Carter, Tommie v. Cummings, Antonio et al

Filing 117

ORDER granting 95 Motion to Withdraw; denying as moot 86 Motion for Sanctions; granting in part 92 Motion for Sanctions; granting in part and denying in part 97 Motion for Summary Judgment; denying 110 Motion for Summary Judgment. Pl aintiff will be required to reimburse defendants for their reasonable expenses in responding to plaintiff's motion for sanctions. Defendants may have until February 22, 2017, to submit an itemized list of those expenses, along with an explanat ion regarding why they are reasonable. Plaintiff may have until March 8, 2017, to respond. Defendants may have until March 15, 2017, to reply. Defendants' motion for summary judgment, dkt. # 97 , is DENIED as to plaintiff's claim that d efendants Pickle and Cummings failed to protect plaintiff from self harm. Defendants' summary judgment motion is GRANTED as to plaintiff's claim against defendant Van Lanen. That claim is DISMISSED WITHOUT PREJUDICE to plaintiff's refiling it after the proceedings in this case are completed. Signed by District Judge Barbara B. Crabb on 2/8/2017. (jef),(ps)

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

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - TOMMIE L. CARTER,
OPINION and ORDER
Plaintiff,
16-cv-55-bbc
v.
ANTONIO CUMMINGS, ROBERT PICKLE
and JAY VAN LANEN,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se prisoner Tommie Carter is proceeding on two claims: (1) defendants Antonio
Cummings and Robert Pickle (both correctional officers) were aware of a substantial risk
that plaintiff would seriously harm himself on October 17, 2013, but they consciously failed
to take reasonable measures to prevent the harm, in violation of the Eighth Amendment; and
(2) defendant Jay Van Lanen (also a correctional officer) refused to take pictures of
plaintiff’s injuries on October 17, 2013, in order to prevent plaintiff from proving his claim,
in violation of plaintiff’s right to have access to the courts.
Several motions are before the court: (1) plaintiff’s motion for sanctions, dkt. #86;
(2) defendants’ motion for sanctions, dkt. #92; (3) plaintiff’s motion to withdraw his
motion for sanctions, dkt. #95; (4) defendants’ motion for summary judgment, dkt. #97;
and (5) plaintiff’s motion for summary judgment, dkt. #110.

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Because plaintiff has withdrawn his motion for sanctions, I need not consider that
motion. I am denying defendants’ request to dismiss this case as a sanction, but I agree with
defendants that it should have been clear to plaintiff when he filed his own sanctions motion
that the motion was improper. Accordingly, I am requiring plaintiff to reimburse defendants
for the reasonable expenses they incurred in responding to his sanctions motion before he
withdrew it.
With respect to the parties’ motions for summary judgment, I conclude that there are
genuine issues of material fact requiring a trial on plaintiff’s claim against Cummings and
Pickle. I am dismissing plaintiff’s claim against defendant Van Lanen without prejudice
because that claim is not ripe.

OPINION
A. Sanctions Motions
In a motion the court received on October 17, 2016, plaintiff asked for “sanctions”
and an “investigation” regarding an alleged failure of prison staff members to prevent
plaintiff from harming himself in September 2016. Dkt. #87. None of the staff members
discussed in the motion were parties to this case.
In response, defendants argued that the motion should be denied because plaintiff’s
allegations are outside the scope of his claims and because the allegations are false. Dkt.#92.
In addition, defendants filed their own motions for sanctions, asking the court to dismiss the
case for the same reasons. Id. Because this court has sanctioned plaintiff in the past for

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making false allegations, defendants asked for an even more severe sanction, a general filing
bar on future cases. Id.
Plaintiff then moved to withdraw his own motion for sanctions. Dkt. #95. He said
that he brought his sanctions motion “in good faith” and that he did not realize at the time
he filed it that he could not obtain sanctions for conduct that was outside the scope of his
claims. He asked that defendants’ motion for sanctions be denied as moot.
Defendants did not oppose plaintiff’s motion to withdraw, but they did not withdraw
their own sanctions motion. Instead, they argued that plaintiff’s original motion showed his
“disregard for the litigation process” and still required a sanction. Dkt. #96.
Defendants’ arguments have some force. Plaintiff lacks credibility when he says that
he was unaware until defendants filed their motion for sanctions that it was inappropriate
for him to seek sanctions against individuals who are not parties and about conduct that is
outside the scope of the case. In the August 17, 2016 order in this case (only two months
before plaintiff filed his motion for sanctions), I informed plaintiff multiple times that he
cannot raise issues outside the scope of his complaint. Dkt. #72 at 5-6 (“Plaintiff seeks a
preliminary injunction to stop prison officials from transferring him to different prisons
within the state. However, neither of plaintiff's pending lawsuits in this court is related to
his placement at a particular prison and he does not allege that any of the defendants are
responsible for transfer decisions, so this issue is outside the scope of this lawsuit.”); id. at
7 (“[T]his motion raises issues that are outside the scope of these cases and is about officials
who are not party to this case. If plaintiff believes that his cell conditions are

