Rivers v. Johnson et al

Filing 86

ORDER signed by Judge Pamela Pepper on 9/6/2019. 49 defendants' motion for summary judgment as to defendant Johnson DENIED. 82 Plaintiff's motion to submit proposed findings of fact GRANTED. Court will recruit lawyer for plaintiff. (cc: all counsel, via mail to Denzel Rivers at Waupun Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DENZEL SAMONTA RIVERS,
Plaintiff,
v.

Case No. 17-cv-1496-pp

DOYAL JOHNSON, et al.,
Defendants.
______________________________________________________________________________
ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO
DEFENDANT JOHNSON (DKT. NO. 49)
On June 6, 2019, this court partially granted the defendants’ motion for
summary judgment and dismissed the complaint against Defendant Loison Kast.
Dkt. No. 74. The court ordered that by July 12, 2019, defendant Doyal Johnson
must address the plaintiff’s assertion that Johnson had reason to know that the
plaintiff was at substantial risk of self-harm on April 20, 2017. Id. at 15-16. On
July 12, 2019, Johnson submitted a surreply and accompanying documents in
support. Dkt. Nos. 77-80. The plaintiff has replied to Johnson’s filings and filed
his own proposed findings of fact and accompanying documents. Dkt. Nos. 81-83.
The plaintiff styled his proposed findings of fact as a motion. Dkt. No. 82. The
court will grant the motion to the extent that it will review the plaintiff’s proposed
findings of fact and consider them in deciding the motion. The court will deny
Johnson’s motion for summary judgment. Dkt. No. 49.

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I.

Additional Facts
In its order granting summary judgment as to defendant Kast, the court

recounted the facts leading up to the events of April 20, 2017. Dkt. No. 74. The
court takes the additional facts in this section from the defendants’ supplemental
proposed findings of fact, dkt. no. 78, the plaintiff’s proposed findings of fact, dkt.
no. 82, and the parties’ declarations and other documents, dkt. nos. 79, 80-1,
81-1, 83.
A.

The Plaintiff’s Mental Health History

The plaintiff has been an inmate at Waupun Correctional Institution since
January 19, 2017. Dkt. No. 78 at ¶9. In June 2008, during an earlier period of
incarceration, the plaintiff was classified as “MH-0,” the lowest mental-health
classification, and he denied having a history of mental-health problems or
suicide. Id. at ¶33. In July 2014, he was re-classified as “MH-1” and diagnosed
with Adjustment Disorder with Depressed Mood, Mood Disorder and ADHD. Id. In
October 2016, he was reclassified as MH-2a. Id.
The plaintiff reported up to twenty “serious attempts” of suicide, but the
defendants indicate that some of his clinicians have noted that his self-reporting
has been inconsistent or not supported by his medical records. Id. at ¶34. The
plaintiff had two recent “serious” suicide attempts, one on August 3, 2014 at Fox
Lake Correctional Institution and one on October 4, 2016 at the Milwaukee
County Jail. Id. The plaintiff’s records indicate that in December 2016, the
plaintiff informed the psychiatric unit of his facility (not Waupun) that “he [was]
not suicidal and that he had secondary gain for his complaints of suicidality.” Id.
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at ¶35. In April 2017, while at Waupun, he reported having “chronic thoughts
and behaviors of cutting,” though he also “met the criteria for a specifier of
Malingering.” Id. at ¶¶36-37.
Johnson indicates that as of April 20, 2017, he had had little interaction
with the plaintiff and was unaware of his mental health status or any current or
past issues with his mental or physical health. Id. at ¶14. Johnson also asserts
that he did not have access to any inmate’s medical records. Id.
B.

Waupun Policy

According to Johnson, when an inmate at Waupun tells an officer he is
going to harm himself, or if the inmate is in the process of harming himself,
security staff notifies a supervisor over the radio and remains at the inmate’s cell
until assistance arrives. Id. at ¶31. If an inmate is having suicidal thoughts and
wants to speak with someone in the Psychological Services Unit (“PSU”), but does
not suggest he is going to harm himself or that he already has, the officer notifies
the supervisor (not necessarily via radio), and the supervisor notifies PSU or the
Health-Services Unit (“HSU”). Id.
C.

