United States District Court, E.D. Wisconsin
KEVIN E. SIERRA-LOPEZ, Plaintiff,
DR. FATOKI, et al., Defendants.
DECISION AND ORDER GRANTING DEFENDANTS' MOTIONS
FOR SUMMARY JUDGMENT
William C. Griesbach, Chief Judge United States District
November 24, 2014, Plaintiff Kevin Sierra-Lopez, a minor at
the time, filed this action under 42 U.S.C. § 1983,
alleging that the defendants violated his constitutional
rights. Because he was a minor, the court appointed a
guardian ad litem to represent Sierra-Lopez's interests
in the case pursuant to Fed.R.Civ.P. 17(c). At an April 27,
2015 telephone conference, the guardian ad litem advised the
court that Sierra-Lopez was no longer a minor, but that
counsel would continue to represent him on a pro bono basis.
Sierra-Lopez filed an amended complaint on June 30, 2015,
alleging that the defendants refused to provide him with a
finger splint, which resulted in permanent injury; denied him
shampoo and a bed, which are necessary to ensure civilized
confinement; and denied him his prescription medication. The
court screened the complaint on July 31, 2015 and found that
it at least stated claims upon which relief may be granted,
and allowed the case to proceed.
filed a second amended complaint on October 8, 2015,
asserting claims regarding the conditions of his confinement
and deliberate indifference to his serious medical needs.
Defendants Dr. Fatoki and Erika Weichard (the medical
defendants) filed a motion for summary judgment on December
16, 2016. (ECF No. 46.) Defendants Lieutenant M. Hallisee,
Lieutenant J. Timreck, Lieutenant J. Trinkner, Christopher
Patterson, Corporal R. Weed, Corporal Misty Anderson,
Corporal Ralph Leyendecker, and K. Smith (the county
defendants) have also filed a motion for summary judgment.
(ECF No. 53.) For the following reasons, the defendants'
motions will be granted and the case dismissed.
turning to the parties' substantive arguments, the court
will address two preliminary matters. First, the defendants
assert that their proposed findings of fact must be deemed
admitted and that Sierra-Lopez's proposed findings must
be stricken because Sierra-Lopez did not comply with the
district's local rules regarding summary judgment
procedures. Pursuant to the local rules, along with the
motion for summary judgment, the moving party is required to
file either a statement of material facts to which the
parties have stipulated or a statement of proposed material
facts as to which the moving party contends there is no
material issue and that entitle it to judgment as a matter of
law. Civil L.R. 56(b)(1). The statement of proposed facts is
comprised of numbered paragraphs containing short factual
statements and specific references to affidavits,
declarations, parts of the record, and other supporting
materials. Civil L.R. 56(b)(1)(C).
party opposing the motion must file a response to the moving
party's statement of undisputed facts which is intended
to make clear which, if any, of those facts are in dispute,
and to set forth any additional facts that bear on the
motion. The opposing party's response must reproduce each
numbered paragraph of the moving party's statement of
facts followed by a response to each paragraph. Civil L.R.
56(b)(2)(B). If the fact is disputed, the party must include
a specific reference to an affidavit, declaration, or other
part of the record that supports the claim that a genuine
dispute exists as to the fact stated by the moving party.
Id. If the opposing party believes there are
additional facts that prevent the entry of summary judgment,
he should include a statement, consisting of short numbered
paragraphs that set forth each additional fact and include
references to the affidavits, declarations, or other parts of
the record that support the assertion. Civil L.R.
case, Sierra-Lopez filed a brief in opposition to the
defendants' motions for summary judgment but did not file
a response to either of the defendants' proposed findings
of fact. Instead, Sierra-Lopez included a section in his
brief labeled “Statement of the Case” that did
not contain any citations to the record or a declaration, did
not directly respond to the defendants' proposed findings
of fact, and lumped several factual assertions together in a
single paragraph. Plaintiff's brief also contained a
section entitled “Statement of Disputed Facts and
Citations, ” but again, this section does not directly
address the defendants' proposed facts and instead makes
broad factual assertions that do not contain pinpoint
citations. The Seventh Circuit has made clear that a
“district court is not required to ‘wade through
improper denials and legal argument in search of a genuinely
disputed fact.'” Smith v. Lamz, 321 F.3d
680, 683 (7th Cir. 2003) (quoting Bordelon v. Chi. Sch.
