Flemming, Jayvon v. Bohnsack

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

JAYVON R. FLEMMING,

Plaintiff,

v. OPINION and ORDER

JONATHAN BOHNSACK, 19-cv-698-jdp

WILLIAM CONROY, and SEAN COUTLEY,

Defendants.

Pro se plaintiff Jayvon R. Flemming filed this action under 42 U.S.C. § 1983,

contending that prison staff at Columbia Correctional Institution failed to protect him from

attempting suicide and engaging in self-harm. Defendants’ motion for summary judgment is

before the court. Dkt. 17. Defendants initially moved for summary judgment as to Flemming’s

claims against all defendants. But defendants later withdrew their motion as to defendants

Sean Coutley and William Conroy, conceding that there are genuine and material factual

disputes regarding Flemming’s claims against those two defendants. Dkt. 29, at 2.

As for Flemming’s claim against Jonathan Bohnsack, I will assume for purposes of

summary judgment that the events occurred as Flemming says they did. See Scott v. Harris, 550

U.S. 372, 378 (2007) (“[C]ourts are required to view the facts and draw reasonable inferences

in the light most favorable to the party opposing the summary judgment motion.” (internal

quotation marks and alterations omitted)). Based on Flemming’s account of events, a

reasonable jury could conclude that Bohnsack knew that Flemming might imminently cut

himself, and that Bohnsack failed to take reasonable measures to prevent him from doing so.

Therefore, I will deny the motion for summary judgment.

ANALYSIS

Flemming has a history of self-harm and suicide attempts. He had been placed on

observation status multiple times and had been taken to the hospital for self-harm incidents

prior to the August 10, 2018 incident in this case. Flemming says that defendant Bohnsack

knew that he had a history of harming and cutting himself. (Bohnsack argues that Flemming

has no personal knowledge about whether Bohnsack knew about Flemming’s history self-harm,

but Bohnsack does not deny knowing about Flemming’s history. Flemming could testify that

Bohnsack had seen him cut himself and had seen him on observation status in the past.)

According to Flemming, he told Officers Bohnsack and Coutley twice that he needed help.

First, at around 10:15 a.m., Flemming told them that he was feeling suicidal, had thoughts of

harming himself, and needed to be placed on observation. Bohnsack said that he would notify

the psychological services unit and the unit sergeant. At approximately 11:00 a.m., Flemming

told Bohnsack and Coutley again that he was having thoughts of cutting himself, that he was

going to cut himself, and that he needed to be placed on observation. Bohnsack told Flemming

that they had notified the sergeant and the psychological services unit and that there was

nothing else that they could do. Flemming stated again that he had a plan to cut himself, and

Bohnsack responded, “Will do.” Bohnsack then left. Approximately one hour later, Flemming

attempted to kill himself by cutting a vein in his arm. He lost a lot of blood and was taken to

the health services unit for treatment.

To prevail on his claim, Flemming must show three things: (1) at the time he spoke to

Bohnsack, there was a strong likelihood that he would seriously harm himself in the near future;

(2) Bohnsack knew of that strong likelihood; and (3) Bohnsack consciously failed to take

reasonable measures to prevent Flemming from harming himself. See Lisle v. Welborn, 933 F.3d

705, 716–17 (7th Cir. 2019); Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650 (7th Cir. 2012).

Defendants argued in their opening brief that Flemming cannot show that he was subjected to

a risk of harm, because medical records show that Flemming’s cuts were not serious. But

defendants withdrew that argument in their reply brief after Flemming submitted evidence

showing that he lost a large amount of blood and vomited up a staple. Dkt. 29, at 1.

Bohnsack’s other argument is that Flemming has not presented evidence that Bohnsack

knew of a strong likelihood that Flemming would seriously harm himself in the near future.

Bohnsack cites Johnson v. Garant, 786 F. App’x 609 (7th Cir. 2019) in support his argument.

In Johnson, correctional officers failed to act when the prisoner told them that “he felt suicidal

and wanted to speak to a crisis counselor.” Id. at 610. The court of appeals held that the

prisoner’s statements failed to create a genuine issue of material fact on the question whether

the defendants were aware of a risk of harm because the statements “lacked any indication that

[the prisoner] may have ‘imminently’ sought to have harmed himself.” Id. To meet that

standard, a prisoner must do “more than tell guards that he planned to commit suicide.” Id.

Bohnsack argues that Flemming’s statements to him are indistinguishable from those

in Johnson, and that Flemming’s statements do not meet the imminence standard required

under Johnson. I would agree with Bohnsack if I was considering only Flemming’s first

statements to Bohnsack, in which he stated that he was feeling suicidal, had thoughts of

harming himself, and needed to be placed on observation. Bohnsack would not know, from

those statements alone, that there was a significant likelihood that Flemming would

imminently harm himself. But Flemming asked Bohnsack for help again, less than an hour

later. The second time, Flemming told Bohnsack that he had a plan to cut himself and that he

was going to cut himself if he was not placed on observation. In addition, Flemming states that

Bohnsack knew that Flemming had harmed himself in the past. A reasonably jury could find

that these additional facts put Bohnsack on notice that Flemming was on the verge of harming

himself.

As I sated in the screening order, Flemming cannot succeed on a claim against Bohnsack

if Bohnsack notified the psychological services unit and the unit sergeant about Flemming’s

situation, and if there was nothing more that Bohnsack could have done to help Flemming. See

Miller v. Harbaugh, 698 F.3d 956, 962 (7th Cir. 2012) (“[D]efendants cannot be [held liable

under the Eighth Amendment] if the remedial step was not within their power.”). But Bohnsack

did not submit any evidence showing that he notified anyone about Flemming’s situation or

that he took any steps to help Flemming.

I also conclude that Bohnsack is not entitled to qualified immunity. See Locke v. Haessig,

788 F.3d 662, 666 (7th Cir. 2015) (“The defense of qualified immunity protects government

officials from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.”). It was clearly established long before August 2018 that a correctional officer who

knew that an inmate may imminently seek to take his own life or engage in serious self-harm

must take reasonable steps to prevent the inmate from performing the act. See Estate of Clark v.

Walker, 865 F.3d 544, 553 (7th Cir. 2017); Pittman ex rel. Hamilton v. Cty. of Madison, Ill., 746

F.3d 766, 776 (7th Cir. 2014); Sanville v. McCaughtry, 266 F.3d 724, 737 (7th Cir. 2001).

Because Flemming has submitted evidence from which a jury could conclude that Bohnsack

failed to take reasonable measures to help Flemming despite knowing that Flemming had a

plan to harm himself in the near future, Bohnsack is not entitled to qualified immunity.

ORDER

IT IS ORDERED that defendants’ motion for summary judgment, Dkt. 17, is DENIED.

Entered December 23, 2020.

BY THE COURT:

/s/

________________________________________

JAMES D. PETERSON

District Judge