Phillips v. Diedrick et al

Filing 23

ORDER granting 16 Motion for Summary Judgment. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

SYLVESTER T. PHILLIPS, JR.,
Plaintiff,
v.

Case No. 18-C-56

JOHN DIEDRICK,
Defendant.

DECISION AND ORDER

Plaintiff Sylvester T. Phillips, Jr., who is currently serving a state prison sentence at Green
Bay Correctional Institution (GBCI), filed this action pursuant to 42 U.S.C. § 1983, alleging that
Defendant John Diedrick was deliberately indifferent to Phillips’ threats of self-harm. Presently
before the court is Diedrick’s motion for summary judgment. Phillips has not responded to the
motion for summary judgment, and the time to do so has passed. For the following reasons,
Diedrick’s motion will be granted and the case will be dismissed.
BACKGROUND
Because Phillips did not respond to the motion for summary judgment, Diedrick’s proposed
findings of fact (ECF No. 18) are deemed admitted for the purposes of summary judgment. See
Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“[F]ailure to respond by the nonmovant as
mandated by the local rules results in an admission.”); Civil L.R. 56(b)(4) (“The Court will deem
uncontroverted statements of material fact admitted solely for the purpose of deciding summary
judgment.”). At all times relevant to this matter, Phillips was incarcerated at GBCI. Defendant
John Diedrick is employed by the Wisconsin Department of Corrections as a Correctional Officer
at GBCI.

