United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
November 1, 2016, the deadline for filing dispositive motions
in this matter, the defendants filed a motion for summary
judgment as to all of the plaintiff Randy McCaa's
(“McCaa”) claims. (Docket #31 at 3 and #60). On
November 22, 2016, McCaa filed his own motion for summary
judgment, a brief in support of forty-seven pages, and
proposed findings of facts numbering over three-hundred
paragraphs. (Docket #66, #67, and #68). McCaa also filed a
response to the defendants' statement of facts, but
failed to cite any evidence when attempting to dispute any
facts, at best stating “dispute” and making a
reference to “plaintiff[‘s] brief.” (Docket
has been informed of the requirements of the Federal and
Local Rules regarding summary judgment at least twice; by
attachments to the Court's trial scheduling order, and by
the defendants' own summary judgment motion. (Docket #31
and #60). He has chosen to ignore those rules by
filing a summary judgment motion well beyond the deadline set
by the Court, greatly exceeding the page limitation on
briefs, including over double the maximum allotment of
statements of fact, and failing to cite any evidence in
support of his disputes of fact. These infirmities cannot be
McCaa's putative summary judgment motion, it must be
rejected outright as being filed beyond the deadline and
without seeking the Court's leave. His response to the
defendants' statement of facts must also be ignored.
Though the Court is required to liberally construe a pro
se plaintiff's filings, it cannot act as his lawyer;
the Court cannot and will not delve through all of
McCaa's submissions in this case to find the evidence
that appropriately supports each attempted dispute. Indeed:
A district court is not required to “wade through
improper denials and legal argument in search of a genuinely
disputed fact.” Bordelon v. Chicago Sch. Reform Bd.
of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). And a
mere disagreement with the movant's asserted facts is
inadequate if made without reference to specific supporting
material. Edward E. Gillen Co. v. City of Lake
Forest, 3 F.3d 192, 196 (7th Cir. 1993). In short,
“[j]udges are not like pigs, hunting for truffles
buried in briefs.” United States v. Dunkel,
927 F.2d 955, 956 (7th Cir. 1991). Smith's
summary-judgment materials were woefully deficient in either
responding adequately to the defendants' statement or in
setting forth additional facts with appropriate citations to
the record. As such, Smith's purportedly good intentions
aside, the district court did not abuse its discretion in
deeming admitted and only considering the defendants'
statement of material facts.
Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).
This Court would offer a similar analogy: it is not an
archaeologist, made to sift through McCaa's filings
hoping to piece together clues to the evidence behind his
Smith, no matter McCaa's intentions, his utter
failure to comply with the rules of procedure means that the
Court has no choice but to disregard entirely most of his
summary judgment filings. It will deem the defendants'
facts undisputed for purposes of deciding the motion.
However, the Court will generously review McCaa's brief
itself, despite it being substantially overlong, and consider
legal argument contained therein. With this framework, the
Court will address each of McCaa's claims in turn.
was permitted to proceed on five claims of deliberate
indifference under the Eighth Amendment. (Docket #53 at 2-3).
Four are related to his self-harming behavior on various
dates from December 2013 to August 2015. Id. The
remaining claim is for failing to obtain medical assistance
for him after a particular self-harming incident in May 2014.
Id. at 2. The defendants seek summary judgment as to
each of these claims. (Docket #60).
state a claim for a violation of constitutional rights
pursuant to 42 U.S.C. § 1983, a plaintiff must prove
that: 1) he was deprived of a right secured by the
Constitution or laws of the United States; and 2) the
deprivation was visited upon him by a person or persons
acting under color of state law. Buchanan-Moore v. County
of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing
Kramer v. Village of North Fond du Lac, 384 F.3d
856, 861 (7th Cir. 2004)); see also Gomez v. Toledo,
446 U.S. 635, 640 (1980). The defendants do not dispute that
they acted on the color of state law.
do, however, argue that they were not deliberately
indifferent to McCaa's self-harming activities or his
medical needs, and thus that their conduct did not violate
his Eighth Amendment rights. To show deliberate indifference,
a plaintiff must prove that “(1) [she] had an
objectively serious medical condition; (2) the defendants
knew of the condition and were deliberately indifferent to
treating her; and (3) this indifference caused her some
injury.” Gayton v. McCoy, 593 F.3d 610, 620
(7th Cir. 2010).
respect to self-harming or suicidal behavior, the Court of
Appeals holds that suicide satisfies the “serious
medical condition” element. Pittman ex rel.
