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Brown v. Radar

United States District Court, E.D. Wisconsin

March 30, 2018

CHRISTOPHER DANIEL BROWN, Plaintiff,
v.
KEITH RADER,[1] ALEXANDRIA COBB, and LORI JOHSNON, Defendants.

         DECISION AND ORDER GRANTING DEFENDANT KEITH RADER'S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 40), DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 53), DENYING PLAINTIFF'S MOTION FOR EXTENSION OF TIME (DKT. NO. 54), GRANTING DEFENDANT KEITH RADER'S MOTION FOR LEAVE TO FILE A REPLY BRIEF (DKT. NO. 56), AND DIRECTING DEFENDANTS COBB AND JOHNSON TO SUPPLEMENT THEIR MOTION FOR SUMMARY JUDGMENT ON OR BEFORE MAY 4, 2018

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         Plaintiff Christopher Daniel Brown, a former Wisconsin state prisoner who is representing himself, filed a case under 42 U.S.C. §1983, alleging that the defendants violated his civil rights at the hospital after his arrest on May 26, 2014. The court screened the plaintiff's amended complaint under 28 U.S.C. §1915A, and allowed him to proceed on Fourth Amendment claims that the plaintiff's blood was drawn without his consent. Dkt. No. 10 at 8-9.

         On October 7, 2016, the defendants filed separate motions for summary judgment. Dkt. Nos. 35, 40. The court granted the plaintiff's motion for extension of time to respond to those motions, requiring him to respond on or before December 7, 2016. Dkt. No. 47. When the plaintiff did not file a response by that deadline, the court ordered that it would dismiss the case for failure to prosecute on January 13, 2017, unless the plaintiff responded to the motions before that date. Dkt. No. 52.

         Before the January 13, 2017 deadline expired, the plaintiff filed a “Motion for Reconsideration of Defendants' Motion for Summary Judgment, ” dkt. no. 53, wherein he indicated that he had intended to request additional time to file his response; and he enclosed an unsigned “Motion for an Extension of Time to File Reply to Summary Judgment, ” that the clerk's office docketed on the same day. dkt. no. 54. The plaintiff said that he lost track of time and that the motion for extension of time had been buried under paperwork. Dkt. No. 53. He accepted responsibility for the delay, and advised the court and that he would file his response soon. Id. Less than a week later, on January 3, 2017, the court received the plaintiff's sworn “Motion to Deny Defendants' Request for Summary Judgment, ” which the clerk's office docketed as his brief in opposition to the defendants' motions for summary judgment. Dkt. No. 55.

         The court will deny as unnecessary the plaintiff's motion for reconsideration because there was, at the time he filed it, no order for the court to reconsider; the court had not decided the defendants' motions for summary judgment. The court also will deny the plaintiff's unsigned motion for extension of time, because the Federal Rules of Civil Procedure require people who file motions to sign them. See Fed.R.Civ.P. 11(a). The court will accept and consider the plaintiff's sworn brief in opposition to the defendants' motions for summary judgment. Dkt. No. 55.

         On January 17, 2017, defendant Keith Rader filed a motion for leave to file a reply brief, and attached the proposed reply brief in support of his motion for summary judgment. Dkt. No. 56. The court will grant this motion and consider the reply brief.

         The court also notes that the motion for summary judgment filed by defendants Alexandria Cobb and Lori Johnson did not comply with (1) Civil Local Rule 56(a), because it did not provide the required notice; and (2) Civil Local Rule 56(b), because the defendants did not file the required statement of proposed material facts. The court concludes, however, that the plaintiff was not prejudiced by these deficiencies. He received the required notices from defendant Rader, and the facts proposed by these defendants were not extensive and were based on the plaintiff's amended complaint, the plaintiff's deposition testimony and Rader's responses to the plaintiff's second interrogatories. Counsel for Cobb and Johnson attached to an affidavit excerpts of the plaintiff's deposition testimony and Rader's responses to the plaintiff's second interrogatories, and submitted them with the motion for summary judgment.

         I. FACTS[2]

         On May 26, 2014, City of Cudahy police officers responded to a report of a man threatening to kill his wife. Dkt. No. 42 at ¶3. The police arrested plaintiff Christopher Brown and, despite some resistance from him, took him into custody; the plaintiff was making threats to the officers as this happened. Id. at ¶¶6-12. Once they had the plaintiff in custody, the police took him to the emergency department at Aurora St. Luke's South Shore Hospital (South Shore). Id. at ¶13. South Shore is a privately owned and operated hospital facility owned by Aurora Healthcare. Id. at ¶14.

         A. Rader's Facts

         Keith Rader, M.D. worked in the emergency department at South Shore with defendants Alexandria Cobb and Lori Johnson. Id. at ¶2. Rader was an emergency-medicine physician employed by ERMED, S.C., a private physician group contracted by Aurora Healthcare to staff the emergency department at South Shore. Id. at ¶¶1, 16. He had no contractual relationship or other agreement with any governmental body to provide care to arrestees such as the plaintiff. Id. at ¶17.

         Defendant Cobb was an emergency medical technician (EMT) at the time. Id. at ¶28. The plaintiff identifies defendant Lori Johnson as “RN Johnson, ” which implies that she was a nurse. Dkt. No. 7 at 2. Other than that, none of the parties have explained who Johnson is, or her role in the incidents of May 26, 2014.

         Rader was the attending physician assigned to care for the plaintiff. Dkt. No. 42 at ¶15. Rader assessed the plaintiff in the patient-care room and found him to be agitated, angry and violent. Id. at ¶18. Rader treated the plaintiff with a five mg/mL injection of Haldol, an antipsychotic medication, and ordered the hospital staff to perform a blood draw and obtain a urine sample. Id. at ¶¶19-20. Rader ordered the blood draw to determine whether the plaintiff had consumed drugs and/or alcohol and, if so, in what amounts, because the consumption of drugs and/or alcohol placed the plaintiff at risk for medical emergencies, including (but not limited to) heart attack, cardiac arrhythmia, stroke and intracranial hemorrhage. Id. at ¶¶23-24. Another purpose of the blood draw was to determine whether the plaintiff's altered behavior was caused by some injury he had sustained, such as from a fall, as opposed to or in addition to the consumption of drugs and/or alcohol. Id. at ¶25.

         According to the plaintiff, he had a conversation with Rader, who explained the purpose of the blood draw, but the plaintiff does not recall what Rader said about the blood draw. Id. at ¶¶21-22.

         The blood draw was solely a medical decision, and it is one Rader had made countless times in his career under similar circumstances. Id. at ¶26. Rader indicates that he never has had a situation in his career in which a law enforcement officer or a patient's in-custody status has influenced his medical decision-making or judgment. Id. at ¶27. Rader did not order a blood draw for the plaintiff at the behest of, or in consultation with, law enforcement. Id.

         As an emergency-medicine physician, Rader has formulated certain customs and practices regarding a patient's refusal to submit to recommended medical care and treatment, including when it relates to blood draws and suspected drug and/or alcohol intoxication. Id. at ¶32. When a patient refuses medical care, Rader first determines whether the patient has the competency and capacity to make an informed decision to refuse medical care and treatment. Id. at ¶33. This requires that the patient demonstrate the ability to clearly understand the risks and benefits of a particular course of action. Id. This is done by an initial evaluation of the patient, which normally includes taking a history and performing a physical exam. Id. Rader then would make recommendations regarding the patient's need for any further evaluation, testing ...


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