Erickson v. Wisconsin Dept. of Corrections
| Decision Date | 22 February 2005 |
| Docket Number | No. 04-C-265-C.,04-C-265-C. |
| Citation | 358 F.Supp.2d 709 |
| Parties | Georgia ERICKSON and Department of Administration/Bureau of Risk Management of State of Wisconsin, Plaintiffs, v. WISCONSIN DEPARTMENT OF CORRECTIONS, Mary Thompson, Wayne Mixdorf, Andrea Bambrough and Todd Johnson, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Richard Moriarty, Assistant Attorney General, Madison, WI, for Defendants.
This is a civil action for monetary relief brought pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983. It arises out of a December 2001 incident in which plaintiff Georgia Erickson was sexually assaulted by an inmate who was working as a janitor at the Oregon Correctional Center, a facility operated by defendant Wisconsin Department of Corrections. Plaintiff contends that defendant Wisconsin Department of Corrections discriminated against her on the basis of her sex by failing to prevent the sexual assault and that individual defendants Mary Thompson, Wayne Mixdorf, Andrea Bambrough and Todd Johnson violated her substantive due process rights by knowingly and intentionally allowing the inmate access to plaintiff while she was alone and unarmed. The Department of Administration/Bureau of Risk Management of the State of Wisconsin is named as a plaintiff pursuant to its request and asserts that it may have subrogation rights in any monetary relief granted to plaintiff because she received workers' compensation benefits after the attack. (From this point on, use of the word "plaintiff" refers to Erickson unless otherwise noted.) Jurisdiction is present. 28 U.S.C. § 1331.
In an order dated September 29, 2004, I granted plaintiff leave to amend her complaint to add the § 1983 claim against the individual defendants. In that order, I noted that both sides had submitted arguments regarding the individual defendants' entitlement to qualified immunity but I declined to address that issue before the individual defendants were served with the amended complaint. Presently before the court are defendants' motion to dismiss the amended complaint and motion for summary judgment and plaintiff's motion for summary judgment regarding the subrogation claim of the state of Wisconsin.
In their motion to dismiss, the individual defendants argue that plaintiff's amended complaint shows on its face that they are entitled to qualified immunity as to plaintiff's § 1983 claim. Alternately, they argue that summary judgment based on qualified immunity is appropriate to the extent the claim survives dismissal. Defendant Wisconsin Department of Corrections takes the same in-the-alternative approach to plaintiff's Title VII claim, arguing for dismissal solely on the basis of the amended complaint and for summary judgment on the basis of the undisputed facts. Plaintiff opposes the motions to dismiss by referring to proposed facts and evidence in the record in addition to the allegations in the amended complaint. Both sides have submitted proposed findings of fact that will assist the court in analyzing the applicability of qualified immunity and the merits of plaintiff's claims. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (); McMath v. City of Gary, Ind., 976 F.2d 1026, 1031 (7th Cir.1992); Green v. Carlson, 826 F.2d 647, 651 (7th Cir.1987). It makes little sense to ignore the proposed findings and confine the inquiry to the amended complaint. Therefore, I will forgo analysis of the amended complaint under Fed.R.Civ.P. 12(b)(6) and move directly to summary judgment.
The individual defendants' motion for summary judgment as to plaintiff's § 1983 claim will be granted because they are entitled to qualified immunity. Defendant Wisconsin Department of Corrections' motion for summary judgment as to plaintiff's claim under Title VII will be denied because there is evidence in the record from which a reasonable juror could conclude that defendant knew plaintiff faced an unreasonable risk of sexual harassment and failed to respond adequately.
