Wisner v. Ashby et al
Filing
98
OPINION: A final pretrial conference is scheduled for September 22, 2014, at 1:30 p.m. Plaintiff shall appear by video conference. Defense counsel shall appear in person. The jury selection and trial are scheduled for December 9-12, 2014, beginning at 9:00 a.m. each day. The clerk is directed to terminate Defendants Atkinson, Roth, Wilczynski, Ashby, Baptist, Hammers, Williams, Winters, Tinwalla, Hougas, Parsons, Zimmerman, and the unnamed Defendants. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 3/6/2014. (MJ, ilcd)
E-FILED
Thursday, 06 March, 2014 02:28:56 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
MICHAEL WISNER,
Plaintiff,
v.
FORREST ASHBY, et al.,
Defendants.
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12-CV-3142
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiff proceeds pro se from his detention in the Rushville
Treatment and Detention Center pursuant to the Illinois Sexually
Violent Persons Act, 725 ILCS 207/1, et seq.
In a prior order, the Court identified the following claims in
this case: 1) excessive force based on the incident which occurred on
March 20, 2012; 2) deliberate indifference to the creation of a
substantial risk of serious harm; 3) deliberate indifference to Plaintiff=s
serious psychiatric need; 4) deliberate indifference to Plaintiff=s need for
medical and psychiatric care after the alleged excessive force; and, 5)
retaliation for exercising protected First Amendment rights.
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The case is now before the Court on Defendants' summary
judgment motions. At the summary judgment stage, the evidence is
viewed in the light most favorable to the nonmovant, with material
factual disputes resolved in the nonmovant's favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of
material fact exists when a reasonable juror could find for the
nonmovant. Id.
Of the claims identified above, Plaintiff's responses (d/e's 69,
93), even liberally construed, address only the claims of excessive
force and failure to intervene. The Court will, therefore, start with
those claims.
The events set forth in the following paragraphs are taken
from Plaintiff's deposition testimony and set forth as facts for
purposes of this order only. Defendants have a different version of
events, but at this stage the Court must accept Plaintiff's version of
facts which he personally experienced.
According to Plaintiff, Plaintiff was placed in his room on a two
hour "cool down" at the end of the day on March 19, 2012, because
Plaintiff had "got into it with another resident." (Pl.'s Dep. p. 90.) A
cool down period officially ends when the guard comes to "assess"
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the resident. Id. p. 93. The next morning, on March 20, 2013,
Plaintiff realized that he had not been told that his cool down was
over. Plaintiff pressed the intercom button in his room and asked
Defendant Sandstrom whether Plaintiff's cool down was over and
whether Plaintiff could get breakfast and his medicine. Defendant
Sandstrom looked into the matter and then told Plaintiff that since
Plaintiff had missed breakfast and his medicine, he would receive
neither. Plaintiff asked to speak to a "white shirt"—a guard with
more authority than he thought Defendant Sandstrom had.
Unbeknownst to Plaintiff, Sandstrom was a "white shirt."
Sandstrom told Plaintiff that she was a sergeant and called Plaintiff
an asshole. Plaintiff got upset, called Sandstrom a bitch, and
walked out of his room, a move which Plaintiff himself calls
"unauthorized movement." (Pl.'s Dep. 93).
At this point, Defendant Sandstrom told Plaintiff that she was
offering him another two hour cool down. Plaintiff responded, "I'm
not even done with the first one, how are you going to offer me a
second one?" (Pl.'s Dep. p. 93.) Sandstrom then called a "code," a
call for other guards to come help with the situation. Defendants
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Teel, Kelly, Hougas, Dougherty, Parsons, Pool, Wear, Mantzke, and
Zimmerman came to Plaintiff's unit in response to the code.
Defendant Hougas talked Plaintiff into going back into his
room on a two hour cool down. The other guards then began to
leave the unit because the situation had been diffused, but,
unbeknownst to Plaintiff, Plaintiff's conversation with his roommate
about suing over the incident was being broadcast over the
intercom. Plaintiff surmises that Defendants heard that
conversation, and, in retaliation, came running to Plaintiff's room.
