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Zavala v. Aselson

United States District Court, E.D. Wisconsin

June 28, 2018

JIMMY ZAVALA, Plaintiff,



         The 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.

         The 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.


         The 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 ¶1.

         According 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.

         The 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.

         The 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.

         On 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.

         The 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 comments.”

         It is 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 ¶¶16-17.

         None of 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.

         Prison 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.

         On 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 ...

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