The Parties’ Versions of April 20, 2017

On April 20, 2017, the plaintiff was housed in the North Cell Hall, which is
a general population residence hall at Waupun. Id. at ¶15. Inmates whom
Waupun staff have deemed at risk of self-harm are placed on “Observation”
status and are not housed in the North Cell Hall. Id. Johnson asserts that he
“knew” the plaintiff was not on “heightened suicide” watch on April 20 because, if
he were, he would have been placed on observation and not housed in the North
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Cell Hall. Id. The plaintiff does not dispute that he was in general population on
April 20. Dkt. No. 82 at ¶2.
The parties differ in their version of other events of April 20. Johnson
contends that he first interacted with the plaintiff around 9:30 p.m., when he was
conducting institution count. Dkt. No. 78 at ¶21. He says that the plaintiff told
him that he was having thoughts of suicide and wanted to talk with PSU. Id. at
¶22. Johnson told the plaintiff he would notify the sergeant. Id. Johnson did not
see a sign on the plaintiff’s cell that said, “Call PSU.” Id. at ¶24. He says that the
plaintiff was not harming himself and did not tell Johnson he was going to harm
himself. Id. at ¶¶23, 25, 29. Johnson says that he “left immediately” to notify the
sergeant on duty. Id. at ¶25. A sergeant or other officer told Johnson that “they
were already aware of the situation” and had called HSU. Id. Johnson says that
the plaintiff notified him only once that he was feeling suicidal and that the
plaintiff did not communicate that he was intending to harm himself. Id. at ¶¶27,
32. Johnson did not believe that the plaintiff was expressing an intent to harm
himself—Johnson thought the plaintiff was informing him that the plaintiff was
thinking of suicide and wanted to speak to someone in PSU. Id. at ¶32. Johnson
says he did not believe that the plaintiff was in imminent danger. Id. Johnson
says if he had believed that the plaintiff was in imminent danger, he would have
radioed for assistance or waited at the plaintiff’s cell for assistance to arrive. Id.
Johnson says that he did not have another interaction with the plaintiff that
night. Id. at ¶28.
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The plaintiff states that the initial interaction between him and Johnson
took place at 9:00 p.m. and not 9:30 p.m. Dkt. No. 82 at ¶4. The plaintiff avers
that the “Call PSU” sign was in his cell window at that time. Id., ¶6. He states
that he was not placed on suicide watch or crisis until 10:00 p.m. that evening,
when Dr. K. DeBlanc placed him on Observation. Id. at ¶3. The plaintiff says that
when Johnson arrived to conduct institution count at 9:00 p.m., the plaintiff was
feeling suicidal and “was under Suicide Crisis.” Id. at ¶4. The plaintiff claims to
have interacted with Johnson three times: first during count around 9:00 p.m., a
second time when Johnson was passing out controlled medication from the
medication cart and a third time when Johnson was passing out non-controlled
medication. Id. at ¶¶7, 21. The plaintiff says that he told Johnson on all three
occasions that he was suicidal and told him during the second interaction that he
was about to cut himself. Id. at ¶22. The plaintiff says that after Johnson walked
away from the cell, the plaintiff cut himself and constructed a noose. Id. at ¶24.
He asserts that Officer C. Winters found the plaintiff bloody in his cell at 9:30
p.m. Id. at ¶23. The plaintiff alleges that Johnson did not return to the plaintiff’s
cell and did not assist other officers in responding to his self-harm. Id. Finally, he
says that Dr. DeBlanc classified the plaintiff as being a danger to himself and
placed him on clinical observation at 10:00 p.m. Id. at ¶25.
II.

Discussion
A.

Legal Standards

The court addressed the standard for granting summary judgment,
discussed the definition of a material fact, and reviewed the law for a claim of
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Eighth Amendment deliberate indifference in its previous order. Dkt. No. 74 at
4-5. It will not reiterate those standards here.
B.

