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Smith v. Foster

United States District Court, E.D. Wisconsin

October 12, 2017

DERRICK L. SMITH, Plaintiff,
BRIAN FOSTER, et al., Defendants.



         The plaintiff, who is representing himself, filed this lawsuit under 42 U.S.C. §1983, alleging that the defendants violated his constitutional rights. On March 15, 2016, Magistrate Judge Nancy Joseph (the judge assigned to the case at that time) allowed the plaintiff to proceed on his claim that defendants Brian Foster, John Kind, Edward Waldron, Michelle Haese, Yana Pusich and Charles Ching failed to protect him from other inmates in violation of the Eighth Amendment. Dkt. No. 26. Judge Joseph also allowed the plaintiff to proceed on his claim that those defendants, as well as Mary Sauvey, were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment when they failed to conduct a rectal examination after the plaintiff allegedly informed them that he had been sexually assaulted. Id. Finally, Judge Joseph allowed the plaintiff to proceed on his claim that James Hilbert retaliated against him in violation of the First Amendment when Hilbert allegedly issued a false conduct report against the plaintiff because the plaintiff had filed inmate complaints against Hilbert. Id.

         On January 3, 2017, the defendants filed their motion for summary judgment. Dkt. No. 69. That motion is fully briefed and ready for the court's decision. The court will grant the defendants' motion and dismiss this lawsuit.

         I. RELEVANT FACTS[1]

         A. Parties

         At all relevant times, the plaintiff was an inmate in the custody of the Wisconsin Department of Corrections, housed at the Green Bay Correctional Institution (“GBCI”). Dkt. No. 71 at ¶12. He transferred to GBCI on August 7, 2015. Id. All of the defendants were employed by the Wisconsin Department of Corrections (“DOC”) and worked at GBCI. Dkt. No. 71 at ¶1-11.

         Haese worked as the Social Services Director. Id. at ¶1. In this role, she supervised social workers, chaplains and recreation leaders; oversaw religious services and recreational activities; and coordinated activities with the Division of Community Corrections. Id. Haese also worked as the Victim's Services Coordinator. Id. at ¶1. In this role, she provided information on coping, and offered services to victims of sexual assault. Id. at ¶3.

         Kind worked as the Security Director. Id. at ¶4. He was responsible for developing and implementing policies and procedures related to security and ensuring a safe and secure environment for the inmates and staff. Id.

         Pusich worked as a Supervising Officer 2 (a captain). Id. at ¶5. Her duties included the security, custody and control of inmates, and she supervised correctional officers and sergeants. Id. Pusich also worked as the Prison Rape Elimination Act (PREA) investigator. Id. at ¶6. As part of this role, she was charged with investigating, recording and producing a final report on all claims of sexual assault by staff and inmates assigned to her. Id.

         Hilbert worked as a Correctional Sergeant. Id. at ¶11. His duties included monitoring housing units and supervising inmates. Id.

         Waldron worked as a Social Worker. Id. at ¶7. The plaintiff was one of the inmates with whom Waldron worked. Id. As a social worker, Waldron assessed and evaluated new inmates' treatment and security needs; monitored, evaluated and recorded inmates' progress; provided information to inmates about institution services and programs; and coordinated services between inmates, staff and community resources. Id.

         Ching worked as a Psychological Associate. Id. at ¶8. His duties included performing mental health screenings, conducting brief counseling and mental health monitoring, providing crisis intervention and prevention, giving individual psychotherapy and making psychological assessments. Id.

         Sauvey worked as a physician at GBCI. Id. at ¶10.

         Foster was the Warden. Id. at ¶9. He was responsible for the overall administration and operation of GBCI and for implementing all DOC policies and directives and legislative and judicial mandates at the institution level. Id.

         B. The Plaintiff's Pre-Attack Interactions with Ching

         On August 24, 2015, Ching saw the plaintiff for his clinical interview. Id. at ¶16. During the interview, the plaintiff expressed frustration because he believed that staff had not properly responded to his past reports of sexual and physical assaults. Id. Ching states that the plaintiff discussed allegations from 2003, 2008-2010, and 2014 while he was incarcerated at Waupun and Colombia Correctional Institutions. Id. Ching asserts that the plaintiff did not reference a current assault at GBCI. Id. The plaintiff also discussed concerns for his safety, stating that a perpetrator of a prior assault was housed at GBCI. Id. at ¶17. Ching asserts that the plaintiff did not indicate that he had received any specific threats, nor did he indicate the name of the inmate about whom he had concerns. Id.

