United States District Court, E.D. Wisconsin
CORWIN K. WILLIAMS, Plaintiff,
C.O. KOTKOSKY, Defendant.
Stadtmueller U.S. District Judge
proceeds on a single claim of excessive force. (Docket #11).
On January 25, 2017, Defendant Matthew Kotkosky filed a
motion for summary judgment. (Docket #28). Plaintiff Corwin
K. Williams' response was due on or before February 24,
2017. Civil L. R. 56(b)(2). As of today's date, Plaintiff
has submitted no response; in fact, since he filed his
January 23, 2017 motion for reconsideration of a previous
order, Plaintiff has filed nothing at all in this case.
See (Docket #26). The lack of response alone would
warrant granting Defendant's motion. Civil L. R. 7(d).
Even assuming this were not true, Plaintiff's failure to
respond to Defendant's statement of facts renders each
fact admitted. Fed.R.Civ.P. 56(e)(2).
was made well aware of the need to respond to Defendant's
motion in accordance with the applicable procedural rules. In
the Court's scheduling order issued on August 26, 2016,
Plaintiff was warned about the requirements for opposing a
motion for summary judgment. (Docket #15 at 2-3).
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. (Docket #15-4 and #15- 6). As required by the
Local Rules, Defendant's summary judgment motion included
further notifications about need for a response and the rules
governing that response. (Docket #28).
being twice warned of the strictures of summary judgment
procedure, Plaintiff ignored those rules by failing to submit
any responsive documents, much less those which would comply
with the applicable rules. Smith v. Lamz, 321 F.3d
680, 683 (7th Cir. 2003). Though the Court is required to
liberally construe a pro se party's filings, it
cannot act as his lawyer, and it cannot delve through the
record to find favorable evidence and argument for him.
Further, while the Court is cognizant that Plaintiff lacks
legal training, his utter failure to comply with the rules of
procedure is not excusable on that ground alone. See
Fed. R. Civ. P. 56(e); Civil L. R. 56(b)(4); Hill v.
Thalacker, 210 F. App'x 513, 515 (7th Cir. 2006)
(noting that district courts have discretion to enforce
procedural rules against pro se litigants).
the Court will grant Defendant's motion on two grounds.
First is Plaintiff's failure to oppose the motion. Second
is that, based on the facts Defendant presented in
conjunction with his motion, which the Court deems
undisputed, judgment is appropriate in Defendant's favor.
STANDARD OF REVIEW
Rule of Civil Procedure 56 provides the mechanism for seeking
summary judgment. Rule 56 states 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 “genuine” dispute of material fact
is created when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The Court construes all facts and reasonable
inferences in a light most favorable to the non-movant.
Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016).
relevant facts are brief and drawn entirely from
Defendant's statement of facts. (Docket #30). Plaintiff
was incarcerated at Oshkosh Correctional Institution
(“Oshkosh”) during the relevant time period.
Defendant was a correctional officer employed at Oshkosh at
the same time. Plaintiff, while receiving his medication from
Defendant, stuck his arm through the trap door of his cell.
This was an attempt to hold the trap door
“hostage” because Plaintiff had other concerns,
namely the temperature of his cell, that he wanted addressed.
“Holding a trap hostage” violates prison rules
and presents a safety and security risk to the prison. The
dangers can include assaulting an officer, grabbing items
from an officer's utility belt, trading items with other
inmates, and potentially finding a way to escape the
refused Defendant's repeated requests to put his arm back
in his cell. Instead, Plaintiff began yelling for other
inmates to do as he had done. Because of the danger
Plaintiff's actions presented, Defendant used his foot to
nudge the trap door against Plaintiff's arm, in an
attempt to encourage him to remove his arm.
was ineffective at obtaining compliance, so Defendant found a
supervisory officer to assist him. The officer eventually
convinced Plaintiff to remove his arm from the trap door.
Plaintiff had not cried out in pain when Defendant nudged the
door with his foot, nor did he have any bruising, swelling,
or cuts on his arm. A nurse checked Plaintiff for injuries
and found none, though he complained of discomfort. She gave
him ice and Tylenol. Plaintiff made no other requests for
Eighth Amendment prohibits the “unnecessary and wanton
infliction of pain” on prisoners. Outlaw v.
Newkirk, 259 F.3d 833, 837 (7th Cir. 2001). When an
official is accused of using excessive force, the core
inquiry is “whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Hudson v.
McMillian, 503 U.S. 1, 7 (1992); Santiago v.
Walls, 599 F.3d 749, 757 (7th Cir. 2010). Several
factors are relevant to this determination, including the
need for force, the amount applied, the threat an officer
reasonably perceived, the effort made ...