United States District Court, E.D. Wisconsin
DE'VON L. WALKER, Plaintiff,
PAUL LUDVIGSON, et al., Defendant.
ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL
SUMMARY JUDGMENT (DKT. NO. 21) AND DISMISSING DEFENDANTS
DEKEYSER, GERRITSON, TRITT, LUDVIGSON, WILLIAMS, BRADLEY AND
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
L. Walker is representing himself in this civil rights
lawsuit. The court allowed him to proceed on claims that the
defendants violated his Eighth Amendment rights by exhibiting
deliberate indifference to the risk that he would harm
himself. Dkt. No. 9. On May 11, 2018—nine months
ago—the defendants filed for “partial”
summary judgment, asking the court to grant judgment in favor
of defendants Dekeyser, Gerritson, Tritt, Ludvigson,
Williams, Bradley and Sabish. Dkt. No. 21. They did not
mention defendant Moungey in motion, nor did they mention him
in the conclusion paragraph of their brief (dkt. no. 22 at
30). In the body of the brief, however, they included a
section arguing that there was no evidentiary basis for the
plaintiff's claim that Moungey used excessive force. Dkt.
No. 22 at 20-24. The defendants conceded that there were
genuine disputes of material fact as to whether defendant
DeYoung failed to treat the plaintiff's injuries after he
harmed himself. Id. at 2.
November 22, 2017 scheduling order, the court required anyone
opposing a summary judgment motion to file a response within
thirty (30) days of service of the motion. Dkt. No. 14 at
1-2. Here, the defendants served the motion on May 11, 2018,
so the plaintiff's response was due on Monday, June 11,
2018. The court did not receive a response from the plaintiff
by that date. On July 9, 2018—about a month after the
deadline—the court issued an order, stating that if the
plaintiff wanted to respond to the defendants' motion, he
had to file his response in time for the court to receive it
by August 10, 2018. Dkt. No. 35. At the end of that order,
the court told the plaintiff that if it did not receive his
opposition brief, or his explanation for why he couldn't
file an opposition brief, by the end of the day on August 10,
2018, the “court will conclude that he does not oppose
the defendants' motion for summary judgment and will
decide the motion without the plaintiff's input.”
Id. at 2.
August 3, 2018, the court received a letter from the
plaintiff. Dkt. No. 37. He explained that he was
“suffering currently from a significant onset of
symptoms of diagnosed mental illness.” Id. at
1. He was at the Wisconsin Resource Center receiving
treatment. Id. He said that because of his illness,
he did not have the “mental fortitude” to be able
to deal with the litigation; he explained that he'd had
two psychotic episodes triggered by the simple act of reading
the summary judgment documents. Id. at 1-2. He
suggested that the court either dismiss his case without
prejudice, allowing him to resume it when he felt capable of
doing so, or that it appoint him an attorney, or that it
mediate a settlement. Id. at 2.
court responded by giving the plaintiff an additional sixty
days to respond. Dkt. No. 37. The court declined to dismiss
the case without prejudice, noting that since the time the
plaintiff filed his complaint, the Wisconsin legislature had
reduced the statute of limitations from six years to three,
and that the events of which the plaintiff complained took
place in November 2014. Id. at 2. The court declined
to appoint counsel for the plaintiff because he had not
demonstrated that he'd tried to find a lawyer on his own.
Id. at 3-4. Finally, the court indicated that it
would be happy to refer the case to mediation if both sides
agreed, but it noted that even if the defendants agreed to
participate in mediation, the mediating magistrate judge
likely would want to make sure “that the plaintiff is
sufficiently mentally and emotionally stable that he can
participate meaningfully in mediation.” Id. at
5. The court gave the plaintiff a deadline of February 15,
2019 by which to file his response to the motion for partial
summary judgment. Id. at 6. It told the plaintiff
that if he didn't file his response by that deadline, the
court would consider whether to dismiss the case for failure
to prosecute or to rule on the summary judgment motion
without the plaintiff's input. Id.
been two weeks since the February 15, 2019 deadline passed,
and the court has not received anything from the plaintiff.
The Wisconsin inmate locator service shows that he remains at
the Wisconsin Resource Center, where he has been since June
7, 2018. https://appsdoc.wi.gov/lop. The plaintiff has had
eight and a half months to respond to the defendants'
motion for partial summary judgment.
