Estate of Ryan J Mitchell v. City of Waupun

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

ESTATE OF RYAN J. MITCHELL,

Plaintiff,

Case No. 21-CV-322-JPS-JPS

v.

CITY OF WAUPUN, MICHAEL

ORDER

NAVIS, and TREVOR KREITZMAN,

Defendants.

1. INTRODUCTION

On March 11, 2021, Plaintiff Estate of Ryan J. Mitchell (“Plaintiff”)

filed the present 42 U.S.C. § 1983 action against Defendants City of Waupun

(“Waupun”), Officer Michael Navis (“Officer Navis”), and Officer Trevor

Kreitzman (“Officer Kreitzman”) (collectively, “Defendants”), alleging

violations of Ryan J. Mitchell’s (“Mitchell”) Fourth, Eighth, and Fourteenth

Amendment rights. ECF No. 1.

On May 24, 2022, Defendants filed a motion for judgment on the

pleadings or, in the alternative, a motion for summary judgment. ECF No.

11. On August 25, 2022, the Court denied the motion. ECF No. 21. The Court

held that the motion was not properly one for judgment on the pleadings.

Id. at 4–7, 10 (“The motion submitted by Defendants is not properly one for

judgment on the pleadings, both because of its reliance on information

outside of the pleadings and because it was not made ‘early enough not to

delay trial,’ . . . .”). The Court also noted that the parties failed to comply

with the Court’s summary judgment protocols because they failed to agree

upon and file a stipulated set of facts. Id. at 9. The Court concluded that, in

light of the parties’ failure to agree upon facts integral to summary

judgment, it could not grant Defendants’ motion because such failure

evidenced that material facts were disputed and that those disputes are

genuine. Id. at 13 (noting that the parties disputed the extent of the officers’

knowledge about Mitchell’s condition and the circumstances of his release

from Memorial Hospital, whether that release was conditioned on Waupun

Police Department transporting him, and whether Mitchell was under the

officers’ custody).

On August 26, 2022, Defendants filed a notice of appeal of the

Court’s August 25, 2022 order. ECF No. 22. On October 24, 2022, the

Seventh Circuit dismissed the appeal for lack of jurisdiction, writing that it

trusted that the Court would address the qualified immunity issue before

trial. ECF No. 31.

On December 14, 2022, the Court entered a revised trial scheduling

order, setting trial for April 3, 2023. ECF No. 32. On December 22, 2022, the

parties filed a joint motion to adjourn the trial date in light of an unspecified

conflict. ECF No. 33. The Court denied the motion in a text only order on

December 23, 2022.

On January 12, 2023, Defendants filed a motion to vacate the trial

date and stay proceedings. ECF No. 34. Defendants requested that the

Court vacate the deadlines associated with the case and that it answer the

qualified immunity question. Id. at 2. The parties filed no supplement to the

record and Defendants expressly concede that “[n]o depositions have been

taken in this case and no additional discovery has occurred” since the

motion for judgment on the pleadings and its subsequent denial. Id.

2. FACTS1

On or about November 18, 2017, Mitchell entered the Waupun Police

Department to inform those present that he was suicidal and that he had

tied a noose to kill himself. ECF No. 1 at 3. Officer Grant Nass (“Officer

Nass”) took Mitchell to Waupun Memorial Hospital (“Memorial Hospital”)

for an emergency evaluation. Id. At Memorial Hospital, staff found that

Mitchell was a danger to himself and that he was not free to leave of his

own accord. Id. The Physician’s Final Report described Mitchell’s

symptoms as “severe.” ECF No. 13-3. After leaving Mitchell at Memorial

Hospital, Officer Nass verified that Mitchell had tied a noose before he

came into the Waupun Police Department. ECF No. 1 at 3. Staff at Memorial

Hospital determined that Mitchell was safe to travel, but they did not

conclude that Mitchell was no longer a danger to himself.

Mitchell was allowed to leave Memorial Hospital to be transported

by the Waupun Police Department via police escort. This police escort was

considered to satisfy the Patient Transfer Form requirement that Mitchell

be transferred by “qualified personnel.” ECF No. 13-3. Mitchell was to be

transported to St. Agnes Behavioral Health in Fond du Lac, Wisconsin (“St.

Agnes”). ECF No. 1 at 3. At the time that Mitchell was to be transferred to

St. Agnes, he was mentally ill and was a proper subject for treatment. What

is not entirely clear, however, is whether the officers at issue in this case

were aware that Mitchell was being released from Memorial Hospital on

the condition that he be transported to St. Agnes by police and whether they

were aware that Mitchell was still suicidal.

