Carter v. Maher

Filing 71

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 1/11/2019. 49 Defendant's motion for summary judgment GRANTED. 56 Plaintiff's motion for summary judgment DENIED. (cc: all counsel, via mail to Tommie Carter)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TOMMIE L. CARTER,
Plaintiff,
v.

Case No. 17-cv-1297-pp

JUSTIN MAHER,
Defendant.
______________________________________________________________________________
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 49), DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 56) AND DISMISSING CASE
______________________________________________________________________________
The plaintiff, who is representing himself, filed this lawsuit under 42 U.S.C.
§1983, alleging that the defendant violated his constitutional rights. Dkt. No. 1.
On October 10, 2017, the court issued a screening order, allowing the plaintiff to
proceed on an Eighth Amendment deliberate indifference claim that defendant
Justin Maher failed to allow him access to his albuterol inhaler. Dkt. No. 10. On
June 29, 2018, the defendant filed his motion for summary judgment, dkt. no.
49, and the plaintiff filed his motion on July 11, 2018, dkt. no. 56. The court will
grant the defendant’s motion for summary judgment and deny the plaintiff’s
motion.
I.

RELEVANT FACTS
The court takes the relevant facts primarily from the plaintiff’s proposed

findings of fact, dkt. no. 59, and the defendant’s proposed findings of fact, dkt.
no. 51. The plaintiff was housed at Green Bay Correctional Institution at the time
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of the events that gave rise to this case. Dkt. No. 51 at ¶1. The defendant was
employed at Green Bay as a correctional officer during that time. Id. at ¶2.
On May 28, 2017, the defendant was working the Control Center in the
Restrictive Housing Unit. Id. at ¶4. Part of his duties while working in the Control
Center included using video cameras to monitor the unit’s operations; controlling
access to the unit; operating the automatic cell doors; safeguarding equipment;
and coordinating staff responses to situations that occurred on the unit. Id. at ¶5.
The defendant states that he was not allowed to leave the Control Room while on
duty. Id. at ¶6.
Neither party disputes that at 11:15 p.m., the plaintiff used the emergency
intercom system to contact the defendant to request his albuterol inhaler. Id. at
¶9; Dkt. No. 59 at ¶1. The plaintiff states that he also informed the defendant
that he was having an asthma attack, dkt. no. 59 at ¶1, but the defendant claims
that the plaintiff only requested his inhaler, dkt. no. 51 at ¶¶9-10. The defendant
indicates that under control center protocol, he notified the wing officer on his
radio that the plaintiff had requested his inhaler and that the plaintiff wanted the
supervisor to know of the request. Id. at ¶¶10, 13. According to the defendant,
because the guard on duty in the control center cannot leave his post, that guard
dispatches other unit officers—in this case the wing officer—to respond to
inmates emergencies. Id. at ¶13. The wing officer is responsible for taking any
additional measures to address the inmate’s concerns and to get the supervisors
involved. Id. at ¶¶11, 14.
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The plaintiff disputes that the defendant notified anyone that he needed his
inhaler. Dkt. No. 59 at ¶2. It is undisputed, however, that later in the evening, Lt.
Cushing, a unit supervisor who is not a defendant, checked on the plaintiff. Dkt.
58 at ¶17. The parties dispute what the plaintiff and Cushing discussed. The
defendant states that Cushing told the plaintiff that he would get the plaintiff’s
inhaler, but that the plaintiff told him not to. Dkt. No. 51 at ¶18. The plaintiff
contends that Cushing never said he would get the plaintiff’s inhaler and that he
was checking on the plaintiff because he thought the plaintiff was harming
himself. Dkt. No. 58 at ¶¶16-17. The plaintiff also disputes that he told Cushing
that he did not need his inhaler and asserts that he told Cushing about the
asthma attack, including the fact that he passed out and hit his head. Dkt. No.
58 at ¶¶ 18-20. According to defendant, the plaintiff never told Cushing about
passing out and hitting his head. Dkt. 51 at ¶19. Regardless, the defendant states
that after he involved the wing officer, he had no personal knowledge of what
happened between the plaintiff and unit staff who responded to the defendant’s
notification. Id. at ¶21. The defendant further states that the plaintiff never
notified him of the asthma attack, the fall or the head injury. Id. The plaintiff
contends that in addition to his original request for his inhaler, he used the
intercom again to inform the defendant of his asthma attack and hitting his head.
Dkt. No. 58 at ¶21.