Standard When a Party Has Not Opposed Facts
Rule of Civil Procedure 56(e) says that if a party does not
properly address another party's assertion of fact, the
court may either give the party the opportunity to properly
address the fact, consider the fact undisputed, grant summary
judgment if the motion shows the movant is entitled to it or
enter any other appropriate order. The court already has
given the plaintiff more than one opportunity to properly
address the defendants' proposed facts. Because he has
not done so, the court will consider the defendants'
proposed facts (dkt. no. 23) undisputed for the purposes of
the motion. Fed.R.Civ.P. 56(e)(2).
DeYoung has not moved for summary judgment. While the
defendants discussed their views of the plaintiff's claim
against Moungey in their brief, they have not moved for
summary judgment on his behalf. The court, therefore, will
consider only whether the facts support a grant of summary
judgment in favor of Dekeyser, Gerritson, Tritt, Ludvigson,
Williams, Bradley and Sabish.
undisputed facts indicate that Dekeyser was a correctional
officer at Waupun Correctional during the relevant time. Dkt.
No. 23 at ¶2. Dekeyser was making his rounds at around
3:00 p.m. on November 5, 2014 when he saw that the plaintiff
had painted his face with a white substance, and was
“acting erratically.” Id. at ¶3. He
notified Gerritson—a correctional sergeant—then
went on about his duties. Id. at ¶¶2, 4.
Gerritson relayed Dekeyser's observations to Tritt, who
was a supervising officer. Id. at ¶¶2, 5.
Tritt went to the plaintiff's cell, and found the
plaintiff sitting on his sink, with “some type of white
paint on his face, which he called ‘war
paint.'” Id. at ¶6. Ludvigson was a
psychological associate at the prison, id. at
¶2; Tritt told Ludvigson what he'd seen at the
plaintiff's cell, and asked Ludvigson to go talk with the
plaintiff, id. at ¶7. Ludvigson went to the
plaintiff's cell around 4:00 p.m. (an hour after Dekeyser
first observed the plaintiff's odd behavior) and spoke
with the plaintiff. Id. at ¶8. Ludvigson found
the plaintiff “alert and oriented, ” and observed
that he “kept appropriate eye contact.”
Id. at ¶10. The plaintiff's “thoughts
were logical, organized and goal oriented and he reported no
perceptual disturbances and did not appear to be attending to
any internal stimuli.” Id. The plaintiff
denied to Ludvigson that he had any thoughts about harming
himself or had any issues he wanted to talk about; when
Ludvigson asked if the plaintiff was thinking of harming
other people, the plaintiff responded, “[n]o
more than usual.” Id. at ¶11. Given the
plaintiff's responses, Ludvigson decided not to place him
in observation status, instead he planned to refer the
plaintiff to his primary psych services clinician for a
follow-up. Id. at ¶12. Ludvigson made this
decision because the plaintiff denied that he was thinking of
hurting himself, and while he said he was thinking
of hurting others, he didn't report any plans to do so.
Id. at ¶19.
twenty minutes after talking with the plaintiff, Ludvigson
emailed the prison clinical services group; he noted that the
plaintiff was on “Dr. Johnston's caseload, ”
and suggested that even though the plaintiff had said he
didn't want to meet with his doctor, someone might want
to “touch base with [the plaintiff] the next
day.” Id. at ¶22. Five minutes later,
another psych associate responded that if Dr. Johnston
wasn't at Waupun the next day, that
associate—Teresa McLaren—would check in on the
plaintiff. Id. at ¶23.
that evening, Dekeyser was walking past the plaintiff's
cell when the plaintiff stopped him and said, “[y]ou
can tell your Sarg that I finally ate something.”
Id. at ¶30. Dekeyser asked the plaintiff what
he'd eaten, and the plaintiff responded, “At least
30 Tylenol and a screw.” Id. at ¶31.
Dekeyser immediately contacted a sergeant by radio and
reported this. Id. at ¶31. (As a correctional
officer, Dekeyser has been trained not to go into an
inmate's cell without other officers available to assist
and maintain safety. Id. at ¶32.) Someone also
notified Tritt about what the plaintiff had said, and he and
the sergeant went to the front of the plaintiff's cell.
Id. at ¶33. At this point, the plaintiff went
to the back of his cell and tried to take more medication.
Id. at ¶34. Tritt took out his Taser and told
the plaintiff to come to the front of the cell to be
restrained and taken out of the cell; the plaintiff did as
instructed. Id. at ¶35. Dekeyser and another
officer put the ...