United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 19), GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT (DKT. NO. 26) AND DISMISSING
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, who is representing himself, filed this lawsuit
under 42 U.S.C. §1983. Dkt. No. 1. The court allowed the
plaintiff to proceed on a claim that the defendant used
excessive force in violation of the Eighth Amendment when he
allegedly threw balled-up tape at the plaintiff's face
with enough force to cause significant injury. Dkt. No. 9.
parties filed cross-motions for summary judgment, dkt. nos.
19, 26, which are fully briefed. The court will deny the
plaintiff's motion, grant the defendant's motion, and
dismiss this case.
plaintiff, a Wisconsin state prisoner, was housed at the
Wisconsin Secure Program Facility (WSPF) during the events at
issue in this case. Dkt. No. 36 at ¶1. The defendant is
a correctional officer at WSPF, and on March 16, 2017, was
supervising the inmates working in the WSPF laundry
department. Id. at ¶2; Dkt. No. 31 at ¶1.
The plaintiff was working folding clothes. Dkt. No. 31 at
to the plaintiff, the defendant was “walking around the
room horse playing saying racial comments” when
“out of nowhere [the defendant] called [the
plaintiff's] name and when he turned around [the
defendant] had thrown a roll of tape in a ball which hit [the
plaintiff] in the face which instantly sw[e]lled up.”
Dkt. No. 34 at ¶6. The defendant, on the other hand,
states that he was trying to “toss a crumpled piece of
paper into a waste basket that was approximately 6 feet away
from where he was standing.” Dkt. No. 28 at ¶6.
The defendant indicates that the waste basket was
“several feet” behind the plaintiff's work
station. Id. The defendant explains that he missed
the waste basket, and “accidentally hit [the plaintiff]
in the shoulder/neck area. Id. at ¶7.
defendant says that he immediately apologized to the
plaintiff, who acknowledged the apology and did not say
anything or react in any way to indicate he was hurt or
upset. Id. at ¶¶8-9. The defendant
explains that, based on the plaintiff's response, he
didn't think it was an issue, so he didn't document
the incident or write a report. Id. at ¶10.
plaintiff disputes that the defendant apologized. Dkt. No. 34
at ¶8. He disputes that he did not react in any way; the
plaintiff says that he told staff what had happened, but they
didn't do anything. Id. at ¶9. The
plaintiff disagrees with the defendant's contention that
the incident “wasn't an issue, ” indicating
that the plaintiff believes the defendant did it
intentionally, so the defendant “would have
known.” Id. at ¶10.
March 22, 2017-six days after the incident in the laundry
room-the plaintiff submitted an interview/information
request. Dkt. No. 30-1 at 24-25. In this request, he
complained that the defendant “pitched a fastball of
paper to [his] face, ” in violation of institution
rules. Id. at 24. The request did not say anything
about the defendant making “racial comments.”
Another staff member informed the defendant that the
plaintiff had complained about the incident, dkt. no. 28 at
¶12, so the defendant wrote up an incident report, dkt.
no. 28 at ¶13; dkt. no. 30-1 at 26-27. In that incident
report, the defendant explained that he'd been trying to
toss the crumpled paper into a trash can and had accidentally
hit the plaintiff. Id. at 27.
institution staff followed up with an investigation, and
interviewed the plaintiff. Dkt. No. 30-1 at 7-8. At the
interview, the plaintiff told the investigators that the
defendant had “crumbled up” the paper and
“just chucked it” at the plaintiff's face.
Id. at 7. The plaintiff also told the investigators
that he wasn't injured, but that “it hurt.”
Id. at 8. He stated that he had not sought medical
attention. He also said that he had waited a week to report
the incident. Id. The plaintiff did not say anything
to the investigators about the defendant making “racial
not clear whether the plaintiff disputes that he told the
investigators these things. He claims at summary judgment,
however, that he was “forced to go to the health
service” because of the incident, that he “ had
an infection in his cheek which was swollen, ” that he
was given medication, and that “to this day” he
was still having problems and was in pain. Dkt. No. 34 at
the other four inmates whom the investigators interviewed saw
the incident, dkt. no. 30-1 at 9-16, although one of them
recalled that the defendant apologized “right away,
” and opined that the defendant had not hit the
plaintiff on purpose, dkt. no. 30-1 at 15.
staff notified the defendant that after concluding the
investigation, the “Appointing Authority” had
decided not to take any formal disciplinary action against
him “regarding allegations of intent to harm [the
plaintiff] when [the defendant] threw paper away.”
Id. at 1.
April 17, 2017, the plaintiff sent the warden a letter,
alleging that the defendant had intentionally hit him in the
face with a ball of paper. Dkt. No. 30-1 at 17. The plaintiff
complained to the warden that although he'd informed
security about the incident, the defendant hadn't been
disciplined. Id. On April 27, 2017, the plaintiff
filed a formal inmate complaint, again alleging that the
defendant had intentionally hit him on the face with a
“hard ball of paper” while he was folding
clothes. Id. at 10. The next day, the inmate
complaint examiner recommended dismissal, noting that there
already had been an investigation. Id. at 2. The
warden dismissed the complaint. Id. at 3. On May 5,
2017, the plaintiff appealed the dismissal of the complaint,
this time alleging that the ...