Carter v. Department of Corrections et al

Filing 43

ORDER signed by Chief Judge Pamela Pepper on 12/4/2019. 40 Judge Duffin's recommendation ADOPTED. 27 Defendants Medema and Klapper's motion to dismiss GRANTED; defendants Medema and Klapper DISMISSED. 41 Defendant Watson's motion for extension of time GRANTED; discovery and dispositive motions deadlines EXTENDED to 2/13/2020. (cc: all counsel)(cb)

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

Case No. 18-cv-727-pp

ERIKA WATSON, et al.,
Defendants.
______________________________________________________________________________
ORDER ADOPTING JUDGE DUFFIN’S RECOMMENDATION (DKT. NO. 40),
GRANTING DEFENDANTS’ MOTION TO DISMISS PARTY AND DISMISSING
DEFENDANTS MEDEMA AND KLAPPER (DKT. NO. 27) AND GRANTING
DEFENDANT WATSON’S MOTION TO EXTEND DEADLINES (DKT. NO. 41)
______________________________________________________________________________
Plaintiff Doniel Carter filed an amended complaint, alleging that the
defendants violated his civil rights under the Eighth Amendment because they
were deliberately indifferent to defendant Watson’s sexual abuse of the plaintiff.
Dkt. No. 22. On February 19, 2019, the court referred this case to Magistrate
Judge William Duffin to handle pretrial matters. Dkt. No. 19.
The plaintiff named as defendants four officers, including Sergeant Jason
Medema and Correctional Officer Michelle Klapper. In the second amended
complaint, the plaintiff alleged that Medema and Klapper worked with Watson
at Fox Lake Correctional Institution in May 2012, while the plaintiff was an
inmate there. Dkt. No. 22 at ¶35. He says that the three officers worked on the
same shift on Unit 10, where the plaintiff also worked. Id. at ¶¶27, 35. The
plaintiff alleges that Medema and Klapper knew that Watson was improperly
fraternizing with the plaintiff in violation of prison policy but that they failed to
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report her conduct. Id. at ¶¶97, 99. He asserts that Medema and Klapper failed
to protect him from Watson and that as a result, Watson sexually assaulted the
plaintiff on several occasions. Id. at ¶100. The plaintiff alleges that Medema
and Klapper (as well as another defendant, Weidemann) violated the Eighth
Amendment in their alleged deliberate indifference to his unsafe conditions of
confinement. Id. ¶¶99–100.
On August 2, 2019, Medema and Klapper asked the court to dismiss
them as defendants. Dkt. No. 27. They asserted that the second amended
complaint fails to allege a basis for Eighth Amendment liability against them.
Dkt. No. 28 at 2. According to Medema and Klapper, the second amended
complaint alleges only that they failed to follow prison policy, which does not
amount to a constitutional violation under the Eighth Amendment. Id. at 5–6.
The defendants also have moved for a stay pending the outcome of their motion
to dismiss. Dkt. No. 30.
The plaintiff opposed the motion to dismiss, asking the court to allow
him to amend his complaint a third time. Dkt. Nos. 34, 35. He contended that
the second amended complaint sufficiently alleged a basis for Medema and
Klapper’s liability under 42 U.S.C. §1983. Dkt. No. 35 at 2. In the alternative,
the plaintiff provided a proposed third amended complaint, which contains
additional information that he says alleges a basis for holding Medema and
Klapper liable. Id. at 2–3; Dkt. No. 34 at 1–3.
Judge Duffin addressed the parties’ motions. Dkt. No. 40. He agreed
that, as the defendants had contended, the second amended complaint alleged
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only that Medema and Klapper violated the prison’s fraternization policy. Id. at
2. He also found that the second amended complaint did not allege Eighth
Amendment liability because it did not allege that Medema and Klapper knew
that Watson was harming the plaintiff when she and the plaintiff were alone
together. Id. at 2–3. Judge Duffin also explained that the proposed third
amended complaint did not cure these deficiencies, finding that at best it
presented a “hypothetical scenario” that assumed several facts that the plaintiff
had not alleged in his complaints. Id. at 3–5. Because he concluded that
neither amended complaint sufficiently pled an Eighth Amendment claim
against Medema and Klapper, Judge Duffin denied the plaintiff’s motion to
amend the complaint and recommended that this court grant Medema and
Klapper’s motion to dismiss. Id. at 5. He also granted the defendants’ motion
for a stay pending this court’s decision on the motion to dismiss. Id. at 6.
The plaintiff did not object to Judge Duffin’s recommendation that this
court dismiss Medema and Klapper. If a party does not object to a magistrate
judge’s recommendation on a dispositive motion, this court reviews the
magistrate judge’s recommendation for clear error. Johnson v. Zema Systems
Corp., 170 F.3d 734, 739 (7th Cir. 1999).
Judge Duffin’s conclusion that the second amended complaint does not
state an Eighth Amendment claim against Medema and Klapper is not clearly
erroneous. The complaint alleged only that Medema and Klapper worked with
Watson and saw her spend a significant amount of time talking with the
plaintiff. Dkt. No. 22 at 10–11 (emphasis added). But nothing in the second
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amended complaint suggests that they knew that Watson was sexually
assaulting the plaintiff or that he faced a substantial risk of serious harm from
her. At best, the allegations suggest that Medema and Klapper were aware that
Watson was violating prison policy by spending so much time with the plaintiff.
As Judge Duffin concluded, violating a prison policy does not create liability
under the Eighth Amendment. Dkt. No. 40 at 2; see Estate of Simpson v.
Gorbett, 863 F.3d 740, 746 (7th Cir. 2017).
The proposed third amended complaint did not provide additional facts
to show that Medema and Klapper were aware of, and disregarded, a risk to the
plaintiff’s safety. It recounts possible scenarios, not facts. Judge Duffin
appropriately refused to allow the plaintiff to amend for the third time, because
the proposed third amended complaint would not have stated a claim any more
than the second amended complaint did.
The court noted earlier that the defendants filed a motion to stay the
case pending a decision on the motion to dismiss. Dkt. No. 30. In his order
recommending that the court grant the motion to dismiss, Judge Duffin
granted the motion to stay and ordered the case 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 these objections.” Dkt. No. 40 at 6. Judge Duffin
provided that if there were no objections, “the court will lift the stay and extend
the deadlines for discovery and dispositive motions with respect to the
remaining defendants.” Id. There were no objections, but Judge Duffin has not
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yet lifted the stay. On November 15, 2019, however, defendant Watson asked
the court to extend the deadlines for completing discovery and filing dispositive
motions. Dkt. No. 41. She noted that under the original scheduling order,
discovery was to be completed and dispositive motions filed by November 15,
2019. Id. at 1. She asks to extend the deadline to February 13, 2020. Id. at 2.
Because Judge Duffin has not lifted the stay, the court doesn’t think
Watson’s motion was necessary. Nonetheless, the court will grant the motion,
and extend the deadlines as requested.
The court ADOPTS Judge Duffin’s recommendation that the court
dismiss defendants Medema and Klapper. Dkt. No. 40.
The court GRANTS defendants Medema and Klapper’s motion to dismiss
party and ORDERS that defendants Jason Medema and Michelle Klapper are
DISMISSED. Dkt. No. 27.
The court GRANTS defendant Watson’s motion to modify scheduling
order. Dkt. No. 41.
The court ORDERS that the parties shall complete discovery no later
than the end of the day on February 13, 2020, and that any party wishing to
file dispositive motions shall do so by the end of the day on February 13, 2020.
Dated in Milwaukee, Wisconsin, this 4th day of December, 2019.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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