United States District Court, E.D. Wisconsin
NICHOLAS J. STEINKE, Plaintiff,
BETH DITTMANN, et al., Defendants.
DENYING AS MOOT DEFENDANTS' ORIGINAL MOTION FOR LEAVE TO
FILE (DKT. NO. 40), GRANTING DEFENDANTS' AMENDED MOTION
FOR LEAVE TO FILE (DKT. NO. 51), GRANTING DEFENDANTS'
MOTION FOR PARTIAL SUMMARY JUDGMENT (DKT. NO. 41), DENYING
PLAINTIFF'S MOTIONS TO FILE AMENDED BRIEF (DKT. NOS. 54,
61), DENYING PLAINTIFF'S LETTER MOTIONS TO AMEND
COMPLAINT (DKT. NOS. 57, 60) AND DENYING PLAINITFF'S
MOTION TO WITHHOLD SUMMARY JUDGMENT (DKT. NO. 62)
PAMELA PEPPER United States District Judge
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.
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.
MOTIONS FOR LEAVE TO FILE (DKT. NOS. 40, 51)
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.
LETTER MOTIONS TO FILE AN AMENDED BRIEF (DKT. NOS. 54,
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.
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.
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.
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.
later, the court received a letter from the plaintiff,
addressed “To Whom It May Concern.” 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.
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.
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
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.
court will deny the plaintiff's motions to amend his
brief. Dkt. Nos. 54, 61.
MOTION FOR PARTIAL SUMMARY JUDGMENT (DKT. NO. 41)
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.
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.
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.
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.
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).
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
The Events of November 7, 2014
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.
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.
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.
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.
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.
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