United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE.
plaintiff and prisoner David Darnell Nelson, Jr. is
proceeding on multiple claims under the Eighth Amendment
related to his treatment at Waupun Correctional Institution
(WCI): (1) defendant HSU Manager Doe failed to ensure that
Nelson received his medication after he was transferred to
WCI; (2) defendants Matthew Burns and Andrew Larson used
excessive force on Nelson; and (3) defendants Burns, Larson,
Kyle Tritt, and Michael Lunde subjected Nelson to an improper
strip search after the use of force.
sides have moved for summary judgment on Nelson's claims
related to the use of force and strip search. Dkt. 57 and
Dkt. 69. I will deny Nelson's motion and grant
defendants' motion. As to the excessive force claim, the
only issue the parties raise is Larson's use of a taser.
I conclude that Burns cannot be held liable because he was
not involved in using the taser and there is no evidence that
he could have stopped it. Larson is entitled to qualified
immunity. Even if I assume that a reasonable jury could find
that Larson's use of the taser was excessive, the law did
not clearly establish that his actions violated the Eighth
Amendment. As for the strip search claim, the undisputed
facts show that defendants conducted the search for security
reasons, not to harass or humiliate Nelson, so that claim
fails as well.
Nelson's claim against the Doe defendant, I gave Nelson a
December 4, 2018 deadline to amend his complaint to identify
that defendant, Dkt. 68, but he failed to do that or ask for
an extension of time. So I will dismiss that claim for
Nelson's failure to prosecute.
before the court is Nelson's motion for leave to amend
his complaint to add the Wisconsin Department of Corrections
as a defendant. State agencies cannot be sued for
constitutional violations, Thomas v. Illinois, 697
F.3d 612, 613-14 (7th Cir. 2012), and even if they could,
Nelson hasn't shown or even alleged that the department
violated his rights. So the court will deny this motion as
futile. See Bethany Pharmacal Co. v. QVC, Inc., 241
F.3d 854, 861 (7th Cir. 2001).
following facts are undisputed except where noted.
events relevant to this case occurred on April 28, 2016, at
Waupun Correctional Institution. At around 8:25 a.m.,
defendants Matthew Burns and Andrew Larson (both correctional
officers) received notice of a “disruptive”
prisoner being held in a strip cell. When Burns and Larson
arrived on the scene, Larson observed that the prisoner in
the strip cell was Nelson and his hands were secured behind
his back with handcuffs. Another officer informed Burns and
Larson that Nelson was restrained inside the strip cell
because he had become disruptive and started to threaten
was yelling and appeared to be agitated. Nelson screamed,
“I want my god damn meds, you all mother fuckers are
gonna have to beat me” and “you are going to have
to gas me, electrocute me, I'm not
Nelson refused to calm down after a few minutes, Burns told
Nelson that he would be placed in temporary lockup in the
restrictive housing unit. Nelson yelled, “get the fuck
away from me, ” and then spit at Burns, hitting
“the left side of his face and shoulder area.”
Id., ¶ 18. Larson “presented” his
taser, activated the taser light, and centered it on
Nelson's chest area, ordering Nelson to turn around to
face the back of his cell. Nelson complied, but remained
“agitated” and continued to make
“incoherent statements.” Id., ¶ 19.
ordered Nelson to back up to the cell door trap and remain
facing the back of the cell. Instead of complying with the
order, Nelson looked over his left shoulder, “made a
sound like he was going to spit again, ” and
“attempted” to turn his shoulders and head to the
left “in an attempt to face Larson.”
Id., ¶ 20. When Nelson failed to comply with a
second order to face the back of the cell, Larson applied his
taser to Nelson's back. In response, Nelson leaned
against the wall and then “lowered himself” to
the ground. Id., ¶ 23.
Nelson stood up again, Larson and other officers
“secured” Nelson's left and right arms and
“assisted” him to a kneeling position.
Id., ¶ 29. They placed restraints on his legs
and a spit mask on his face.
took Nelson to the restrictive housing unit, where he was
secured with a tether strap to the door of a strip search
cell. After assisting with the transport, Burns had no other
contact with Nelson that day.
prison policy, prisoners are strip searched before being
placed in the restrictive housing unit to ensure that they
are not concealing contraband. When Larson informed Nelson
that staff was going to conduct a strip search, Nelson began
yelling again. And when staff readjusted the spit mask,
Nelson tried to bite the officer's hand. Nelson also
yelled, “You a trigger happy sexual assault ass
nigga.” Defendant Michael Lunde (a correctional
officer) conducted the strip search. Larson supervised, but
did not directly participate. Defendant Kyle Tritt (another
correctional officer) was also present.
Nelson was not complying with the strip search, Lunde used
shears to cut off Nelson's clothing. First, Lunde checked
Nelson's hands, feet and under arms to make sure he did
not have any contraband. Second, Lunde used the back of his
gloved and “bladed” hand to check underneath
Nelson's scrotum, and then used the back of his hands to
check between Nelson's buttocks, ...