United States District Court, E.D. Wisconsin
ORDER ADOPTING JUDGE DUFFIN'S RECOMMENDATION
(DKT. NO. 40), GRANTING DEFENDANTS' MOTION TO DISMISS
PARTY AND DISMISSING DEFENDANTS MEDEMA AND KLAPPER (DKT. NO.
27) AND GRANTING DEFENDANT WATSON'S MOTION TO EXTEND
DEADLINES (DKT. NO. 41)
PAMELA PEPPER, CHIEF UNITED STATES DISTRICT JUDGE
Doniel Carter filed an amended complaint, alleging that the
defendants violated his civil rights under the Eighth
Amendment because they were deliberately indifferent to
defendant Watson's sexual abuse of the plaintiff. Dkt.
No. 22. On February 19, 2019, the court referred this case to
Magistrate Judge William Duffin to handle pretrial matters.
Dkt. No. 19.
plaintiff named as defendants four officers, including
Sergeant Jason Medema and Correctional Officer Michelle
Klapper. In the second amended complaint, the plaintiff
alleged that Medema and Klapper worked with Watson at Fox
Lake Correctional Institution in May 2012, while the
plaintiff was an inmate there. Dkt. No. 22 at ¶35. He
says that the three officers worked on the same shift on Unit
10, where the plaintiff also worked. Id. at
¶¶27, 35. The plaintiff alleges that Medema and
Klapper knew that Watson was improperly fraternizing with the
plaintiff in violation of prison policy but that they failed
to report her conduct. Id. at ¶¶97, 99. He
asserts that Medema and Klapper failed to protect him from
Watson and that as a result, Watson sexually assaulted the
plaintiff on several occasions. Id. at ¶100.
The plaintiff alleges that Medema and Klapper (as well as
another defendant, Weidemann) violated the Eighth Amendment
in their alleged deliberate indifference to his unsafe
conditions of confinement. Id. ¶¶99-100.
August 2, 2019, Medema and Klapper asked the court to dismiss
them as defendants. Dkt. No. 27. They asserted that the
second amended complaint fails to allege a basis for Eighth
Amendment liability against them. Dkt. No. 28 at 2. According
to Medema and Klapper, the second amended complaint alleges
only that they failed to follow prison policy, which does not
amount to a constitutional violation under the Eighth
Amendment. Id. at 5-6. The defendants also have
moved for a stay pending the outcome of their motion to
dismiss. Dkt. No. 30.
plaintiff opposed the motion to dismiss, asking the court to
allow him to amend his complaint a third time. Dkt. Nos. 34,
35. He contended that the second amended complaint
sufficiently alleged a basis for Medema and Klapper's
liability under 42 U.S.C. §1983. Dkt. No. 35 at 2. In
the alternative, the plaintiff provided a proposed third
amended complaint, which contains additional information that
he says alleges a basis for holding Medema and Klapper
liable. Id. at 2-3; Dkt. No. 34 at 1-3.
Duffin addressed the parties' motions. Dkt. No. 40. He
agreed that, as the defendants had contended, the second
amended complaint alleged only that Medema and Klapper
violated the prison's fraternization policy. Id.
at 2. He also found that the second amended complaint did not
allege Eighth Amendment liability because it did not allege
that Medema and Klapper knew that Watson was harming the
plaintiff when she and the plaintiff were alone together.
Id. at 2-3. Judge Duffin also explained that the
proposed third amended complaint did not cure these
deficiencies, finding that at best it presented a
“hypothetical scenario” that assumed several
facts that the plaintiff had not alleged in his complaints.
Id. at 3-5. Because he concluded that neither
amended complaint sufficiently pled an Eighth Amendment claim
against Medema and Klapper, Judge Duffin denied the
plaintiff's motion to amend the complaint and recommended
that this court grant Medema and Klapper's motion to
dismiss. Id. at 5. He also granted the
defendants' motion for a stay pending this court's
decision on the motion to dismiss. Id. at 6.
plaintiff did not object to Judge Duffin's recommendation
that this court dismiss Medema and Klapper. If a party does
not object to a magistrate judge's recommendation on a
dispositive motion, this court reviews the magistrate
judge's recommendation for clear error. Johnson v.
Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999).
Duffin's conclusion that the second amended complaint
does not state an Eighth Amendment claim against Medema and
Klapper is not clearly erroneous. The complaint alleged only
that Medema and Klapper worked with Watson and saw her spend
a significant amount of time talking with the
plaintiff. Dkt. No. 22 at 10-11 (emphasis added). But nothing
in the second amended complaint suggests that they knew that
Watson was sexually assaulting the plaintiff or that he faced
a substantial risk of serious harm from her. At best, the
allegations suggest that Medema and Klapper were aware that
Watson was violating prison policy by spending so much time
with the plaintiff. As Judge Duffin concluded, violating a
prison policy does not create liability under the Eighth
Amendment. Dkt. No. 40 at 2; see Estate of Simpson v.
Gorbett, 863 F.3d 740, 746 (7th Cir. 2017).
proposed third amended complaint did not provide additional
facts to show that Medema and Klapper were aware of, and
disregarded, a risk to the plaintiff's safety. It
recounts possible scenarios, not facts. Judge Duffin
appropriately refused to allow the plaintiff to amend for the
third time, because the proposed third amended complaint
would not have stated a claim any more than the second
amended complaint did.
court noted earlier that the defendants filed a motion to
stay the case pending a decision on the motion to dismiss.
Dkt. No. 30. In his order recommending that the court grant
the motion to dismiss, Judge Duffin granted the motion to
stay and ordered the case stayed “pending written
objections to the court's recommendation to dismiss
Defendants Medema and Klapper and, if objections are filed,
the District Court's disposition of the motion to dismiss
and these objections.” Dkt. No. 40 at 6. Judge Duffin
provided that if there were no objections, “the court
will lift the stay and extend the deadlines for discovery and
dispositive motions with respect to the remaining
defendants.” Id. There were no objections, but
Judge Duffin has not yet lifted the stay. On November 15,
2019, however, defendant Watson asked the court to extend the
deadlines for completing discovery and filing dispositive
motions. Dkt. No. 41. She noted that under the original
scheduling order, discovery was to be completed and
dispositive motions filed by November 15, 2019. Id.
at 1. She asks to extend the deadline to February 13, 2020.
Id. at 2.
Judge Duffin has not lifted the stay, the court doesn't
think Watson's motion was necessary. Nonetheless, the
court will grant the motion, and extend the deadlines as
court ADOPTS Judge Duffin's
recommendation that the court dismiss defendants Medema and
Klapper. Dkt. No. 40.
court GRANTS defendants Medema and
Klapper's motion to dismiss party and
ORDERS that defendants Jason Medema and
Michelle Klapper are DISMISSED. Dkt. No. 27.
court GRANTS defendant Watson's motion
to modify ...