Lampley v. Latour et al

Filing 55

ORDER signed by Chief Judge Pamela Pepper on 12/9/2019. 35 Defendants' motion for summary judgment GRANTED IN PART as to Kathy Lemens; defendant Lemens DISMISSED. 49 Plaintiff's motion for summary judgment DENIED. (cc: all counsel, via mail to Steven Lampley)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
STEVEN LAMPLEY,
Plaintiff,
v.

Case No. 17-cv-1132-pp

BRAD LATOUR, KATHY LEMENS,
and JOCELYN JOHNSON,
Defendants.
______________________________________________________________________________
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT (DKT. NO. 35), DENYING
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 49) AND
DISMISSING DEFENDANT KATHY LEMENS
______________________________________________________________________________
Plaintiff Steven Lampley is a former Wisconsin state prisoner who is
representing himself. He filed a complaint, alleging that the defendants acted
with deliberate indifference to the risk that he would attempt suicide in
violation of his rights under the Eighth Amendment to the United States
Constitution. Dkt. No. 1 at 2-5. The court allowed the plaintiff to proceed on
that claim. Dkt. No. 17. The defendants have filed a motion for summary
judgment, dkt. no. 36, as has the plaintiff, dkt. no. 49. The court will deny the
plaintiff’s motion and will grant in part and deny in part the defendants’
motion.
I.

Facts
The plaintiff was incarcerated at the Green Bay Correctional Institution

during the relevant period. See Dkt. No. 1. On the morning of June 4, 2017,
defendants Correctional Officer Jocelyn Johnson and Brad Latour were
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directed to move the plaintiff from a cell in the 500-wing of the Restrictive
Housing Unit to cell 231. Dkt. No. 37 at ¶1. The plaintiff testified in his
deposition that he had been purposefully getting conduct reports for some
time, and that he intended to serve out the remainder of his prison term in the
Restrictive Housing Unit. Id. at ¶2. He testified that although long-term
segregation could have an adverse effect on some inmates, it did not have that
effect on him because he wanted to be there. Id. at ¶3. The plaintiff further
testified that a staff member had promised him that he would be able to remain
in the 500-wing of the unit, which was a quieter unit. Id. at ¶4. The plaintiff
said that as soon as Johnson and Latour told him he was being moved to cell
231, he knew that this was part of a certain supervisor’s new plan to move all
inmates who were refusing to leave the unit to the same area. Id. at ¶5.
The defendants assert that it is “undisputed that Plaintiff told Johnson
and Latour, who escorted Plaintiff to his new cell, that he did not want to move
cells.” Id. at ¶6. He asked to speak with the sergeant, and he asked to speak
with staff from the psychological services unit. Id. at ¶7. Johnson notified the
sergeant on duty and psychological services staff member that the plaintiff
wanted to speak with them.1 Id. ¶¶7-8.
The parties dispute whether the plaintiff specifically told Johnson and
Latour he was “suicidal.” Id. at ¶9. In his deposition, the plaintiff said he told
The defendants’ proposed fact states that the “[d]efendants notified the
sergeant and psychologist who was working that day of Plaintiff’s requests.”
Dkt. No. 37 at ¶8. But the evidence cited (Johnson’s declaration) states only
that Johnson contacted the sergeant and psychological services staff member.
Dkt. No. 38 at ¶¶8-9.
1

