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Smith v. Peterson

United States District Court, W.D. Wisconsin

May 16, 2019




         Plaintiff Trayvon Smith, who is incarcerated at Waupun Correctional Institution, alleges that while he was confined as a juvenile at the Lincoln Hills School, institution staff beat him after breaking up a fight among several detainees, failed to provide him with medical care, and then performed unwanted dental procedures on him to cover up his injuries. Smith is proceeding pro se and has had difficulty identifying all of the defendants involved in the incident, despite being given multiple opportunities and extensions of time to do so. Now defendants have filed a motion for summary judgment, contending that they are entitled to judgment for several reasons, including that Smith has failed to properly identify the full names of some of the defendants, has failed to state specifically how each defendant was involved in violating his rights, and cannot overcome defendants' qualified immunity defense. Dkt. 59. With assistance from other inmates, Smith has responded to defendants' motion. After reviewing the parties' submissions, I conclude that there are genuine disputes of material fact that preclude summary judgment. I also conclude that Smith cannot litigate this case on his own going forward. Therefore, I am denying defendants' motion for summary judgment and striking the remainder of the schedule. I will stay this case while the court attempts to recruit counsel for Smith.


         From defendants' proposed findings of fact, Smith's responses, evidence in the record, and the statements from Smith's verified complaints, I find the following facts to be undisputed unless otherwise noted.

         Smith was incarcerated at Lincoln Hills School for Boys in July 2013. On the evening of July 13, he and Timothy McGee, another juvenile detainee, went into a bathroom. A short time later, six boys ran into the bathroom and attacked Smith and McGee. Defendants Yorde and Allen, both youth counselors, saw the six boys run into the bathroom. Yorde activated his personal alarm and entered the bathroom, where he saw Smith and McGee being punched repeatedly by the other boys. Yorde told the boys to stop fighting and to exit the bathroom. Most of the boys left the bathroom and were restrained by staff who had arrived on the scene, including defendants Thomas Tomaszewski, Thomas Brandt, Travis Taves, Todd Riemer, Jim Allen, and Earl Heier. Smith had wrapped his arms around another boy to prevent the boy from hitting him, and did not exit the bathroom. Yorde took out his pepper spray and told Smith and the other boy to stop fighting and to get on the ground. (Smith says he let go of the other boy and got on the ground, but Yorde says that Smith and the other inmate continued to “bear-hug” and grapple with each other. Smith also says that “Ms. Peterson, ” a youth counselor, was present in the bathroom and told Smith he was “going to pay for this.” Smith has not been able to identify Peterson's full name, and defendants deny that anyone named Peterson was present during the incident.)

         Yorde told Smith that he was going to “direct [him] to the floor” and then did so. (Smith says that after he was on the floor, Yorde stomped on the back of his right leg and told him to “keep still, ” even though Smith was not moving. Yorde denies stomping on Smith's leg.) After Smith was on the floor, defendant Todd Riemer, a patrol officer, attempted to handcuff and shackle him. Riemer says that Smith was “resistive, ” so he had to put his knee on Smith's back, between his shoulder blades, to restrain him. Smith denies that he was resistive. After he was restrained, Smith stated, “This is fucking bullshit, I got jumped.” (Smith says that the officer who shackled him kicked him in the mouth several times. It is not clear whether Smith is referring to Riemer or someone else. Defendants deny that any officer kicked Smith.)

         Defendant Heier transported Smith to the segregation unit in a van. (According to Smith, Riemer was present during the transport and punched him in the face and head several times, breaking his tooth. Smith says that when they arrived at the segregation unit, he asked Riemer if he could see medical staff and take a shower because he was covered in blood, and that Riemer laughed and stated, “In your dreams.” Riemer denies punching Smith and says that he was not present during the transport or after Smith was placed in segregation.) Smith wanted to file a complaint but was told he could not do so because the incident was being investigated. Smith says that he did not receive medical attention for several days.

         On July 17, Smith was seen by defendant Dr. Richard Olson, a dentist. Olson confirmed that Smith had a chipped molar and a cut on the inside of his lip. Smith tried to refuse treatment for the tooth because he was being released soon and wanted to show “someone on the street” what had happened to him. He says that defendant Officer Johnson and the officer who had kicked him in the face while he was on the way to segregation held him down while Dr. Olson fixed the broken tooth. Defendants deny that anyone held Smith down and forced him to receive treatment. (Smith has not been able to identify Johnson's full name.)


         Smith was granted leave to proceed on claims that (1) defendants Andrew Yorde, Earl Heier, Jim Allen, Todd Riemer, Travis Taves, Thomas Brandt, Thomas Tomaszewski, and Ms. Peterson, the individuals who were involved in breaking up the fight between inmates on July 13, 2013, used excessive force against him in the bathroom or failed to intervene to protect Smith from excessive force; (2) defendant Riemer used excessive force against Smith while transporting him to segregation and then refused to get him medical attention; and (3) defendants Officer Johnson, Officer Doe No. 1, and Dr. Richard Olson violated his rights to due process and the First Amendment by forcing him to have his tooth fixed against his will and in retaliation for seeking to file a complaint.

         Defendants have moved for summary judgment on all of Smith's claims. They argue that (1) Smith's excessive force claims fail because the force used against Smith was reasonable and because they are entitled to qualified immunity; (2) Smith's medical care claims fail because he did not have a serious medical need and received adequate medical care; and (3) his remaining claims fail because Smith has been unable to identify the proper defendants or because he has failed to state a claim against the defendants that he has identified. I address each of defendants' arguments below.

         A. Excessive force and failure to intervene

         1. Legal standard

         As I explained in the screening order, the precise standard for plaintiff's excessive force claim is unclear, because Smith was a juvenile detainee when the underlying events occurred. Both the Eighth and Fourteenth Amendments impose duties on state officials regarding the safety and well-being of individuals in their custody. Neither the Supreme Court nor the Court of Appeals for the Seventh Circuit has decided whether the Eighth or Fourteenth Amendment applies to claims brought regarding conditions at a juvenile facility. Reed v. Palmer, 906 F.3d 540, 549 (7th Cir. 2018) (‚ÄúSupreme Court precedent is not clear about whether state juvenile ...

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