Johnson v. Burns et al
Filing
55
ORDER signed by Judge J P Stadtmueller on 1/27/2025. 46 and 48 Plaintiff's Motions for Extension of Time and to Appoint Counsel are DENIED as moot. 50 Plaintiff's Motion for Summary Judgment, construed as Plaintiff's Oppo sition to Summary Judgment, is DENIED as moot. 36 Parties' Stipulation to Dismiss Defendant Fisher is ADOPTED; Defendant Fisher is DISMISSED with prejudice and without costs. 39 Defendant Gruebnau's Motion for Summary Judgment is GRANTED; the Eighth Amendment claim against Defendant Gruebnau is DISMISSED with prejudice. CASE DISMISSED. See Order. (cc: all counsel, via mail to Dewhite D Johnson)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEWHITE D. JOHNSON,
Plaintiff,
Case No. 22-CV-601-JPS
v.
KELSEY GRUEBNAU,
ORDER
Defendant.
Plaintiff Dewhite D. Johnson (“Plaintiff”), a former inmate, filed a
pro se complaint under 42 U.S.C. § 1983 alleging that various defendants
violated his constitutional rights. ECF No. 1. On December 22, 2022, the
Court screened Plaintiff’s complaint and allowed it to proceed on the
following two claims: (1) Eighth Amendment violation against Defendants
Gruebnau and Fisher for their deliberate indifference to the risk of
Plaintiff’s self-harm; and (2) First Amendment retaliation against
Defendants Burns, Falke, and Fisher. ECF No. 10 at 8. On August 18, 2023,
the Court granted Defendants’ partial motion for summary judgment based
on the failure to exhaust administrative remedies and dismissed the First
Amendment claim against Defendants Burns, Falke, and Fisher. ECF No.
29. On April 30, 2024, Defendants filed a stipulation of dismissal of all
claims against Defendant Fisher with prejudice. ECF No. 36. As such, the
Court will adopt the parties’ stipulation and dismiss Defendant Fisher with
prejudice and without costs.1 Given this ruling, the only remaining
Defendant Fisher was terminated on May 14, 2024, pursuant to the parties’
stipulation. The Court provides this ruling only in an effort to clarify the record
for purposes of the judgment.
1
defendant is Defendant Gruebnau, and the remainder of this Order will
therefore refer to her as the only defendant.
Now pending before the Court is Defendant Gruebnau’s motion for
summary judgment. ECF No. 39. Plaintiff filed two motions for extensions
of time to file a motion for summary judgment. ECF Nos. 46, 48. Thereafter,
Plaintiff filed a motion for summary judgment, arguing there are disputed
issues of fact and which the Court liberally construes as an opposition brief,
on August 20, 2024. ECF Nos. 50, 51. The Court will accordingly deny
Plaintiff’s motions for an extension of time as moot. On September 3, 2024,
Defendant Gruebnau filed a reply brief. ECF No. 53. For the reasons
described below, the Court will grant Defendant Gruebnau’s motion for
summary judgment and this case will be dismissed.
1.
LEGAL STANDARD – SUMMARY JUDGMENT
Under Federal Rule of Civil Procedure 56, 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; Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A
fact is “material” if it “might affect the outcome of the suit” under the
applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute of fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.
The Court construes all facts and reasonable inferences in a light
most favorable to the nonmovant. Bridge v. New Holland Logansport, Inc., 815
F.3d 356, 360 (7th Cir. 2016). In assessing the parties’ proposed facts, the
Court must not weigh the evidence or determine witness credibility; the
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Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v.
Chi. Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010).
2.
FACTUAL BACKGROUND
In compliance with the Court’s scheduling order, Defendant
Gruebnau submitted a stipulated set of joint facts, ECF No. 41, and a set of
disputed facts, ECF No. 42. However, the disputed facts do not follow the
Court’s summary judgment protocols regarding factual submissions. See
ECF No. 33 at 4–5 (“Each itemized, disputed fact should be supported by
each party’s separate pinpoint citation(s) to the record.”). Although
Defendant Gruebnau cites support for her own positions, there are no
citations supporting Plaintiff’s assertions. See ECF No. 42. The Court
understands that Plaintiff may not have provided support in the record for
his position; however, if that was the case, it should be clearly indicated in
future filings. Nonetheless, the Court has carefully reviewed Plaintiff’s
submissions to determine whether there is support in the record for his
disputes. To the extent that there is no support in the record for a purported
dispute, the Court has treated these facts as undisputed for the purposes of
summary judgment. See Fed. R. Civ. P. 56(e)(2). As such, the Court takes
the following facts from the parties’ statement of undisputed facts, except
where explicitly noted.