Phillips has a history of using threats of self-harm to manipulate prison staff members. For
instance, Phillips has threatened self-harm when he did not get peanut butter, when “staff would not
turn on the Kansas City football game,” when he did not get a telephone call, and when he wanted
to see Health Services Unit staff. DPFOF ¶¶ 99–102. Phillips has admitted to medical staff that
he “enjoys” threatening self-harm or engaging in self-harm because “it amuses him to get people
riled up.” Id. at ¶ 106. Although Phillips threatens self-harm to get what he wants, he has never
engaged in more than superficial self-harm.
On October 9, 2017, Correctional Officers Diedrick and McDonough were assigned to work
the Restrictive Status Housing Unit (RHU). At 11:00 a.m., Diedrick conducted the medication pass
to inmates in RHU. During the medication pass, Phillips presented a small piece of razor blade,
smiled, and advised Diedrick that he was going to cut himself. In accordance with institution
protocol, Diedrick asked Phillips what prompted those thoughts and encouraged Phillips to hand
over any objects he had that could be utilized for self-harm. During this conversation, Phillips
explained that it was “easy to win money from the state” by engaging in self-harm and then filing
lawsuits. Id. at ¶ 22. After multiple attempts to retrieve the razor, Diedrick notified Sergeant
Koeller, who was only two cells away, of the situation. Koeller directed Diedrick to stay at the cell
front and monitor Phillips while Koeller informed Captain Van Lanen of the incident.
Diedrick remained in front of Phillip’s cell and monitored Phillips through the window on
the cell door. He continued to encourage Phillips to surrender the razor. Phillips told Diedrick
multiple times to just spray him with an incapacitating agent. Diedrick responded that he had no
reason to spray Phillips and that a supervisor would return shortly. Phillips then repositioned his
rubber mat on its side so he could sit behind it and obscure Diedrick’s view of him from his elbow
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down. Diedrick directed Phillips to move the mat and to show his arms. Phillips refused,
threatened to cut himself, and told Diedrick to spray him. For safety reasons, Diedrick did not enter
Phillips cell. Officers are trained to not enter an inmate’s cell without other officers available to
assist and maintain the safety of the officer in RHU. Instead, Diedrick opened the upper food port,
presented his Mark 3 OC streamer, a type of incapacitating agent, and directed Phillips to show his
arms. Phillips slouched behind the mat so that the spray would not be effective and lifted his hand
to show Diedrick that there was a small amount of blood on his fingers.
At approximately 11:30 a.m, Diedrick informed McDonough, who stood near the entrance
of the wing, that Phillips had cut himself. McDonough joined Diedrick at Phillips’ cell front and
witnessed Phillips sitting behind his mattress. McDonough monitored the cell door while Diedrick
retrieved the Mark 9 Phantom OC fogger from the control center and called on the radio for
additional staff to retrieve a camera and restraints. Phillips did not engage in any further self-harm
while Diedrick retrieved the fogger. Once Diedrick returned, McDonough left the cell front to
retrieve a set of wrist and ankle restraints. Diedrick opened the upper food port, presented the
fogger, and directed Phillips to show his arms. Phillips lifted his hands over the mat. Diedrick
noted there was blood on Phillips’ arm but the cut appeared superficial. Diedrick ordered Phillips
to come to the door to be restrained, and Phillips stated he would comply. Shortly thereafter,
Koeller returned to Phillips’ cell with Van Lanen and other staff members to secure and remove
Phillips from his cell and strap him into a restraint chair for the protection of both himself and
prison staff.
A nurse arrived after staff secured Phillips in the restraint chair. Phillips refused medical
assessment and received no treatment. Two days later, a nurse assessed Phillip’s lone wound and
noted a less than one-inch superficial laceration to his wrist and no active bleeding.
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LEGAL STANDARD
Summary judgment is appropriate when the moving party shows that there is no genuine
dispute as to any material fact and the movant is entitled to summary judgment as a matter of law.
Fed. R. Civ. P. 56(a). The moving party has the burden of showing that there are no facts to support
the nonmoving party’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All reasonable
inferences are construed in favor of the nonmoving party. 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) (citations omitted). “Material” means that
the factual dispute must be outcome-determinative under the law. Contreras v. City of Chicago,
119 F.3d 1286, 1291 (7th Cir. 1997). A “genuine” issue must have specific and sufficient evidence
that, were a jury to believe it, would support a verdict in the nonmoving party’s favor. Fed. R. Civ.
P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “The moving 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 marks omitted).
ANALYSIS
Phillips’ claim is predicated on the principle adopted by the Supreme Court in Estelle v.
Gamble that “deliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” 429 U.S. 97,
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104 (1976). This principle derives from the fact that “[a]n inmate must rely on prison authorities
to treat his medical needs; if the authorities fail to do so, those needs will not be met.” Id. at 103;
Farmer v. Brennan, 511 U.S. 825, 833 (1994). Phillips’ claim differs from those at issue in Estelle
and Farmer, however, in that the threat to his safety from which he claims Diedrick failed to protect
him was himself. Phillips asserts that Diedrick ignored his threats of self-harm, which resulted in
Phillips giving himself a superficial cut on his arm.
The Eighth Amendment prohibits “cruel and unusual punishments.” U.S. Const. amend.
VIII. It imposes a duty on prison officials to take reasonable measures to guarantee an inmate’s
safety and to ensure that inmates receive adequate care. Farmer v. Brennan, 511 U.S. 825, 832
(1994). A prison official’s “deliberate indifference” to a prisoner’s medical needs or to a substantial
risk of serious harm violates the Eighth Amendment. Id. at 828; Estelle v. Gamble, 429 U.S. 97,
104–05 (1976). This does not mean, however, that every claim by a prisoner that he has not
received adequate treatment states a violation of the Eighth Amendment. An inmate’s claim for
deliberate indifference must establish “(1) an objectively serious medical condition; and (2) an
official’s deliberate indifference to that condition.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir.
2012).
Prison staff certainly have a duty to prevent inmates from causing serious harm to
themselves. Pittman ex rel. Hamilton v. Cty. of Madison, Ill., 746 F.3d 766, 775–76 (7th Cir. 2014);
see also Taylor v. Wausau Underwriters Ins. Co., 423 F. Supp. 2d 882, 889 (E.D. Wis. 2006).
While prison staff are under an obligation to protect inmates from self-harm, “[a] risk of future harm
must be ‘sure or very likely’ to give rise to ‘sufficiently imminent dangers’ before an official can

