Motley v. Bredemann et al

Filing 46

ORDER signed by Judge Pamela Pepper on 7/29/2019. 19 Plaintiff's motion for summary judgment DENIED. 29 Defendant's motion for summary judgment DENIED. 44 Plaintiff's motion to strike DENIED. Court will recruit counsel for plaintiff. (cc: all counsel, via mail to Lavon Motley at Waupun Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

LAVON MOTLEY,
Plaintiff,
v.

Case No. 18-cv-33-pp

JOEL ROEKER,
Defendant.

ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 19), DENYING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 29) AND DENYING PLAINTIFF’S MOTION TO
STRIKE (DKT. NO. 44)

The plaintiff, representing himself, filed this lawsuit under 42 U.S.C.
§1983, alleging that the defendant violated his constitutional rights. Dkt. No. 1.
On February 15, 2018, the court issued a screening order, allowing the plaintiff
to proceed on a claim that the defendant was deliberately indifferent to his
medical needs after the defendant allegedly failed to address the plaintiff’s selfharm. Dkt. No. 9. On June 15, 2018, the plaintiff moved for summary
judgment. Dkt. No. 19. On September 17, 2018, the defendant moved for
summary judgment. Dkt. No. 29. During the briefing on the summary
judgment motions, the plaintiff also moved to strike Lucas Weber’s declaration,
stating that it was false. Dkt. No. 44. The court will deny all three motions.

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I.

SUMMARY JUDGMENT MOTIONS (DKT. NOS. 19, 29)
A.

Facts

At the time of the events he describes in the complaint, the plaintiff was
an inmate at Columbia Correctional Institution, and the defendant was a
correctional officer there. Dkt. No. 31 at ¶¶1-2.
1.

The Plaintiff’s Version of Events

The plaintiff alleges that on November 28, 2014, “around lunch time,” he
informed the defendant that he was going to cut himself.1 Dkt. No. 21 at ¶1;
Dkt. No. 20-2 at 10. The defendant allegedly told the plaintiff that hedidn’t
think the plaintiff was going to cut himself, then walked away. Id. The
defendant came back around 12:15 P.M. to hand out medication. Dkt. No. 21
at ¶2; Dkt. No. 20-2 at 10. The plaintiff once again told the defendant that he
was going to cut himself, and that either he needed to see the Psychological
Services Unit (“PSU”) or the defendant needed to call a “white shirt.” Id. The
plaintiff alleges that he also told the defendant that he needed to be placed in
observation. Id. The plaintiff asserts that the defendant “was still talking to [the
plaintiff] as if he didn’t believe him,” and left his cell for about two minutes.
Dkt. No. 21 at ¶2.

The plaintiff filed an inmate complaint (CCI #201423555) that was received
on December 1, 2014. The plaintiff attached the inmate complaint as an exhibit
to his brief in support of his summary judgment motion (Dkt. No. 20) and
incorporated it by reference into his Plaintiff’s Proposed Findings of Fact, so the
court has considered it because it is was incorporated into the complaint by
reference.
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The plaintiff says that he yelled down the hall to the defendant that he
needed his medication. Id. The defendant came back to the cell, and the
plaintiff cut open his left arm with a sharp metal object while the defendant
watched and in view of the cameras. Id.; Dkt. No. 20-2 at 10. The plaintiff
asserts that the defendant did nothing, leaving the plaintiff in his cell with an
open wound and the sharp metal object. Dkt. No. 21 at ¶4; Dkt. No. 20-2 at 10.
The plaintiff states that he gave himself a “deep puncture wound,” and that he
was bleeding and in pain. Dkt. No. 21 at ¶4; Dkt No. 20-2 at 11. He asserts
that he filed an inmate complaint; it appears that he signed it the day after the
incident, and that the prison staff received it the following day. Dkt. No. 21 at
¶7; see Dkt. No. 20-2 at 10. The plaintiff says that he was interviewed by staff
regarding the incident and that he gave a written statement, but that the “the
defendant’s seem to not have these records anymore.” Dkt. No. 21 at ¶10; Dkt.
No. 20 at 3.
2.

