# LEE v. BIRD

> District Court, S.D. Indiana · February 14, 2024

URL: https://www.frixlaw.com/law-library/cases/10170825

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** February 14, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10170825

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

WILLIAM M. LEE, )
)
Plaintiff, )
)
v. ) Case No. 4:22-cv-00053-TWP-KMB
)
B. BIRD, Correction Officer, )
Myers, Sgt., Correction Officer, )
D. Lock, Sgt., Correction Officer, )
Previtera, Correction Officer, )
)
Defendants. )

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND
ON PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on Defendants Benjamin Bird's ("Officer Bird"), Kaitlin
Myers' ("Sgt. Myers"), David Lock's ("Sgt. Lock"), and Jordan Previtera's ("Officer Previtera")
(collectively, "Defendants"), Motion for Summary Judgment, (Dkt. 37), and Plaintiff William M.
Lee's ("Mr. Lee") cross Motion for Summary Judgment (Dkt. 48). Mr. Lee is a prisoner at the
Floyd County Jail in New Albany, Indiana. He alleges in this civil action that the Defendants used
excessive force against him and failed to provide him medical treatment for his injuries. Mr. Lee
moved for an extension of time to respond to the Defendants' motion and the Court granted the
motion. (Dkt. 46, Dkt. 47.) But instead of a response, Mr. Lee filed a motion for summary
judgment on May 19, 2023. (Dkt. 48.) Because it was filed after the deadline to move for summary
judgment, and he did not seek an extension of that deadline, the Court treats his motion as a
response in opposition to Defendants' motion. For the reasons below, Defendants' Motion for
Summary Judgment is granted in part and denied in part. The Clerk is directed to terminate
Mr. Lee's Motion at Dkt. 48.
I. STANDARD OF REVIEW
A motion for summary judgment asks the court to find that a trial is unnecessary because
there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment
as a matter of law. See Federal Rule of Civil Procedure 56(a). When reviewing a motion for

summary judgment, the court views the record and draws all reasonable inferences from it in the
light most favorable to the nonmoving party. Khungar v. Access Cmty. Health Network, 985 F.3d
565, 572–73 (7th Cir. 2021). It cannot weigh evidence or make credibility determinations on
summary judgment because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d
822, 827 (7th Cir. 2014). A court only has to consider the materials cited by the parties, see Fed.
R. Civ. P. 56(c)(3); it need not "scour the record" for evidence that might be relevant. Grant v. Trs.
of Ind. Univ., 870 F.3d 562, 573−74 (7th Cir. 2017) (cleaned up).
"[A] party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of 'the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,'

which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). "[T]he burden on the moving party may be discharged by
'showing'—that is, pointing out to the district court—that there is an absence of evidence to support
the nonmoving party's case." Id. at 325.
Whether a party asserts that a fact is undisputed or genuinely disputed, the party must
support the asserted fact by citing to particular parts of the record, including depositions,
documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). Failure to properly support a fact in
opposition to a movant's factual assertion can result in the movant's fact being considered
undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).
This case relates largely to Lee's allegations that Defendants used excessive force against
him on February 23, 2022. The summary judgment record contains video of the incident. The
Seventh Circuit has repeatedly cautioned against relying too heavily on a video at summary
judgment, especially as here, when the video is grainy and portions have no audio. See Kailin v.

Village of Gurnee, 77 F.4th 476, 481 (7th Cir. 2023) (collecting cases where video was not
dispositive and noting that "[i]t should be considered a rare case where video evidence leaves no
room for interpretation by a fact finder.").
II. FACTUAL BACKGROUND

