United States District Court, E.D. Wisconsin
AND ORDER GRANTING THE PLAINTIFF'S MOTION TO ACCEPT THE
COMPLAINT AS A RESPONSE TO THE DEFNDANTS' MOTION FOR
SUMMARY JUDGMENT AND PROPOSED FINDINGS OF FACT (DKT. NO. 36),
GRANTING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 18), AND DISMISSING THE CASE
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
plaintiff Chaz Laver Moseby, a Wisconsin state prisoner who
is representing himself, filed a complaint under 42 U.S.C.
§1983, alleging that the defendants violated his civil
rights. Dkt. No. 1. The court screened the complaint under 28
U.S.C. §1915, and allowed the plaintiff to proceed with
two Eighth Amendment claims: (1) a conditions-of-confinement
claim against Rexford Smith (“Lieutenant Smith”)
for the cold temperatures in the segregation unit; and (2) a
failure-to-protect claim against Rexford Smith, Judy Smith
(“Warden Smith), Ronald Perkins and Melinda Babcock for
their respective roles in placing him in close proximity to
inmate Leshaun Benson. Dkt. No. 7. The defendants have filed
a motion for summary judgment, dkt. no. 18, and the plaintiff
has filed a motion asking the court to accept his
complaint as a response to the defendants'
motion for summary judgment and proposed findings of fact,
dkt. no. 36.
THE PLAINTIFF'S MOTION TO ACCEPT THE COMPLAINT AS A
RESPONSE TO THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
AND PROPOSED FINDINGS OF FACT
defendants filed their motion for summary judgment on
November 23, 2016. Dkt. No. 18. The court's July 28, 2016
scheduling order gave the plaintiff thirty days to respond;
he did not file a response by that date. As a result, on
January 4, 2017, the defendants filed a motion to dismiss the
case based on the plaintiff's failure to prosecute. Dkt.
response to the motion to dismiss, the plaintiff filed a
motion to “suspend” the motion for summary
judgment. Dkt. No. 31. He explained that he had been in and
out of prison since filing his complaint on September 8,
2015, and that he did not have the time or the resources to
properly litigate the case. Id. The court denied the
plaintiff's motion, explaining that it was his
responsibility to prosecute his case whether or not he was in
custody, and that he had not updated his address to ensure
that he received court filings (two separate court orders had
already come back “undeliverable, ” see
Dkt. Nos. 8 and 14). Dkt. No. 33. Nevertheless, the court
denied the defendants' motion to dismiss, and gave the
plaintiff a deadline of July 21, 2017 to file materials in
opposition to the defendants' motion for summary
20, 2017, the plaintiff asked for an extension of time to
file his response materials. Dkt. No. 34. The court granted
the request, but warned the plaintiff that it would not grant
any more extensions, in light of the fact that the case had
been pending since 2015 with no effort by the plaintiff to
prosecute it. Dkt. No. 35. The court required the plaintiff
to file his response materials on or before August 16, 2017.
Id. Again, the plaintiff did not file his response
by that deadline. Two days after the deadline-on
August 18, 2017- the court received from the plaintiff a
motion asking the court to construe his original complaint as
his “response” to the defendants' motion for
summary judgment and proposed findings of fact. Dkt. No. 36.
Seventh Circuit instructed district courts to construe a
sworn pro se complaint as an “affidavit”
at the summary judgment stage. Ford v. Wilson, 90
F.3d 245, 246-47 (7th Cir. 1996). Accordingly, the court will
grant the plaintiff's motion to accept his complaint as
his response in opposition to the defendants' motion for
being said-all this means is that, in opposition to the
defendants' motion for summary judgment, supporting
brief, proposed findings of fact, declarations and supporting
exhibits (dkt. nos. 18 through 27), the court has a single
document from the plaintiff-the twenty-page complaint he
filed on September 8, 2015. Dkt. No. 1. That document
includes a number of things that are not relevant in response
to a motion for summary judgment-a jurisdictional statement,
a venue statement, a “notice of claim statement,
” identification of the parties. The document also
contains a number of assertions of facts outside the
plaintiff's personal knowledge.
Fed.R.Civ.P. 56(c)(4), “[a]n affidavit or declaration
used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated.” In other words, the
plaintiff must have seen, heard or participated in the facts
that he alleges to be true. In ruling on the motion for
summary judgment, therefore, the court will consider only
those portions of the complaint that are based on the
plaintiff's personal knowledge; the court will not
consider unsubstantiated facts or conclusory allegations.
THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
plaintiff is a former Department of Corrections
(“DOC”) inmate. Dkt. No. 1. The defendants are,
or were, DOC employees: Judy Smith currently is Warden of
Oshkosh Correctional Institution (“OCI”); Rexford
Smith was a lieutenant at OCI; Ronald Perkins and Melinda
Babcock were correctional sergeants at Columbia Correctional
Institution (“CCI”). Dkt. No. 21 at ¶¶
in October 2012, the plaintiff received a conduct report at
OCI, because prison staff believed that the plaintiff's
fiancée, Marie Enzell, planned to smuggle drugs into
the prison during her October 13, 2012 visit. Dkt. No. 1 at
¶¶ 8-11. Lieutenant Smith and a different officer
removed the plaintiff from the general population on that
date, and placed him Temporary Lock-Up (“TLU”).
Id. at ¶ 12; see also Dkt. No. 21 at
¶¶ 43- 44. Later that day, prison staff intercepted
Enzell in the lobby of OCI with marijuana and K2. Dkt. No. 1
at ¶ 13.
plaintiff had his disciplinary hearing for the conduct report
on October 22, 2012. Dkt. No. 21 at ¶ 46. The hearing
officer found the plaintiff guilty of “enterprises and
fraud” and attempted “possession of
intoxicants.” Id. He referred the matter to
the Program Review Committee
(“PRC”) to re-evaluate the plaintiff's
security classification, because drug trafficking is a
serious offense in prison. Id. at ¶45.
plaintiff appealed the hearing officer's decision and
asserted, among other things, that he did not receive
“notice” prior to placement in TLU. Id.
at ¶47. The deputy warden affirmed the hearing
officer's decision, and noted that Lieutenant Smith had
completed a “TLU notice” for the plaintiff on
October 13, 2012. Id. at ¶48. The plaintiff had
“no comment, ” refused to sign the TLU notice
document, and there were no other procedural errors.
November 15, 2012, the plaintiff appeared before the PRC for
his security re-classification hearing. Id. at
¶49. Lieutenant Smith and two other OCI staff members
served as members of the PRC. Id. at ¶50.
Warden Smith was not a member of ...