Opinion
Case No. 17-C-1701
2019-09-04
Shavontae DANIELS, Plaintiff, v. Trevor KLEMMER, et al., Defendants.
Shavontae Daniels, Racine, WI, pro se. Rachel L. Bachhuber, Wisconsin Department of Justice Office of the Attorney General, Madison, WI, for Defendants.
Shavontae Daniels, Racine, WI, pro se.
Rachel L. Bachhuber, Wisconsin Department of Justice Office of the Attorney General, Madison, WI, for Defendants.
DECISION AND ORDER
LYNN ADELMAN, United States District Judge
Plaintiff Shavontae Daniels is a Wisconsin state prisoner and is representing himself. He filed a lawsuit under 42 U.S.C. § 1983 and is proceeding on claims relating to an incident of self-harm. Before me now are both the plaintiff's and the defendants' motions for summary judgment. For the reasons explained below, I deny the plaintiff's motion for summary judgment and grant in part and deny in part the defendants' motion for summary judgment.
I. FACTS
1. Background
The plaintiff is an inmate at Waupun Correctional Institution. Docket No. 55 ¶ 1; Docket No. 67 ¶ 1. The defendants were, at all times relevant, working at Waupun. Docket No. 67 ¶ 2. Defendants Pohl and Trevison were employed as correctional officers; defendant Klemmer was a sergeant; and defendant Tritt was a supervising officer. Id.
On October 2, 2017, the plaintiff was in clinical observation status. Id. ¶ 4. Clinical observation status is non-punitive and used for the temporary confinement of inmates to ensure their safety or others' safety. Id. ¶ 5. The clinical observation staff determine what property an inmate is allowed while in observation based on the level of risk and after consulting with a security officer. Id. ¶ 6. An inmate is generally restricted to suicide-resistant clothing, a security mat, soap and a washcloth, bag meals, toilet paper, and certain forms for requesting health or psychological services. Id. ¶ 7.
The plaintiff had previously been placed on behavior management plan in March 2017 with a history of multiple placements in observation following reports of self-harm/suicidal thoughts, self-injurious behavior, and threats of self-harm or suicide. Id. ¶¶ 8–9. He also had a history of seeking contact with Psychological Services Unit ("PSU") staff by making statements about self-harm/suicide and then denying or recanting those statements when seen by PSU staff. Id. ¶ 10. The purpose of the behavior management plan was to develop a series of actions that could be taken to guide the plaintiff's behavior and provide an intervention guideline to improve the management of his behavior. Id. The behavior management plan directs correctional officers or other staff to notify PSU, a security supervisor, or program supervisor if the plaintiff told them that he needed to see PSU because of thoughts of self-harm or suicide. Id. ¶ 12.
The plaintiff takes exception with the idea that this finding of fact implies that if he did not directly say he needed to see PSU, officers were not required to do anything. First, I do not understand that to be the implication. Second, the behavior management plan also directed the plaintiff to tell staff that he needed to see PSU when he was having these thoughts. That is, the directives also addressed his behavior. If he experienced thoughts of self-harm or suicide, his next step was to tell an officer or staff member that he needed to see PSU.
Under the plan, the plaintiff was responsible for accurately and honestly reporting problems and symptoms related to emotional distress and thoughts of self-harm or suicide. Id. ¶ 13. The plaintiff's behavior management plan did not dictate that he had to be placed on observation every time he expressed suicidal ideation or thoughts of self-harm. Id. ¶ 14. If PSU staff, the security supervisor, or program supervisor recommended he be placed on observation status, he would be. Id. ¶ 15.
2. October 2, 2017 Incident
Sometime between 8:35 and 8:45 a.m. on October 2, 2017, the plaintiff was released from observation status. Id. ¶ 16. Later that day, around 1:15 p.m., he contacted the intercom officer, defendant Pohl, and stated that he was cutting himself. Docket No. 78 ¶ 1; Docket No. 67 ¶ 70. Pohl does not recall anything about this situation. Docket No. 55 ¶ 4. According to the plaintiff, Pohl came to his cell, looked in, and then walked away. Docket No. 38 ¶ 7(3). Plaintiff engaged in self-harm behavior between 1:15 and 2:30. Id. ¶ 7(4).
