Williams, Quentrell v. Esser, Dane

FOR THE WESTERN DISTRICT OF WISCONSIN

QUENTRELL EUGENE WILLIAMS,

Plaintiff, OPINION AND ORDER

v.

18-cv-1008-wmc

DANE ESSER, et al.,

Defendants.

Now incarcerated at Waupun Correctional Institution, pro se plaintiff Quentrell

Williams suffers from asthma, making use of the incapacitating agent oleoresin capsicum

(“OC”) “contraindicated.” Unfortunately, Williams also has a history of engaging in severe

self-harm, often using objects that he conceals from prison officials. Williams filed this

lawsuit under 42 U.S.C. § 1983, bringing claims related to events that occurred in 2013,

when he was incarcerated at the Wisconsin Secure Program Facility (“WSPF”). In

particular, the court granted Williams leave to proceed on the following, allegedly

unjustified uses of force during WSPF staff’s interventions to interrupt or prevent his self-

harm: Eighth Amendment claims against defendant Dane Esser for using OC spray to

control Williams on Williams March 3, May 25 and June 29, 2013, and tasing him on

June 25, 2013; an Eighth Amendment claim against defendant Chad Lentz for giving

Williams a glass nasal spray bottle that he immediately used for self-harm on March 3,

2013; and Eighth Amendment claims against defendants Tim Haines, Sarah Blume, Beth

Edge and Angela McClain (formerly Reuter) for failing to intervene in Esser’s uses of force.

Currently before the court is defendants’ motion for summary judgment (dkt. #72),

which will be granted in part. To begin, defendants Haines, Blume, Edge and McClain are

entitled to summary judgment because no evidence has been offered on which a reasonable

constitutional rights, had a reasonable opportunity to prevent that violation, and failed to

do so. In addition, Esser is entitled to summary judgment with respect to each of the four,

use-of-force incidents, since no reasonable jury could find that Esser intended to harm

Williams, rather than ensure his safety. However, the court must deny defendants’ motion

with respect to Lentz’s action on March 3, 2013, since a reasonable jury could conceivably

conclude that Lentz violated Williams’ Eighth Amendment rights if they credit his version

of the events. Accordingly, that claim alone will proceed to trial.

UNDISPUTED FACTS1

A. Parties

Plaintiff Quentrell Williams was incarcerated at WSPF between March and July of

2013, and his contraindication to incapacitating agents due to his asthma had been

documented and included in Williams’ medical file at the institution since his arrival at

WSPF.

All six defendants are current or former WSPF employees: Dane Esser is a Captain,

and was working as a Lieutenant during the time relevant to Williams’ claims; Tim Haines

was the warden at the time; Chad Lentz was a correctional officer (“CO”); and Sarah

Blume, Beth Edge and Angela McClain were nurses.

1 Unless otherwise noted, the following facts are material and undisputed. The court has drawn

these facts from the parties’ proposed findings of facts and the evidence of record cited below, while

viewing that evidence in a light most favorable to plaintiff as the non-moving party.

On March 3, 2013, Williams was on clinical observation status for close monitoring,

after being deemed a danger to himself the previous day, March 2. CO Lentz had only

been working at WSPF for a few days, and he was assigned to the Alpha Unit in WSPF’s

Restrictive Housing Unit. In particular, on March 3, CO Lentz was assigned with

administering the medication cart that had been prepared in advance by Health Service

Unit (“HSU”) staff. At approximately 8:00 p.m., Lentz arrived at Williams’ cell.

Lentz recalls giving Williams several pills in a paper cup and, at Williams’ request,

handing over his glass nasal spray bottle. Since that spray bottle was on the cart stocked

by HSU staff, Lentz attests that he assumed (mistakenly it turns out) that Williams was

allowed to use the spray and return it to him. At that time, Lentz further attests that he

was unaware of any policy prohibiting an officer from providing a medication to an inmate

on observation status, including a glass nasal spray bottle. (Lentz Decl. (dkt. #78) ¶ 6.)

Further, Lentz explains that he had just recently been working at Columbia Correctional

Institution, where the practice was to post a sticker on an inmate’s cell indicating “no glass”

if they were not allowed to possess such items. (Id.)

In contrast, Williams claims that Lentz knew that he could not receive the nasal

spray bottle, arguing that: (1) inmates on clinical observation status are not allowed to

possess glass nasal spray bottles; and (2) a correctional officer in Lentz’s position should

have been trained to avoid giving a glass bottle to someone placed on observation,

especially since Williams had just been deemed a danger to himself. Williams further

claims that he did not ask for his nasal spray. In fact, according to Williams, he told Lentz

“these motherfuckers don’t believe I’m going to self harm with the first thing I get,” and

(Williams Decl. (dkt. #84) ¶¶ 2-6.)2

The parties agree about what happened next. Lentz watched Williams use the nasal

spray, and when Williams did not immediately return it, Lentz first asked and then ordered

him to return the bottle to the white box, but Williams refused. Correctional officer Foley

then walked onto the range and also ordered Williams to return the bottle twice. Williams

not only refused to do so, but threw the bottle at the wall and started to eat the pieces of

glass.

Lentz does not say whether he personally alerted any other staff to Williams’

behavior, but Lieutenant Esser attests that he learned Williams had broken the glass nasal

spray bottle and was eating the broken pieces at approximately 8:30 p.m. When Esser

went to Williams’ cell, he saw what appeared to be brown tinted glass in Williams’ mouth.

At that point, Lieutenant Esser: (1) ordered Williams to stop chewing the broken glass

and spit it out; (2) ordered staff to bring him OC spray while he stayed at Williams’ cell

door and tried to get him to stop eating the glass; and (3) radioed for additional support

staff in the event a cell entry became necessary.

