United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
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.
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.
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.
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.
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).
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.
following facts are undisputed except where noted.
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.
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.
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
September 13, 2016 incident
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.
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.
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