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Nelson v. Burns

United States District Court, W.D. Wisconsin

February 14, 2019

DAVID DARNELL NELSON, JR., Plaintiff,
v.
MATTHEW BURNS, ANDREW LARSON, HSU MANAGER DOE, MICHAEL LUNDE, and KYLE TRITT, Defendants.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Pro se 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.

         Both 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.

         As for 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.

         Also 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).

         UNDISPUTED FACTS

         The following facts are undisputed except where noted.

         All the 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.[1] 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 staff.

         Nelson 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 going.”[2]

         When 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.

         Larson 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.

         When 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.

         Officers 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.

         Under 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.

         Because 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, ...


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