At that time, Esser claims that he did not know whether Williams had a

contraindication to incapacitating agents in his medical file, while Williams claims he did.

Even if Williams could offer proof of Esser’s advance knowledge, however, this dispute is

2 Although this latter claim seems incredible on its face, such malevolence is not beyond all

possibility and must be accepted for purposes of summary judgment. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the facts are jury functions, not those of a

judge.”).

agents on him under DAI Policy 306.07.03V, which states that in the event of planned

uses of force, it is permissible to use OC if the need to do so is greater than the risk to the

inmate if the OC is not used. When a security tool (OC, a Taser, pepper balls) is used, the

same policy states that HSU staff must be present if possible, and a medical staff member

must be advised as soon as possible after the tool is used.

Lieutenant Esser attests that he told Williams he was going to administer a burst of

OC into his cell if he did not comply with his orders, and further attests that when Williams

did not comply, he administered a “one-second burst” of OC, causing Williams to instantly

comply, stop eating glass, and place his hands out of the door trap to be secured. (Esser

Decl. (dkt. #77) ¶ 9.) Not surprisingly, at this point, Williams disputes this, attesting that

he never heard Esser say anything before he began spraying him; rather, he remembers that

Esser just started spraying him and the actual burst lasting some “3 to 5 seconds.”

(Williams Decl. (dkt. #84) ¶¶ 8, 12.)

Lieutenant Esser also offers an explanation as to why he chose OC spray over other

possible interventions methods. Specifically, he attests that his normal practice at the time

would have been to contact his supervisor to use force against Williams, but that exigent

circumstances gave him the authority to use OC spray without permission. (Esser Decl.

(dkt. #77) ¶ 6.) Understandably enough, Esser attests that he believed there was no time

to get permission to avoid Williams injuring himself further. (Id.) In addition, Esser states

he believed OC spray was the best course of action because: (1) entering Williams’ cell

was more likely to cause injury to both inmates and staff; (2) OC spray has a lower

propensity to cause injury than physical force; (3) Williams was holding glass pieces that

and (5) it would have taken too long to assemble a cell entry team to stop Williams’

ongoing self-harm. (Id. ¶ 7.)3

After Williams complied, staff restrained and removed him from the cell. Nurse

Blume was on the unit and examined Williams in the medical room of the unit. Williams’

vitals were taken, and he was escorted to a holding cell, as well as given a shower to wash

off the OC spray. Williams then complied with a strip search, during which no contraband

was recovered. Blume then informed Lieutenant Esser that Williams needed to be

transported to Boscobel Hospital. However, at the hospital, Williams refused all

treatment, so he was transported back to WSPF and placed back into clinical observation

status at approximately 10:00 p.m. that same day.

C. May 25, 2013

Almost three months later, on May 25, Williams was housed in the Restrictive

Housing Alpha Unit. At approximately 7:00 p.m., Sergeant Hulce reported to Lieutenant

Esser that Williams had covered his cell window with human feces and was hiding in the

corner of his cell underneath his segregation smock and mat, preventing him from being

verified.4 Esser next alerted Captain Brown of the situation and went to Williams’ cell,

3 Williams purports to object to now-Captain Esser’s explanation for his use of OC spray because

he is not qualified to testify as an expert about the appropriateness of OC spray. However, Esser is

not testifying as an expert, but from personal knowledge in response to Williams’ claim against him.

Accordingly, this objection is overruled.

4 Williams disputes part of this proposed factual finding, pointing out Hulce’s incident report did

not indicate that he told then-Lieutenant Esser that Williams was hiding in the corner of the cell

under his smock and mat. (See Def. Ex. 1002 (dkt. #75-3) 9.) Whether this dispute is even

relevant, much less materially so, is open to argument, since Hulce’s later-written incident report is

certainly not dispositive as to what Esser actually learned on the evening of May 25, 2013. In any

camera in his cell with feces. As a result of all of these efforts to obscure the view into the

cell, Esser could only see half of Williams’ right foot through the cell window.

Lieutenant Esser attests that he loudly announced his presence to Williams, then

gave him several loud commands, including that Williams acknowledge he could hear him,

so that Esser could verify that he was okay and not engaging in self-harm. According to

Esser, Williams did not respond, and after several more failed attempts to get a response

from Williams, Esser next told Williams that OC spray would be administered unless

Williams responded and came to the door. Williams claims that he did not respond

because he was asleep and could not hear him. (Williams Decl. (dkt. #84) ¶ 14.)5

Regardless, given no response, Esser decided to administer OC spray because he

could not see whether Williams had access to possible weapons, and again attests that he

believed it was too dangerous for staff to enter Williams’ cell since staff could neither see

him clearly nor assess whether he presented a danger. Esser also attests that he believed

there was not enough time to gather a response team because Williams might be in medical

distress. Still, Esser did not administer OC immediately; instead, he directed staff to

retrieve the spray and asked Captain Brown to inform WSPF’s Security Director Sweeney

that if Williams continued to ignore his directives, Esser would administer OC spray.

event, Williams does not dispute that his cell window was covered, and his well-being could not be

verified.

5 Again, Williams’ version of events defies credulity, but he includes several proposed findings of

fact related to DAI Policy 306.07.01 VIII. F -- a policy that he claims suggests that the use of

incapacitating agents and electronic tool devices must only be used when an inmate is actively

resisting.

burst of OC spray into Williams’ cell. After Williams did not move or respond to this first

spray, Lieutenant Esser applied a second burst of the same length, at which point Williams

came to the cell door and put his hands through the trap so he could be restrained and

removed.

