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Steinke v. Dittmann

United States District Court, E.D. Wisconsin

March 19, 2019

BETH DITTMANN, et al., Defendants.


          HON. PAMELA PEPPER United States District Judge

         Nicholas Steinke, who is representing himself, filed a lawsuit under 42 U.S.C. §1983, alleging that the defendants violated his civil rights at the Dodge Correctional Institution. Dkt. No. 18. Magistrate Judge David E. Jones screened the amended complaint and allowed the plaintiff to proceed on an Eighth Amendment claim that the defendants showed deliberate indifference to his injuries following his seizure on November 7, 2014. Dkt. No. 20 at 3.

         On August 10, 2018, defendants Beth Dittmann, Dylon Radtke, Marc Clements and Lisa Rost filed a motion for partial summary judgment, dkt. no. 41, along with a motion for leave to file summary judgment materials one day late, dkt. nos. 40, 51. The defendants agree that the claims against the non- moving defendants can proceed to trial. Dkt. No. 53 at 1. This order resolves the pending motions and dismisses Radtke, Clements, Dittmann and Rost.

         I. MOTIONS FOR LEAVE TO FILE (DKT. NOS. 40, 51)

         The dispositive motion deadline was August 9, 2018. Dkt. No. 39. The defendants filed their motion for partial summary judgment on August 10, 2018. Dkt. No. 41. Counsel for the defendants explains that she was in trial earlier in the week, which resulted in her being unable to get the materials on file by August 9, 2018. Dkt. Nos. 40 at ¶5, 51 at ¶5. The plaintiff did not respond to the motion, and the court finds that the plaintiff was not prejudiced by the one-day delay. The court will deny as moot the original motion for leave to file, dkt. no. 40, and will grant the amended motion for leave to file summary judgment materials one day late, dkt. no. 51.


         On December 5, 2017, the court issued the scheduling order. Dkt. No. 25. It attached to the order copes of Federal Rule of Civil Procedure 56 and Civil Local Rule 56. Id. at 7, 11. Rule 56(c)(1) says, among other things, that a party asserting a genuine dispute about a fact has to cite to the particular part of the record that supports that dispute. Rule 56(e)(2) warns that if a party fails to properly support an assertion of fact, or fails to address the other party's assertion of fact, the court can consider that fact undisputed for the purposes of summary judgment. Civil Local Rule 56(b)(2)(B) requires a party opposing a motion for summary judgment to file “a concise response to the moving party's statement of facts” that must reproduce each paragraph of the moving party's proposed findings of fact and respond to each of them.

         When the defendants filed their motion for summary judgment, they also attached a copy of Fed.R.Civ.P. 56 and a copy of Civil Local Rule 56. Dkt. No. 41 at 3, 8. This was the second time the plaintiff received copies of these rules. Along with their motion for summary judgment, the defendants filed sixty-one proposed findings of fact. Dkt. No. 43.

         The plaintiff's response to the summary judgment is a little over one single-spaced page. Dkt. No. 52. In the first paragraph, he asks the court to “review the evidence in this case as filed with this response, ” asserting that the evidence is “clear cut and shows that they clearly violated my constitutional rights.” Id. at 1. He asks the court to “please save taxpayers time and money as well as the courts time.” Id. The plaintiff goes on to say that because only four defendants had filed for summary judgment, he “take[s] that as an admission of guilt on the other seven.” Id. He disputes certain facts in the rest of the brief and refers to specific exhibits. Id. He ends by saying that “if need be and allowed I would like to submit more evidence later after this is looked over as I do have other viable evidence which I submitted earlier in the 400 plus pages of evidence I just trimmed it down as not to take up to much of the courts time please let me know if this can be done and if this was filled in a manner that pleases the courts thank you.” Id. at 2. The plaintiff attached to this brief fifty-six pages of exhibits. Dkt. No. 52-1.

         In their reply brief, the defendants ask the court to grant their motion for summary judgment because the plaintiff's response did not comply with Fed.R.Civ.P. 56 or Local Rule 56. Dkt. No. 53. They point out that even though the plaintiff has received the rules twice, he ignored them, filing a short brief and fifty-six pages of documents “that he expects the Court to analyze.” Id. at 3. The defendants argue that while courts must liberally construe pleadings filed by plaintiffs representing themselves, they are not required to dig through the record to find the evidence that supports the plaintiff's position. Id. at 3-4.

