Bella v. Foster et al

Filing 59

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS THEREFORE ORDERED that the defendants' motion for summary judgment (Docket # 37 ) is GRANTED; the plaintiff's motion for dismissal of summary judgment (Docket # 54 ) is DENIED; and this case is DISMISSED. (cc: all counsel and mailed to pro se party)(asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JOSHUA BELLA,
Plaintiff,
v.

Case No. 19-CV-1149

BRIAN FOSTER, et al.,
Defendants.

DECISION AND ORDER ON DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

Plaintiff Joshua Bella, who is representing himself, is proceeding with the following
claims: (1) defendants Brian Foster, Anthony Meli, and Jeremy Westra failed to protect him
from gang members in 2019; (2) defendant Meli placed him in the same cell-block as violent
inmates in “retaliation” for Bella’s previous inmate complaints about failure to protect; and
(3) defendant Tonia Moon denied Bella’s inmate complaints about the failure to protect and
retaliation. (Docket # 18 at 6.) The defendants filed a motion for summary judgment on April
15, 2020. (Docket # 37.) Bella filed a “motion for dismissal of summary judgment” on August
24, 2020. 1 (Docket # 54.) For the reasons discussed below, the court will grant the defendants’
motion for summary judgment, deny Bella’s “motion for dismissal of summary judgment,”
and dismiss this case.

Bella’s “motion for dismissal of summary judgment” appears to be a response to the defendants’ motion for
summary judgment. (See Docket # 54.) The court will therefore deny the “motion” and consider it a part of his
response materials.