Once removed, this time Nurse McClain checked Williams’ vitals, administered his

inhaler, and cleared him to return to his cell, after which Williams was escorted back to an

observation cell on Alpha Unit. While Williams claims he was still “having a hard time

breathing” when he was placed in the cell, he does not attest to telling McClain that he was

still having trouble breathing when she cleared him to be returned to an observation cell.

(Williams Decl. (dkt. #84) ¶ 17.) Williams further attests that later he was returned to

see a nurse; at which point, he received a nebulizer treatment, although he does not attest

that McClain was involved. (Id.)

D. June 25, 2013

Apparently, another month then passed without incident. However, on June 25, at

about 4:50 p.m., Sergeant Overbo informed Lieutenant Esser that Williams had covered

his cell window with Styrofoam from his lunch tray and was hiding in the far corner of his

cell, so staff could not see him. The Sergeant also told Esser that after climbing onto pipes

in the closet behind Williams’ cell, staff were able to see him inside, scratching his arm

with an unidentified white object. Sergeant Overbo also told Nurse McClain the same

thing.

Williams to come to his cell window so they could talk. After Williams came to the

window, Esser attests that he could see Williams was hiding his left arm behind his back,

as well as an unidentified white object in his mouth. (Esser Decl. (dkt. #77) ¶ 21.) In

contrast, Williams attests that he was not engaging in self-harm at that time, and he did

not have anything in his mouth. (Williams Decl. (dkt. #84) ¶ 18-21.) Even so, Williams

does not dispute Esser’s statement that he was hiding his left arm behind his back. (See

id.)

Lieutenant Esser attests that he then reminded Williams not to cover his cell

window because staff had to check on him every 15 minutes, then ordered him to remove

the Styrofoam from the window and hand it through the trap door. (Esser Decl. (dkt.

#77) ¶ 22.) Williams claims that Esser instead told him he wanted to remove him from

the cell and search him, but (again, incredibly) never explained why he wanted to search

him. At that time, Williams further attests to telling Esser that he was not self-harming

and even showing Esser his arms. (Williams Decl. (dkt. #84) ¶ 22.) However, Williams

does not attest that he complied with Esser’s order to remove the Styrofoam.

At that point, Lieutenant Esser sought permission from Security Director Sweeney

to use force in the event Williams continued to refuse his orders. Upon returning to

Williams’ cell, Esser informed him that if he did not remove the Styrofoam from his cell

window and hand it out, he now had permission to use force. When Williams continued

to refuse to comply with Esser’s order, he directed staff to put on the proper protective

gear and prepare to enter and forcibly remove Williams from his cell. After asking Williams

once more if he would comply with his order and being refused, a “use-of-force” team

to a holding cell for a staff-assisted strip search.6

The parties also dispute whether Williams complied with Lieutenant Esser’s orders

during the strip-search. Esser attests that Williams refused to open his mouth several

times, and so he directed staff to apply pressure points or compliance holds below Williams’

jaw and behind his ears. According to Esser, because Williams continued to refuse to open

his mouth, he also performed a “test arch” with the taser as a show of force, while directing

Williams to open his mouth, but Williams still refused. Therefore, Esser tased Williams

in “Drive stun” mode on Williams’ right-upper pectoral area for approximately 2-3 seconds,

meaning that the taser cartridge was removed from the cartridge bed but no probe was

deployed. Esser attests that he used the taser because the pressure points and compliance

holds were not working, and in his experience, the taser had a lower propensity for causing

injury to the inmate and staff, as opposed to the continued use of physical force. (Esser

Decl. (dkt. #77) ¶ 27.)

For his part, Williams attests that he had complied with Esser’s order by the time

any force was used, with his hands cuffed behind his back and tethered to the strip cage

door, shackles around his ankles, and his not being resistive or combative. (Id. ¶ 69.) Even

more specifically, Williams attests that Esser had ordered officers to apply the pressure

points and compliance hold after he had opened his mouth, and then he was “Drive

stunned” on top of that, even though he was still not actively resisting. (Williams Decl.

6 Now-Captain Esser attests a staff-assisted strip search was necessary to ensure Williams

possessed no contraband that he could use to harm himself, since Williams was by now

well known to hide contraband to use for self-harm, and Esser had observed an unidentified

object in Williams’ mouth. (Esser Decl. (dkt. #77) ¶ 26.)

determine what, if anything, occurred during the scrum of officers surrounding the plaintiff

following their cell removal operation. Ultimately, nothing was recovered from Williams’

mouth, nor did he appear to suffer any self-harm injuries. Esser attests that Williams also

refused to be examined by medical staff, so he was escorted back to his cell after it was

searched and all property was removed, while Williams claims that he requested to see a

nurse, but that request was denied.

E. June 29, 2013

A few day later, on June 29, Sergeant Scullion told Lieutenant Esser that Williams

had a “piece of sheet” and was hiding in the corner of his cell doing something with it.

After Esser went to Williams’ cell, the parties again dispute material parts of their

interaction. Esser claims that he saw Williams with a sheet wrapped around his neck while

pulling it tight to strangle himself, and when Esser ordered Williams to stop, he continued

to tighten the sheet. (Esser Decl. (dkt. #77) ¶ 30.) Deciding that there was not enough

time to ask permission for a use of force before Williams seriously harmed himself or

became unconscious, Esser then ordered staff to bring him the OC foam spray, reasoning

that OC spray was the best course of action because it was too dangerous to enter the cell

and Williams posed an immediate risk to his own safety.