Hamilton v. Cnty. of Madison, Ill., 746 F.3d 766, 775
(7th Cir. 2014). The Collins court provides further
Where the harm at issue is a suicide or attempted suicide,
the second, subjective component of an Eighth Amendment claim
requires a dual showing that the defendant: (1) subjectively
knew the prisoner was at substantial risk of committing
suicide and (2) intentionally disregarded the risk.
[Matos ex. rel. Matos v. O'Sullivan, 335 F.3d
553, 557 (7th Cir. 2003)]; see also Estate of Novack ex
rel. Turbin v. County of Wood, 226 F.3d 525, 529 (7th
Cir. 2000) (defendant must be aware of the significant
likelihood that an inmate may imminently seek to take his own
life and must fail to take reasonable steps to prevent the
inmate from performing the act).
With respect to the first showing, “it is not enough
that there was a danger of which a prison official should
have been aware, ” rather, “the official
must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.”
Estate of Novack, 226 F.3d at 529 (emphasis added).
In other words, the defendant must be cognizant of the
significant likelihood that an inmate may imminently seek to
take his own life. Id.; [Sanville v.
McCaughtry, 266 F.3d 724, 737 (7th Cir. 2001)] (issue is
whether the defendant was subjectively “aware of the
substantial risk that [the deceased prisoner] might take his
own life”). Liability cannot attach where “the
defendants simply were not alerted to the likelihood that
[the prisoner] was a genuine suicide risk.” Boncher
ex rel. Boncher v. Brown County, 272 F.3d 484, 488 (7th
[As to the second showing], [d]eliberate indifference
requires a showing of “more than mere or gross
negligence, but less than the purposeful or knowing
infliction of harm.” Matos, 335 F.3d at 557;
Estate of Novack, 226 F.3d at 529. We have
characterized the required showing as “something
approaching a total unconcern for [the prisoner's]
welfare in the face of serious risks.” Duane v.
Lane, 959 F.2d 673, 677 (7th Cir. 1992). To establish
deliberate indifference, a plaintiff must present evidence
that an individual defendant intentionally disregarded the
known risk to inmate health or safety. Matos, 335
F.3d at 557. A defendant with knowledge of a risk need not
“take perfect action or even reasonable action[, ] ...
his action must be reckless before § 1983 liability can
be found.” Cavalieri v. Shepard, 321 F.3d 616,
622 (7th Cir. 2003).
[In sum, ] [t]he deliberate indifference standard imposes a
“high hurdle” for a plaintiff to overcome.
Collins v. Seeman, 462 F.3d 757, 761-62 (7th Cir.
2006). As shown below, with respect to each alleged incident
of deliberate indifference, McCaa cannot overcome this
December 11, 2013, Dr. Kimberly McKown (“McKown”)
was conducting routine wellness checks for prisoners on
“observation status.” “Observation
status” is used, inter alia, to help protect
suicidal prisoners from themselves, and involves regular
meetings with medical professionals and near-constant staff
observation. McKown contacted McCaa that morning. She
observed him masturbating and told him to stop, which he did.
McCaa complained to McKown about the mental health treatment
he was receiving at the institution and reported that it was
causing him to have suicidal thoughts. McCaa stated he had
been thinking about cutting himself but denied any immediate
plan to do so. He also stated he had nothing in his cell he
could use to cut himself with.
discussed the future with McCaa, including his plans to
operate a business after his release from prison. McKown
offered to get McCaa a book to help him cope while waiting to
be seen by a primary clinician. McCaa stated he was unsure if
he wanted a book because of his low reading level, and McKown
stated she would attempt to find something easy for him to
read. Later that day, another doctor saw McCaa after he was
reportedly scratching his arm, causing minor cuts and
bleeding. She ordered that he be placed in mechanical
restraints for the rest of the day to stop that behavior.
facts defeat both of the Collins showings. First,
not only was McKown not aware of a risk that McCaa would hurt
himself, he specifically disclaimed an immediate intent to do
so or possession of any tool to facilitate that behavior.
Second, McKown's discussion with McCaa showed concern for
his mental state falling well below recklessly disregarding
his safety. McCaa claims that McKown should have placed him
in restraints immediately, but at the time she saw him, he
had not harmed himself and stated that he had no imminent
desire to do so. That the other doctor placed him in
restraints after she observed self-harming activity