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Moseby v. Smith

United States District Court, E.D. Wisconsin

September 6, 2017

CHAZ LAVER MOSEBY, Plaintiff,
v.
JUDY SMITH, et al., Defendants.

         DECISION 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

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         The 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.

         I. THE PLAINTIFF'S MOTION TO ACCEPT THE COMPLAINT AS A RESPONSE TO THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND PROPOSED FINDINGS OF FACT

         The 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. No. 29.

         In 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 judgment. Id.

         On July 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.

         The 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 summary judgment.

         That 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.

         Under 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.

         II. THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

         A. Facts[1]

         The 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 ¶¶ 1-5.

         Sometime 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.

         The 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”)[2] to re-evaluate the plaintiff's security classification, because drug trafficking is a serious offense in prison. Id. at ¶45.

         The 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. Id.

         On 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 ΒΆ50. Warden Smith was not a member of ...


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