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unconstitutional, he will have to file a separate lawsuit.”); id. at 10 (“Although the
allegations are disturbing, they are outside the scope of this lawsuit, like so many of the other
motions plaintiff has filed. Again, plaintiff does not allege that defendants are involved in
any of this conduct. . . . . He cannot insert new, unrelated issues into whatever lawsuits
happen to be pending.”).
In his previous cases, I gave plaintiff similar instructions that issues outside the scope
of his claims should not be raised in the lawsuit. E.g., Carter v. Ashton, No. 14-cv-399-bbc
(W.D. Wis. May 1, 2015), dkt. #62 at 7 (“Plaintiff does not explain how documents related
to an alleged relationship with defendant Ashton are relevant to his claims, so that issue is
outside the scope of this case.”); Carter v. Ashton, 14-cv-399-bbc (W.D. Wis. June 11,
2015), dkt. #65 at 3 (“Because plaintiff has not filed a subpoena and he has not explained
how any of the records he wants are relevant to his claims, I am denying this part of his
motion.”). Plaintiff fails to explain why he did not heed the court’s repeated instructions.
That being said, dismissal or an outright filing bar would be harsh sanctions for filing
a motion that should have been filed as a separate lawsuit, even if the party has made the
same mistake in the past. Defendants do not identify any case in which similar conduct was
sanctioned in that manner.
It is true that defendants seek sanctions not just because plaintiff’s allegations are
unrelated to the case, but also on the ground that the allegations are false. I dismissed both
Carter v. Waterman, No. 13-cv-742-bbc (W.D. Wis.), and Carter v. Ashton, No. 14-cv-399bbc (W.D. Wis.), as a sanction after finding that plaintiff had falsified allegations about

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prison staff. I declined to impose additional sanctions because plaintiff had not been
sanctioned before, but I advised plaintiff that, if he “continues to make false allegations in
this court and engages in other litigation misconduct, I will consider whether a more severe
sanction is appropriate, including a monetary sanction and bar on filing additional lawsuits
in this court.” Carter v. Waterman, No. 13-cv-742-bbc, 2016 WL 407331, at *9 (W.D.
Wis. Feb. 2, 2016). I agree with defendants that plaintiff’s past conduct is a relevant
consideration in determining whether plaintiff should be sanctioned in this case. Averhart
v. Sheriff of Cook County, Illinois, 752 F.3d 1104 (7th Cir. 2014) (history of litigation
misconduct is relevant to determining appropriate sanction); e360 Insight, Inc. v. Spamhaus
Project, 658 F.3d 637, 643 (7th Cir. 2011) (same); Carr v. Tillery, 591 F.3d 909, 919-20
(7th Cir. 2010) (same).
However, in this case, the only evidence defendants cite in support of their argument
that plaintiff falsified the allegations in his motion for sanctions is an affidavit from a prison
staff member. Dkt. #94. Thus, determining who is telling the truth would require an
evidentiary hearing. Because plaintiff has withdrawn his allegations for the purpose of this
case and the parties agree that the allegations are unrelated to plaintiff’s pending claims, the
question seems to be moot. Defendants do not identify any cases in which a court dismissed
a case as a result of a withdrawn motion. This situation is similar to the one contemplated
in Fed. R. Civ. P. 11(c)(2), which gives a party an opportunity to withdraw whatever
document is the subject of the motion for sanctions.
For these reasons, I decline to impose a filing bar on plaintiff or to dismiss the case

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as a sanction. However, because plaintiff filed the motion in defiance of multiple orders
from this court, I conclude that a more limited sanction is appropriate. Accordingly, I will
require plaintiff to reimburse defendants for the costs they incurred in responding to the
motion. If plaintiff does not have the funds now to cover those costs, he will have to make
regular payments in accordance with prison rules as he does for any other debt.

