Krispin v. Muraski et al

Filing 33

ORDER granting 15 Motion for Summary Judgment. Signed by Chief Judge Barbara B. Crabb on 2/11/10. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------JAMES J. KRISPIN III, P la i n t i f f , v. T H O M A S CORE, MICHAEL GLAMMAN, D O N A LD STRAHOTA and MICHAEL THURMER, D e f e n d a n t s .1 --------------------------------------------In this prisoner civil rights case brought under 42 U.S.C. § 1983, plaintiff James K risp in contends that defendants Thomas Core, Michael Glamman, Donald Strahota and M ichael Thurmer violated his rights under the Eighth Amendment by failing to protect him fro m sexual assaults by another prisoner at the Waupun Correctional Institution. D efendan ts' motion for summary judgment is now before the court. Dkt. #15. Because plaintiff has failed to meet his burden to show that any of the defendants was aware of a O P IN IO N and ORDER 0 9 - cv -2 9 2 - b b c

In his complaint, plaintiff identified defendants Thomas Core, Michael Glamman and Michael Thurmer as "Captain Core," "CO Glamman" and "Mike Thurmer." I have am ended the caption to reflect their full names as identified in defendants' summary judgm ent materials. 1

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substantial risk of an assault before one occurred, Borello v. Allison, 446 F.3d 742, 748 (7th C ir. 2006), I will grant defendants' motion. Plaintiff did not file his own proposed findings of fact or respond to defendants' pro po sed findings of fact, which means I must accept all of defendants' properly supported pro po sed facts as true. Procedure to be Followed on Motions for Summary Judgment, II.C. ( "U n le ss the responding party puts into dispute a fact proposed by the moving party, the court will conclude that the fact is undisputed."), attached to Preliminary Pretrial Co nference Order, January 29, 2009, dkt. #14; Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 20 03 ) (holding that "a failure to respond by the nonmovant as mandated by the local rules results in an admission"). U nd er the Eighth Amendment, if a prison official is aware that a prisoner in his cu sto dy is at a substantial risk of serious harm, the official has a duty to take reasonable m easures to prevent the harm from occurring. Farmer v. Brennan, 511 U.S. 825 (1994). T his includes a duty to protect a prisoner from a sexual assault by another prisoner. E.g.,

C a se v. Ahitow, 301 F.3d 605 (7th Cir. 2002); Billman v. Indiana Dept. of Corrections, 56 F.3d 785 (7th Cir. 1995); Swofford v. Mandrell, 969 F.2d 547 (7th Cir. 1992). In his complaint, plaintiff alleged that another prisoner has sexually assaulted him m ultiple times from 2007 through the present. In addition, he alleged that the other p riso n er continues to "threaten to rape, beat and kill" him. In their summary judgment 2

m aterials, neither side says anything about incidents occurring in 2007 or about an ongoing threat. Instead, the parties focus on incidents in December 2008 and January 2009. In p lain tiff's brief, he writes that "security staff" disregarded his complaint in December 2008 th at another prisoner "was pressuring him to engage in sexual activity, and that the wanting of sexual contact was against his will." Dkt. #28, at 1-2. If plaintiff had adduced evidence th at he complained to particular defendants about an imminent sexual assault, he would have a potentially strong claim. E.g., Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004). H ow ever, plaintiff did not adduce such evidence or any evidence in support of his claim, not even his own affidavit. "[A]rguments in briefs are not evidence." Box v. A&P Tea Co., 772 F.2d 1372, 1379 n. 5 (7th Cir. 1985). Acco rding to the facts proposed by defendants and unopposed by plaintiff, plaintiff told defendant Glamman (a correctional officer) in December 2008 that another prisoner "had been talking to [plaintiff] about entering his quarters." In response to plaintiff's com plaint, Glamman spoke to the other prisoner and told him to stop going into plaintiff's cell, if that was what he was doing. No officers had witnessed the other prisoner in plaintiff's cell and plaintiff did not identify any witnesses. In addition, the on-duty sergeant spoke to p lain tiff. Plaintiff did not say anything to Glamman or the sergeant about sexual assault or sexual contact of any kind. O n December 31, defendant Core (a supervising officer) learned about plaintiff's 3

com plaint from security staff. Core spoke with plaintiff, who told Core that the other priso ner "continuously wanted to come to his cell." Core told plaintiff to inform staff im m ediately if he found the other prisoner in his cell. In addition, he instructed security staff to closely monitor the other prisoner. Again, plaintiff said nothing about sexual h arassm en t. On January 5, 2009, the other prisoner was placed in temporary lockup for entering plaintiff's cell. (The parties do not discuss whether the other prisoner was

