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Braithwaite v. Smelcer

United States District Court, E.D. Wisconsin

August 19, 2019

LACEE SMELCER, et al., Defendants.



         Plaintiff Joshua Braithwaite filed a lawsuit under 42 U.S.C. § 1983, alleging that the defendants violated his civil rights. (ECF No. 1.) The court screened the complaint and allowed Braithwaite to proceed with a claim that the defendants were deliberately indifferent to his risk of suicide. (ECF No. 10.)

         On June 10, 2019, the defendants filed a motion for summary judgment. (ECF No. 19.) About a week later, the court received Braithwaite's motion for summary judgment. (ECF No. 24.) On July 17, 2019, the defendants argued that the court should deny Braithwaite's motion because he filed it late. (ECF No. 28.) Braithwaite is at an e-filing institution, which means his institution library electronically files his documents, thus eliminating the threat of delay which can occur when inmates mail their documents to the court. As the defendants note, none of Braithwaite's filings are dated, so it is not clear when he gave them to the library to e-file. In response to the defendants' assertion that his motion was untimely, Braithwaite states that the “WSPF library is so back[ed] up that it took them a while to e-file it.” (ECF No. 34.)

         Braithwaite provides no proof of when he sent his documents to the library for filing, nor does he offer an explanation of why his filings were late. Further, Braithwaite styles his motion both as a motion and as a brief “in opposition to the defendant[s'] motion for summary judgment.” (ECF No. 24.) The defendants filed their motion on the dispositive motion deadline, so it necessarily follows that Braithwaite filed his motion and response materials after the deadline. Nevertheless, the court will not deny his motion on the basis that he filed it one week late. Braithwaite has little experience with litigation, and it does not appear that the short delay prejudiced the defendants.

         The defendants also moved for leave to file an untimely reply brief in support of their motion. (ECF No. 30.) They explain that, when Braithwaite filed his motion, they did not realize that he intended it to also serve as his response to their motion. Accordingly, they failed to timely file their reply brief. They assert that they discovered their oversight in the course of preparing their response to Braithwaite's motion. The court will grant their motion to file a reply brief in support of their motion.

         1. RELEVANT FACTS

         The relevant facts are taken from Braithwaite's proposed findings of fact (ECF No. 26), his affidavit in support of his motion for summary judgment (ECF No. 27), and Defendants' Proposed Findings of Fact (ECF No. 21). The facts are undisputed unless noted otherwise.

         On April 18, 2016, Braithwaite was placed in observation status for a couple of days because he had tried to commit suicide. (ECF No. 26 at 1.) After he was released from observation, a magnet that said “No Sharps” was placed on his cell door. (Id.) Braithwaite states that days went by but he could not quiet the voices in his head. (Id.) Braithwaite asserts that he started asking the correctional officers to put him back on observation because he had thoughts of killing himself. (Id.) According to Braithwaite, he told defendant Grant Roper that he wanted to kill himself and he needed something sharp. (Id. at 1-2) Braithwaite asserts that Roper gave him a pen and told him not to tell anyone. (Id. at 2) Braithwaite then sharpened the pen and began to cut his arm and wrist. (Id.)

         According to the defendants, nursing staff examined Braithwaite on April 24, 2016, after he cut himself. (ECF No. 21 at ¶ 1.) Braithwaite did not need stitches or offsite medical treatment. (Id.) He was placed on observation status and closely monitored by security staff and psychological services staff. (Id. at ¶ 7.)

         On July 11, 2016, Braithwaite was still on a “no-sharps” restriction. (ECF No. 29 at 2.) He asserts that he told defendant Lacee Smelcer that he wanted to kill himself. (Id.) According to Braithwaite, she told him to go ahead and do it because she's tired of him crying about nothing. (Id.) Braithwaite states that she gave him a spoon and a toothbrush, which he sharpened and used to cut his arm. (Id.) The defendants state that Braithwaite was seen by a nurse and that he needed neither stitches nor offsite medical attention. (ECF No. 21 at ¶ 3.) The nurse who treated Braithwaite reported that his laceration was about 2.5 centimeters long. (Id. at ¶ 4.)

         The defendants explain that, after Smelcer gave Braithwaite a spoon, his cell was searched. (ECF No. 21 at ¶ 6.) Also, additional “sharps restriction” magnets were placed on his cell door, along with a “pen restriction” magnet and a “spoon restriction” magnet. (Id. at ¶ 8.)

         2. 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); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those that “might affect the outcome of the suit.” See 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 non-moving party.” Id.

         Summary Judgment is “not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (citations omitted). The court is not required to search through the record to make an argument on ...

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