United States District Court, E.D. Wisconsin
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 36), GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 43), DENYING PLAINTIFF'S
MOTION FOR DEFAULT JUDGMENT (DKT. NO. 41), DENYING MOTION TO
INTERVENE (DKT. NO. 77), DENYING PLAINTIFF'S MOTION FOR
ALTERNATIVE DISPUTE RESOLUTION (DKT. NO. 80) AND DISMISSING
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, a state prisoner, deliberately cut his right arm
with a pencil while incarcerated at the Brown County Jail
(“the jail”). In a screening order, the court
allowed him to proceed on claims under 42 U.S.C. §1983
alleging that staff at the jail failed to protect him from
harming himself, failed to treat the wound on his arm
properly and failed to train jail staff. He is also
proceeding with a claim that Brown County violated his First
Amendment right to practice his religion. Dkt. No. 14.
Although it has little to do with the other claims in this
lawsuit, the plaintiff properly joined the last claim due to
the overlap of Brown County as a defendant in the
failure-to-train claim. Fed.R.Civ.P. 18(a); George v.
Smith, 507 F.3d 605, 607 (7th Cir. 2007).
January 17, 2019, the plaintiff filed a motion for summary
judgment and supporting documents. Dkt. Nos. 36-40. He also
filed a motion seeking default judgment against one
defendant, Nurse Pagels. Dkt. Nos. 41-42. The following
month, the remaining defendants (apart from Nurse Pagels)
filed a motion for summary judgment, supported by numerous
declarations and exhibits. Dkt. Nos. 43-62. The plaintiff
then filed a combined response/reply brief and additional
supporting materials. Dkt. Nos. 63-68. (This combined brief
is a reproduction of his initial brief, with six pages of new
argument added at the end.) The inmate assisting the
plaintiff in filing his briefs also filed a motion to
intervene. Dkt. No. 77. Finally, the plaintiff filed a motion
seeking alternative dispute resolution. Dkt. No. 80. The
court will deny the plaintiff's motions, grant the
defendants' motion and dismiss the case.
plaintiff's deliberate indifference claim arises out of
the events of July and August 2016, during which the
plaintiff, a Wisconsin state inmate, was temporarily
incarcerated at the jail for the purpose of attending court.
Dkt. No. 14 at 10 n.1. When they booked the plaintiff on July
18, 2016, jail staff assessed the plaintiff's risk of
suicide. Dkt. No. 45 at ¶42. The jail uses a
standardized form called a Suicide Screening Questionnaire,
which indicates that the plaintiff denied ever attempting
suicide and denied that he had any thoughts of doing so
currently. Dkt. No. 46-4. The officer who completed the form
indicated that the plaintiff “does not appear
booking, jail staff assigned the plaintiff to a unit known as
the Fox Pod, which is designed for high-risk inmates and
those placed in segregation for punitive reasons. Dkt. No. 45
at ¶30. The jail placed the plaintiff in that unit due
to major rules violations he had committed during previous
incarcerations at the jail. Id. at ¶44. In
fact, the plaintiff was no stranger to the jail or its
jailors, having been incarcerated at the jail approximately
twenty-two times in the last decade. Id. at
¶38. Among other restrictions, the Fox Pod strictly
limits inmate activities to one hour per day of recreation
time, and its rules allow inmates to possess only two books
at a time-one religious and one non-religious. Id.
at ¶32. An inmate may take one shower per day, which
must occur during the inmate's recreation time.
Id. at ¶¶32-34.
about 10:00 a.m. on July 29th, guards escorted the plaintiff
to the showers. Id. at ¶46. The plaintiff
stated that the shower was too cold, so he tried a second
shower, which proved hot enough initially but then turned
cold. Id. at ¶48. Maintenance staff agreed that
the first shower wasn't “as warm as it could be,
” but they couldn't fix it; the defendants indicate
that the second shower was 104 degrees. Id. at
¶49; Dkt. No. 46-6 at 8. Maintenance had tested the
showers earlier in the week due to other inmate complaints.
