Jackson v. Thurmer

748 F.Supp.2d 990

Jevon JACKSON, Plaintiff,

v.Mike THURMER, Debra Gempeler, Anthony Meli and John O'Donovan, Defendants.

No. 09–cv–602–slc.

United States District Court, W.D. Wisconsin.

Sept. 29, 2010.

Jevon Jackson, Portage, WI, pro se.Francis X. Sullivan, Wisconsin Department of Justice, Madison, WI, for Defendants.

OPINION and ORDER

STEPHEN L. CROCKER, United States Magistrate Judge.

May prison officials punish an inmate for confessing that he has violent thoughts, even if he disavows any desire or intent to carry them out? That is the question raised in this lawsuit brought by pro se plaintiff Jevon Jackson, a prisoner incarcerated by the Wisconsin Department of Corrections. Plaintiff was disciplined after informing prison staff that he wished to be placed in observation status out of fear of what he might do in the midst of a panic attack. Plaintiff contends that the punishment he received (placement in disciplinary segregation, loss of his prison job and a prison transfer) violated his rights under the Constitution; defendants contend that plaintiff's discipline was justified by security concerns. Defendants have filed a motion for summary judgment, which is ready for decision. See dkt. 21.

The narrative begins in 2007, when psychological services staff at the Waupun Correctional Institution first classified plaintiff as seriously mentally ill. In 2007 and 2008, plaintiff was placed in observation status multiple times when his symptoms became acute. Psychological services staff became so concerned about plaintiff's panic attacks that they prohibited him from eating with other prisoners in the dining hall. (They did not, however, assign him to a single cell.) The prison psychologist and psychiatrist instructed plaintiff to contact staff to request placement in observation whenever he believed his symptoms might lead him to hurt himself or others.

In late August 2008, plaintiff twice submitted a request to speak with psychological staff, but his requests went unanswered. On September 1, 2008, he told defendant Debra Gempeler, a supervising officer, that he was suffering from a panic attack and needed to be placed in observation status again. When she pressed him for specifics, he explained that he “felt like [he] was being chased down as if someone was trying to kill” him, that “he felt trapped in [his] cell” and that he “felt like [he] was going to freak out and strike out against whomever was around [him] as a means of protecting” himself. After speaking with the on-call psychologist, defendant Gempeler placed plaintiff in segregation and gave him a conduct report for making threats against his cell mate. Defendant Anthony Meli approved the conduct report and defendant John O'Donovan found plaintiff guilty of making a threat. Eventually, defendant Michael Thurmer reversed the decision. However, by that time, plaintiff had been housed in segregation for 45 days, had lost his prison job and had been transferred to another prison.

In the order screening plaintiff's complaint under 28 U.S.C. § 1915, the court allowed him to proceed on a claim that “defendants violated his right to free speech by disciplining him for requesting mental health treatment.” Dkt. 5, at 2.¹ The parties' summary judgment materials show that it was not simply plaintiff's request to be placed in observation that triggered the discipline. This does not end the matter, however, because defendants admit that plaintiff was punished for his speech. In particular, defendant Gempeler admits that she gave plaintiff a conduct report because of what he told her about his volatile emotional state.

I conclude that defendants' motion for summary judgment must be denied as to defendant Gempeler, whose decision to discipline plaintiff was not reasonably related to a legitimate penological interest, as it must be to survive scrutiny under the First Amendment. It is debatable whether it is ever legitimate to punish a prisoner simply because he admits to having a particular thought, even if it is violent or disturbing; generally, “thought crimes” are anathema to the First Amendment. Regardless, in this case there is no logical connection between the institution's security interests and punishing a prisoner for revealing violent thoughts that he could not help thinking but on which he had not acted. To the contrary, a practice of punishing such revelations might have the unintended effect of deterring prisoners from alerting staff of simmering psychological problems due to their fear of reprisal. This could result in staff not learning of a prisoner's psychological problems in time to ameliorate them. In this case, plaintiff did exactly what DOC's psychologists instructed him to do to prevent himself from becoming violent. Defendants have identified no alternative course of conduct that plaintiff should have taken.