The defendants say that the intercom officer told Pohl about what the plaintiff said about cutting himself, not that Pohl was the intercom officer. Docket No. 67 ¶ 70. Either way, Pohl knew about the plaintiff cutting himself.
Shortly after second shift started, which is between 2:00 p.m. and 10:00 p.m., defendant Trevison went to the plaintiff's cell front. Docket No. 67 ¶ 19. The plaintiff was walking at a fast pace. Id. The parties dispute whether the plaintiff told Trevison that he was upset about the intercom in his cell not working. Id. They do agree that, at some point, she needed to pull him out of the cell to have the call button fixed. Docket No. 67 ¶ 24; Docket No. 38 ¶ 7(6). The plaintiff showed Trevison a cut on his arm (the parties dispute the nature and severity of the cut) that had some dried blood in it. Docket No. 67 ¶ 20; Docket No. 38 ¶ 7(7). The plaintiff did not tell Trevison that he was suicidal or having suicidal thoughts at that time, but he did say he would continue to engage in self-harm. Docket No. 67 ¶ 21.
Trevison radioed defendant Klemmer, who was assigned as the shift sergeant in the Restrictive Housing Unit ("RHU"), to come to the cell front. Id. ¶ 22. Previously, Klemmer had learned that the plaintiff's cell needed to have the in-cell intercom fixed. Id. ¶ 23. But before he could remove him from his cell for the maintenance, he received the call from Trevison and arrived at the plaintiff's cell about a minute later. Id. ¶¶ 24–26. The plaintiff told Klemmer he was upset about having not yet received his property after being released from observation earlier in the day. Id. ¶ 27. The plaintiff states that he was specifically upset because he did not have any toilet tissue and therefore could not have a bowel movement, causing him pain. Id. ; Docket No. 78 ¶ 8. Klemmer told the plaintiff he did not know that the plaintiff had not received his property and that he would look into it. Docket No. 67 ¶ 29.
Klemmer told the plaintiff that maintenance needed to come into his cell to work on the intercom and he would need to be moved to a shower stall while they worked. Id. ¶ 30. He told the plaintiff that he would ensure that he received his allowed property while his intercom was being repaired. Id. ¶ 31. The plaintiff showed Klemmer the cut on his arm and refused to tell Klemmer what caused it. Id. ¶ 32. According to the plaintiff, he inflicted the cut using a razor that he found taped to the bottom of the back of cell food trap. Docket No. 78 ¶ 12. Klemmer asked the plaintiff if he was suicidal or if he planned to harm himself, and he replied, "No, I just want my mother-fucking property." Docket No. 67 ¶ 33. Klemmer had the plaintiff wash some of the blood off his arm. Docket No. 55 ¶ 31. Had it been actively bleeding, Klemmer would have contacted a supervisor, as well as the Health Services Unit ("HSU") for an assessment. Docket No. 67 ¶ 36.
The plaintiff says that Klemmer never asked where the cut came from, but he offers no admissible evidence to support that contention. See Docket No. 67 ¶ 32.
The plaintiff was restrained and escorted to the shower stalls, where he was placed in a holding cell about ten feet away from his own cell while maintenance fixed the intercom. Id. ¶ 37. According to Klemmer, he asked the plaintiff he wanted to be seen at HSU for his cut and the plaintiff declined. Id. ¶ 38. The plaintiff, however, states that Klemmer never asked him if he wanted to be seen at HSU. Docket No. 66 ¶ 24(11). While maintenance fixed the intercom, Klemmer and another officer retrieved the plaintiff's property and placed it into his cell. Docket No. 67 ¶ 39. Klemmer and Trevison then escorted the plaintiff back to his regular cell. Id. ¶ 40. The defendants contend the plaintiff was without further incident, but the plaintiff contends he continued to engage in self-harm. Id.
