Robinson v. Edwards

Decision Date08 June 2021
Docket Number20-cv-28-bbc
CourtU.S. District Court — Western District of Wisconsin

Pro se plaintiff Victor Robinson, who is incarcerated at the Green Bay Correctional Institution, is proceeding on: (1) Eighth Amendment and state law negligence claims against defendants Randall Edwards, Matthew Scullion, Dane Esser, Anthony Broadbent, Lebbeus Brown and Cody Saylor regarding another inmate's alleged attack of plaintiff at the Wisconsin Secure Program Facility on January 2, 2018; and (2) a First Amendment access to courts claim against defendants Melanie Kuslits and Corene Giebel for their alleged refusal to notarize his notice of claim form, which prevented him from complying with Wisconsin's notice of claim statute. (I have amended the caption to reflect the correct spelling of defendants' complete names.)

Before the court are the parties' cross motions for summary judgment. Dkt. ##34, 49. In addition, plaintiff recently filed a letter with the court in which he states that defendants have produced only a portion of the tape of an eight-hour gang debriefing interview that defendant Brown conducted with him in 2014. Dkt. #77. He contends that defendants are in violation of this court's May 10, 2021 order compelling defendants to produce the tape. Dkt. #76.

For the reasons below, I am denying plaintiff's motion for summary judgment, granting defendants' motion for summary judgment and closing this case. Because the stated contents of the interview tape would not change the outcome of this case, plaintiff's recent discovery request will be denied as moot.

From the parties' proposed findings of fact, I find the following facts to be undisputed unless otherwise noted.

A. The Parties

At all times relevant to this lawsuit, plaintiff Victor Robinson was incarcerated at the Wisconsin Secure Program Facility, where many of the defendants were employed.

Defendant Lebbeus Brown was a captain and Security Threat Groups Coordinator from April 2003 to June 2016, and then a unit supervisor from June 2016 to August 2020 on the Alpha and Fox Trot housing units. Defendant Anthony Broadbent has served as a unit supervisor on the Echo and Fox Trot housing units since 2014. During the period relevant to this lawsuit, Dane Esser was a captain, Matthew Scullion was a lieutenant, Cody Saylor was a sergeant and Randall Edwards was a correctional officer. Plaintiff was later incarcerated at the Waupun Correctional Institution, where defendant Corene Giebel was an offender records supervisor and defendant Melanie Kuslits was employed as an offenderrecords associate.

B. Background

Plaintiff was a member of the Vice Lord Gang for over 50 years and was the highest ranking member of the gang in Wisconsin. On September 15, 2014, while plaintiff was housed in a restrictive housing unit, he wrote a letter "to be sent to Chicago Ill, and the Federal System," denouncing his gang affiliation. The letter stated that the only way out of the gang at plaintiff's level is death, and plaintiff's decision "put a target on his back." Defendant Brown intercepted the letter and issued plaintiff a conduct report, stating that plaintiff was a high-level gang member attempting to contact another high-level gang member in the federal prison system to denounce his gang affiliation. Defendant Brown asked plaintiff if he would he go through a gang debriefing, and plaintiff agreed. With permission from upper security, Brown interviewed plaintiff for about eight hours. (Although plaintiff has not yet had the opportunity to review the entire interview tape, he says that during the interview, he told Brown that the Vice Lords would attempt to harm or kill him for denouncing his gang affiliation.) In a letter to plaintiff dated September 19, 2014, Warden Boughton acknowledged plaintiff's decision to leave the gang. (Although plaintiff says that the entire staff at the prison was provided with the memorandum, he has not presented any evidence to support this assertion. The letter itself states that certified copies were sent only to Brown, Captain Mason, "ICE" and "file." Dkt. #73-9.)