transferred because of plaintiff's earlier complaint or a new incident.) According to an investigation report prepared by Bruce Muraski (a captain at the prison), staff from the psychological services unit contacted defendant Core on January 7 regarding a letter plaintiff had written to them. In the letter, plaintiff wrote that another priso ner "keep asking for sexual pleasure. As a blow job or sexual intercourse (anal sex). I k eep say no. I did tell an officer about it and they talk to him. He goes into my cell and w aits for me to return to my cell. I don't know what else to do." After interviewing both p la in tiff and the other prisoner, Muraski concluded that plaintiff had a consensual sexual relation ship with the other prisoner. Plaintiff received a conduct report for "sexual conduct" an d was sentenced to 180 days of disciplinary separation. In February and March 2009, plaintiff told defendants Donald Strahota (the security director) and Michael Thurmer (the warden) that he "would like to file charges" against the other prisoner. Both Thurmer and Strahota referred the matter to Muraski, who informed 4

plaintiff that a detective was investigating the matter. W heth er or not plaintiff's sexual contact with the other prisoner was consensual, defendan ts cannot be held liable under the Eighth Amendment unless they were aware of a substantial risk that it would occur. Klebanowski v. Sheahan, 540 F.3d 633, 639-40 (7th C ir. 2008). Because defendants Strahota and Thurmer had no knowledge of a possible sexual assault until after plaintiff and the other prisoner were separated, they did not violate p lain tiff's constitutional rights. George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007). T o the extent plaintiff is suing Strahota and Thurmer because he believes they did not discipline the other prisoner severely enough (neither side says what happened to the other priso ner), that claim must fail because "the Constitution . . . does not require states to prosecute persons accused of wrongdoing." Strong v. David, 297 F.3d 646, 650 (7th Cir. 20 02 ). T h is leaves defendants Glamman and Core. Although plaintiff spoke with both of them about the other prisoner, plaintiff has not adduced evidence that he told either of them that the other prisoner had sexually assaulted him, was threatening to sexually assault him or had made any sexual advances toward him. Plaintiff's argument seems to be that

G lam m an and Core should have surmised in December 2008 that the other prisoner was sexually assaulting him from his complaint about the other prisoner trying to get into his c e ll . 5

Although plaintiff may have wanted defendants to infer that he needed to be separated from the other prisoner, prison officials are not required to be mind readers. Cf. R iccardo v. Rausch, 375 F.3d 521, 526 (7th Cir. 2004) (concluding that prison guard was entitled to rely on plaintiff's statement that he did not "have a problem" with prisoner who later assaulted him, even though plaintiff made this statement in front of other prisoner and even though plaintiff had said earlier that he "feared for his life" if he were celled with any m em ber of other prisoner's gang). Generally, the Eighth Amendment is not triggered by a vague complaint that a prisoner is having "problems" with other prisoners, Butera v. Cottey, 285 F.3d 601, 606 (7th Cir. 2002), or even that other prisoners are "pressuring" him, Dale v. Poston, 548 F.3d 563, 569 (7th Cir. 2008), because these types of complaints may suggest irritation more than danger. See also Anderson v. County of La Crosse, No. 08-cv-234-bbc, 20 09 WL 1139991, *5 (W.D. Wis. Apr. 27, 2009) (prisoner's complaint that another priso ner was "starting crap" with him too vague to give jail officials notice of likely assault). S om etim es vague complaints are enough to give prison officials notice of a substantial risk of serious harm, but only when the prisoner communicates that he is in serious danger. E.g., V elez v. Johnson, 395 F.3d 732, 736 (7th Cir. 2005) (pushing emergency call button). T hus, if plaintiff had stated that he was afraid of the other prisoner or otherwise com m un icated to the defendants that he was in danger, this would be a different case. H ow ever, the facts show only that plaintiff complained about another prisoner entering his 6

c ell, which is not an inherently dangerous situation. By the time defendant Core received info rm ation from the psychological services unit about a possible sexual assault, the other priso ner was already in temporary lockup, away from plaintiff. m otion for summary judgment must be granted. Accordingly, defendants'

OR DER IT IS ORDERED that the motion for summary judgment filed by defendants Michael G lam ann, Thomas Core, Donald Strahota and Michael Thurmer, dkt. #15, is GRANTED. T he clerk of court is directed to enter judgment in favor of defendants and close this case. E n tered this 11th day of February, 2010. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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