Id. Contemporaneous jail notes indicate that the
plaintiff believed taking a cold shower would cause him to
“get sick and die, ” so he refused a shower that
morning but also explained that he would like to take a
shower once the problems were fixed. Id.
Officer Kozak spoke with the plaintiff at approximately 4:00
that same day. Dkt. No. 45 at ¶52. During that
discussion, Kozak informed the plaintiff that defendant
Corporal Dequaine had given instructions that the plaintiff
would not have another opportunity to shower that day.
Id. The plaintiff responded by saying he was
suicidal. Id. at ¶53. The defendants assert
that Kozak and the plaintiff continued to talk, that the
plaintiff eventually calmed down, and that Kozak questioned
the plaintiff about whether he was feeling suicidal or
thinking about hurting himself. Id. at
¶¶54-59. While the plaintiff did not respond to
Kozak's inquiries, the defendants indicate that the
plaintiff did not appear to Kozak to be angry or sad and
wasn't displaying signs one might associate with an
inmate who was planning to harm himself. Id.
plaintiff asserts that Duquaine instructed Kozak to tell the
plaintiff, “No matter what you do, you're not
getting a second shower.” Dkt. No. 38 at ¶36. The
plaintiff also says that at some point, he spoke to Kozak on
the in-cell intercom and told Kozak that he was suicidal and
was going to cut himself. Id. at ¶30. The
defendants dispute that the plaintiff stated an intent to cut
himself. Dkt. No. 53 at ¶30. The plaintiff alleges that
at some point after seeing Kozak he covered his cell window
with paper, dkt. no. 38 at ¶29, but the defendants
dispute this, too, dkt. no. 53 at ¶29.
rate, about ten minutes after talking with the plaintiff,
Kozak called Dequaine to inform him about the plaintiff's
statement regarding being suicidal. Dkt. No. 45 at ¶61.
Duquaine told Kozak to monitor the plaintiff and to let
Duquaine know if the plaintiff's behavior changed.
Id. at ¶62. Neither Kozak nor Dequaine informed
anyone in the jail's psychological services unit that the
plaintiff had indicated a suicidal intent. Dkt. No. 38 at
¶35. Dequaine states that in his experience, the
plaintiff had a long history of claiming to be suicidal as a
means of manipulating jail staff, dkt. no. 55 at ¶8;
Kozak, defendant Lieutenant Rhode and Captain Michel (not a
defendant) had a similar experience, dkt no. 45 at ¶40.
informed Rhode that although the plaintiff was angry about
being denied the opportunity to shower and had threatened
suicide, Fox Pod officers could see him in his cell,
apparently doing legal work. Dkt. No. 45 at ¶63. Kozak
served the plaintiff his dinner around 4:15 and found the
plaintiff “conversational, ” id. at
¶64; when Kozak picked up the tray at 4:30, the
plaintiff had eaten, and spoke “Normally” to
Kozak, id. at ¶65. At 4:35, Kozak saw the
plaintiff interacting with the nurse who was giving the
plaintiff his medication; again, Kozak perceived that the
plaintiff was acting normally. Id. at ¶66.
Around 5:05, Duquaine came to the pod and asked about the
plaintiff, and Kozak reported that the plaintiff was behaving
normally, continuing to work quietly on legal work.
Id. at ¶67.
left the Fox Pod to move another inmate; when he returned
around 5:30 he started on his rounds to check on the inmates.
Id. at ¶69. The inmate in a cell neighboring
the plaintiff's pressed his emergency intercom button and
stated that the plaintiff was suicidal. Id. at
¶70. Kozak heard the intercom, went to the dayroom and
saw the inmate who'd pushed the intercom gesturing toward
the plaintiff's cell. Id. at ¶71. In the
incident report he wrote on July 29, Kozak explained what
I looked inside cell F103, where Sierra-Lopez is housed, and
saw him cutting himself on the right arm. I ordered
Sierra-Lopez to stop what he was doing and radioed for
back[up] to come to Fox Pod for an inmate cutting himself
with what appeared to be a pencil. I continued to order
Sierra-Lopez to stop what he was doing.
