Fitzpatrick v. Verheyen et al
Filing
91
ORDER denying as moot 83 MOTION to Strike Plaintiff's Motion for Summary Judgment and Proposed Undisputed Facts, granting in part and denying in part 48 MOTION for Summary Judgment , granting 89 MOTION for Leave to File, granting 90 MOTION for Leave to File, denying 77 MOTION for Summary Judgment signed by Chief Judge William C Griesbach on 7/13/2018. (cc: all counsel and via US Mail to Dequarius Fitzpatrick)(Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEQUARIUS D. FITZPATRICK,
Plaintiff,
v.
Case No. 17-C-101, 17-C-102
SGT. VERHEYEN, et al.,
Defendants.
DECISION AND ORDER GRANTING-IN-PART AND DENYING-IN-PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff Dequarius Fitzpatrick, an inmate currently serving a state prison sentence at Green
Bay Correctional Institution (GBCI) and representing himself, filed this action under 42 U.S.C.
§ 1983, alleging that sixteen defendants1 were deliberately indifferent to a serious risk of harm to him
when he injured himself on August 31, 2016, and October 17, 2016.2 This matter comes before the
court on the defendants’ motion for summary judgment. ECF No. 48. Also before the court are
Fitzpatrick’s motion for summary judgment (ECF No. 77), the defendants’ motion to strike
Fitzpatrick’s summary judgment motion (ECF No. 83), and Fitzpatrick’s motions for leave to file
sur-replies to the defendants’ reply brief in support of their motion for summary judgment (ECF
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A seventeenth Defendant, John Kind, is also named on the docket. However, there is no
dispute that Fitzpatrick’s only claim against Kind was a conspiracy claim dismissed at screening.
Def.’s Proposed Findings of Fact (DPFOF) ¶ 14, ECF No. 49. Consequently, Kind will be dismissed
as a party, and this order will address only Fitzpatrick’s claims against the remaining sixteen
defendants.
2
Although Fitzpatrick originally filed separate suits regarding the August and October 2016
incidents, the court entered an order consolidating them at screening. ECF No. 12.
No. 89) and to the defendants’ reply to his response to their proposed statement of undisputed facts
(ECF No. 90). For the reasons stated below, the defendants’ motion for summary judgment will be
granted-in-part and denied-in-part, Fitzpatrick’s motions for leave to file sur-replies will be granted,
the defendants’ motion to strike will be denied, and Fitzpatrick’s motion for summary judgment will
be denied.
BACKGROUND
The following background facts are taken from the undisputed portions of the defendants’
proposed findings of fact. At all times relevant to this case, Fitzpatrick was an inmate in the
Restrictive Housing Unit (RHU) at GBCI, and each defendant was employed as either a correctional
officer, a sergeant, or a supervising officer on the RHU. Def.’s Proposed Findings of Fact (DPFOF)
¶¶ 1–3, ECF No. 49.
Around 11:00 a.m. on August 31, 2016, Fitzpatrick cut his arm open approximately 7 times
with a razor blade. Id. ¶ 36. It was the first time he had ever cut himself in prison. Id. ¶ 37. A
psychologist placed Fitzpatrick on observation status as a precautionary measure, and around 1 p.m.,
Fitzpatrick received treatment in the Health Services Unit (HSU). Id. ¶¶ 40–42. Treatment notes
from the HSU show that the cuts were “very superficial,” there was no “active bleeding,” and
Fitzpatrick was in an “agreeable” mood. Id. ¶¶ 41–42 (citing ECF No. 54-8 at 25–26). Although
no additional incident reports were recorded for Fitzpatrick on August 31, Defendant Michael
Verheyen did confiscate a razor from him around 4:30 p.m., at which time Verheyen observed blood
around one of Fitzpatrick’s wounds from earlier in the day. Id. ¶¶ 44, 68; see also Pl.’s Response
to DPFOF ¶ 68, ECF No. 82. Fitzpatrick alleges that Verheyen, as well as Defendants John Afolabi,
Shane Brunner, John Deidrick, Chris Delfosse, James Elsinger, Alexander Laplant, Alejandra Mejia,
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Julio Ramirez, and David Yang were all deliberately indifferent to the serious threat that he posed
to himself and failed to protect him from himself throughout the day.