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be liable for ignoring that risk.” Davis-Clair v. Turck, 714 F. App’x 605, 606 (7th Cir. 2018)
(quoting Baze v. Rees, 553 U.S. 35, 50 (2008) (Roberts, C.J., plurality opinion)).
Whether a sane person who intentionally harms himself in an effort to manipulate prison
authorities, or simply because he chooses to do so, should be able to hold prison guards or health
care workers liable for failing to stop him is an issue that has yet to be addressed by the Seventh
Circuit other than in dicta. See Freeman v. Berge, 441 F.3d 543, 546–47 (7th Cir. 2006). The rule
holding prison officials liable for the deliberately self-destructive acts of a sane inmate is
inconsistent with the basic principle of American jurisprudence that “absent serious mental illness
or other form of incapacity, a person has free will and is therefore responsible for his own
intentional acts.” Taylor, 423 F. Supp. 2d at 888 (citing Morissette v. United States, 342 U.S. 246,
250–51 (1952) (noting that mature legal systems envision “belief in freedom of the human will and
a consequent ability and duty of the normal individual to choose between good and evil”)). It also
empowers inmates to use the threat of self-harm to manipulate corrections staff and may encourage
the very behavior the rule is intended to prevent. See, e.g., Bowers v. Pollard, 602 F. Supp. 2d 977,
993 (E.D. Wis. 2009), aff’d 345 F. App’x 191 (7th Cir. Sept. 17, 2009) (comparing prison officials’
efforts to deal with self-destructive inmate to dilemma of facing hostage crisis where same person
is both victim and hostage); Goodvine v. VandeWalle, No. 16-C-890, 2018 WL 460121, at *8 (E.D.
Wis. Jan. 17, 2018) (“[T]he obligation to protect inmates like Goodvine who frequently proclaim
their intent to harm themselves places a heavy burden on prisons and their staff wh othen must take
action in order to avoid a claim that they were deliberately indifferent to the inmate’s welfare.”).
Notwithstanding these concerns, summary judgment in favor of Diedrick is appropriate because
there is no evidence that he was deliberately indifferent to Phillips’ needs.
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As an initial matter, Phillips has not established that he faced any serious harm or medical
need. A claim of deliberate indifference begins with an objectively serious medical condition. See
Gomez, 680 F.3d at 865. In this case, Phillips did not engage in self-harm that caused a serious
injury or presented a serious risk of suicide. Instead, he used a small razor to make superficial cuts
on his arm with the goal of initiating a lawsuit against GBCI officers. He ultimately refused
treatment for those cuts once he was restrained. Indeed, the superficial cuts or scratches on Phillips’
arm do not constitute an objectively serious medical condition. See Davis v. Jones, 936 F.2d 971,
972–73 (7th Cir. 1991) (noting that a one-inch cut to plaintiff’s temple was not sufficiently serious
under the Eighth Amendment); Williams v. Stauche, 709 F. App’x 830, 834 (7th Cir. 2017) (finding
that jail staff did not deprive a pretrial detainee of medical treatment for his single superficial cut
after an alleged assault); West v. Warnock, No. CV605-047, 2005 WL 2237609, at *3 (S.D. Ga.
Aug. 24, 2005) (“given Plaintiff’s apparent motivation and history of relatively minor acts of selfharm, it is not apparent to the Court that a known, substantial risk of truly serious harm exists in this
case”). Diedrick’s motion could be granted on this basis alone.
Even if Phillips had established an objectively serious medical need, he failed to demonstrate
that Diedrick was deliberately indifferent. Deliberate indifference requires more than negligence
or even gross negligence. It requires that Diedrick knew of, yet disregarded, an excessive risk to
Phillips’ health or safety. Farmer, 511 U.S. at 835; see also Estelle, 429 U.S. at 104–05. It is not
enough to show that prison officials merely failed to act reasonably. Gibbs v. Franklin, 49 F.3d
1206, 1208 (7th Cir. 1995). A defendant need not “take perfect action or even reasonable action . . .
his action must be reckless before § 1983 liability can be found.” Cavalieri v. Shepard, 321 F.3d
616, 622 (7th Cir. 2003). “A state officer is deliberately indifferent when he does nothing . . . or
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when he takes action that is so ineffectual under the circumstances that deliberate indifference can
be inferred.” Figgs v. Dawson, 829 F.3d 895, 903 (7th Cir. 2016) (internal citations omitted). In
this case, Diedrick was not deliberately indifferent to Phillips’ threats of self-harm. He immediately
notified his supervisor of Phillips’ threats, who then advised Captain Van Lanen. Diedrick then
stayed at Phillips’ cell-front as ordered and attempted to persuade Phillips into surrendering the
razor, while Phillips told Diedrick to spray him with an incapacitating agent. Once additional staff
arrived, the officers placed Phillips in a restraint chair to prevent serious harm. In short, Diedrick
acted reasonably to Phillips’ threats. Accordingly, Diedrick’s motion for summary judgment will
be granted.
CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment (ECF No. 16) is
GRANTED and the case is dismissed. The Clerk is directed to enter judgment accordingly.
SO ORDERED this 24th day of January, 2019.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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