United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE.
plaintiff Calvin Glover is a prisoner in the custody of the
Wisconsin Department of Corrections, currently housed at the
Columbia Correctional Institution (CCI). Glover filed a
complaint alleging that a CCI correctional officer, CO
Schraufnagel, was deliberately indifferent to Glover's
safety when he drafted a conduct report falsely stating that
Glover provided information against another inmate. Glover
alleges that Schraufnagel knew or should have known that
naming Glover in the report “created a substantial and
unreasonable risk to [his] health and safety.” Dkt. 1,
at 3. I granted Glover leave to proceed on an Eighth
Amendment deliberate indifference claim and a state-law libel
claim against Schraufnagel. Dkt. 15.
parties have filed cross-motions for summary judgment. Dkt.
22 and Dkt. 25. Glover moves for summary judgment on his
Eighth Amendment claim; Schraufnagel moves for summary
judgment on both claims. Because Glover has not adduced
evidence sufficient to sustain his Eighth Amendment claim, I
will grant summary judgment in Schraufnagel's favor on
that claim and will decline to exercise supplemental
jurisdiction over Glover's state-law claim.
where noted, the following facts are undisputed.
September 23, 2014, while searching Glover's cell, CCI
correctional officer James Schraufnagel found a calculator
marked with another inmate's name-Julius Coleman.
Schraufnagel investigated and determined that Coleman did not
own a calculator, that the calculator belonged to CCI's
school, that Coleman had not checked out the calculator, and
that Coleman did not attend CCI's school. So Schraufnagel
wrote a conduct report charging Coleman with theft and other
rules violations. In the report, Schraufnagel noted that
Glover had told him that he received the calculator from
Coleman. The parties dispute whether Glover said anything
about getting the calculator from Coleman.
next day, Coleman confronted Glover about the conduct report
and what Glover purportedly told Schraufnagel. According to
Glover, other prisoners have ostracized him and labeled him a
“snitch” as a result of the conduct report.
October 13, 2014, another inmate assaulted Glover. Glover
told the Health Services Unit (HSU) that he “was doing
leg lifts on the pull up bar at rec and another inmate came
from behind and just kicked me.” Dkt. 24-2, at 2. HSU
observed a large purple bruise on the inside of Glover's
left thigh and noted “[n]o deformities or swelling[.
Range of motion] intact.” Id. Glover reported
that the inmate was “apologetic” and
“thought he was someone else so it ended there and
nothing came of it.” Id. at 3. But now Glover
says that the nurse lied in the medical records. He told her
that he didn't want to report the inmate who kicked him
because he feared retaliation. Glover maintains that that
inmate called him a snitch as he kicked him.
states that he was not aware that other inmates had labeled
Glover a snitch. Glover never told him that others thought he
was a snitch or that he believed he was in danger. Glover
asked Schraufnagel to amend his report, to clarify that
Glover never told Schraufnagel that Coleman had given him the
calculator. But that was it. Glover did not tell Schraufnagel
that the conduct report had caused him trouble until after
the October assault.
court must enter summary judgment if the moving party
“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). “Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). When the parties have
filed cross-motions for summary judgment, the court
“look[s] to the burden of proof that each party would
bear on an issue of trial; [and] then require[s] that party
to go beyond the pleadings and affirmatively to establish a
genuine issue of material fact.” Santaella v.
Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997).
If either party “fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden at trial, ” summary judgment against that party
is appropriate. Mid Am. Title Co. v. Kirk, 59 F.3d
719, 721 (7th Cir. 1995) (quoting Tatalovich v. City of
Superior, 904 F.2d 1135, 1139 (7th Cir. 1990)).
“As with any summary judgment motion, this [c]ourt
reviews these cross-motions ‘construing all facts, and
drawing all reasonable inferences from those facts, in favor
of . . . the non-moving party.'” Wis. Cent.,
Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008)
(quoting Auto. Mechs. Local 701 Welfare & Pension
Funds v. Vanguard Car Rental USA, Inc., 502 F.3d 740,
748 (7th Cir. 2007)).
judgment ‘is the “put up or shut up” moment
in a lawsuit, when a party must show what evidence it has
that would convince a trier of fact to accept its version of
events.'” Johnson v. Cambridge Indus.,
Inc., 325 F.3d 892, 901 (7th Cir. 2003) (quoting
Schacht v. Wis. Dep't of Corr., 175 F.3d 497,
504 (7th Cir. 1999)). A mere “scintilla of
evidence” is not enough to survive. Pugh v. City of
Attica, 259 F.3d 619, 625 (7th Cir. 2001).
officials have taken away virtually all of a prisoner's
ability to protect himself, the Constitution imposes on
officials the duty to protect those in their charge from harm
from other prisoners.” Dale v. Poston, 548
F.3d 563, 569 (7th Cir. 2008) (quoting Mayoral v.
Sheahan, 245 F.3d 934, 938 (7th Cir. 2001)). “A
prison official's ‘deliberate indifference' to
a substantial risk of serious harm to an inmate violates the
Eighth Amendment.” Farmer v. Brennan, 511 U.S.
825, 828 (1994). To maintain an Eighth Amendment deliberate
indifference claim, a prisoner must adduce evidence that he
was “incarcerated under conditions posing a substantial
risk of serious harm, ” and that the defendant was
deliberately indifferent to that risk. Id. at 834.
“[T]he official must both be aware of facts from which
the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the
inference.” Id. at 837. A prison official has
“an obligation ‘to take reasonable measures to
abate [the risk]'” only if he knows about
it. Dale, 548 F.3d at 569 (quoting Borello v.
Allison, 446 F.3d 742, 747 (7th Cir. 2006)). A prison