Several weeks later, on October 17, 2016, Fitzpatrick cut himself with a disposable plastic
spoon shortly before 2:22 p.m. DPFOF ¶¶ 70, 74. Once again, he was placed on clinical observation
status and his wound was treated in the HSU. Id. ¶¶ 76–77. Progress notes from the HSU show
that, when he was treated at 2:30 p.m., his “pea sized” wound was not actively bleeding and could
be closed by 2 steri-strips. Id. ¶ 76 (citing ECF No. 54-8 at 23). During the 6 o’clock hour that
evening, Fitzpatrick reopened the wound and squeezed his arm to smear blood, culminating in a
6:55 p.m. return to the HSU, where his wound was cleaned, closed with 3 steri-strips, and covered
with gauze. Id. ¶¶ 88–89 (citing ECF No. 54-8 at 23–24). Fitzpatrick was returned to observation
status, and an officer observed that he was bleeding again as early as 10:05 p.m. Id. ¶¶ 91–92. This
time, his wound did not require treatment in the HSU, the wound was again closed with steri-strips,
and Fitzpatrick was placed in restraints. Id. ¶ 95; see also ECF No. 54-8 at 21. Similar to his claims
regarding the August 31 incident, Fitzpatrick alleges that Defendants Kyle Peotter, Darren Larkin,
Andrew Wickman, Michael Eichstedt, Raymond Koehler, Michael Schultz, and Alejandra Mejia were
all deliberately indifferent to the danger he posed to himself throughout the day on October 17.
Additional undisputed factual information regarding the actions of the individual defendants
will be set forth in greater detail as necessary as part of the analysis that follows.
LEGAL STANDARD
Summary judgment is appropriate when the moving party shows that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). All reasonable inferences are construed in favor of the nonmoving party.
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Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party opposing the motion for
summary judgment must “submit evidentiary materials that set forth specific facts showing that there
is a genuine issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (quoted
source and internal quotation marks omitted). “The nonmoving party must do more than simply
show that there is some metaphysical doubt as to the material facts.” Id. Summary judgment is
properly entered against a party “who fails to make a showing sufficient to establish the existence
of an element essential to the party’s case, and on which that party will bear the burden of proof at
trial.” Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012) (internal quotation
mark omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
ANALYSIS
I. Fitzpatrick’s Motions to File Sur-Replies
As a preliminary matter, Fitzpatrick has filed two motion seeking leave to file a sur-reply to
the defendants’ reply brief supporting their own motion for summary judgment (ECF No. 89) and
a sur-reply to the defendants’ reply to his response to their proposed statement of undisputed facts
(ECF No. 90). Consistent with Civil Local Rule 7(i), Fitzpatrick filed his proposed sur-reply briefs
simultaneously with his motions. Whether to grant a party leave to file a sur-reply brief is a question
within the court’s discretion. “The decision to permit the filing of a surreply is purely discretionary
and should generally be allowed only for valid reasons, such as when the movant raises new
arguments in a reply brief.” Merax-Camacho v. United States, 417 F. App’x 558, 559 (7th Cir.
2011) (citing Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 631 n.2 (7th Cir. 2010)).
“In some instances, allowing the filing of a surreply ‘vouchsafes the aggrieved party’s right to be
heard and provides the court with the information necessary to make an informed decision.’” Univ.
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Healthsystem Consortium v. UnitedHealth Grp., Inc., 68 F. Supp. 3d 917, 922 (N.D. Ill. 2014)
(quoting In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 320, 329 (N.D. Ill. 2005)). Fitzpatrick’s
motions for leave to file sur-reply briefs will be granted, as the proposed filings will assist the court
in evaluating his claims.
II. Deliberate Indifference
A plaintiff may prevail on a claim for relief under 42 U.S.C. § 1983 by showing that he was
(1) deprived of a federal right (2) by a person acting under color of state law. Gomez v. Toledo, 446
U.S. 635, 640 (1980). “[D]eliberate indifference to serious medical needs of prisoners constitutes
the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Chatham
v. Davis, 839 F.3d 679, 684 (2016) (alterations in original) (quoting Estelle v. Gamble, 429 U.S.
97, 104 (1976)). “ A prison official may be liable for deliberate indifference only if he ‘knows of and
disregards an excessive risk to inmate health or safety.’” Id. (quoting Farmer v. Brennan, 511 U.S.
