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Mitchell v. Richter

United States District Court, E.D. Wisconsin

February 27, 2017



          J.P. Stadtmueller U.S. District Judge.

         1. INTRODUCTION

         Plaintiff Kevin Brian Mitchell (“Mitchell”), a prisoner, brings this action pursuant to 42 U.S.C. § 1983 against Defendants, prison officials at Sheboygan County Detention Center (“Sheboygan”), for a host of incidents in which they allegedly violated his constitutional rights. The Defendants have all filed motions for summary judgment and have separated themselves into three groups: (1) Dr. Karen Butler (“Butler”); (2) nurses Brenda, Lisa, Nick, and Tracy (the “Nurse Defendants”); and (3) correctional officers Richter, Fenn, Hansen, Johnson, Iverson, Krueger, Walter, and Brinkman (the “Officer Defendants”). See (Docket #94, #100, #106, #122). Mitchell filed his own motion for summary judgment. (Docket #115). All the pending motions are fully briefed and, for the reasons stated below, the Court will grant summary judgment to all Defendants and dismiss this action.


         Federal Rule of Civil Procedure 56 provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh the evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). The party opposing summary judgment “need not match the movant witness for witness, nor persuade the court that [his] case is convincing, [he] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact.” Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).

         3. RELEVANT FACTS

         3.1 Mitchell's Failure to Dispute the Material Facts

         Most of the relevant facts are undisputed, due in no small measure to Mitchell's failure to dispute them. Before recounting the relevant facts, the Court will briefly set forth the procedural history and substantive failings of Mitchell's submissions.

         In the Court's scheduling order, entered June 2, 2016, Mitchell was warned about the requirements for supporting and opposing a motion for summary judgment. (Docket #43 at 1-2). Accompanying that order were copies of Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both of which describe in detail the form and contents of a proper summary judgment submission. In their motions for summary judgment, Defendants also warned Mitchell about the requirements of Federal and Local Rule 56. In connection with their motions, Defendants filed supporting statements of material facts that complied with the applicable procedural rules. (Docket #96, #101, #108). They contained short, numbered paragraphs concisely stating those facts which Defendants proposed to be beyond dispute, with supporting citations to the attached evidentiary materials.

         On December 16, 2016, Mitchell submitted a four-page, unsigned document that purported to be a motion for summary judgment. (Docket #115). The motion was not accompanied by a statement of material facts as required by the Federal or Local Rules. See Fed. R. Civ. P. 56(c); Civ. L. R. 56(b)(1). Without explanation, it was also filed a day after the dispositive motion deadline, which had been set since the Court entered its trial scheduling order in June 2016.[1]

         His response to Defendants' motions for summary judgment was no better. Mitchell filed several documents which appear to challenge specific paragraphs in the Officer Defendants' declarations. (Docket #130, #131, #132). He also filed a similar document with respect to the Officer Defendants' statement of material facts. (Docket #133). In these documents, Mitchell does not reproduce each paragraph in the original and then provide a response; instead, he seems to comment only on those averments or statements of fact to which he takes exception.

         Mitchell submitted several other documents as well. First, he filed an unsworn, narrative statement purporting to be his affidavit, but which reads more like a legal brief. (Docket #134). Second, he filed his own statement of material facts, though most of his assertions of fact lack citation to evidence. (Docket #135). Third, he filed a legal brief. (Docket #136). Finally, he filed a document purporting to be another motion for summary judgment, to which he attached nearly 118 pages of exhibits. (Docket #137). Many of these exhibits come from a time period not relevant to this case, and many others are simply illegible. This “motion” was not filed until January 27, 2017, over one month after the dispositive motion deadline. Moreover, none of Mitchell's submissions acknowledge, much less oppose, the statements of material fact filed by Dr. Butler and the Nurse Defendants.

         Despite being repeatedly warned of the strictures of summary judgment procedure, [2] Mitchell chose to ignore those rules by filing purported motions for summary judgment that do not contain all the required elements of such a motion, and by failing to properly dispute Defendants' proffered facts with citations to relevant, admissible evidence. These infirmities cannot be overlooked. Stevo v. Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011) (district judges “are entitled to insist on strict compliance with local rules designed to promote the clarity of summary judgment filings”); Coleman v. Goodwill Indus. of Se. Wis., Inc., 423 F. App'x 642, 643 (7th Cir. 2011) (“Though courts are solicitous of pro se litigants, they may nonetheless require strict compliance with local rules.”); Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (“[E]ven pro se litigants must follow rules of civil procedure.”).

