Flemming, Jayvon v. Hauck et al
Filing
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ORDER that the motion for summary judgment filed by defendants, Dkt. 15 , is GRANTED. The clerk of court is directed to enter judgment for defendants and close this case. Signed by District Judge James D. Peterson on 1/7/2022. (kmd),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JAYVON R. FLEMMING,
v.
Plaintiff,
OPINION and ORDER
MCKENIN HAUCK and THEODORE ANDERSON,
20-cv-634-jdp
Defendants.
Pro se plaintiff Jayvon R. Flemming contends that that prison staff at Columbia
Correctional Institution violated his Eighth Amendment rights by failing to protect him from
engaging in self-harm. Defendants have filed a motion for summary judgment. Dkt. 15. I have
assumed for purposes of summary judgment that the relevant events occurred as Flemming
says they did. But even under Flemming’s version of events, no reasonable jury could conclude
that defendants knew that Flemming might imminently harm himself or that defendants failed
to take reasonable measures to prevent him from doing so. Accordingly, I will grant defendants’
motion for summary judgment.
UNDISPUTED FACTS
The following facts are undisputed unless otherwise noted.
In May 2019, plaintiff Jayvon Flemming was incarcerated at Columbia Correctional
Institution, where defendant Theodore Anderson was a security lieutenant and defendant Dr.
McKenin Hauck was a prison psychologist. Flemming has a history of mental illness, including
self-harming behavior and attempted suicide. Defendants Anderson and Hauck were aware of
Flemming’s history of engaging in self-harm. But based on Hauck’s interactions with Flemming,
Hauck thought that Flemming frequently made insincere threats of self-harm as a means to get
staff attention, to control his placement or property, to avoid negative consequences, or to
retaliate against staff.
On May 26, 2019, Flemming was housed in general population. He made threats of
self-harm, and the on-call psychologist ordered that Flemming be placed on observation status.
(Placement on observation status is determined by psychological services staff, and it requires
that security staff check on inmates every 15 minutes.) The next day, defendant Dr. Hauck
was working at the prison as the on-call clinical psychologist. Sometime after 11:00 a.m., Hauck
and Anderson were on the restricted housing using checking on another inmate who was on
observation status. According to Hauck, Flemming tried to get her attention and told her that
he was not feeling suicidal and wanted to be removed from observation. Hauck’s observation
notes from that day state that Flemming “presented with appropriate mood and affect,” showed
“no signs of overt distress,” and “expressed that he was motivated to participate in a family
visit that day.” But according to Flemming, Hauck did not evaluate him or talk to him about
how he was feeling while she was on the unit.
Hauck reviewed the observation log on which security staff had recorded Flemming’s
behavior throughout the previous night. The log noted that Flemming had been upset during
the night and had threatened to cut himself with a staple because he did not immediately
receive the toilet paper he requested. Flemming did not hurt himself, and eventually gave the
staple to a supervisor. The log also noted that Flemming had been sleeping, rapping, and talking
with another inmate on the unit. Hauck concluded that Flemming should be removed from
observation status based on her observation of Flemming on the unit and security staff’s
observation log. She wrote in her observation notes that:
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Although contact with Inmate Flemming was brief, he presented
with appropriate mood and was not endorsing thoughts, intent,
or plans to engage in self-harm. Additionally, he had not engaged
in any self-harm behaviors. On one occasion he had held a staple
up and threatened self-harm, ultimately handing the staple out to
staff. This was a behavior that was motivated to receive attention
and as an attempt to obtain the toilet paper he was upset that he
had not received at the moment of his asking. Documentation
showed that Inmate Flemming had been socializing with peers on
the unit, eating, sleeping, and also singing/rapping.
