Mills v. Nelson et al

Filing 24

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS THEREFORE ORDERED that the defendants' motion for summary judgment (ECF No. 13 ) is GRANTED and this case is DISMISSED. (cc: all counsel and mailed to pro se party)(asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEREK MILLS,
Plaintiff,
v.

Case No. 20-CV-381

THOMAS NELSON, et al.,
Defendants.
DECISION AND ORDER ON DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Plaintiff Derek Mills, a Wisconsin inmate representing himself, filed a lawsuit
under 42 U.S.C. § 1983, alleging that defendants violated the Eighth Amendment
when they failed to protect him from another inmate. Before me is defendants’ motion
for summary judgment. For the reasons explained below, I will grant the motion and
dismiss this case.
RELEVANT FACTS 1
Mills is incarcerated at Waupun Correctional Institution. (ECF No. 15 at ¶1.)
At the relevant time, defendant Robert Drehmel was a Correctional Sergeant and
defendant Thomas Nelson was a Lieutenant. (Id. at ¶3-4.) On December 17, 2019,
Mills approached Drehmel and handed him a note that he said inmate Julius

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Mills did not respond to defendants’ proposed findings of fact as required by Civil L.R. 56(b)(2)(B)(i), so
the Court deems the facts admitted for the purpose of deciding summary judgment. Civil L.R. 56(b)(4).

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Garrison had written. (Id. at ¶6.) Mills wanted Garrison placed in temporary lockup.
(Id. at ¶8.) Drehmel does not have authority to separate inmates, so he says he told
Mills he would give the note to a supervisor who would determine what to do. (Id. at
¶¶7, 10.)
Drehmel then called Nelson and gave him the note. (ECF No. 15 at ¶¶11-12.)
Nelson talked to Mills and told him he would investigate. (Id. at ¶17.) Nelson says he
told Mills that, if Garrison wrote the note, staff would place him in temporary lockup
pending further investigation. (Id.) After reviewing the note, Nelson suspected that
Mills had written it. (Id. at ¶18.) Nelson explains that Mills writes a lot of notes, and
he always dots his “i” with a circle instead of a dot. (Id. at ¶¶18-19.) Nelson collected
writing samples from Mills’ cell to compare them to the note. (Id. at ¶20.) Nelson also
consulted another officer for a second opinion. (Id. at ¶21.) They compared the note
to other notes from Mills and Garrison and determined the note was written by Mills.
(Id. at ¶21.)
Because he determined Mills had written the note, Nelson did not believe Mills
was in immediate danger from Garrison, so Nelson did not take further action. (ECF
No. 15 at ¶23.) Nelson explains that it is common for inmates to manufacture threats
from other inmates for secondary gain. (Id. at ¶24.) He says that, almost daily, the
security office receives notes from inmates who claim they are being threatened and
ask to be moved to a cell that is quieter or closer to friends. (Id.) Drehmel and Nelson
assert that, before they left for the day, the informed second-shift staff that Mills
reported he had been threatened by Garrison. (Id. at ¶25.)
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After Drehmel and Nelson ended their workday, Garrison slapped Mills. (ECF
No. 15 at ¶26.) Staff placed Garrison in temporary lockup and issued a conduct report
to him. (Id. at ¶27.)
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 v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 255 (1986). “Material facts” are those under the
applicable substantive law that “might affect the outcome of the suit.” Anderson, 477
U.S. at 248. 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
Under the Eighth Amendment, prison officials must “take reasonable
measures to guarantee the safety of the inmates.” Balsewicz v. Pawlyk, 963 F.3d 650,
654 (7th Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). For a
prisoner to prevail on a claim that a prison official failed to protect him from another
inmate, the prisoner must prove two components, one objective and one subjective.
Id. First, the prisoner must show that he was “exposed to a harm that was objectively
serious.” Id. (citing Farmer, 511 U.S. at 834). Second, he must show that the prison
official “kn[ew] of and disregarded an excessive risk to the inmate’s health or safety.”
Id. (citing Farmer, 511 U.S. at 837-38).
Mills asserts that Garrison “physically assaulted” him hours after he told
defendants that Garrison had threatened him in a note. (ECF No. 20 at 2.)
Defendants explain that Garrison slapped Mills with an open hand. Although
arguably insignificant, a jury could reasonably conclude that this “is the kind of inprison assault that is simply not part of the penalty that criminal offenders pay for
their offenses against society.” Balsewicz, 963 F.3d at 654 (internal quotation marks
and citations omitted). However, no jury could reasonably conclude that defendants
were deliberately indifferent to the risk of harm that Mills faced.
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To prevail on his claim, Mills must show that defendants disregarded an
excessive risk to his health or safety. Mills fails to present any evidence from which
a jury could reasonably reach such a conclusion. With regard to Drehmel, Mills
asserts that he should have immediately placed Garrison in temporary lockup, but
Drehmel explains that he did not have the authority to do that, only supervisors have
that authority. As such, Drehmel did all that was in his power to do—he immediately
notified a supervisor and gave him the note so the supervisor could decide how to
proceed. Drehmel’s response is the opposite of deliberate indifference. He did not
disregard the risk to Mills’ safety; he promptly responded to it. Drehmel is entitled to
summary judgment.
Similarly, no jury could reasonably conclude that Nelson disregarded a risk to
Mills’ safety. Nelson got the note from Drehmel and began an investigation. Because
the handwriting looked like Mills’ handwriting, he gathered writing samples from
Mills and Garrison and compared them to the note. He also sought the second opinion
of another officer, who agreed the note matched Mills’ handwriting.
Mills insists that Garrison wrote the note, but the Seventh Circuit has
repeatedly said that prison staff do not have to believe everything an inmate says,
especially if the staff member investigates the threat. See Olson v. Morgan, 750 F.3d
708, 713 (7th Cir. 2014). Nelson investigated the note and decided Mills had forged
it. As Nelson explains, inmates frequently falsely claim they are in danger for
secondary gain. Nelson concluded that Mills had written the note to get Garrison

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placed in temporary lockup, and Mills has presented no evidence suggesting that
Nelson’s conclusion was unreasonable.
Further, even though Nelson concluded the note was forged and even though
defendants did not know of any bad blood between the inmates and had never seen
Garrison threaten Mills, they informed second shift staff of Mills’ concerns. On this
record, no reasonable fact finder could conclude that defendants were deliberately
indifferent to the risk Mills faced. Defendants are entitled to summary judgment.
IT IS THEREFORE ORDERED that the defendants’ motion for summary
judgment (ECF No. 13) is GRANTED and this case is DISMISSED.
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,

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generally no more than one year after the entry 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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