Johnson v. Milwaukee County Sheriffs Department

Filing 66

ORDER signed by Judge Pamela Pepper on 12/29/2016 DENYING 43 Plaintiff's Motion for Summary Judgment; GRANTING 46 Defendant's Motion for Summary Judgment, and Allowing the Plaintiff to File an Amended Complaint on or before 2/10/2017. (cc: all counsel and copy of the order along with a blank prisoner complaint form sent to the Plaintiff by US Mail on 12/30/2016) (kgw)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DARRICK D. JOHNSON,
Plaintiff,
Case No. 14-cv-582-pp

v.
KRISTI KENDRIX, et al.,

Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING THE PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 43), GRANTING THE DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT (DKT. NO. 46), AND ALLOWING THE
PLAINTIFF TO FILE AN AMENDED COMPLAINT
______________________________________________________________________________
Plaintiff Darrick D. Johnson, who is representing himself, was
incarcerated at the Milwaukee County Jail from June 26, 2012, through July
7, 2012. On May 11, 2015, the court screened the plaintiff’s amended
complaint under 28 U.S.C. §1915A and permitted him to proceed on claims
that various Doe defendants unlawfully detained him in a “mental needs” unit
beyond his release date, forcibly medicated him, and subjected him to
unconstitutional conditions of confinement when they turned off the water in
his cell. Dkt. No. 14.
On January 11, 2016, the court granted the plaintiff’s motion to
substitute defendant Joy Parks for one of the Jane Does, dkt. no. 26, and on
February 10, 2016, the court granted the plaintiff’s motion to substitute
defendants Kristi Kendrix, Daniel Brodsky, and Gregory Bacon for the

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remaining John/Jane Does, dkt. no. 31. On June 29, 2016, the plaintiff filed a
motion for summary judgment, dkt. no. 43, and on July 18, 2016, the
defendants filed a motion for summary judgment, dkt. no. 46. Those motions
are fully briefed and ready for the court’s decision.
I.

FACTS1
The Milwaukee County Police Department arrested the plaintiff on June

26, 2016, based on an active warrant for his arrest from the Chicago Police
Department. Dkt. No. 48, ¶¶28, 29. The plaintiff was booked into the
Milwaukee County Jail that same day under the name Derrick D. White. Id. at
¶32.
At that time, the Milwaukee County Sheriff’s Department employed
defendant Gregory Bacon as a corrections captain. Id. at ¶36. He was one of a
number of captains on duty during the times the plaintiff was incarcerated at
the Jail. Id. at ¶37. Defendant Bacon was not personally involved in the
plaintiff’s booking process, in any decisions relating to the conditions of his
confinement, or in any decision relating to the plaintiff’s release from Jail. Id. at
¶¶39, 40, and 41. In fact, defendant Bacon never met the plaintiff, and the
plaintiff never expressed any concerns to defendant Bacon about the conditions
of his confinement or his release from the Jail. Id. at ¶42.

The court takes the facts from the “Defendants’ Proposed Findings of Fact in
Support of Defendants’ Motion for Summary Judgment.” (Dkt. No. 48). The
plaintiff did not respond to the defendants’ proposed facts, so those facts are
deemed admitted for the purpose of deciding summary judgment. Civ. L. R.
56(b)(4). The plaintiff did not file any affidavits or declarations in support of his
motion for summary judgment, nor did he file a sworn complaint.
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The Milwaukee County Sheriff’s Department employed defendant Daniel
Brodsky as a correctional officer during the same period; he also was a member
of the Correctional Emergency Response Team (CERT). Id. at ¶44. On June 30,
2016, defendant Brodsky responded to the Special Needs Pod and observed the
plaintiff covered in feces, foaming at the mouth, eyes fluttering and sweating.
Id. at ¶46. Defendant Brodsky, among others, assisted the plaintiff with a
shower, gave him fresh linen, clothing and a clean cell. Id. at ¶¶47, 48. His
interactions with the plaintiff were limited to the assistance he provided the
plaintiff while he was on the Special Needs Unit. Id. at ¶55.
The MCSD employed defendant Kristi Kendrix as a correctional officer at
the relevant time. Id. at ¶56. On July 7, 2012, defendant Kendrix was assigned
the duty of releasing officer. Id. at ¶57. A releasing officer does not decide who
to release from the Jail. Id. at ¶61. A releasing officer releases an inmate into
the community after the records department provides the proper paperwork. Id.
at ¶¶59, 60. As the releasing officer, defendant Kendrix did not know which
inmates were to be released until after she received the proper paperwork. Id.
at ¶63. On July 7, 2012, the records department provided defendant Kendrix
paperwork indicating that the plaintiff was to be released. Id. at ¶64. Defendant
Kendrix processed the paperwork, and released the plaintiff that same day. Id.
at ¶65.
Defendant Joy Parks is a psychiatric social worker, working at the Jail at
the relevant time. Id. at ¶69. She is not authorized to make decisions regarding
the administration of medication to inmates, nor does she make decisions