B. Motions for Summary Judgment
1. Failure to prevent self harm
Plaintiff’s first claim is that defendants Cummings and Pickles, two correctional
officers who worked on plaintiff’s unit, failed to protect him from self harm. In particular,
plaintiff alleges that he informed defendants over the intercom in his cell that he was feeling
suicidal, but they refused to help him, so he cut his arm multiple times. To prevail on this
type of claim, a prisoner must show both that defendants were aware of substantial risk that
the prisoner would seriously harm himself and that the defendants consciously failed to take
reasonable measures to prevent the harm. Rice ex rel. Rice v. Correctional Medical Services,
675 F.3d 650 (7th Cir. 2012); Frake v. City of Chicago, 210 F.3d 779 (7th Cir. 2000).
Defendants’ arguments relating to this claim are neither clear nor well developed, but
I understand defendants to be seeking dismissal of this claim on three grounds: (1)
defendants were not aware of a substantial risk of serious harm to plaintiff; (2) defendants
took reasonable measures to help plaintiff; and (3) plaintiff’s injuries were not sufficiently
serious to implicate the Eighth Amendment. Because all three of these issues are genuinely

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disputed, I am denying defendants’ motion for summary judgment.
With respect to their first argument, defendants say that “there is no evidence to
support a conclusion that Officer Cummings or Pickle was cognizant that [plaintiff] was
imminently suicidal.” Dfts.’ Br., dkt. #98, at 12.

However, this argument overlooks

plaintiff’s own declaration in which he avers that he spoke to Cummings and Pickle over the
emergency intercom and told them that he wanted them to contact the psychological services
unit because he was feeling “suicidal” and was going to harm himself. Plt.’s Decl. ¶¶ 4, 25
and 26, dkt. #109. If that conversation occurred, it is sufficient to allow a reasonable jury
to find that defendants were aware of a substantial risk of serious harm.

Sanville v.

McCaughtry, 266 F.3d 724, 737–38 (7th Cir. 2001) (“[I]f [the prisoner] told [the
defendants] that he was suicidal, that alone should have been enough to impute awareness
of a substantial risk of suicide.”) (internal quotations omitted).
Defendants aver that there are no emergency intercom calls logged for the day at
issue, Dfts.’ PFOF ¶ 22, dkt. #115, and that they “do not recall” plaintiff making any
statements that he was suicidal, id. at ¶ 24. However, defendants’ log book and testimony
simply show that there is a genuine issue of material fact; their evidence does not require
judgment in their favor as a matter of law.
With respect to their second argument, that they acted reasonably, defendants say
in their brief that “Officer Cummings properly communicated with the Unit Sergeant
regarding Carter on October 17, 2013,” Dfts.’ Br., dkt. #98, at 12, though they do not say
what they told the unit sergeant or even whether they ever discovered that plaintiff had

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harmed himself. Defendant Van Lanen (the unit sergeant) avers that he “was notified” that
plaintiff was harming himself, but he does not say who notified him. Van Lanen Decl. ¶ 27,
dkt. #115. However, it is undisputed that Van Lanen took plaintiff to the health services
unit, Dfts.’ PFOF ¶ 33, dkt. #115, so how Van Lanen found out is not dispositive.
The bigger problem with defendants’ argument is that it rests on an incorrect
assumption, which is that plaintiff’s claim is limited to an allegation that defendants failed
to help him after he harmed himself. But plaintiff is alleging that defendants failed to prevent
his act of self harm. In particular, he avers that, after he told defendants Cummings and
Pickle that he was suicidal, they replied that “they did not give a fuck if [plaintiff] killed
[him]self” and they refused to help him, which then led to his decision to cut himself. Plt.’s
Decl ¶ 5, dkt. #109. Not surprisingly, defendants deny that they did this, but, again, that
simply means that there is a genuine issue of material fact.
Finally, with respect to the harm plaintiff suffered, defendants cite contemporaneous
notes from Amy Gandy, a nurse who examined plaintiff after he harmed himself. She wrote
that plaintiff had two cuts on his left forearm, that both were approximately 1 to 1 ½
centimeters long, and that both “appear[ed] superficial.”

Dkt. #103-1, exh. 1003, at 4.

She gave him steri strips to cover the wounds.
As an initial matter, the Court of Appeals for the Seventh Circuit has rejected the
view that a prisoner must show serious harm to sustain an Eighth Amendment claim. Smith
v. Peters,

631 F.3d 418, 420-21 (7th Cir. 2011).

If the prisoner was exposed to a

substantial risk of serious harm, that is sufficient. Id. In any event, plaintiff disputes

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defendants’ characterization of the injury and avers that there was a substantial amount of
blood.

