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Howell v. Gallinger

United States District Court, W.D. Wisconsin

March 28, 2018

JOEY HOWELL, Plaintiff,

          OPINION & ORDER


         Pro se plaintiff Joey Howell is an inmate confined at the Wisconsin Secure Program Facility (WSPF). I granted him leave to proceed on Eighth Amendment deliberate indifference claims against defendants Shawn Gallinger and Heidi Brown, WSPF staff who he claims stood by while he attempted suicide by swallowing pills, and defendant Craig Tom, another staff member who he claims delayed in sending him to the emergency room after the suicide attempt. Dkt. 9.

         The parties have filed cross-motions for summary judgment. Dkt. 16 and Dkt. 29. Defendants responded to Howell's summary judgment motion, but Howell failed to respond to defendants' motion. On August 7, 2017, Howell sent a letter to the court stating that he hadn't “received any documents from the courts” and asking that he be sent copies of all recent filings and be allowed additional time to respond to any motions filed. Dkt. 40. Defendants promptly filed several declarations indicating that Howell's mail had not been withheld. Dkt. 43. They sent new copies of their summary judgment materials to Howell, just in case. Id. Howell acknowledged receipt of those materials on August 10. Dkt. 42. He explained that he would “do everything within [his] power to address” the materials. Id. at 1. But he has not filed anything more with the court since then. Howell has had ample time to respond to defendants' summary judgment motion, and he has not explained why he needs more time. So I will deny his motion for an extension of time and address the parties' cross-motions for summary judgment. Genuine disputes of fact preclude summary judgment as to Gallinger, but because there is no evidence that Brown and Tom were deliberately indifferent to Howell's risk of suicide, I will grant summary judgment in their favor. Howell's claim against Gallinger will proceed to trial.


         The following facts are undisputed except where noted. They are adopted from the parties' proposed findings of fact submitted in support of their summary judgment motions. Because Howell failed to respond to defendants' proposed findings, I will consider those findings undisputed unless they conflict with Howell's.

         On December 2, 2015, Howell was housed in WSPF's restrictive housing unit, Alpha Unit. Gallinger and Brown were correctional officers assigned to work on Alpha Unit that day. Just after 8 a.m., Gallinger and Brown were offering recreation time to Alpha Unit inmates. When Gallinger stopped at Howell's cell and asked if he wanted recreation, Howell asked to speak with a psychological services unit (PSU) staff member. According to defendants, Gallinger told Howell to submit a PSU request slip, reiterated the recreation offer, and then walked away. According to Howell, he said it was an “emergency” and then repeated his request for help while showing Gallinger a handful of pills, but Gallinger just offered him recreation again and then walked away as Howell yelled “I'm about to take these pills in my hand.” Dkt. 38, ¶¶ 2-5.

         No more than a few minutes later, Howell knocked on the window of his cell to get Brown's attention and then took the handful of pills. Brown ordered Howell not to take the pills, but Howell swallowed them. Brown immediately reported Howell's actions to shift sergeant Govier. Govier told Brown to wait with Howell and then notified PSU, the health services unit, and the security supervisor. According to Howell, at some point around this time, he told Gallinger that he was “having a psychological melt down” and wanted to see PSU or he would kill himself. Id. ¶ 8. Defendants deny that Howell said this to Gallinger.

         About five minutes later, Tom, the lieutenant in charge of transportation, arrived at Howell's cell, and Howell was placed in restraints and escorted to the health services room, where he was assessed by a nurse. Howell refused to say exactly what pills he had ingested, other than that he'd been saving up his daily medications for about six days. The nurse estimated that Howell probably ingested 300 mg of nortriptyline, 240 mg of duloxetine, and 900 mg of bupropion, all antidepressants. The nurse determined that Howell's vital signs were stable, that his airway was open and clear, that he had no difficulty breathing, that he had no apparent abnormalities, and that he was alert. The nurse relayed her assessment to a doctor, who authorized Howell's transportation to the emergency room for additional assessment and treatment, if necessary.

         Howell was then escorted to an intake holding cell to be strip searched before being transported to the emergency room. The strip search is a mandatory procedure before transport, except for “medical emergency trips where a strip search is not practical or possible.” Dkt. 35-1. During a strip search, inmates must “remove” braids in their hair. Id. Tom ordered Howell to remove his braids; Howell complied.

         Howell was then taken to the emergency room, where he was given activated charcoal. He vomited once and complained of fatigue, but “remained hemodynamically stable and neurologically intact” during the visit and was discharged that afternoon. Dkt. 31, ¶ 44.


         Summary judgment is appropriate if a moving party “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). When, as here, the parties have filed cross-motions for summary judgment, the court “look[s] to the burden of proof that each party would bear on an issue of trial [and] then require[s] that party to go beyond the pleadings and affirmatively to establish a genuine issue of material fact.” Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997). If either party “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 at trial, ” summary judgment against that party is appropriate. Mid. Am. Title Co. v. Kirk, 59 F.3d 719, 721 (7th Cir. 1995) (quoting Tatlovich v. City of Superior, 904 F.2d 1135, 1139 (7th Cir. 1990)). “As with any summary judgment motion, this [c]ourt reviews these cross-motions ‘construing all facts, and drawing all reasonable inference from those facts, in favor of . . . the non-moving party.'” Wis. Cent., Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir. 2008) (quoting Auto. Mechs. Local 701 Welfare & Pension Funds v. Vanguard Car Rental USA, Inc., 502 F.3d 740, 748 (7th Cir. 2007)).

         Howell contends that defendants were deliberately indifferent to his suicide attempt, in violation of his Eighth Amendment right to be free from cruel and unusual punishment. To prevail on his claims, Howell must show that he “suffered an objectively serious harm that presented a substantial risk to his safety” and that defendants knew of and “intentionally disregarded the risk.” Minix v. Canarecci, 597 F.3d 824, 831 (7th Cir. 2010).

         A. ...

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