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Gay v. Hammersley

March 4, 2009

ANTHONY GAY, B62251, PLAINTIFF,
v.
KRISTIN KWASNIEWSKI HAMMERSLEY, DEFENDANT.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM AND ORDER

I. Introduction

Now before the Court is the Report and Recommendation ("R&R") (Doc. 47) issued pursuant to 28 U.S.C. § 636(b)(1)(B) by Magistrate Judge Proud, recommending that Plaintiff's Motion for Summary Judgment (Doc. 31) be denied and recommending that Defendant's Motion for Summary Judgment (Doc. 36) be granted.

Plaintiff Anthony Gay, an inmate in the custody of IDOC, brings this pro se complaint pursuant to 42 U.S.C. § 1983 against Kristin Kwasniewski Hammersley, claiming that she was deliberately indifferent to his serious medical needs. Plaintiff originally filed his suit in state court and the case was removed. On preliminary review, the Court dismissed Plaintiff's state law claims, and dismissed all claims as to Defendant Grace Hart (Doc. 28). The only claim remaining is his claim for deliberate indifference to his serious medical needs against Defendant Hammersley.

Pursuant to 28 U.S.C. § 636(b)(1)(B), Magistrate Judge Proud submitted a R&R on February 4, 2009 (Doc. 47). The R&R addresses 1) Plaintiff's motion for summary judgment (Doc. 31), which Judge Proud recommends should be denied; and 2) Defendant's motion for summary judgment (Doc. 36), which Judge Proud recommends should be granted. The R&R was sent to the Parties, with a notice informing them of their right to appeal by way of filing "objections" within the ten days of service of the R&R.*fn1 In accordance with the notice, Plaintiff has filed his Objections (Doc 57). Because timely objections have been filed, this Court must undertake de novo review of the objections-to portions of the R&R. 28 U.S.C. § 636(b)(1)(B); FED.R.CIV.P. 72(b); SOUTHERN DISTRICT OF ILLINOIS LOCAL RULE 73.1(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject, or modify the recommended decision." Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues for which specific objection has been made. Id. However, the Court need not conduct a de novo review of the findings of the R&R for which no objections have been made. Thomas v. Arn, 474 U.S. 140, 149-52 (1985). Instead, the Court can simply adopt these findings.

II. Facts

Plaintiff brings this claim pursuant to 42 U.S.C. § 1983 against Defendant for deliberate indifference to his serious medical needs. Plaintiff is an inmate at the Tamms Supermax Correctional Center. According to a partial transcript of Plaintiff's deposition, Plaintiff testified he did not engage in "cutting" before he came to prison. His original sentence was seven years, but because of numerous staff assaults he has amassed additional sentencing totals. Plaintiff was initially housed with an inmate who cut himself and after Plaintiff saw how Kelly Rhodes, the supervisor of clinical psychologists, showed the inmate care and compassion, Plaintiff started cutting himself in order to receive the same care and compassion. (Doc. 36, Depo. Transcript, pp. 20-21). Plaintiff stated that he became infatuated with Rhodes and would cut himself to get her attention.*fn2 (Id. at 22:2-9). Plaintiff testified that at the time of the incident complained about, he had gotten past his feelings for Rhodes. (Id. at 22:19-25).

The allegations in Plaintiff's complaint center around the events of February 22 -23. On February 21, Plaintiff inflicted a wound on his left leg and, as a result, was placed on suicide watch. (Doc. 32, p. 1 and Doc. 36, p. 1). Medical records indicate that Plaintiff was ordered onto suicide watch by Rhodes on February 21, 2007, at 4:30 a.m. after Plaintiff inflicted a 3 inch cut on his leg. (Doc. 36, Ex. A -7). Rhodes noted at 1:35 p.m. on February 21, 2007, that Plaintiff was not seriously mental ill and constant attention reinforces his behavior. (Id. at A-13).

On February 22, at approximately 9:35 a.m., Plaintiff stated that he was ready to return to his cell and Defendant took him off of suicide watch. (Doc. 36, Depo. Transcript, pp. 14:13 - 15:15; Doc. 36, Ex. A-20, Ex. A-21). Plaintiff did not complain about being taken off suicide watch and, in fact, asked to be returned to the housing unit. (Id.). Defendant noted in Plaintiff's medical records that he was calm, cooperative, appropriate, alert and oriented. She further noted that he was not agitated, anxious, depressed, psychotic or delusional. Defendant found that there was no need to continue the suicide watch and noted that his self-harming was calculative and manipulative, used to address non-medical issues when he is mad at staff. (Doc. 36, Ex. A-20-21). He was returned to the housing unit and his property was returned to him. (Doc. 36, Depo. Transcript, p. 15:1-15).