Plt.’s Decl. ¶¶

6 and 38, dkt. #109.

See also Vann v. Vandenbrook, No.

09-cv-007-bbc, 2010 WL 148396, at *3 (W.D. Wis. Jan. 12, 2010) (“A reasonable jury
could find that the bleeding cuts on plaintiff's arms qualified as a serious medical need that
required some treatment.”). Again, this is not a dispute that can be resolved on a motion
for summary judgment.
In their reply brief, defendants seem to concede that, on its face, plaintiff’s evidence
is sufficient to require a trial.

Dfts.’ Br., dkt. #113, at 2 (“[B]ased on the face of

submissions such as those in response to summary judgment, Defendants may often consider
conceding a dispute of material fact sufficient to require adjudication by jury.”). However,
defendants go on to argue that the court should reject plaintiff’s evidence as a matter of law.
In support, they cite Seshadri v. Kasraian, 130 F.3d 798, 801 (7th Cir. 1997), a copyright
case in which the court rejected the view that a court must credit testimony in an affidavit
so long as the testimony is not “contrary to the laws of nature.” Rather, “the testimony can
and should be rejected without a trial if, in the circumstances, no reasonable person would
believe it.” Id. at 802. The court upheld the district court’s determination to reject an
affidavit from the plaintiff, who averred that the defendant was not a joint author of an
article, despite substantial correspondence by the plaintiff in which he repeatedly admitted
that the defendant was a joint author, creating “a paper trail so unequivocal as to render the
affidavit utterly incredible,” particularly because the plaintiff did not attempt to explain the
inconsistencies in his story. Id. at 801-04.

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The situation in Seshadri bears little resemblance to this case. Defendants point to
no previous statement from plaintiff in which he provided a different version of events.
Instead, they ask the court to discredit plaintiff’s testimony because he has made false
allegations in the past, but they cite no authority for the view that a court may disregard
evidence because of a litigant’s conduct in a previous case. Cf. United States v. Edwards,
581 F.3d 604, 612 (7th Cir. 2009) (“[T]he fact that a witness lies about one thing doesn't
automatically invalidate all his testimony.”).
There may be numerous reasons to doubt plaintiff’s story, but it is for the jury to
determine which side is more credible. Even when a party relies solely on his own “self
serving” testimony, that can be enough to defeat a motion for summary judgment. Kellar
v. Summit Seating Inc., 664 F.3d 169, 175 (7th Cir. 2011) (“[E]vidence presented in a
‘self-serving’ affidavit or deposition is enough to thwart a summary judgment motion.”).
Cases like Seshadri in which a court disregards a party’s testimony are rare. Since that case,
the court has further explained the rule: “credibility issues are to be left to the trier of fact
to resolve on the basis of oral testimony except in extreme cases. The exceptional category
is—exceptional. For the case to be classified as extreme, the testimony sought to be withheld
from the trier of fact must be not just implausible, but utterly implausible in light of all
relevant circumstances.” In re Chavin, 150 F.3d 726, 728 (7th Cir. 1998).
The cases are legion in which the court of appeals has admonished district courts to
resist the temptation to decide which party’s version of events is more persuasive or
believable. E.g., Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014) (“Sometimes the

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heftiness of the evidence on one side, or the credulity of a particular litigant makes our task
of suspending factual and credibility determinations difficult, but whatever the difficulty, we
must stick to the task on summary judgment . . . and avoid the temptation to decide which
party's version of the facts is more likely true.”); Ortiz v. City of Chicago, 656 F.3d 523, 532
(7th Cir. 2011) (“[A]t summary judgment, . . . we resolve all disputed facts and make all
reasonable inference in favor of the plaintiff and do not weigh the credibility of witnesses.
We decline the defendants' invitation to disregard [the] statements [of two prisoner
witnesses].”); Darchak v. City of Chicago Board of Education, 580 F.3d 622, 632 -633 (7th
Cir. 2009) (“[I]t is not the court's job to assess the persuasiveness of [a witness’s] testimony
[at summary judgment.]”); Thomas v. Cook County Sheriff's Dept., 604 F.3d 293, 302 (7th
Cir. 2010) (“When faced with conflicting, or even inconsistent testimony, the jury is free to
believe one side over another.”).
In accordance with these cases, I decline to make a credibility determination in the
context of a motion for summary judgment. Defendants are free to point out to the jury the
reasons they believe that plaintiff’s testimony should not be believed.
Alternatively, defendants argue in their reply brief that plaintiff “admits that his
actions on October 17, 2013, in cutting himself were for the purpose of suing corrections
officials. Accordingly, Carter did not have a serious medical need on October 17, 2013, as
his actions were intentional and calculated for the purpose of manipulating staff and events
in an effort to manufacture this very lawsuit.” Dfts.’ Br., dkt. #113, at 1. In support of this
statement, defendants cite paragraph 39 of plaintiff’s declaration, in which he says that,

