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Samuel v. Baird

United States District Court, W.D. Wisconsin

January 4, 2017


          OPINION and ORDER

          WILLIAM M. CONLEY District Judge

         Pro se plaintiff Samuel S. Upthegrove is proceeding in this case on claims that security and medical staff at the Columbia Correctional Institution (“CCI”) violated his rights under the Eighth Amendment by failing to protect him from self-harm on June 7, 2010. Before the court is a motion for partial summary judgment filed by two of the defendants: Leslie Baird and Kurt Schwebke. (Dkt. #11.) In the order below, the court denies that motion because there are genuine disputes of material fact that must be resolved by a jury. The court also denies a motion filed by plaintiff for assistance in recruiting counsel (dkt. #20) because he has not shown that the complexities of this case exceed his ability to litigate it. Accordingly, this case shall proceed to trial as scheduled.


         A. The Relevant Parties For Pending Motions

         At all times relevant to this lawsuit, plaintiff Samuel Upthegrove was confined by the Wisconsin Department of Corrections at CCI. Dr. Kurt Schwebke was employed as a psychologist at CCI from November 2003 until June 2011, and then again from December 2011 until August 2012. Lesley Baird was employed as a psychological associate at CCI from May 24, 2010 until October 8, 2011.

         B. Segregation and Observation at CCI

         CCI has three segregation units: Disciplinary Segregation 1 (DS1); Disciplinary Segregation 2 (DS2); and the Special Management Unit (Unit 7). DS1 houses inmates who (1) have just arrived in segregation, or (2) are having behavioral problems. DS1 includes observation cells located in the back of the unit in close proximity to the officer's station or “bubble, ” which allows the officers to monitor those inmates more closely. DS2 is a “step-down” unit that houses inmates who have been in DS1 and shown a positive adjustment in their behavior. Finally, Unit 7 serves a variety of purposes, but mainly houses mentally ill and vulnerable inmates.

         Observation status is very restrictive and used for the purpose of preventing an inmate from inflicting harm upon himself or someone else. An inmate may be placed in observation status by a clinician, crisis intervention worker, physician, the Warden, a registered nurse, or physician's assistant, when he threatens or engages in acts of self-harm. An inmate may also be placed in observation status by the security director or shift captain for the same reasons if a clinician, crisis intervention worker, or physician is not available for consultation either directly or by telephone.

         Each segregation unit has an assigned psychologist or psychological associate. Psychological staff members conduct routine rounds in the segregation units, during which they go to an individual cell front and talk to the inmate. Psychological staff may see an inmate at his cell front more than once a week if staff or the inmate requests it.

         While Dr. Schwebke worked at CCI, he was regularly assigned to provide services to inmates on the DS1 unit. In evaluating the risk of and potential treatment for self-harm by an inmate in segregation, Dr. Schwebke considered factors such as the inmate's history of self-harm, motivational purposes of self-harm, frequency of thoughts of self-harm, specific plan by the inmate for self-harm, potential for the plan to be lethal, extent of intent to self-harm, opportunity for self-harm, family contact or support, degree of narcissism, future orientation, future plans and goals. Options for addressing potential self-harm vary depending on the particular individual, but could include observation placement, restraints, or reference to the institution psychiatrist regarding the use of psychotropic medications.

         C. Upthegrove's History of Self-Harming Behavior

         Upthegrove has a long history of self-harming behavior while incarcerated, including cutting, biting and scratching himself, as well as swallowing objects. At various times, he had been prescribed Geodon, a psychotropic medication intended to assist him with improved coping skills and better control his emotions.

         Dr. Schwebke was aware of Upthegrove's history of self-harm, but did not believe that Upthegrove was at risk of any potentially lethal, self-harming behavior, such as attempted hanging or infliction of severe wounds.[2] Upthegrove's acts of self-harm have periodically required medical treatment, though in Dr. Schwebke's experience working with Upthegrove, he would usually alert staff when engaging in serious self-injury.

         During the time he worked with Upthegrove, Dr. Schwebke believed that Upthegrove's acts of self-harm were voluntary, controlled, and done for secondary gain. In particular, Dr. Schwebke believed that while Upthegrove was being housed on DS1 for observation, his actual goal was to be transferred back to Housing Unit 7, where he would be eligible for step 2 segregation time, or to be transferred to Wisconsin Resource Center for treatment. Dr. Schwebke also thought Upthegrove wanted to be placed in observation status because he hoped to receive a more favorable disposition on pending conduct reports or court cases. Not ...

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