United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
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.
STANDARD OF REVIEW
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).
Mitchell's Failure to Dispute the Material Facts
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
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
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
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.
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.
being repeatedly warned of the strictures of summary judgment
procedure,  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.”).
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
Facts Pertinent to the Disposition of Defendants'
Medical Care at Sheboygan
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
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
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. Additionally, Mitchell was charged with
felony battery of a fellow prisoner at Sheboygan.
August 29, 2015 Incident with Sergeant Richter
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.
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).
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. 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.
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.
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.
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. 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.
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.
Requests for Medical Care After August 29, 2015
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.
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. 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
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 ...