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whenever he harms himself, he asks officers to take a photograph of the injury “because I
plan to sue” and because “it is a D.O.C. requirement that pictures be taken of all self harm
injuries.” Dkt. #109.
Plaintiff is not admitting in his declaration that he harmed himself in order to sue the
defendants, or at least that is not the only reasonable interpretation of the statement.
Another reasonable interpretation is that plaintiff wanted to preserve evidence to prove the
officers’ failure to protect him. Again, defendants are free to cross examine plaintiff about
this issue at trial.
In any event, defendants cite no authority for the view that officers are free to
disregard a prisoner’s request for help if they conclude that the prisoner is harming himself
in order to manipulate staff. Estate of Hill v. Richards, 525 F. Supp. 2d 1076, 1083–84
(W.D. Wis. 2007) (“[T]he duty of a jail official to prevent a suicide does not turn on the
reason the prisoner may try to harm herself.”); Jones ‘El v. Berge, 164 F. Supp. 2d 1096,
1107 (W.D. Wis. 2001) (noting expert’s testimony regarding “many situations . . . in which
a staff member dismissed a cry for help as manipulation, only to find that the prisoner
committed suicide”). In the case defendants cite, Collins v. Seeman, 462 F.3d 757, 761 (7th
Cir. 2006), the court held that a prisoner’s request to see a crisis counselor was not sufficient
to put officers on notice that the prisoner would harm himself when the prisoner did not give
a reason for the request. Unlike what plaintiff alleges in this case, the prisoner did not tell
the officers that he was suicidal. Although the court noted that prisoners “sometimes make
such requests as a means of manipulating prison staff,” id., that was in the context of a

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conclusion that the prisoner had not provided enough information to suggest a strong
likelihood of self harm; the court did not say that officials could consider the reason for the
potential harm before deciding whether to intervene. See also Estate of Hill, 525 F. Supp.
2d at 1083 (in cases involving prisoner self harm, court of appeals “has not considered as
relevant whether a suicide attempt was a product of mental illness or manipulation”).
Plaintiff filed his own motion for summary judgment, but I am denying that motion
as well. As the above discussion shows, there are factual disputes that preclude granting
summary judgment to either side.

2. Interference with access to courts
Plaintiff’s second claim is that defendant Van Lanen refused to take pictures of
plaintiff’s injuries in an attempt to prevent plaintiff from proving his claim, in violation of
plaintiff’s right to have access to the courts. Again, defendants’ arguments are neither clearly
articulated nor well developed, but I understand them to be seeking dismissal on two
grounds: (1) even without photographs, plaintiff can prove his claim in other ways; and (2)
plaintiff has not shown that defendant Van Lanen intentionally interfered with plaintiff’s
right to have access to the courts. I need not consider either of these arguments because I
conclude that plaintiff’s claim is premature.
The Supreme Court has identified two types of claims involving the denial of access
to the courts. The first type is a forward-looking claim in which the defendant is
“frustrat[ing]” the plaintiff’s ability to “prepar[e] and fil[e] suits at the present time.”

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Christopher v. Harbury, 536 U.S. 403, 412 (2002). The purpose of this type of claim is to
remove a roadblock to litigation that the defendant has placed in the plaintiff’s way. Id.
The second type is a backward-looking claim in which the plaintiff alleges that the
defendant hurt his ability to obtain relief in a case that he can no longer pursue. Id. at 414.
The purpose of this type of claim is to provide a remedy for the lost opportunity to obtain
relief in the other case. Id.
Plaintiff’s claim does not fit into either of the types described by the Supreme Court,
something I should have recognized when screening the complaint. There is no relief this
court can grant plaintiff that would create the photographs that Van Lanen failed to take,
so plaintiff’s claim does not fit into first type of claim. And plaintiff is still litigating the
claim that the photographs could have helped to prove, so it is too soon to tell whether Van
Lanen’s alleged conduct will prevent plaintiff from obtaining relief on that claim. In other
words, if plaintiff prevails on his claim against defendants Cummings and Pickle at trial and
obtains his requested relief, then defendant Van Lanen’s alleged conduct will not have
caused plaintiff any harm.
When a plaintiff brings an access to courts claim because of “speculation that he
would suffer some unspecified future harm,” the claim must be dismissed for the plaintiff’s
failure to identify an “actual injury.” Marshall v. Knight, 445 F.3d 965, 969–70 (7th Cir.
2006). In accordance with this rule, many courts have dismissed access to courts claims
when the claim that the defendant allegedly frustrated is still being litigated. Morales v. City
of Los Angeles, 214 F.3d 1151, 1155 (9th Cir. 2000) (“[D]enial-of-access-to-the-courts