In contrast, Williams clarifies that he was actually holding “strips” of a spit mask

braided into a noose. Williams also maintains that Esser would not have been able to see

the noose around his neck because he was standing in the corner of his cell, something he

claims is confirmed by cell video footage from that day, showing Williams hiding in the

at 4:32-7:07.) However, that footage also shows Williams holding what appears to be

materials braided together to form a rope, which he is seen winding and unwinding between

his hands. While unclear precisely when it begins, Williams can also be seen standing in

the corner talking to Esser through his cell window, then clearly wrapping the rope around

his neck, walking out of the corner of the cell and pulling that rope around his neck. (See

id. at 6:37-7:07.)

Regardless, Lieutenant Esser claims that he continued to direct Williams to stop

strangling himself so he could be restrained, and when he would not stop, Esser deployed

OC foam. Because Williams turned his back to the cell door, however, Esser believed the

foam had no effect on Williams, who continued to strangle himself. As a result, Esser

administered a burst of OC from a fogger, a mechanism that sprays OC like a mist, covering

the entire area of the cell; at that point, Williams pulled the sheet tighter and fell to his

knees. While in Esser’s perception the OC was still having little effect (Esser Decl. (dkt.

#77) ¶ 33), Williams claims that the OC made it harder to breathe (Williams Decl. (dkt.

#84) ¶ 27), causing him to fall to his knees and fade in and out of consciousness. (Id. ¶

90.) The video footage inside the cell also shows Williams starting to sway, dropping to

his knees, then falling to his side, although it is unclear whether he continued to maintain

his grip on the rope once he fell. (Ex. 1009, at 8:47-9:44.)

Believing it too dangerous to send staff into the cell because the floor was now slick

with the OC – and also that a Taser would not be effective because at that point Williams

was lying down with his back towards his cell door and wearing a smock that the Taser

could not penetrate -- Esser instead directed staff to get a pepper ball launcher, reasoning

supposedly falling in and out of consciousness, however, Williams now claims that the floor

was not slick, so staff could have entered the cell, and Esser still had the option to use the

taser on him up close, just as he had on June 25th. (Williams Decl. (dkt. #84) ¶ 28.) As

for the video footage, Williams can be seen lying still on the floor of the cell, and it is still

unclear whether he was continuing to strangle himself. (Ex. 1009, at 9:44-11:07.)

At that point, Lieutenant Esser again directed Williams to stop his actions, then

fired the pepper ball at the cell wall closest to Williams. Esser’s hope was that the

projectiles filled with OC would break, which would affect Williams enough to stop him

from self-harming. Nevertheless, from Esser’s perspective, Williams would not stop. Once

again directing him to stop and come to the cell door, Esser next launched additional

projectiles at him, targeting Williams’ right hand, the back of his right triceps, and

shoulder. In contrast, Williams claims that Esser started shooting at him before giving him

another chance to comply, and he does not remember Esser telling him to come to the door

as Esser was shooting at him. (Williams Decl. (dkt. #84) ¶ 29.) The audio from the video

footage outside of the cell resolves some of this dispute, however, since Williams can be

heard defiantly shouting back in response to Esser’s directives, both before Esser started

shooting the projectiles into the cell and after. (Ex. 1008, at 00:50-1:40.) Williams further

attests that at some point he tried to move towards the door, but was afraid Esser would

shoot him again, while Esser only agrees that Williams complied after being directly shot

with the pepper balls. (Id.)

offered him a breathing treatment. Williams was then escorted to another cell and placed

back in observation status after Edge medically cleared him.

F. Warden Haines’ Review of Williams’ Complaints

Williams is proceeding against Warden Haines based on the allegation that he

reviewed Williams’ complaints that incapacitating agents had been repeatedly used against

him despite his medical history of asthma making it contraindicated. While Williams

attests to filing “several inmate complaints” about being sprayed with incapacitating

agents, he does not attest when he submitted those complaints. Even so, the Warden does

not dispute that he reviewed Williams’ inmate complaint and an incident report regarding

the use of force on June 25, 2013, including noting Williams’ contraindication to

incapacitating agents due to his asthma.

OPINION

Summary judgment is appropriate if the moving party shows “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). If the moving party meets this burden, then the non-moving party

must provide evidence “on which the jury could reasonably find for the nonmoving party”

to survive summary judgment. Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 406–

407 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)) (brackets omitted).

During summary judgment, disputed facts are viewed in a light most favorable to the

plaintiff as the non-moving party; however, this treatment does not extend to inferences

supported merely by speculation or conjecture. Parker v. Four Seasons Hotels, Ltd., 845 F.3d

All defendants seek summary judgment on the merits of plaintiff’s claims, and on qualified

immunity grounds.

I. Defendant Dane Esser

The Eighth Amendment prohibits the use of excessive force on prisoners. For a

plaintiff to succeed on an excessive force claim, however, 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 Wilson v. Seiter, 501 U.S. 294, 296 (1991)). Relevant factors are: (1) the need

for the application of force; (2) the relationship between that need and the amount of force

used; (3) the extent of injury inflicted; (4) the extent of threat to the safety of staff and

inmates, as reasonably perceived by the responsible officials based on the facts known to

them; and (5) any efforts made to temper the severity of a forceful response. Whitley v.

Albers, 475 U.S. 312, 321 (1986).

The use of incapacitating agents in particular is not per se unconstitutional; rather,

the use of incapacitating agents may serve a valid penological purpose if necessary to

compel compliance or control over an inmate. Lewis v. Downey, 581 F.3d 467, 476-78 (7th

Cir. 2009); Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1994) (finding that the use of

pepper spray violates the Eighth Amendment only if used “in quantities greater than

necessary or for the sole purpose of punishment or the infliction of pain”). Further,

although “‘it may appear in retrospect that the degree of force authorized or applied for

security purposes was unreasonable,’ . . . an error of judgment does not convert a prison

(7th Cir. 2012).