According to Plaintiff, he was instructed to turn around and offer
his hands for cuffing, an order which he obeyed. After Plaintiff was
cuffed, Defendant Kelly pushed Plaintiff into Plaintiff's room and
slammed Plaintiff to the floor, hitting Plaintiff's head on a property
box and causing injury to Plaintiff's face. Defendant Kelly sat on
Plaintiff and kept telling Plaintiff to stop resisting even though
Plaintiff was not resisting. An inference arises that Defendants
Mantzke, Teel, Wear, and Dougherty were also in Plaintiff's room.
Plaintiff's shoes were ripped off his feet, causing injuring to
Plaintiff's ankle. Defendants Biermann and Pool were not in the
room, but were in positions outside the room which blocked others'
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views. (Pl.'s Dep. 94-109, 127, 134, 150) Plaintiff was taken to
"special management," which Plaintiff describes as a segregation
cell.
Based on Plaintiff's account as described above, the Court
cannot rule out a reasonable inference that the Defendants who
were in Plaintiff's room used excessive force or were in a position to
intervene to stop that excessive force. Additionally, a reasonable
inference arises that Defendants Biermann and Pool, by blocking
others' views, enabled the excessive force and also failed to
intervene. A reasonable inference also arises that Defendant
Sandstrom, though not directly involved in the excessive force, may
have directed or approved of that excessive force. Summary
judgment is, therefore, denied on the excessive force and failure to
intervene claims against Defendants Kelly, Mantzke, Wear, Teel,
Biermann, Pool, Dougherty, and Sandstrom. Plaintiff testified in
his deposition that he no longer wants to pursue a claim against
Teel, (Pl.'s Dep. p. 154.), but the Court will wait for written
confirmation from Plaintiff.
A claim against these same Defendants for retaliation for
Plaintiff's free speech also survives summary judgment, even
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though Plaintiff does not address the claim in his responses.
Plaintiff's deposition testimony allows an inference that the guards
considered the situation resolved until the guards heard Plaintiff's
talk about suing them. Defendants have a different story, but, the
Court cannot rule out a reasonable inference in Plaintiff's favor.
Plaintiff stated in his deposition that he intends to withdraw the
retaliation claim, (Pl.'s Dep. pp. 170-71), but the Court will wait for
written confirmation from Plaintiff.
No reasonable jury could find the other Defendants—Atkinson,
Roth, Wilcyznski, Ashby, Baptist, Hammers, Williams, Winters,
Tinwalla, Hougas, Parson, and Zimmerman—liable for excessive
force, failure to intervene, or retaliation. These Defendants were
either not on Plaintiff's unit during the incident or were not in a
position where they could see or intervene in the alleged excessive
force, by Plaintiff's own account. (Pl.'s Dep. pp. 107-110.); Lewis v.
Downey, 581 F.3d 467, 472 (7th Cir. 2009)(bystander liability is
premised on a defendant's knowledge that excessive force is being
used and a "realistic opportunity to prevent the act from
occurring.").
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Plaintiff does not respond to the motions for summary
judgment on the other claims identified in the prior order—the
failure to protect him from a substantial risk of serious harm and
the failure to provide him needed psychiatric and medical care after
the incident as well as adequate psychiatric care in general. The
motions for summary judgment demonstrate that no reasonable
jury could find for Plaintiff on these claims.
Plaintiff's failure to protect claim is based on disrespectful
comments and offensive name-calling by some of the Defendants
who are DHS employees, names like asshole, little bitch, punk,
baby, and retard. (See, e.g., Pl.'s Dep. pp. 93, 122, 164-65.)
Plaintiff believes that the remarks encourage residents to treat
Plaintiff the same way. (Pl.'s Dep. pp. 164.) However,
unprofessional and offensive name-calling does not alone amount to
a constitutional deprivation. See, e.g., DeWalt v. Carter, 224 F.3d
607, 614 (7th Cir. 2000)("Standing alone, simple verbal harassment
does not constitute cruel and unusual punishment, deprive a
prisoner of a protected liberty interest or deny a prisoner equal
protection of the laws."). Plaintiff does not contend, nor does the
record support an inference, that the remarks put him at a serious
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risk of substantial harm or that he is at any serious risk of
substantial harm.