Disputes of Material Fact

The court previously concluded that it had no evidence regarding the length
of plaintiff’s incarceration at Waupun, the history of the plaintiff’s suicide
attempts, Johnson’s knowledge of plaintiff’s mental health history, Johnson’s
familiarity with the plaintiff on April 20, 2017, whether the plaintiff was on
heightened observation on April 20 and whether Johnson knew if the plaintiff was
on heightened observation. Dkt. No. 74 at 15.
The new information provided by the parties shows that the parties do not
dispute that on April 20, 2017, the plaintiff was in the general population and, at
least as of 9:00 p.m., was not on heightened suicide watch or observation status.1
The parties do not dispute that Johnson conducted institution check in the North
Cell Hall where the plaintiff was housed. The parties do not dispute that Johnson
also conducted non-controlled medication pass (though they dispute whether
Johnson interacted with the plaintiff while passing out that medication). The
parties do not dispute that the plaintiff had a history of suicide attempts,
including two recent serious attempts, though those attempts occurred before he

Johnson may be incorrect about the precise time he conducted institution
count at the plaintiff’s cell. He contends it was at 9:30 p.m. But an incident
report from that evening shows that Officer Winters found the plaintiff with blood
on his forearms at 9:30 p.m. and had him transferred to a strip cell and placed on
observation status. Dkt. No. 81-1 at 6. There is no dispute that Johnson was not
present when other officers took the plaintiff to segregation and placed him on
observation status.
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arrived at Waupun. Johnson alleges that he did not know about the plaintiff’s
mental health history on April 20, 2017, and did not know on that date that
plaintiff was having a suicidal crisis.
But the new information also reveals several disputed questions of material
fact: Johnson says he spoke with the plaintiff only once, during institution count.
The plaintiff says they spoke three times. Johnson avers that there was no “Call
PSU” sign in the plaintiff’s cell. The plaintiff counters that there was. Although
the parties do not dispute that the plaintiff was having a suicidal crisis on April
20, Johnson alleges he was not aware that the plaintiff was having a crisis.
Johnson says the plaintiff told him he was having “bad thoughts” and asked to
speak with PSU. The plaintiff says he told Johnson not only that he was having
suicidal thoughts but also that he was about to harm or cut himself.
What the plaintiff told Johnson during their interaction (or interactions) is
important. If the facts are as Johnson alleges—that the plaintiff told Johnson only
that he was having suicidal thoughts and wanted to speak with PSU (and told
him only once)—then a reasonable jury could not conclude that Johnson
disregarded a substantial risk of harm to the plaintiff when he immediately
notified a sergeant what the plaintiff had told him, and the sergeant told Johnson
that they were aware of the issue. But the plaintiff alleges that he told Johnson
up to three separate times that he was having suicidal thoughts and that he was
going to cut himself. In that situation, a reasonable jury could conclude that
Johnson “(1) subjectively knew the prisoner was at substantial risk of committing
suicide[,] and (2) intentionally disregarded the risk” by walking away from the cell
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and not returning instead of doing more in that moment by, for example, radioing
for assistance and staying with the plaintiff at the cell until help arrived. Dkt.
No. 74 at 7 (quoting Collins v. Seeman, 462 F.3d 757, 761 (7th Cir. 2006)).
Whether Johnson followed Waupun protocol does not alone prove whether he
acted with deliberate indifference, but it is evidence that a jury may consider in
determining whether he disregarded a substantial risk to the plaintiff’s health or
safety.
Because these material facts are in dispute, the court will deny summary
judgment as to Johnson.
Because the plaintiff has a claim that has survived summary judgment, the
court will recruit counsel to represent him. Once the court has found a lawyer to
assist the plaintiff, it will send the plaintiff a representation agreement to sign
and return to the court. Once the court receives the signed representation
agreement, the court will set up a scheduling conference to discuss next steps.
III.

CONCLUSION
The court GRANTS the plaintiff’s request to submit his proposed findings of

fact. Dkt. No. 82.
The court DENIES Johnson’s motion for summary judgment. Dkt. No. 49.
Dated in Milwaukee, Wisconsin this 6th day of September, 2019.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge
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