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Walker v. Ludvigson

United States District Court, E.D. Wisconsin

March 4, 2019

DE'VON L. WALKER, Plaintiff,
v.
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 SABISH

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         I. Procedural History

         De'Von 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.

         In its 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.

         On 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.

         The 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.

         It has 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.

         II. Standard When a Party Has Not Opposed Facts

         Federal 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).

         III. Undisputed Facts

         Defendant 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.

         The 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.

         About 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.

         Later 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 ΒΆ35. Dekeyser and another officer put the ...


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