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Braithwaite v. Billie

United States District Court, E.D. Wisconsin

July 16, 2018

JOSHUA P. BRAITHWAITE, Plaintiff,
v.
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 PREJUDICE

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         I. MOTIONS FOR SUMMARY JUDGMENT (Dkt. Nos. 28, 32)

         A. Facts[1]

         On 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. at ¶2.

         1. The April 18 Incident

         The 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.

         The 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.

         The 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.[2] 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.

         About 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.

         Sergeant 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.

         Later 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.

         2. The Plaintiff's Offender Complaint

         On 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 ...


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