United States District Court, E.D. Wisconsin
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
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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,