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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 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 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).
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B.

The Court’s Analysis
1.

Deliberate Indifference to a Substantial Risk of Serious Harm
a.

Standard

The Eighth Amendment, made applicable to the States by the Fourteenth
Amendment, prohibits the “unnecessary and wanton infliction of pain.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976). Prison officials violate the Eighth Amendment
where they show “deliberate indifference” to a substantial risk of serious harm to
an inmate’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834-35 (1994). An
“objectively serious medical condition” can create a substantial risk of serious
harm to an inmate’s health or safety. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.
2011). A medical condition is objectively serious where it “has been diagnosed by
a physician as mandating treatment or one that is so obvious that even a lay
person would easily recognize the necessity for a doctor’s attention.” King v.
Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012) (internal citations omitted).
To determine whether a prison official was deliberately indifferent to an
objectively serious medical condition, the court must consider the prison official’s
subjective state of mind. See Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016).
To succeed in proving that an official acted with deliberate indifference, “a
plaintiff must provide evidence that an official actually knew of and disregarded a
substantial risk of harm.” Id. (emphasis in original). “It is well established that
‘showing mere negligence is not enough’ for a deliberate indifference claim.”
Chatham v. Davis, 839 F.3d 679, 685 (7th Cir. 2016) (quoting Petties, 836 F.3d at
728).
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b.

Substantial Risk of Serious Harm

Courts frequently have found that asthma is a serious medical condition.
See Gray v. Hardy, 826 F.3d 1000, 1006-07, (7th Cir. 2016); Chatham, 839 F.3d
at 684; Board v. Farnham, 394 F.3d 469, 484 (7th Cir. 2005). The court finds for
the purposes of this decision that the plaintiff’s asthma constituted a serious
medical condition.
c.

Whether the Defendant Knew the Plaintiff Was Having an
Asthma Attack

The parties dispute whether the defendant knew that the plaintiff was
having an asthma attack at the time the plaintiff contacted him and asked for the
inhaler. In his sworn affidavit, the defendant attests that he had no knowledge
about whether the plaintiff was actually having an asthma attack at the time the
plaintiff asked for the inhaler. Dkt. No. 52 at ¶10. He indicates that inmates
“often feign emergencies to get staff to come to their cells.” Id. The defendant
states that because he couldn’t leave the control center, it would have been the
responding officer’s job to check on the plaintiff. Id. In contrast, the plaintiff
attests, in his unsworn declaration filed under 28 U.S.C. §1746, that when he
first contacted the defendant on the intercom, he asked for his inhaler, “advising
[the defendant] that [he] was having an asthma attack and could not breathe.”
Dkt. No. 60 at ¶4. He asserts that the defendant “was placed on notice by [the
plaintiff] multiple times that [the plaintiff] needed [his] inhaler because [the
plaintiff] was unable to breathe and was having an asthma attack.” Id. at ¶15.

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d.

Whether the Defendant Notified Anyone that the Plaintiff
Had Asked for His Inhaler

Assuming, for the sake of this decision, that a jury were to resolve this
factual dispute in favor of the plaintiff and conclude that the defendant knew the
plaintiff was having an asthma attack at the time he first contacted the
defendant, the parties next dispute whether the defendant contacted anyone to
report that the plaintiff had asked for his inhaler.
i.

Facts from the defendant

The defendant swears in his affidavit that at 11:15 p.m. on May 28, 2017,
he documented in the log book that the defendant had asked for his inhaler. Dkt.
No. 52 at ¶7. The defendant attests in the affidavit that after recording that
information in the log, he “notified the wing officer on his radio that [the plaintiff]
requested his inhaler and wanted a supervisor to know.” Dkt. No. 52 at ¶8.
The defendant attached to the affidavit a page which he identified as
“Intercom Log.” Dkt. No. 52-1. The left side of the document is cut off—one can
see the digit “28” in the far-left column. In the column marked “Time” someone
wrote “11:15.” In the column marked “Cell,” one can see the number 536.1 In the
column for initials, one sees the defendant’s initials—“JM.” The next column
contains the following: “Inhaler?” There is something illegible in the next column
to the right. Id.