Because Defendants have moved for summary judgment under Rule 56(a), the Court views
and recites the evidence in the light most favorable to Mr. Lee and draws all reasonable inferences
in his favor. Khungar, 985 F.3d at 572–73.
At all times relevant to his Complaint, Mr. Lee was a pretrial detainee at the Floyd County
Jail. On February 23, 2022, jail officers performed a search of Mr. Lee's cell block. Officers
ordered all inmates to lie on the floor. Defendant Sgt. Myers instructed the inmates to remain quiet
and to collect their towel, wash cloth, and jumpsuit, and exit the block when they were directed to
do so. (Dkt. 39-8 at 2.) Because officers are outnumbered by inmates, the requirement that inmates
remain quiet is an important safety measure. Id.
An inmate began to speak loudly to distract officers from the search. Id. at 3. Sgt. Lock
placed the inmate in handcuffs and removed him from the block. (Dkt. 39-9 at 2.) At this point,
Defendants' version of events differs from Mr. Lee's version.
Mr. Lee attests that he was sleeping in his bunk when the search began. (Dkt. 48 at 2.) He
moved to the floor as fast as he could.
[B]ut before you know it Officer B. Bird can be seen putting his hands on me and
sna[t]ching me out of my bunk to the floor. I roll on my side because my back was
[in] intense pain[.] I was rubbing it and moaning in pain. I made a remark under my
breath saying [,] "they can't be grabbing on me like that I'm already hurt!"

Id. Sgt. Myers then told Officer Bird to remove Mr. Lee. Mr. Lee asserts that Sgt. Lock then
jumped on him. Mr. Lee states that he was already in pain and the way they were moving him
made it worse. He asserts he yelled out "let me do it" repeatedly because he was trying to comply
but doing so hurt. Id. His jumpsuit fell from his hips "preventing [him] from being able to walk."
Id. He tried to walk, but Officer Bird and Sgt. Lock slammed him to the floor on his head. Id.
Defendants' affidavits establish the following version of events. Mr. Lee spoke out after
the first inmate was cuffed and removed from the block. When Sgt. Myers walked over to him,
he shouted that he was going to sue everyone. (Dkt. 39-8 at 3.) Sgt. Myers instructed Officer Bird
to place Mr. Lee in handcuffs. Id. Officer Bird ordered Mr. Lee to place his hands behind his
back, but Mr. Lee refused. (Dkt. 39-10 at 2.) Sgt. Lock secured Mr. Lee's arms and placed him
in handcuffs. (Dkt. 39-9 at 2.)
Sgt. Lock then ordered Mr. Lee to roll onto his side so Sgt. Lock and Officer Bird could
assist him in standing up, but he again refused to comply with the order and began to yell. (Dkt.
39-8 at 3; Dkt. 39-9 at 3.) The officers stood Mr. Lee in 'escort' position with his torso leaned
forward to allow them to loop their arms behind him and place their hands on his shoulders.
(Dkt. 39-10 at 3.) The officers were trained to use this position for the safety of the inmate and
the officers. Id.

Sgt. Lock and Officer Bird attest that Mr. Lee then refused to walk, planting his feet on the
ground, and attempting to stand up straight. Id.; Dkt. 39-10 at 3. Mr. Lee attests that he was in
pain and could not walk because his jumpsuit was falling from his hips. (Dkt. 48 at 2.) Perceiving
his resistance, Sgt. Lock and Officer Bird attempted to bring Mr. Lee to the ground, chest first.
(Dkt. 39-9 at 3.) But Mr. Lee tucked his head toward his chest causing his head to hit the floor.
Id. at 3-4. Mr. Lee kicked and thrashed as Sgt. Lock and Officer Bird attempted to secure his
upper body and other officers placed his legs in shackles. Id. at 4. Officer Lock then ordered
Mr. Lee to roll onto his side so officers could lift him to his feet, but he again failed to comply. Id.
Nevertheless, officers brought him to his feet and carried him out of the block when he refused to