1The following recitation of the facts is drawn from the Court’s August 25,

2022 order on Defendant’s motion for judgment on the pleadings or, in the

alternative, motion for summary judgment. ECF No. 21.

Officer Navis was to transport Mitchell to St. Agnes. Id. Mitchell

asked to be released so that he could walk home and retrieve his vehicle to

drive himself to St. Agnes. Id. Officer Navis asked Officer Kreitzman for

permission to release Mitchell. Officer Kreitzman granted Officer Navis

permission to release Mitchell. Id. Officer Kreitzman knew that Mitchell

came into the Waupun Police Department to inform those present that he

was suicidal and that he had tied a noose to kill himself. Id. Officer Navis

released Mitchell. Mitchell then drove to Barron County and committed

suicide. Id. at 3–4.

3. QUALIFIED IMMUNITY STANDARD & ANALYSIS

“Governmental actors performing discretionary functions are

entitled to qualified immunity from suits for damages ‘insofar as their

conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Abbott v.

Sangamon County, Ill., 705 F.3d 706, 713 (7th Cir. 2013) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). To overcome a defendant’s claim of

qualified immunity, “the plaintiff[] must show both (1) that the facts make

out a constitutional violation, and (2) that the constitutional right was

‘clearly established’ at the time of the official’s alleged misconduct.” Id.

(citations omitted).

The Court can begin with the second inquiry: whether Mitchell’s

asserted rights were clearly established at the time of their alleged violation.

Plaintiff alleges that Officers Navis and Kreitzman were “deliberately

indifferent to Mitchell’s serious medical need (suicidality)” when they

allowed him to drive himself, ostensibly to St. Agnes, rather than

transporting him there themselves. ECF No. 1. As noted, it is Plaintiff’s

burden to demonstrate that Mitchell’s right to be free from such treatment

was clearly established at the time that it allegedly occurred.

“A Government official’s conduct violates clearly established law

when, at the time of the challenged conduct, the contours of a right are

sufficiently clear that every reasonable official would have understood that

what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011). At the same time, however, “[w]hen determining whether a state-

created danger claim alleges the violation of a clearly established right, the

Seventh Circuit does not demand precise factual symmetry between the

precedent(s) relied upon and the facts at hand. Vaughn v. City of Chicago, No.

14-C-47, 2014 U.S. Dist. LEXIS 107952, at *11 (N.D. Ill. Aug. 5, 2014).

“It is clearly established that state actors who, without justification,

increase a person’s risk of harm violate the Constitution.” Paine v. Cason,

678 F.3d 500, 510 (7th Cir. 2012) (internal citation omitted). This is not a right

to protection, but rather is a right not to be placed at harm by state officials.

Monfils v. Taylor, 165 F.3d 511, 518 (7th Cir. 1998). In some cases, this right

extends to noncustodial settings—a government official may, if the

circumstances are right, “be held responsible for creating a danger in a

noncustodial setting.” Id. (citing Archie v. City of Racine, 847 F.2d 1211 (7th

Cir. 1988)).

To state a claim of deliberate indifference to a serious medical need,

a plaintiff must show: (1) an objectively serious medical condition; (2) that

the defendants knew of the condition or were deliberately indifferent in

treating it; and (3) that this indifference caused the plaintiff some injury.

Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). For deliberate

indifference, “[t]he official must have subjective knowledge of the risk to

the [individual’s] health, and the official also must disregard that risk.” Id.

Even if an official is aware of the risk to the inmate’s health, “he is free from

liability if he ‘responded reasonably to the risk, even if the harm ultimately

was not averted.’” Id. (internal citation omitted). Negligence cannot support

a claim of deliberate indifference. Estelle v. Gamble, 429 U.S. 97, 105–06

(1976); Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011).