The plaintiff testified at his deposition that he was in Cell 536 that night. Dkt.
No. 53-1 at 8 (Tr. P. 32).
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1

The defendant also attached a document which he identified as “Unit
Logbook.” Dkt. No. 52-2. This document contains more detail. It recounts events
going on in the unit on May 28, 2017. There is a notation at “0005” that reads as
follows: “SGT Record: Usual meal questions [redaction] wants me to pass pictures
to [redaction]—No 536 CARTER says he wants his inhaler, talked to Lt. about it . .
. .” Id. at 1.
Finally, the defendant attached an affidavit from Cushing. Dkt. No. 54.
Cushing attested that he spoke with the plaintiff in his cell “late in the evening on
May 28, 2017, after being notified that he had requested his inhaler.” Id. at ¶6.
Cushing attested that he did not recall who told him that the plaintiff needed the
inhaler; it would have been one of the officers working on the wing. Id. Cushing
asserted that there had been a “mix-up” in the restrictive housing unit regarding
the plaintiff’s inhaler—the security staff thought he was medically restricted from
keeping his inhaler in his cell with him, but Cushing said there actually was no
such restriction. Id. at ¶8. Cushing says that when he learned that the plaintiff
wanted his inhaler, Cushing went to the plaintiff’s cell to explain the mix-up. Id.
He says that he offered to get the plaintiff’s inhaler for him, but that the plaintiff
“then stated he did not need it.” Id. Cushing also attested that the plaintiff didn’t
mention anything about passing out or hitting his head and did not appear to be
in medical distress. Id. at ¶9.
ii.

Facts from the plaintiff

The defendant provided the court with the transcript of the plaintiff’s
deposition, taken on May 22, 2018. Dkt. No. 53-1. The plaintiff testified at the
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deposition that he knew the defendant “did not call anybody because if he would
have called someone, they would have came to my door.” Dkt. No. 53-1 at 3 (Tr.
p. 10). He repeated this rationale several times, arguing to defense counsel that if
the defendant had told someone the plaintiff had asked for his inhaler, someone
would have come to the plaintiff’s cell.
Counsel then walked the plaintiff through everything he remembered from
that night. The plaintiff said that he pushed the intercom button, the defendant
answered, and the plaintiff “informed him that [the plaintiff] needed [his] inhaler
and [the plaintiff] was having difficulties breathing.” Id. (Tr. p. 12). The plaintiff
said no one came, so he pressed the button again; the defendant answered, no
one came. Id. He said that other inmates pressed the emergency button, because
the plaintiff told those other inmates he couldn’t breathe, but no one came. Id.
The plaintiff said that “early” the next morning, “like maybe one or two,” Cushing
came to the plaintiff’s door to ask what was going on, and the plaintiff told
Cushing that he needed his inhaler. Id. at 4 (Tr. p. 13). The plaintiff thought
Cushing came to his cell two and a half or three hours after he contacted the
defendant. Id. at 8 (Tr. pp. 31-32). According to the plaintiff, Cushing “said
nobody told him that [the plaintiff] needed [his] inhaler.” Id. The plaintiff testified
that he believed Cushing came to his cell because Cushing believed the plaintiff
might have been trying to harm himself. Id. at 6 (Tr. p. 24). The plaintiff testified
that, despite telling Cushing he needed the inhaler, he never received the inhaler
that night. Id.
9