3. October 9, 2017 Offender Complaint
On October 9, 2017, the plaintiff submitted an offender complaint, alleging that on October 2, staff were aware that he was "engaging in self-harm yet ignored [him] for hours." Id. ¶ 48. In the complaint, he alleges that he tried to get staff's attention about his property. Id. ¶ 49. After his attempts were unsuccessful, he became upset and started to harm himself. Around 1:30 an officer (not a defendant) came to get a different inmate for HSU and the plaintiff showed the officer the blood all over his hands and arm and his shirt. The officer went to notify a sergeant. That officer came back and kept walking past his cell, ignoring him. Id. He goes on to allege that at around 2:00, Trevison came to his cell to have his call button fixed. Id. ¶ 60. When he showed her his arm and the blood, she radioed Klemmer. Klemmer came to his cell and had him wash the blood off his arm before placing him in cuffs. He then escorted the plaintiff to a shower stall while his intercom was fixed and then brought him back to his cell. After that, the plaintiff says, he continued to hurt himself. He complained that he should have been placed on observation status. Id.
The Institution Complaint Examiner, Tonia Moon (not a defendant), contacted defendant Tritt about the plaintiff's complaint. Id. ¶ 51. Tritt then reviewed the camera footage from October 2. Id. ¶ 52. She could only review the footage for the time between 1:14 p.m. and 1:59 p.m. because that was the only time that the plaintiff did not have his camera covered. Id. Tritt told Moon that he observed the plaintiff kicking his cell door, walking around his cell, and looking at one of his arms a lot—possibly picking at it or something similar. Id. ¶ 53. Tritt told Moon that he did not see any blood so he could not be sure if the plaintiff was harming himself. Id. ¶ 54. Other than providing this information to Moon, Tritt did not personally participate in any decision concerning the disposition of the complaint. Id. ¶ 55. The plaintiff also agrees that this was Tritt's only involvement in this case. Id. ¶ 47. He was not in the control center that day and he was not informed of incident concerning the plaintiff on October 2 until asked to review the video footage. Id. ¶¶ 45, 47.
4. The Plaintiff's Medical and Psychological Care
If inmates have a non-emergency medical need, they are required to submit a health service request to HSU. Id. ¶ 57. Crystal Marchant (not a defendant) reviewed the plaintiff's medical records and found that he did not submit any health service requests for any injuries sustained on October 2, 2017 by cutting himself with a razor. Id. ¶ 60.
The plaintiff saw psychological associate Amy Sager on October 3, 2017. Id. ¶ 63. She noted that the plaintiff was "pissed off" about some property issues the day before. Id. He told Sager that he had been self-harming the day before. Id. ¶ 64. When she asked him to show her where, the plaintiff showed her scratches on his left arm. According to Sager, the plaintiff said he used his fingernail, but the plaintiff contests this. Id. ; Docket No. 78 ¶ 12; Docket No. 66 ¶ 28(7). He denied then-current urges to self-harm. Docket No. 67 ¶ 65.
The plaintiff, in his response to the defendants' proposed findings of fact, states that he cannot challenge Dr. Sager because she no longer works at the institution. However, he would be able to challenge her, so to speak, based on his personal knowledge of their interaction. Her absence does not preclude that.
A few days later, on October 7, 2017, the plaintiff submitted a psychological service request stating that staff allowed him to engage in self-harm on October 2 without placing him in observation status per his behavior management plan. Id. ¶ 66. In it, he alleges that an officer and sergeant ignored him and then Klemmer pulled him out and gave him more sharp objects. Id. ¶ 67. He stated that he continued to engage in more self-harm. Id. When Dr. Torria Van Buren spoke with him for follow up, her notes do not indicate that the plaintiff made any statement about the October 2 incident. Id. ¶ 69.
II. SUMMARY JUDGMENT STANDARD
A party is entitled to summary judgment if it shows that there is no genuine dispute as to any material fact and it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). To survive a motion for summary judgment, a non-moving party must show that sufficient evidence exists to allow a jury to return a verdict in its favor. Brummett v. Sinclair Broad. Grp., Inc. , 414 F.3d 686, 692 (7th Cir. 2005).
III. ANALYSIS
Both the plaintiff and the defendants have moved for summary judgment. The plaintiff is proceeding against all of the defendants on claims that they were each deliberately indifferent to his medical needs. "Prison officials violate the Eighth Amendment's proscription against cruel and unusual punishment when their conduct demonstrates ‘deliberate indifference to serious medical needs of prisoners.’ " Gutierrez v. Peters , 111 F.3d 1364, 1369 (7th Cir. 1997) (quoting Estelle v. Gamble , 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ). The defendants argue that the plaintiff did not have an objectively serious medical need and, even if he did, the defendants' behavior was not deliberately indifferent to that need. The plaintiff, for his motion, argues that not only did he have a serious medical need, the defendants failed to take the necessary steps (putting him in observation status) to protect him.