3.1 PLAINTIFF’S CITED CASES IN OPPOSITION TO A

FINDING OF QUALIFIED IMMUNITY

In support of its argument that qualified immunity should not be

afforded to Defendants, Plaintiff proffers several cases it considers

analogous. ECF No. 15 at 5–7. It first discusses Paine v. Cason, 678 F.3d 500

(7th Cir. 2012). There, police arrested an individual at Midway Airport, then

released her from their custody over seven miles away in a dangerous and

unfamiliar-to-her neighborhood just before nightfall. Paine, 678 F.3d at 503–

04. The individual had been acting erratically, both before and while in

custody, as a result of then-untreated bipolar disorder, but the police

ignored those who thought she needed mental health care and instead

concluded that she was either merely being difficult or was on drugs. Id. at

504. In any event, police left her in a vulnerable state in a high-crime area.

Five hours after being left alone in this confused state in a dangerous

neighborhood, she was raped at knifepoint and subsequently suffered

severe brain damage after having either been pushed or thrown out of a

seventh-story window. Id. at 506. Importantly, it was undisputed in Paine

that the individual was in police custody prior to her release later in the

evening, and the Seventh Circuit was forced to assume based on the record

that the police were aware of her mental instability at the time they did so.

Id. at 510.

The court in Paine, addressing the case only in the context of a

qualified-immunity appeal, wrote that the police “not only created the extra

risk by moving [her] but were also aware of the crime problem in and near

the [area]—and, we must assume, aware that [she] was mentally unstable

and unable to protect herself—did nothing to mitigate that risk.” Id. The

Seventh Circuit analogized the officers’ conduct to having “released her

into the lions’ den” at the zoo. Id. The court confirmed that several of its

prior decisions held that “people propelled into danger by public

employees have a good claim under the Constitution.” Id.

Plaintiff further cites Armijo v. Wagon Mound Public Schools, 159 F.3d

1253 (10th Cir. 1998). ECF No. 15 at 6. There, school officials sent a 16-year-

old special education student with violent tendencies and known

psychological problems home early despite knowing that his parents

would not be home. Armijo, 159 F.3d at 1256–57. The student had previously

told a school aide that he might just be better off dead and stated that he

was just going to shoot himself. Id. at 1256. The school aide, as well as the

school counselor, knew that the student had access to firearms and could

make good on this warning. Id. Nevertheless, and in violation of the school

disciplinary policy, the school sent the student home following an incident

and failed to notify the student’s parents about his removal from school. Id.

at 1257. The school counselor dropped the student off at his otherwise

unoccupied home, and the student was later found deceased by suicide in

his bedroom. Id.

In Armijo, like in Paine, the court addressed only the issue of qualified

immunity. Id. at 1262 (“[W]e must determine whether the district court was

correct in determining that danger creation jurisprudence was clearly

established as a matter of law at the time of the conduct here at issue.”). The

court concurred with the lower court’s conclusion that “the law was clearly

established” on that issue. Id. The court noted that part of a plaintiff’s

burden in a state-created danger case was to show that “the charged state

entity and the charged individual defendant actors created the danger or

increased the plaintiff’s vulnerability to the danger in some way.” Id. at

1263. The court there concluded that the record was sufficient to raise

factual inferences that the school employees put the student at “substantial

risk of serious, immediate and proximate harm by suspending him from

school, which caused him to become distraught and to threaten violence,

and then taking him to his home and leaving him alone with access to

firearms,” that they had “some knowledge” that could support an inference

that the student was suicidal, unable to care for himself, and home alone,

and that by taking this action, “knowing of [the student’s] vulnerability and

risks of being left alone at home,” the school employees acted recklessly in

conscious disregard of the risk of suicide. Id. at 1264. The court accordingly

concluded that the school employees were “not entitled to qualified

immunity on Plaintiffs’ danger creation theory claims.” Id. at 1265.

3.2 DEFENDANTS’ CITED CASES IN SUPPORT OF A

FINDING OF QUALIFIED IMMUNITY

Defendants additionally proffer several cases in support of their

claim of qualified immunity. First, they cite Perez v. Town of Cicero, No. 06-

C-4981, 2011 U.S. Dist. LEXIS 113412 (N.D. Ill. Sept. 30, 2011). There, police

responded to a call regarding a domestic disturbance at the home of the

individual at issue. Id. at *2. By the time they arrived, the situation had

calmed and there were no signs of violence. Although the individual was

acting odd and as if he were not “in control of himself,” and although police

had on a previous occasion responded to a call from the residence at which

time the individual told an officer he wanted to shoot himself, he on this

occasion made no mention of suicide and did not appear to be suicidal. Id.

Family members of the individual told the officers that the

individual “needed help” and asked them to call an ambulance, but the

officers did not do so. Id. They did, however, take the individual into

custody on suspicion of being wanted for a crime unrelated to the domestic

disturbance. Id. This suspicion was mistaken, however, and the individual

was released only moments later. Id. The officers had no communication or

interaction with him thereafter. Id. Later that day, following his release from

custody, the individual died in an incident that was later determined to be

a suicide. Id. The court granted summary judgment for the officers, writing

that no reasonable jury could find that the offers were deliberately

indifferent as required for a state-created danger claim because the

“undisputed facts show that Officer Perez was not subjectively aware of the

risk that [the individual] would commit suicide upon his release from

custody.” Id. at *13–14 (emphasis added).