Sometime the next morning, the plaintiff asked to see the Health Services
Unit, and he indicated that the unit did see him and give him an emergency
inhaler to have in his cell. Id. at 4 (Tr. pp. 13-14). He also told the HSU that he
had passed out and hit his head on the ground. Id. (Tr. p. 14). The plaintiff
indicated that when he passed out and hit his head, he got a “knot on the back of
[his] head.” Id. at 9 (Tr. p. 33); 4 (Tr. pp. 14-15).
At his deposition, the plaintiff testified that he never refused the inhaler.
Dkt. No. 53-1 at 4 (Tr. p. 13). He testified that he believed Cushing had
mentioned something to him about there having been a mix-up with his inhaler,
but he stated that he “believe[d]” that Cushing had mentioned that “[a]fter the
fact,” “a day or so later.” Id. at 7 (Tr. pp. 26-27). The plaintiff testified that
Cushing mentioned the mix-up only after the plaintiff had filed an inmate
complaint about the inhaler incident. Id. (Tr. p. 27).
The plaintiff reiterated in his unsworn declaration that the defendant “never
notified anyone that I needed my inhaler.” Dkt. No. 60 at ¶5. He asserts that the
defendant “never notified the range officer over the radio that [the plaintiff]
needed [his] inhaler,” and asserts that “[t]here is no documented evidence that
would support that [the defendant] notified anyone of the situation other than
word of mouth from [the defendant] himself.” Id. at ¶13. He asserts that the
defendant “did not notify the (John Doe or Jane Doe) wing officer that [the
plaintiff] requested [his] inhaler,” id. at ¶29, and claimed again that he told the
defendant “more than once” that he needed his inhaler, id. at ¶30.
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iii.

Comparison of the evidence

The defendant has provided three pieces of evidence to support his claim
that he told someone the plaintiff had asked for his inhaler: (1) his sworn
affidavit, (2) Cushing’s sworn affidavit (attesting that he went to the plaintiff’s cell
because someone had told him the plaintiff had asked for his inhaler), and (3) the
page from the unit log in which the defendant wrote that the plaintiff asked for
the inhaler and that the defendant “talked to Lt. about it.” The plaintiff has
presented one piece of evidence to support his claim that the defendant did not
tell anyone that the plaintiff had asked for his inhaler: his §1746 declaration.
That declaration matches the plaintiff’s testimony at his deposition (testimony
provided by the defendant). The record contains evidence supporting both
versions of events.
Standing alone, the fact that his own declaration is the only evidence the
plaintiff submitted does not mean that he cannot survive summary judgment.
The Seventh Circuit has held, more than once, that “a self-serving affidavit is an
acceptable method for a non-moving party to present evidence of disputed
material facts,” if that affidavit meets “the usual requirements for evidence
presented on summary judgment.” Payne v. Pauley, 337 F.3d 767, 773 (7th Cir.
2003); see also Widmar v. Sun Chemical Corp., 772 F.3d 457, 459-60 n.1 (7th
Cir. 2014). The question is whether the plaintiff’s declaration (and his deposition
testimony) meet those usual requirements, “including the requirements that [the
evidence] be based on personal knowledge and that [the evidence] set forth
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specific facts showing that there is a genuine issue for trial.” Id. They do not meet
those requirements.
The plaintiff’s insistence that he “knows for a fact” that the defendant did
not tell anyone he asked for his inhaler is not based on personal knowledge. The
deposition testimony shows that the plaintiff’s claim that he “knows” that the
defendant did not contact anyone is not based on his observations of the
defendant.
Defense counsel asked the plaintiff during his deposition whether, when
the intercom was not on, the plaintiff could hear conversations going on in the
bubble. Dkt. No. 53-1 at 3 (Tr. pp. 9-10). The plaintiff responded that he didn’t
know, that he wasn’t sure. Id. When defense counsel followed up by asking
whether the plaintiff heard the defendant do anything in response to the
plaintiff’s intercom call, the plaintiff responded, “Well, I can’t hear him doing
anything. I mean, as far as me seeing him, I didn’t see him do anything.” Id. (Tr.
p. 10). Defense counsel then asked, “But you don’t know whether he called
somebody, right?” Id. The plaintiff responded, “He did not call anybody because if
he would have called someone, they would have come to my door.” Id. Defense
counsel narrowed the question, asking, “You don’t know if he called somebody to
come to your cell based upon your intercom call, correct?” Id. The plaintiff
reiterated that if the defendant had called someone, someone would have come to
his cell. Defense counsel tried again: “[Y]ou don’t know whether he called
somebody or not. That person could have forgotten about it and not come to your
cell.” Id. The plaintiff responded, “No, that’s absolutely false. If he would have let
12