825, 837 (1994)). “A § 1983 claim based upon a violation of the Eighth Amendment has both an
objective and a subjective element: (1) the harm that befell the prisoner must be objectively,
sufficiently serious and a substantial risk to his or her health or safety, and (2) the individual
defendants were deliberately indifferent to the substantial risk to the prisoner’s health and safety.”
Collins v. Seeman, 462 F.3d 757, 760 (7th Cir. 2006).
An inmate alleging deliberate indifference must “show that the defendants actually knew of
a substantial risk of harm to the inmate and acted or failed to act in disregard of that risk.” Walker
v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002). The Seventh Circuit has elaborated on the nature
of this high standard:
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Deliberate indifference requires a showing of “more than mere or gross negligence,
but less than the purposeful or knowing infliction of harm.” We have characterized
the required showing as “something approaching a total unconcern for [the
prisoner’s] welfare in the face of serious risks.” To establish deliberate indifference,
a plaintiff must present evidence that an individual defendant intentionally
disregarded the known risk to inmate health or safety. A defendant with knowledge
of a risk need not “take perfect action or even reasonable action[,] . . . his action
must be reckless before § 1983 liability can be found.”
Collins, 462 F.3d at 762 (citations omitted; alterations in original) (first quoting Matox ex rel. Matos
v. O’Sullivan, 335 F.3d 553, 557 (7th Cir. 2003); then quoting Duane v. Lane, 959 F.2d 673, 677
(7th Cir.1992); and then quoting Cavalieri v. Shepard, 321 F.3d 616, 622 (7th Cir. 2003)).
Seventh Circuit precedent also provides guidance for applying these standards in the context
of prisoners who harm themselves. “Where the harm at issue is a suicide or attempted suicide, the
second, subjective component of an Eighth Amendment claim requires a dual showing that the
defendant: (1) subjectively knew the prisoner was at substantial risk of committing suicide and (2)
intentionally disregarded the risk.” Id. at 761. For a prison official to satisfy the subjective
knowledge prong of this standard, “the official 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.”
Id. (quoting Estate of Novack ex rel. Turbin v. Cty. of Wood, 226 F.3d 525, 529 (7th Cir. 2000)).
This means that “the defendant must be cognizant of the significant likelihood that an inmate may
imminently seek to take his own life.” Id. The absence of a diagnosed mental illness that prompts
an inmate’s self-harming behavior is not fatal to a deliberate indifference claim in the self-harm
context. See Taylor v. Wausa Underwriters Ins. Co., 423 F. Supp. 2d 882, 889 (E.D. Wis. 2006)
(first citing Boncher ex rel. Boncher v. Brown Cty., 272 F.3d 484, 486 (7th Cir. 2001); then citing
Novack, 226 F.3d at 531–32). At the same time, “[p]redicting suicide is impossible,” and a prison
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official’s “[f]ailure to prevent a given suicide attempt does not necessarily show the lack of care.”
Myers v. Cty. of Lake, Ind., 30 F.3d 847, 851 (7th Cir. 1994).
Against this backdrop, the undisputed facts show that Fitzpatrick cannot succeed on the
majority of his deliberate indifference claims with regard to either the August 31, 2016 incident or
the October 17, 2017 incident. Regarding the August 31 incident, the undisputed facts show that
Fitzpatrick did not interact with six of the defendants until after he had received treatment for
harming himself, meaning he did not suffer from a serious medical need toward which they could
exhibit indifference. As for the four defendants with whom Fitzpatrick interacted before harming
himself, disputes of material fact exist only with regard to whether two—Brunner and
Ramirez—possessed the subjective knowledge necessary to be liable for deliberate indifference.
With regard to Fitzpatrick’s October 17 claim, the undisputed facts show that none of the seven
defendants exhibited subjective indifference towards a risk that he would harm himself.
A. The August 31, 2016 Incident
1. Interactions Prior to Fitzpatrick’s Injury
Prior to cutting his arm on the morning of August 31, Fitzpatrick interacted with four
defendants: John Afolabi, Shane Brunner, Alejandra Mejia, and Julio Ramirez. While Brunner and
Ramirez passed out breakfast trays that morning, Fitzpatrick told them that he wanted to speak with
the Psychological Services Unit (PSU) because he was having suicidal thoughts, and Ramirez
responded that PSU “is not here” as they continued on from his cell. DPFOF ¶¶ 20–21. Fitzpatrick
did not say anything to them when they picked up his tray 20 minutes later. Id. ¶ 22. When Brunner
and Ramirez returned to pass out lunch trays, Fitzpatrick again asked them to call PSU because he
was going to harm himself, to which Ramirez responded, “Don’t talk about it, be about it,” before
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continuing to pass out trays. Id. ¶¶ 33–34. They returned later to pick up Fitzpatrick’s lunch tray,
at which time Fitzpatrick told them that he had a razor blade, which he also showed to them, but
Brunner and Ramirez continued down the range to pick up trays from the other inmates. Id. ¶ 35.