Defendants also rely on Martin v. Shawano-Gresham School District,

295 F.3d 701 (7th Cir. 2002). There, a thirteen-year-old student was

suspended from school for possessing cigarettes. Martin, 295 F.3d at 704.

The student reacted poorly to having been discovered, crying persistently

despite being reassured by the assistant principal that she was generally a

“good kid[] in school” and that she was not in “a lot of trouble.” Id. The

assistant principal learned that the student’s parents were both working,

and was therefore not able to communicate the suspension to them during

the school day. Id.

When the bell rang, signaling the end of the school day, the assistant

principal asked the student if she needed to take the bus home, and the

student responded that she did. Id. at 705. The assistant principal asked her

if she was “sure that she did not want him to contact her mother.” Id. Still

crying, the student repeated that she would take the bus, and she left. Id.

Following her departure, the assistant principal left a voicemail on her

parents’ home machine notifying them of the suspension. Id. They would

not receive the voicemail until after they arrived home from work, however,

and shortly after arriving home from school, the student committed suicide.

Id. The court concluded that the “defendants did not create or increase the

risk that [the student] would commit suicide, and therefore they did not

have an affirmative obligation to protect [her] after school hours.” Id. at 710.

Defendants additionally cite Collignon v. Milwaukee County, 163 F.3d

982 (7th Cir. 1998). There, the individual at issue suffered from

schizophrenia and had spent time on both an in-patient and an involuntary

commitment basis at the Milwaukee County Mental Health Center

(“MCMHC”), during which time he attempted suicide. Collignon, 163 F.3d

at 985. While he improved on medication, he preferred not to take it because

of its side effects. His failure to adhere to his medication regimen

deteriorated his mental condition. This eventually led to an arrest by

Milwaukee Police Department, and while in their custody, police placed

him on the jail’s highest level of suicide watch. Id. During his time in jail, he

met with the jail’s psychiatrist, who, knowing of his reluctance to take

medications, prescribed him a non-therapeutic dose of medication which

would have no effect on his schizophrenia. Id. She did so “hoping to

cultivate a willingness on his part to eventually take a therapeutic dosage.”

Id. The individual was eventually released on bail and on the condition that

his mental condition be monitored by Wisconsin Correction Services. Id.

Following his release, the individual returned to stay at his father

and stepmother’s home, but he ran away very shortly thereafter, and his

father and stepmother sought the assistance of the Shorewood Police. Id.

They made the Shorewood Police aware of his mental health history, and

the Shorewood Police were able to locate the individual later that evening.

Id. The police brought him to the Shorewood Police Department,

interviewed him, and released him a few hours later, at which time he

returned home with his father and stepmother. Id. The next morning,

however, the individual again quickly left the house. He went to the

eighteenth floor of a Milwaukee hotel and committed suicide. Id.

The Seventh Circuit concluded that the jail psychiatrist knew that the

individual was seriously mentally ill and posed a risk for suicide, which

“was enough to trigger a constitutional obligation to provide some level of

care and treatment while he was a pre-trial detainee.” Id at 989. Neither the

jail psychiatrist nor any of the other Defendants, however, knew that the

individual “was on the verge of committing suicide.” Id. at 990. The court

noted that an expert testified that “no one could have predicted” that he

was about to attempt suicide. Id.

“Of course a medical professional need not be certain that an

individual is about to commit suicide before a constitutional obligation to

act is triggered,” the court clarified, “but the obligation to take some action

is not triggered absent a ‘substantial risk’ of suicide.” Id. (internal citation

omitted). What was critical was that the plaintiffs there had not

demonstrated “a subjective awareness of a substantial risk of imminent

suicide” on the part of the defendants. Id.

3.3 ANALYSIS

Like those courts that have addressed the issue before, this Court

concludes that the state-created danger law cited by Plaintiff is clearly

established. The contours of that right are “sufficiently clear.” Ashcroft, 563

U.S. at 741. In attempting to convince the Court as to “whether a state-

created danger claim alleges the violation of a clearly established right,”

Plaintiff was not obligated to demonstrate “precise factual symmetry

between the precedent(s) relied upon and the facts at hand.” Vaughn, 2014

U.S. Dist. LEXIS 107952, at *11. But that is not the end of the story.