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the officers that he “might commit suicide if you all put me up in here,”
meaning cell 231. Id. Johnson does not recall the plaintiff telling her on June
4, 2017 that he wanted to be placed on observation to avoid harming himself,
or stating that he was suicidal. Dkt. No. 38 at ¶6.
After Johnson notified the sergeant and psychologist of the plaintiff’s
request to speak with them, the plaintiff waited for the sergeant or psychologist
to show up so that he could talk to them about the cell transfer. Dkt. No. 37 at
¶23. The plaintiff fell asleep and later was told by other inmates that the
psychologist had come to the wing while the plaintiff was sleeping (but these
inmates supposedly told the plaintiff the psychologist had not stopped at the
plaintiff’s cell). Id.; Dkt. No. 39-1 at 64-66 (Lampley Dep.).
About forty-five minutes after the plaintiff was placed in his new cell,
Latour passed out nail clippers to inmates as part of his normal duties. Dkt.
No. 37 at ¶10. The plaintiff asked for nail clippers, and Latour gave him a pair.
Id. at ¶11. Latour then forgot to retrieve the nail clippers. Id. The plaintiff did
not tell Latour, or anyone else, that he had the nail clippers. Id. at ¶12. He
specifically talked with Latour the next day (June 5) about passing out nail
clippers—the plaintiff testified that he told Latour, who was a new employee at
the time, that he should pass out nail clippers later in the day when inmates
are less likely to be sleeping—but the plaintiff did not tell Latour he had
forgotten to collect clippers from the plaintiff. Id. at ¶13.
The above-described interactions with Johnson and Latour are the only
interactions between them and the plaintiff at issue in this case. Id. at ¶14.
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On June 6, 2017, the plaintiff told defendant Kathy Lemens, a nurse who
was doing rounds checking on inmates in the Restrictive Housing Unit, that he
needed to see a psychological services staff member. Id. at ¶15. Later that
night, the plaintiff used the nail clippers, which he still had, to cut his
forehead, chest, and arms. Id. at ¶16. He was pulled out of his cell and offered
medical attention. Id. at ¶17. Nursing staff cleaned the plaintiff’s wounds and
applied Band Aids to his arms. Id. The plaintiff did not need stitches or offsite
medical attention. Id. at ¶18. He then was placed on observation for one day.
Id. When the plaintiff said he was stable, he was released from observation. Id.
at ¶19.
At some point after the plaintiff cut himself, a lieutenant talked to him
and told him he would not be moved from cell 231. Id. at ¶20. The plaintiff
accepted this and, after he was released from observation, he served out the
remainder of his prison term in cell 231 without incident. Id. at ¶21. The
incident on June 6, 2017 is the only time during the plaintiff’s incarceration in
which he tried to harm himself or was placed on observation status. Id. at ¶22.
II.

Analysis
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.
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2011). “Material facts” are those under the applicable substantive law that
“might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A
dispute over a “material fact” is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be, 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.

Discussion
1.

Applicable Law

To prevail on a claim for deliberate indifference to a serious medical
condition, a prisoner must show that (1) he suffered from an objectively serious
condition which created a substantial risk of harm, and (2) the defendants were
aware of the risk and intentionally disregarded it. Collins v. Seeman, 462 F.3d
757, 760 (7th Cir. 2006). The Court of Appeals for the Seventh Circuit recently
reiterated that “the risk of suicide is an objectively serious medical condition,
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and it is well established that inmates have the right to be free from deliberate
indifference to this risk while in custody.” Lisle v. Welborn, 933 F.3d 705, 716
(7th Cir. 2019).
“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.” Lisle, 933 F.3d
at 716-17 (quoting Collins, 462 F.3d at 761). An official must be “aware of facts
from which the inference could be drawn that a substantial risk of serious
harm exists,” and the official “must also draw the inference.” Pittman ex rel.
Hamilton v. Cty. of Madison, Ill., 746 F.3d 766, 776 (7th Cir. 2014) (quoting
Higgins v. Corr. Med. Servs. of Ill., Inc., 178 F.3d 508, 511 (7th Cir. 1999)).
This showing requires “more than mere or gross negligence, but less than
purposeful infliction of harm.” Lisle, 933 F.3d at 717 (quoting Matos v.
O’Sullivan, 335 F.3d 553, 557 (7th Cir. 2003)).
2.

