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Lindsey v. Wallace

United States District Court, W.D. Wisconsin

March 29, 2018

CARLOS LINDSEY, Plaintiff,
v.
LAVERN WALLACE, Defendant.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Pro se plaintiff Carlos Lindsey, a state prisoner incarcerated at the Wisconsin Secure Program Facility (WSPF), is proceeding on an Eighth Amendment deliberate indifference claim against defendant Laverne Wallace, a correctional sergeant at WSPF. Wallace was in the sergeant cage where he could monitor individual cells by intercom and video when Lindsey attempted suicide. Lindsey alleges that he told Wallace that he was suicidal and that he needed to see someone for psychological services, but Wallace taunted him and told him that he would not call anyone.

         Both parties move for summary judgment. The parties agree that Lindsey told Wallace that he would swallow pills if Wallace would not get help for Lindsey, that Wallace responded, “Why? Because you're mad you didn't get your T.V.?, ” that Lindsey swallowed 19 pills of hydroxyzine, and that after the overdose a doctor at an off-site hospital diagnosed him with acute kidney failure. Because there is a genuine and material dispute about whether Wallace knew that Lindsey was suicidal and how promptly Wallace called for help, I will deny both parties' motions for summary judgment.

         PRELIMINARY MATTER

         Lindsey moves to compel Wallace to produce a video recording of his cell. Dkt. 42. He states that the video recording would show that he pressed the intercom button installed in his cell multiple times and that it would have been impossible for Wallace to not see his suicide attempt through a camera from the sergeant cage at WSPF. Id. Wallace responded to Lindsey's motion to compel by stating that he already produced the video recordings. Dkt. 45.

         Wallace's certificate of service accompanying his motion for summary judgment shows that he sent the video recording and other evidence to Lindsey at the Green Bay Correctional Institution, where he was incarcerated at the time. Dkt. 29-1. After Wallace moved for summary judgment, Lindsey was moved back to WSPF, where he had no personal property or legal documents for some time while Wallace's motion for summary judgment was pending. Dkt. 37.

         Lindsey filed his motion to compel after filing his brief in opposition to Wallace's summary judgment motion. So it appears that Lindsey did not have the video recording of his cell during the briefing, which means that he was unable to rely on it in his summary judgment materials. But I have discretion to consider all materials in the record even if a party does not cite them. Fed.R.Civ.P. 56(c)(3).

         I have considered the video recordings and conclude that Lindsey is right: the video recording of his cell supports his version of facts, as discussed below. I will deny Lindsey's motion to compel as moot.

         UNDISPUTED FACTS

         The following facts are undisputed except where noted.

         Lindsey is a WSPF inmate who has been diagnosed with several mental conditions, including depression, post-traumatic stress disorder, mood disorder, conduct disorder, antisocial personality, oppositional defiant disorder, and adjustment disorder. Dkt. 13, at 1-2 and Dkt. 16, ¶ 5. He has been prescribed various psychiatric medicine, including buspirone and escitalopram. Dkt. 34-1, at 13.

         Lindsey also has a prescription for hydroxyzine, which is commonly prescribed as a sedative to treat anxiety and tension. Dkt. 33, ¶ 6. A hydroxyzine overdose is “rarely” toxic, but it could lead to lethargy that could in turn cause cardiac issues. Id.

         Lindsey was on a Keep-On-Person (KOP) restriction, which meant that he could not have his medicine on his person or in his cell. Despite that restriction, Lindsey was able to hoard 19 of his hydroxyzine pills.

         A. September 13, 2016 incident

          On September 13, 2016, Wallace was in the sergeant cage where he could monitor individual cells by intercom and video. Lindsey spoke to Wallace through the intercom in his cell and asked to see a shift supervisor and someone from the psychological services unit (PSU). Lindsey told Wallace that he would swallow 19 pills if Wallace would not contact a shift supervisor or the PSU. Wallace responded, “Why? Because you're mad you didn't get your T.V.?” Lindsey then swallowed the 19 hydroxyzine pills. Dkt. 24-2 and Dkt. 28, ¶ 11. (Lindsey did not tell Wallace that the pills he had were hydroxyzine.) At some point, Wallace contacted Captain Larry Primmer and the PSU, and he told Lindsey that a supervisor and a PSU staff member would come to his cell after the “count, ” the administrative task of counting inmates in their cells. After the count, Primmer came to Lindsey's cell, followed by a PSU staff member, Maria Lemieux, who came shortly after Primmer, and then two nurses, Beth Edge and Gunner Lee, came after Lemieux. Dkt. 35-1.

         The critical dispute is what happened between 11:07 a.m., when Lindsey first used the intercom, and 11:16 a.m., when Primmer arrived at Lindsey's cell. The first dispute concerns what was said. Lindsey contends that he told Wallace that he was suicidal; Wallace denies that. Each presents his own declaration in support. Dkt. 24, ¶ 3 and Dkt. 35, ¶ 6. And Lindsey has some additional evidence to support his version. Lindsey sent Wallace a document titled “Interview/Information request” and asked Wallace, “Sgt. Wallace did I inform you on 9-13-16 that I was feeling suicidal and requested to be placed on clinical observation prior to me taking the pills?” Dkt. 41-1. Wallace responded, “You said you were suicidal and wanted to see PSU.” Id. The parties also dispute what Wallace said in response to Lindsey's request. Lindsey states in his declaration that Wallace said, “I'm not calling anyone.” Dkt. 24, ¶ 6. Wallace's declaration denies that he made the statement. Dkt. 35, ¶ 19. Both sides have evidence for their version, so what was said is genuinely disputed.

         The next dispute concerns when Wallace notified Primmer and the PSU. Wallace's proposed findings of fact cite his declaration and state that Lindsey called Wallace at 11:07 a.m., and that after speaking to Lindsey, Wallace immediately informed Primmer and the PSU. Dkt. 44, ¶¶ 4, 6. But that is not what Wallace's declaration actually says. The ...


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