walk. Id. Mr. Lee attests that he was unable to comprehend the officers' orders after he was taken
to the ground. (Dkt. 48 at 2.) Once in the hallway, Sgt. Lock and Officer Bird lowered Mr. Lee
to the floor so four officers could carry him to a safety restraint chair (SRC) because he continued
to thrash his body and disregard officer commands. (Dkt. 39-9 at 4.) Officer Previtera was not
present in the cell block while Mr. Lee was being restrained, but he brought the SRC to the hallway
and participated in securing Mr. Lee in the chair. (Dkt. 39-11 at 1-3.)
Officers ordered Mr. Lee to sit in the SRC. Id. at 5. He did not comply but instead
continued to yell and thrash his body about. Id. As other officers attempted to secure Mr. Lee in
the SCR, Sgt. Lock placed his hands on Mr. Lee's jaw pursuant to his training to prevent Mr. Lee
from injuring himself as he tried to bang his head. (Dkt. 39-9 at 5.) Mr. Lee attests that Sgt. Lock

placed him in a head lock and Mr. Lee said he could not breathe with Sgt. Lock's hands on his jaw.
(Dkt. 48 at 2-3.)
Once Mr. Lee was secured in the SRC, officers transported him to a padded cell. (Dkt. 39-
9 at 5.) Approximately two hours later, Sgt. Lock returned to the padded cell. Id. Mr. Lee agreed
to comply with officer commands, and he was removed from the SRC. Id. at 5-6. Nurse Johnson
evaluated Mr. Lee while he was in the SRC and after he was removed. Id. Mr. Lee suffered
swelling of his head and wrist, bruising on his left knee, and broken teeth. (Dkt. 48 at 5.)
Mr. Lee attests that he was left in the padded cell for two days. Id. at 4. He could not stand
due to his injuries and was forced to urinate on himself. Id. at 3. Officer Previtera started an

observational watch of Mr. Lee under Sgt. Lock's supervision. Id. at 4. During this time, no one
assisted Mr. Lee to the bathroom or provided him with ice for his swelling or any other medical
treatment. Id. at 3-4. After being returned to segregation, Mr. Lee requested to be seen by medical
staff and requested a wheelchair. Mr. Lee asserts that Officer Bird was sent to his cell to take him
to the medical unit, but Officer Bird denied him a wheelchair, and told Mr. Lee that he would

report that he had refused to be seen. Id. at 4-5.
The Court has reviewed the video evidence produced by Defendants. One overhead
camera angle also includes audio of the beginning of the cell block search and provides a clear
view of Mr. Lee. The video confirms that officers entered the cell block and ordered the inmates
to lie on the floor on their stomachs and to not talk. An officer assists Mr. Lee from his bunk to
the floor, where Mr. Lee lies on his side for some time. After the initial entrance of the officers,
the cell block is quiet, and the officers and inmates are calm. When one inmate begins to talk
loudly, he is handcuffed and escorted out of the block without further incident.
Sgt. Myers instructs individual inmates to gather their towels, washcloths, and jumpsuits
and exit the cell block. About two and a half minutes into the video, it begins to skip making it

difficult to hear the audio. But Mr. Lee begins to yell when officers attempt to place him in
handcuffs to remove him from the cell block. From this point on, a different camera provides a
better view of the events but provides no audio. Mr. Lee's jumpsuit falls down his legs as
Defendants stand him up. Mr. Lee appears to raise his arms behind his back in an awkward
position, lock his legs, and plant his feet on the ground rather than attempt to walk.1 Sgt. Lock
and Officer Bird attempt to force Mr. Lee to move but he does not. They next force him to the
floor and his head hits the floor because he has it tucked to his chin. Mr. Lee flips his legs over his

1 The Court notes that the video evidence depicts Sgt. Lock removing another inmate using the same escort position
as he and Officer Bird attempted with Mr. Lee. That inmate's arms are not thrust in the air but instead stay behind his
back with the officers' arms interlacing his.
body and continues to yell and move his body as officers attempt to subdue him. He appears to
kick his legs toward the officer at his feet. The officers then apply leg shackles and bring Mr. Lee
to a standing position. As the officers escort him out of the block, Mr. Lee appears to take a step
or two and then drags his feet on the floor.