Dkt. No. 54-1 at 2. Several officers responded to the scene,
one of whom observed the plaintiff ingest several pills,
which turned out to be ibuprofen. Dkt. No. 45 at
¶¶75-76. The plaintiff asserts that the pills were
“psychotropic pills, ” dkt. no. 38 at ¶41,
while the defendants indicate that the only medication the
plaintiff was receiving was ibuprofen and no other inmates in the
dayroom had accepted medication, dkt. no. 45 at ¶80. The
officers were able to convince the plaintiff to come out of
his cell, and placed him in a restraint chair. Id.
at ¶77. They moved him into the dayroom, where defendant
Nurse Pagels inspected and cleaned the cut. Id. at
¶78. Her patient notes describe the injury:
A 2 inch wound to patient's right forearm was seen.
Moderate amount of bloody drainage covered the area in
addition to blood that was seen on patient's clothing.
Area was cleansed with NaCI 0.9% and then was covered with
4x4 gauze, ABD pad, and Krilex. When asked why patient hurt
himself, patient stated, “Because I don't get to
take a shower everyday and I wanted the corporal to know that
he can't treat me like this as well as HSU not giving me
my records about my UA [urinalysis] because per policy I am
allowed to get my records for free unless I damage the
original copy”. Then patient became verbally aggressive
towards LPN when she stated that she would come back to check
on him and recheck his dressing.
Dkt. No. 46-8 at 32. Pagels classified the wound as a
“superficial cut or scrape to his arm where an existing
scar was already.” Dkt. No. 45 at ¶86. The
plaintiff says that when Pagels asked him why he'd cut
himself, he said, “Because I can not take being
confined to a cell 24 hours per day, seven days a week 
without day room, visits, recreation, phone calls, religious
material . . . or services provided  [a]nd without having
any meaningful treatment for my psychological (mental)
treatment.” Dkt. No. 38 at ¶43.
plaintiff says that when Pagels told him she'd clean and
dress the wound and come back later, he said, “You
can't punish me for being suicidal. I need
stitches!” Id. at ¶46. He indicates that
the gauze Pagels put on his wound “dried and got stuck
in the blood.” Id. at ¶47. The plaintiff
alleges that Pagels ripped the gauze off, causing the wound
to bleed again, then sprayed it and applied some cream.
Id. He indicates that he reiterated that he needed
stitches, and that what Pagels was doing was
“wrong” and was causing him more pain.
Id. The plaintiff says he told Pagels that he
didn't want a bandage or gauze, that she responded by
grabbing his arm, and he told her not to touch him and to
leave him alone. Id. at ¶48. He says that a
Nurse Blozinski (not a defendant) cleaned and dressed the
wound. Id. Blozinski made notes on July 30, 2016,
stating that there was “no redness to area; dry blood
scabbed over area of wound. . . . Patient tolerated cleaning
well and no other concerns at this time.” Dkt. No. 46-8
at 34. The plaintiff says that Blozinski saw him on July 31,
2016, and he told her how Pagels had put gauze on the wound.
Dkt. No. 38 at ¶48. He claims that Blozinski told him
that Pagels should not have put gauze on an open wound
because the blood would dry and cause the gauze to get stuck.
Id. According to the defendants, the wound was
“monitored, cleaned, and treated with antibiotic
ointment on July 30, 2016; July 31, 2016; and August 4,
2016.” Dkt. No. 45 at ¶89. On July 31, 2016, he
was given ibuprofen for the pain, and on August 4, 2016, he
got a packet of antibiotic ointment that he could apply
himself. Id. Blozinski saw the plaintiff a week
later, on August 6, and her notes make no mention of the cut.
Dkt. No. 46-8 at 59. There is no further discussion of the
cut in subsequent medical treatment notes.
plaintiff asserts that because of the wound and Pagels's
alleged improper treatment, he had pain and discomfort
“well into 2018.” Dkt. No. 38 at ¶51. He
says that on March 30, 2018-almost two years after the
incident- he was taken to U.W. Health for “follow up 1
week status post open septorhinoplasty with placement of
spreader grafts, columellar struts as well as excisions and
primary closure of a right forearm scar.” Id.
