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The homeowner was not charged (prosecutor decided it was self defense), but the inmate, paralyzed, is now suing from prison.

The man shot by a Janesville doctor in what authorities think was a burglary of the doctor's home has sued the doctor for negligently using excessive force.

Kurt Prochaska, 39, Janesville, still is awaiting trial on charges of burglary and felony criminal damage because of events late on the night of Oct. 31, 2005, when, police reported, he crashed through the ceiling of Michael Rainiero's home, 2520 Linden Ave., Janesville, in an attempt to burglarize the home.

Prochaska is now in state Department of Corrections' custody because his probation for earlier crimes was revoked.

His lawsuit does not specify an amount for damages.

In the suit filed in August in Milwaukee County, Prochaska admits being in Rainiero's home when he was shot once by Rainiero. But Prochaska claims in the suit:

"Rainiero then returned to his bedroom, retrieved a handgun from the closet, released the trigger lock, he then called out to his wife to call 911, whereupon he then returned to the hallway, his hands were shaking badly, he knelt down, yelled at the intruder to leave, in a split second he decided to fire the weapon towards the subject because he wanted him to leave.

"Rainiero negligently fired a shot and accidentally hit the plaintiff in the back, severing the plaintiff's spinal cord."

The lawsuit alleges Rainiero's negligent use of excessive force "in dealing with the intruder/plaintiff" harmed Prochaska by causing "severe and permanent injuries, severe and relentless pain" and medical expenses, loss of earning ability and diminished quality of life.

In his response to the suit, Rainiero, a surgeon in Dean Health System, denies any negligence or using excessive force. Rainiero maintains that he was exercising his right to defend himself and his family.

He also asked that the suit be tried in front of a jury in Rock County, where the incident happened and all the involved parties live, rather than in Milwaukee County, where the suit was filed.

Four days after the shooting, Rock County District Attorney David O'Leary said he would not charge Rainiero in the incident because the doctor had acted in self-defense.

"His actions were justified and reasonable," the district attorney said. "Not only was Dr. Rainiero entitled to defend himself, he was entitled to defend his family.

"Dr. Rainiero had no reasonable opportunity to retreat as the intruder was not complying with Dr. Rainiero's repeated demands to leave the residence and was still inside the residence with Dr. Rainiero's family," O'Leary said.

There is more. Like the fact that he was not paralyzed when the firefighters and EMTs arrived - he fought with them!

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Wisconson must not have a castle doctrine.
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