         A week later, the court received a letter from the plaintiff, addressed “To Whom It May Concern.”[1] Dkt. No. 54. The letter asks “the courts” to allow him to file an amended brief, to correct the problem the defendants identified in their reply brief. Id. The plaintiff asserts that he was “unaware” that he had to respond to each of the defendants' proposed facts. He says that he did respond to the defendants' claims in his brief. He denies that he filed a stack of papers that he expected the court to dig through, asserting that he clearly labeled the documents and that he filed far fewer than the 400 pages of evidence that he has. Id. He asked that the court either “allow [his] brief and evidence to proceed as is, or if this is not acceptable, for the courts to allow [him] to please file an amended brief in a way that pleases the courts.” Id.

         Partly because the court did not realize that the plaintiff was asking the court to do something, and partly because of the press of its heavy case load, the court did not respond to that request. So, a few months later, the plaintiff filed a document entitled “Motion in Support of Motion to Amend Brief.” Dkt. No. 61. He says that if the court does not allow him to amend the brief, a miscarriage of justice will occur because he will not have had the chance to dispute issues and present evidence vital to his case. Id. at 1. He says he has evidence showing that he asked for evidence from the defendants, argues that he has evidence showing that “they” did not conduct a proper investigation, and contradicting some of the assertions in the defendants' brief and proposed findings of fact. Id. at 1. He also says that the defendants are “defrauding” the court by stating things as fact that the plaintiff argues are not facts. Id. at 2.

         The court will deny the plaintiff's motions to amend his brief. The defendants are correct: the court sent the plaintiff copies of the rules with its scheduling order, and the defendants sent him copies with their motion for summary judgment. The rules clearly explained to the plaintiff what he needed to do; they are the same rules that the court sends to every prisoner plaintiff. Rather than following those rules, the plaintiff did exactly what the rules are designed to avoid-he filed fifty-six pages of documents and asked the court to go through them and figure out which one of them supported his version of events, and how. That is not the court's job. The reason that the rules require the plaintiff to respond specifically to each of the defendants' sixty-one proposed findings of fact, and to identify which of his fifty-six pages of attachments supports each response, is because the court does not have the time or the ability to do that itself (and might get it wrong if it did).

         The plaintiff cannot ignore the rules, and then, when the defendants point out that he ignored the rules, ask for a “do-over.” In a sense, the plaintiff is asking to file a “sur-reply” to the defendants' reply brief. Neither the federal rules nor the court's local rules allow for sur-replies. The moving party files a brief, the opposing party may respond, and the moving party gets the final word through a reply brief.

         The court will deny the plaintiff's motions to amend his brief. Dkt. Nos. 54, 61.


         A. Procedural History

         The plaintiff filed his complaint on May 5, 2017. Dkt. No. 1. He identified by name only one defendant-Beth Dittman, the Health Services Unit manager at Dodge. Id. at 1. The plaintiff's statement of his claim took up a single paragraph. Id. at 2-3. The plaintiff did not mention Dittman in the statement of claim; he mentioned other names, but did not include those individuals as defendants.

         The plaintiff filed an amended complaint on June 23, 2017. Dkt. No. 15. He did not use the court's complaint form, so there was no caption and there were no defendants listed at the top of the document. Id. at 1. In the amended complaint, the plaintiff mentioned by name a lieutenant, three sergeants, a doctor and a nurse. Id. at 1.

         On August 11, 2017, the plaintiff filed a second amended complaint. Dkt. No. 18. Again, he did not use the court's complaint form, but he did list twelve defendants. Id. at 1. He named eight defendants-HSU manager Dittman, Sgt. Krueger, corrections officer Schmitt, Sgt. Hintz, corrections officer Lewinski, Dr. Hoftizer, nurse Burling and Lt. Arndt. Id. He listed, but did not name, the warden and security director at Dodge, a John Doe corrections officer and a John Doe HSU staff member. Id. The court screened this second amended complaint, and allowed the plaintiff to proceed on an Eighth Amendment deliberate indifference claim against all of the defendants. Dkt. No. 20.

         On March 28, 2018, the plaintiff filed a list of names “to provide as the john doe, ” and asked the court to “amend with provided names.” Dkt. No. 30. He identified the warden of Dodge as Marc Clements, and the security director as Dylon Radtke. Id. He clarified the names of some defendants he'd listed by named. Id. Finally, he stated, “on my records I requested and was provided it says RN Schedule can not be located and then listed a name of LP one is a Lisa Rost and multiple other medical staff records are being provided an refer you to exhibit (B).” Id. In an order dated July 9, 2018, the court directed the clerk's office to substitute the name of Lisa Rost for the John Doe HSU staff member the plaintiff had listed in the second amended complaint. Dkt. No. 39 at 3. The court ordered Rost to file a responsive pleading within sixty days. Id. at 4. Rost answered on August 10, 2018. Dkt. No. 50.

