United States District Court, E.D. Wisconsin
DERRICK L. SMITH, Plaintiff,
BRIAN FOSTER, et al., Defendants.
DECISION AND ORDER GRANTING DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT (DKT. NO. 69)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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
worked as a Correctional Sergeant. Id. at ¶11.
His duties included monitoring housing units and supervising
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.
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
worked as a physician at GBCI. Id. at ¶10.
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.
The Plaintiff's Pre-Attack Interactions with
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.
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.
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
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.
The Plaintiff's PREA Allegations against Vang
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
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.
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.
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.
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.)
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.
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.
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.
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.
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.
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.
completing the two interviews and reviewing the incident
report filed by Elsinger, Pusich determined that the
allegations were unsubstantiated. Id. at ¶33.
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.
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.
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.
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.
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