2.1
The Parties
Plaintiff was at all times relevant to this case in the custody of the
Waupun Correctional Institution (“WCI”).2 Defendant Gruebnau was
The undisputed facts provide that Plaintiff was in custody at the time of
the filings. ECF No. 41. However, Plaintiff later updated his address to reflect that
he is no longer in custody. ECF No. 54.
2
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employed by the Department of Corrections (“DOC”) as a Psychological
Associate - Doctorate at Waupun from November 2018 through March
2022. As a Psychological Associate at Waupun, Defendant Gruebnau’s
duties included, but were not limited to, performing mental health
screenings, conducting brief individual counseling and mental health
monitoring, providing crisis intervention and prevention, individual
psychotherapy, and psychological assessments to provide mental
health services.
2.2
Psychological Services Unit and Requests
The Psychological Services Unit (“PSU”) provides treatment,
evaluation, and referrals for individuals with mental health and emotional
needs. When an inmate has a mental health or emotional concern and
would like to speak with a mental health professional at the institution, they
can submit a Psychological Services Request (“PSR”) with a brief
description of the specific reason for their request. Sometimes, inmates will
use interview/information request forms instead of PSRs. In these cases,
PSU staff processes these forms in the same way they process PSRs. If the
inmate is having an emergency situation such as thoughts of suicide or
harming themselves, they are encouraged to notify security staff
immediately and the first available PSU provider responds to the inmate’s
needs.
PSU staff, however, cannot provide an immediate response for noncrisis situations. These instances require the inmate to submit a PSR. The
requests are then received and triaged by PSU staff and forwarded to the
inmate's assigned psychologist for evaluation. If appropriate, the inmate is
scheduled for an appointment with their mental health provider. The PSR
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is then returned to the inmate with a response from PSU staff, and
appointment information when present.
Defendant Gruebnau maintains that a history of suicidal
ideation/inclination does not indicate that an individual is at risk of suicide
or self-harm at all times, nor that an individual will act on threats of suicide
or self-harm. ECF No. 42. While Plaintiff disputes this fact, there is no
support in the record to support this assertion other than his own lay
opinion. See id.3
2.3
Plaintiff’s Psychological Treatment
At all times relevant to this lawsuit, Defendant Gruebnau was
Plaintiff’s assigned clinician. Defendant Gruebnau reviewed records
relevant to Plaintiff’s risk of suicide following his assignment to her
caseload, as clinically indicated. Plaintiff was released off observation
status on December 2, 2019. On December 3, 2019, Plaintiff reported to a
PSU staff member that he was irritated and depressed. On December 4,
2019, Plaintiff submitted a PSR. On December 6, 2019, Plaintiff reported to
a PSU staff member that he was depressed, had anxiety, and was paranoid.
On December 9, 2019, Plaintiff reported to a PSU staff member that he
reported self-harm urges on Tuesday or Wednesday the previous week.
On December 18, 2019, Plaintiff reported to Defendant Gruebnau
that he had issues with staff and inmates. Defendant Gruebnau told
Plaintiff that those were security issues. The parties dispute whether
Plaintiff told Defendant Gruebnau that he “had thoughts to end his life by
A lay witness may offer testimony that is “rationally based on the
witness’s perception” and “not based on scientific, technical, or other specialized
knowledge.” Fed. R. Evid. 701.
3
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suicide by cop” that day. ECF No. 42.4 Defendant Gruebnau disagrees and
relies on her medical notes that do not document these thoughts. Id. The
parties further dispute whether there was hostility between Plaintiff and
Defendant Gruebnau during this visit. Id. Defendant Gruebnau did not
place Plaintiff on observation status on December 18, 2019. Defendant
Gruebnau reported that Plaintiff “did not endorse any current suicidal or
self-harm ideation, intent or plan.” Each situation must be assessed
independently, and the decision of whether to place a patient into clinical
observation status is made based upon factors presenting in the moment.
