Nelson, Darryl et al v. Doe et al

Filing 30

ORDER that plaintiff Darryl Nelson may have until February 20, 2020, to file a response to defendants' motion for judgment on the pleadings and return a signed medical records release to defendants' attorney. If Nelson does not respond by that date, the court will dismiss Nelson's claims with prejudice under Federal Rule of Civil Procedure 41(b) for Nelson's failure to prosecute it. Signed by District Judge William M. Conley on 2/6/2020. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DARRYL NELSON,
Plaintiff,
v.

ORDER
17-cv-846-wmc

JASON CHATMAN, BRIANNA NOWAK,
KYLE SLAMA, KENNETH CORNELIUS,
CHARLIE BERGREN, and JEFFREY NYUGEN,
Defendants.
Pro se plaintiff Darryl Nelson, an inmate with the Wisconsin Department of
Corrections, incarcerated at Columbia Correctional Institution (“CCI”), was granted leave
to proceed against defendants, all employees of the DOC, employed at CCI, on a claim
that defendants violated his Eighth Amendment rights by failing to protect him from
another inmate. Defendants moved for judgment on the pleadings, relying on plaintiff’s
failure to respond to defendants’ requests for admission, including requests for admission
that he suffered no “physical harm” or “injuries” on two occasions central to his failure to
protect claims in this case. (Dkt. #28; see also Held Decl., Exs. 1, 2 (dkt. ##29-1, 29-2).) 1
Plaintiff failed to respond to defendants’ motion for judgment on the pleadings, nor
did he request an extension of time to respond. By failing to respond to defendants’
discovery requests and motion for judgment on the pleadings, it appears plaintiff may have

Without reaching the merits of defendants’ motion, the court notes that even if a plaintiff was
not physically attacked and did not suffer physical injuries, this does not necessarily foreclose a
claim. See, e.g., Turner v. Pollard, 564 Fed. Appx. 234, 238–39 (7th Cir. 2014) (plaintiff with failureto-protect claims could recover nominal and punitive damages even though he was not attacked);
Smith v. Peters, 631 F.3d 418, 421 (7th Cir. 2011) (“Prison officials who recklessly expose a prisoner
to a substantial risk of a serious physical injury violate his Eighth Amendment rights, [and may be
liable for] nominal and . . . punitive damages.”).

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abandoned this lawsuit. Accordingly, the court will give Nelson one chance to keep his
claims alive: not later than February 20, 2020, Nelson must (1) respond to defendants’
motion for judgment on the pleadings and (2) return a signed medical records release to
defendants’ attorney. Nelson’s failure to follow these directives will likely cause the court
to dismiss this lawsuit for failure to prosecute pursuant to Federal Rule of Civil Procedure
41(b). Accordingly,
IT IS ORDERED that plaintiff Darryl Nelson may have until February 20, 2020,
to file a response to defendants’ motion for judgment on the pleadings and return a signed
medical records release to defendants’ attorney. If Nelson does not respond by that
date, the court will dismiss Nelson’s claims with prejudice under Federal Rule of
Civil Procedure 41(b) for Nelson’s failure to prosecute it.
Entered this 6th day of February, 2020.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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