Poventud v. Saldaris et al

Filing 63

ORDER signed by Magistrate Judge Nancy Joseph. IT IS THEREFORE ORDERED that Poventud's motion for judgment on the pleadings (Docket # 58 ) is DENIED AS MOOT. IT IS FURTHER ORDERED that Poventud's motion for summary judgment (Docket # 49 ) is GRANTED. (cc:all counsel and mailed to pro se parties)(rcm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ELIEZER A. POVENTUD,
Plaintiff,
v.

Case No. 18-CV-532

GAYLE S. SALDARIS,
Defendant.
DECISION AND ORDER ON PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
Eliezer A. Poventud is a Wisconsin state prisoner representing himself in this 42
U.S.C. § 1983 action. The Honorable Pamela Pepper, the judge to whom this case was
previously assigned, screened Poventud’s complaint and allowed him to proceed against
defendant Gayle S. Saldaris for violating his Eighth Amendment rights by allegedly sexually
assaulting him and against Angela Mink, also for violating his Eighth Amendment rights,
by allegedly failing to provide him psychological care. I previously granted summary
judgment for defendant Mink, so only defendant Saldaris remains. She is representing
herself.
Poventud filed a motion for summary judgment and, when Saldaris did not respond
properly to that motion, he filed a motion for judgment on the pleadings which I construed
as a motion to grant summary judgment as unopposed. I issued an order, requiring Saldaris
to respond by July 10, 2020. She has filed more materials in response. I will therefore deny
Poventud’s motion for judgment on the pleadings as moot given Saldaris’ updated response.