Plaintiff did not speak with Defendant Gruebnau between December
19, 2019 and January 3, 2020. Plaintiff submitted a PSR on December 18,
2019, and Dr. Van Buren responded. Plaintiff submitted a PSR on December
25, 2019, and Dr. Van Buren responded. Plaintiff's next visit with Defendant
Gruebnau was on January 22, 2020.
Plaintiff attempted “suicide by cop” on January 3, 2020. Plaintiff
wrapped a cord around his neck and would not remove it. Plaintiff refused
to come to cell front to be restrained. Officers deployed OC spray and a
taser on Plaintiff. Plaintiff saw HSU on January 3, 2020.
3.
ANALYSIS
Defendant Gruebnau brings a motion for summary judgment
seeking dismissal of the Eighth Amendment claim for deliberate inference
to the serious risk of Plaintiff’s self-harm. ECF No. 39. Much of Plaintiff’s
opposition and declaration focuses on whether Defendant Gruebnau had
the authority to move Plaintiff. See ECF Nos. 51, 52. The Court does not,
The Court notes that there is no factual assertion in the record supporting
this quotation. The Court will address this issue in its analysis.
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however, find that issue to be conclusive; taking the facts in the light most
favorable to Plaintiff, the Court will therefore assume that Defendant
Gruebnau had such authority. Instead, as discussed below, this case turns
on whether the record supports that Defendant Gruebnau was deliberately
indifferent to an imminent threat to Plaintiff’s safety. Based on the Court’s
review of the parties’ submissions, and for the reasons explained below, the
Court will grant Defendant Gruebnau’s motion for summary judgment and
will dismiss this case.
The Eighth Amendment prohibits “cruel and unusual punishments”
and “imposes a duty on prison officials to take reasonable measures to
guarantee an inmate’s safety and to ensure that inmates receive adequate
care.” Phillips v. Diedrick, No. 18-C-56, 2019 WL 318403, at *2 (E.D. Wis. Jan.
24, 2019) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). While a prison
official’s deliberate indifference to a prisoner’s substantial risk of serious
harm violates the Eighth Amendment, not every claim by a prisoner that he
did not receive adequate care will succeed. Id. (citing Estelle v. Gamble, 429
U.S. 97, 104–05 (1976)). To prevail on such a claim, a plaintiff will have to
provide evidence showing that “(1) his medical need was objectively
serious, and (2) the defendant[] consciously disregarded this need.” Berry
v. Lutsey, 780 F. App’x 365, 368–69 (7th Cir. 2019) (citing Farmer, 511 U.S. at
834).
Prison staff have a duty to prevent inmates from causing serious
harm to themselves. Pittman ex rel. Hamilton v. County of Madison, 746 F.3d
766, 775–76 (7th Cir. 2014). Before an official will be liable for ignoring a risk
of self-harm, however, the “risk of future harm must be sure or very likely
to give rise to sufficiently imminent dangers.” Davis-Clair v. Turck, 714 F.
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App’x 605, 606 (7th Cir. 2018) (internal quotation marks omitted). The
question of when that risk of future harm becomes “sure or very likely to
give rise to sufficiently imminent dangers” depends on the circumstances
of the case. See, e.g., Freeman v. Berge, 441 F.3d 543, 546–47 (7th Cir. 2006)
(explaining that “at some point,” to ensure a prisoner is not “seriously
endangering his health,” prison officials would have a duty and right to
step in and force a prisoner on a hunger strike to take nourishment); see also
Davis v. Gee, No. 14-cv-617, 2017 WL 2880869, at *3–4 (W.D. Wis. July 6,
2017) (holding that to show a constitutional injury, the harm must present
an objectively, sufficiently serious risk of serious damage to future health;
swallowing a handful of Tylenol fails to do that).