Hauck told defendant Anderson that Flemming should be removed from observation
status. But instead of sending Flemming back to general population, Anderson decided that
Flemming should be placed on control status because he had been disruptive and disrespectful
while he was on observation status. (Control status is determined by security staff, and it
requires that security staff check on inmates every 30 minutes. Inmates on control status do
not have access to their property unless authorized by security staff.) In accordance with prison
policy, Flemming was strip-searched before being transferred to control status. During the stripsearch, Flemming told officers that he was coming from observation status, that he was clearly
suicidal, and that he had a history of harming himself. While being placed in control status,
Flemming yelled out to Anderson several times, “I’m letting you know right now that I’m fitting
to engage in self-harm” and “I’m letting you know right now that I’m going to engage in selfharm.” Anderson notified psychological services staff about Flemming’s statements. Anderson
also conducted a briefing on camera after placing Flemming on control status, during which
Anderson stated that he had observed Flemming and believed that Flemming was threatening
self-harm as a means to gain access to additional property.
A psychological staff member contacted Dr. Hauck about Anderson’s message that
Flemming had reported suicidal thoughts after he was told that he was being placed on control
status. Hauck thought that Flemming was expressing suicidal thoughts to staff because he was
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upset about being placed on control status, and not because he was clinically depressed or
genuinely suicidal. She concluded that Flemming should not be placed back on clinical
observation because doing so would reinforce Flemming’s attention-seeking behavior.
Approximately two hours after Flemming had been placed on control status, Captain
Julson contacted Hauck to tell her that Flemming had cut his arm with a paperclip and inserted
the paperclip into the wound. Julson told Hauck that Flemming was going to the local
emergency room for stitches and to have the paperclip removed from his arm, but that
Flemming was being calm and cooperative. Julson stated that Flemming did not appear to be
depressed, but instead appeared to be trying to secure placement in clinical observation. Julson
contacted Hauck again after Flemming returned from the hospital, stating that Flemming was
in “good spirits,” continued to be calm and cooperative, and denied thoughts or plans to hurt
himself. Hauck concluded that Flemming did not need to be placed on observation status.
ANALYSIS
Flemming contends that defendants Dr. Hauck and Lt. Anderson violated his Eighth
Amendment rights by failing to protect him from harming himself. In particular, he argues that
Hauck should not have removed him from observation status without conducting a thorough
evaluation of him, and that Anderson should have done more to protect him after he was placed
on control status. Prison officials violate the Eighth Amendment if they are aware of an
objectively serious risk of harm to an inmate and knowingly or recklessly disregard it. Farmer
v. Brennan, 511 U.S. 825, 846 (1994). To prevail on his Eighth Amendment claims, Flemming
would need to prove that: (1) at the time he interacted with defendants, there was a strong
likelihood that he would seriously harm himself in the near future; (2) defendants knew of that
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strong likelihood; and (3) defendants consciously failed to take reasonable measures to prevent
Flemming from harming himself. See Lisle v. Welborn, 933 F.3d 705, 716–17 (7th Cir. 2019);
See Estate of Clark v. Walker, 865 F.3d 544, 553 (7th Cir. 2017); Rice ex rel. Rice v. Corr. Med.
Servs., 675 F.3d 650 (7th Cir. 2012). Defendants contend that Flemming has not adduced
evidence to show that they knew of a strong likelihood that he would seriously harm himself
or that they failed to take reasonable measures to protect him.
Defendants are correct. The undisputed evidence shows that neither Anderson nor
Hauck thought it was likely that Flemming would imminently and seriously harm himself if he
was taken off of observation status and placed on control status. Both defendants made
contemporaneous records explaining their reasons for discounting Flemming’s threats of selfharm. Anderson stated in a video briefing that he had observed Flemming and believed that
Flemming was threatening self-harm as a means to gain access to additional property. Hauck
wrote in her notes that she thought Flemming was using threats of self-harm to avoid being
placed on control status and to get attention from staff. Hauck thought that placing Flemming
back on observation status would reinforce what she believed were his attention-seeking
behaviors. Hauck also noted that Flemming had not engaged in self-harm during his 13 hours
on observation and that he had shown self-control by giving a staple to prison staff. Because
defendants doubted the sincerity of Flemming’s threats of self-harm, they did not subjectively
know that Flemming faced a substantial risk of serious harm. See Collins v. Seeman, 462 F.3d
757, 761 (7th Cir. 2006) (defendants not liable under Eighth Amendment if they did not
subjectively know of “the significant likelihood that an inmate may imminently” harm himself).