I will begin with the first prong of a claim for deliberate indifference to a serious medical need: the medical need itself. The Seventh Circuit holds that self-harming or suicidal behavior satisfies the first element, meaning it is a "serious medical condition." Pittman ex rel. Hamilton v. County of Madison, Ill. , 746 F.3d 766, 775 (7th Cir. 2014). The defendants argue, however, that the plaintiff's "tiny papercut" cannot constitute an objectively serious harm. Docket No. 48 at 10. They rely on two district court decisions from Wisconsin, Davis v. Gee and Lindsey v. Runice .
In Davis v. Gee , No. 14-cv-617-wmc, 2017 WL 2880869, *1 (Jul. 6, 2017 W.D. Wis.), Davis showed the defendant a handful of pills, stated he was feeling suicidal, and asked to be placed on observation status. The defendant made a sarcastic comment about giving Davis some Vaseline, and Davis began to scream about overdosing on the pills and committing suicide. The defendant left and Davis proceeded to take the pills. Id. Further development of record showed that the pills Davis took, a handful of acetaminophen, did not cause him any harm. Id. at *3–4. Hospital records indicated the amount taken was never outside the therapeutic range and he never suffered from acetaminophen toxicity. Id. at *3. The court stated that, to succeed on his case, Davis would have to show that the defendant's failure to prevent him from taking the pills "actually caused an objective risk of ‘serious damage to his health.’ " Id. at *4 (internal citation omitted). The court found he failed to do so; the amount of acetaminophen he took was non-toxic and he did not suffer any objectively serious harm. Id. at *6. The court noted something similar in dicta in Lindsey v. Runice , Case No. 16-CV-75-WCG, 2016 WL 2636273. The court stated that the pills Lindsey ingested did not actually cause him harm, so he could not show an objectively serious harm.
The defendants did not provide a citation or a copy of the correct decision (their provided copy was of the screening order, rather than the motion for summary judgment). I was able to access it using the court's own internal docket.
However, I am not bound by another district court's decision, and I am not convinced that a backwards-looking standard focused on objective harm is appropriate in all (or any) cases of self-harm. The question is whether, at the time the plaintiff made the threat and the defendants responded to it, the plaintiff was at risk of inflicting objectively serious harm on himself. The nature of the harm the plaintiff ended up inflicting on himself may inform that inquiry, but it should not be the only factor. See Lord v. Beam , No. 18-cv-351, 2019 WL 464138 (E.D. Wis. Feb. 6, 2019) (considering a variety of factors, including the severity of the harm the plaintiff inflicted on himself, when concluding the plaintiff was not at risk of serious harm when he threatened to harm himself).
As Judge William E. Duffin recently explained, a failure to inflict a serious injury after threatening self-harm could mean that the plaintiff never intended to harm himself (and was using the threat to manipulate officials) or it could mean that a plaintiff's "threats of self-harm were genuine at the time he made them, but, once he started cutting into his arm, he lost his nerve, changed his mind, was interrupted before he could inflict a more serious injury, or lacked the means to inflict a more serious injury." Braithwaite v. Smelcer , No. 18-CV-1507, 2019 WL 3937015, *3 (Aug. 19, 2019 E.D. Wis.). There remains a question of fact about whether the plaintiff was at risk of objectively serious harm.
The defendants go on to argue that the plaintiff was manipulating prison officers, threatening self-harm to achieve a goal (namely: getting his property after being released from observation). This argument touches on both the objective seriousness of the potential harm and the objective reasonableness of the defendants' actions. However, I will assume that the potential harm was objectively serious for purposes of deciding whether each defendant is entitled to summary judgment.