Shortly afterwards, at approximately 11 a.m., Fitzpatrick covered the window to his cell and cut his
arm 7 times. Id. ¶ 36.
Also that morning, separate from breakfast and lunch tray distribution, Fitzpatrick pushed
the emergency call button in his cell approximately twenty times between 9:30 and 10 a.m. Id. ¶ 23.
Fitzpatrick believes that Mejia answered his call at 9:30 a.m. and that Afolabi answered it at 10:30
a.m. Id. ¶ 24. He told them both that he wanted to see the PSU and that he was feeling suicidal, but
he had not yet cut himself and he did not tell either of them that he had a razor. Id. ¶ 25. Moreover,
Fitzpatrick was not on any restrictions on August 31, meaning that it was not cause for alarm if he
possessed items like pen inserts, spoons, and plastic bottles that he could fashion into
instrumentalities to harm himself. Id. ¶ 28. Mejia instructed him to submit a PSU request slip, but
Fitzpatrick declined to do so because, he says, he did not feel like he would be alive in one or two
days when the PSU would finally be able to see him. Id. ¶ 27.
Based on those undisputed facts, no jury could reasonably find that Mejia or Afolabi
subjectively knew that Fitzpatrick was at substantial risk of harming himself that morning. Merely
informing them of his desire for services from the PSU was not enough to give either of them
subjective knowledge of a serious risk that Fitzpatrick would injure himself. Although Fitzpatrick
did also tell both Mejia and Afolabi that he was feeling suicidal, it is not uncommon for inmates to
ask to see PSU, threaten to harm themselves, say they are suicidal, and shout things at correctional
officers who are walking by their cells. DPFOF ¶¶ 11–15; see Collins, 462 F.3d at 761 (“[A] request
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to see a crisis counselor, standing alone, is not sufficient to put a defendant on notice that an inmate
poses a substantial and imminent risk of suicide.”). Given that Fitzpatrick had no history of actually
harming himself or any restrictions limiting the objects he could possess, the lack of response to his
statements, aside from Mejia’s instruction to fill out a PSU form, does not reflect deliberate
indifference. See Novack, 226 F.3d at 530 (“[S]trange behavior alone, without indications that that
behavior has a substantial likelihood of taking a suicidal turn, is not sufficient to impute subjective
knowledge of a high suicide risk to jail personnel.”). The defendants’ motion for summary judgment
will therefore be granted as to Mejia and Afolabi.
Considering the record in the light most favorable to Fitzpatrick as the non-moving party,
however, a dispute of material fact exists with regard to whether Brunner and Ramirez exhibited
deliberate indifference to a risk that Fitzpatrick posed to himself that morning. Not only did
Fitzpatrick tell them that he was feeling suicidal, he also states that told them that he possessed a
razor and actually showed it to them, indicating that they were subjectively aware that he possessed
an instrumentality that he could use to seriously injure or even kill himself. Indeed, Ramirez
seemingly went so far as, apparently, encouraging Fitzpatrick to harm himself when he said, “Don’t
talk about it, be about it.” Such a comment to an inmate who possesses a razor and says he is feeling
suicidal reflects a reckless attitude toward the threat that the inmate seemingly represents to himself.
Cf. Taylor, 423 F. Supp. 2d at 889 (“The idea that jail guards could intentionally stand by, or even
cheer, while an inmate who is under the stress of being accused of a crime and experiencing the pain
of separation from family and friends, as well as the fear, isolation and hopelessness that are
commonplace in prison, attempts to take his own life is shocking to any civilized person.”).
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Because a jury could reasonably conclude that Ramirez and Brunner were deliberately
indifferent to a serious risk of harm to Fitzpatrick, the defendants’ motion for summary judgment
will be denied as to them. And because a dispute of material fact exists as to the precise information
that Brunner and Ramirez possessed as to the extent of any threat that Fitzpatrick posed to himself,
Fitzpatrick’s motion for summary judgment will also be denied as to these two defendants.