Before turning to the facts, I note that portions of the parties' proposed findings of fact do not comply with this court's procedures regarding summary judgment. First, defendants misunderstand their need to respond to additional facts contained in plaintiff's response to defendants' proposed findings of fact. In replying to plaintiff's responses ¶¶ 7, 11, 42-44, 49, 72, 80, 81, 86-88, 115, 117, 119 and 120, defendants state that plaintiff "asserts different facts of her own ... as to which, under the [court's] procedure, no `answer' is contemplated." This is incorrect. The non-movant may propose findings of fact in its own set of proposed findings and in its responses to the movant's proposed findings of fact. Just because a proposed finding is located in the non-movant's response does not mean it will be disregarded. If the proposed fact is properly and sufficiently supported by admissible evidence and not disputed by the movant, the court will accept it as undisputed. See Procedures to be Followed on Motions for Summary Judgment, II.E.2 (). Defendants' assertion that no answer is needed is insufficient to put the additional facts in plaintiff's responses in dispute. Second, defendant's proposed facts ¶¶ 69, 70, 87, 93, 96-98, 104-05, 111 and plaintiff's proposed facts ¶¶ 2, 3, 37 (first sentence), 44-46, 59, 64 (second sentence) are phrased in terms of what an individual testified to at a deposition or trial. This is not the correct way to introduce the individual's testimony into evidence. The fact that plaintiff or one of the individual defendants made certain statements at their depositions or a court proceeding is not material to the issues presented on summary judgment in this case. What is material is the substance of their testimony. Therefore, these proposed findings have been disregarded except to the extent that the parties agree on the accuracy of the underlying facts.
Several problems exist with plaintiff's proposed findings, almost all of which were challenged by defendants. For example, plaintiff cites to portions of her affidavit in support of her proposed findings of fact ¶¶ 4, 8 and 9, but her affidavit does not indicate how she has personal knowledge of these facts in her affidavit. See Fed.R.Civ.P. 56(e); Procedures to be Followed on Motions for Summary Judgment, I.C.1.e (). Therefore, those proposed findings have been disregarded. In addition, certain statements in plaintiff's affidavit conflict with her deposition testimony or are at least inconsistent with it. For example, plaintiff states in her affidavit that she went to Hack's bar on December 20, 2001, and informed the individual defendants "that [inmate] Spicer was hanging around my cubicle and only acting like he was cleaning or working on his vacuum cleaner, but he clearly was not working, which alarmed me and caused me to believe he was simply loitering in the area to be near me and might be planning to sexually assault me." Erickson Aff., dkt. # 60, at ¶ 11. However, plaintiff did not state that she told defendants that she thought Spicer might be planning to sexually assault her at her deposition. Given the crucial nature of this fact, it is surprising that plaintiff did not mention it at her deposition. To the extent the affidavit conflicts with her earlier deposition testimony, the court must disregard the statements in her affidavit because she has not provided a plausible explanation for the discrepancies between it and her deposition testimony. Beckel v. Wal-Mart Associates, Inc., 301 F.3d 621, 623 (7th Cir.2002).
Further, plaintiff's proposed findings ¶¶ 6 and 7 contain statements about what she would have done had certain circumstances existed at the time of the events in this case. I have disregarded these findings because, aside from being mere speculation, the statements are not material to the issues in this case. In addition, I have disregarded plaintiff's proposed findings ¶¶ 54-56 and 70-77. Plaintiff cited as support for these findings Fitchburg Police Detective Celeste Stick's report of interviews she conducted with several witnesses. Stick's report would be inadmissible hearsay to prove the truth of the proposed findings, even if she testified as to the witnesses' statements at trial.
Finally, plaintiff's proposed findings ¶¶ 81-90 consist of opinions given by plaintiff's expert witness, Percy Pitzer. Defendants object to these proposed findings on the following grounds: (1) Pitzer's report contains no indication that he has ever had any personal experience with any facility operated by defendant Department of Corrections; (2) Pitzer lacks sufficient knowledge, skill, experience, training or education to present admissible opinions about what should have occurred at the Wisconsin Correctional Center System; (3) Pitzer's opinions are not based on technical or other specialized knowledge relevant to this case; (4) Pitzer's report does not say that he has ever testified as an expert or published in the field of corrections; (5) Pitzer's affidavit and report do not disclose any theories or techniques that he used in developing his...
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...effect prior to plaintiffs opposition to summary judgment makes it difficult to credit." Id. at 460-61. In Erickson v. Wisconsin Dep't of Corrections, 358 F.Supp.2d 709 (W.D.Wis.2005), the plaintiff prison employee, claiming that the defendants failed to protect her from an inmate assault, ......
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