In this case, the Court’s analysis turns on whether the record
supports that Defendant Gruebnau ignored an imminent danger to
Plaintiff’s safety after their December 18, 2019 interaction. The Seventh
Circuit has held that a prisoner’s statements that “he was ‘hearing voices,’
his ‘father was taunting [him],’ and he ‘wanted to commit suicide’ ” were
not sufficient to put prison officials on notice of the prisoner’s intent to harm
himself. Johnson v. Garant, 786 F. App’x 609 (7th Cir. 2019). In Johnson,
officers recalled the prisoner asking “to see a [Crisis Intervention Team]
member because he was feeling suicidal.” Id. (internal quotation marks
omitted). But no officer recalled the plaintiff stating that “he ‘intended to
immediately harm himself.’” Id. When officers ignored the plaintiff’s
statements, the plaintiff “attempted suicide by burning his arm with a roll
of toilet paper that he set on fire.” Id. The Seventh Circuit affirmed the
district court’s order granting summary judgment for the defendant–
officers. Id. at 610. The court concluded that no reasonable jury could “find
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that the defendants knew of a substantial risk of suicide based only on [the
plaintiff’s] statements that he felt suicidal and wanted to speak to a crisis
counselor.” Id. The court reasoned that the plaintiff’s statements provided
no “indication that he may have ‘imminently’ sought to have harmed
himself.” Id. (quoting Collins v. Seeman, 462 F.3d 757, 761 (7th Cir. 2006)).
The court agreed with the district court that the plaintiff’s statements “were
insufficient to create a triable issue about whether the officers were
subjectively aware of a substantial risk that the plaintiff would imminently
attempt suicide.” Id. at 611.
In its reasoning, the court in Johnson distinguished a similar case,
finding deliberate indifference where a plaintiff wrote “a last will and
testament,” the plaintiff previously had attempted suicide and stopped
eating, and the incarcerated prisoner’s mother had called the prison to warn
officials that her son was suicidal. Id. at 610 (discussing Sanville v.
McCaughtry, 266 F.3d 724, 737–38 (7th Cir. 2001)). The court found those
additional facts, not present in Johnson, put the defendants in Sanville “on
notice that the plaintiff’s statement was not idle.” Id. at 611.
Similarly, in Williams v. Stacy, another court in this district concluded
that the prisoner’s statement that “he was having suicidal thoughts” was
insufficient to put prison officials on notice of a substantial risk of suicide.
No. 18-C-1426, 2020 WL 6136148, at *2 (E.D. Wis. Oct. 19, 2020), appeal
dismissed sub nom. Williams v. Eckstein, No. 20-3228, 2021 WL 1978369 (7th
Cir. Feb. 2, 2021). The court noted that the presence of a sharpened pen in
the prisoner’s cell did not alert officials to a risk of harm, and no other
evidence suggested that officials should have known the prisoner “had the
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means to harm himself or that the risk of future harm was sure or very
likely.” Id. (quoting Johnson, 786 F. App’x at 610).
Here, the Court likens this case to the previously mentioned cases
where summary judgment was granted based on a finding that no
imminent threat existed to a prisoner’s safety. The Court begins its
discussion by briefly addressing the inadequacy of the record on this issue.
As identified above, the parties’ factual submission identifies that they
dispute what information Plaintiff told Defendant Gruebnau during their
visit on December 18, 2019. See ECF No. 42 at 1. Plaintiff’s version of events,
that he told Gruebnau that he had thoughts to end his life by suicide by cop,
however, is nowhere in the record as far as the Court can tell. Plaintiff’s
sworn declaration, ECF No. 52, makes no such factual assertion. Plaintiff’s
opposition brief cites to ECF No. 28-1 at 29–36 and Exhibit 1008 in support
of his assertions. See ECF No. 51 at 5. However, these documents do not
reference statements Plaintiff made to Defendant Gruebnau on December
18, 2019.
Although Plaintiff’s complaint references these factual allegations,
the complaint is not sworn and verified, so the Court may not consider it as
evidence either. See Beal v. Beller, 847 F.3d 897, 901 (7th Cir. 2017) (“[T]there
is a distinction between an ordinary complaint that serves as a pleading,
and a verified complaint.); see also Shaul v. Hibbard, No. 119-CV-3962-JMSTAB, 2022 WL 1045013, at *1 (S.D. Ind. Apr. 7, 2022) (“The unverified
amended complaint is not evidence and thus, statements made in the
amended complaint are not considered in resolving the pending motion for
summary judgment.”) (citing James v. Hale, 959 F.3d 307, 314 (7th Cir. 2020)).
In contrast, Plaintiff’s medical records from December 18, 2019 indicate that
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he “did not endorse any current suicidal or self-harm ideation, intent, or
plan.” ECF No. 28-1 at 18. As such, based on the lacking factual record, the
Court could consider Defendant’s fact as undisputed and grant summary
judgment on that basis alone.