them know that Tommie Carter needed his inhaler, they would have absolutely,
100 percent for sure come to my cell door because they know my reputation.” Id.
When defense counsel asked the plaintiff whether there was any “possible way”
that the defendant could have relayed the information to anyone else, and the
information just got lost, the plaintiff responded, “I don’t believe he informed no
one.” Id. (Tr. p. 11). Defense counsel countered, “You don’t believe so but you
don’t know so, correct?” The plaintiff replied, “I don’t believe so, I don’t know so.
Again, if he had informed them, they would have came to my door.” Id.
Defense counsel then came at the issue from a different angle, asking
whether the plaintiff was in “the bubble” when the defendant received the
plaintiff’s intercom call. Id. The plaintiff responded, “I wasn’t in the bubble, I was
in my cell.” Id. The following exchange occurred:
Q:

And you can’t hear what’s going on in the bubble and who
[the defendant] talked to after your intercom call, right?

A.

Yeah, but that ain’t how it works, though. Because if he
would have talked to anybody, you would have heard the
door opening or he would have called on the little thing, it’s
like a PA system. He would have been like emergency in Cell
536 or 5 or whatever, whatever, you would have heard that
over the PA system and that did not happen.

Q:

Does it have to be over the PA system if somebody’s going
to use a personal radio?

A:

Well, it would be a misuse of the radio considering that
there was something that was allegedly going on at the time
with another inmate.

Id. (Tr. pp. 11-12).

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Toward the end of the deposition, the plaintiff again insisted that he
“[knew] for a fact that [the defendant] did not inform anybody that [the plaintiff
needed his] inhaler.” Id. at 8 (Tr. p. 35). This prompted the following exchange:
Q:

When you say you know for a fact he didn’t tell anybody,
that’s not accurate, is it? You weren’t in the room with
them, were you?

A:

No, no, no, no, no; see, you always trying to twist things. I
said I know for a fact that [the defendant] did not tell
anyone that I needed my inhaler. I know for a fact he didn’t
because if he would have told these people that Tommie
Carter, the so-called troublemaker, the so-called guy that’s
on a 60-day rotation for misbehaving, needed his inhaler,
they would have brung my inhaler. I know that were a fact.
I know you don’t know this but I do because you don’t deal
with these people every day, I do, not you.

Q:

Were you outside of your cell next to [the defendant] that
evening for the entire time between when you pressed the
intercom button and when you eventually spoke to
Lieutenant Cushing?

A:

I didn’t know you was a comedian. Are you being funny?

Q:

No, I’m asking you because you said you know for a fact.
But I’m going to argue on summary judgment that you are
speculating as to what Officer Maher did; you were not near
him.

A:

Well, you can do whatever you want. But I know for a fact
because if he would have informed this—where is the
evidence that he informed them, his word or mine? His
word?

Q:

Mr. Carter—

A:

I’m asking you a question.

Q:

—I’m not going to argue over this. This is a deposition, I get
to ask the questions. You have no personal knowledge of
what he did or did not do, so you cannot testify that he
didn’t do something when you weren’t there.
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A:

Sure.

Q:

I’m trying to establish you were not with [the defendant]
when he was making decisions and talking to people that
evening, correct?

A:

Once again, he did not inform nobody. Whether you want
to flip it and try to say he did or I don’t know, I’m using
common sense and logic common sense that he did not
inform no one because if he did, I would have got my
inhaler and we wouldn’t be sitting here going back and
forth, back and forth, you playing psychological games in
an attempt to try to create a story that doesn’t exist.

Q:

Mr. Carter—

A:

I can year you very fine.

Q:

—again, were you with [the defendant] from the time period
that you pressed your intercom button until you talked to
Lieutenant Cushing? Were you with him that entire period?