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claims arising from alleged police misconduct . . . are not ripe until the trial court
proceedings are concluded adversely to the plaintiffs.”); Vallade v. Fischer, No. 12-cv-00231
A M, 2014 WL 5481881, at *16 (W.D.N.Y. Oct. 29, 2014) (“[E]ven if the [evidence] was
willfully destroyed in an effort to cover-up defendants' conduct, plaintiff has not established
that this caused him to lose or inadequately settle a meritorious action, since his underlying
Eighth Amendment claim arising from the March 30, 2009 accident remains pending.”);
Raymond v. Sloan, Civ. No. 1:13–423 WBS, 2014 WL 4215378, *3 (D. Idaho Aug. 25,
2014) (“At this stage in the litigation, it is premature to determine whether defendants'
alleged cover-up will result in the defeat of her negligence claim. Instead of speculating upon
the fate of that claim, the court will instead dismiss plaintiff's § 1983 claim without
prejudice”); Parrish v. Solis, No. 11-CV-01438, 2014 WL 1921154, at *13 (N.D. Cal. May
13, 2014) (“Plaintiff cannot allege the ‘loss’ of this claim at this point in time because
litigation of that claim is still pending in this very Court. This leads to the conclusion . . .
that his claim is premature and not ripe for adjudication.”); Lynch v. Barrett, No.
09-CV-00405-JLK-MEH, 2010 WL 3938359, at *6 (D. Colo. Oct. 5, 2010) (“Plaintiff's
injury is contingent on the success (or lack thereof) of his excessive force claim. . . . Plaintiff
has yet to experience a concrete injury, or denial of meaningful relief, and therefore, his
access-to-courts claim is unripe.”).
Although defendants did not raise this issue, the actual injury requirement comes
from the doctrine of standing, Marshall, 445 F.3d at 970, which is a jurisdictional issue that
must be raised by the court even if the parties fail to do so. Crosby v. Cooper B-Line, Inc.,

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725 F.3d 795, 800 (7th Cir. 2013); Schirmer v. Nagode, 621 F.3d 581, 584 (7th Cir. 2010).
Accordingly, I am dismissing this claim without prejudice to plaintiff’s refiling it after the
proceedings in this case are completed, which includes any proceedings on appeal.
It is important to note that, if plaintiff loses his Eighth Amendment claim at trial, that
does not necessarily mean that defendant Van Lanen violated plaintiff’s right to have access
to the courts. Obviously, there are many other reasons that plaintiff’s claim may fail that
have nothing to do with the absence of photographs. The only conclusion that I reach in
this order is that I cannot evaluate the merits of plaintiff’s access to courts claim while his
Eighth Amendment claim is pending.

ORDER
IT IS ORDERED that
1. Plaintiff Tommie Carter’s motion to withdraw his motion for sanctions, dkt. #95,
is GRANTED, and his motion for sanctions, dkt. #86, is DENIED as moot.
2. The motion for sanctions filed by defendants Jay Van Lanen, Robert Pickle and
Antonio Cummings, dkt. #92, is GRANTED IN PART.

Plaintiff will be required to

reimburse defendants for their reasonable expenses in responding to plaintiff’s motion for
sanctions. Defendants may have until February 22, 2017, to submit an itemized list of those
expenses, along with an explanation regarding why they are reasonable. Plaintiff may have
until March 8, 2017, to respond. Defendants may have until March 15, 2017, to reply.
3. Defendants’ motion for summary judgment, dkt. #97, is DENIED as to plaintiff’s

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claim that defendants Pickle and Cummings failed to protect plaintiff from self harm.
4. Defendants’ summary judgment motion is GRANTED as to plaintiff’s claim
against defendant Van Lanen. That claim is DISMISSED WITHOUT PREJUDICE to
plaintiff’s refiling it after the proceedings in this case are completed.
5. Plaintiff’s motion for summary judgment, dkt. #110, is DENIED.
Entered this 8th day of February, 2017.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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