The Defendant’s Version of Events

The defendant says that when an inmate arrives at Columbia, he is given
a handbook that informs him that if he has an emergency requiring medical or
psychological staff, he must immediately alert unit staff. Dkt. No. 31 at ¶5. In
non-emergency situations, if an inmate wants to see a psychological services
clinician, he must fill out a “green slip” (a psychological services request). Id. at
¶6. The defendant states that inmates often request to see psychological
services clinicians, and when they do so, he instructs them to fill out a green
slip. Id. at ¶7. The defendant explains that when an inmate says he is going to
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harm himself or asks to be placed under clinical observation, the defendant
contacts a supervisor, medical services, or psychological services, depending on
what would best protect the inmate. Id. at ¶9. The defendant indicates that if
an inmate engages in self-harm, the psychological services unit would be
contacted, and there would be a note in the inmate’s psychological record. Id.
at ¶16. The defendant says he also would have contacted his sergeant or a
security supervisor and asked for help from medical or psychological staff, and
that the incident would have been documented in the unit logbook. Id. at ¶11.
The defendant says that if what the plaintiff alleges had occurred, the
defendant would have contacted a supervisor and asked for medical or
psychological services, and the incident would have been recorded in the unit
logbook. Id. The defendant states that the plaintiff never told the defendant
that he was thinking of hurting himself or that he needed to go on observation
status. Id. at ¶12. The defendant argues that that had the plaintiff cut himself
and bled, it would have been recorded in the unit logbook and someone would
have called an inmate worker to come clean the cell. Id. at ¶13. The defendant
asserts that there is no record of an inmate worker cleaning the plaintiff’s cell
on November 28, id. at ¶14, and there is no record of any activity regarding the
plaintiff in the unit logbook for that day, id. at ¶15.
The defendant also argues that the plaintiff’s psychological services file
does not contain any observation notes or clinical contact notes, does not
indicate that the plaintiff was in observation on November 28 and does not
indicate that the plaintiff harmed himself on that date. Id. at ¶¶16-18. The
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defendant notes that the plaintiff was seen at the PSU several times around
November 28, but that there is no mention of any self-harm taking place on
November 28. Id. at ¶¶19-20. The defendant also states that the plaintiff’s
health services unit file does not contain record of any injury from self-harm on
November 28, or a report of such an injury. Id. at ¶21. The defendant further
states that there was no evidence of any prison staff interviewing the plaintiff
regarding his complaint. Dkt. No. 42 at ¶10.
3.

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
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(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.

Analysis

The plaintiff claims that the defendant violated his Eighth Amendment
rights when he ignored the plaintiff’s threat of self-harm and did not seek
medical help for the plaintiff’s self-inflicted wound. The defendant claims that
the plaintiff never threatened to harm himself and did not harm himself. This is
a genuine dispute of a material question of fact, and the court will deny both
motions for summary judgment.
Under the Eighth Amendment’s cruel and unusual punishment clause,
prison officials “have a duty to ‘ensure that inmates receive adequate food,
clothing, shelter, and medical care.’” Estate of Miller, ex. rel. Bertram v.
Tobiasz, 680 F.3d 984, 989 (7th Cir. 2012) (quoting Farmer v. Brennan, 511
U.S. 825, 832 (1994)). The court considers both an objective and subjective
element to determine if a prison official failed that duty and violated an
inmate’s Eighth Amendment rights. Id. The inmate must have suffered “a
deprivation” that is “objectively, sufficiently serious.” Sanville v. McCaughtry,
266 F.3d 724, 733 (7th Cir. 2001). Also, “the mental state of the prison official

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must have been ‘one of deliberate indifference to inmate health or safety.’” Id.
(quoting Farmer, 511 U.S. at 832.)
There is a genuine dispute of material fact as to the first prong of the
deliberate indifference analysis—whether the plaintiff suffered an objectively
serious harm. The plaintiff alleges that he intentionally cut himself using a
sharp metal object, causing a “deep puncture,” an “open wound bleeding in
pain.” Dkt. No. 31 at ¶4; Dkt. No. 20-2 at 11. If the plaintiff’s claim is true, he
would have been at an objectively serious risk to his health and safety.
“Suicide, attempted suicide and other acts of self-harm clearly pose a ‘serious’
risk to an inmate’s health and safety.” Goodvine v. Ankarlo, 9 F.Supp.3d 899,
934 (W.D. Wis 2014) (citing Collins v. Seeman, 462 F.3d 757, 760 (7th Cir.
2006)).
The defendant says the plaintiff did not harm himself on November 28.
He asserts that there is no evidence in the prison records to support the
plaintiff’s claims, and argues that if there are no records, what the plaintiff
alleges could not have happened. The logic behind the defendant’s argument is
faulty. It does not absolutely follow that if there is no record of the plaintiff
cutting himself, the plaintiff did not cut himself. If, as the plaintiff alleges, the
defendant ignored the plaintiff’s self-harm, it makes sense that the defendant
would not have made a record in the logbook, would not have reported the
incident to anyone—would not have done anything that would have created a
record, and perhaps would have taken steps to destroy what records did exist.