2. Interactions After Fitzpatrick’s Injury
Fitzpatrick raises claims against an additional six defendants for their actions on August 31:
John Deidrick, Chris Delfosse, James Elsinger, Alexander Laplant, Michael Verheyen, and David
Yang. While Fitzpatrick was on observation status on the afternoon of August 31—meaning prison
staff were supposed to observe him at least every 15 minutes—Deidrick observed him on several
occasions, and there is no dispute that Fitzpatrick told him he was suicidal and possessed a razor
multiple times during those observations. DPFOF ¶¶ 46–50, 82. Also that afternoon, Fitzpatrick
interacted with Delfosse, Laplant, and Yang as they passed out clothes and towels as part of the
RHU’s shower process; he told all three of them that he felt suicidal, had a razor, and wanted to be
strapped down. Id. ¶¶ 54–57. Fitzpatrick interacted with Elsinger only once, around 3 p.m., when
he claims that he told Elsinger that he had a razor and actually showed it to him. Id. ¶ 65. As for
Verheyen, he responded to Fitzpatrick’s cell around 3 p.m. because Fitzpatrick was banging on his
door, and Fitzpatrick showed him the razor and asked to be strapped down. Id. ¶¶60–61. At some
point that afternoon, Verheyen returned to Fitzpatrick’s cell and demanded that Fitzpatrick give up
the razor; Fitzpatrick complied. Id. ¶ 68. Verheyen observed blood around one of Fitzpatrick’s
wounds from earlier in the day, which he believed occurred because Fitzpatrick had been picking at
it. Id. (citing ECF No. 54-15 at 2).
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Crucially, the blood from Fitzpatrick’s reopened wound, as observed by Verheyen, was the
only “harm” that followed Fitzpatrick’s interactions with any of these six defendants while on
observation status during the afternoon of August 31. Fitzpatrick does not dispute that when
Deidrick, Delfosse, Laplant, Yang, and Elsinger interacted with him, he was neither actively bleeding
nor cutting himself. Id. ¶¶ 50, 59, 65. The Seventh Circuit has acknowledged that a prison official’s
“[f]ailure to ‘dispense bromides for the sniffles or minor aches and pains or a tiny scratch or a mild
headache or minor fatigue . . . does not . . . violate the Constitution.’” Zentmyer v. Kendall Cty.,
220 F.3d 805, 810 (7th Cir. 2000) (last alteration in original) (quoting Cooper v. Casey, 97 F.3d
914, 916 (7th Cir. 1996)). The fact that Verheyen observed blood around Fitzpatrick’s wound later
in the afternoon does not mean that Fitzpatrick sustained a serious injury that renders these
defendants liable for deliberately failing to intervene to protect him from himself. To the contrary,
any bleeding from an existing wound was a de minimis “injury” that cannot provide the basis for a
deliberate indifference claim. See Cooper, 97 F.3d at 917 (observing that the first prong of the
deliberate indifference standard is met only if “the illness or injury for which assistance is sought is
sufficiently serious or painful to make the refusal of assistance uncivilized”). Fitzpatrick’s claims
against these six defendants will therefore also be dismissed.
B. The October 17, 2016 Incident
On October 17, 2016, Fitzpatrick harmed himself again shortly before 2:22 p.m., and he
brings claims against seven defendants for their alleged inaction before and after the incident: Kyle
Peotter, Darren Larkin, Andrew Wickman, Michael Eichstedt, Raymond Koehler, Michael Schultz,
and Alejandra Mejia.
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Considering first Peotter and Larkin, Fitzpatrick interacted with both during the medication
and breakfast passes on October 17, telling them that he wanted to see PSU. DPFOF ¶ 72. Both
said that they would let someone know about Fitzpatrick’s request, but they also both walked away
when Fitzpatrick asked if they had done so when they returned at lunch. Id. Although Fitzpatrick
did not have a weapon at the time that he saw them (he had not yet fashioned the spoon into a
weapon), he did say that he was about to cut his arm open. Id. ¶¶ 71–72. Nonetheless, these are
not facts from which a jury could reasonably infer that Peotter and Larkin were aware that
Fitzpatrick posed a substantial risk of serious harm to himself. They had no knowledge that
Fitzpatrick possessed the spoon or any other instrumentality that he could use to harm himself, and
he did no more than ask to speak with PSU staff. See Collins, 462 F.3d at 761. Moreover, to the
extent that Fitzpatrick said that he was feeling suicidal, Peotter also notified both his Sergeant, Mejia,
as well as a member of the PSU staff regarding Fitzpatrick’s desire to speak with PSU. DPFOF ¶ 73
(citing ECF No. 53 ¶¶ 8–10). Fitzpatrick’s claims against Peotter and Larkin will therefore be
dismissed.
