Simpson, Willie v. Walker, Scott et al

Filing 177

ORDER denying 161 Motion for Reconsideration. Signed by District Judge James D. Peterson on 1/6/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

WILLIE SIMPSON,
ORDER
Plaintiff,
v.

13-cv-776-jdp

DANE ESSER, SHAWN GALLINGER,
C.O. GODFREY, TRAVIS PARR,
SGT. PRIMMER, GARY BOUGHTON,
THERAN GAGE, CHAD WINGER,
CHRISTOPHER FOLEY, LUCAS RUNICE,
THOMAS BELZ, MICHAEL SHERMAN,
MICHAEL COCKCROFT, LEVERNE WALLACE,
MATHEW SCULLION, KEITH WEIGEL,
and C.O. KERSTEN,
Defendants.

Plaintiff Willie Simpson brings claims that defendant prison officials at the Wisconsin
Secure Program Facility made constant threats to harm or kill him, and on August 12, 2013,
beat him, sexually assaulted him during a strip search, and forced him to crawl into his cell. A
final pretrial conference and trial are set for January 25, 2016. Currently before the court is
defendants’ motion for reconsideration of the court’s October 9, 2015, summary judgment
opinion. Defendants seek reconsideration of my denial of their motion for summary
judgment regarding plaintiff’s claim that defendants Travis Parr, Shawn Gallinger, C.O.
Godfrey, Dane Esser, Thomas Belz, Christopher Foley, Michael Sherman, Michael Cockcroft,
Leverne Wallace, Mathew Scullion, Keith Weigel, and C.O. Kersten threatened to harm and
kill him.
The type of threatening harassment plaintiff alleges violates the Eighth Amendment
when it involves “a credible threat to kill, or to inflict other physical injury.” Dobbey v. Ill.

Dep’t of Corr., 574 F.3d 443, 446 (7th Cir. 2009). Defendants contend that plaintiff cannot
sustain this type of a claim against Cockroft, Wallace, Scullion, Weigel, and Belz because
they were not present at any of the alleged acts of violence that plaintiff believes were
connected to the ongoing threats against him.
In the summary judgment order, I considered plaintiff’s claim as follows:
This is a relatively undeveloped area of Eighth Amendment law.
The Seventh Circuit has noted that “[t]he line between ‘mere’
harassment and ‘cruel and unusual punishment’ is fuzzy,” id.,
and has been reluctant to call threats “credible” unless “it is
accompanied by something, such as the presence of a weapon or
other sign of force, from which one could reasonably infer that
the inmate ‘suffered the terror of instant and unexpected death
or serious injury.’”
***
In the present case, I understand plaintiff to be saying that
defendants repeatedly threatened him with harm or even death.
In his affidavit, he states that “between 1-1-2013 and October
2014 . . . [defendants] threatened to kill me without regard to
any penological reason, calculated to harass me, humiliate me,
abuse their power and cause unnecessary and wanton pain as
punishment for my past confrontation with CO Thomas Belz”
and that “[b]etween 7-25-2013 and 10-2-2014 [defendants]
came to my cell routinely taunting and threatening me stating
the use of the electronic taser on me on 7-25-2013 and 8-122013 fried me like a chicken and its not over they are going to
kill me.” Dkt. 148, at 1, 3. At his deposition, plaintiff had
difficulty recalling individual incidents but did assert that each
defendant involved in this claim made threats against him.
***
Defendants also argue that the threats are not “credible” because
they were not backed by any physical violence. Plaintiff
discusses three alleged assaults, taking place July 25, 2013,
August 12, 2013, and June 24, 2014. . . . I conclude that a
reasonable jury could conclude that the threats were credible
because they were backed by violence. . . .
***

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These first two alleged assaults are sufficient to prove the threats
to be credible, making it unnecessary to decide whether plaintiff
may use the June 24, 2014 incident postdating his complaint as
evidence that the threats were credible. As for whether plaintiff
may use this alleged attack as evidence at trial, the issue should
be taken up by the parties in their motions in limine.
Dkt. 154, at 26-30 (footnote omitted) (quoting Dobbey, 574 F.3d at 446).
Defendants contend that Cockroft, Wallace, Scullion, Weigel, and Belz do not have
the necessary personal involvement for liability under 42 U.S.C. § 1983 because they were
not involved in any of the alleged acts of violence. I disagree. Plaintiff must show that any
threat was credible, but he does not have to show that each actionable threat was made by a
defendant who personally assaulted him. Although plaintiff’s allegations about each specific
threat made by defendants remain somewhat vague, he has raised a reasonable inference that
all of the various threats were part of a pattern of behavior connected to the attacks. I stated
as much in the October 9 order: “No reasonable officer would think that it was lawful to
repeatedly threaten a prisoner with harm or death as part of a scheme of severe harassment
backed by actual assaults of the prisoner.” Dkt. 154, at 30.1 Accordingly, I will deny
defendants’ motion for reconsideration.
None of this means that it will be easy for plaintiff to prove his claim about the
threats. To prove liability against any single defendant, he will need to provide evidence
proving that that particular defendant made credible threats against him. Even if he proves
that a particular defendant made a threat against him, he will lose on that claim if the

1

Defendants reserve similar arguments regarding defendants Kersten and Sherman, who were
involved in only the June 24, 2014 incident that remains the subject of a motion in limine
that the parties have not completed briefing. See Dkt. 161, at 2 n.1. Even if I excluded
evidence of the June 24 attack, my reasoning above applies equally to these defendants’
alleged threats.

3

evidence shows that the threat was a stray remark unrelated to the physical violence against
him, barring some other reason to think that the threat was credible.

ORDER
IT IS ORDERED that defendants’ motion for reconsideration of the court’s October
9, 2015, summary judgment opinion, Dkt. 161, is DENIED.
Entered January 6, 2016.
BY THE COURT:
/s/
_________________________
JAMES D. PETERSON
District Judge

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