Analysis

The defendants contend that the plaintiff’s claims fail as a matter of law
under both the objective and subjective prongs of the Eighth Amendment
analysis. Dkt. No. 36 at 1-2. In response to the defendants’ summary judgment
motion, the plaintiff filed two documents titled motion for summary judgment.
Dkt. Nos. 46, 49. In the first document, the plaintiff contends that the
defendants’ failure to provide him with “supervisor and psychological attention”
for three days after he informed them that he felt suicidal “was absolutely an
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act of deliberate indifference.” Dkt. No. 46 at 1. In the second document, the
plaintiff contends that the court should grant his motion for summary
judgment and that the defendants clearly acted with deliberate indifference to
his rights. Dkt. No. 49 at 1.
a.

Objective Prong: Serious Medical Need

The defendants argue that the plaintiff cannot satisfying the objective
prong of an Eighth Amendment claim, based on the undisputed fact that he
engaged in self-harm because he did not want to move from the quiet 500-wing
to the noisier 200-wing of the Restrictive Housing Unit and because his selfinflicted cuts required only minor medical attention. Dkt. No. 36 at 5, 7. The
defendants characterize the plaintiff’s reason for self-harm as manipulative,
arguing that he said he might commit suicide only to prevent his movement to
a wing he didn’t want to be moved to. Even if the defendants are right about
the plaintiff’s motivation, a threat of self-harm or suicide is an indicator of a
risk and prison officials have a duty to prevent inmates from committing
suiciding and from attempting to commit suicide. See Estate of Hill v. Richards,
525 F. Supp. 2d 1076, 1083-84 (W.D. Wis. 2007) (citing Freeman v. Berge, 441
F.3d 543, 546 (7th Cir. 2006) (while there is no Eighth Amendment violation
for food deprivation when prisoner was denied food for refusing to comply with
rules regarding food delivery, it does not follow that a prison can allow a
prisoner to starve himself to death); Rodriguez v. Briley, 403 F.3d 952, 953 (7th
Cir. 2005) (“At some point, refusal to eat might turn suicidal and then the
prison would have to intervene.”).
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The defendants also point to the minor nature of the plaintiff’s injuries in
support of their argument that he did not have a serious medical need, and
they cite cases from this district in support of their argument. Specifically, in
Richter v. Vick, Case No. 17-C-1595, 2018 WL 6813927 (E.D. Wis. Dec. 27,
2018), Chief Judge William C. Griesbach found that the plaintiff had failed to
offer any evidence from which a reasonable jury could find that he suffered
from a serious mental health condition. Judge Griesbach stated that the
“undisputed evidence established that the plaintiff was simply engaged in drugseeking behavior and used his claim of mental illness and threats to harm
himself as the means of obtaining the kind and amount of the drug he was
seeking. . . . As a result, his superficial attempts to harm must be viewed as
nothing more than a ploy to accomplish his goal.” Id. at 8. While Judge
Griesbach viewed the plaintiff’s minor injuries to himself as confirmation that
the plaintiff was not serious about hurting himself, the plaintiff’s minor injuries
were not the sole basis for that conclusion. The defendants presented evidence
about the plaintiff’s propensity for falsely or grossly exaggerating his medical
complaints in order to receive a reward. The totality of the circumstances led
Judge Griesbach to conclude that no reasonable jury could find that the
plaintiff was ever actually at risk of seriously harming himself.
Similarly, in Lord v. Beam, Case No. 18-cv-351, 2019 WL 464138 (E.D.
Wis. Feb. 6, 2019), Judge J.P. Stadtmueller held that the evidence
demonstrated that despite the plaintiff’s claims to the contrary, no reasonable
jury could conclude that the plaintiff was genuinely suicidal at the time he
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threatened to harm himself. Id. at 3. Again, while Judge Stadtmueller
considered the severity of the plaintiff’s injuries to himself in concluding that
the plaintiff had no “real intention of seriously hurting himself” and “was
childishly seeking secondary gain,” the severity of his injuries was only one of
several factors that supported Judge Stadtmueller’s conclusion. Id.
The plaintiff in this case testified that on June 4, 2017 he told Johnson
and Latour that he “might commit suicide if you all put me up in here,”
meaning cell 231. Two days later, the plaintiff used the nail clippers that
defendant Latour had given him some forty-five minutes after the plaintiff
allegedly told Latour that he was suicidal to cut his forehead, chest and arms.
A reasonable factfinder could conclude that the plaintiff was at risk of
objectively serious harm when he told Johnson and Latour that he was
suicidal. See Lisle, 933 F.3d at 716; see also Sanville v. McCaughtry, 266 F.3d
724, 733 (7th Cir. 2001) (suicide or attempted suicide is objectively serious and
poses a substantial risk to health); Reed v. McBride, 178 F.3d 849, 852 (7th
Cir. 1999).
b.