Turning to Fitzpatrick’s claims against Wickman and Eichstedt, Wickman responded to
Fitzpatrick’s cell shortly after 2:30 p.m. Id. ¶ 75 (citing ECF No. 54-13 at 3). Around 2:22 p.m.,
a non-defendant received a call from Fitzpatrick’s emergency call button (for which the unit’s call
log says that Fitzpatrick stated, “I cut myself real bad”), and another non-defendant responded to
Fitzpatrick’s cell around 2:30 p.m., at which time the second non-defendant radioed for Wickman
to respond to Fitzpatrick stabbing his arm with the spoon. Id. Wickman called for immediate
medical attention, and Fitzpatrick was removed from his cell for treatment in the HSU. Id. ¶¶ 75–75.
Wickman also responded when Fitzpatrick reopened his wound at 6:03 p.m., and Fitzpatrick was
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removed from his cell for treatment by the HSU around 6:43 p.m. Id. ¶ 88. In the interim 40
minutes, Fitzpatrick squeezed blood out of his wound and spread it around the cell. Id. Both
Wickman and Eichstedt were present for Fitzpatrick’s examination by HSU staff, during which time
he said that he would hurt himself again if he were not strapped down in physical restraints. Id. ¶ 90.
Fitzpatrick raises two claims based on these interactions. First, he asserts that Wickman was
deliberately indifferent to his serious risk of harm to himself by delaying 40 minutes between when
he responded at 6:03 and when Fitzpatrick was removed from his cell at 6:43. But this delay was
consistent with GBCI policy prohibiting an individual officer from entering an inmate’s cell alone,
meaning Wickman and the security personnel needed time to assemble an entry team to ensure their
own safety and that of other inmates in the RHU. Id. ¶ 102. There is no dispute that Wickman acted
promptly to obtain medical care for Fitzpatrick earlier in the day, and Fitzpatrick’s vital signs were
all normal when he ultimately went to the HSU after the 6:03 incident (id. ¶ 89), indicating that any
injury from the reopened wound was not life-threatening during this second incident. Because
Fitzpatrick’s wound was not life-threatening, no reasonable jury could find that Wickman was
deliberately indifferent to Fitzpatrick’s needs by waiting to enter his cell until an extraction team was
ready.
Second, Fitzpatrick contends that Wickman and Eichstedt were deliberately indifferent by
failing to strap him down and physically restrain him after he reopened his wound at 6:03 p.m. Any
prison staff member may recommend that an inmate be placed on observation or, more seriously,
physical restraint, but only Psychologist Supervisors, Licensed Psychologists, Psychological
Associates, Crisis Intervention Workers, Physicians, and Wardens have the authority to order that
an inmate be placed on observation or restrained. Id. ¶ 80. Although Wickman and Eichstedt were
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present while Fitzpatrick was being treated by HSU staff after the 6:03 p.m. incident, they did not
have the authority to order that Fitzpatrick be placed in restraints. Id. ¶ 90. Indeed, a Licensed
Psychologist employed at GBCI opined that, based on the record, physical restraints were not
necessary for Fitzpatrick even after he reopened his wound at 6:03 p.m. Id. ¶ 86 (citing ECF No. 51
¶¶ 14). Wickman and Eichstedt could reasonably defer to that medical opinion. Askew v. Davis, 613
F. App’x 544, 548 (7th Cir. 2015) (citing King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012)).
What is more, Fitzpatrick was on observation status between the 6:03 p.m. incident and the 10:05
p.m. incident (DPFOF ¶¶ 77, 92 (citing ECF No. 54-7 at 2–4)), meaning Wickman and Eichstedt had
no reason to believe that he possessed an object that he could use to carry out his threats of harm
to himself, and they knew that other officers were watching him consistently. Fitzpatrick’s claims
against Wickman and Eichstedt will therefore also be dismissed.