Plaintiff's failure to protect claim is also based on his
allegation that Defendants Williams and Winters told Plaintiff that
Plaintiff was being "given" to resident Webb, a resident who lived on
a different unit than Plaintiff but who had opportunities to interact
with Plaintiff during yard and gym. According to Plaintiff, Plaintiff
stopped interacting with Webb after being told this by Winters and
Williams on March 15, 2012, and after learning that Webb had been
telling other residents that Plaintiff "belonged" to Webb.
Plaintiff does not dispute that his fears of assault by resident
Webb never materialized. Plaintiff also does not dispute that he has
had no interaction with Webb after March 15, 2012, the day that
Defendants Winters and Williams purportedly made their comments
about giving Plaintiff to Webb. (Pl.'s Dep. p. 169.) Plaintiff and
resident Webb no longer live on units which are combined together
for yard or gym. (Biermann Aff. ¶¶ 5-8, d/e 38-1.) Plaintiff cannot
succeed on a failure to protect claim regarding risks that were never
realized and are no longer present. Babcock v. White, 102 F.3d 267
(7th Cir. 1996)(prisoner cannot maintain failure to protect claim
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where assault never materialized and inmate was no longer at risk);
Brown v. Budz, 398 F.3d 904 (7th Cir. 2005)(applying Eighth
Amendment standard to failure to protect claim by sexually violent
detainee).
Plaintiff also does not respond to Defendants' motions for
summary judgment with regard to his psychiatric and medical care.
Plaintiff stated in his deposition that he is suing Defendant Dr.
Tinwalla because Dr. Tinwalla did not treat Plaintiff for bipolar
disorder. (Pl.'s Dep. p. 79.) However, Plaintiff does not dispute Dr.
Tinwalla's evidence that Plaintiff does not, in fact, have bipolar
disorder and has never been treated for bipolar disorder either in
prison or in the treatment center. Plaintiff also agrees that Dr.
Tinwalla exercised his medical judgment when he concluded that
Plaintiff did not have bipolar disorder. (Pl.'s Dep. p. 86.)
Similarly, the motion for summary judgment by Defendants
Roth, Wilczynski, and Atkinson demonstrates that they did not
deny any needed psychiatric care to Plaintiff, nor were they
personally involved in any of the alleged deprivations. Plaintiff sues
them only because they failed to do anything after Plaintiff told
them about the excessive force. (Pl.'s Dep. pp. 26-33.) Roth,
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Wilczynski, and Atkinson cannot be held liable for declining to
initiate an investigation of Plaintiff's allegations. See Soderbeck v.
Burnett County, 752 F.2d 285, 293 (7th Cir. 1985)(“Failure to take
corrective action cannot in and of itself violate section 1983.
Otherwise the action of an inferior officer would automatically be
attributed up the line to his highest superior . . . .”). Likewise,
Defendants Ashby, Winters, and Williams cannot be held liable
solely because they held supervisory positions. See Chavez v.
Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001)(no
respondeat superior liability under § 1983).
Plaintiff asserts two new claims in his responses to the
summary judgment motions. First, he alleges that Defendant
Williams, then the head of security, refused to allow Plaintiff to have
prescribed crutches after the incident. Second, Plaintiff asserts
that his procedural due process rights were violated regarding a
disciplinary hearing and punishment he received as a result of the
incident on March 20, 2012.
Plaintiff may not amend his complaint through a response to a
summary judgment motion. Anderson v. Donahoe, 699 F.3d 989,
997 (7th Cir. 2012)("[A] plaintiff ‘may not amend his complaint
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through arguments in his brief in opposition to a motion for
summary judgment.'")(quoted cite omitted). Plaintiff never
mentioned the lack of crutches in either his complaint or his
deposition. Nor did Plaintiff ever file an amended complaint
explaining the basis for his dismissed procedural due process
claim, as the Court had invited Plaintiff to do back in July of 2012.