Reform Bd. of Trs., 233 F.3d 524, 529 (7th Cir. 2000)).
In short, Sierra-Lopez failed to comply with Civil L.R. 56.
Seventh Circuit has “routinely held that a district
court may strictly enforce compliance with its local rules
regarding summary judgment motions.” Schmidt v.
Eagle Waste & Recycling, Inc., 599 F.3d 626 (7th
Cir. 2010) (citing Patterson v. Indiana Newspapers
Inc., 589 F.3d 357, 360 (7th Cir. 2009)). Therefore, the
court will deem the defendants' statement of facts
admitted for purposes of summary judgment, except where a
proper response has been provided, and the court will only
consider Sierra-Lopez's additional facts insofar as they
comply with Civil L.R. 56. See Cichon v. Exelon
Generation Co., L.L.C., 401 F.3d 803, 809-10 (7th Cir.
2005) (“A district court does not abuse its discretion
when, in imposing a penalty for a litigant's
non-compliance with Local Rule 56.1, the court chooses to
ignore and not consider the additional facts that a litigant
addition, Sierra-Lopez listed Does 11 to 50 as defendants in
this action. In the court's August 31, 2015 screening
order, the court advised Sierra-Lopez that he had until
September 15, 2015 in which to identify the proper defendants
and to file an amended complaint naming them. To date, he has
not filed an amended complaint that provides the names of Doe
defendants. Because he has not identified the Doe defendants
in a timely manner, his claims against them will be dismissed
with prejudice. With these considerations in mind, the court
now turns to the instant motions.
claims arise from the defendants' conduct in 2014, but
the parties' history began in September 2013, when he was
first booked into the Brown County Jail. On September 29,
2013, Sierra-Lopez went into the Jail's custody after
being charged with robbery with use of force in Brown County
Case No. 13-CF-1393. (County Defs.' Proposed Findings of
Fact (CDPFOF) at ¶ 7, ECF No. 55.) In January 2014,
Sierra-Lopez was further charged with aggravated battery and
second degree recklessly endangering safety in Brown County
Case No. 14-CF-80. (Id. at ¶ 8.) Shortly
thereafter, the issue of Sierra-Lopez's competency was
raised in Case No. 14-CF-80, and on February 25, 2014, the
Brown County Circuit Court ordered an evaluation of
Sierra-Lopez's competency. (Id. at ¶ 9.)
Hurlbut, the psychologist assigned to conduct the competency
evaluation, met with Sierra-Lopez on March 6, 2014.
(Id. at ¶ 10.) Once the meeting concluded and
Sierra-Lopez returned to his cell, he flooded the Brown
County Jail's dayroom. This required officers to remove
Sierra-Lopez and other inmates from their cells to clean the
mess resulting from the flood. (Id. at ¶¶
11-12.) As officers led Sierra-Lopez back to his clean cell,
he began resisting and spit in an officer's face.
(Id. at ¶ 12.) He was subsequently charged with
assault by a prisoner for this incident. (Id. at
¶ 13.) At a competency hearing held at the Brown County
Courthouse on March 28, 2014, Sierra-Lopez was found
incompetent and committed for treatment. (Id. at
¶ 15.) He was then admitted to Mendota Mental Health
Institute (MMHI) for treatment on April 7, 2014.
(Id. at ¶ 16.)
arrival at MMHI, Sierra-Lopez was placed in the Management
and Treatment Unit, which is used to treat and manage the
most aggressive psychiatric patients, though he was
transferred to a less restrictive maximum security unit on
April 22, 2014. (Id. at ¶¶ 23, 28.) MMHI
staff ultimately diagnosed Sierra-Lopez with conduct
disorder, cannabis use disorder, and malingering.
