Menting v. Humphreys et al

Filing 53

ORDER signed by Judge J.P. Stadtmueller on 6/14/2018: GRANTING 44 Defendant's Motion for Summary Judgment; DISMISSING with prejudice Plaintiff's Eighth Amendment claim regarding wheelchair use; DENYING as moot 49 Defendant's Motion to Dismiss for Failure to Prosecute; and DISMISSING CASE. (cc: all counsel, via mail to William J. Menting at Jackson Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIAM J. MENTING,
Plaintiff,
Case No. 16-CV-1540-JPS

v.

ORDER

BRIAN R. SCHMIDT,
Defendant.
1.

INTRODUCTION
Plaintiff William J. Menting (“Menting”), a prisoner, brought this

action against defendant Brian R. Schmidt (“Schmidt”), alleging that he was
deliberately indifferent to Menting’s serious medical conditions, in
violation of the Eighth Amendment. Specifically, Menting alleged that
beginning around mid-2013, while he was incarcerated at Kettle Moraine
Correctional Institution, Schmidt denied Menting a wheelchair (the
“wheelchair claim”) and prevented Menting’s meals from being delivered
to him in his cell (the “meal-delivery claim”). (Docket #1 at 4–6 and #1-6).
Menting alleged that both of these things were done in contravention of a
physician’s order. Id.
Schmidt filed a motion for partial summary judgment as to
Menting’s meal-delivery claim on the ground that Menting did not
properly exhaust his administrative remedies as to that claim. (Docket #23).
The Court granted that motion and dismissed Menting’s meal-delivery
claim from this lawsuit. (Docket #43). The Court then set a new dispositive
motion deadline for Menting’s remaining wheelchair claim. Id. at 5.

Now pending before the Court is Schmidt’s motion for summary
judgment as to Menting’s wheelchair claim. (Docket #44). Menting did not
file a response to Schmidt’s motion for summary judgment, and his time to
do so has long since passed. The Court could summarily grant Schmidt’s
motion in light of Menting’s non-opposition. Civ. L. R. 7(d). However, as
explained below, Schmidt also presents a valid basis for dismissing
Menting’s claim on its merits. For that reason, Schmidt’s motion must be
granted.1
2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides the mechanism for

seeking summary judgment. Rule 56 states that 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 Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016).
A “genuine” dispute of material fact is created when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court construes
all facts and reasonable inferences in a light most favorable to the nonmovant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir.
2016). In assessing the parties’ proposed facts, the Court must not weigh the
evidence or determine witness credibility; the Seventh Circuit instructs that

After Menting failed to file an opposition to Schmidt’s motion for
summary judgment, Schmidt filed a motion asking the Court to dismiss this
lawsuit for failure to prosecute. (Docket #49). As explained above, the local rules
allow for dismissal on that ground, but because Schmidt is entitled to dismissal on
the merits of Menting’s claim against him, the Court will grant Schmidt’s motion
for summary judgment and deny as moot his motion to dismiss for failure to
prosecute.
1

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“we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d
688, 691 (7th Cir. 2010).
3.

BACKGROUND
3.1

Menting’s Failure to Dispute Schmidt’s Proposed Facts

The relevant facts are undisputed because Menting failed to dispute
them. In the Court’s scheduling order, entered February 3, 2017, Menting
was warned about the requirements for opposing a motion for summary
judgment. (Docket #18 at 2–3). Accompanying that order were copies of
Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both of which
describe in detail the form and contents of a proper summary judgment
submission. In Schmidt’s motion for summary judgment, he too warned
Menting about the requirements for his response as set forth in Federal and
Local Rules 56. (Docket #44). Plaintiff was provided with additional copies
of those Rules along with Defendant’s motion. Id. at 3–12. In connection
with his motion, Schmidt filed a supporting statement of material facts that
complied with the applicable procedural rules. (Docket #46). It contained
short, numbered paragraphs concisely stating those facts which Schmidt
proposed to be beyond dispute, with supporting citations to the attached
evidentiary materials. See id.
In response, Menting filed absolutely nothing—no brief in
opposition, much less a response to the statement of facts.2 Despite being

Menting’s only filing since the date of Schmidt’s motion was a letter
asking this Court for advice regarding the procedure for an appeal. (Docket #50).
That letter is not responsive to Schmidt’s summary judgment motion. Further,
Menting’s inquiry about an appeal is premature, as his case had not yet terminated
with a final appealable order at the time he filed his letter seeking instruction
regarding an appeal.
2

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twice warned of the strictures of summary judgment procedure, Menting
ignored those rules by failing to properly dispute Schmidt’s proffered facts
with citations to relevant, admissible evidence. Smith v. Lamz, 321 F.3d 680,
683 (7th Cir. 2003). Though the Court is required to liberally construe a pro
se plaintiff’s filings, it cannot act as his lawyer, and it cannot delve through
the record to find favorable evidence for him. Thus, the Court will, unless
otherwise stated, deem Schmidt’s proposed facts undisputed for purposes
of deciding his motion for summary judgment. See Fed. R. Civ. P. 56(e); Civ.
L. R. 56(b)(4); Hill v. Thalacker, 210 F. App’x 513, 515 (7th Cir. 2006) (noting
that district courts have discretion to enforce procedural rules against pro se
litigants).
3.2

Relevant Facts

Menting lost part of his left leg as a result of a motorcycle accident in
2010, prior to his incarceration at Kettle Moraine Correctional Institution
(“KMCI”).3 As a result, he has a stump left leg and a prosthesis that he uses
to walk. Upon his arrival at KMCI in May 2014, Menting was assessed by
the prison’s Health Services Unit (“HSU”) medical staff. He was given
medical restrictions for a low bunk, first floor accommodations, and light
activity, but he was not deemed to require a wheelchair. Inmates at KMCI
are allowed to have a wheelchair only if HSU has approved such use based
on a determination that it is medically necessary.
Over the course of his stay at KMCI, from May 2014 to July 2015,
Menting was seen and treated by medical staff for various issues related to
his stump leg. In October 2014, a doctor at the prison entered an order

3

All factual discussion is drawn from Schmidt’s statement of proposed
facts. (Docket #46).

