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Whitelaw v. Foster

United States District Court, E.D. Wisconsin

January 6, 2018

BRIAN FOSTER, et al., Defendants.


          William C. Griesbach, Chief Judge United States District Court.

         Plaintiff Marquitos Maurice Whitelaw, an inmate serving a state prison sentence, filed this action under 42 U.S.C. § 1983, alleging that Defendants Brian Foster, Anthony Meli, Jeremy Westra, Paul Ludvigson, Joel Sankey, and Teresa McLaren violated his constitutional rights by failing to protect him from a gang attack. Although Whitelaw is currently incarcerated at Wisconsin Secure Program Facility, the events underlying his complaint occurred while he was housed at Waupun Correctional Institution (WCI). This matter comes before the court on the defendants' motion for summary judgment. ECF No. 46. Whitelaw did not file a response to defendants' motion within thirty days as required by Civil Local Rule 56(b)(2), and he has not requested additional time to file a response. This alone is grounds to grant the motion. Civil L.R. 7(d) (“Failure to file a memorandum in opposition to a motion is sufficient cause for the Court to grant the motion.”). For this reason and based on the undisputed facts before the court, it is clear the defendants are entitled to judgment as a matter of law. The defendants' motion for summary judgment will therefore be granted.


         At all times relevant to this case, Whitelaw was housed at WCI, and the defendants in this case were all staff members there. Defendant Foster was the warden of WCI. Def.'s Proposed Findings of Fact (DPFOF) ¶ 1, ECF No. 48; see also ECF No. 51 ¶ 2.[1] Defendant Meli was the security director. DPFOF ¶ 2; see also ECF No. 50 ¶ 2. Defendant Westra was the captain in charge of Special Placement Needs. DPFOF ¶ 3; see also ECF No. 49 ¶ 2. Defendant Sankey was a corrections sergeant. DPFOF ¶ 3; see also ECF No. 54 ¶ 2. Defendant Ludvigson was a corrections program supervisor. DPFOF ¶ 5; see also ECF No. 55 ¶ 2. Defendant McLaren was a psychological associate in the Psychological Services Unit (PSU). DPFOF ¶ 6; see also ECF No. 52 ¶ 2. All defendants except for Ludvigson were employed at WCI through the date the defendants filed their motion for summary judgment; Ludvigson remains employed by the Wisconsin Department of Corrections (DOC). DPFOF ¶¶ 1-6; see also ECF No. 55 ¶ 2.

         The events underlying Whitelaw's complaint occurred during May and June of 2016. Whitelaw was scheduled to be transferred from the Restrictive Housing Unit (RHU) to the South Cell Hall on May 19, 2016. DPFOF ¶ 7; see also ECF No. 50-1. Before leaving the RHU, Whitelaw told Defendants Sankey and Ludvigson that he feared gang members would attack him in the South Cell Hall. DPFOF ¶¶ 8, 12-13; see also ECF No. 55 ¶ 6; ECF No. 54 ¶ 6. Although Sankey asked Whitelaw for details about which gang or which individual inmates he feared would attack him, Whitelaw refused to provide any specific information. DPFOF ¶¶ 8-9; see also ECF No. 54 ¶¶ 6, 13. When Ludvigson similarly asked Whitelaw for information about the perceived threat, Whitelaw likewise refused to provide details such as inmate names or gang affiliations. DPFOF ¶¶ 13-15; see also ECF No. 55 ¶¶ 5-6.

         Instead of providing the requested details to Sankey or Ludvigson, Whitelaw threatened to harm himself if he were required to move to South Cell Hall. DPFOF ¶ 17; see also ECF No. 54 ¶¶ 8-9. In response, Sankey contacted the PSU and spoke with Defendant McLaren, who made two visits to the RHU to evaluate Whitelaw. DPFOF ¶¶ 18-19; see also ECF No. 54 ¶ 9; ECF No. 52 ¶¶ 6-8; ECF No. 52-1. McLaren determined that Whitelaw did not need additional psychological care. DPFOF ¶ 21; see also ECF No. 52 ¶ 10. McLaren's notes from her second visit record her awareness that Whitelaw “wanted protective custody from gang members.” DPFOF ¶ 19; see also ECF No. 52-1 at 3. Consistent with her general practice of reporting inmate safety issues to security staff, McLaren spoke with Sankey regarding Whitelaw's concern that gang members might pose a threat to his safety. DPFOF ¶¶ 19-22; see also ECF No. 55 ¶ 11; ECF No. 52 ¶ 8; ECF No. 52-1 at 3.

