United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
who was formerly imprisoned in the Wisconsin prison system,
was allowed to proceed on claims against Brett Verbick
(“Verbick”), a prison guard, for using excessive
force in handcuffing her, and against Alan Deschler
(“Deschler”) and Dr. Miso Miloslavic
(“Miloslavic”), a prison supervisor and doctor,
respectively, for failing to adequately treat her injuries
from the handcuffing incident. (Docket #13). Defendants filed
a motion for summary judgment on April 30, 2019. (Docket
#35). Along with their motion they filed a statement of
proposed findings of fact. (Docket #42).
to that statement, Plaintiff had been misbehaving and was
sent to the restrictive housing unit for disciplinary
reasons. Verbick was required by prison policy to handcuff
Plaintiff to transport her to the restrictive housing unit.
In doing so, he moved Plaintiff's hands behind her back.
Plaintiff's complaint alleges that this caused her severe
pain, and that Verbick knew this would happen.
Defendant's evidence is to the contrary; Verbick had no
knowledge of any potential risk of harm in handcuffing
Plaintiff behind her back. Indeed, prison staff handcuffed
Plaintiff carefully, and noted that she resisted the
restraints during transport, which is likely what caused her
her new cell assignment, Plaintiff complained to Deschler of
pain. He summoned a nurse, who gave Plaintiff Tylenol and an
ice pack. The nurse noted exceedingly mild bruising on
Plaintiff's wrists and no breach of the skin. Plaintiff
nevertheless continued to complain and was seen by Miloslavic
a week later. Miloslavic found substantial bruising and
swelling on Plaintiff's left hand. He concluded that
these symptoms were inconsistent with the handcuffing
incident, and that Plaintiff had instead harmed herself to
create her present injuries. Miloslavic nevertheless obtained
x-rays of her hands and wrists, which showed no
contend that these facts do not support liability against any
of them. As to Verbick, the Eighth Amendment's
proscription of cruel and unusual punishment prohibits prison
authorities from “unnecessarily and wantonly inflicting
pain on inmates.” See Rivera v. Drake, 497
Fed.Appx. 635, 637 (7th Cir. 2012). Use of force that is
maliciously motivated, unrelated to institutional security,
and lacks a legitimate penological justification violates the
Eighth Amendment. Id. Verbick's handcuffing was
motivated by the need to securely transport Plaintiff for
disciplinary reasons. It was not done wantonly or
unnecessarily, and care was taken to avoid hurting Plaintiff.
The fact that she may have experienced some pain does not
make Verbick liable for cruel and unusual punishment.
Deschler and Miloslavic, the Eighth Amendment imposes
liability on them only if they were deliberately indifferent
to a serious medical need. Greeno v. Daley, 414 F.3d
645, 652 (7th Cir. 2005). Defendants maintain that Plaintiff
cannot satisfy the “serious medical need”
component of the claim. A sufficiently serious condition is
one that has been diagnosed by a doctor as needing treatment
or is so serious that even a lay person would easily
recognize the need for medical attention. See McDonald v.
Hardy, 821 F.3d 882, 889 (7th Cir. 2016). Plaintiff had
only slight bruising on her wrists which was quickly treated
by the nursing staff with painkillers and an icepack.
Miloslavic's observations confirmed that Plaintiff
suffered no lasting injury from the handcuffing incident.
Indeed, she may have attempted to manufacture a basis for
further treatment with self-inflicted harm.
responded to Defendants' motion on June 7, 2019. Her
responsive materials include a legal brief, (Docket #50), her
own proposed findings of fact, (Docket #51), and various
affidavits and exhibits, (Docket #50-2, #50-3, #52, #53, and
#53-1). Plaintiff also submitted other evidentiary materials
prior to filing her summary judgment response. (Docket #45,
#46, and #48).
in Plaintiff's submissions, however, is a response to
Defendants' statement of facts that complies with the
applicable procedural rules. Federal Rule of Civil Procedure
56 and Civil Local Rule 56 describe in detail the form and
contents of a proper summary judgment submission.
particular, they state that a party opposing a summary
judgment motion must file
(B) a concise response to the moving party's statement of
facts that must contain:
(i) a reproduction of each numbered paragraph in the moving
party's statement of facts followed by a response to each
paragraph, including, in the case of any disagreement,
specific references to the affidavits, declarations, parts of
the record, and other supporting materials relied upon[.]
Civ. L. R. 56(b)(2)(B)(i); see Fed. R. Civ. P.
56(c)(1)(A) (“A party asserting that a fact . . . is
genuinely disputed must support the assertion by: (A) citing
to particular parts of materials in the record[.]”).
than comply with this rule, Plaintiff conclusorily states
that she “opposes” Defendants' proposed
facts, without addressing each of Defendants' facts
individually and citing appropriate evidence in support of
any facts which she might dispute. (Docket #50 at 1); see
also (Docket #55) (Defendants' response to
Plaintiff's statement of facts, which demonstrates the
proper method for responding to proposed findings of fact).
This is unacceptable, in light of the fact that Plaintiff was
twice provided a copy of the procedural rules, once by the
Court, (Docket #17), and once by Defendants' themselves
along with their summary judgment motion, (Docket #35 at
being twice warned of the strictures of summary judgment
procedure, Plaintiff ignored those rules by failing to
properly dispute Defendants' proffered facts with
citations to relevant, admissible evidence. Smith v.
Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Though the
Court is required to liberally construe a pro se
plaintiff's filings, it cannot act as her lawyer, and it
cannot delve through the record to find favorable evidence
for her. Even if such relevant and favorable evidence could
be located in the record, the Court cannot compile that
evidence for her and construct legal or factual arguments on
her behalf. In other words, the Court cannot abandon its role
as a neutral decisionmaker and become an advocate for one
party. Thus, the Court deems Defendants' facts undisputed
for purposes of deciding their motion for ...