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Adell v. Wisconsin Department of Corrections

United States District Court, E.D. Wisconsin

February 14, 2018

MARK ANTHONY ADELL, Plaintiff,
v.
WISCONSIN DEPARTMENT OF CORRECTIONS and JON LITSCHER, Defendants.

          ORDER

          J. P. Stadtmueller Judge

         Plaintiff 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.

         The 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).

         The remaining defendants, the DOC and Litscher, [1] 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 dismissed.

         1. STANDARD OF REVIEW

         Federal 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).

         2. RELEVANT FACTS

         2.1 Adell's Failure to Dispute the Material Facts

         The 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.

         In the 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).

         On 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 3-4).

         The 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).

         The 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.

         Adell 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).

         This is 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 better.[2]

         Because 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 at 4).

         The 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 #53).[3]

         2.2 Facts Material to Defendants' Motion[4]

         As 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 his symptoms.

         FLCI 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 ...


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