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The defendant asserts that because the plaintiff has not offered any
evidence that he cut himself, he cannot show that he did so. But the plaintiff
has submitted some evidence. In his verified complaint, where he swore under
penalty of perjury that his statements are true and correct to the best of his
knowledge, the plaintiff swore that he’d harmed himself. He also attached and
incorporated by reference a contemporaneous record—Inmate Complaint CCI
#201423555 and the subsequent appeal. Dkt. No. 20 at 3; Dkt. No. 20-2 at 11;
Dkt. No. 21 at ¶4. Very near the time of the events he described, then, the
plaintiff made the same allegations he makes in his summary judgment
motion. At the summary judgment stage, a court treats a sworn complaint like
an affidavit. Bowers v. Pollard, 602 F.Supp.2d 977, 986 (E.D. Wis. 2009).
The plaintiff also properly supported his allegations in his proposed
findings of fact. Dkt. No. 21-1. The plaintiff cited to his verified complaint and
referenced an affidavit he drafted in support of his proposed findings of fact, in
accordance with Federal Rule of Civil Procedure 56(c)(1)(A). Dkt. No. 22-1. The
plaintiff’s story—that he seriously cut himself—is not blatantly contradicted by
the record, as the defendant argues in his supporting brief. Dkt. No. 30 at 6.
The plaintiff properly supported his version of events, so the court cannot
disregard it. See Scott v. Harris, 550 U.S. 372, 378-81 (2007). A reasonable
jury could believe either version of events, so there is a genuine dispute of
material fact as to whether the plaintiff suffered an objectively serious harm.
There also is a genuine dispute of material fact regarding the subjective
prong of the deliberate indifference standard. The plaintiff argues that the
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defendant was deliberately indifferent because the plaintiff told the defendant
that he was going to harm himself, and the defendant did nothing. Dkt. No. 21
at ¶1; Dkt. No. 20-2 at 10. He also asserts that after the defendant witnessed
the plaintiff cutting himself, the defendant again did nothing and walked away.
Dkt. No. 21 at ¶2; Dkt. No. 20-2 at 10. The defendant has not addressed this
prong, because he argues that the plaintiff never threatened to cut himself and
did not cut himself.
It is the role of a reasonable jury to decide whether it believes the
plaintiff’s version of events or the defendant’s. Summary judgment is not
appropriate, and the court will deny both motions.
II.

PLAINTIFF’S MOTION TO STRIKE LUCAS WEBER’S DECLARATION
(DKT. NO. 44)
In support of his reply brief, the defendant filed a sworn declaration from

Lucas Weber, security director at Columbia. Dkt. No. 39. The declaration is
short; it says that Weber could not find a referral form from the warden asking
Weber to investigate the plaintiff’s inmate complaint. Id. It also says that after
the plaintiff appealed the dismissal of the complaint, Weber told the deputy
warden that he didn’t think there was a need for further investigation. Id. The
plaintiff asks the court to strike the declaration, arguing that Weber must be
lying because he does not appear to be relying on any documentation; the
plaintiff asserts that it appears Weber claimed to remember all of this
information without the aid of any documentation. Dkt. No. 44 at 1.
The court will deny the plaintiff’s motion as moot. The court did not need
to consider the investigation of the inmate complaint to determine that there is
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a genuine issue of material fact as to whether the plaintiff suffered an
objectively serious harm. The court considered the inmate complaint only to
the extent that it is evidence supporting the plaintiff’s claim about what
happened on November 28, 2014. The appeal of the complaint and whether
Security Director Weber investigated the complaint is irrelevant to the question
of whether, as a matter of law, there are genuine disputes of material fact
about whether the defendant violated the plaintiff’s constitutional rights on
November 28, 2014.
III.

CONCLUSION
The court DENIES the plaintiff’s motion for summary judgment. Dkt. No.

19.
The court DENIES the defendant’s motion for summary judgment. Dkt.
No. 29.
The court DENIES AS MOOT the plaintiff’s motion to strike the
declaration of Lucas Webber. Dkt. No. 44.
The court will recruit a lawyer to represent the plaintiff. Once the court
has found an attorney willing to assist the plaintiff, it will send the plaintiff a
form to complete, indicating that he agrees with the representation and that he
agrees to reimburse any expenses from any award he might receive. Once the

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court receives that signed paperwork, it will set a hearing with the attorneys to
discuss scheduling.
Dated in Milwaukee, Wisconsin this 29th day of July, 2019.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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