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RELEVANT FACTS
Bella is an inmate at the Waupun Correctional Institution (“WCI”). (Docket # 39, ¶
2.) Defendants work at WCI: Brian Foster is a warden, Tony Meli is a security director,
Jeremy Westra is a captain, and Tonia Moon is an Institution Complaint Examiner (“ICE”).
(Id., ¶ 1.)
Bella has a rare genetic disorder called Ehlers Danlos Syndrome (“EDS”). (Docket #
53, ¶ 9.) He walks with a cane, has seven custom braces for different body parts, and struggles
with basic tasks such as getting dressed, making the bed, and cleaning. (Id.) Bella is in the late
stages of the disorder, so he is extremely weak and cannot physically defend himself. (Id.)
On May 28, 2019, Bella was released from the Restrictive Housing Unit (“RHU”).
(Id., ¶ 1.) Upon his release, Bella was placed on the North Cell Hall. (Docket # 39, ¶ 12.)
According to Bella, his cellmate on the North Cell Hall was a “known violent, mentally
unstable gang member with a long history of robbing, assaulting, extorting and damaging
cellys property” (Docket # 53, ¶ 1.) Bella’s genetic disorder made him a prime target for
extortion by this cellmate and his gang. (Id., ¶ 9.)
Bella states that this cellmate started threatening him almost immediately upon his
arrival on North Cell Hall. (Id., ¶ 1.) The day he arrived at his cell, the cellmate took Bella’s
canteen purchases after threatening him and said that he would “jump” Bella and break his
TV if he snitched. (Id.) In the days that followed, the threats and attacks continued. (Id., ¶¶
2–5.)
On June 3, 2019, the cellmate choked Bella and punched him repeatedly in the head
and stomach because Bella’s family refused to purchase technology items (such as
headphones and tablets) for the cellmate and his gang members. (Id., ¶ 2.) On June 4, 2019,
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the cellmate choked and punched Bella in the neck for refusing to acquire pain medication
from health services. (Id., ¶ 3.) On June 7, 2019, the cellmate punched and kicked Bella in the
ribs when he refused to hand over his canteen purchases. (Id., ¶ 4.) On June 12, 2019, the
cellmate attacked Bella on and off for hours. (Id., ¶ 5.) Bella states that the June 12 attack
“was the worst assault” to date. (Id.) He had bruises, scrapes, and lumps all over his face that
staff could not openly ignore. (Id.)
In response to the June 12 attack, Lieutenant Dingman (not a defendant) moved Bella
to South Cell Hall. (Docket # 39, ¶ 13.) According to Bella, South Cell Hall is “the most
violent cell hall in WCI.” (Docket # 53, ¶ 6.) Bella states, “this gang controls 3 out of the 4
units in WCI, so I would never be safe.” (Id., ¶ 7.) Bella states that the only cell hall where he
is safe is South West Cell Hall, which has a “red tag for single cell.” (Docket # 17 at 5.)
Upon arriving at South Cell Hall, Captain Rymarkowitz (not a defendant) told Bella
that he would be placed back in RHU if he was attacked again. (Docket # 53, ¶ 6; see also
Docket # 56, ¶ 50.) Since then, members of the same gang have continuously been extorting
Bella. (Docket # 53, ¶ 6; see also Docket # 56, ¶¶ 6–8, 50.) Bella states that he does not want
to go back to RHU, so he has been acquiescing to their demands. (Id.) The gang members
have taken his watch, headphones, gloves, and $70. (Id.)
Bella claims that, in 2019, he routinely sent Foster, Meli, and Westra “highly detailed”
letters and correspondences notifying them about his issue with this gang, but they did
“nothing” to help him. (Docket # 53, ¶¶ 7–8; see also Docket # 56, ¶¶ 13, 16,19, 21–22, 24–
25, 27–31, 36, 49.) Bella states that Meli “responded twice” to his letters but told him that
there was nothing he could do to help Bella unless Bella provided specific details about the
perceived threat. (Docket # 56, ¶ 28.)
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The defendants explain that Bella has never identified any specific, existing, threat to
his safety, either before or after the June 12 attack. (Docket # 39, ¶¶ 14–15.) An inmate
requesting a Special Protection Need (“SPN”) must fill out DOC-1803 and provide specific
information such as names, dates, and details of the perceived threats of violence so it can be
properly investigated. (Id., ¶¶ 5–6.) They explain that inmates cannot be protected from an
“unknown” threat. (Id.)
The defendants also explain that it is important to verify an inmate’s allegations
because it may not be the whole story. (Id., ¶ 8.) According to the defendants, inmates often
make false claims to obtain more favorable housing, and the Department of Corrections does
not have the resources or space to accommodate all housing requests from inmates when there
is not an identified or verified need. (Id., ¶¶ 8–9.) The defendants state that Bella’s letters and
correspondences from 2019 generally referred to “gang members” but did not identify specific
individuals by name, cell number, or physical description, so his allegations were insufficient
to support a separation request. (Id., ¶ 6.)
Bella admits that he has never given the defendants any specific names, cell numbers,
or physical descriptions of the gang members because “it is very dangerous for [him] to speak
to staff.” (Docket # 53, ¶ 7; see also Docket # 52, ¶ 6.) He states, “inmates find out right away
when someone talks to staff.” (Docket # 53, ¶ 7.) He explains, “I was scared to give names
because of security history of failing to help and the gangs being aloud [sic] to openly run their
drugs, gambling, and extortion crew through ¾ of the prison.” (Id., ¶ 6.)
Bella states that he filed five inmate complaints and appeals about the issues in this
case, “which detailed what was happening to him and the one issue to be addressed.” (Docket
# 56, ¶¶ 38, 41–44). Bella, however, did not file any inmate complaints about his claims
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regarding Tonia Moon. (Docket # 39, ¶¶ 19–20.) Bella admits he didn’t do this because “it’s
pointless” given that his past inmate complaints against Moon were rejected. (Docket # 52, ¶
20.)
In February 2020, Bella moved back to North Cell Hall and was placed in a single cell
due to a medical restriction. (Docket # 53, ¶ 6.) Bella states that the move “was not for safety.”
(Id.)
SUMMARY JUDGMENT STANDARD
Summary judgment is required where “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, 247–48 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 323–24 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). When
considering a motion for summary judgment, the court takes evidence in the light most
favorable to the non-moving party and must grant the motion if no reasonable juror could
find for that party. Anderson, 477 U.S. at 248, 255. “Material facts” are those under the
applicable substantive law that “might affect the outcome of the suit.” Id. 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
(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.
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Fed. R. Civ. P. 56(c)(1)(A)–(B). “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).
ANALYSIS
1.

