Burton, Daniel C. v. Ruzicki, Kirsten

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 29, 2007*
Decided December 5, 2007
Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 07-1775
DANIEL C. BURTON, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of
Wisconsin
v.
No. 05-C-0367
KIRSTEN RUZICKI, et al.,
Defendants-Appellees. William E. Callahan, Jr.,
Magistrate Judge.
ORDER
Daniel Burton, a pretrial detainee in the Kenosha County Detention Center
(KCDC), sued several correctional officers under 42 U.S.C. § 1983 alleging that they
used excessive force against him, were deliberately indifferent to his medical needs,
and provided inadequate conditions of confinement. A magistrate judge, sitting by
consent, granted summary judgment for the defendants, finding that no genuine
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus the appeal is submitted on the briefs and the
record. Fed. R. App. P. 34(a)(2).
No. 07-1775 Page 2
issue of material fact existed regarding the excessive force claim and that Burton
had not exhausted his other two claims. We affirm.
Because Burton appeals from a grant of summary judgment, we construe the
evidence and draw all reasonable inferences in his favor. Sides v. City of
Champaign, 496 F.3d 820, 822 (7th Cir. 2007). Burton came to KCDC in October
2004 as a pretrial detainee who had been incarcerated for at least the last 13 years.
He was a Level II inmate, the second-highest classification, because he posed
potential escape and assault risks. In November 2004 he was disciplined after
refusing to follow an officer’s orders. All officers at KCDC knew Burton’s
classification and history of insubordination.
Burton’s claims stem from an incident that occurred the morning of
December 2, 2004. Officer Kirsten Ruzicki entered Burton’s cell block to deliver
breakfast to the inmates. The cell block has a small day room with a table and six
cells lining one side of the room. When Ruzicki entered, Burton was talking loudly
and using profanity. Ruzicki told Burton to stop using profanity, which Burton
knew was prohibited. Burton responded by telling her to serve his food. She did so
but told him to go to his cell for lockdown. Instead, Burton sat at the table and
refused to go into his cell. After serving breakfast to the other inmates, Ruzicki
again told Burton to go to his cell, but he refused, saying he would finish his
breakfast first. Ruzicki then threatened to lock down the rest of the inmates and
take him to the segregation unit. Burton still refused to go into his cell.
Officer Ruzicki ordered the other inmates into their cells and called for
backup. Moments later, Officers Scott Eggers and Debbie Maddern arrived. Eggers
ordered Burton to stand up, and Burton replied that he would get up when he was
finished eating. At that point, Ruzicki “blanketed” Burton’s arm by using her hands
to form a cup around Burton’s elbow to escort him to segregation. Burton pulled his
arm away and stood up, leaning away from her. Eggers then moved toward Burton
to try to gain control over him, and the two ended up with their arms locked falling
to the floor. As they fell, Burton grabbed the cell bars to break his fall and Eggers’s
head hit the bars. As Burton tried to get up, Eggers grabbed his head to keep him
on the ground. Burton heard Eggers tell Ruzicki to use pepper (OC) spray and saw
her shake the bottle. Ruzicki deployed a one-second burst of OC spray, missing
Burton, and then another one-second burst, this time hitting him in the eyes.
After restraining Burton, officers escorted him out of the day room. A
sergeant began to treat Burton in the hallway and called 911 so that Burton could
be taken to the hospital. Burton sustained a dislocated right shoulder and a left
orbital contusion from the OC spray. Doctors prescribed pain medication, physical
therapy, and eye ointment.
No. 07-1775 Page 3
Upon returning from the hospital, Burton was placed in segregation and
charged with three violations of KCDC rules. A hearing officer sustained the
charges, and Burton received 30 days of disciplinary segregation, which was
affirmed after Burton appealed. While in segregation, he filed at least five
grievances asking for access to Wisconsin legal materials.
In March 2005 Burton sued under 42 U.S.C. § 1983, raising four claims:
(1) the officers used excessive force; (2) jail nurses were deliberately indifferent to
his medical needs; (3) jail officials provided inadequate conditions of confinement;
and (4) jail officials denied him access to the courts. After screening the complaint,
the district court dismissed the access-to-courts claim, finding that Burton did not
allege prejudice, but allowed Burton to proceed on the remaining three claims. The
judge then granted the defendants’ motion for summary judgment on the excessive
force claim, finding that Burton had not produced evidence suggesting that the
officers acted other than in good faith. The judge also found that Burton had not
exhausted his administrative remedies for the other two claims.
On appeal Burton challenges the grant of summary judgment as well as two
earlier procedural rulings. We review the grant of summary judgment de novo.
Sides, 496 F.3d at 826. Because Burton was a pretrial detainee, he had to bring his
claims under the Fourteenth Amendment, which, in this context, we analyze using
the same standards as we do for Eighth Amendment claims. Zentmyer v. Kendall
County, 220 F.3d 805, 810 (7th Cir. 2000). The inquiry for a claim of excessive force
is “whether force was applied in a good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7
(1992); see Fillmore v. Page, 358 F.3d 496, 503 (7th Cir. 2004). Several factors
contribute to this determination, including “the need for the application of the force,
the amount of force applied, the threat an officer reasonably perceived, the effort
made to temper the severity of the force used, and the extent of the injury that the
force caused to an inmate.” Fillmore, 358 F.3d at 504. To successfully oppose a
motion for summary judgment, the inmate must have evidence that “will support a
reliable inference of wantonness in the infliction of pain.” Whitley v. Albers, 475
U.S. 312, 322 (1986); see also Fillmore, 358 F.3d at 504.
