United States District Court, E.D. Wisconsin
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 38), DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 50) AND DISMISSING CASE
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, who is representing himself, filed this complaint
under 42 U.S.C. §1983. Dkt. No. 1. The court allowed him
to proceed on a Fourteenth Amendment claim that the
defendants used excessive force against him, allegedly
beating and sodomizing him. Dkt. No. 12. The defendants filed
a motion for summary judgment. Dkt. No. 38. The plaintiff
filed an objection/response to that motion, dkt. no. 51, as
well as his own motion for summary judgment, dkt. no. 50. The
court will deny the plaintiff's motion, grant the
defendants' motion, and dismiss the case.
Local Rule 56(b)(2)(B) requires that a party who opposes a
motion for summary judgment must, within thirty days of
service of the summary judgment motion, file “a concise
response to the moving party's statement of facts.”
On October 17, 2017, the court issued its scheduling order;
it attached to the order a copy of relevant local rules,
including Civil Local Rule 56. Dkt. No. 25. On May 15, 2018,
the court received a letter from the plaintiff, asking for
information about the litigation process. Dkt. No. 37. The
clerk's office responded by sending him a copy of the
local rules-including Rule 56(b)(2)(B)-and a brochure with
answers to frequently-asked questions. On May 21, 2018, the
defendants filed their motion for summary judgment. Dkt. No.
38. They attached Civil L.R. 56 to the motion, as they were
required to do in a case involving a pro se
plaintiff, so the plaintiff received the rule a
third time. Despite receiving the rule three times,
the plaintiff did not respond to the defendants' proposed
findings of fact. Accordingly, the court takes the facts from
“Defendants' Proposed Findings of Fact in Support
of Motion for Summary Judgment.” Dkt. No. 39. Under
Federal Rule of Civil Procedure 56(e)(2), the court will
consider the defendants' proposed facts undisputed for
the purposes of this motion.
plaintiff informed the court in the complaint that he is
mentally ill. Dkt. No. 1 at 3. The complaint alleged that
between May and August 2016, he was housed in the Milwaukee
County Jail, in segregation-Pod 4-D room/cell #27.
Id. at 2. (Pod 4D is “a housing unit within
the Jail specific to inmates serving and/or pending
discipline.” Dkt. No. 39 at ¶94.) The plaintiff
alleged that during first shift, sometime between May 4 and
May 17, 2016, the defendants came into the cell and beat him
with closed fists and put an unknown object in his buttocks.
Dkt. No. 1 at 2-3. The plaintiff asserted that because of his
grief, he couldn't identify the exact date of this event,
but he says that he reported it to Lt. Sobek and Lt. Hannah,
and that he filed grievances “right away.”
Id. The complaint also alleged that the plaintiff
yelled the incident to a nurse outside his cell, and that a
doctor heard it. Id.at 3.
defendants indicate that personnel in the sheriff's
office first learned of the alleged incident when they
received a one-page letter from the plaintiff, dated
September 22, 2016 and addressed to Milwaukee County Fiscal
Affairs. Dkt. No. 39 at ¶128. The plaintiff sent a
second letter, this one addressed to the Milwaukee County
Internal Affairs Division, on November 21, 2016. Id.
at ¶129. Detective Larrel Lirette was assigned to
investigate the claims contained in the letters. Id.
at ¶130. Lirette interviewed the plaintiff on two
separate occasions, but at that time (presumably the fall of
2016, a month or so before the plaintiff filed this
complaint), he couldn't be specific about the date of the
assault; he indicated only that it happened between January
1, 2016 and August 24, 2016. Id. at ¶131.
Without a more definite time frame or substantiating details,
Detective Lirette deemed the plaintiff's claims were
unfounded. Id. at ¶132. It was a couple of
months later, in the complaint he filed in January 2017, that
the plaintiff narrowed the time frame to sometime between May
4 and May 17, 2016.
defendants were able to confirm that the plaintiff has been
an inmate at the Milwaukee County Jail at various times over
the years, id. ¶1, and that he was incarcerated
there between January 1 and August 23, 2016, id.