Exhaustion of Administrative Remedies

Under the Prisoner Litigation Reform Act (“PLRA”), “[n]o action shall be brought
with respect to prison conditions under section 1983 of this title, or any other Federal law, by
a prisoner confined in any jail, prison or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory and
district courts have no judicial discretion to excuse an inmate’s failure to exhaust when the
administrative remedies are available. Ross v. Blake, 136 S. Ct. 1850, 1856–57 (2016).
The Inmate Complaint Review System (“ICRS”) outlines the procedures to exhaust
administrative remedies through Wisconsin’s prison system. Wis. Admin. Code § DOC 310.
The inmate must file an offender complaint with ICE within fourteen calendar days of the
event giving rise to the complaint. § DOC 310.09(6). The inmate must then pursue “all
administrative remedies that the department of corrections has promulgated by rule.” Wis.
Admin. Code § DOC 310.05. This means that the inmate must appeal all the way to the Office
of the Secretary of the Department of Corrections, who makes the final decision. § DOC
310.14(3).
The defendants attach a copy of Bella’s Inmate Complaint History Report, which
shows that he did not file any inmate complaints about Moon regarding the claim against her
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in this lawsuit. (See Docket # 41-1 at 2–3.) Bella does not dispute this. He admits that he
believed it was “pointless” to file an inmate complaint against her because his past inmate
complaints against her were “rejected.” (See Docket # 52, ¶ 20.) Under the PLRA, there is no
futility exception to exhaustion of administrative remedies. Dole v. Chandler, 438 F.3d 804,
808–09 (7th Cir. 2006) (“Exhaustion is necessary even if . . . the prisoner believes that
exhaustion is futile.”). Therefore, Bella failed to exhaust administrative remedies as to Moon
and she is entitled to summary judgment.
2.

Eighth Amendment—Failure to Protect

To survive summary judgment on a failure-to-protect claim, Bella must produce
evidence from which a reasonable jury could conclude that: (1) he faced a substantial risk of
serious imminent harm; and (2) the defendants responded with deliberate indifference. Harris
v. Molinero, 803 F. App’x 1, 4 (7th Cir. 2020) (citing Farmer v. Brennan, 511 U.S. 825, 837
(1994)). This requires that the defendant “must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also draw
that inference.” Gevas v. McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015). The requisite
knowledge “is a question of fact subject to demonstration in the usual ways, including
inference from circumstantial evidence . . . and a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious.” Id. (citing Farmer, 511
U.S. at 842.) But complaints that convey only a generalized, vague, or stale concern about
one’s safety typically will not support an inference that a prison official had actual knowledge
that the prisoner was in danger. Id. at 480–81.
Foster, Meli, and Westra assert that they are entitled to summary judgment on the
failure to protect claim because they did not have actual knowledge of any specific risk of
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harm to Bella. They argue that Bella never identified any specific, existing threat to his health
or safety, either before or after the June 12 attack, and that his perceived threats of harm were
vague and generalized. Bella does not dispute this. To the contrary, he admits that he never
gave the defendants any specific names, cell numbers, or physical descriptions of the gang
members because he perceived it as being “too dangerous” to talk to staff.
Instead, Bella asks the court to conclude that the defendants “knew” about the risk to
his safety because of the number of letters and correspondences that he sent to each defendant.
He states that he wrote to Foster three times, to Meli six times, and to Westra eight times.
But the number of letters and correspondences Bella sent to the defendants in 2019 does not
change the fact the substance of the documents were vague and generalized and did not give
the defendants the information they needed to protect him. 2 According to Bella’s own
declaration, Meli twice advised him of the needed relevant information. But Bella
nevertheless continued to make generalized and vague allegations about a threat to his safety.
Bella also tries to portray the risk of harm he faced as “obvious” given his medical
condition. But there are many vulnerable inmates in prison, and the DOC cannot
accommodate every housing request. This is precisely why prison officials need specific
information about a threat to determine appropriate placement. Bella statement that “this
gang controls 3 out of 4 units at WCI” emphasizes the defendants’ point. Without specific