Finally, Fitzpatrick had no more than incidental contact with Koehler, Schultz, and Mejia on
October 17, and no reasonable jury could find that any of their actions amounted to deliberate
indifference. A non-defendant correctional officer observed that Fitzpatrick had reinjured himself
at 10:05 p.m., but Koehler (the non-defendant officer’s supervisor) did not report to Fitzpatrick’s
cell to remove him for treatment until 10:50 p.m. DPFOF ¶ 94. Even assuming Koehler knew about
Fitzpatrick’s injuries that entire time, any deliberate indifference claim against him fails for the same
reason that Fitzpatrick’s delay claim against Wickman fails: institutional security concerns place
limits on an individual correctional officer’s ability to enter an inmate’s cell such that a delay in
providing treatment does not necessarily suggest deliberate indifference.
As for Schultz and Mejia, Fitzpatrick merely shouted to each of them as they were
completing other tasks on the unit. Before lunch that morning, while Schultz was delivering conduct
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reports to other inmates in the RHU, Fitzpatrick shouted at him, “Hey, I’m suicidal, I need to talk
to PSU, I’m going to harm myself.” Id. ¶ 96. Fitzpatrick did not yet have a weapon and was not
bleeding, but Schultz came over to Fitzpatrick’s cell and said, “Right now I’m handling a ticket, but
I’m going to let somebody know.” Id. ¶ 97. Later, when Fitzpatrick was in the strip cage after
harming himself, Schultz stopped by and said, “Fitzpatrick, why would you do this? I told you I was
going to—I told you I was going to handle it.” Id. ¶ 99. Around the same time as his initial
interaction with Schultz, Fitzpatrick shouted out to Mejia as she escorted another prisoner to a
conduct report hearing. Id. ¶ 103. He yelled that he was suicidal and wanted to talk to PSU; as she
continued on with the other inmate, Mejia responded that Fitzpatrick’s regular wing officers (Peotter
and Larkin) would handle it. Id. ¶¶ 103–04.
These incidental shouts to Schultz and Mejia as they passed by Fitzpatrick’s cell do not create
a basis for a deliberate indifference claim based on his subsequent harm to himself. In a noisy prison
environment, a prisoner’s shouts to a correctional officer passing by his cell do not provide that
officer with the subjective knowledge necessary to support a deliberate indifference claim. Cf. Burks
v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009) (“Burks’s view that everyone who knows about a
prisoner’s problem must pay damages implies that he could write letters to the Governor of
Wisconsin and 999 other public officials, demand that every one of those 1,000 officials drop
everything he or she is doing in order to investigate a single prisoner’s claims, and then collect
damages from all 1,000 recipients if the letter-writing campaign does not lead to better medical care.
That can’t be right.”). Furthermore, Mejia reminded Fitzpatrick of the proper officers to inform
about his concerns, and Schultz actually told Fitzpatrick that he would convey Fitzpatrick’s concerns
to appropriate individuals, indicating that neither Mejia nor Schultz exhibited complete disregard
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even for Fitzpatrick’s incidental shouts. The fact that Fitzpatrick harmed himself before Schultz
could help him does not convert Schultz’s delayed action into indifference. Fitzpatrick’s claims
against Mejia and Schultz will therefore also be dismissed.
CONCLUSION
For the foregoing reasons, the defendants’ motion for summary judgment (ECF No. 48) is
GRANTED-IN-PART and DENIED-IN-PART.
Defendants Verheyen, Afolabi, Deidrick,
Delfosse, Elsinger, Laplant, Mejia, Yang, Eichstedt, Peotter, Larkin, Koehler, Schultz, Wickman,
and Kind are all DISMISSED, but Fitzpatrick may proceed to trial on his claims against Defendants
Brunner and Ramirez. Fitzpatrick’s motions for leave to file sur-replies to the defendants’ reply brief
in support of their motion for summary judgment (ECF No. 89) and to the defendants’ reply to his
response to their proposed statement of undisputed facts (ECF No. 90) are both GRANTED.
Fitzpatrick’s motion for summary judgment (ECF No. 77) is DENIED. Because Fitzpatrick’s
motion for summary judgment is denied, the defendants’ motion to strike that motion as untimely
(ECF No. 83) is DENIED as moot. The Clerk is directed to set this matter for a telephone
conference to discuss scheduling a trial date.
SO ORDERED this 13th day of July, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
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