(Id. at ¶ 34.) MMHI staff described
Sierra-Lopez's malingering diagnosis as follows:
Some of the major criteria for a diagnosis of malingering
include: 1) false or exaggerated symptoms, 2) intentionally
produced symptoms, and 3) symptoms that are motivated by
external incentives. Since the time of admission, and
throughout this admission, Mr. Sierra-Lopez has consistently
exhibited behaviors that meet the first two criteria, and his
current legal situation certainly would serve as an
“external incentive” behind his motivation to
behave in such a manner.
(Id. at ¶ 36.) Staff noted “Sierra-Lopez
appears to be well aware of his rights, both in legal
situations and as a patient at MMHI, given his ability to
file numerous grievances against staff at MMHI.”
(Id. at ¶ 37.)
in May 2014, Sierra-Lopez fractured the middle finger on his
left hand. A May 27, 2014 x-ray report revealed a
“questionable tiny ventral avulsion fracture at the
base” of the finger. (Medical Defs.' Proposed
Findings of Fact (MDPFOF) at ¶ 21, ECF No. 48; ECF No.
51-1 at 3.) On June 27, 2014, an MMHI physician saw
Sierra-Lopez regarding a nasal fracture and a follow-up for
the injury to his left middle finger. (ECF No. 51-1 at 2.)
Although his left hand showed he had swelling around the PIP
joint of his finger, the joint did not have any instability.
An x-ray completed earlier that day did not show any
fracture. (MDPFOF at ¶ 24.) Nevertheless, the physician
referred Sierra-Lopez to the hand therapist to be fitted for
a custom-made finger splint. (ECF No. 51-1 at 2.)
10, 2014, Sierra-Lopez was adjudicated competent for trial
and was to be discharged from MMHI. (CDPFOF ¶ at 17.)
His assigned MMHI social worker contacted Brown County
Jail's health services unit (HSU) prior to his transfer
to the Jail and recommended that the Jail place Sierra-Lopez
on suicide precautions. (Id. at ¶ 45.) He was
transferred from MMHI to the Brown County Jail on July 12,
2014. (MDPFOF at ¶ 3.) When Sierra-Lopez was booked into
the Jail, he indicated on a booking observation report that
he was taking Risperdal and had a “broken finger on his
left hand.” (Id. at ¶ 10.) After Nurse
Weichart and Dr. Fatoki reviewed the report, Dr. Fatoki
approved Sierra-Lopez's continued use of Risperdal.
(Id. at ¶¶ 12, 26.) He renewed
Sierra-Lopez's prescription for Risperdal or its generic
form, Risperidone, several times during Sierra-Lopez's
time at the Jail. (Id. at ¶ 27.) Dr. Fatoki was
not responsible for administering medication to inmates.
(Id. at ¶ 28.) Instead, nursing staff and
correctional staff disbursed medication. Nurse Weichart
administered Sierra-Lopez's medication on some occasions
in August and September 2014, and she never denied him his
prescribed medication. (Id. at ¶¶ 13-14.)
Sierra-Lopez was generally compliant with taking his
medications, though he occasionally refused to take it.
(Id. ¶¶ 16, 30.) At other times, his
medication could not be administered because he was engaged
in an active conflict with correctional staff when medication
was distributed. (Id. at ¶ 17.)
15, 2014, Sierra-Lopez claimed he was suicidal but refused to
be removed from his cell. (CDPFOF at ¶ 47.) As a result,
a psychiatric nurse reported to his cell for observation.
(Id.) When the nurse spoke with Sierra-Lopez, he
complained that he was not given his finger splint and stated
he would not answer any of her questions until he got it.
(Id. at ¶ 48.) On July 16, 2014, Sierra-Lopez
filed a medical request for his splint. (MDPFOF at ¶
20.) Nurse Sonnenberg assessed his finger and noted that,
while the finger was slightly swollen, there was no fluid at
the joint, and his finger displayed an active range of
motion. (Id. at ¶ 22.) During the examination,
Sierra-Lopez also complained of dandruff. (CDPFOF at ¶
51.) Nurse Sonnenberg did not observe an open area, drainage,
or localized redness on his scalp. (Id.) After her
evaluation, Nurse Sonnenberg reviewed the MMHI records which
indicated Sierra-Lopez's finger fracture had healed.
(MDPFOF at ¶ 23.) She provided a summary of her