         Ching did not immediately refer information about his conversation with the plaintiff to his supervisor (Dr. Steven Schmidt), because the plaintiff did not make any allegations of assault or harm that necessitated such a referral. Id. at ¶18. Ching did, however, consult with Schmidt within a day or two about the plaintiff's PREA related concerns. Id. at ¶19. Schmidt told Ching that Ching did not need to take any further action because the Health Services Unit (HSU) and security were already aware of and handling the plaintiff's complaints. Id.

         On September 14, 2015, Ching saw the plaintiff again. Id. at ¶20. The plaintiff stated that he had been moved to the South Cell Hall, but he was still concerned about his safety because he was seeing an inmate from a prior assault whenever the plaintiff went for appointments or other passes. Id. The plaintiff did not say that he had had contact with the other inmate, and he did not provide information about why he believed an attack was coming. Id. In fact, the plaintiff did not even identify the other inmate. Id. The plaintiff told Ching he would contact security staff about his concerns. Id. at ¶23.

         Ching states that he discussed the plaintiff's memory issues with him, and the long-term effects of taking psychotropic medications. Id. at ¶21. The plaintiff agreed that he would discuss these concerns with his psychiatrist before he refused to take his psychotropic medications. Id. Ching asserts that at no time during this consultation did the plaintiff make an allegation of sexual assault or provide information about the other inmate. Id. at ¶22.

         C. The Plaintiff's PREA Allegations against Vang

         When an inmate makes an allegation of sexual assault to staff, the warden's office (which includes the deputy warden) and/or the security director initiate an investigation. Id. at ¶25. The investigator receives all supporting documents, such as letters, and then investigates and prepares a report on his/her findings. Id. at ¶25. The security director reviews the investigator's report and sends it to the warden's office. Id.

         On September 7, 2015, the plaintiff submitted a health service request, which stated, “I've had serious rectal pains and bleeding. I am NOT Homo or Bi-sexual. Something is seriously wrong. I NEED A DOCTOR NOW.” Dkt. No. 76-1 at 106; Dkt. No. 104, ¶9, 10. The next day, he submitted another request that stated, “Please help me. I need to see the doctor a.s.a.p. I AGAIN complain of serious rectal pain and lots of bleeding for the past (5) five days. Why haven't I been called???” Dkt. No. 76-1 at 105; Dkt. No. 104, ¶9, 10.

         The plaintiff asserts that on September 7 and 8, 2015, he submitted two letters to Kind and two letters to Foster, in which he asked them to help him make a PREA complaint about a sexual assault. Dkt. No. 97-1 at 5-8. In the letter, he explains that the guards instructed him to use “the phones outside, ” which he says he could not do. Id. at 5-6. He also states that he contacted HSU, but that no one had contacted him in response. Id. at 7-8.

         On September 10, 2015, Sauvey examined the plaintiff about his complaints of rectal bleeding. Dkt. No. 71 at 110. According to Sauvey, the plaintiff denied any precipitating events at GBCI that could have caused the bleeding; he did not state that he believed the bleeding was caused by sexual assault. Id. at ¶111.

         About three weeks later, the plaintiff had another appointment with Sauvey to follow up on his rectal bleeding, skin issues and chronic pain. Id. at ¶113. During the appointment, the plaintiff told Sauvey and a registered nurse (who is not a defendant) that his cellmate Booncha Vang had sexually assaulted him three weeks earlier. Id. at ¶26. The nurse notified security staff, and Kind initiated a PREA investigation. Id. at ¶27; Dkt. No. 80 at ¶6-7. Both the plaintiff and Vang were placed in temporary lock-up (TLU) status pending the investigation. Dkt. No. 71 at ¶28. (TLU is a non-punitive status used to separate inmates from the general population pending investigations. Id.)

         Lieutenant Elsinger (who is not a defendant) completed an incident report, and told Sauvey to hold off any medical exams so that staff could determine whether the plaintiff should be transported to an outside health care provider to be seen by a sexual assault nurse examiner. Id. at ¶115. Once a PREA allegation is turned over to security staff for investigation, the PREA investigator dictates the procedures; all medical care is at the discretion and direction of the PREA Committee/Investigator. Id. at ¶117.

