United States District Court, E.D. Wisconsin
JOSHUA P. BRAITHWAITE, Plaintiff,
MITCHELL BILLE, GERRAD KIBBEL, RYAN HINTZ, CO KEVIN BENSON, and ADAM MARTIN, Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 28), GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE
REMEDIES (DKT. NO. 32), AND DISMISSING CASE WITHOUT
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
Joshua Braithwaite is a Wisconsin state prisoner representing
himself. He filed this lawsuit, alleging that the defendants
failed to prevent him from harming himself, in violation of
the Eighth Amendment to the United States Constitution. Dkt.
No. 1. The parties have filed cross-motions for summary
judgment. Dkt. Nos. 28, 32. The court will deny the
plaintiff's motion for summary judgment, grant the
defendants' motion for summary judgment and dismiss the
case without prejudice, because the plaintiff failed to
exhaust his administrative remedies.
MOTIONS FOR SUMMARY JUDGMENT (Dkt. Nos. 28, 32)
April 18, 2016, the plaintiff was an inmate housed at the
Waupun Correctional Institution (Waupun), in the B-range
cellblock of the restrictive housing unit, cell B-106. Dkt.
No. 47 at ¶1. The defendants were employed at Waupun:
Ryan Hintz was a correctional sergeant, and Mitchell Bille,
Kevin Benson, Gerrad Kibbel and Adam Martin were correctional
officers working the restrictive housing unit. Id.
The April 18 Incident
parties dispute some of the events that form the basis of the
plaintiff's claim. They first dispute whether, on the
morning of April 18, 2016, the plaintiff asked Officers
Kibbel and Bille for help because he was feeling suicidal.
According to the plaintiff, on that morning he told Officer
Kibbel that he was going to harm himself and that he needed
to see Psychological Services Unit (PSU) staff as soon as
possible. Dkt. No. 35 at ¶1. Kibbel allegedly responded
that he would be right back. Id. The plaintiff avers
that about an hour later, he told Officer Bille that he was
having a mental breakdown, was going to cut his wrist and
needed to see PSU for help. Id. at ¶2. The
plaintiff also alleges that when Officers Bille and Kibbel
delivered his lunch tray, he asked them why they had not
“got anyone to see me regarding my request to see PSU
because I was feeling suicidal and they both just kept
walking.” Id. at ¶3.
defendants do not agree with these proposed facts. According
to the defendants, Officer Kibbel does not recall the
plaintiff asking to see PSU staff and/or making statements of
being suicidal to him that day. Id. at ¶1.
Likewise, Officer Bille does not recall the plaintiff asking
to see PSU staff and/or making statements that he wanted to
harm himself. Id. at ¶2. The defendants also
dispute the plaintiff's assertion that he asked Bille and
Kibbel why they had not gotten help for him when they
delivered his lunch tray. Id.
parties do not dispute that the plaintiff used the intercom
system in his cell to contact the control center and ask for
help. Id. at ¶4. Between 10:51 a.m. and 11:10
a.m., Officer Martin received three calls on the intercom
regarding the plaintiff. Dkt. No. 47 at ¶15. In the
first call, the plaintiff said he was suicidal. Id.
at ¶16. Officer Martin notified Sergeant Hintz of the
plaintiff's statements. Id. In the second call,
an inmate housed near the plaintiff reported that “B106
is suicidal.” Id. at ¶17. The plaintiff
was in cell B106. Id. Officer Martin notified
Sergeant Hintz about the call. Id. at ¶18. In
the third call, the plaintiff stated that he was cutting
himself. Id. at ¶19. Officer Martin notified
Sergeant Hintz of the plaintiff's statement. Id.
ten minutes after the third call, Sergeant Hintz and Officer
Bille arrived at the plaintiff's cell door. Dkt No. 35 at
¶8. The plaintiff states that when they arrived, he was
cutting his arm with a sharpened pen insert, but the
defendants dispute that he was cutting himself, or that there
was any serious injury, when they arrived. Id.
Officer Bille stated, “man I thought you where [sic]
playing.” Id. ¶9. They removed the
plaintiff from his cell. Id.
Hintz had the plaintiff placed in the strip search cell, and
Dr. Van Buren, a psychologist at Waupun, saw him. Dkt. No. 47
at ¶26. Dr. Van Buren placed the plaintiff on
observation status. Id. at ¶27.
that same day, Nurse Gunderson saw the plaintiff in the strip
search cell for his claim that he cut himself. Id.
at ¶28. Nurse Gunderson noted that the plaintiff had a
superficial abrasion on his left arm measuring about 1
centimeter x 0.2 centimeter. Id. at ¶29. The
plaintiff “disagrees” with the size of the
measurement, and states that he thinks it was bigger than
that. Id. According to the plaintiff's medical
records, there was no active bleeding or signs/symptoms of
infection. Id. at ¶30. The abrasion was cleaned
and covered with a bandage so the skin was protected from
possible infection. Id. The nurse noted in the
medical records that no follow-up appointment was needed and
that the plaintiff could remove the bandage in two days.
Id. at ¶31.
The Plaintiff's Offender Complaint
April 25, 2016, the plaintiff submitted offender complaint
WCI-2016-10078, alleging that on April 18, security staff
failed to protect him after he made threats of self-harm if
he was not removed from his cell. Id. at ¶32.
The plaintiff claimed he then cut his wrist with a pen.
Id. Institution Complaint Examiner Nelson returned
this complaint to the plaintiff the same day, directing him
to attempt to resolve the issue by contacting Lieutenant
Tritt in the security department. Id. at ¶33.
Nelson informed the plaintiff that this was a “return,
” not a rejection, and that he could re-submit his
complaint after he took the following actions: 1) inform
Tritt that he was instructed to contact Tritt by the Inmate
Complaint Department regarding the issues presented in the
complaint; 2) re-submit the complaint if he felt staff did
not address his ...