         On that same date, four of the defendants-Clements, Dittman, Radtke and Rost-filed this motion for partial summary judgment. Dkt. No. 41. The plaintiff responded by letter on August 22, 2018, but the clerk's office docketed the letter as his opposition brief. Dkt. No. 52. The defendants filed their reply brief on September 6, 2018. Dkt. No. 53. Since then, the court has received seven letters or requests from the plaintiff (dkt. nos. 54, 56, 57, 58, 59, 60 and 61), as well as a motion to withhold summary judgment (dkt. no. 62).

         B. Relevant Facts[2]

         The plaintiff is a former Dodge inmate. Dkt. No. 43 at ¶1. The defendants are, or were, Department of Corrections employees who worked at Dodge: Marc Clements was the warden; Dylon Radtke was the security director; Scott Hoftiezer is a doctor; Lisa Rost and Thomas Burling are nurses; Beth Dittmann was the Health Service Unit (“HSU”) manager; and Adam Krueger, Christopher Schmitt, Jacob Hintz, Davis Arndt and Jennifer Knox (formerly known as Jennifer Glowinski) are correctional officers. Id. at ¶¶2-5, 12, 15, 19, 32. Only four of these defendants-Clements, Radtke, Rost and Dittman-seek summary judgment.

         1. The Events of November 7, 2014

         The amended complaint states that on November 7, 2014, the plaintiff had a seizure while in the segregation unit. Dkt. No. 18 at 2. At his deposition, the plaintiff testified that he did not remember exactly what happened, but that he believed that he fell and hit his head. Dkt. No. 43 at ¶8. The plaintiff states that when he “came to [and] got [his] bearings, ” he noticed blood all over himself and the floor. Dkt. No. 18 at 2; see also Dkt. No. 43 at ¶¶9-10. He hit the “emergency call button” for help, but no one responded. Dkt. No. 18 at 2.

         About an hour later, Krueger conducted “rounds.” Id.; see also Dkt. No. 43 at ¶12. The defendants assert that correctional officers typically conduct rounds every fifteen minutes, but at his deposition, the plaintiff testified that they were not conducting regular rounds on November 7, 2014. Dkt. No. 43 at ¶13. The complaint states that no one responded to the call button for over an hour, while his head and mouth were bleeding. Dkt. No. 18 at 2. The plaintiff says that when Krueger finally arrived, he told Krueger what had happened, and Krueger said he would call HSU. Id. At his deposition, the plaintiff “admit[ted]” that “a call from the restrictive housing unit to the HSU was logged on November 7, 2014.” Dkt. No. 43 at ¶14.

         “Several hours later, ” Schmitt made rounds. Dkt. No. 18 at 2. The plaintiff told Schmitt what happened. Id. Schmitt stated that he was aware of the plaintiff's seizure and that “HSU would be coming.” Id. HSU never came that day. Id.

         The next day, the plaintiff told Hintz and Lewinski about his seizure and injuries. Id. The plaintiff states that “they also checked the log book [and] confirmed that HSU was called [and] it was logged.” Id. Hintz and Lewinski “also called HSU.” Id. The plaintiff still did not see anyone from HSU that day. Id.

         The plaintiff says that he spoke with security director Radtke about his seizure and injuries during rounds. Id.; see also Dkt. No. 43 at ¶27. It's unclear from the amended complaint when the plaintiff interacted with Radtke- whether it was the same day as his interactions with Hintz and Lewinski or a different day. See Dkt. No. 18 at 2. As security director, Radtke made rounds on the housing units and interacted with inmates. Dkt. No. 43 at ¶¶24-26. Radtke does not recall the conversation with the plaintiff, but states that he would have contacted HSU if he had seen blood or otherwise noticed a medical emergency, and he would have told the plaintiff to “report any non-urgent medical need to security staff or complete a health services request.” Id. at ¶¶28-29. Radtke appears to assert that even if he did interact with the plaintiff about the seizure incident, it would have been only once. Id. at ¶30. He also asserts that he has no record of written communications from the plaintiff. Id. at ¶31.

         The plaintiff's amended complaint alleged that he also spoke to Clements during rounds. Dkt. No. 18 at 2. At his deposition, however, the plaintiff stated that he did not have any in-person contact with Clements. Dkt. No. 43 at ...

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