Subjective Prong: Deliberate Indifference

The plaintiff claims that on June 6, 2017, he told Lemens that he needed
to see a psychological services staff member. This is the plaintiff’s only
purported interaction with Lemens and it does not demonstrate deliberate
indifference because there is no evidence showing that Lemens knew that the
plaintiff was suicidal. See Pittman, 746 F.3d at 777 (citing Collins, 462 F.3d at
761 (“[A] request to see a crisis counselor, standing alone, is not sufficient to
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put a defendant on notice that an inmate poses a substantial and imminent
risk of suicide.”)). Liability does not attach where “the defendants simply were
not alerted to the likelihood that [the prisoner] was a genuine suicide risk.”
Collins, 462 F.3d at 761 (quoting Boncher ex rel. Boncher v. Brown Cty., 272
F.3d 484, 488 (7th Cir. 2001)). The court will grant the defendants’ motion for
summary judgment as to defendant Lemens.
The defendants contend that the court should grant summary judgment
as to defendants Johnson and Latour because “when Plaintiff allegedly told
[defendants Johnson and Latour] he was suicidal, they undisputedly notified
the sergeant and psychologist that Plaintiff wanted to speak with them.” Dkt.
No. 36 at 8-9. According to the defendants, because “Johnson and Latour
notified other staff of the incident involving Plaintiff, summary judgment
should be granted in their favor.”2 Id. at 9.
In Collins, the Court of Appeals for the Seventh Circuit assumed that an
officer had a subjective awareness of an “imminent” threat to an inmate’s safety
when the inmate told the officer he wanted to see the prison counselor because
he was feeling suicidal. 462 F.3d at 761. The appeals court determined that
there was no evidence from which a jury could conclude that the officer
recklessly or intentionally disregarded a known risk of suicide because “the
evidence properly of record demonstrates that [the officer] immediately

Again, contrary to the defendants’ assertion that both Johnson and Latour
notified staff that the plaintiff wanted to talk with them, the record does not
reflect that defendant Latour notified anyone about the plaintiff’s interactions
with him and Johnson.
2

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informed the control room that [the inmate] had requested the assistance of a
crisis counselor and was ‘feeling suicidal.’” Id. at 762. The officer not only
relayed the request, but returned to the inmate’s cell and informed him that
the counselor had been called and would be there as soon as possible; he
received assurance from the inmate that he would be all right and could wait
until the counselor arrived and returned to the inmate’s cell a third time to
make certain that nothing was wrong. Id.
In this case, Johnson does not recall the plaintiff telling her that he was
suicidal. And while it is undisputed that she told the sergeant on duty and a
psychological services unit staff member that the plaintiff wanted to speak with
them, she did not tell them why he wanted to see them, i.e., that he was
suicidal. The parties’ dispute over whether the plaintiff told Johnson and
Latour that he was suicidal is material. If the plaintiff did not tell them, then
his remark that he wanted to talk to the sergeant and a psychologist after his
cell move is analogous to his statement to Lemens. See Pittman, 746 F.3d at
777 (citing Collins, 462 F.3d at 761 (“[A] request 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.”)). On the other hand, if the
plaintiff did tell Johnson and Latour that he was suicidal, they were arguably
aware of an imminent threat to the plaintiff’s safety. See Collins, 462 F.3d at
761. And while Johnson told a sergeant and a psychological services unit staff
member that the plaintiff wanted to speak to them, Johnson and Latour did
not report that the plaintiff felt suicidal. Cf. Collins, 462 F.3d at 761 (“inmates
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often request meetings with crisis counselors for reasons both serious and
mundane”). Not only did they not report it, but forty-five minutes after the
plaintiff allegedly said he was suicidal, Latour gave him a nail clipper and then
forgot to pick it up. Two days later, the plaintiff used the nail clipper to harm
himself.
The parties dispute whether the plaintiff told Johnson and Latour that he
was suicidal, and this dispute relates to a material fact. The court will deny
Johnson’s and Latour’s motion for summary judgment.
c.

