Khan, Amir v. Lathrop, Logen et al

Filing 62

ORDER that plaintiff Amir J. Khan is now GRANTED leave to proceed on the following claims: Eighth Amendment claims against defendants Lathrop, Evans, Kimbler, Hoeper, Hanky, Stilwell, and Trostoff; A Wisconsin-law negligence claim against defendant T rostoff. The clerk of court is directed to amend the caption to include defendants Hoeper, Hanky, Stilwell, and Trostoff. The summary judgment briefing schedule is amended as discussed in this opinion. Signed by District Judge James D. Peterson on 7/15/2021. (lam),(ps)

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

AMIR JAMEL KHAN,
Plaintiff,
v.

OPINION and ORDER

LOGEN J. LATHROP, KASSANDRA M. KIMBLER,
and JERRI L. EVANS,

19-cv-979-jdp

Defendants.
Plaintiff Amir J. Khan, appearing pro se, is a prisoner at Wisconsin Secure Program
Facility. Khan alleges that defendant prison officials failed to promptly address his threats of
suicide, allowing him to overdose on medication. I granted Khan leave to proceed on Eighth
Amendment claims against defendants Logen Lathrop, Jeri Evans, and Kassandra Kimbler,
three officers who interacted with Khan before he twice swallowed handfuls of medication.
Both sides filed motions for summary judgment. I reviewed those materials and
concluded that the parties might not have fully joined the issues necessary to resolve the case,
for two reasons: (1) defendants submitted proposed findings of fact at least partly shifting the
blame for delays in Khan’s cell extraction to an unnamed “control sergeant” who responded to
an emergency call by sending the response team to the wrong unit; and (2) Khan submitted
evidence in support of a theory that he overdosed on ibuprofen rather than the drugs he alleged
he had overdosed on in his complaint. Dkt. 60, at 1–3. I gave Khan a chance to submit a
supplement to his complaint raising any new claims he might wish to bring based on the facts
presented by defendants in their summary judgment briefing, and I stated that I would allow
defendants to supplement their summary judgment materials to address Khan’s evidence of
ibuprofen overdose. Id. at 2–3.

Khan has submitted his supplement to the complaint. Dkt. 61. I’ll consider this
document and Khan’s original complaint together to be the operative complaint. Khan has
added five new defendants; only the new defendants need answer Khan’s new allegations.
Khan contends that officers Kurt Hoeper, Matthew Hanky, and Ricky Stilwell violated
the Eighth Amendment by arriving at his cell but failing to remove him and confiscate his pills,
leading to his overdose. I will grant Khan leave to proceed on Eighth Amendment claims against
Hoeper, Hanky, and Stilwell.
Khan alleges that Sergeant Gary Trostoff was the official who sent the response team
to the wrong unit. Khan attempts to bring claims against Trostoff under Eighth Amendment
and Wisconsin-law negligence theories. I’ll grant him leave to proceed against Trostoff on both
theories.
Because Khan has stated new claims and because he raised new facts about his overdose
being from ibuprofen, I will set the following schedule for the parties to submit supplemental
briefing on their cross-motions for summary judgment:
•

Each side’s supplemental materials in support of their motions for summary
judgment: August 5, 2021.

•

Responses to supplemental materials: August 26, 2021.

•

Replies in support of supplemental materials: September 7, 2021.

Khan also seeks leave to proceed against Mark Kartman, the facility security director,
who Khan says destroyed video evidence of defendants’ interactions with him. I take Khan to
be attempting to bring access-to-the-courts and negligence claims against Kartman, but these
types of claims belong in a separate lawsuit if Khan is able to show that Kartman’s actions
caused the loss or inadequate settlement of meritorious claims in this or another case.
See Christopher v. Harbury, 536 U.S. 403, 414 (2002). I will not grant Khan leave to proceed

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on claims against Kartman in this case. Nonetheless, the court can still consider Khan’s
allegations against Kartman: if a prison official destroys video surveillance in a bad faith effort
to hide adverse information, a plaintiff may be entitled to sanctions or an inference that the
recording contained evidence supporting the plaintiff’s claim. See Bracey v. Grondin, 712 F.3d
1012, 1019–20 (7th Cir. 2013). The parties should address this issue with their supplemental
summary judgment briefing.

ORDER
IT IS ORDERED that:
1. Plaintiff Amir J. Khan is now GRANTED leave to proceed on the following claims:
•

Eighth Amendment claims against defendants Lathrop, Evans, Kimbler, Hoeper,
Hanky, Stilwell, and Trostoff.

•

A Wisconsin-law negligence claim against defendant Trostoff.

2. The clerk of court is directed to amend the caption to include defendants Hoeper,
Hanky, Stilwell, and Trostoff.
3. The summary judgment briefing schedule is amended as discussed in the opinion
above.
Entered July 15, 2021.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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