United States District Court, E.D. Wisconsin
DEQUARIUS D. FITZPATRICK, Plaintiff,
SGT. VERHEYEN, et al., Defendants.
DECISION AND ORDER GRANTING-IN-PART AND
DENYING-IN-PART DEFENDANTS' MOTION FOR SUMMARY
William C. Griesbach, Chief Judge United States District
Dequarius Fitzpatrick, an inmate currently serving a state
prison sentence at Green Bay Correctional Institution (GBCI)
and representing himself, filed this action under 42 U.S.C.
§ 1983, alleging that sixteen defendants were deliberately
indifferent to a serious risk of harm to him when he injured
himself on August 31, 2016, and October 17,
2016. This matter comes before the court on the
defendants' motion for summary judgment. ECF No. 48. Also
before the court are Fitzpatrick's motion for summary
judgment (ECF No. 77), the defendants' motion to strike
Fitzpatrick's summary judgment motion (ECF No. 83), and
Fitzpatrick's motions for leave to file sur-replies to
the defendants' reply brief in support of their motion
for summary judgment (ECF No. 89) and to the defendants'
reply to his response to their proposed statement of
undisputed facts (ECF No. 90). For the reasons stated below,
the defendants' motion for summary judgment will be
granted-in-part and denied-in-part, Fitzpatrick's motions
for leave to file sur-replies will be granted, the
defendants' motion to strike will be denied, and
Fitzpatrick's motion for summary judgment will be denied.
following background facts are taken from the undisputed
portions of the defendants' proposed findings of fact. At
all times relevant to this case, Fitzpatrick was an inmate in
the Restrictive Housing Unit (RHU) at GBCI, and each
defendant was employed as either a correctional officer, a
sergeant, or a supervising officer on the RHU. Def.'s
Proposed Findings of Fact (DPFOF) ¶¶ 1-3, ECF No.
11:00 a.m. on August 31, 2016, Fitzpatrick cut his arm open
approximately 7 times with a razor blade. Id. ¶
36. It was the first time he had ever cut himself in prison.
Id. ¶ 37. A psychologist placed Fitzpatrick on
observation status as a precautionary measure, and around 1
p.m., Fitzpatrick received treatment in the Health Services
Unit (HSU). Id. ¶¶ 40-42. Treatment notes
from the HSU show that the cuts were “very superficial,
” there was no “active bleeding, ” and
Fitzpatrick was in an “agreeable” mood.
Id. ¶¶ 41-42 (citing ECF No. 54-8 at
25-26). Although no additional incident reports were recorded
for Fitzpatrick on August 31, Defendant Michael Verheyen did
confiscate a razor from him around 4:30 p.m., at which time
Verheyen observed blood around one of Fitzpatrick's
wounds from earlier in the day. Id. ¶¶ 44,
68; see also Pl.'s Response to DPFOF ¶ 68,
ECF No. 82. Fitzpatrick alleges that Verheyen, as well as
Defendants John Afolabi, Shane Brunner, John Deidrick, Chris
Delfosse, James Elsinger, Alexander Laplant, Alejandra Mejia,
Julio Ramirez, and David Yang were all deliberately
indifferent to the serious threat that he posed to himself
and failed to protect him from himself throughout the day.
weeks later, on October 17, 2016, Fitzpatrick cut himself
with a disposable plastic spoon shortly before 2:22 p.m.
DPFOF ¶¶ 70, 74. Once again, he was placed on
clinical observation status and his wound was treated in the
HSU. Id. ¶¶ 76-77. Progress notes from the
HSU show that, when he was treated at 2:30 p.m., his
“pea sized” wound was not actively bleeding and
could be closed by 2 steri-strips. Id. ¶ 76
(citing ECF No. 54-8 at 23). During the 6 o'clock hour
that evening, Fitzpatrick reopened the wound and squeezed his
arm to smear blood, culminating in a 6:55 p.m. return to the
HSU, where his wound was cleaned, closed with 3 steri-strips,
and covered with gauze. Id. ¶¶ 88-89
(citing ECF No. 54-8 at 23-24). Fitzpatrick was returned to
observation status, and an officer observed that he was
bleeding again as early as 10:05 p.m. Id.