Additional video evidence shows Mr. Lee being placed in the SRC. He appears calm and
cooperative until Sgt. Lock places his hands on Mr. Lee's jawline. When Mr. Lee resists, Sgt.
Lock then places his hand over Mr. Lee's mouth and nose, which appear bloodied. Although there
is no audio, Mr. Lee can be seen yelling and moving around as officers restrain his arms and legs
to the SRC. Sgt. Lock briefly puts his arm around Mr. Lee's neck. Officers place a spit mask over
Mr. Lee's face and take him to a padded cell. An officer removes the spit mask to give Mr. Lee
water and then leaves Mr. Lee alone in the cell. There is no video evidence of the officers having
any further interactions with Mr. Lee, but he attests that Officer Previtera initiated a two-day
observational watch of the padded cell while Mr. Lee was unable to stand and repeatedly asked
for medical treatment. (Dkt. 48 at 4.) He further attests that Sgt. Lock supervised Officer Previtera.

Id. Finally, he attests that Officer Bird refused to take him to medical after he was released from
observation and placed in segregation. Id. at 5.
III. DISCUSSION

A. Excessive Force Claim

A pretrial detainee "possesses a constitutional right 'to be free from punishment.'"
Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (quoting Bell v. Wolfish, 441 U.S. 520,
535 (1979)); see also Hardeman v. Curran, 933 F.3d 816, 821 (7th Cir. 2019) ("Pretrial detainees
are in a different position, because their detention is unrelated to punishment.").
Whether a correctional officer was objectively reasonable in his use of force depends on
the facts and circumstances of each case. Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015).
"A court must make this determination from the perspective of a reasonable officer on the scene,"
and must take into account concerns about institutional security. Id. Some factors the court may
consider when assessing the reasonableness of force are:
the relationship between the need for the use of force and the amount of force used;
the extent of the plaintiff's injury; and effort made by the officer to temper or to
limit the amount of force; the severity of the security problem at issue; the threat
reasonably perceived by the officer; and whether the plaintiff was actively resisting.

Id. Considering these factors, a reasonable juror could conclude that Defendants' actions were
objectively unreasonable. For safety reasons, officers required inmates to remain silent as they
conducted a search of the cell block. Defendants attest that Mr. Lee yelled that he was going to
sue everyone, but the available audio evidence does not confirm their assertion. Mr. Lee attests
that he mumbled under his breath. A juror believing Mr. Lee could conclude that there was no
reason to use force against him. The parties dispute whether Mr. Lee resisted being handcuffed
and the video evidence does not clearly support either side's version of events.
The parties dispute whether the officers were aware of Mr. Lee's back problems before
they interacted with him during the cellblock search. A reasonable juror believing Mr. Lee's
testimony that the officers were aware he had back problems could conclude that the officers did
not reasonably limit the amount of force they used when escorting Mr. Lee from the block.
Although at times the video depicts Mr. Lee actively resisting, other portions of the officers' use
of force cannot be said to be objectively reasonable as a matter of law. Thus, Defendants are not
entitled to summary judgment on this claim.2

B. Qualified Immunity

Defendants argue that they are entitled to qualified immunity on Mr. Lee's excessive force
claims because they are not aware of any clearly established law requiring officers to allow an
inmate to disregard orders and remain non-compliant during a cell block search. (Dkt. 38 at 29.)
"[Q]ualified immunity shields officials from civil liability so long as their conduct 'does
not violate clearly established statutory or constitutional rights of which a reasonable person would
have known.'" Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S.
223, 232 (2009)). "To overcome the defendant's invocation of qualified immunity, [a plaintiff]
must show both (1) that the facts make out a constitutional violation, and (2) that the constitutional
right was 'clearly established' at the time of the official's alleged misconduct." Abbott v. Sangamon
Cty., Ill., 705 F.3d 706, 713 (7th Cir. 2013). This "clearly established" standard ensures "that
officials can 'reasonably . . . anticipate when their conduct may give rise to liability for damages.'"
Reichle v. Howards, 566 U.S. 658, 664 (2012) (quoting Anderson v. Creighton, 483 U.S. 635, 646
(1987)).
To be "clearly established," a constitutional right "must have a sufficiently clear foundation
in then-existing precedent." District of Columbia v. Wesby, 583 U.S. 48, 63 (2018). Given this