         Sauvey did not examine the plaintiff on October 1, 2015, but she did order a stool test to see if there was blood in the plaintiff's stool. Id. at ¶116. The plaintiff did not request a sexual assault or rectal exam at the appointment. Id. at ¶119.

         The PREA Committee decided not to send the plaintiff to a sexual assault nurse examiner because the plaintiff indicated that the assault had occurred three weeks earlier, and staff would have needed to collect any physical evidence within 120 hours of the assault. Id. at ¶122.

         The next day, Pusich, to whom the PREA investigation had been assigned, interviewed the plaintiff about his allegations. Id. at ¶29. The plaintiff explained that he was experiencing rectal bleeding and that Sauvey had refused to treat him. Id. The plaintiff said that Sauvey had diagnosed him with hemorrhoids, and had told him that those were the cause of his bleeding. Id. The plaintiff did not think that Sauvey was correct. Id.

         The plaintiff went on to state that his cellmate Vang had to have raped him. Id. at ¶30. The plaintiff stated that Vang had never requested sexual favors, but that Vang had offered to share his pornography with the plaintiff. Id. The plaintiff also stated that he and Vang had yelled at each other in the past, although they didn't really talk much. Id. When Pusich asked the plaintiff how Vang assaulted him, the plaintiff said that he didn't have any memory of the assault, and that Vang must have put him in a choke hold. Id. at ¶31. He said he believed that Vang had raped him because his hemorrhoids weren't that bad and wouldn't have caused the rectal bleeding. Id.

         Pusich also interviewed Vang. Id. at ¶32. Vang did not know why he was in TLU. Id. Vang said that he and the plaintiff generally got along, although they did have some minor problems. Id. Vang stated that he never offered the plaintiff pornography, and he denied having any form of sexual contact with the plaintiff. Id.

         After completing the two interviews and reviewing the incident report filed by Elsinger, Pusich determined that the allegations were unsubstantiated. Id. at ¶33.

         The same day (October 2, 2015), Ching saw the plaintiff in the restrictive housing unit (RHU) for a clinical contact. Id. at ¶36. The plaintiff told Ching that he had been sent to the RHU after requesting to be seen for an assault that occurred about four weeks prior. Id. The plaintiff told Ching that Pusich told him that there was insufficient evidence for further action on the rape allegations. Id. The plaintiff was frustrated with the process and staff. Id. The plaintiff did not give Ching any specific information about the alleged assault, nor did he request a sexual assault examination. Id.

         On October 12, 2015, Pusich sent a letter to the plaintiff, outlining the investigation process and explaining her determination. Id. at ¶34. Foster reviewed and signed off on the determination on October 19, 2015. Id.

         Also on October 12, 2015, Pusich sent a letter to Haese informing her that the plaintiff had made an allegation that another inmate had sexually assaulted him. Id. at ¶37. This was the first time that anyone had referred the plaintiff to Haese for services. Id. Pusich already had finished her investigation, but, regardless of the outcome, Haese was responsible for providing sexual assault outreach services to the plaintiff. Id. at ¶38. Haese sent the plaintiff a Hope for Healing packet and information about a victim's hotline he could use to speak with a sexual assault advocate in the community. Id. Haese also sent the plaintiff contact information for the chapel, health and psychological services units. Id.

         On October 20, 2015, Ching saw the plaintiff in the treatment center. Id. at ¶39. The plaintiff said he was trying to get the warden's attention and that the institution was trying to cover up his complaints. Id. The plaintiff also asked for additional law library time, and talked about his relationships with his family members. Id. Ching states that he told the plaintiff that his role was to help the plaintiff develop ways to manage his symptoms and cope with his life; he also told the plaintiff that the plaintiff seemed more focused on establishing evidence for his PREA complaints. Id. at ¶36.

         On October 27, 2015, Sauvey had a follow-up appointment with the plaintiff. Id. at ¶123. The plaintiff requested a rectal exam as part of the PREA investigation, which Pusich had already closed and found to be unsubstantiated. Id. The plaintiff did not sign an authorization for medical ...

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