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Czapiewski v. Russell

United States District Court, W.D. Wisconsin

July 18, 2016




         Plaintiff David Czapiewski, a prisoner at the Wisconsin Resource Center, contends that defendants Todd Russell, John O'Donovan, William Pollard and Anthony Meli violated his First and Fourteenth Amendment rights by disciplining him for expressing suicidal thoughts. Plaintiff also contends that defendant Russell was deliberately indifferent to his mental illness and propensity for self harm, in violation of the Eighth Amendment.

         Defendants have filed a motion for summary judgment, which I am granting. Plaintiff's First and Fourteenth Amendment claims fail because it was reasonable for defendants to believe that plaintiff was lying about his intention to commit suicide in order to obtain special treatment. A government agent does not violate the First Amendment when his allegedly retaliatory action is motivated by a reasonable belief that the plaintiff engaged in a speech act that is not constitutionally protected. As for plaintiff's Eighth Amendment claim, this claim fails because defendant Russell's responses to plaintiff's complaints that he was suffering from suicidal ideation were reasonable and appropriate under the circumstances.

         Plaintiff has also filed a motion to strike expert witness testimony submitted by defendants on the ground that defendants did not timely disclose this expert in accordance with Fed.R.Civ.P. 26(a)(2). I am denying this motion because under Fed.R.Civ.P. 5(b)(C), service was complete on February 29, 2016, the date defendants placed the disclosures in the mail, not March 2, 2016, the date plaintiff alleges he received the disclosures.

         Finally, I am denying plaintiff's motion to re-submit proposed findings of fact and responses to defendants' proposed findings of fact. As an initial matter, plaintiff has not provided the court a copy of the "second chance" filing he wants to submit and his motion does not identify the issues this new set of facts would address. The court cannot determine whether a "second chance" is warranted without knowing what deficiencies in his initial submission plaintiff hopes to address. Moreover, allowing plaintiff to file an entirely new set of proposed facts and responses after briefing is complete would be prejudicial and unfair to defendants, who would be required to re-submit their own responses and replies to plaintiff's facts.

         From the parties' summary judgment materials and the record, I find that the following facts are not subject to genuine dispute.


         A. December 14, 2011 Incident

On December 14, 2011, plaintiff was being housed in the A-wing of the Waupun Correctional Institution's Restrictive Housing Unit, which is where inmates are assigned if they violate prison rules or pose a security risk to the prison. At approximately 9:07 p.m., plaintiff pressed the emergency call button in his cell. At that time, defendant Russell was working in the Restrictive Housing Unit's control center and answered plaintiff's emergency call via the control center's intercom system. Plaintiff told defendant Russell that he was having suicidal thoughts and that he intended to break his own neck by jumping off the sink in his cell. Russell immediately contacted the shift sergeant assigned to the Restrictive Housing Unit, Sergeant Eric Billington, and explained the situation.

         When Billington arrived at plaintiff's cell, plaintiff complained that prison officials were not picking up his outgoing mail. Plaintiff told Billington that so long as his mail was picked up, he would not harm himself. Billington agreed to make sure that plaintiff's mail was picked up going forward. However, after meeting with plaintiff and assessing the situation, Billington concluded that plaintiff was only threatening self-harm so that a prison official would be dispatched to plaintiff's cell, thereby providing plaintiff an opportunity to complain about the problems he was having with his mail. When Billington returned to the control center, he told defendant Russell that he did not believe plaintiff was a threat to himself and that plaintiff simply wanted to complain to a prison official about his mail.

         The following day, on December 15, 2011, defendant Russell issued plaintiff Conduct Report #2238552. The conduct report stated that plaintiff violated Wis. Admin. Code DOC 303.24 ("Disobeying Orders"), 303.27 ("Lying"), 303.28 ("Disruptive Conduct") and 303.63 ("Violations of Institution Policies and Procedures") by misusing the emergency intercom system and making empty threats of self-harm so that plaintiff could complain about his mail and have it picked up on an expedited basis. Defendant Anthony Meli, in his capacity as the security director designee, completed the Security Director Review of the conduct report on December 16, 2011. Defendant Meli determined that plaintiff's conduct created a risk of serious disruption at the institution because the misuse of the emergency call button and plaintiff's lying about his suicidal ideation interfered with the Restrictive Housing Unit staff's ability to quickly respond to legitimate, urgent situations. Meli decided that the conduct report's allegations justified a "Major Disciplinary Hearing." After approving the conduct report and setting it for a hearing, defendant Meli did not have any further involvement in the claims at issue.

         The disciplinary hearing on Conduct Report #2338552 was held on December 29, 2011. Plaintiff submitted a statement that he was suicidal at the time he used the emergency call button, but that he had "changed his mind" after Billington spoke with him and told him that he would deliver plaintiff's outgoing mail. Defendant John O'Donovan considered plaintiff's statement along with defendant Russell's allegations set forth in the conduct report. O'Donovan also considered the information provided by plaintiff's advocate, Annette Miller. Ultimately, O'Donovan decided that plaintiff was guilty of having violated Rule 303.27 ("Lying") and 303.63 ("Violations of Institution Policies and Procedures") and imposed 60 days of disciplinary separation.

         Plaintiff was given a copy of O'Donovan's decision as well as information regarding his right to file an administrative appeal. Plaintiff appealed O'Donovan's decision to defendant Warden William Pollard on January 24, 2012. Defendant Pollard reviewed the records related to plaintiff's conduct report and affirmed O'Donovan's decision. Specifically, Pollard found that it was more likely than not that plaintiff had violated institution policies and procedures because he improperly used the emergency call button to have his mail retrieved. However, defendant Pollard reduced plaintiff's time in segregation from 60 days to 30 days.

         B. April ...

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