The next morning, February 23, 2007, Plaintiff told a lieutenant that he was thinking about hurting himself and that he wanted to see mental health. (Doc. 36, Depo. Transcript, p. 15:19-23). Defendant Hammersley responded. Plaintiff told Defendant that he was going to cut himself and wanted to go on suicide watch. (Doc. 36, Depo. Transcript, p. 16; Doc. 36, Ex. A-23). Plaintiff admits that the decision whether to put him on watch or in restraints was generally made on the assessment of the mental health professional and his feedback. (Doc. 36, Depo. Transcript, p. 17:5 -18:4). When Defendant met with Plaintiff at his cell, he was not actively cutting but was unreceptive to Defendant. (Doc. 36, Depo. Transcript, p. 18; Doc. 36, Ex. A-23-24). Defendant noted in Plaintiff's medical records that Plaintiff was focused on talking with someone about his feelings for Rhodes and complained about not having a mental health "multipurpose room appointment" scheduled for him. (Doc. 36, Ex. A-23-24). Defendant noted that Plaintiff had been instructed to submit a letter regarding his request for a mental health "multipurpose room appointment", but he had instead sent a letter professing his "love and obsession" with Dr. Rhodes. (Id.). Defendant noted that his letter demonstrated that Plaintiff was "not ready or willing to identify and/or work on issues in therapy." (Id.). Defendant also noted that Plaintiff lost interest in the issue and began complaining about housing, threatening to harm himself if he was not moved. (Id.). Medical records indicate that Defendant found it "counter-therapeutic to address his non-mental health complaints with crisis care placement. Any acting out behavior will be addressed at that time." (Id. at A-26).

About fifteen to twenty minutes after Defendant left Plaintiff's cell, Plaintiff began cutting on himself. (Doc. 36, Depo. Transcript, p. 19). Plaintiff stated he was upset because he wanted to talk about his feelings for Rhodes but no one would talk to him about it. (Id. at pp. 20-22). Medical records indicate that Plaintiff had cut himself because he didn't want to live on B-6 and he felt the staff was retaliating against him by putting him back there. (Doc. 36, Ex. A-27). Medical records indicate he reopened a scarred area on his arm. (Id. at A-31). Defendant noted in his medical records that Plaintiff was demanding and unreceptive to intervention, although he did not appear to be anxious or depressed, nor psychotic or delusional. (Id. at A-28). He was placed on suicide watch. He was moved to close supervision by Rocky Peppers, a licensed clinical social worker, on February 25, 2007, at 8:15 a.m. . (Id. at 41). Close supervision was terminated on February 26, 2007, at 9:15 a.m. Rocky Peppers noted that "Mr. Gay's recent self-harm was not due to a mental illness, but rather for secondary gain." (Id. at 47-48).

In support of Defendant's motion for summary judgment and in response to Plaintiff's motion to summary judgment, Defendant has attached an affidavit. (See Doc. 36, Ex. A). Defendant states that she is a licensed clinical social worker employed, at the time of this incident, at the Tamms Maximum Correctional Center. (Id.). Defendant states that Plaintiff has a long history of self-harm which Defendant describes as calculated and manipulative; Defendant uses self-harm to address non-medical issues. (Id. at ¶4). Plaintiff suffers from two personality disorders, antisocial personality disorder and narcissistic personality disorder, and his medical records indicate an Axis I diagnosis of sexual sadism. (Id. at ¶6; Doc. 36, Ex. A-3).

Plaintiff's complaint alleges that Defendant Hammersley was deliberately indifferent to his serious medical needs when she removed him from suicide watch on February 22, 2007, and refused his request to place him back on watch the next day. Plaintiff filed a motion for summary judgment on August 14, 2008 (Doc. 31). Defendant also filed a motion for summary judgment, which is responsive to Plaintiff's motion (Doc. 36). Plaintiff was granted an extension of time, up to January 30, 2009, in which to respond to Defendant's motion (Doc. 45). Judge Proud filed his R&R on February 4, 2009. On February 9, 2009, Plaintiff filed a response to ...


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