         Though the Court is required to liberally construe a pro se plaintiff's filings, it cannot act as his lawyer. The Court will not mine Mitchell's submissions for helpful evidence. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Consequently, the Court must find most of the relevant facts undisputed. See Hill v. Thalacker, 210 F. App'x 513, 515 (7th Cir. 2006). Unless stated otherwise, the Court will deem Defendants' facts undisputed for purposes of deciding their motions for summary judgment. See Fed. R. Civ. P. 56(e). However, the Court has generously reviewed all of Mitchell's filings and will discuss his disputes as to the facts where relevant.[3]

         3.2 Facts Pertinent to the Disposition of Defendants' Motions[4]

         3.2.1 Medical Care at Sheboygan

         At the time of the events relevant to his complaint, Mitchell was a pretrial detainee at Sheboygan. Sheboygan contracts with a private healthcare company, Advanced Correctional Healthcare, Inc. (“ACH”), to provide medical and mental health services to inmates. Dr. Butler is a physician who works for ACH at Sheboygan. Unless there is a medical emergency, inmate medical care is handled exclusively by ACH doctors and nurses, not Sheboygan correctional staff.[5]

         To obtain medical care at Sheboygan, inmates normally need to submit a written request for the same. Verbal requests made to correctional staff are not honored unless the officer observes that the inmate is in medical emergency. When an ACH triage nurse evaluates a written request for care, he or she will assess whether there is a medical emergency, the inmate's medical history, and the inmate's credibility in requesting medical care. Correctional staff play no part in that determination, or in deciding what course of action is medically appropriate. Rather, correctional staff defer to the medical professionals' judgment on the proper course of treatment and cooperate with their orders to the extent correctional staff must participate in non-medical tasks as part of the inmate's care.

         Prior to his detention at Sheboygan, Mitchell had suffered multiple gunshot wounds. He sought treatment at Sheboygan for chronic pain associated with those injuries. However, he was often harassing and behaved inappropriately toward the medical staff, and he was non-compliant with the prescribed course of treatment. Mitchell also had a lengthy history of discipline at Sheboygan. While there, he was disciplined for: lying to, obstructing, and disrespecting officers; disrupting jail security and activities; manufacturing intoxicants; fighting with other inmates; sexually threatening and assaulting other inmates; possessing contraband; and interfering with correctional officers while in the performance of their duties.[6] Additionally, Mitchell was charged with felony battery of a fellow prisoner at Sheboygan.

         3.2.2 August 29, 2015 Incident with Sergeant Richter

         The focal point of this lawsuit arose from an encounter between an officer and Mitchell on August 29, 2015. That day, Mitchell was kicked out of the law library for chatting with another inmate. In the past, Mitchell had been caught doing the same thing, and on those occasions, he had ignored the officers' directives. As a result, on those prior occasions he was placed in segregation in the contact visiting area, or “Con area, ” of the jail. On those prior occasions, Mitchell had both actively and passively resisted the officers' orders, including by walking very slowly and stopping repeatedly.

         On August 29, 2015, as he walked out of the law library, Mitchell began to yell loudly. Sergeant Mark Richter (“Richter”) was in the control room at the time and could both see Mitchell leaving the library and hear him shouting. As Mitchell passed the control room, Richter stepped out and directed Mitchell to come back and head to the Con area. Mitchell insisted he be given a reason for the order, but Richter told him no explanation was required. Mitchell began walking very slowly to the Con area, so correctional officer Iverson (“Iverson”), came to assist Richter. Mitchell claims that he was walking as quickly as he could, attributing his slow pace to his old gunshot wounds and the chronic pain they cause. (Docket #137-1 at 23-24); (Docket #147 ¶ 13).

         Surveillance footage shows that upon arriving at the door to Cell 2 of the Con area, Mitchell opened the door but did not enter. Instead, he let the door close and told the officers that he would not go into the cell because it did not have a mattress. Richter opened the cell door and directed Mitchell to enter. As Richter did so, Mitchell stood back without entering and allowed the door to close again. Richter opened the door again, held it open this time, and again directed Mitchell to enter. Mitchell made a slight movement toward the door but stopped again. Richter then placed his hands on Mitchell's back and pushed him into the cell. Mitchell stumbled a few feet forward at the push.[7] His head remained in a neutral posture and he did not fall or hit anything before recovering. Richter then secured the door and told Mitchell that he would issue him a conduct report for failure to follow staff directives. As the officers left the Con area, Mitchell started shouting that he was going to “bitch slap” Richter.