However, in an effort to liberally construe pro se filings and for a
more thorough analysis, the Court will assume arguendo that Plaintiff did
tell Defendant Gruebnau that he was suicidal by cop during their visit on
December 18, 2019. Nonetheless, the Court still finds that the record does
not support a finding that Defendant Gruebnau subjectively knew Plaintiff
faced an imminent risk to his safety prior to this suicide attempt on January
3, 2020. To begin, none of Plaintiff’s statements suggested that he
imminently intended to harm himself. 5 Defendant Gruebnau puts forth
undisputed evidence that a history of suicidal ideation/inclination does not
indicate that an individual is at risk of suicide or self-harm at all times, nor
that an individual will act on threats of suicide or self-harm.
More significantly, the length of time and Plaintiff’s own statements
between Plaintiff’s visit with Defendant Gruebnau and his suicide attempt
do not support a finding of an imminent threat to his safety. Sixteen days
passed between Plaintiff’s visit with Defendant Gruebnau and his suicide
attempt on January 3, 2020. The undisputed facts show that Plaintiff did not
speak with Defendant Gruebnau during this time period. Plaintiff
submitted two PSRs during this time period and Dr. Van Buren—a nondefendant—responded. ECF No. 44-1 at 13–14. Plaintiff made no mention
The Court notes the difficulty in assessing this factor since it is unclear
based on the undeveloped record, specifically, what Plaintiff allegedly said during
the December 18, 2019 appointment with Defendant Gruebnau. None of Plaintiff’s
own statements in his opposition materials, however, suggest imminency.
5
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in either of these PSRs that he was feeling suicidal or needed imminent
treatment for his safety. See id.
In sum the undisputed facts before the Court do not support a
finding that Defendant Gruebnau was subjectively aware that Plaintiff
faced an imminent risk of suicide. As such, the Court finds that no
reasonable jury could find that Defendant Gruebnau was deliberately
indifferent to Plaintiff’s serious risk of self-harm. Thus, the Court will
accordingly grant Defendant Gruebnau’s motion for summary judgment
and dismiss the Eighth Amendment claim against her with prejudice.6
4.
CONCLUSION
For the reasons explained above, the Court grants Defendant
Gruebnau’s motion for summary judgment on the merits; no claims or
defendants remain, and the Court will therefore dismiss this action. The
Court will accordingly deny Plaintiff’s motion for summary judgment as
moot. Finally, the Court will deny Plaintiff’s second motion for the
appointment of counsel, ECF No. 46, as moot. The Court previously
provided a full analysis of its decision to deny Plaintiff’s first motion to
appoint counsel, see ECF No. 29, and Plaintiff’s second motion did not
provide any information to change that prior determination regarding
counsel. The Court has carefully reviewed the record and finds that
Defendant Gruebnau is entitled to judgment as a matter of law.
Defendant Gruebnau also moved for summary judgment based on
qualified immunity. ECF No. 40 at 9. Because the Court grants summary judgment
on the merits and finds no deliberate indifference based on the undisputed facts,
the Court need not reach the question of qualified immunity.
6
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Accordingly,
IT IS ORDERED that Plaintiff’s motions for an extension of time and
motion to appoint counsel, ECF Nos. 46, 48, be and the same are hereby
DENIED as moot;
IT IS FURTHER ORDERED that Plaintiff’s motion for summary
judgment, liberally construed as opposition to summary judgment, ECF
No. 50, be and the same is hereby DENIED as moot;
IT IS FURTHER ORDERED that the parties’ stipulation to dismiss
Defendant Fisher, ECF No. 36, be and the same is hereby ADOPTED;
Defendant Fisher be and the same is hereby DISMISSED with prejudice
and without costs;
IT IS FURTHER ORDERED that Defendant Gruebnau’s motion for
summary judgment, ECF No. 39, be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the Eighth Amendment claim
against Defendant Gruebnau be and the same is hereby DISMISSED with
prejudice; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 27th day of January 2025.
BY THE COURT:
____________________________________
J. P. Stadtmueller
U.S. District Judge
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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 thirty (30) days of
the entry of judgment. See Fed. R. App. P. 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 thirty-day
deadline. See Fed. R. App. P. 4(a)(5)(A). Moreover, 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 twentyeight (28) days of the entry of judgment. The Court cannot extend this
deadline. See Fed. R. Civ. P. 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 of the judgment. The Court cannot
extend this deadline. See id. A party is expected to closely review all
applicable rules and determine what, if any, further action is appropriate
in a case.
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