Braithwaite, Joshua v. Mutiva et al
OPINION and ORDER granting in part and denying in part 33 Motion to Amend. Braithwaite is GRANTED leave to proceed on state-law negligence claims against Leffler, Jones, Fishnick, Dr. Hoem, Mann, Duve, Castel, Reyno ld, Strong, Wilkinson, Weadge, Bresee, Payne, Hagensick, Wieggl, Webster, Collings, Mutiva, Waldera, Taylor, Govier, Mellen, Fischer, Scullion, Hohn, Bird, Brown, Schissel, and Unit Manager Brown. Braithwaite is DENIED leave to proceed on any other claims or against any additional defendants. Signed by District Judge William M. Conley on 11/18/22. (jat),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JOSHUA P. BRAITHWAITE,
OPINION and ORDER
LEFFLER, et al.,
Pro se plaintiff Joshua Braithwaite contends that between December 28, 2020, and
January 2, 2021, several dozen Wisconsin Secure Program Facility officers allowed him to
seriously harm himself with razor blades, requiring several stitches.
The court granted
Braithwaite leave to proceed in this lawsuit against 29 WSPF employees under the Eighth
Amendment, for their alleged failure to protect him from self-harm. The court also granted
Braithwaite leave to proceed against seven nurses under the Eighth Amendment and state
law, for failing to provide him necessary medical attention after he harmed himself.
Braithwaite now seeks to amend his complaint to: (1) proceed under state-law against the
29 officers; (2) grant him leave to proceed on a retaliation claim; and (3) grant him leave
to proceed on failure to protect claims against the dismissed officer defendants. (Dkt.
As for his first request, in its prior order, the court granted Braithwaite leave to
proceed on constitutional claims against 29 defendants who failed to protect him from
committing self-harm between December 28, 2020, and January 2, 2021.
supplemental jurisdiction over Braithwaite’s proposed state-law claims against those same
defendants, the court dismissed Braithwaite’s supplemental state-law claims because
Braithwaite had not alleged that he fulfilled Wisconsin’s Notice of Claim requirement. (See
dkt. 32, at 14.) Now Braithwaite says that he mailed a Notice of Claim to the Office of
the Attorney General and did not receive a response. Braithwaite does not allege that he
included the name of each of the 29 defendants against whom he is proceeding on failure
to protect claims, and Braithwaite’s copy of the Notice of Claim form he says he sent is
unreadable (see dkt. #33-3.) The court will resolve this ambiguity in Braithwaite’s favor
and grant him leave to proceed against defendants Leffler, Jones, Fishnick, Dr. Hoem, Mann,
Duve, Castel, Reynold, Strong, Wilkinson, Weadge, Bresee, Payne, Hagensick, Wieggl,
Webster, Collings, Mutiva, Waldera, Taylor, Govier, Mellen, Fischer, Scullion, Hohn, Bird,
Brown, Schissel, and Unit Manager Brown, on supplemental negligence claims, for the same
events supporting Braithwaite’s Eighth Amendment failure to protect claims.
Braithwaite next asks that the court allow him to pursue retaliation claims against
and failure to protect claims against the defendants the court previously dismissed for lack
of personal involvement. The court denied Braithwaite leave to proceed on retaliation
claims because he did not allege that the individuals involved in charging him in a conduct
report, defendants Kartman and Boisen, punished him for engaging in constitutionally
protected conduct. Now Braithwaite says that after he submitted an inmate complaint
about his incidents of self-harm, WSPF-2021-1355, Ellen Ray discussed his complaint with
the defendants he refers to as the “M team.” Braithwaite contends that the “M team”
officers then started retaliating against him. But in his motion, Braithwaite does not state
who was on the M team, nor does he direct the court to where in his pleadings he provided
details about his interactions with the defendants the court dismissed for lack of personal
involvement. Therefore, the court sees no basis for permitting Braithwaite to proceed on
a retaliation claim in this lawsuit.
Braithwaite also alleges that Ray lied in his communications with her. But in
support Braithwaite directs the court to information requests between him and Ray from
May 2022. Braithwaite does not connect those communications to the events of this
lawsuit, other than to assert that he is suffering ongoing retaliation. Therefore, the court
declines to add Ray as a defendant.
Braithwaite also asks that the court grant him leave to proceed against additional
officers on failure to protect claims. But Braithwaite is already proceeding against 29
officers on failure to protect claims, and he does not support this request with any proposed
allegations or documentation suggesting that more individuals consciously disregarded his
threats of self-harm and self-harming behaviors. It will be a difficult task for Braithwaite
to prove each of these claims as it stands, so he would be wise to focus his efforts on
gathering evidence related to the claims he has been granted leave to pursue, as opposed
to inserting additional claims and defendants.
Finally, Braithwaite challenges the court’s denial of his request for a preliminary
injunction, saying that he is dealing with an ongoing serious medical need. But Braithwaite
does not support that conclusory assertion with any allegations or evidence in support.
Instead, Braithwaite directs the court to an inmate complaint, WSPF-2022-4671, and a
doctor’s note, which he says shows his psychosis. But that documentation does not show
that WSPF officials currently are ignoring his threats of self-harm or need for mental health
treatment. Braithwaite also submits policies related to suicide prevention and mental
health treatment. (See dkt. ##34, 34-1.) Although these policies may be relevant to
Braithwaite’s claims in this lawsuit, they have no bearing on whether he is entitled to
injunctive relief here. Therefore, there is no basis to reconsider the denial of Braithwaite’s
request for a preliminary injunction.
IT IS ORDERED that plaintiff Joshua Braithwaite’s motion to amend (dkt. #33) is
GRANTED in part and DENIED in part. Braithwaite is GRANTED leave to proceed on
state-law negligence claims against Leffler, Jones, Fishnick, Dr. Hoem, Mann, Duve, Castel,
Reynold, Strong, Wilkinson, Weadge, Bresee, Payne, Hagensick, Wieggl, Webster, Collings,
Mutiva, Waldera, Taylor, Govier, Mellen, Fischer, Scullion, Hohn, Bird, Brown, Schissel, and
Unit Manager Brown. Braithwaite is DENIED leave to proceed on any other claims or against
any additional defendants.
Entered this 18th day of November, 2022.
BY THE COURT:
WILLIAM M. CONLEY
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