Daniel J. Mitchell v. JAKE D. KRUEGER and THOMAS E. CICHA

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 12, 2014 *
Decided November 12, 2014
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14‐1810
DANIEL J. MITCHELL,
Plaintiff‐Appellant,
v.
JAKE D. KRUEGER and
THOMAS E. CICHA,
Defendants‐Appellees.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 11‐cv‐279‐wmc
William M. Conley,
Chief Judge.
O R D E R
Daniel Mitchell claimed in this suit under 42 U.S.C. § 1983 that two guards at
Stanley Correctional Institution in Wisconsin violated the Eighth Amendment by using
excessive force in responding to a fight he started with another inmate. The parties
disagree about the amount of force used in breaking up the fight and removing Mitchell
from the area. The district court granted summary judgment for the defendant guards.
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. A PP.
P. 34(a)(2).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

-- 1 of 5 --

No. 14‐1810 Page 2
Because there are material factual disputes about the need for, and extent of, continued
physical force after the inmates were separated, we vacate the judgment in part and
remand for further proceedings.
We recount the evidence and draw all reasonable inferences in the light most
favorable to Mitchell, as we must. See Kvapil v. Chippewa County, Wis., 752 F.3d 708, 712
(7th Cir. 2014). On the day of the incident, Mitchell entered a dayroom, or common area,
and began punching another prisoner without provocation. Jake Krueger, one of the
defendant guards, saw the commotion and twice ordered Mitchell and the other inmate
to stop fighting. Mitchell did not stop and, instead, yelled at Krueger, “Fuck that!”
Krueger, who is 6’–2” and weighed 280 pounds, then “brutally tackled” Mitchell to the
floor. That is according to Mitchell, who is 6” shorter and weighed 128 pounds.
Thomas Cicha, the other defendant, came to Krueger’s aid and helped subdue
and handcuff Mitchell. After Mitchell assured the guards that he would comply with
their directives. Krueger and Cicha brought him to his feet and, with Kruger holding his
left arm and Cicha holding the right, walked him toward the dayroom exit. Mitchell was
not resisting, he says, yet Cicha gratuitously twisted his wrist, causing so much pain that
he yelled and stood on his toes. By Mitchell’s account, the two guards then “slammed”
him face first onto a metal table, cutting his chin. Krueger laughed and asked, “Did that
hurt, you little pussy?” The guards’ description of the incident is different: They insist
that Mitchell was resisting, and in response they “directed” him “to the nearest table and
controlled his descent to the table top.” Mitchell was taken to the segregation unit, and
medical staff treated his cut with skin adhesive and a bandage.
The district court essentially analyzed Mitchell’s lawsuit as raising two distinct
claims, the first alleging the use of excessive force by Krueger alone when he tackled the
plaintiff, and the second alleging that both guards needlessly pushed him onto the table
as they were escorting him from the dayroom. In granting summary judgment for the
guards, the district court concluded that a jury could not reasonably find that Krueger
had overreacted in tackling Mitchell; the plaintiff had created a serious security risk by
attacking the other inmate and flouting Krueger’s commands to stop, requiring Krueger
to forcefully restore discipline. The court further concluded that, whether or not Mitchell
was intentionally resisting or simply reacting to Cicha’s deliberate effort to cause pain by
twisting his wrist, the guards reasonably could perceive Mitchell’s struggling while
exiting the dayroom as requiring additional force and thus their “decision to direct
Mitchell” to a table was warranted.

