United States District Court, E.D. Wisconsin
JOSHUA P. BRAITHWAITE, Plaintiff,
LACEE SMELCER, et al., Defendants.
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE
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, 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.)
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 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.
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.
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.
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.)
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.)
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.)
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); 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
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 ...