2 This includes failure-to-protect claims against the Defendants to the extent the officers failed to intervene in their
fellow officers' use of force. See Guzman v. Sheahan, 495 F.3d 852, 857 (7th Cir. 2007) (officers can be held liable
when they know of a substantial risk of harm to an inmate but fail to take appropriate steps to protect him).
emphasis on notice, clearly established law cannot be framed at a "high level of
generality." Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). "A rule is too general if the
unlawfulness of the officer's conduct 'does not follow immediately from the conclusion that [the
rule] was firmly established.'" Wesby, 583 U.S. at 64 (quoting Anderson, 483 U.S. at 641). While

"a case directly on point" is not required, "precedent must have placed the . . . constitutional
question beyond debate." White v. Pauly, 580 U.S. 73, 79 (2017) (cleaned up). Put slightly
differently, a right is clearly established only if "every reasonable official would have understood
that what he is doing violates that right." Taylor v. Barkes, 575 U.S. 822, 825 (2015). "The
Supreme Court's message is unmistakable: Frame the constitutional right in terms granular enough
to provide fair notice because qualified immunity 'protects all but the plainly incompetent or those
who knowingly violate the law.'" Campbell v. Kallas, 936 F.3d 536, 546 (7th Cir. 2017)
(quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (quotation marks omitted)). Qualified
immunity thus "balances two important interests — the need to hold public officials accountable
when they exercise power irresponsibly and the need to shield officers from harassment,

distraction, and liability when they perform their duties reasonably." Pearson, 555 U.S. at 231.
Defendants' characterization of the qualified immunity question assumes that Mr. Lee was
non-compliant, but that is a disputed question of fact. At summary judgment, the Court cannot
ignore Mr. Lee's sworn statement that he only mumbled something under his breath and did not
resist being handcuffed. Defendants cannot ignore his testimony either. Mr. Lee attests that they
knew of his back problem which would have explained why he struggled in pain when he was
pushed from his bunk to the floor and later forced into various positions by Defendants. Given
this context, it is not clear whether Mr. Lee was resisting commands or struggling to comply
despite his bad back.
It is clearly established that "[t]he Eighth Amendment prohibits unnecessary and wanton
infliction of pain, thus forbidding punishment that is 'so totally without penological justification
that it results in the gratuitous infliction of suffering.'" Leiser v. Kloth, 933 F.3d 696, 703 (7th Cir.
2019) (quoting Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003), quoting Gregg v. Georgia,

428 U.S. 153, 173 (1976)). As a pretrial detainee, Mr. Lee was protected from any punishment,
let alone unjustified and gratuitous infliction of pain. Only a plainly incompetent correctional
officer would think it was constitutional to slam to the floor a cooperating pretrial detainee
suffering from back problems.
Because it was clearly established that it is unconstitutional to gratuitously inflict pain on
a pretrial detainee without penological justification, and because a genuine issue of fact remains
as to whether Defendants' use of force was objectively reasonable, summary judgment on the
grounds of qualified immunity is not appropriate. Isby v. Brown, 856 F.3d 508, 530 (7th Cir.
2017). Accordingly, Defendants are not entitled to judgment as a matter of law based on qualified
immunity.