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allowing Menting to have either crutches or a walker, but not a wheelchair.
In the doctor’s medical opinion, it was not appropriate for Menting to use
a wheelchair because immobility inhibits circulation, and either crutches or
a walker were better options to enhance Menting’s circulation and keep
weight off his stump. Menting refused to use the crutches that the doctor
ordered.
At all times relevant, Schmidt was a correctional sergeant at KMCI.
Schmidt does not recall Menting ever telling him that he needed a
wheelchair. Schmidt also did not receive any written correspondence from
Menting wherein Menting asked for a wheelchair. Schmidt states that even
if Menting did ask him for a wheelchair, he could not have given one to
him, because Menting did not have wheelchair restriction documentation
from HSU at any time during his stay at KMCI. Instead, Schmidt states that
if Menting asked him for a wheelchair, Schmidt would have advised
Menting to contact HSU.
4.

ANALYSIS
Menting alleges that he told Schmidt he needed a wheelchair and

Schmidt refused to give him one in violation of Menting’s constitutional
rights. See (Docket #1 at 3–4, 10). Menting’s allegations implicate his Eighth
Amendment right to adequate medical care. Prison officials violate that
right if they exhibit deliberate indifference to an inmate’s serious medical
needs. Orlowski v. Milwaukee Cnty., 872 F.3d 417, 422 (7th Cir. 2017). To show
deliberate indifference, a plaintiff must prove that “(1) [he] had an
objectively serious medical condition; (2) the defendants knew of the
condition and were deliberately indifferent to treating [him]; and (3) this
indifference caused [him] some injury.” Gayton v. McCoy, 593 F.3d 610, 620
(7th Cir. 2010).
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With regard to the deliberate indifference prong, the plaintiff must
show that the defendant acted with the requisite culpable state of mind. Id.
This entails a showing that the defendant had “subjective knowledge of the
risk to the inmate’s health” and the defendant “disregard[ed] that risk.” Id.
In other words, the defendant “must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference. Even if a defendant recognizes the
substantial risk, he is free from liability if he responded reasonably to the
risk, even if the harm ultimately was not averted.” Id.
The undisputed facts demonstrate that Schmidt was not deliberately
indifferent to Menting’s medical need. Schmidt has testified that he does
not recall Menting ever telling him that he needed a wheelchair to
accommodate his stump leg, (Docket #47 at 5), and Menting has put forth
no evidence that Schmidt was aware that Menting needed a wheelchair.
Schmidt says that he knew Menting had a prosthetic leg, but based on his
observations, Menting was able to move around the unit without issue. Id.
Further, the medical staff at KMCI did not put a wheelchair
restriction in Menting’s file, indicating to correctional staff, including
Schmidt, that a wheelchair was not deemed medically necessary for
Menting. As a nonmedical prison employee, Schmidt was entitled to defer
to the judgment of prison medical professionals so long as he did not ignore
Menting. See Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011); Berry v.
Peterman, 604 F.3d 435, 440 (7th Cir. 2010). There is no evidence that Schmidt
ignored Menting’s plight.
Accordingly, Menting cannot show that Schmidt had “subjective
knowledge of the risk to [Menting’s] health.” Gayton, 593 F.3d at 620.

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Because this element of Menting’s claim is indisputably disproven, Schmidt
is entitled to judgment in his favor.4
5.

CONCLUSION
On the undisputed facts presented, summary judgment is

appropriate in Schmidt’s favor on Menting’s wheelchair claim. The Court
must, therefore, grant Schmidt’s motion for summary judgment and
dismiss this action.
Accordingly,
IT IS ORDERED that Schmidt’s motion for summary judgment as
to Menting’s Eighth Amendment claim regarding wheelchair use (Docket
#44) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Menting’s Eighth Amendment
claim regarding wheelchair use (Docket #8 at 4, 9) be and the same is hereby
DISMISSED with prejudice;
IT IS FURTHER ORDERED that Schmidt’s motion to dismiss for
failure to prosecute (Docket #49) be and the same is hereby DENIED as
moot; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED.
The Clerk of the Court is directed to enter judgment accordingly.

Schmidt also argues that Menting did not have a serious medical condition
because KMCI medical staff determined that Menting did not require a wheelchair
to accommodate his stump leg. (Docket #45 at 68). In light of Menting’s failure to
create a jury question on the deliberate indifference element of his claim, the Court
need not analyze Schmidt’s argument as to the seriousness of Menting’s medical
condition.
4

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Dated at Milwaukee, Wisconsin, this 14th day of June, 2018.
BY THE COURT:

____________________________
J. P. Stadtmueller
U.S. District Judge

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