         Mitchell recounts the final moments of his encounter with Richter differently. According to him, Richter brusquely refused Mitchell's request for a mat. As Mitchell then began walking into the cell, Richter then shoved Mitchell inside, yelling, “fucking nigger get your ass in there.” (Docket #137-1 at 23-24); (Docket #147 ¶¶ 16-18). Mitchell alleged that the push caused his neck to “snap” back, injured his neck, and “re-injured” his back. See (Docket #147 ¶ 19). Mitchell submitted the affidavit of another inmate, Donald Polk (“Polk”), who was housed in the Con area at the time of this incident and who corroborates Mitchell's version of events. Id. at 18.

         While Mitchell was in Cell 2 of the Con area, he pushed the intercom button and requested an ambulance for alleged severe pain. Correctional officer Hansen (“Hansen”) was working in the control room where there was video of Cell 2. She observed that Mitchell did not appear to be in any distress or discomfort, nor was he exhibiting any unusual behavior or any signs that he was in any pain or injured. Hansen concluded that Mitchell was not experiencing a medical emergency and did not require immediate first aid. Based on her assessment, Hansen answered the call and denied Mitchell's request for an ambulance.

         Surveillance footage shows that Mitchell was in Cell 2 for about an hour and a half. While in this cell, Mitchell did not exhibit any signs of acute distress or serious injury. He sat on the bed, walked around the cell, and occasionally spat into the toilet. He also touched his hand to his neck on occasion, but he did not do so consistently.[8] When Iverson came back at Cell 2, Mitchell immediately placed his left hand on the left side of his neck and kept his hand there as he spoke to Iverson through the cell window. Iverson then opened the cell door and Mitchell exited, still with his left hand on his neck. At this point, Mitchell was moved to Cell 1 of the Con area for a while. Sometime later, he was taken to the dayroom of the “S” pod in the jail. Mitchell kept his hand on his neck during his walk to the dayroom.

         Surveillance video shows that while in the dayroom, Mitchell generally looked up at the television mounted high on the wall or spoke with other inmates. Mitchell did not exhibit any signs or symptoms of injury or distress. He occasionally and briefly touched his neck but did not display any difficultly in turning his head in any direction. This lasted about an hour.

         3.2.3 Requests for Medical Care After August 29, 2015

         Mitchell submitted six written requests for medical care between August 29 and August 30, 2015. In each, he alleged he was experiencing back and/or neck pain as a result of being pushed by Richter. In one request, he stated that he could not turn his head fully. All of these requests were answered on September 2, 2015. On that date, a nurse conducted a full examination of Mitchell and determined that he had a normal range of motion in his neck. Dr. Butler nevertheless gave him a three-day prescription of Tylenol and Flexeril for his subjective complaints of pain.

         Between September 4 and September 6, 2015, Mitchell submitted four more requests for medical care, alleging pain in his back, neck, and legs. Again, he complained that he could not turn his head without sharp pain. He attributed this pain to Richter's push and also a “metal rod in his femur” which was inserted because of his prior gunshot wounds. (Docket #137-1 at 35). Nurse Tracy Lund responded on September 8, 2015, advising Mitchell that Dr. Butler had ordered an x-ray and passive range-of-motion exercises 2-3 times daily to address his complaints. Dr. Butler saw Mitchell in person that day as well. During the visit, Mitchell refused to be examined. However, Dr. Butler determined that his gait was normal and that he could sit and stand without any problems. Dr. Butler also noted that Mitchell said his neck pain was “chronic” and that he “always had neck problems.” Dr. Butler suggested that Mitchell use a warm compress on his neck for the pain.[9] She also ordered a 72-hour activity log to monitor Mitchell's compliance with her range-of-motion exercise order and to generally observe his level of pain. The x-ray came back with normal results, and the activity log showed that Mitchell exercised his back and neck only one time and was otherwise “sitting” and “standing watching TV” with no complaints of pain. Mitchell counters that he was diligently performing the prescribed exercises. (Docket #133 at 1, 4); (Docket #137-1 at 47).

         These examinations and several that came after confirmed to Dr. Butler that Mitchell had no objective signs of pain nor any discernible source for his complaints of pain attributed to Richter's push. Instead, Mitchell's prior gunshot wounds were the only condition causing Mitchell pain, and ACH staff were already treating that condition. Mitchell believes, however, that their decisions to offer treatment, including medication and exercises, shows that he was in ...

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