Flemming does not genuinely dispute whether Anderson and Hauck thought his threats
of self-harm were sincere. He does not deny that he had previously used threats of self-harm in
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an attempt to control staff or gain access to property. And the evidence shows that during the
relevant time period, he threatened to harm himself when he was dissatisfied with staff
decisions, such as the denial of toilet paper and his transfer to control status. But Flemming
argues that, even if defendants doubted the sincerity of his threats, they were obligated to place
him back on observation status and conduct a more thorough evaluation once he told prison
staff that he was feeling suicidal and was going to harm himself.
Flemming’s argument is contrary to Eighth Amendment law. Prison staff are “neither
required nor expected to believe everything inmates tell them,” Olson v. Morgan, 750 F.3d 708,
713 (7th Cir. 2014), and prison staff “who reasonably disbelieves a prisoner’s assertion is not
liable just because it turns out to have been true.” Horshaw v. Casper, 910 F.3d 1027, 1029 (7th
Cir. 2018). See also Lord v. Beahm, 952 F.3d 902, 905 (7th Cir. 2020) (ignoring “an insincere
suicide threat from an inmate wanting nothing more than attention” does not confer liability
under the Eighth Amendment); Szopinski v. Koontz, 832 F. App'x 449, 451 (7th Cir. 2020)
(defendants not liable under Eighth Amendment for failing to prevent inmate from harming
himself where they had no “reason to believe that his threats to harm himself were genuine,
rather than a manipulative ploy to get placed under observation”). In this instance, the
undisputed facts show that defendants thought that Flemming was making insincere threats of
self-harm to manipulate staff. Hauck also thought that, based on her professional judgment, it
would be unhelpful to give Flemming what he demanded each time he threatened self-harm.
Because Flemming has not submitted evidence to refute the sincerity or reasonableness of
defendants’ beliefs, he cannot prove that defendants deliberately disregarded a substantial
threat to Flemming’s health or safety.
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And even if defendants thought that Flemming’s threats of self-harm might be genuine,
they did not disregard his safety. Defendants knew that Flemming was being moved directly
from clinical observation to control status. He would be monitored every 30 minutes by
security staff, he would not have access to his property, and he would be strip-searched to
minimize the risk that he could bring items into his cell with which he could harm himself.
Flemming did not tell defendants how or when he intended to harm himself, and he has
submitted no evidence suggesting that defendants knew that he might access a paper clip or
other means by which he could seriously and imminently harm himself in control status. So
even though Flemming had shouted to staff that he was going to harm himself, it was
reasonable for defendants to believe that Flemming would be unable to imminently engage in
serious self-harming behavior while on control status. See Wright v. Funk, 853 F. App'x 22, 24
(7th Cir. 2021) (prisoner’s statement to defendants that “he was having suicidal thoughts and
would like to speak with someone from the psychological services unit” did not make
defendants aware that prisoner faced substantial and imminent risk of self-harm); Johnson v.
Garant, 786 F. App'x 609, 610 (7th Cir. 2019) (prisoner’s statements that “he felt suicidal and
wanted to speak to a crisis counselor” were not sufficient to make defendants aware that
prisoner faced a substantial and imminent risk of self-harm).
Finally, Flemming argues that defendants’ refusal to place him on observation status
after he had successfully cut himself and returned from the hospital shows that defendants did
not care about his safety. But as I explained in the screening order in this case, Flemming was
not permitted to proceed on any claims based on events that occurred after his hospital visit
because Flemming did not allege that he suffered any injury after that time. See Dkt. 6, at 4.
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Defendants cannot be held liable under the Eighth Amendment for decisions that caused
Flemming no harm.
In sum, Flemming has failed to submit evidence from which a reasonable jury could
conclude that defendants failed to protect Flemming despite knowing that he faced a
substantial and imminent risk of engaging in self-harm. Accordingly, defendants are entitled to
summary judgment.
ORDER
IT IS ORDERED that:
1. The motion for summary judgment filed by defendants, Dkt. 15, is GRANTED.
2. The clerk of court is directed to enter judgment for defendants and close this case.
Entered January 7, 2022.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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