Lockhart v. Beilke et al

Filing 29

ORDER signed by Judge Brett H Ludwig on 5/8/24 that Defendants' motion for partial summary judgment on exhaustion grounds 21 is GRANTED; and the claim against Officer Beilke is DISMISSED without prejudice. Lockhart's motions to compel 26 & 27 are DENIED. (cc: all counsel and mailed to pro se party)(jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JERMAINE LOCKHART,
v.

Plaintiff,

Case No. 23-cv-1243-bhl

BRIAN BEILKE, et al.,
Defendants.
DECISION AND ORDER
Plaintiff Jermaine Lockhart, who is representing himself, is pursuing an Eighth
Amendment claim against Defendants Correctional Officer Brian Beilke, Nurse Megan Leberak,
and Dr. Sara English in connection with allegations that they denied proper medical care at the
Waupun Correctional Institution on May 14, 2023. Dkt. Nos. 1 & 11. Currently pending are
Defendants’ motion for partial summary judgment on exhaustion grounds and two motions to
compel filed by Lockhart. Dkt. Nos. 21, 26, & 27. For the reasons set forth below, Defendants’
motion will be granted, and Lockhart’s motions denied.
On April 1, 2024, Defendants filed a motion for partial summary judgment with respect to
Lockhart’s claim against CO Beilke. Dkt. No. 21. Defendants insist the claim must be dismissed
on exhaustion grounds because Lockhart did not file any inmate complaints in connection with the
claim against CO Beilke. Id. Despite being warned by the Court, Lockhart has not filed a timely
response to the exhaustion motion. Immediately after the exhaustion motion was filed, the Court
notified Lockhart, that, under Civil Local Rule 56(b)(2), his response materials were due on May
1, 2024. Id. The Court also warned him that under Civ. L. R. 56(b)(9), his failure to comply with

Civ. L. R. 56 might result in sanctions up to and including the Court granting Defendants’ motion.
Id. at 2.
Rather than responding on the exhaustion motion, Lockhart filed two motions to compel.
Dkt. Nos. 26 & 27. Both motions relate to his claims against other defendants, specifically Nurse
Megan Leberak and Dr. Sara English. Dkt. Nos. 26 & 27. Then, on May 2, 2024, Lockhart filed
a letter indicating he was not opposing the exhaustion motion: “Plaintiff has not sent a reply to
Defendant motion to dismiss claims against Defendant Brian Beilke nor will Plaintiff challenge
the failure to exhaust.” See Dkt. No. 28.
Because Lockhart does not oppose Defendants’ motion for partial summary judgment on
exhaustion grounds, the Court will grant the motion and dismiss the claim against CO Bielke
without prejudice. The Court has also separately reviewed the motion and supporting materials
and affirmatively concludes that CO Bielke is entitled to summary judgment on exhaustion
grounds. See Fed. R. Civ. P. 56(e)(2)-(3). Based on the proposed findings of fact submitted by
Defendants and deemed true by the Court, Lockhart did not file any inmate complaints alleging
that CO Bielke refused to provide medical care after Lockhart allegedly jumped off his sink
backwards and injured his hip, side, and back. Dkt. Nos. 22 & 23. As a result, CO Beilke is
entitled to judgment as a matter of law based on Lockhart’s failure to exhaust administrative
remedies prior to brining this lawsuit.
The Court will deny Lockhart’s motions to compel. On April 23, 2024, Lockhart filed a
motion asking the Court to order Defendants to produce print-out information about the sideeffects of receiving the wrong medication (specifically, Montelukast 10mg, Ibuprofen 400mg, and
Excedrin). Dkt. No. 26. According to docket filings, Defendants objected to producing this
information because Lockhart can obtain it through other means. Dkt. No. 26-1 at 2. The Court

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agrees that Lockhart has access to this information through online research at the law library, and
it is not Defendants’ responsibility to conduct Lockhart’s research for him. Accordingly, the Court
will deny Lockhart’s first motion to compel.
On April 29, 2024, Lockhart filed a second motion to compel asking the Court to order
Defendants to produce documentary proof that he was given medication “in error” on May 14,
2023, including a complete list of the wrong medications he was given, and reiterating his request
for print-out information about the effects of receiving the wrong medication. Dkt. No. 27; see
also Dkt. No. 27-1, ¶2. Lockhart explains that he first asked the Health Services Unit for this
information, but they would not provide it. He contends that HSU staff responded that there is no
medical record or list of Lockhart receiving medication “in error.” Staff further explained that
inmates cannot receive what has not been prescribed, and, because Lockhart doesn’t have a
prescription for Montelukast, Ibuprofen, and Excedrin, HSU staff cannot give him a print-out
about the side effects of these medications, unless it is requested from the DOJ. Id.
The Court will deny Lockhart’s second motion to compel. Defendants cannot produce
medical records that do not exist, and it is not their duty to create records for him. Lockhart can
acquire evidence showing that he was given medication “in error” in other ways. He can serve
defendants with Requests for Admission under Federal Rule of Civil Procedure 36, asking them
to admit specific facts, including that he was given incorrect medication. He can also submit his
own affidavit or unsworn declaration under 28 U.S.C. §1746 detailing the facts known to him
about any erroneous medications he received. And, as noted above, it is Lockhart’s responsibility
to conduct his own case research, so the Court will not order HSU staff to give him print-out
information about different medications either.

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IT IS THEREFORE ORDERED that Defendants’ motion for partial summary judgment
on exhaustion grounds (Dkt. No. 21) is GRANTED; and the claim against Officer Beilke is
DISMISSED without prejudice.
IT IS FURTHER ORDERED that Lockhart’s motions to compel (Dkt. Nos. 26 & 27) are
DENIED.
Dated at Milwaukee, Wisconsin on May 8, 2024.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge

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