Hospital records show that in March 2018, the plaintiff had
nasal surgery to repair his deviated septum, and that he also
had “a painful scar on his right forearm, ” which
the doctors planned to “excise.” Dkt. No. 40-1 at
20-27 (quotes from p. 27).
plaintiff's First Amendment claim stems from his
allegations that the Chaplain told him that she had sent him
some religious books and songs that he'd never received,
and that he'd come to learn that other inmates at the
jail also had not received religious materials. Dkt. No. 14
at 8. On July 29, 2016- the same day as the self-harming
incident-the plaintiff filed a grievance indicating that he
had not received the religious materials from the Chaplain.
Dkt. No. 68-1 at 5. The defendants indicate that the
individual who investigated the grievance found no evidence
to support it, and that the grievance was closed August 3,
2016. Dkt. No. 45 at ¶¶92-93. Chaplain Karen Konrad
indicates that she has no reason to believe that any jail
staff ever have withheld materials from inmates who are
entitled to them, and it is her experience that the jail
administration has been supportive of inmate religious
practices. Dkt. No. 56 at ¶¶6-7. The defendants
explain why Fox Pod inmates are allowed only one religious
book at a time-to keep them from tearing out pages and
covering their cell windows or using the pages to clog drains
to flood their cells. Dkt. No. 45 at ¶¶101-103. The
plaintiff alleges only that “there had been a systemic
practice of denying prisoners religious materials prior to
the plaintiff coming to [the jail].” Dkt. No. 38 at
MOTIONS FOR SUMMARY JUDGMENT
plaintiff has asked for summary judgment, dkt. no. 36, as
have defendants Brown County, Dequaine, Higgins, Kozak and
Rhode, dkt. no. 43. The court will deny the plaintiff's
motion and grant the defendants' motion.
Defendants Higgins, Kozak, Dequaine and
Summary Judgment Standard
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). “Material
facts” are those under the applicable substantive law
that “might affect the outcome of the suit.”
Anderson, 477 U.S. at 248. A dispute over a
“material fact” is “genuine” if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
plaintiff's response to the defendants' proposed
findings of fact objects to many the proposed findings on the
ground that they are not supported by “admissible
evidence.” Dkt. No. 64 at ¶¶59, 63-67, 85-86.
For example, the plaintiff disputes that Kozak served him
dinner and later collected the dinner tray, finding the
plaintiff behaving normally. Id. at ¶¶64,
65. He disputes that Kozak checked on him in half-hour
increments. Id. at ¶67. The plaintiff's
response/reply brief asserts that the incident reports
defendants the defendants submitted are inadmissible. Dkt.
No. 63 at 19-23. But the defendants' proposed findings,
and the underlying incident reports, are based on the
defendants' own eyewitness perceptions of events; the
defendants personally witnessed or participated in the events
they recounted in the findings and incident reports. If they
came into court, they would testify that they saw and heard
the things they described in the findings and incident
reports. First-hand, eyewitness testimony is direct evidence
that something happened, and the reports are direct evidence
that is relevant to the plaintiff's claims. The plaintiff
states some of the allegedly inadmissible facts in his own
amended complaint, see, e.g., Dkt. No. 13 at
¶¶25, 26, so it is unclear why he believes they are
inadmissible if they come from the defendants.
plaintiff objects to Pagel's description of his cut as a
“superficial cut or scrape, ” arguing that there
is “no reliable or admissible evidence to
support” the defendants' proposed finding of fact
on that issue. Dkt. No. 64 at ¶86. In support of their
reply brief, the defendants included a photo of the cut; the
court would not describe the cut in that photo as
“superficial.” Dkt. 70-2 at 4. But the defendants
do not dispute the seriousness of the plaintiff's injury,
so regardless of how Pagels might have characterized the cut,
the court assumes that it was serious.
reply brief, the plaintiff alleges that Kozak and Dequaine
submitted “falsified self-serving, after the fact
‘incident reports.'” Dkt. No. 63 at 19. He
implies that because a document he received later in the case
is not identical to an incident report he received in
discovery, it is fabricated. Inconsistency ...