1. Officer Pohl
The plaintiff hit his intercom around 1:15 p.m. on October 2, 2017 and told Pohl that he was cutting himself (or he told whoever answered the intercom, and that person told Pohl). According to the plaintiff, Pohl came by his cell, looked in, and then left. Plaintiff says he then went on to continue harming himself. Pohl, for his part, does not remember this interaction. Pohl makes the sort of argument that I rejected above: he says that the video review (showing the plaintiff walking around his cell looking at his arm), combined with the fact that the plaintiff was fine when defendants Trevison and Klemmer saw him an hour later demonstrate that he was not deliberately indifferent to the plaintiff's medical need. Pohl also argues that the plaintiff had only the property he would have had in observation. There is no evidence, he says, that he was aware of substantial risk of harm to the plaintiff. First, I am not convinced by Pohl's argument. If Pohl had looked into the plaintiff's cell to see what Tritt saw when reviewing the video, he would have seen the plaintiff pacing, kicking his door, and picking at his arm—hardly evidence of the plaintiff being decidedly calm and no threat to himself. Second, while it may have been reasonable for Pohl to think that the plaintiff could not have harmed himself because the plaintiff did not have anything that he would not have had while on observation status, there is no evidence that speaks to where the plaintiff was located. Was it the same cell? If not, had it been searched before he was placed there? Plus, the plaintiff did not make a threat; he told Pohl that he had cut himself. I also note that the defendants' argument that the plaintiff engaged in self-harm as a means to get his property does not have traction here. There is no indication that Pohl knew about the plaintiff wanting his property. The record only shows that the plaintiff pressed his intercom and spoke of harming himself.
In arguing that he is entitled to summary judgment, the plaintiff argues that Pohl should have immediately placed him back on observation status, per his behavior management plan, once he told Pohl that he had cut himself. But that is not the question. Behavior management plan aside, the question is whether Pohl acted recklessly with respect to the plaintiff's health and safety. Violating the behavior management plan (assuming he did) is not itself a constitutional violation. Neither party is entitled to summary judgment as to claims against Pohl.
2. Sergeant Klemmer
Klemmer arrived at the plaintiff's cell after Trevison called him after he showed her the cut on his arm. The plaintiff told Klemmer he was upset about his property not being given to him after being released from observation. He denied being suicidal or having thoughts of harming himself. The plaintiff said, "No I just want my mother-fucking property back," and Klemmer told him that he would look into it. While the plaintiff waited in the shower stall for the intercom to get fixed in his cell, Klemmer got his property and then placed him back in his cell. According to Klemmer, he thought all was resolved and left the plaintiff in his cell with all of his property.
Klemmer argues that he did not act recklessly with respect to a risk that the plaintiff would harm himself. The plaintiff contends that Klemmer should have called PSU, largely because, in his view, his behavior management plan required it and because he had the cut on his arm with enough blood on it that Klemmer asked him to wash it off before cuffing him. As noted above, the behavior management plan does not create a constitutional guarantee. Instead, the general Eighth Amendment framework applies. And this also means that Klemmer can only be held responsible for acting based on what he knew. Walker v. Benjamin , 293 F.3d 1030, 1037 (7th Cir. 2002).
Based on the undisputed evidence, I find that Klemmer acted reasonably based on what he knew—or did not know. And I make this decision without needing to make a finding about whether he plaintiff's threats were or were not a manipulation to get his property. The plaintiff refused to tell Klemmer where or how he got the cut; he denied being suicidal or having thoughts of self-harm; he told Klemmer he just wanted his property; and Klemmer got him his property. Klemmer did not know, based on the record, that the plaintiff had definitively cut his own arm. He made no threats of self-harm to Klemmer. Therefore, even if the plaintiff was an objectively serious threat of harm to himself, Klemmer did not have any basis to subjectively know that. Therefore, he is entitled to summary judgment.
3. Officer Trevison
Trevison is also entitled to summary judgment. She got to the plaintiff's cell and saw the cut and radioed for Klemmer. The plaintiff did not tell her that he was suicidal or having suicidal thoughts, but the plaintiff does aver that he told her that he would continue to engage in self-harm. She then heard Klemmer explain to the plaintiff that they needed to move him, and plaintiff agreed. After his intercom was fixed and his property returned, she, along with Klemmer, escorted him back to his cell.