The Court reviewed the 70 pages of exhibits that Bella submitted. (See Docket # 53-1.) The Court only found
one document, filed in May 2019, that contained specific names about who was threatening him. (See id. at 18.)
This document states that the identified individuals had threatened him “several years ago,” so it still did not
give the defendants the information they needed to protect him in 2019. The remainder of the documents only
refer to threats from “gang members,” “friends,” “other inmates,” “neighbors,” and numerous past
“cellys/cellies” (for example, he states “I have been robbed by 4 cellies.”)
2

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information on who is threatening Bella, the defendants’ attempts to move him to a different
wing or cell would be futile as the gang members are allegedly everywhere.
I note that when Bella was actually attacked in June 2019, he was moved immediately
(that very same day) to a new cell block. Since then, he has not been attacked. Though Bella
claims that he is still being extorted, he still has not come forth with any specific information
about who is extorting him. Based on this record, no reasonable jury could conclude that
Foster, Meli, and Westra were subjectively aware of a substantial risk of serious harm to
Bella’s health or safety and were deliberately indifferent towards that risk. Foster, Meli, and
Westra are therefore entitled to summary judgment on the failure to protect claim. 3
3.

First Amendment Retaliation

To survive summary judgment on a retaliation claim, Bella must provide “enough
evidence to allow a reasonable jury to conclude that (1) he engaged in activity protected by
the First Amendment; (2) he suffered a deprivation likely to deter future protected activity;
and (3) his protected activity at least partially motivated the deprivation suffered.”
Streckenbach v. Meisner, 768 F. App’x 565, 569 (7th Cir. 2019) (citing Walker v. Groot, 867 F.3d
799, 803 (7th Cir. 2017)).
Meli asserts that he is entitled to summary judgment on the retaliation claim because
he does not make housing assignments at WCI, and therefore, he could not have assigned
Bella to South Cell Hall for the purpose of “retaliation.” (Docket # 42.) To that end, the
record shows that Lieutenant Dingman was the individual who made the decision to move
Bella to South Cell Hall in June 2019. Bella does not have any evidence to dispute this. He

Bella also alleges that he submitted an SPN request in December 2019 but that Westra “did not respond.” (See
Docket # 56, ¶35.) This lawsuit only involves events that happened before November 1, 2019, so the court will
not address this claim.
3

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does not even attempt to address the retaliation claim in his summary judgment opposition
brief. (See Docket # 51.) His conclusory allegations from the amended complaint—that Meli
placed him in a dangerous cell block to “retaliate” against him—is insufficient to create a
dispute of fact sufficient to survive summary judgment. Thus, Meli is also entitled to summary
judgment on the First Amendment retaliation claim and the Court will dismiss this case.
ORDER
IT IS THEREFORE ORDERED that the defendants’ motion for summary judgment
(Docket # 37) is GRANTED; the plaintiff’s “motion for dismissal of summary judgment”
(Docket # 54) is DENIED; and this case is DISMISSED. The clerk of court shall enter
judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may appeal this
court’s decision to the Court of Appeals for the Seventh Circuit by filing in this court a notice
of appeal within 30 days of the entry of judgment. See Federal Rule of Appellate Procedure 3,
4. This court may extend this deadline if a party timely requests an extension and shows good
cause or excusable neglect for not being able to meet the 30-day deadline. See Federal Rule of
Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or amend its judgment
under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment under Federal
Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil Procedure 59(e) must
be filed within 28 days of the entry of judgment. The court cannot extend this deadline. See
Federal Rule of Civil Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure
60(b) must be filed within a reasonable time, generally no more than one year after the entry

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of the judgment. The court cannot extend this deadline. See Federal Rule of Civil Procedure
6(b)(2).
A party is expected to closely review all applicable rules and determine, what, if any,
further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 17th day of February, 2021.
BY THE COURT:

___________________________
NANCY JOSEPH
United States Magistrate Judge

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