Defendants seek summary judgment with respect to the four incidents in which

Lieutenant Esser used incapacitating tools, contending that the evidence of record

establishes that his use was a good-faith effort to restore order, not a malicious attempt to

harm plaintiff. In opposition, plaintiff maintains that Esser knew that he had a

contraindication for OC spray and used it on him despite knowing the danger it posed to

his health, and more broadly, that the use of OC spray on him was prohibited by Wisconsin

Department of Corrections policy.

As an initial matter, violation of an institutional policy does not alone amount to a

constitutional violation meriting relief under § 1983. Glisson v. Indiana Dep’t of Corr., 849

F.3d 372, 380 (7th Cir. 2017) (failing to follow nurse protocols did not establish an Eighth

Amendment violation, since “[n]othing in the U.S. Constitution required [defendant] to

follow INDOC’s policies.”); Estate of Simpson v. Gorbett, 863 F.3d 740, 746 (7th Cir. 2017)

(“An agency’s failure to follow its own regulations does not rise to the level of a

constitutional violation unless the regulations themselves are compelled by the

Constitution.”) (citations omitted). In any event, there is no DOC policy that prohibits

the use of OC spray for inmates with contraindications. Rather, that policy requires

medical personnel to be available to provide necessary care:

In cases of planned uses of force where contraindications are

present, if the need to use any of these tools is greater than or

equal to the potential risk to the inmate, the tool may be used;

however, HSU shall be on site prior to the use of the tool, if

possible. . . .

As soon as possible after one of the tools has been used,

medical staff shall be advised. Staff and/or the inmate shall be

facility as appropriate.

(DAI 306.07.03.V.B, Ex. 1000 (dkt. #75-1).)

Here, the evidence does not support an inference that any defendant violated that

policy. HSU staff were not called to Williams’ cell before each of the three instances in

which OC spray was administered, but it is undisputed that plaintiff received medical

attention after each, which included access to his inhaler and nebulizer treatments. As

such, plaintiff’s citation to DAI 306.07.03.V.B, and Esser’s (or any other defendant’s)

knowledge of his contraindication to incapacitating agents, is not dispositive. Instead, the

court must turn to the circumstances surrounding each of the four incidents in which Esser

participated, including the fact that no medical staff ever noted a severe reaction to the use

of OC on Williams nor advised against its use in the future if circumstances required it.

Esser is plainly entitled to summary judgment with respect to his use of OC spray

on March 3 and May 25, 2013. By the time Esser approached Williams’ cell on March 3,

there is no dispute that he was already chewing on pieces of a broken glass bottle, which

posed a significant and obvious threat to his safety. Whether something could have been

done differently before then, Esser was more than justified in concluding that prompt

intervention was necessary and appropriate. Moreover, Esser’s orders to Williams proved

fruitless, at which point he had to make a series of judgment calls. The first, that it would

take too long to call his supervisor for approval to act, was well within his discretion to

decide. So, too, the second, that it would be dangerous to require a team of officers to

enter Williams’ cell to ensure his safety and compliance with his orders, may or may not

have been the correct decision, but even with the benefit of hindsight, it was not the wrong

given Esser’s knowledge of Williams’ past incidents of self-harm, his judgment calls appear

reasonable, and certainly does not support inferring an intent to harm.

While admitting that he was eating glass, plaintiff nevertheless challenges Esser’s

judgment to use OC spray given a medical contraindication, rather than waiting for a team

to extract him physically. Plaintiff further points out that he did not hear Esser threaten

to spray unless he came out, and he claims that Esser sprayed him for longer than necessary

-- up to 3 to 5 seconds, rather than 1. Even accepting that Esser knew about his

contraindication to incapacitating agents, no reasonable jury could second-guess Esser’s

belief that the OC spray was necessary to stop plaintiff’s ongoing self-harm. Moreover,

Esser immediately ensured that plaintiff was seen by medical staff, further undermining

any inference of a malicious or sadistic intent. Finally, even assuming that Esser’s burst of

OC spray lasted 3 to 5 seconds, there is no evidence on which a jury could reasonably find

that Esser continued to spray plaintiff unnecessarily, much less maliciously.

To the contrary, the evidence is that Esser’s use of the OC spray ceased once

Williams stopped eating the glass and started to comply with Esser’s orders, and a

constitutional claim does not hinge on whether Esser sprayed for one or five seconds under

the exigent circumstances here. While the court might well wish that more humane options

had been available to Lieutenant Esser, no reasonable jury could conclude that his use of

the OC spray demonstrated a malicious or sadistic intent to harm plaintiff under the

circumstances, rather than an effort to prevent plaintiff from severely harming himself. See

also Jones v. Sankey, No. 18-C-445, 2018 WL 6445919, at *3-*4 (E.D. Wis. Dec. 10, 2018)

(officer’s decision to use a minimal amount of OC spray so that he could prevent inmate

not support a finding of excessive force or deliberate indifference).7

The outcome is the same with respect to plaintiff’s claim against Esser for using OC

spray on May 25, 2013. While Esser did not actually witness plaintiff committing self-

harm on the 25th, he obviously had reason to believe some degree of physical intervention

was necessary given plaintiff’s history of self-harm. In addition, plaintiff appeared to be

refusing to follow his orders after reportedly refusing to respond to earlier staff orders.

Further, staff had been unable to determine whether plaintiff was harming himself because

he had covered the cell camera and window with feces. Plus, correctly recognizing that the

need to use force immediately to ensure plaintiff’s safety was lower than on March 3rd,

Esser opted to get approval from his supervisor to use OC spray, reasoning that it was

unsafe to enter plaintiff’s cell because they could not see what he was doing on the other

side of his feces-obscured window. Finally, there is no dispute that even then, Esser

administered OC spray briefly, using just two, one-second bursts of the spray to ensure

that Williams came to the cell door, and before each of which giving him a chance to

comply.