The plaintiff agrees that she fulfilled her duty by radioing for a supervisor. However, plaintiff argues that she should have done more because she knew he intended to continue to engage in self-harm. While the plaintiff says it was his behavioral management plan that she was required to follow, the proper inquiry is whether she complied with what the Constitution required of her, based on the information she had. According to her own account, she did not have a reason to believe the plaintiff was at risk of harming himself. According to the plaintiff, though, he told her that he intended to engage in self-harm. Even assuming that the plaintiff was an objectively serious risk to his own health and safety, a jury could not find that Trevison acted with recklessness when she did not place him in observation (or take further steps). Grieveson v. Anderson , 538 F.3d 763, 777 (7th Cir. 2008) (deliberate indifference arises when prison officials "ac[t] with the equivalent of criminal recklessness") (citations and quotations omitted).
The sequence of events is important here. After Trevison saw the scratch and the plaintiff said he intended to continue to engage in self-harm, she radioed Klemmer—that is, she called for a supervisor. The plaintiff agrees that this was the appropriate action for her to take. In other words, Trevison fulfilled her duty. After that, it is not clear how much she heard of the exchange between the plaintiff and Klemmer (about plaintiff wanting his property), but the record shows she did help to escort him back to his cell after the intercom was replaced and his property returned. Nothing in the record indicates that there was a new reason for her to be concerned about the plaintiff being a threat to himself requiring to take further action than she already had. As the plaintiff admitted, when faced with his injury and a threat to continue to engage in harm, she acted. She is entitled to summary judgment.
4. Captain Tritt
The plaintiff has sued Tritt because he was part of the team that created the plaintiff's behavior management plan. However, there is no evidence that Tritt had anything to do with the events of October 2, 2017 when they occurred. Section 1983 limits liability to public employees who are personally responsible for a constitutional violation. Burks v. Raemisch , 555 F.3d 592, 595-96 (7th Cir. 2009). For liability to attach, the individual defendant must have caused or participated in a constitutional violation. Hildebrandt v. Illinois Dept. of Natural Resources , 347 F.3d 1014, 1039 (7th Cir. 2003). The plaintiff admits that Tritt's only involvement was reviewing the tape at the request of the Institution Complain Examiner and reporting his findings to her. Therefore, Tritt was not personally responsible for anything that happened that day.
To the extent that the plaintiff thinks Tritt should be liable because he is a supervisor, supervisors are only responsible for the behavior of their supervisees if the constitutional deprivation occurs at his direction or with his knowledge and consent. Hildebrandt , 347 F.3d at 1039. As already stated, Tritt was not involved with the events of October 2 while they were happening. He is therefore entitled to summary judgment. 5. Qualified Immunity
At this point, only Pohl remains as a defendant. He argues that he is entitled to qualified immunity because clearly established law did not require him to place the plaintiff on observation status when he did not have any property in his cell that he would not have had on observation status and Pohl was unaware of a serious risk to his health. This argument fails, however, because the record does not show that Pohl was unaware of serious risk to the plaintiff's health and the defendants have not provided any information about how any of them could be sure there was nothing in the plaintiff's cell that would have made it different from observation status. As Pohl has failed to provide evidence to support the underlying premise of his request for qualified immunity, I will deny it.
6. Duplicate Motion
In addition to his original motion for summary judgment and his additional motion, the plaintiff filed a motion for summary judgment duplicative to his second motion. That is, it is an identical copy. I will deny it as moot.
IV. MOTION TO APPOINT COUNSEL
The plaintiff has also filed a motion to appoint counsel, noting that he was soon to be released from prison. He expressed concern with his ability to obtain medication to address his mental illness. Because this case has survived summary judgment, I will grant the motion. I will recruit counsel to represent the plaintiff to help resolve this case, whether through mediation (formal or otherwise) or trial. Once I find an attorney, I will send the plaintiff a form to sign that will finalize the recruitment. At that point, the attorney will be in contact with the plaintiff directly.
V. ORDER
THEREFORE, IT IS ORDERED that the plaintiff's motions for summary judgment (Docket Nos. 36 and 65) are DENIED .
IT IS ALSO ORDERED that the plaintiff's duplicative motion for summary judgment (Docket No. 70) is DENIED AS MOOT .
IT IS ALSO ORDRED that the defendants' motion for summary judgment (Docket No. 47) is GRANTED IN PART AND DENIED IN PART . Judgment in favor of Klemmer, Trevison, and Tritt will be entered accordingly.
IT IS ALSO ORDERED that the plaintiff's motion to appoint counsel (Docket No. 84) is GRANTED . I will work to recruit an attorney to represent the plaintiff.