-- 2 of 5 --

No. 14‐1810 Page 3
On appeal Mitchell maintains that the amount of force used initially and as he
was led out of the dayroom is disputed. In particular he insists that he was not resisting
when the guards pushed him onto the table. We review the district court’s grant of
summary judgment de novo. Hawkins v. Mitchell, 756 F.3d 983, 990–91 (7th Cir. 2014).
We agree with the district court that a jury could not reasonably find on this
record that Krueger’s initial use of force was unwarranted or excessive. The Eighth
Amendment does not forbid every use of force against a prisoner. What is prohibited is
the wanton infliction of pain, and thus a use of force is constitutional if part of a
good‐faith effort to restore discipline. Whitley v. Albers, 475 U.S. 312, 319–21 (1986); Lewis
v. Downey, 581 F.3d 467, 476 (7th Cir. 2009). Even if, in retrospect, tackling Mitchell might
appear to have been an overreaction, that conclusion would not alone establish a
constitutional violation. See Whitley, 475 U.S. at 319; Rice v. Correctional Med. Servs., 675
F.3d 650, 667–68 (7th Cir. 2012); Guitron v. Paul, 675 F.3d 1044, 1045–46 (7th Cir. 2012).
Only if that force was used sadistically for the very purpose of causing harm might
Krueger be liable. See Wilkins v. Gaddy, 559 U.S. 34, 37 (2010); Lewis, 581 F.3d at 476;
Harper v. Albert, 400 F.3d 1052, 1065 (7th Cir. 2005). Krueger was alone in the dayroom
when Mitchell assaulted the other inmate, and Krueger could not know whether
Mitchell might produce a shank or some other weapon that he might use to harm
someone around him. Mitchell was a safety risk to the other inmate as well as Krueger,
and he mocked Krueger’s orders to stop fighting. The guard had a duty to protect the
other inmate, and Mitchell cannot complain that Krueger took decisive steps to subdue
him. See Whitley, 475 U.S. at 321–22; Guitron, 675 F.3d at 1046; Lewis, 581 F.3d at 476–77.
The situation was different, though, after Mitchell was restrained, and here our
view of the evidence parts from the district court’s assessment. Whether Krueger and
Cicha were acting in good faith when they forced Mitchell face first onto the table
depends on whether they reasonably felt that their safety or the safety of other inmates
was threatened, whether there was a genuine need to use force, and whether the amount
of force used corresponded to that need. See Rice, 675 F.3d at 668; Lewis, 581 F.3d at 477;
Fillmore v. Page, 358 F.3d 496, 503–04 (7th Cir. 2004). The determination that force was
excessive depends on the circumstances. Richman v. Sheahan, 512, F.3d 876, 883 (7th Cir.
2008). The district court recognized that a dispute exists concerning Mitchell’s assertion
that his purported “resistance” while being walked out of the dayroom was nothing
more than a reaction to Cicha’s malicious infliction of pain by needlessly twisting his
wrist. The court reasoned, however, that the guards still could reasonably have
perceived a need for more force because Mitchell had assaulted another inmate and
refused to obey Krueger’s orders.

-- 3 of 5 --

No. 14‐1810 Page 4
Although a trier of fact might so find, we cannot say that the undisputed facts
compel this conclusion. As Mitchell points out, when the defendants “slammed” him
onto the table, the fight with the other inmate was over and he had agreed to comply
with their orders. Moreover, Mitchell was restrained with his hands behind his back,
flanked on either side by the defendants holding his arms, at least one of whom was
more than 100 pounds heavier and half a foot taller than Mitchell. See Hope v. Pelzer, 536
U.S. 730, 738 (2002) (reasoning that shackling inmate to hitching post was “obvious”
Eighth Amendment violation if, as inmate alleged, his threat to guards’ safety had
abated after he was subdued, handcuffed, and placed in leg irons). A jury reasonably
could find that Mitchell was not a threat to anyone—and wasn’t perceived by the
defendants to be a threat to anyone—when Cicha allegedly twisted his wrist for no
reason except to cause him pain. Likewise, if Cicha did twist Mitchell’s wrist for no
reason, then he also knew that Mitchell did not pose a new threat simply because he
predictably reacted to the pain. See Hendrickson v. Cooper, 589 F.3d 887, 889–91, 894–95
(7th Cir. 2009) (upholding jury’s finding that guard had used excessive force by
provoking inmate and citing his reaction as excuse to attack him); Morton v. City of East
Chicago, 349 F.3d 989, 1004–05 (7th Cir. 2003) (vacating grant of summary judgment for
defendant police officers on excessive‐force claim under Fourth Amendment since jury
reasonably could find that plaintiff resisted only after officers had grabbed and shoved
him to floor); Davis v. Rennie, 264 F.3d 86, 95–96, 115 (1st Cir. 2001) (upholding award of
punitive damages because jury could find that state employee of mental‐health hospital
had acted with “evil motive” by taunting an involuntarily committed patient to provoke
behavior which employee used as excuse to justify applying unreasonable force). And
though it was Cicha and not Krueger who provoked Mitchell’s reaction, we think that a
jury reasonably could infer from Krueger’s laughter and deriding Mitchell as a “pussy”
that he was aware of Cicha’s actions and joined him in throwing Mitchell onto the table
with malice or a sadistic purpose. See Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 685–
88 (7th Cir. 2007) (concluding that jury reasonably could find that police officer who did
not witness any resistance by plaintiff was complicit in use of excessive force since he
helped hold plaintiff while second officer gratuitously applied painful wristlock after
saying that he was going to “hurt” plaintiff). There are sufficient material disputes about
how much force the guards used and whether they acted in good faith that summary
judgment was not appropriate.
We recognize that Mitchell’s allegations may not be true, and we express no
opinion about whether he can establish that the force used by the defendants was a
violation of the Eighth Amendment. At this stage in the litigation, our only conclusion is

-- 4 of 5 --

No. 14‐1810 Page 5
that Mitchell’s version of events raises genuine issues of material fact that preclude
summary judgment.
Accordingly, we AFFIRM the grant of summary judgment on Mitchell’s claim
that Krueger used excessive force when he first tackled Mitchell. On Mitchell’s claim that
Krueger and Cicha used excessive force as they removed him from the dayroom,
however, we VACATE the grant of summary judgment and REMAND for further
proceedings.

-- 5 of 5 --