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regarding the release of inmates from the Jail. Id. On June 28, 2012, she was
paged to pod 3A following a report that the plaintiff was exhibiting bizarre
behavior. Id. at ¶66. After meeting with the plaintiff, she requested that he be
transferred to the Special Needs Unit for observation. Id. at ¶68.
According to Jail logs, the plaintiff’s water was turned off (it is unclear by
whom) on July 5, 2012, at 11:15 p.m., because the sink faucet was running
continuously and the sink was about to overflow. Dkt. 54-1 at 6. The logs do
not indicate when the water was turned back on. The plaintiff’s water was also
turned off (again, it is unclear by whom) on July 6, 2012, at 10:35 p.m.,
because the plaintiff had stuffed his toilet and sink full of trash. Id. According
to the Jail log, his water was turned back on at 10:54 p.m. Id.
II.

DISCUSSION
A. Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that 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); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir.
2011). “Material facts” are those under the applicable substantive law that
“might affect the outcome of the suit.” Anderson, 477 U.S. at 248. A dispute
over “material fact” is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.

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A party asserting that a fact cannot be disputed or is genuinely disputed
must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information,
affidavits
or
declarations,
stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or (B)
showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
B. The Plaintiff’s Motion for Summary Judgment
On June 29, 2016, the plaintiff filed a one-page motion for summary
judgment. Dkt. No. 43. It lists three claims (illegal search, false imprisonment,
and cruel and unusual punishment), and sets forth the following two facts:
Fact 1 plaintiff was held in a cell w/o running water an[d] illegally
searched an[d] was subjected to cruel an[d] unusual punis[h]ment
citied [sic] in complaint. Compl. ECF No 13, pg 2
Fact 2 plaintiff was held in a cell for 9 days ag[a]inst will as cited in
plaintiff complaint. Compl. ECF No 13 pg, 3
Dkt. No. 43.
The plaintiff did not file a supporting brief, proposed findings of fact or
any supporting materials, such as answers to interrogatories, admissions,
declarations or affidavits, as required by Fed. R. Civ. P. 56 and Civil L. R. 56.
On September 29, 2016, three months after he filed his motion, he filed a brief
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in support of his motion and proposed findings of fact. Dkt. Nos. 61, 62. In
addition to filing these documents late, the plaintiff did not sign them, as
required by Fed. R. Civ. P. 11.
While the court does liberally construe a pro se plaintiff’s pleadings, “pro
se litigants are not entitled to a general dispensation from the rules of
procedure or court imposed deadlines.” Jones v. Phipps, 39 f.3d 158, 163 (7th
Cir. 1994). Both the court and the defendants provided the plaintiff with copies
of the applicable civil procedure and local rules. See Dkt. Nos. 36, 46. Despite
this, the plaintiff has failed to comply with the requirements of those rules. The
plaintiff’s failure to follow the rules of procedure for summary judgement leaves
the defendants without an adequate opportunity to defend against his motion.
The court will deny the plaintiff’s motion for summary judgment. The court will
consider his submissions as part of his response to the defendants’ motion for
summary judgment.
C. The Defendants’ Motion for Summary Judgment
The defendants base their motion for summary judgment primarily on
the argument that the named defendants were not personally involved in the
alleged violations of the plaintiff’s constitutional rights. For the reasons
explained below, the court agrees, and will grant the defendants’ motion for
summary judgment.
To prevail on a claim under 42 U.S.C. §1983, a plaintiff must
demonstrate, in part, that the defendant intentionally caused the alleged
deprivation of the plaintiff’s constitutional rights. See Donald v. Polk Cnty., 836

