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Sierra-Lopez v. Fatoki

United States District Court, E.D. Wisconsin

July 26, 2017

DR. FATOKI, et al., Defendants.


          William C. Griesbach, Chief Judge United States District Court

         On 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.

         Sierra-Lopez 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.


         Before 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).

         The 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. 56(b)(2)(B)(ii).

         In this 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.

         The 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 has proposed.”).

         In 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.


         Sierra-Lopez's 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.)

         Dr. 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.)

         Upon 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.)

         Sometime 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.)

         On July 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.)

         On July 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 ΒΆ 23.) She provided a summary of her ...

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