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Balsewicz v. Pawlyk

United States District Court, E.D. Wisconsin

September 19, 2019

JOHN H. BALSEWICZ, also known as MELISSA BALSEWICZ, Plaintiff,
v.
JONATHAN S. PAWLYK, CO ROBERT J. RYMARKIEWICZ, JEREMY L. WESTRA, and ANTHONY L. MELI, Defendants.

          ORDER

          J. P. STADTMUELLER U.S. DISTRICT JUDGE.

         1. INTRODUCTION

         Plaintiff John H. Balsewicz, a transgender prisoner also known as Melissa Balsewicz (“Balsewicz”), is currently incarcerated at Waupun Correctional Institution (“Waupun”). She alleges that several correctional staff members at Waupun were deliberately indifferent to a serious risk to her safety, in violation of her rights under the Eighth Amendment.

         The parties have filed cross-motions for summary judgment. (Plaintiff’s Motion, Docket #28; Defendants’ Motion, Docket #35). Those motions are now fully briefed and ripe for adjudication. For the reasons explained below, Defendants’ motion must be granted. Balsewicz’s motion will be denied as moot, and this case will be dismissed.

         2. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 56 provides that 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 Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016).

         3. RELEVANT FACTS

         The following facts are material to the disposition of the defendants’ motion for summary judgment. They are drawn from the parties’ factual briefing, (Docket #29–#30, #37–#42, #44, #46), unless otherwise noted. Consistent with the standard of review the Court applies to defendants’ motion, these facts are presented in a light most favorable to Balsewicz.

         At all times relevant to this case, Balsewicz was incarcerated at Waupun. She is transgender and has been diagnosed with gender dysphoria (“GD”). Inmates at Waupun with GD are housed in the north cell hall (“NCH”). Robert Rymarkiewicz “Rymarkiewicz” is the captain in charge of the NCH. Jonathan Pawlyk (“Pawlyk”) is a sergeant who works in the NCH. Anthony Meli (“Meli”) is Waupun’s security director. Jeremy Westra (“Westra”) is the captain in charge of “special placement needs” (“SPN”) at Waupun, which the Court gathers is an administrative designation used for inmates who require physical separation from other inmates or staff.

         Sometime in early 2017, an inmate at Waupun named Denzel Rivers (“Rivers”) started showering with or near the GD inmates.[1] According to Balsewicz, Rivers had admitted to the GD inmates that he was not actually transgender but was claiming to be in order to receive a single cell. During shower time on May 5, 2017, Rivers told Balsewicz to stay out of the shower stall between two other GD inmates, Homer Washington (“Washington”) and Cashay Henderson (“Henderson”), and when Balsewicz asked why, Rivers replied, “Don’t worry about it, punk ass hunky! I’ll beat the fuck out of you!” (Docket #41 at 5).

         Balsewicz finished her shower and immediately told Pawlyk about the incident in the bath house. According to Balsewicz, she told Pawlyk that Rivers should not be allowed to shower with the GD inmates because he was not transgender, and she also told Pawlyk about the threat. The defendants dispute that Balsewicz told Pawlyk that Rivers threatened her, but for the purpose of resolving the defendants’ summary judgment motion, the Court must credit Balsewicz’s story.

         Two days later, on May 7, Rivers punched Balsewicz in the head as the two left the chow hall. Balsewicz saw a nurse after the assault, but she did not require further medical treatment. Rivers was given a conduct report for assaulting Balsewicz and was placed in segregation. During a disciplinary hearing related to that charge, at which Westra was the presiding hearing officer, Rivers and two inmate witnesses, Washington and Henderson, said that Balsewicz provoked Rivers’ assault by groping Rivers’ butt. Balsewicz denies provoking Rivers and believes the groping story was concocted to help get Rivers out of segregation. Westra and Rymarkiewicz interviewed Balsewicz about the Rivers altercation. Westra ultimately concluded that an SPN between Balsewicz and Rivers was not necessary.

         Following the May 7 altercation, Balsewicz submitted several requests asking to be separated from Rivers. On several occasions, including in connection with her twice-yearly review, Balsewicz also asked to be transferred to another institution, specifically Columbia Correctional Institution, because she did not feel safe at Waupun. See (Docket #30-3 at 15) (stating that “I am not safe at [Waupun] as a transgender ‘gender dysphoric’ inmate from either inmates who harm me or staff when they ignore my complaints of being threatened.”). In a written request dated May 10, 2017, for example, Balsewicz asked Westra to separate her from Rivers by transferring her to a different prison. (Docket #30-5 at 15).[22] In that request, Balsewicz also stated that due to the May 7 altercation and subsequent conduct hearing, Rivers, Henderson, and Homer were all threats to her safety. Id. In another request dated May 28, 2017, Balsewicz requested a transfer because she had been threatened and assaulted by two inmates, Rivers and another named Walton or Waltow, since being placed at Waupun. (Docket #30-4 at 2). Balsewicz also complained about other issues at Waupun causing her to desire a transfer, including that she believed staff members were “playing with” her medications. See (Docket #38 at 9, 23–24 at #30-4 at 3). In June 2017, Balsewicz’s mother called Waupun to express concern about Balsewicz’s safety. (Docket #30-8 at 30).

         There does appear to be one staff member who repeatedly advocated for Balsewicz to be separated from Rivers or transferred. On May 24, 2017, Balsewicz’s social worker, Bailey Frame (“Frame”), wrote to Westra stating that Balsewicz wanted to be transferred due to the Rivers assault and recommending that Balsewicz and Rivers be separated. (Docket #30-8 at 32). In November 2017, Frame wrote to the social services director at Waupun to inform her that Balsewicz was very concerned for her own safety and frustrated with staff for not taking her seriously. Id. at 34. Frame said she believed that “if [Waupun] is not proactive in this situation that Balsewicz will reach a ...


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