District Judge.

         Plaintiff Brandon McDuffie (“McDuffie”), a prisoner, brings this action pursuant to 42 U.S.C. § 1983 against Defendant William Swiekatowski (“Swiekatowski”), a correctional officer. McDuffie attempted suicide on February 14, 2017 by climbing onto a ventilation duct in the prison and threatening to jump. Correctional officers tried to coax him down verbally but were unsuccessful. Eventually, Swiekatowski shot McDuffie with a pepperball gun in order to encourage him to descend.

         In this suit, McDuffie alleges that Swiekatowski violated his rights under the Eighth Amendment by using excessive force against him and by acting with deliberate indifference to his serious medical needs, namely his suicidality. Swiekatowski has filed a motion for summary judgment as to each of McDuffie's claims. (Docket #33). That motion is fully briefed and, for the reasons stated below, it will be granted.[1]


         Federal Rule of Civil Procedure 56 provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh the evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010).

         2. RELEVANT FACTS[2]

         McDuffie is a Wisconsin prisoner housed at Green Bay Correctional Institution (“GBCI”). At the time of the events in question, Swiekatowski was a correctional officer at GBCI with the rank of captain.

         On February 14, 2017, at approximately 5:42 p.m., the GBCI communications center, commonly referred to as “control, ” called for first responders to report to the South Cell Hall. South Cell Hall consists of four tiers: E-tier, the ground floor; F-tier, the second floor; G-tier, the third floor; and H-tier, the top floor. Cells run along one side of the hall, with a walkway in front of them. There is an open space between the walkway and the wall opposite the cells which spans the entire height of the hall.

         McDuffie had jumped from the walkway on F-tier onto the supervisor's secure area, called the “sergeant's cage, ” and then onto the ventilation shaft which ran along the opposite wall. The ventilation shaft was approximately thirty inches wide, twenty feet long, and ten feet off the ground.[3] McDuffie says he did this because he had a mental break and was attempting to commit suicide by jumping onto the ventilation system and then to his death. At the time McDuffie jumped onto the ventilation duct, many South Cell Hall inmates were returning from the evening meal.

         Lieutenant Timothy Retzlaff (“Retzlaff”) responded to South Cell Hall, stood on E-tier, looked up, and talked to McDuffie, who was on the ventilation unit directly above. Mattresses were placed on the floor below McDuffie in case he fell or jumped. At 5:48 p.m., GBCI nurse Steven Bost (“Bost”) arrived to provide any needed medical care. Other South Cell Hall inmates were walked back to the unit and locked inside their cells in order to secure the area, allow staff to concentrate on bringing McDuffie down from the ventilation system, and minimize the chance that other inmates may interfere with that effort.

         Swiekatowski also responded to the area at this time, was briefed by Retzlaff, and then consulted with Deputy Warden Schueler (“Schueler”) regarding the incident. They decided to call for Sergeant Antonio Cummings (“Cummings”) to speak with McDuffie and try to convince him to come down. As a member of the GBCI crisis negotiations team, Cummings has received specialized training regarding de-escalation techniques and using negotiation to resolve crisis situations. Swiekatowski is not trained in crisis negotiations.

         Cummings reported to the South Cell Hall around 5:50 p.m. He walked up to the F-tier walkway directly across from McDuffie, who at that point was sitting on the duct work, and began to speak with him. According to Cummings, McDuffie said he wanted to kill himself because he had long sought help from psychological services staff to no avail. At approximately 6:11 p.m., an extension ladder was placed against the duct near McDuffie to provide him a safe way to climb down. Cummings' initial attempts to persuade McDuffie to voluntarily climb down lasted approximately thirty minutes. McDuffie reports that inmates and correctional officers, including Cummings, were able to calm him down by speaking with him.

         Swiekatowski then came to F-tier at 6:20 p.m. to check on the progress of negotiations. Cummings believed he was making headway, but McDuffie appeared to change his mind when Swiekatowski arrived. Cummings informed Swiekatowski how upset McDuffie was, that he wanted to talk to psychological services staff, and that he wanted to kill himself.

         McDuffie accuses Swiekatowski of “re-escalat[ing] the situation” and derailing efforts to calm him down by “making aggressive statements and verbal threats, causing [him] to relapse into mental distress.” (Docket #43 ¶ 14). Specifically, McDuffie avers that

Swiekatowski engaged me and after I told him I wanted to kill myself, he became sarcastic as if he could care less [and] then said, “ok yeah, get down.” I became agitated and told him “you don't give a fuck if I die or not, ” and he continued with the sarcasm before telling me, “alright that's enough, either you get down or I'm gonna get a ladder, come up there and make you get down, ” which caused me to explode with emotions I fought hard to control and told Swiekatowski to “get psych or I'm gonna jump over the mats and kill myself, ” and Swiekatowski told me “no” and “no one is coming, ” then walked away.

Id. ¶ 17.

         Swiekatowski then left South Cell Hall to update Schueler. With Swiekatowski away, Cummings and Retzlaff continued negotiations with McDuffie but, according to them, they made no progress. McDuffie says that Cummings was trying to reverse the “psychological damage” inflicted by Swiekatowski but that he was too far gone into the “stream of emotions” giving rise to his suicidality. Id. ¶ 19.

         At approximately 6:35 p.m., McDuffie began banging his fist against the ventilation system. Staff did not climb the ladder to bring McDuffie down due to concern that McDuffie had the advantage of being in an elevated position and could assault officers as they climbed. Staff were also concerned that if they were able to successfully climb the ladder, the extra weight on the duct might cause it to collapse.[4]

         Cummings continued to reason with McDuffie to persuade him to voluntarily climb down. Once again, his attempts failed. Swiekatowski decided to use physical force to persuade McDuffie to come down. Swiekatowski says he was motivated by a need to ensure McDuffie's safety and abate the situation, which was agitating the other inmates. McDuffie disagrees, saying the Swiekatowski wanted to punish McDuffie for having an episode of mental illness and for holding up the dinner service and showers.

         While conversing with Schueler, Swiekatowski explained that they were not making any progress getting McDuffie to come down voluntarily and suggested bringing the pepperball gun as a means to gain compliance. The pepperball gun is a non-lethal high-pressure air launcher that fires a fragile projectile containing a powdered chemical, called “OC powder, ” that can irritate the eyes and nose in a manner similar to pepper spray. As a part of his ...

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