A:

That’s a stupid question because I just answered you; I was
in my cell.

Q:

Okay. So you were not with [the defendant], correct?

A:

No, I was not with him.

Q:

Okay.

Id. at 9-10 (Tr. pp. 35-37).
This testimony shows that the plaintiff could not have observed the
defendant at the time he contacted the defendant or in the minutes that followed.
The plaintiff admitted that he was in his cell and that the defendant was in the
control center. The plaintiff’s insistence that he “knows for a fact” that the
defendant did not contact anyone is not a fact. It is an inference he drew from a
fact and a belief: the fact that no one responded immediately to his request for an
15

inhaler and the belief that, based on his “reputation,” had the defendant informed
anyone about the plaintiff’s request, someone would have appeared at the
plaintiff’s cell immediately.
Perhaps the plaintiff did have a reputation at the facility. Perhaps, in the
past, when he’d requested medical help, he’d received it immediately. Perhaps the
plaintiff had reason to assume that, if the defendant had contacted someone to
report the plaintiff’s request, someone should have appeared quickly. But the
court has no evidence of any of that. The court can consider the plaintiff’s
declaration as evidence sufficient to create a genuine issue of material fact only if
is based on personal knowledge. His assertion that the defendant did not contact
anyone is not based on personal knowledge, and it is not sufficient to create a
genuine issue of material fact as to whether the defendant contacted anyone.
The only evidence before the court that meets the usual requirements for
evidence presented on summary judgment is the defendant’s evidence—his
affidavit (based on his own personal experience and knowledge) that he notified
someone about the plaintiff’s request, the unit log in which he wrote that he
notified someone of the plaintiff’s request and Cushing’s declaration (based on
Cushing’s personal knowledge) that he went to see the plaintiff because someone
had notified him that the plaintiff had asked for his inhaler.
The evidence showing that the defendant notified someone that the plaintiff
asked for his inhaler proves, as a matter of law, that the defendant was not
deliberately indifferent to the plaintiff’s serious medical risk. Even assuming the
plaintiff did tell the defendant that he was having an asthma attack and couldn’t
16

breathe, the defendant did something about it. He did not ignore the plaintiff. He
notified the wing officer. That is not deliberate indifference.2
2.

Qualified Immunity

The defendant also argued that he was entitled to qualified immunity. Dkt.
No. 50 at 8. Because the court grants summary judgment on the merits, the court
does not reach the qualified immunity argument.
III.

CONCLUSION
The court GRANTS the defendant’s motion for summary judgment. Dkt. No.

49.
The court DENIES the plaintiff’s motion for summary judgment. Dkt. No.
56.
The court DISMISSES this case and will enter judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment. See

The plaintiff disputed many other facts proposed by the defendant. He disagrees
that someone assigned to the bubble can’t leave it; he asserts that guards
assigned to the bubble (including the defendant) leave all the time to chat with
each other and at inmate’s cells and to do other things. He disputes the reason
for Cushing coming to see him. He disputes whether it was the wing officer’s
responsibility to check on inmates. He disputes whether the defendant should
have made sure someone came to the plaintiff’s cell immediately. He disputes
what should have been done about the “mix-up” regarding him having his inhaler
in his cell. These disputes are not relevant to the ultimate question of whether, in
this case, there is evidence to show that the defendant—who was undisputedly in
the bubble at the time of these events—contacted someone to report the plaintiff’s
request for an inhaler.
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2

Federal Rule of Appellate Procedure 3, 4. This court may extend this deadline if a
party timely requests an extension and shows good cause or excusable neglect for
not being able to meet the 30-day deadline. See Federal Rule of Appellate
Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or amend
its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from
judgment under Federal Rule of Civil Procedure 60(b). Any motion under Federal
Rule of Civil Procedure 59(e) must be filed within 28 days of the entry of
judgment. The court cannot extend this deadline. See Federal Rule of Civil
Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b) must
be filed within a reasonable time, generally no more than one year after the entry
of the judgment. The court cannot extend this deadline. See Federal Rule of Civil
Procedure 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 11th day of January, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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