United States District Court, E.D. Wisconsin
Mark Anthony Adell (“Adell”), a prisoner, brought
this action against Defendants, prison officials at Fox Lake
Correctional Institution (“FLCI”), the Wisconsin
Department of Corrections (“DOC”), and the DOC
Secretary, Jon Litscher (“Litscher”), for their
alleged failure to properly treat and accommodate Adell's
needs arising from his chronic ulcerative colitis.
Specifically, Adell alleges that he was forced to drink
contaminated water while incarcerated in the restricted
housing unit (“RHU”) at FLCI between December 12,
2016, and January 24, 2017.
Court allowed Adell to proceed on both constitutional claims
under 42 U.S.C. § 1983 and statutory claims under the
Americans With Disabilities Act (“ADA”), 42
U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C.
§ 794. See (Docket #15). On November 1, 2017,
Defendants filed a motion for summary judgment that addressed
the constitutional claims only. (Docket #34). That motion was
granted in an order dated December 7, 2017. (Docket #48).
Because Defendants did not address the remaining statutory
claims, the Court permitted the parties a brief window in
which to file supplemental dispositive motions as to those
claims. Id. at 19-20; (Docket #50 at 2).
remaining defendants, the DOC and Litscher,  filed a
supplemental brief and statement of facts in support of their
motion for summary judgment, this time addressing Adell's
statutory claims, on December 28, 2017. (Docket #52). Adell
did not respond. On the state of the record before the Court,
and in light of Adell's non-opposition to the
supplemental motion, it will be granted and the case will be
STANDARD OF REVIEW
Rule of Civil Procedure 56 provides that the court
“shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d
910, 916 (7th Cir. 2016). A fact is “material” if
it “might affect the outcome of the suit” under
the applicable substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact
is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Id. The court construes all facts and
reasonable inferences in the light most favorable to the
non-movant. Bridge v. New Holland Logansport, Inc.,
815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh
the evidence presented or determine credibility of witnesses;
the Seventh Circuit instructs that “we leave those
tasks to factfinders.” Berry v. Chicago Transit
Auth., 618 F.3d 688, 691 (7th Cir. 2010). The party
opposing summary judgment “need not match the movant
witness for witness, nor persuade the court that [his] case
is convincing, [he] need only come forward with appropriate
evidence demonstrating that there is a pending dispute of
material fact.” Waldridge v. Am. Hoechst
Corp., 24 F.3d 918, 921 (7th Cir. 1994).
Adell's Failure to Dispute the Material Facts
relevant facts are undisputed because, as with the prior
summary judgment motion, Adell did not dispute them. Indeed,
in this instance, unlike last time, Adell simply refused to
file anything at all in response to Defendants' motion.
With respect to the first motion for summary judgment, the
Court explained in some detail why Adell's non-compliance
with the applicable procedural rules could not be forgiven.
(Docket #48 at 2-4). The Court will largely repeat that
discussion here to ensure the completeness of the record,
adding to it where appropriate to catalog Adell's
continued flouting of the Court's procedural rules and
his obligations as a litigant.
Court's scheduling order, issued on May 10, 2017, Adell
was warned about the requirements for opposing a motion for
summary judgment. (Docket #18 at 3). Accompanying that order
were copies of Federal Rule of Civil Procedure 56 and Civil
Local Rule 56, both of which describe in detail the form and
contents of a proper summary judgment submission. Most
relevant here is Local Rule 56(b)(2), which obligates the
non-movant to file “a concise response to the moving
party's statement of facts that must contain a
reproduction of each numbered paragraph in the moving
party's statement of facts followed by a response to each
paragraph, including, in the case of any disagreement,
specific references to the affidavits, declarations, parts of
the record, and other supporting materials relied
upon[.]” Civ. L. R. 56(b)(2)(B)(i).
November 1, 2017, Defendants filed their first motion for
summary judgment. (Docket #34). In the motion, Defendants
also warned Adell about the requirements for his response as
set forth in Federal and Local Rules 56. Id. at 1-2.
