United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. Peterson District Judge.
Helson Pabón González, appearing pro se, is a
prisoner at Wisconsin Secure Program Facility. He alleges
that defendant Brittany Allen violated his rights under the
Eighth Amendment to the United States Constitution when she
attacked him by hitting him with a garbage cart. Allen has
filed a motion for summary judgment, saying that she did not
intentionally hit Pabón González with the cart.
grant summary judgment to Allen if there is no genuine
dispute as to any material fact and she is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). In
accordance with this court's procedures, Allen submitted
proposed findings of fact explaining her version of the
incident. Pabón González did not follow the
court's procedures by submitting numbered responses to
each finding. But he does submit a brief and a declaration
that, although somewhat difficult to understand, give his
side of the story.
the parties' written submissions are useful but they take
a back seat to the video recording that Allen has provided.
The video is choppy (it is taken at only one frame per
second), but it indisputably confirms Allen's statement
that she did not intentionally hit Pabón
video shows the following: a large garbage cart sat in a
hallway, not completely flush against the wall. Defendant
Allen and Pabón González enter the frame,
walking near the cart. Allen moves one end of the cart closer
to the wall, presumably to get it out of the way of the
traffic in the hallway. As she moves the cart, Pabón
González walks past the other end of the cart. As
Allen moves her end of the cart toward the wall, the opposite
end of the cart swings away from the wall. The cart bumps
into Pabón González, striking him in the arm.
Allen then finishes moving the cart to leave it closer to
flush against the wall.
says that she asked Pabón González if he was OK
and that he said that he did not need to see the doctor. I
take Pabón González to be saying that they did
not have that discussion. The recording does not include
audio so it does not resolve that factual dispute. There is
no dispute that Pabón González later saw a
nurse about his arm being scratched by the cart. Pabón
González says that the marks left a scar.
González has filed a motion for defendants to produce
pictures of his arm that he says were taken after the
incident. Dkt. 42. Defendant says that counsel asked prison
staff to produce those photos, but they do not possess those
pictures, nor are they aware that any were taken. I'll
deny Pabón González's motion because
defendant cannot produce a photo that they don't have.
And in any event, the case does not boil down to the severity
of the injury that Pabón González sustained.
Based on the video evidence, no reasonable jury could
conclude that Allen intentionally hit him with the cart.
Eighth Amendment protects prisoners from officials' use
of excessive physical force. Hudson v. McMillian,
503 U.S. 1, 6-7 (1992). For a plaintiff to succeed on an
excessive force claim, he must submit evidence that the
prison official acted “wantonly or, stated another way,
‘maliciously and sadistically for the very purpose of
causing harm.'” Harper v. Albert, 400 F.3d
1052, 1065 (7th Cir. 2005) (quoting Whitley v.
Albers, 475 U.S. 312, 320 (1986)). The video here shows
that Allen's actions come nowhere close to meeting that
standard. All it shows is that she accidently bumped
Pabón González with the cart. A negligent use
of force like Allen's does not violate the Constitution.
Kingsley v. Hendrickson, 135 S.Ct. 2466, 2472
(“if an officer's Taser goes off by accident or if
an officer unintentionally trips and falls on a detainee,
causing him harm, the . . . detainee cannot prevail on an
excessive force claim.”).
González challenges the authenticity of the video: he
says that it is choppy because the footage of him being hit
by the cart has been removed. But he doesn't have any
evidence to substantiate his allegation so I will not
consider it further. I understand from other cases that the
video is recorded at the rate of one frame per second to
diminish the size of the recordings for storage purposes. In
any event, even with the choppiness that results from the low
frame rate, the video clearly shows what happened.
González also states that he did not explicitly allege
that Allen hit him intentionally, and he suggests
“we change intentionally for battery.” Dkt. 40 at
4. Pabón González wouldn't succeed on a
Wisconsin-law battery claim either because an intentional use
of force is an element of that type of claim. Michelle T.
by Sumpter v. Crozier, 173 Wis.2d 681, 685, 495 N.W.2d
327, 329 (1993). Even if what Pabón González
means is that he wants to bring a Wisconsin-law negligence
claim, he has waited far too long to notify the court and
parties that he wants to bring a state-law claim, and there
is no reason to think that he could meet the $75, 000 injury
requirement for this court to hear a negligence claim under
the court's diversity jurisdiction, or that he has met
Wisconsin's notice-of-claim requirement. If Pabón
González wants to bring a state-law case, he will have
to file it in state court, although I take no position on the
merits of any state-law claim he might bring. I will grant
Allen's motion for summary judgment on his Eighth
1. Plaintiff Helson Pabón González's motion
for production of photographs, Dkt. 42, is DENIED.
2. Defendant Brittany Allen's motion for summary
judgment, Dkt. ...