         Ultimately, in the absence of specific information regarding Whitelaw's safety concerns, Sankey and Ludvigson informed Whitelaw that he would have to transfer to the South Cell Hall. DPFOF ¶¶ 11, 15, 17, 23-24; see also ECF No. 54 ¶¶ 10-12. Notably, Sankey believed that Whitelaw would initially be placed on cell confinement upon his transfer to South Cell Hall-meaning he would not be allowed to go to the dining hall or recreation-as part of the disciplinary disposition for a conduct report. DPFOF ¶ 24; see also ECF No. 54 ¶¶ 10-11; ECF No. 52-1 at 3.

         At the time of the transfer, Sankey also reminded Whitelaw that, if he had safety concerns about his placement in South Cell Hall, he could submit a Special Placement Needs (SPN) request. DPFOF ¶ 25; see also ECF No. 54 ¶ 10. The DOC uses the SPN process to physically separate inmates from prison staff, other inmates, or facilities with which they may have an issue. DPFOF ¶ 29; see also ECF No. 49 ¶ 6. An inmate's SPN request creates a database entry that allows the DOC to track separation alerts across the Wisconsin prison system. See DPFOF ¶ 33; see also ECF No. 49 ¶ 14. Prison officials evaluating an SPN request consider the motivation for the threats being made and evaluate the present threat level. DPFOF ¶ 31; see also ECF No. 49 ¶ 11. The inmate who makes an SPN request must provide specific, verifiable information to obtain the requested separation. DPFOF ¶ 32; see also ECF No. 49 ¶ 11. Defendant Westra is WCI's designated SPN captain, which means that inmates making an SPN request must submit a written request for him to review. DPFOF ¶ 30; see also ECF No. 49 ¶¶ 4, 9. In turn, as security director Defendant Meli reviews Westra's SPN decisions. DPFOF ¶¶ 30, 48; see also ECF No. 50 ¶ 6. As warden, Defendant Foster is not involved in the SPN process. DPFOF ¶ 63; see also ECF No. 51 ¶ 4. Whitelaw did not submit any SPN requests after he was transferred from the RHU. DPFOF ¶ 38; see also ECF No. 49 ¶ 20.

         On June 6, 2016, Whitelaw was involved in a fight with another inmate. DPFOF ¶ 43; see also ECF No. 49 ¶ 1; ECF No. 50-2. A conduct report issued to Whitelaw for the fight includes a narrative by a non-defendant correctional officer who observed it. ECF No. 50-2. The officer noted that, because both inmates were “out of assigned areas prior to the fight, [he was] led to believe this fight had been preplanned.” Id. Before the June 6 fight, Whitelaw never informed any defendant that the particular inmate with whom he fought might pose a threat to Whitelaw's safety. DPFOF ¶¶ 9, 13, 19, 38, 48-51, 64. In particular, Whitelaw never pursued an SPN request or submitted any correspondence to the warden's office regarding his safety concerns prior to the fight. DPFOF ¶¶ 50-51; see also ECF No. 51 ¶ 6; ECF No. 50 ¶ 11; ECF No. 49 ¶ 21. Following the fight, however, Whitelaw filed multiple inmate complaints and submitted Interview/Information Request forms to both Foster and Meli, which provided both defendants with their first notice of Whitelaw's safety concerns. DPFOF ¶¶ 48-64.


         Under the Federal Rules of Civil Procedure, summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who 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 of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317 (1986).


         Whitelaw alleges that the defendants violated his constitutional rights by failing to protect him from gang members during the weeks before his June 6, 2016 fight. A plaintiff may prevail on a claim for relief under 42 U.S.C. § 1983 by showing that he was (1) deprived of a federal right (2) by a person acting under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980). The Eighth Amendment's prohibition on cruel and unusual punishment “requires prison officials ‘to protect prisoners from violence at the hands of other prisoners.'” Brown v. Budz, 398 F.3d 904, 909 (7th Cir. 2005) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)). Accordingly, an inmate may succeed on a failure to protect claim by showing that “(1) ‘he is incarcerated under conditions posing a substantial risk of serious harm, ' and (2) defendant-officials acted with ‘deliberate indifference' to that risk.” Id. (quoting Farmer, 511 U.S. at 834). The Seventh Circuit has elaborated on the nature of the failure to protect standard:

“Because 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.” Yet, a prison official does not violate the Eighth Amendment every time an inmate gets attacked by another inmate. Prisons, after all, are dangerous places often full of people who have demonstrated aggression. And so, an inmate has no claim “unless the official knows of and disregards an excessive risk to inmate health or safety; the 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.” The deliberate indifference test therefore has both objective and subjective prongs, the former requiring a grave risk and the latter requiring actual knowledge of that risk. ...

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