¶3. Both defendants-Brito and Ramsey-Guy-worked at the
jail as corrections officers during that time. Id.
at ¶¶20, 30. The two individuals the plaintiff
indicates he informed about the incident-Capt. Sobek and
(then) Lt. Hannah-also worked at the jail during that time.
Id. at ¶¶46, 51-52.
deposition, the plaintiff testified that the alleged assault
happened while Brito and Ramsey-Guy “worked together on
a regular shift in 4D, after lunch was served but before
shift change.” Id. at ¶136. Between May 4
and May 17, 2016-the time frame the plaintiff identified in
the complaint-both Brito and Ramsey-Guy were assigned to work
in Pod 4D on only one day: first shift on May 8, 2016.
Id. at ¶59. Brito worked from 6:30 a.m. to 2:24
p.m., “leaving the pod at various times throughout his
shift to escort inmates and respond to urgent matters within
the Jail.” Id. at ¶60. Ramsey-Guy worked
from 6:30 a.m. to 2:01 p.m. (he used personal time to leave
before the 2:30 close of the shift), also leaving the pod at
times for other duties. Id. at ¶¶61-62.
Lunch ended at 1:03 p.m., and at that time, Ramsey-Guy took
the inmate workers who'd helped with lunch service back
to Pod 3D. Id. at ¶¶76-77. This would have
taken him about fifteen minutes. Id. at ¶78.
plaintiff testified at his deposition that Brito and
Ramsey-Guy were working on pod 4D “by themselves”
at the time of the alleged assault. Id. at
¶137. But there was someone else working in Pod 4D
during first shift that day-corrections officer LeCarlin
Collins. Id. at ¶¶44, 65. Collins worked
on the pod from around 6:30 a.m. until 2:24 p.m., with Brito
and Ramsey-Guy. Id. at ¶65. For either Brito or
Ramsey-Guy to have gotten into the plaintiff's cell,
Collins would have had to unlock the cell door from his desk;
he did not do so. Id. at ¶71. Collins was at
his post all day except for bathroom breaks and lunch, and
did not see the defendants assault or harm the plaintiff (on
that or any other day). Id. at ¶73. He did not
see Brito and Ramsey-Guy enter the plaintiff's cell alone
“at any time in 2016.” Id. at ¶75.
fact, during the time of the alleged event, the plaintiff
“was required to be moved by two officers and one
supervisor due to his tendency to fight and resist
officers.” Id. at ¶14. The defendants
describe the plaintiff as “a large, aggressive,
unpredictable and manipulative individual.”
Id. at ¶15. For an officer to go into the
plaintiff's cell with only one other officer was
considered a security risk; three staff members were required
to be present, and often there were more. Id. at
¶¶16-17. Even with three officers, the defendants
indicate that it was hard to move the plaintiff. Id.
plaintiff indicated in the complaint that he reported the
alleged assault to Sobek and Hannah. But neither Sobek nor
Hannah were working at the jail on May 8, 2016. Id.
plaintiff testified at his deposition that he was wearing a
“turtle suit” at the time the alleged assault
took place. Id. at ¶139. Inmates who are on
suicide watch must wear a green, protective gown that helps
protect them from hurting themselves; inmates sometimes call
this a “turtle suit.” Id. at ¶12.
The plaintiff was not on suicide watch in May 2016, so he
would not have been wearing a “turtle suit” on
May 8, 2016. Id. at ¶¶11, 13.
complaint indicated that the plaintiff filed grievances about
the alleged assault “right away.” After the
plaintiff filed the complaint, the jail searched all the
plaintiff's grievances, “but did not locate any
grievance submitted by [the plaintiff] between May 2016 and
August 2016 claiming that he had been sodomized and assaulted
by Officers Brito and Ramsey-Guy.” Id. at
¶133. The plaintiff testified at his deposition that he
kept copies of all the grievances he had written, but the
defendants indicate that he produced only one grievance, from
December 2016-months after the date of the alleged incident.
Id. at ¶134.
defendants deny ever physically or sexually assaulting the
plaintiff. Id. at ¶¶24, 25, 35 and 36.
They deny ever using excessive force or engaging in sexual
misconduct against inmates in general. Id. at
¶¶22, 33. Other than the investigation prison
officials conducted into the plaintiff's allegations in
his complaint in this case, neither Brito nor ...