The judge correctly granted summary judgment on Burton’s claim that the
officers used excessive force. Burton has not provided any evidence suggesting that
the officers acted maliciously or sadistically. Rather, the record shows that they
acted in good faith in responding to an inmate who refused to obey their orders.
Burton does not dispute that he refused to follow Officer Ruzicki’s order to eat
breakfast in his cell three times before she escalated her discipline tactics. Faced
with an insubordinate inmate whom she knew posed an escape and assault risk and
had caused other disturbances recently, Ruzicki followed jail policy by calling for
backup, using verbal persuasion and then the “blanketing” technique, and
No. 07-1775 Page 4
eventually using OC spray when it became apparent that they could not control
Burton. See Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984) (“The use of mace,
tear gas or other chemical agent of the like nature when reasonably necessary . . . to
subdue recalcitrant prisoners does not constitute cruel and inhuman punishment.”).
Officers Eggers and Maddern likewise followed protocol in subduing Burton,
applying force in proportion to the threat they perceived. Although Burton insists
he did not hit or resist Ruzicki and Eggers, these disputed facts are immaterial
because the officers were justified in escalating their discipline based on Burton’s
initial and continued disobedience. See id. at 1267 (reasoning that if an inmate
“cannot be persuaded to obey [an] order, some means must be used to compel
compliance” because discipline in a correctional institution is “essential if the prison
is to function”); see also Bell v. Wolfish, 441 U.S. 520, 547 (1979) (according “wide-
ranging deference” to prison officials in adopting and executing discipline policies).
The judge also correctly granted summary judgment on Burton’s claims of
deliberate indifference and inadequate conditions of confinement because Burton
failed to exhaust administrative remedies for these claims. Prisoners are prohibited
from bringing claims about prison conditions under § 1983 until “such
administrative remedies as are available are exhausted,” 42 U.S.C. § 1997e(a), and
they must do so by following prison rules for the grievance process, Woodford v.
Ngo, 126 S. Ct. 2378, 2382 (2006); Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th
Cir. 2002). We review a district court’s exhaustion finding de novo. Kaba v. Stepp,
458 F.3d 678, 681 (7th Cir. 2006).
Burton did not file any grievances about the jail officials’ deliberate
indifference to his medical needs or the conditions in his cell. Burton contends that
his failure to do so should be excused because he was denied writing materials
while in disciplinary segregation, but he filed at least five other, unrelated
grievances during that same time period. Even though we view the facts in the
light most favorable to Burton, we will not make unreasonable inferences. See St.
Louis N. Joint Venture v. P & L Enters., Inc., 116 F.3d 262, 265 n.2 (7th Cir. 1997).
Burton also argues, for the first time on appeal, that he could not file grievances
because his injured arm prevented him from writing and because he did not know
about the exhaustion requirement. Burton forfeited these arguments because he
did not raise them in the district court. See Omega Healthcare Investors, Inc. v.
Res-Care, Inc., 475 F.3d 853, 858-59 (7th Cir. 2007).
Burton raises two other issues on appeal, neither of which are meritorious.
First, he argues that the district court erred in dismissing at the screening stage his
claim that he was denied access to the courts. We review dismissals for failure to
state a claim under § 1915A de novo, Westefer v. Snyder, 422 F.3d 570, 574 (7th Cir.
2005), using the same standards that apply to dismissals under Federal Rule of
No. 07-1775 Page 5
Civil Procedure 12(b)(6), Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000).
Our notice-pleading system requires that complaints contain only a “short and plain
statement of the claim,” FED. R. CIV. P. 8(a)(2), but when inmates claim they have
been denied access to the courts, they must specifically allege how the denial
prejudiced them. Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006); Ortloff v.
United States, 335 F.3d 652, 656 (7th Cir. 2003). Because Burton did not allege
prejudice, the judge properly dismissed Burton’s access-to-courts claim.
Finally, Burton argues that the district court improperly denied two motions
seeking leave of court to depose inmates who witnessed the incident. We review
discovery rulings for an abuse of discretion and will reverse only if the movant
shows that “the denial of discovery resulted in actual and substantial prejudice” to
him. Packman v. Chicago Tribune Co., 267 F.3d 628, 646 (7th Cir. 2001). Burton
sought the depositions to establish that he did not provoke the officers, that he was
attacked by them, and that he did not fight back. Burton explained that he could
not get affidavits from the inmates in lieu of depositions because he was no longer
at the KCDC facility where the incident occurred and because two of the inmates
were now in the custody of Immigration and Naturalization Services. The court,
however, denied both motions, reasoning that Burton had not explained why he
could not use written discovery to obtain names and locations of potential affiants.
The district court did not abuse its discretion in denying Burton’s motions to
depose various inmates. Burton has not shown, let alone argued, that he has
suffered actual and substantial prejudice. The district court may limit discovery if
the discovery sought is “obtainable from some other source that is more convenient,
less burdensome, or less expensive.” FED. R. CIV. P. 26(b)(2)(C). We cannot say that
the court abused its discretion in finding that Burton should have first attempted to
obtain the information through affidavits and written discovery. Morever, Burton
already had at his disposal statements by three of the inmates he sought to
depose—statements that, in some instances, contradicted what Burton hoped these
inmates would say in depositions.
AFFIRMED.