In opposition, plaintiff claims that he was not being actively resistive or disruptive,

and was, in fact, sleeping. Even assuming that were true (and this is one more unlikely

part of plaintiff’s version of events), plaintiff does not dispute having caused a disruption

7 As this court has lamented in the past, the best option would have been to place an inmate

committed to serious acts of self-harm in a program that can address it rather than keep him in an

isolated observation cell where his psychological, manipulative and attention seeking activities are

likely to fester and escalate. E.g., Goodvine v. Ankarlo, No. 12-CV-134-WMC, 2015 WL 410326, at

*5 (W.D. Wis. Jan. 29, 2015). But that is beyond, the scope of this case, and certainly beyond the

control of then-Lieutenant Essert or even WSPF’s Warden.

dangerous behavior when covering his cell window and camera with feces. As importantly,

plaintiff again offers no evidence that would support a jury finding Esser’s reported

concerns were unreasonable. Nor, as his supervisor agreed, did Esser have the luxury of

time given that plaintiff was again on observation status at the time, and Esser was aware

of plaintiff’s history of self-harm. If anything, Esser had an obligation to act. See Jones v.

McClain, No. 17-C-1523, 2018 WL 4039363, at *3 (E.D. Wis. Aug. 23, 2018) (officer

entitled to qualified immunity for using OC spray on an asthmatic inmate, since the officer

had an obligation to take some action in response to inmate’s self-harm) (citing Freeman v.

Berge., 441 F.3d 543, 547 (7th Cir. 2006)). Accordingly, Esser is entitled to summary

judgment on the merit of claims arising out of both the March 3 and May 25 use-of-force

incidents, and the court need not address defendants’ qualified immunity argument.

The question is a closer one with respect to Esser’s uses of force on June 25 and

June 29. When Esser intervened on June 25, there is no question that plaintiff was

disobeying prison officials by refusing to remove his lunch tray from his cell window and

hiding from the staff’s view. Given plaintiff’s propensity towards self-harm and once again

on observation status, there is also no question that Lieutenant Esser had to intervene, and

his decision to take the time for a physical cell extraction was a proportionate response to

the plaintiff’s behavior.

Still, at least by the time plaintiff was secured and subjected to a strip search,

plaintiff maintains that he was not resistive and complied with Esser’s command to open

his mouth. According to Williams, Esser nevertheless directed staff to physically force his

mouth open and then tased him for no apparent reason. Williams further claims that his

maintaining that plaintiff refused to have his mouth searched repeatedly, thus justifying

the use of the holds, and when that proved ineffectual, the eventual threat and ultimate

use of a taser.

The court accepts, as it must, plaintiff’s assertion that he opened his mouth as

directed before Esser instructed the officers to use the holds or chose to employ his taser.

Still, plaintiff has not attested that he actually cooperated with the officers’ attempts to

search his mouth, and so the record of whether plaintiff actually complied with Esser’s

directives is not as clear as plaintiff suggests. This imprecision is material, given that by

June 25, Esser knew that plaintiff was willing to put foreign objects in his mouth for

purposes of self-harm, and plaintiff has not attested that the officers were able to complete

a search of his mouth by manipulation of his jaw or other holds. As such, contrary to

plaintiff’s assertion, the record does not establish that there was no need to use force when

Esser instructed officers to use compliance holds and employed the taser.

Further, as for the degree of force used, plaintiff does not dispute that Esser’s use of

the taser was short-lived (2-3 seconds) and has submitted no evidence that he was injured,

nor has plaintiff produced any evidence that might support a finding that Esser intended to

harm him, rather than complete all elements of the strip search to ensure that plaintiff

could not harm himself after just undergoing a justified, forced extraction of the plaintiff

from an observation cell. Given the immense challenge faced by an officer in Esser’s

position, who is “often forced to make split-second judgments—in circumstances that are

tense, uncertain, and rapidly evolving,” Graham v. Connor, 490 U.S. 386, 396–97, 109 S.

Ct. 1865, 1872, 104 L. Ed. 2d 443 (U.S. 1989), although a reasonable jury might fault

reasonably conclude on the record here that Esser directed the holds or used the taser with

a malicious intent to harm him. If anything, the jury would likely find that Esser acted

with measured, reasonable responses throughout his interactions with plaintiff.

Similarly, on June 29, Esser was justified in responding with force upon seeing

plaintiff’s apparent effort to strangle himself. While plaintiff insists that Esser had no way

of knowing with certainty that plaintiff was actually harming himself, the record confirms

with more than enough evidence for Esser to reasonably believe plaintiff was attempting

to use a stretch of material as a ligature to justify intervention, especially given his history

of self-harm. Not only does Esser attest to his reason for concern, but the

contemporaneous video footage within plaintiff’s cell that day (Ex. 1009) shows plaintiff

manipulating braided material and pulling the braided rope around his neck shortly before

Esser employed the OC spray. As such, Esser cannot be faulted to his initial use of the OC

foam, as well as OC spray after plaintiff remained standing and appeared to make no effort

to comply with Esser’s command to remove the rope from his neck.