(7/13/2012 Order.) These new claims are not before the Court.1
IT IS ORDERED:
1.
The motion for summary judgment by Defendants Atkinson,
Roth, and Wilczynski is granted (d/e 67).
2.
The motion for summary judgment by Defendants Ashby,
Baptist, Biermann, Hammers, Williams, and Winters is
granted as to Defendants Ashby, Baptist, Williams, Hammers,
and Winters on all claims (d/e 71). Said motion is denied as
to Defendant Biermann.
Even if these new claims were properly before the Court, Plaintiff has not pointed out any
factual dispute for the jury to decide. Plaintiff admitted in his deposition that he is only suing
Defendant Williams because Williams was in charge of security, not because of any medical
issue. (Pl.'s Dep. pp. 111, 121-22.); Harmon v. Gordon, 712 F.3d 1044, 1051-52 (7th Cir.
2013)("'the law of this circuit does not permit a party to create an issue of fact by submitting an
affidavit whose conclusions contradict prior deposition or other sworn testimony.'")(quoted cite
omitted). As for the procedural due process claim, the behavior committee's decision was
already supported by some evidence—the statements of the security therapist aides. Plaintiff
also admits that he was guilty of unauthorized movement and called Defendant Sandstrom a
bitch. Plaintiff offers no evidence that submitting his own witness statements would have
made any difference. Piggie v. Cotton, 344 F.3d 674, 678 (7th Cir. 2003)(applying harmless
error analysis to refusal to call witnesses in disciplinary hearings).
1
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3.
The motion for an in camera inspection by Defendant Tinwalla
is granted (d/e 73). The documents filed under seal have been
considered as part of Dr. Tinwalla's summary judgment
motion.
4.
The motion for summary judgment by Dr. Tinwalla is granted
(d/e 75).
5.
The motions for summary judgment by Defendants Hougas,
Parsons, Pool, Sandstrom, Teel, Zimmerman, Dougherty,
Kelly, Mantzke, and Wear are granted as to Defendants
Hougas, Parsons, and Zimmerman. (d/e's 77, 80). Said
motions are denied as to Defendants Mantzke, Kelly, Teel,
Wear, and Dougherty.
6.
Plaintiff remaining claims which will go to trial are excessive
force, failure to intervene, and retaliation for the exercise of
Plaintiff's free speech, all arising from the incident on March
20, 2012. These claims proceed against Defendants Kelly,
Mantzke, Wear, Teel, Biermann, Pool, Sandstrom, and
Dougherty.
7.
Plaintiff's motion to request counsel is granted (d/e 84) to the
extent that Plaintiff asks the Court to try to recruit pro bono
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counsel to represent him at the final pretrial and trial.
However, if the Court is unsuccessful, Plaintiff will have to
proceed without an attorney.
8.
A final pretrial conference is scheduled for September 22,
2014, at 1:30 p.m. Plaintiff shall appear by video conference.
Defense counsel shall appear in person.
9.
The jury selection and trial are scheduled for December 9-12,
2014, beginning at 9:00 a.m. each day.
10. An agreed, proposed final pretrial order is due September
8, 2014.
11. Motions in limine are due September 8, 2014, with
responses thereto due September 15, 2014.
12. The Court will send out proposed jury instructions and
voir dire for discussion at the final pretrial conference.
Additional or alternate instructions and additional voir
dire questions are due September 8, 2014.
13. Plaintiff and Defense counsel must bring their exhibits,
marked, to the final pretrial conference.
14. Objections to exhibits are due September 15, 2014.
Objections must attach the exhibit at issue.
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15. The clerk is directed to issue a video writ to secure
Plaintiff's presence at the final pretrial conference.
16. The clerk is directed to terminate Defendants
Atkinson, Roth, Wilczynski, Ashby, Baptist,
Hammers, Williams, Winters, Tinwalla, Hougas,
Parsons, Zimmerman, and the unnamed Defendants.
ENTER: March 6, 2014
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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