Plaintiff insists that there is a “key difference” between the present

circumstances and the cases cited by Defendants. ECF No. 15 at 7. That key

difference, it argues, is that in those cases, the police did not subjectively

know that the individual with whom they interacted was suicidal. Id. at 7.

Those cases are inapposite, Plaintiff argues, because here, “both Navis and

Kreitzman knew Mitchell was suicidal.” Id.

The Court agrees that in each of the cases cited by Defendants, while

the state employees at issue may have had some indication that the

individual in their charge was in distress or in a vulnerable state, the state

employees did not have actual, subjective knowledge that those individuals

were suicidal or at imminent risk of committing suicide at the time of the

events giving rise to suit. Plaintiff insists that the present circumstances are

different and that qualified immunity is therefore inappropriate.

The complaint asserts that “Navis was made aware of Mitchell’s

condition, that he was a danger to himself and that he was not to be

released” and that “[o]n information and belief, Kreitzman also knew that

Mitchell was a danger to himself and that he was not to be released.” ECF

No. 1 at 3. The record now before the Court, however, demonstrates that

this issue is genuinely disputed. A “genuine” dispute of material fact exists

when “the evidence is such that a reasonable jury could return a verdict for

the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986) (internal citation omitted). “Rule 56(c) . . . provides that summary

judgment ‘shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of law.” Id.

Such is not the case here.

In response to Request for Admission No. 3 (“At the time you

transported Ryan Mitchell from Memorial Hospital, you knew Mitchell was

a danger to himself.”), Defendants wrote “DENY . . . Mitchell’s condition

was stable at the time he was discharged from Memorial Hospital and [] no

observable deterioration of Ryan Mitchell’s condition occurred . . . .” ECF

No. 13-2 at 3. This assertion is supported by a discrete portion of the Patient

Transfer Form which states that “[t]he patient condition has been stabilized

such that, within reasonable medical probability, no material deterioration

of the patient’s condition . . . is likely to result from transfer.” ECF No. 13-3

at 2.

Somewhat confusingly, however, the remainder of the Patient

Transfer Form indicates otherwise. It not only acknowledges the reason for

transfer as “Depression/Suicide” but also states that a potential risk for

transfer was “possible worsening psychiatric symptoms.” Id. at 2–3. The

Patient Transfer Form also indicates that Mitchell’s condition was

apparently severe enough that he was being released from Memorial

Hospital only on the express condition that he be transferred to St. Agnes

“by qualified personnel”—specifically, the “Waupun Police Dept.” Id. at 2.

Indeed, Mitchell signed the Patient Transfer Form indicating his consent to

“be transferred by qualified personnel,” listed there as “police escort.” Id.

at 3.

The Physician’s Final Report applicable to Mitchell, prepared by the

Emergency Department Physician who evaluated him, additionally

indicates that Mitchell was at imminent risk of suicide. It provides that

Mitchell presented with “suicidal ideation,” the onset of which was “just

prior to arrival.” Id. at 4. It provides further that the “degree of symptoms

is severe” and explicitly lists risk factors as consisting of “suicide risk.” Id.

A critical issue for purposes of this analysis is that the record does

not indicate whether Defendants were privy to this information which

provides insight into Mitchell’s mental state. It is not clear whether Officers

Navis or Kreitzman had access to these documents or notice of the contents

thereof prior to their interaction with Mitchell. The record does not indicate

whether Officers Navis or Kreitzman spoke to any of the hospital

employees who dealt with Mitchell prior to his transfer. So little discovery

has been done in this case that the Court has nothing more to draw from

beyond responses to three requests for admission and three pages of

medical documents. To the Court’s knowledge, none of the individuals

who interacted with Mitchell at the hospital have been deposed. Despite

Plaintiff’s requests to do so, neither of the Defendant Officers have been

deposed. ECF No. 16-1 at 12 (email from Plaintiff on April 29, 2022,

requesting to take depositions of Officers Navis, Kreitzman, and Nass); id.

at 6 (email from Plaintiff on May 16, 2022, emphasizing need to depose

Officers Navis, Kreitzman, and Nass to determine “what was said, what

they did and what their state of mind was”); id. at 11 (email response from

Defendant declining request for depositions); id. at 4 (email from Plaintiff

on May 16, 2022, emphasizing need for deposition because Plaintiff did not

know “what hospital staff told Navis,” “what, if anything, they told

Kreitzman,” “how either Navis or Kreitzman interpreted what they were

told,” what hospital staff “told Mitchell,” or what the Defendant Officers

“said to hospital staff at the turnover.”); id. at 1 (email from Plaintiff on May

19, 2022, emphasizing that Defendants Officers’ “knowledge and respective

state of mind are crucial to this issue”).

