Carter v. Department of Corrections et al

Filing 40

ORDER signed by Magistrate Judge William E Duffin on 9/26/2019. The plaintiff Doniel Carter's motion to amend his complaint (ECF No. 34 ) is DENIED. It is ORDERED that Defendants' unopposed motion to stay the case pending a decision on the motion to dismiss (ECF No. 30 ) is GRANTED. (continued below)... (cc: all counsel) (mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DONIEL CARTER,
Plaintiff,
v.

Case No. 18-cv-727

ERIKA WATSON, et al.,
Defendants.
ORDER AND RECOMMENDATION ON MOTION TO DISMISS
Before the court is Defendants Jason Medema and Michelle Klapper’s motion
to dismiss (ECF No. 27) and motion for a stay pending a decision on the motion to
dismiss (ECF No. 30). Plaintiff Doniel Carter, represented by counsel, does not oppose
the stay (ECF No. 36) but has filed a brief in opposition to the motion to dismiss (ECF
No. 35). Carter has also filed a motion to amend, to which he has attached a proposed
Third Amended Complaint. (ECF No. 34.)
Medema and Klapper assert that the Second Amended Complaint fails to
allege a basis for their liability on Carter’s Eighth Amendment claim that they were
deliberately indifferent to a substantial risk to his safety. (ECF No. 28 at 2.) They
contend that the Second Amended Complaint does not allege that they were aware
that Defendant Watson had sexually assaulted Carter. (Id.) Instead, they contend,
Carter alleges only that Medema and Klapper did not report Watson’s violation of a

prison policy, which does not state a claim under 42 U.S.C. § 1983 and does not
otherwise support Carter’s deliberate indifference claim against them. (Id. at 2, 5.)
In response, Carter asserts that the Second Amended Complaint provides
enough information to support an Eighth Amendment claim against Medema and
Klapper. (ECF No. 35 at 2.) Even if it does not, he contends, the attached Third
Amended Complaint provides the necessary factual support to state a claim. (Id. at
2–3.) Carter cites eight additional paragraphs in the Third Amended Complaint that,
he says, allege that Medema and Klapper “would have known exactly what Watson
was doing with Carter” when Watson had secluded Carter in a room and forced him
to perform sexual acts. (Id.) According to Carter, the Third Amended Complaint
“asserts that Defendants Medema and Klapper knew Watson was engaging in sexual
contact with Plaintiff Carter.” (Id. at 3.)
The defendants are correct that the Second Amended Complaint alleges only
that Medema and Klapper knew Watson was violating the prison’s fraternization
policy. It does not allege that they were aware of what Watson was doing with Carter
to violate the policy. According to Carter, the fraternization policy forbids a sexual
relationship between a staff employee and an offender. But he does not allege that
the policy applies only to sexual relationships. The Second Amended Complaint does
not allege that Medema and Klapper knew Watson was spending an inappropriate

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amount of time with Carter for the purpose of an illicit and harmful sexual
relationship. 1
The Third Amended Complaint purports to remedy this defect. Under Federal
Rule of Civil Procedure 15(a)(2), “[t]he court should freely give leave [to amend] when
justice so requires.” Unless there is an “apparent or declared reason” not to grant the
amendment, including “futility of the amendment,” the court should allow leave to
amend. Forman v. Davis, 371 U.S. 178, 182 (1962).
The Third Amended Complaint asserts that Medema and Klapper “knew that
Watson posed a substantial risk to Carter.” (ECF No. 34-1 at 16, ¶ 104.) According to
the Third Amended Complaint, “usually only three officers[,] including the
supervisor,” work a shift in Unit 10, where Watson is alleged to have secluded Carter.
(Id. at 7, ¶ 37.) Unit 10 is small, and only rooms with doors are not visible to the
officers from their station in the center of the room. (Id. at 7–8, ¶¶ 38–39.) Therefore,
if one staff member had an inmate in a secluded room, “[i]t would be impossible” for
the other staff members not to know that the third staff member had an inmate
secluded there. (Id. at 8, ¶ 40.) 2

Defendants point out in their reply that Medema asked Watson if Carter “was giving
her snitch information when they were conversing together.” (ECF No. 39 at 3 (citing
ECF No. 22, ¶ 71).)
1

