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Sierra-Lopez v. Brown County

United States District Court, E.D. Wisconsin

July 31, 2019

KEVIN SIERRA-LOPEZ, Plaintiff,
v.
BROWN COUNTY, et al., Defendants.

          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 CASE

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The 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).

         On 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.

         I. FACTS

         The 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 suicidal.” Id.

         At 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.

         At 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.

         Defendant 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.

         The 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.

         At any 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.

         Dequaine 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.

         Kozak 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 happened next:

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[1] 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.

         The 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.

         The 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).

         The 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 ¶50.

         II. MOTIONS FOR SUMMARY JUDGMENT

         The 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.

         A. Defendants Higgins, Kozak, Dequaine and Rhode-Deliberate Indifference

         1. Summary Judgment Standard

         “The 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.

         2. Analysis

         a. Preliminary Issues

         The 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.

         The 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.

         In his 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 ...


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