As a result, Defendants have insisted on a pre-trial qualified

immunity determination but have refused to provide an appropriate record

upon which to make such determination. The parties failed to comply with

the Court’s summary judgment protocols requiring submission of a

stipulated set of agreed upon facts. Consequently, the Court does not have

a sufficient record before it upon which to determine whether this case is

more analogous to those proffered by Plaintiff, or those proffered by

Defendants. See, e.g., Levi v. Adams, No. 07-3304, 2008 U.S. Dist. LEXIS

128461, at *7–8 (C.D. Ill. Sept. 22, 2008) (“More facts are necessary to make

the qualified immunity determination . . . . Accordingly, the Court will

recommend that a conclusive decision on qualified immunity await a

further developed factual record.”); Sain v. Wood, 512 F.3d 886, 892 (7th Cir.

2008) (noting that determination of the qualified immunity issue was

difficult in part due to the “lack of relevant factual development in the

record”); McKinley v. Kondrasky, No. 2:14-cv-00155, 2016 U.S. Dist. LEXIS

64097, at *13–14 (W.D. Penn. May 16, 2016) (“In sum, upon review of the

present record, the Court finds the evidence concerning the officers’

[conduct] to be conflicted but also underdeveloped. Because there are

potential disputes concerning material issues of historical fact, the Court

cannot presently render any ruling on qualified immunity grounds.”);

Guffey v. Wyatt, 18 F.3d 869, 873 (10th Cir. 1994) (court properly denied

summary judgment on qualified immunity claim where defendant’s claim

of qualified immunity was inextricably bound to disputed factual issues);

Ortiz v. City of Chicago, No. 09-cv-2636, 2010 U.S. Dist. LEXIS 10100, at *43

(N.D. Ill. Sept. 22, 2010) (noting that a finding of qualified immunity was

not available at time of summary judgment consideration in part due to a

“murky factual picture”).

Based on the scant record now before the Court, a reasonable juror

could go either way (albeit, rather blindly) as to whether Officers Kreitzman

and Navis had subjective knowledge that Mitchell was at imminent risk of

suicide at the time they allowed him to leave their presence, ostensibly to

drive himself to St. Agnes. On the one hand, they were responding to the

emergency room for the sole purpose of transferring a psychiatric patient

to a facility more equipped to deal with his mental condition, and that

psychiatric patient’s transfer papers expressly indicated “possible

worsening psychiatric symptoms” and a need for “police escort.” ECF No.

13-3 at 3. On the other hand, a different portion of the transfer papers

indicates that the psychiatric patient’s condition was “stabilized” such that

no material deterioration of his condition was likely to occur. Id. at 2.

Importantly, the Court does not read—and does not think that a reasonable

juror would read—that portion of the transfer paperwork as suggesting

that Mitchell was no longer at risk of suicide. Rather, the Court interprets

that language as suggesting that Mitchell had been stabilized to a degree

that a transfer from one facility to another would not, in and of itself, place

him in an even worse position mentally.

4. CONCLUSION

In this instance, the absence of meaningful and detailed discovery

plus the presence of material disputed facts makes the task before the Court

a difficult one. The Court concludes that it presently has insufficient

information before it to make an informed determination as to whether

qualified immunity is appropriate in this case. It accordingly will not so

determine at this time. See McNeal v. Bruno, 2012 U.S. Dist. LEXIS 56769, at

*49 (N.D. Ill. Apr. 24, 2012) (acknowledging that there exist cases involving

factually intensive questions such that a qualified immunity determination

cannot be made before trial); Chelios v. Heavener, 520 F.3d 678, 692 (7th Cir.

2008) (concluding that, due to remaining factual disputes, a trial would be

required before a determination could be made as to whether defendant

was entitled to qualified immunity).

Accordingly,

IT IS ORDERED that Defendants’ motion to vacate trial date and

stay all proceedings, ECF No. 34, be and the same is hereby DENIED.

Dated at Milwaukee, Wisconsin, this 25th day of January, 2023.

vn

POY fee

J. R. Stathy ueller

U.SNDistrict Judge

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