This paragraph states that “the other three staff members” would know if “another staff
member has an inmate” in a secluded room. (Id.) This scenario presupposes four officers
working in Unit 10 at one time. But, as noted, the complaint alleges that only three officers
work in Unit 10 at a time. (Id. at 7, ¶ 37.) It is therefore unclear whether three or four
officers work in Unit 10 at the same time.
2

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The Third Amended Complaint alleges that a staff member “such as Klapper
and . . . Medema would also know that on many occasions there would have been no
legitimate purpose for Watson to have taken plaintiff Carter into one of these
secluded rooms.” (ECF No. 34-1 at 8, ¶ 41.) It further alleges that, “upon seeing
Watson taking Carter into one of the rooms and closing the door, the other defendants
would have known Watson posed a substantial risk to Carter.” (Id. at 9, ¶ 42.) But
the Third Amended Complaint does not allege that Medema or Klapper ever saw
Watson take Carter into one of the secluded rooms or that, if they did, they knew or
should have known that the only purpose for the seclusion was an illegitimate,
harmful sexual relationship. The Third Amended Complaint instead alleges only that
if Medema and Klapper were among the “other three staff members” that had seen
Watson take Carter into a secluded room, they would have known that she did so for
some unspecified illegitimate reason that posed a substantial risk to Carter.
This hypothetical scenario assumes several facts not alleged in the Third
Amended Complaint: that the three staff members working were Medema, Klapper,
and Watson (because allegedly only three worked at a time in Unit 10); these three
worked together on one of the “many occasions” when Watson secluded Carter in a
room; Medema and Klapper witnessed that seclusion; and they concluded that the
only purpose for the seclusion was to sexually harm Carter. Nor does the Third
Amended Complaint allege that Watson had a history of sexually abusing inmates,
as a result of which Medema and Klapper should have known that Watson might
seclude Carter for a harmful purpose. See Brown v. Budz, 398 F.3d 904, 909, 913 (7th

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Cir. 2005). At most the Third Amended Complaint implies that some staff members—
“such as,” but not necessarily, Medema or Klapper—would have known what Watson
was doing and that it posed a substantial risk to Carter.
The Third Amended Complaint does not sufficiently plead an Eighth
Amendment claim against Medema and Klapper. See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (explaining that, to survive a motion to dismiss, a complaint must allege
“more than a sheer possibility that a defendant has acted unlawfully”); Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (noting that the plaintiff’s “obligation to provide
the grounds of his entitlement to relief requires more than labels and conclusions”
(internal quotation marks and alteration omitted)). Because the proposed
amendment would be futile, the court will deny Carter’s motion to amend.
Neither the Second Amended Complaint nor the proposed Third Amended
Complaint cure the deficiencies in the claims against Medema and Klapper. These
defendants should be dismissed from this case. This court, however, does not have
the jurisdiction to dismiss parties to this action. The court, therefore, will refer this
matter to District Judge Pamela Pepper with my recommendation to grant Defendant
Medema and Klapper’s motion to dismiss them from this case.
IT IS THEREFORE ORDERED that Carter’s motion to amend his complaint
(ECF No. 34) is DENIED.
The court RECOMMENDS that the District Court grant Defendants Medema
and Klapper’s motion to dismiss (ECF No. 27).

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Carter is directed to 28 U.S.C. § 636(b)(1)(B) and (C) and Fed. R. Civ.
P. 72(b)(2), whereby written objections to any of the court’s recommendations to the
District Court may be filed within fourteen days of service of this recommendation.
Failure to file a timely objection with the District Court shall result in a waiver of his
right to appeal.
It is ORDERED that Defendants’ unopposed motion to stay the case pending
a decision on the motion to dismiss (ECF No. 30) is GRANTED. This case is stayed
pending written objections to the court’s recommendation to dismiss Defendants
Medema and Klapper and, if objections are filed, the District Court’s disposition of
the motion to dismiss and those objections. If no objections are filed within fourteen
days, the court will lift the stay and extend the deadlines for discovery and dispositive
motions with respect to the remaining defendants.
Dated at Milwaukee, Wisconsin this 26th day of September, 2019.

WILLIAM E. DUFFIN
U.S. Magistrate Judge

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