This leaves the question of whether a reasonable jury could conclude on this record

that Esser’s final decision to use the pepper ball launcher reflected an intent to harm

Williams, rather than to gain his compliance. Here, the contemporaneous video footage

of what plaintiff was doing inside the cell is less helpful to defendant Esser, because it

appears to show plaintiff fall to his knees, and then onto his side (Ex. 1009, at 8:47-9:44)

before Esser used the pepper ball launcher on him. Nevertheless, in viewing the footage

from outside the cell in tandem with the footage of plaintiff’s resistance inside the cell, no

reasonable jury could conclude that Esser used the launcher in an attempt to harm plaintiff.

the pepper ball launcher at that point, but his options were extremely limited. He could

not see well into the cell, plaintiff is seen in the video footage purposely standing in areas

out of the officers’ view and wrapping the material around his neck, and just days before

Esser had a similar encounter during which plaintiff had been attempting self-harm with

an unidentified object. Accordingly, Esser had good reason to believe that he had

insufficient time to organize a cell extraction and that plaintiff would be non-compliant

upon entry. As such, a reasonable jury could not conclude, as plaintiff now argues, that

Esser should have waited to assemble a cell extraction team while plaintiff continued to

grasp at the fabric tied around his neck. If anything, based on what Esser knew at the time,

waiting could easily have resulted in plaintiff suffering a greater degree of self-harm than

the prompt use of escalating OC.

Furthermore, Esser attests that even after plaintiff dropped to the floor, he perceived

plaintiff’s movements at that point as evidence of his continued, volitional noncompliance

and efforts to harm himself with his self-fashioned noose. Although plaintiff disputes what

he was actually experiencing, the video and audio footage establishes that Esser’s belief was

eminently reasonably. Specifically, the footage inside the cell shows plaintiff’s arms

remained up by his head even when he was on the ground, and audio footage shows that

plaintiff was still yelling out at the officers before and even while Esser was employing the

pepper ball launcher. So even if plaintiff was, as he claims, barely conscious, it was not

unreasonable for Esser to perceive plaintiff to be both conscious and actively resisting his

repeated command to stop self-harming. Esser’s decision to employ the launcher

repeatedly, in periodic bursts, until plaintiff complied by standing up and approaching the

support an inference of an intent solely to harm plaintiff. Accordingly, the court will grant

summary judgment to defendants with respect to plaintiff’s claims against Esser.

II. Defendant Chad Lentz

The Eighth Amendment also prohibits prison officials from responding to an

objectively serious risk of harm with deliberate indifference. See Farmer v. Brennan, 511

U.S. 825, 844-45 (1994); Wilson v. Adams, 901 F.3d 816, 820 (7th Cir. 2018). To prove

his claim of deliberate indifference against Lentz, therefore, plaintiff must adduce evidence

permitting a reasonable jury to find he was “cognizant of the significant likelihood that

[Williams] may imminently seek to take his own life” and yet failed to take reasonable

measures to prevent him from doing so. Collins v. Seaman, 462 F.3d 757, 761 (7th Cir.

2006); see also Davis -Clair v. Turck, 714 F. App’x 605, 606 (7th Cir. 2018) (“A risk of

future harm must be ‘sure or very likely’ to give rise to ‘sufficiently imminent dangers’

before an official can be liable for ignoring that risk.”) (quoting Baze v. Rees, 553 U.S. 35,

50 (2008) (Roberts, C.J., plurality)). Deliberate indifference is “more than mere or gross

negligence, but less than purposeful infliction of harm.” Lisle v. Welborn, 933 F.3d 705,

717 (7th Cir. 2019)(quoting Matos v. O’Sullivan, 335 F.3d 553, 557 (7th Cir. 2003)).

Defendants seek summary judgment with respect to plaintiff’s deliberate

indifference claim against Lentz because there is insufficient evidence for a jury to find that

he was aware plaintiff would break and then use glass shards from a nasal spray bottle to

commit self-harm. Plaintiff argues the opposite.

status from possessing a glass nasal spray bottle, explaining that he had just recently started

working at WSPF, and his prior institution used a different sticker system to identify

inmates who could not possess glass objects. While Lentz’s ignorance of that policy is at

least plausible, especially since HSU apparently kept the bottle on the cart for Williams’

possible use, it does not entitle him to summary judgment given plaintiff’s version of their

interaction. Regardless of any policy applicable to inmates on observation status, plaintiff

claims that Lentz knew he would commit serious self-harm with any object he obtained,

including the glass spray bottle. Leaving aside whether Lentz should have known that

plaintiff was facing a mental health crisis because he was on observation status, plaintiff

attests that even after he told Lentz that staff did not believe he would use “anything” to

harm himself, Lentz smirked, shook his head, and provided him the glass bottle.

Given the overall context, the court sincerely doubts that a reasonable jury will

believe plaintiff’s description of their interaction (as opposed to Lentz’s version, in which

plaintiff requested the nasal spray and made no mention of self-harm), but were the jury

to do so, it might reasonably infer from Lentz’s alleged smirk, that his actions crossed the

line from mere negligence or recklessness into a conscious disregard of the real possibility

that plaintiff would severely harm himself. Miller v. Harbaught, 698 F.3d 956, 963 (7th

Cir. 2012) (“If the state officers can observe or are told that their detainee is indeed so

disturbed that his next step is likely to be suicide, and yet they do nothing, it is fair to say

that they have gone beyond mere negligence and entered the territory of the deliberately

indifferent.”); Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992) (deliberate indifference

in the face of serious risks).

Lentz further argues that a jury could not reasonably find he acted with deliberate

indifference, since there appears no dispute that once it became apparent plaintiff was not

returning the nasal spray, Lentz asked and then ordered plaintiff to return the nasal spray

bottle. Indeed, this might be a compelling argument for the jury if he had then called for

help from other officers, but Lentz does not attest to that. Rather, Officer Foley attests

that he happened to walk into the range, and he, too, ordered plaintiff to return the nasal

spray. Plus, neither Lentz nor Foley were able to prevent plaintiff from harming himself

once he had the nasal spray bottle.