Because defendants Meli and O'Donovan approved defendant Gempeler's conduct report, the motion for summary judgment must be denied with respect to them as well. However, Thurmer cannot be held liable because he correctly reversed the decision of the other defendants. Although this occurred too late to undo the damage, there is no evidence that Thurmer purposely delayed his decision to prolong plaintiff's harm.

The undisputed facts, taken from the parties' proposed findings of fact and the record, are set forth below. In accordance with this court's summary judgment procedures, I have treated all properly supported facts as undisputed unless the other side supported its alleged dispute with a citation to the record. Procedure to be Followed on Motions for Summary Judgment, II.D, dkt. 15 (“If you dispute a proposed fact, state your version of the fact and refer to evidence that supports that version.”); Helpful Tips for Filing a Summary Judgment Motion, Tip No. 3, dkt. 15 (“A fact properly proposed by one side will be accepted by the court as undisputed unless the other side responds to the proposed fact and establishes that it is in dispute.”).

UNDISPUTED FACTS

Plaintiff Jevon Jackson suffers from depression, bipolar disorder and panic attacks from post traumatic stress disorder. During the time relevant to this lawsuit, plaintiff was incarcerated at the Waupun Correctional Institution (WCI). Beginning in May 2007, WCI's psychological services staff classified plaintiff as an “MH–2,” that is, seriously mentally ill. See also Marshall v. Walsh, No. 06–cv–617–bbc, 2008 WL 4949921, *1 (W.D.Wis. Nov. 2008) (discussing various serious mental illnesses that fall under MH–2 classification). Plaintiff was prescribed various medications to cope with his conditions. Ordinarily, plaintiff met with prison psychologist Dr. Gene Braaksma or prison psychiatrist Dr. Callister two or three times each month.

In June 2007, psychological services staff placed a “clinical restriction” on plaintiff that prohibited him from eating in the dining hall because he experienced panic attacks there. Staff placed plaintiff on “observation status” once in May 2007 as a result of a major depressive episode, and again in April 2008 as the result of a panic attack. Observation status is a

nonpunitive status to be used for the temporary confinement of an inmate to ensure the inmate's safety and the safety of others if the inmate is mentally ill and dangerous, is dangerous to himself or herself, has a medical problem that requires separation from the population for treatment, or refuses testing for a communicable illness.

Wis. Admin. Code § DOC 311.01.

Prisoners on observation status are stripped of all clothing, provided a smock to wear and placed in a segregated cell that is bare with the exception of a rubber mat. All personal property is confiscated. Generally, placement in observation status is short-term, just long enough for the prisoner to weather a crisis period without harming himself or others. In both instances that plaintiff was placed on observation status, he was returned to his assigned cell after three days.

Dr. Braaksma had instructed plaintiff to contact staff immediately and ask to be placed in observation status whenever he is “feeling psychologically unstable, suicidal or experiencing the severe end of panic attack.” Dr. Callister had given plaintiff similar instructions.

On August 20, 2008, plaintiff wrote to Dr. Braaksma, asking to talk about plaintiff's mental health problems. Dr. Braaksma did not respond. On August 25, 2008, plaintiff sent a follow-up request, directed to “any available” member of the psychological services staff, in which plaintiff reported that his mental health was deteriorating: plaintiff reported experiencing hallucinations, having trouble sleeping and being “consumed with excited/nervous energy.”

On the morning of September 1, 2008, plaintiff began experiencing the symptoms of a panic attack. After the other prisoners in his unit went to the dining hall to eat lunch, plaintiff told the unit sergeant that he needed to be placed on observation status. Defendant Debra Gempeler, a “supervising officer 2” at the prison, responded. She asked plaintiff why he wanted to be placed on observation status. Plaintiff responded that he did not “feel comfortable talking about specific things,” but that he was “feeling mentally unstable now.” (Plaintiff says that he did not feel comfortable because other prisoners were walking in front of the cell.)

Defendant Gempeler took plaintiff to the administrative building so that they could discuss his concerns privately. She asked him again why he wanted to be placed on observation status. He told her that psychological services staff had instructed him to request placement on observation status anytime he felt psychologically unstable. She told him that he could not be placed on observation status “unless he explained specifically why” he was making the request.²

Plaintiff described the symptoms he was experiencing:

It felt like I was being chased down as if someone was...