C. Medical Care Claim

A pretrial detainee's unconstitutional medical care claim, brought under the Due Process
Clause of the Fourteenth Amendment, is analyzed according to the objective unreasonableness
inquiry laid out in Kingsley v. Hendrickson, 576 U.S. 389 (2015). Miranda v. County of Lake, 900
F.3d 335, 352 (7th Cir. 2018). A defendant violates a pretrial detainee's due process right to
constitutionally acceptable medical care if:
(1) there was an objectively serious medical need; (2) the defendant committed a
volitional act concerning the [plaintiff's] medical need; (3) that act was objectively
unreasonable under the circumstances in terms of responding to the [plaintiff's]
medical need; and (4) the defendant act[ed] "purposefully, knowingly, or perhaps
even recklessly" with respect to the risk of harm.
Gonzalez v. McHenry County, Ill., 40 F.4th 824, 828 (7th Cir. 2022) (quoting Miranda, 900 F.3d
at 353−54). "This standard requires courts to focus on the totality of facts and circumstances faced
by the individual alleged to have provided inadequate medical care and to gauge objectively—
without regard to any subjective belief held by the individual—whether the response was

reasonable." Williams v. Ortiz, 937 F.3d 936, 942 (7th Cir. 2019) (cleaned up).
Here, Mr. Lee attests that Officer Previtera initiated a two-day observational watch of
Mr. Lee while he was unable to stand and repeatedly asked for medical treatment. (Dkt. 48 at 4.)
He further attests that Sgt. Lock supervised Officer Previtera. Id. Finally, he attests that Officer
Bird refused to take him to medical after Mr. Lee was released from observation and placed in
segregation.
There is no evidence in the record that either Sgt. Lock or Sgt. Myers had any personal
involvement in Mr. Lee's medical care after the cell block search. "'To recover damages under §
1983, a plaintiff must establish that a defendant was personally responsible for the deprivation of
a constitutional right.'" Whitfield v. Spiller, 76 F.4th 698, 706 (7th Cir. 2023) (quoting Gentry v.

Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)). Thus, Sgts. Lock and Myers are entitled to summary
judgment on Mr. Lee's medical care claims.
But reasonable jurors could conclude that Officers Previtera's and Bird's actions, and lack
of action, as to Mr. Lee's medical needs were objectively unreasonable. Defendants argue that
Mr. Lee has not presented medical records verifying his physical injuries. (Dkt. 38 at 27.) But
Mr. Lee's testimony that he experienced swelling and bruising, broken teeth, and could not stand
to use the restroom, is admissible evidence from which a juror could conclude that Mr. Lee was
suffering from an objectively serious medical condition. Therefore, Officers Previtera and Bird
are not entitled to summary judgment on Mr. Lee's medical care claims.?
IV. CONCLUSION
Defendants’ Motion for Summary Judgment, Dkt. [37], is GRANTED as to Mr. Lee's
medical care claims against Sgts. Lock and Myers. The Motion is DENIED as to Mr. Lee's
excessive force and failure to protect claims against all four Defendants, and his medical care
claims against Officers Previtera and Bird. No partial final judgment shall enter at this time. The
Clerk is directed to terminate Mr. Lee's cross Motion for Summary Judgment, Dkt. [48].
Because it is the Court's preference that Mr. Lee be represented by counsel for trial or any
potential settlement conference, the Court will attempt to recruit counsel to represent him. Mr.
Lee shall have through Thursday, February 29, 2024, by which to file a motion for recruitment
of counsel or object to the recruitment of counsel on his behalf. The Clerk is directed to include
the motion for counsel form with his copy of this Order. Once counsel has been recruited, the
Magistrate Judge is requested to set a status conference to discuss what preparations are needed
for trial and to schedule a settlement conference.
SO ORDERED.
Date: 2/14/2024 ( Wan a \ Jaton \rcatt
Hon. Tanya Walton Pratt, Chief Judge
United States District Court
Southern District of Indiana

3 Defendants did not assert qualified immunity as to Mr. Lee's medical care claims.
13

DISTRIBUTION:

William M. Lee, #65031
FLOYD COUNTY JAIL
Inmate Mail/Parcels
P.O. Box 1406
New Albany, Indiana 47150

R. Jeffrey Lowe
KIGHTLINGER & GRAY, LLP (New Albany)
jlowe@k-glaw.com

Magistrate Judge Kellie M. Barr

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10170825. Public record. Not legal advice.