Frankly, the court finds this claim to be a very close call, even on summary

judgment, and believes a lay jury will equally view plaintiff’s version of events with great

skepticism. Still, if a jury were to believe plaintiff, it might reasonably conclude Lentz was

deliberately indifferent to the real risk that plaintiff would harm himself. For that same

reason, Lentz is not entitled summary judgment on the basis of qualified immunity. See

Weinmann v. McClone, 787 F.3d 444, 451 (7th Cir. 2015) (“The existence of a factual

dispute about the circumstances surrounding McClone’s decision to fire on [Weinmann]

precludes a ruling on qualified immunity at this point.”). Accordingly, the court will

reluctantly allow plaintiff’s claim against defendant Lentz to proceed to trial.

III. Blume, McClain, Edge, Haines

Finally, defendants seek summary judgment on plaintiff’s claims against Blume,

McClain, Edge and Haines for allegedly failing to intervene to prevent his self-harm. A

know that excessive force was being used; and (2) the officers “had a realistic opportunity

to intervene to prevent the harm from occurring.” Lewis, 581 F.3d at 472 (granting

summary judgment on failure to intervene claim where the use of pepper spray was

spontaneous and thus completed before bystander prison guards could prevent it); see also

Gill v. city of Milwaukee, 850 F.3d 335, 342 (7th Cir. 2017). As an initial matter, plaintiff

offers no evidence that any of these defendants were present or nearby when then-

Lieutenant Esser administered incapacitating agents on plaintiff. In fact, there appears no

dispute that defendants Blume, McClain and Edge in particular were only involved after

Esser had used the OC spray on him. As to these three at least, it would seem to follow

that none of them had a reasonable opportunity to intervene to prevent or curb Esser’s use

of force.

Nonetheless, plaintiff’s position is that each of these defendants violated his Eighth

Amendment rights because they should have prevented OC spray from being used on him

in the first place. To the extent plaintiff challenges the DOC’s policy governing the use of

OC spray for inmates with a contraindication, that policy is not so clearly problematic to

create an obligation by these defendants to object to or change the policy. Indeed, that

policy reflects not only an attempt to balance institutional safety and security against

individual inmate safety, but was also consistent with the clearly established law at the

time. See Kervin v. Barnes, 144 F. App'x 551, 552 (7th Cir. 2005) (“This court has held

that prison guards may use chemical sprays when reasonably necessary to subdue

recalcitrant prisoners, for orders must be obeyed, and there are only so many choices

available to correctional officers when inmates refuse.”).

steps to except plaintiff specifically from the policy has no traction. In each of the instances

described above, the OC spray was used to prevent plaintiff from further harming himself.

Even more importantly, no evidence of record suggests that plaintiff’s reaction to the OC

spray was so severe that the risk of using it on him outweighed the risk of allowing him to

continue harming himself while prison officials attempted other methods of intervention,

including calling in a cell extraction team. To the contrary, the most extensive medical

attention plaintiff required following any of these incidents was a nebulizer treatment days

after the March 3 use of OC spray, and plaintiff has not submitted evidence that

defendants Blume, McClain or Edge were even aware that he required such treatment. As

such Blume, McClain or Edge would have had no reason to believe the policy allowing use

of OC posed a significant safety risk to plaintiff, much less that they should have taken

further action to alert the appropriate prison personnel to their concerns. Accordingly,

defendants Blume, McClain and Edge are entitled to summary judgment on the merits and

on qualified immunity grounds.

As for WSPF Warden Haines’ motion for summary judgment, plaintiff maintains

that he should be held liable given his awareness that Esser was using OC spray in violation

of DOC policy. However, the court has already held that Esser’s decision to administer

the OC spray did not violate DAI Policy 306.07.03V, since medical attention was promptly

offered him after the OC spray was administered, nor could it form a basis for

constitutional liability even if it had. See Glisson, 849 F.3d at 380. Haines is entitled to

summary judgment for that reason.

of plaintiff’s inmate complaints about the use of OC spray on him. In general, prison

officials who deny inmate complaints “but who otherwise did not cause or participate in

the underlying conduct” may not be held liable under § 1983. Owens v. Hinsley, 635 F.3d

950, 953 (7th Cir. 2011) (citing George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007)); see

also See Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009) (“Bureaucracies divide tasks;

no prisoner is entitled to insist that one employee do another’s job. The division of labor

is important not only to bureaucratic organization but also to efficient performance of

tasks; people who stay in their roles can get more work done, more effectively, and cannot

be hit with damages under § 1983 for not being ombudsmen.”). Plaintiff neither specified

when he submitted inmate complaints or communications to Haines about Esser’s use of

incapacitating agents; nor has he suggested that in submitting the inmate complaints, he

alleged that its use was an ongoing or even frequent problem. As such, the evidence does

not allow an inference that between May and June of 2013, Warden Haines was aware

that Esser was improperly using incapacitating agents on plaintiff on an ongoing basis and

failed to take corrective action. Accordingly, like Edge, Blume and McClain, Haines is

entitled to summary judgment as well.

ORDER

IT IS ORDERED that:

1) Defendants’ motion for summary judgment (dkt. #72) is DENIED in part with

respect to plaintiff’s Eighth Amendment deliberate indifference claim against

Lentz, and GRANTED in part as to all claims against the other defendants Dane

Esser, Haines, Blume, Edge and McClain.

that plaintiff should use as a guide as he prepares for trial on his remaining claim

against defendant Lentz.

Entered this 19th day of May, 2021.

BY THE COURT:

/s/

__________________________________

WILLIAM M. CONLEY

District Judge