Qualified Immunity

The defendants contend that they are entitled to qualified immunity. Dkt.
No. 36 at 8. The defendants advance this argument in support of the objective
prong of the Eighth Amendment claim. Specifically, they contend that it does
not violate an inmate’s Eighth Amendment rights, let alone his clearly
established rights, for an inmate to intentionally cause non-life-threatening
harm to himself simply because he is unhappy with a transfer to a new cell. Id.
Qualified immunity “protects government officials from suit for damages
when their conduct does not violate clearly established statutory or
constitutional rights.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Determining whether a state official is entitled to qualified immunity involves
two inquiries: “(1) whether the facts, taken in the light most favorable to the
plaintiff, make out a violation of a constitutional right, and (2) whether that
constitutional right was clearly established at the time of the alleged violation.”
Williams v. City of Chi., 733 F.3d 749, 758 (7th Cir.2013).
12

The defendants cite the above-referenced Richter and Lord cases, see
supra. at 8-9, in support of their qualified immunity argument. However, as
previously explained, these cases are distinguishable from the instant case. It
was well established in June 2017 that the risk of suicide was an objectively
serious medical condition under the Eighth Amendment. See Lisle, 933 F.3d at
716 (citing Estate of Clark v. Walker, 865 F.3d 544, 561 (7th Cir. 2017)
(inmate’s “right to be free from deliberate indifference to his risk of suicide
while he was in custody was clearly established at the time of his death in
2012”); Woodward v. Correctional Medical Servs. of Ill., Inc., 368 F.3d 917,
926–27, 929 (7th Cir. 2004) (jail managers would be guilty of deliberate
indifference if they took no precautions against the possibility of an inmate’s
suicide); Cavalieri v. Shepard, 321 F.3d 616, 623 (7th Cir. 2003) (“no doubt”
the right of an inmate to be free from deliberate indifference to his risk of
suicide was clearly established in 1998); Hall v. Ryan, 957 F.2d 402, 404-05
(7th Cir. 1992) (“It was clearly established in 1986 that police officers could not
be deliberately indifferent to a detainee who is in need of medical attention
because of a mental illness or who is a substantial suicide risk.”)). The
defendants are not entitled to qualified immunity.
d.

Summary

The court will grant the defendants’ motion for summary judgment as to
defendant Lemens. Because there is a dispute as to the material fact of
whether the plaintiff told Johnson and Latour that he was suicidal, such that
their subsequent actions constituted deliberate indifference to the plaintiff’s
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risk of suicide, the court will deny the motion for summary judgment as to
defendants Latour and Johnson. The court will deny the plaintiff’s motion for
summary judgment.
III.

Conclusion
The court GRANTS IN PART AND DENIES IN PART the defendants’

motion for summary judgment. Dkt. No. 35.
The court DENIES the plaintiff’s motion for summary judgment. Dkt. No.
49.
The court DISMISSES defendant Kathy Lemens.
The court will, by separate order, schedule a hearing to discuss next
steps.
Dated in Milwaukee, Wisconsin this 9th day of December, 2019.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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