Defendants provided him with additional copies of those
Rules. See Id. at 3-12. In connection with their
motion, Defendants filed a statement of material facts that
complied with the applicable rules. (Docket #35). In
response, Adell submitted three documents, none of which came
close to properly responding to Defendants' statement of
facts. See (Docket #43, #44, #45); (Docket #48 at
Court explained Adell's failures in its recent decision
on the first motion for summary judgment. It observed that
“[d]espite being twice warned of the strictures of
summary judgment procedure, Adell ignored those rules by
failing to properly dispute Defendants' proffered facts
with citations to relevant, admissible evidence.”
(Docket #48 at 4). As a consequence, even in view of
Adell's pro se status, the Court found that it
would not excuse Adell's non-compliance. Id.
Instead, all of Defendants' proffered facts were deemed
admitted, and those undisputed facts necessitated dismissal
of Adell's constitutional claims. Id.; Civ. L.
R. 56(b)(4); Hill v. Thalacker, 210 F. App'x
513, 515 (7th Cir. 2006).
Court hoped that after so many warnings, Adell would not
repeat his error in the face of Defendants' supplemental
motion for summary judgment. Unfortunately, it was not to be.
First, after railing unsuccessfully against the Court's
allowing Defendants to pursue another dispositive motion,
see (Docket #50, #56), Adell simply refused to
accept service of Defendants' motion when prison
officials at his new institution, the Wisconsin Secure
Program Facility (“WSPF”), attempted to give it
to him on January 3, 2018. See (Docket #59 at 2). He
shouted at the correctional officer and used profanity.
Id. at 2-3.
complains that he was required to “verify” his
mail before receipt and, feeling that this was an unlawful
request, refused to comply. (Docket #62 at 2). In reality,
prison records reveal that pursuant to DOC policy, guards
must open legal mail in the inmate's presence.
See (Docket #60-1 at 8). The guard on January 3
asked Adell to confirm that he should open Adell's
package from Defendants' counsel, and he refused,
angrily. (Docket #60-2 at 2).
a case about FLCI's compliance with the ADA and the
Rehabilitation Act. The Court refuses to become embroiled in
Adell's sideline dispute about the propriety of mail
delivery procedures at WSPF. He knew well that Defendants
were allowed to file a supplemental dispositive motion on or
before December 28, 2017. When, a few days after that date,
some legal mail arrived for him, it defies credulity that
Adell did not know what it was. To refuse to accept service
of a motion is not only egregious misconduct by any litigant,
pro se or represented, it also cannot conceivably be
an excuse for later non-compliance with the Court's
orders. Whatever Adell thought about the
“verification” requirement, he was under a duty
to meet this Court's deadlines. His juvenile behavior on
January 3 makes things all the worse for him, not
he refused to accept his mail that day, Adell believed no
motion had been filed and asked the Court to proceed with
trial in a motion filed on January 9. (Docket #57). The Court
denied the motion on January 12 and directed Adell to comply
with the Court's previously imposed response deadline of
January 18, 2018, which had been in place since the
Court's disposition of the first summary judgment motion
on December 7, 2017. (Docket #58). He did not. Instead, he
filed yet another motion for reconsideration, explaining the
scuffle over the January 3 mail delivery and complaining that
January 18 was too soon for him to file anything. (Docket #62
Court has taken great care to explain to Adell his
obligations as a litigant and his responsibility to timely
respond appropriately when the serious matter of summary
judgment arises. He defied those instructions, behaved
inappropriately, and now expects additional time to rectify
his error. Although a pro se litigant's filings
are to be construed generously, the Court is neither
Adell's lawyer nor his keeper. The Court will not extend
his response deadline, and in light of his conduct, Adell can
hardly expect sympathy. As the deadline to respond to
Defendants' motion has long since passed, the Court will
take as undisputed all the facts stated in Defendants'
supplemental statement of material facts. (Docket
Facts Material to Defendants'
detailed in the Court's prior ruling, Adell complains
that during his confinement in the RHU at FLCI, he was not
afforded clean drinking water. Adell claims that he needs
clean water at all times and in great quantities because he
suffers from ulcerative colitis. According to him, not only
will contaminated water aggravate his symptoms, he also needs
water to combine with powdered Gatorade mix to help alleviate
experienced some water quality issues that led to an
agreement in 2014 with the Wisconsin Department of Natural
Resources (“DNR”) to improve water quality.
Nothing about that process ever involved a finding that the
water was unsafe for human consumption. The agreement was