In exchange for plaintiff's denouncing his gang membership, Brown told plaintiff thathe would support plaintiff's getting a job and a transfer to a less secure institution. However, according to plaintiff, Brown did not make good on his promise. After an emergency hearing with Brown and a social worker, at which plaintiff became angry and called Brown names, plaintiff was transferred to a medium security prison in South Dakota on September 10, 2015. He returned to the Wisconsin Secure Program Facility on August 4, 2016. For the next two years, plaintiff had interactions with various staff and administrators (not defendants) about his custody and placement classification. (Plaintiff proposes several facts related to his past interactions with certain defendants in early 2017, including their failure to support his participation in a prison mentor program, interfering with plaintiff's nonprofit organization, encouraging inmate Jamal Desmar Williams to make false statements against plaintiff and searching plaintiff's cell to seize gang-related materials, which were actually plaintiff's nonprofit paperwork. I have not considered those proposed facts because plaintiff was not allowed to proceed on any claims involving these past incidents, and they are not relevant to the dispositive issues in this case—namely, whether defendants had any reason to know that inmate Robert Collins posed a risk of serious harm to plaintiff on or after December 21, 2017, and whether they failed to take reasonable measures to prevent or stop the alleged attack on January 2, 2018.)

C. Prison Housing Practices

It is common for inmates to be moved on and off the Fox Trot unit, depending on the inmate's status, unit availability, institution needs and available beds. The security directorand administrative captain generally make unit placement decisions.

The Department of Corrections has a system for documenting and tracking any special placement needs of inmates who may have problems with staff, other inmates or particular facilities. Special placement concerns that have been investigated, evaluated and documented as supporting certain needs are referred to as Special Placement Needs or SPNs. If an inmate wants to request a SPN, he must complete a DOC-1803 form. Upon receipt of a DOC-1803, the security director assigns an investigator, who determines whether the SPN is warranted, based on qualifying criteria.

The security office considers any security concerns, including SPNs, when moving an inmate from one unit to the next. When an inmate is released from restrictive housing status, the security office determines that inmate's placements and informs the unit supervisor of the transfer. When inmates are laterally transferred from one general population unit to another, the unit supervisor may be consulted prior to the move.

D. Plaintiff's Housing Assignments

On May 26, 2017, plaintiff was placed in restrictive housing on the Alpha unit for disobeying orders, disruptive conduct and possessing contraband. At that time, inmate Robert Collins also was in the Alpha unit on the same range as plaintiff. According to plaintiff, Collins told him during that time period that the Vice Lords were planning to kill plaintiff. Plaintiff and Collins began arguing, and Collins threatened to "take up the hit" that the Vice Lords had put on plaintiff. Collins continued to threaten plaintiff for twoweeks.

Although prison staff (plaintiff does not identify the staff by name) asked plaintiff about the argument that plaintiff had with Collins on May 26, 2017, plaintiff refused to answer them. Plaintiff also refused to answer questions from defendant Brown because of what plaintiff perceived to be the past "bad blood" between them. (The parties dispute what Brown knew about plaintiff's May 26 argument with Collins. Plaintiff says that Brown asked him what his argument was with Collins, why Collins was threatening him and whether it was true that Collins was supposed to "take up the hit" that the Vice Lords placed on plaintiff. Brown says that he does not recall such a conversation with plaintiff and denies knowing about any hit placed on plaintiff.)

At some point, plaintiff was transferred out of the Alpha unit and into general population on the Charlie unit, away from Collins. There is no record that plaintiff ever filed a SPN regarding Collins. On October 18, 2017, plaintiff was transferred from the Charlie unit to the Fox Trot unit, also in general population. Collins was transferred from restrictive housing in the Alpha unit to restrictive housing in the Fox Trot unit on December 21, 2017.

In December 2017, defendant Brown was the supervisor for the Alpha unit and defendant Broadbent was the supervisor for the Fox Trot unit. In addition, Brown helped oversee the restrictive housing inmates who were housed on the Fox Trot unit, which was sometimes used as overflow for inmates in restrictive housing. Broadbent oversaw the general population inmates on the Fox Trot unit. Both Brown and Broadbent would havebeen informed of Collins's transfer to Fox Trot, but they did not order plaintiff's or Collins's transfer onto the unit. Brown was not aware that plaintiff was housed on the Fox Trot unit as a general population inmate when Collins was transferred to that unit in December 2017. Broadbent does not recall whether he was consulted about plaintiff's transfer into the Fox Trot unit.

Defendants Esser, Scullion, Edwards and Saylor did not order either plaintiff's or Collins's transfer to the Fox Trot unit, and they do not have the authority to transfer an inmate from one unit to another unless it is to place the inmate in temporary...

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