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F.2d 376, 379 (7th Cir. 1988). In other words, the particular defendant must
have caused or participated in the alleged violation. Hildebrandt v. Illinois
Dept. of Natural Resources, 347 F.3d 1014, 1039 (7th Cir. 2003).
Here, the defendants all have submitted declarations describing what, if
any, contact each of them had with the plaintiff during his incarceration.
According to those declarations, none of the defendants were personally
involved in deciding to (allegedly) improperly detain the plaintiff; none were
involved in forcibly medicating the plaintiff without his knowledge or
permission; and none were personally involved in allegedly subjecting him to
unconstitutional conditions of confinement by turning off the water in his cell.
See Dkt. Nos. 47 at 12-15; 45; 50; 52; and 53.
The plaintiff does not adequately rebut these assertions. In fact, the
plaintiff filed documents that support the defendants’ arguments that they
were not personally involved in the alleged violations.
For example, with regard to the plaintiff’s claim that he was improperly
detained, the plaintiff filed a document that indicates that Captain Howard
sent a verification request to the Chicago Police Department (the date on which
he made the request is blacked out). Dkt. No. 62-1 at 1. This document
indicates that the plaintiff was not arrested on local charges, and thus, by
implication, was being held pursuant only to the outstanding Chicago warrant.
Id. On June 28, 2012, the Chicago Police Department sent a notice to “H”
explaining that, while there was an outstanding warrant, they would not
extradite. Id. at 2. They stated, “Please do not hold subject for our department.”

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Id. A third document indicates that, on July 7, 2012, someone (the name is not
legible) alerted Lieutenants Rowe and Mullarky that the plaintiff never went to
intake and that, on June 28, 2012, the Chicago Police Department sent the
previously described notice to the Milwaukee Police Department. Id. at 3. The
document indicates that Rowe and Mullarky then approved the plaintiff’s
release. Id.
Similarly, in connection with his claim that he was forcibly injected with
medication against his will, the plaintiff filed a Correctional Health Services
Report completed by Beverly Felten, which indicates that the plaintiff “agreed to
take a shot to quiet the voices.” Id. at 4. The report goes on to state that a shot
of Haldol was immediately ordered. Id.
Finally, to support his conditions of confinement claim, the plaintiff filed
a meal log, which indicates that he consumed all but two meals from July 1,
2012, through July 5, 2012. Id. at 5. This document does not support the
plaintiff’s claim that the defendants denied him water. The defendants
submitted jail logs that indicate the plaintiff’s water supply in his cell was shut
off (it is unclear by whom) twice during his stay at the Jail, and they have
explained that the water was turned off for only brief periods of time to address
concerns of flooding. Dkt. No. 54-1 at 6. More to the point, the defendants’
declarations make clear that none of them made the decision to turn off the
plaintiff’s water, nor did the plaintiff complain to any of them about his need for
water. The plaintiff does not adequately rebut their declarations.

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Putting aside the question of whether the plaintiff’s documents support
his claims, one thing is clear: the documents support the defendants’
assertions that none of them were personally involved in the alleged violations.
Accordingly, the defendants are entitled to summary judgment.
That said, the court acknowledges, based on the documents filed by the
plaintiff, that he may have a viable claim against someone (most clearly in
connection with his allegations that he was improperly detained longer than he
should have been). Even the defendants acknowledge that the plaintiff appears
to have randomly picked names from the limited discovery provided to the
plaintiff by the Office of Corporation Counsel for Milwaukee County. Dkt. No.
47 at 12. Given that the plaintiff is pro se, and given that he now has the
benefit of additional discovery, the court will allow the plaintiff, if he so
chooses, to file an amended complaint that names the defendants who were
personally involved in the alleged violations of his constitutional rights. He
must file an amended complaint on or before February 10, 2017. If the
plaintiff does not file an amended complaint by the deadline, the court will
dismiss his lawsuit.
If the plaintiff decides to file an amended complaint, he must use the
enclosed form, and it must bear the docket number assigned to this case and
be labeled “Amended Complaint.” The amended complaint takes the place of
the prior complaint and must be complete in itself without reference to the
original complaint. See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist.
No. 84, 133 F.3d 1054, 1056-57 (7th Cir. 1998). In Duda, the appellate court

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emphasized that in such instances, the “prior pleading is in effect withdrawn
as to all matters not restated in the amended pleading[.]” Id. at 1057 (citation
omitted). If the plaintiff files an amended complaint, the court will screen it
pursuant to 28 U.S.C. §1915A.
III.

CONCLUSION
The court ORDERS that the plaintiff’s motion for summary judgment is

DENIED. Dkt. No. 43.
The court further ORDERS that the defendants’ motion for summary
judgment is GRANTED. Dkt. No. 46.
The court also ORDERS that, if the plaintiff wants to file an amended
complaint, he must do so on or before February 10, 2017. If the plaintiff does
not file an amended complaint by the deadline, the court will dismiss his
lawsuit without further notice or hearing based on the plaintiff’s failure to
diligently pursue his claims. See Civil L.R. 41(c).
The clerk of court will mail the plaintiff a blank prisoner complaint form
along with a copy of this order.
Dated in Milwaukee, Wisconsin this 29th day of December, 2016.

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