¶¶ 91-92. This time, his wound did not require
treatment in the HSU, the wound was again closed with
steri-strips, and Fitzpatrick was placed in restraints.
Id. ¶ 95; see also ECF No. 54-8 at 21.
Similar to his claims regarding the August 31 incident,
Fitzpatrick alleges that Defendants Kyle Peotter, Darren
Larkin, Andrew Wickman, Michael Eichstedt, Raymond Koehler,
Michael Schultz, and Alejandra Mejia were all deliberately
indifferent to the danger he posed to himself throughout the
day on October 17.
undisputed factual information regarding the actions of the
individual defendants will be set forth in greater detail as
necessary as part of the analysis that follows.
judgment is appropriate when the moving party shows that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). All reasonable inferences are construed
in favor of the nonmoving party. Foley v. City of
Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party
opposing the motion for summary judgment must “submit
evidentiary materials that set forth specific facts showing
that there is a genuine issue for trial.” Siegel v.
Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (quoted
source and internal quotation marks omitted). “The
nonmoving party must do more than simply show that there is
some metaphysical doubt as to the material facts.”
Id. Summary judgment is properly entered against a
party “who fails to make a showing sufficient to
establish the existence of an element essential to the
party's case, and on which that party will bear the
burden of proof at trial.” Parent v. Home Depot
U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012)
(internal quotation mark omitted) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986)).
Fitzpatrick's Motions to File Sur-Replies
preliminary matter, Fitzpatrick has filed two motion seeking
leave to file a sur-reply to the defendants' reply brief
supporting their own motion for summary judgment (ECF No. 89)
and a sur-reply to the defendants' reply to his response
to their proposed statement of undisputed facts (ECF No. 90).
Consistent with Civil Local Rule 7(i), Fitzpatrick filed his
proposed sur-reply briefs simultaneously with his motions.
Whether to grant a party leave to file a sur-reply brief is a
question within the court's discretion. “The
decision to permit the filing of a surreply is purely
discretionary and should generally be allowed only for valid
reasons, such as when the movant raises new arguments in a
reply brief.” Merax-Camacho v. United States,
417 Fed.Appx. 558, 559 (7th Cir. 2011) (citing Schmidt v.
Eagle Waste & Recycling, Inc., 599 F.3d 626, 631 n.2
(7th Cir. 2010)). “In some instances, allowing the
filing of a surreply ‘vouchsafes the aggrieved
party's right to be heard and provides the court with the
information necessary to make an informed
decision.'” Univ. Healthsystem Consortium v.
UnitedHealth Grp., Inc., 68 F.Supp.3d 917, 922 (N.D.
Ill. 2014) (quoting In re Sulfuric Acid Antitrust
Litig., 231 F.R.D. 320, 329 (N.D. Ill. 2005)).
Fitzpatrick's motions for leave to file sur-reply briefs
will be granted, as the proposed filings will assist the
court in evaluating his claims.
plaintiff may prevail on a claim for relief under 42 U.S.C.
§ 1983 by showing that he was (1) deprived of a federal
right (2) by a person acting under color of state law.
Gomez v. Toledo, 446 U.S. 635, 640 (1980).
“[D]eliberate indifference to serious medical needs of
prisoners constitutes the ‘unnecessary and wanton
infliction of pain' proscribed by the Eighth
Amendment.” Chatham v. Davis, 839 F.3d 679,
684 (2016) (alterations in original) (quoting Estelle v.
Gamble, 429 U.S. 97, 104 (1976)). “ A prison
official may be liable for deliberate indifference only if he
‘knows of and disregards an excessive risk to inmate
health or safety.'” Id. (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
“A § 1983 claim based upon a violation of the
Eighth Amendment has both an objective and a subjective
element: (1) the harm that befell the prisoner must be
objectively, sufficiently ...