However, for the reasons explained below, I will grant Poventud’s motion for summary
judgment.
FACTS
As a preliminary matter, I note that Saldaris failed to respond to Poventud’s
proposed findings of fact. Civil Local Rule 56(b)(2)(B) requires a party who opposes a
motion for summary judgment to file “a concise response to the moving party’s statement of
facts” within thirty days of service of the summary judgment motion. In the event the
responding party disagrees with a proposed fact, she must also include “specific references
to the affidavits, declarations, parts of the record, and other supporting materials relied
upon.” Civil L.R. 56(b)(2)(B)(ii). I included this information and instructions on how to
comply with the rules in my order giving Saldaris a final opportunity to respond to
Poventud’s motion for summary judgment. (Docket # 59.) The courts in this District
routinely hold unrepresented parties to these rules.
During the pendency of the case, Saldaris has filed an “answer” of sorts to the
complaint (Docket # 22), a letter pointing out discrepancies between the criminal complaint
she was charged in and Poventud’s civil complaint (Docket # 23), and then, in response to
my order giving her a final chance to respond to summary judgment, another letter
explaining her delay and discussing Poventud’s allegations about his mental anguish and
suffering and prior mental health issues (Docket # 60). Despite being told how to present
her side with admissible evidence such as a declaration, Saldaris has not provided anything I
can consider as evidence for purposes of deciding summary judgment. And as for her
arguments about Poventud’s mental health, those arguments are a question of damages, not
liability. I will deem Poventud’s proposed findings of fact to be admitted for purposes of
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deciding the motion based on Saldaris’ failure to comply with the Local Rules or provide
any admissible evidence.
Between January and December 2014, Poventud was confined at Green Bay
Correctional Institution and Saldaris was employed there. (Plaintiff’s Proposed Findings of
Fact, Docket # 27 at ¶ 2.) Poventud worked in food service and Saldaris was his supervisor.
(Id. ¶ 3.) Between June and July 2014, Saldaris solicited Poventud to engage in sexual acts
in exchange for favors and contraband. (Id. ¶ 4.) These sexual exchanges and interactions
involved Saldaris promising Poventud she would bring contraband into the prison and help
out his mother if he cooperated with her sexual demands and requests. (Id. ¶ 5.) The sexual
encounters included Saldaris masturbating Poventud’s penis over and underneath his
clothes and sometimes resulted in him ejaculating. (Id. ¶¶ 6–7.) Saldaris did not wash her
hands when Poventud did ejaculate. (Id. ¶ 7.) Saldaris would pressure Poventud to
masturbate her vagina and allow her to fondle his genitals. (Id. ¶ 8.)
Prison officials and law enforcement investigated Saldaris and internal investigations
determined Saldaris sexually assaulted Poventud. (Id. ¶¶ 9–10.) Saldaris was later charged
with second degree sexual assault, fourth degree sexual assault, and “an additional offense”
in Brown County Circuit Court. (Id. ¶ 11.) Saldaris pled no contest to fourth degree sexual
assault, misconduct in public office, and delivery of a controlled substance. (Id. ¶ 12.)
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). “Material facts” are those under the
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applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477
U.S. at 248. The mere existence of some factual dispute does not defeat a summary
judgment motion. 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.
In evaluating a motion for summary judgment, the court must draw all inferences in
a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). However, when the nonmovant is the party with the ultimate burden
of proof at trial, that party retains its burden of producing evidence which would support a
reasonable jury verdict. Celotex Corp., 477 U.S. at 324. Evidence relied upon must be of a
type that would be admissible at trial. See Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.
2009). To survive summary judgment, a party cannot rely on his pleadings and “must set
forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248.
“In short, ‘summary judgment is appropriate if, on the record as a whole, a rational trier of
fact could not find for the non-moving party.’” Durkin v. Equifax Check Servs., Inc., 406 F.3d
410, 414 (7th Cir. 2005) (citing Turner v. J.V.D.B. & Assoc., Inc., 330 F.3d 991, 994 (7th Cir.
2003)).
ANALYSIS
The Eighth Amendment protects inmates from cruel and unusual punishment. U.S.
Const. amend. VIII. When it comes to physical contact between inmates and prison
officials, courts generally discuss how the Eighth Amendment protects inmates from
“excessive force.” The inquiry is whether the force used was used maliciously or sadistically
to cause harm rather than in a good faith attempt to maintain or restore discipline. Hudson v.
McMillian, 503 U.S. 1, 6–7 (1992). Stated another way, courts ask whether the force was
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used to advance a legitimate penological purpose. Wilkins v. Gaddy, 559 U.S. 34 (2010). But
in cases where the allegations are sexual in nature, examining the amount of force in the
broader context of the incident is not the proper inquiry. See Washington v. Hively, 695 F.3d
641, 643 (7th Cir. 2012) (“An unwanted touching of a person’s private parts, intended to
humiliate the victim or gratify the assailant’s sexual desires, can violate a prisoner’s
constitutional rights whether or not the force exerted by the assailant is significant.”).
Sexual contact will never serve a legitimate penological purpose—or maintain or
restore discipline. See Boddie v. Schnieder, 105 F.3d 857, 861 (2nd Cir. 1997) (“Moreover . . .
sexual abuse of a prisoner by a corrections officer has no legitimate penological purpose,
and is ‘simply not part of the penalty that criminal offenders pay for their offenses against
society.’”) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)); Thomas v. District of
Columbia, 887 F. Supp. 1, 4 (D. D.C. 1995) (“Unsolicited sexual touching, harassment, and
coercion are simply not part of the penalty that criminal offenders pay for their offenses
against society.”) (internal quotation omitted). So it is the fact of physical contact, then, that
is central to the inquiry when that contact is sexual in nature.
The uncontroverted evidence in this case is that during the months of June and July
2014, Saldaris made promises to Poventud of favors and contraband and taking care of his
mother to get him to engage in sexual acts with her. Sometimes she performed sex acts on
him, and sometimes she required him to perform them on her. The uncontroverted record
establishes that Saldaris violated the Eighth Amendment by touching Poventud in a sexual
manner (and requiring him to touch her in a sexual manner). Poventud is entitled to
summary judgment.

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Saldaris’ liability is established. What remains is the question of damages. I will
direct the Clerk of Court’s office to schedule a status conference to discuss next steps.
IT IS THEREFORE ORDERED that Poventud’s motion for judgment on the
pleadings (Docket # 58) is DENIED AS MOOT.
IT IS FURTHER ORDERED that Poventud’s motion for summary judgment
(Docket # 49) is GRANTED.
The Clerk of Court’s office is directed to schedule a status conference to discuss the
next step of determining damages.
Dated at Milwaukee, Wisconsin this 12th day of March, 2021.
BY THE COURT:

_________________________
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______________________
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NANCY JOSEPH
NANCY JOSEPH
AN
OS
OS PH
United St t M i t t J d
U it d States Magistrate Judge

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