Victor Robinson v. Jolinda Waterman ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20‐1370
VICTOR ROBINSON,
Plaintiff‐Appellant,
v.
JOLINDA WATERMAN, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 18‐CV‐01117‐JPS — J.P. Stadtmueller, Judge.
____________________
SUBMITTED MAY 19, 2021 — DECIDED JUNE 9, 2021
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Before BAUER, KANNE, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Victor Robinson, a Wisconsin inmate,
was given medication belonging to a different inmate, fell ill,
and passed out, suffering a concussion in the process. He
brought this deliberate‐indifference suit against the prison of‐
ficials who he believed were responsible for the mix up with
the medication. When Robinson failed to respond to defend‐
ants’ motion for summary judgment or dispute their version
of the events, the district court entered summary judgment
2 No. 20‐1370
against him. Because no reasonable jury could conclude that
the defendants were deliberately indifferent to a serious med‐
ical risk, we affirm.
While housed at the Wisconsin Secure Program Facility,
Robinson was offered new medication. At first he balked; un‐
aware of any prescription, he questioned the officer who gave
it to him and even followed up with the health‐services man‐
ager and others in the health‐services unit. Despite learning
that there was no record of any new prescription for him, Rob‐
inson nevertheless relented and began taking the medication.
A few days later, Robinson experienced dizziness and
blurred vision, and then passed out. His fall apparently
caused a concussion, and he was sent to the health‐services
unit, where a nurse named Angela Drone (whom he misiden‐
tified as “Nurse Anderson” in his complaint) advised him to
keep taking the medication. Robinson then was sent to an out‐
side hospital, where doctors surmised that he might be aller‐
gic to the medication. When Robinson returned to the prison,
he refused the medication. Insisting that the prescription
must not have been intended for him, he asked a nurse at
health services to look into the matter. She confirmed that the
prescription was meant for a different inmate. He was not of‐
fered the medication again.
Robinson sued several prison officials, including the
health‐services manager, “John” and “Jane Doe” nurses in‐
volved in his care, and officers who distributed the medica‐
tion to him. The district court screened the complaint and al‐
lowed Robinson to proceed on three claims: (1) that Nurse
Anderson, whom the court added as a defendant, was delib‐
erately indifferent to a serious medical risk by directing him
to take the medication after he had a reaction to it, (2) that the
No. 20‐1370 3
health‐services manager failed to intervene, in violation of his
constitutional rights, and (3) that the nurses and officers re‐
sponsible for giving the medication to him were negligent un‐
der Wisconsin law.
The defendants eventually moved for summary judgment.
Robinson did not file a response, as the district court had re‐
quired in its scheduling order. More time passed, and—20
days after his deadline for filing a brief opposing summary
judgment—he filed a brief to support his own request for
summary judgment, supplemented by a proposed statement
of facts. He did not respond to the defendants’ statement of
facts.
The district court entered summary judgment for the de‐
fendants. Because Robinson did not respond to the defend‐
ants’ summary judgment motion, the court concluded that
Eastern District of Wisconsin Local Rule 7(d) authorized
granting the motion. Alternatively, the court observed, Rob‐
inson’s failure to respond to the defendants’ statement of facts
entitled it under Local Rule 56(b)(4) to deem the facts admit‐
ted and adequate to support summary judgment.
Robinson moved to alter or amend the judgment under
Federal Rule of Civil Procedure 59(e), arguing that the court
should have construed his belated filings—i.e., his brief in
support of summary judgment and his proposed statement of
facts—as a response to the defendants’ motion. He attached a
copy of the response that he would have filed. The district
court denied the motion, explaining that Robinson had not
pointed to a legal or factual error or to new evidence that pre‐
cluded a judgment for the defendants.
4 No. 20‐1370
On appeal, Robinson principally challenges the entry of
summary judgment for the defendants based on his failure to
respond. The court, he contends, should have been more leni‐
ent with him, given his pro se status, and construed his later
filings as a response sufficient to withstand summary judg‐
ment.
We note at the outset that the district court was wrong to
say that Robinson’s failure to oppose the motion was “suffi‐
cient grounds, standing alone, to grant the motion.” Regard‐
less of the local rules, a failure to file a timely response to such
a motion is not a basis for automatically granting summary
judgment as some kind of sanction. See Raymond v. Ameritech
Corp., 442 F.3d 600, 608 (7th Cir. 2006) (citing cases); see also
Marcure v. Lynn, 992 F.3d 625, 631 (7th Cir. 2021) (extending
rule to analogous context of Rule 12(b)(6)). Even where a non‐
movant fails to respond to a motion for summary judgment,
the movant “still had to show that summary judgment was
proper given the undisputed facts,” Yancick v. Hanna Steel
Corp., 653 F.3d 532, 543 (7th Cir. 2011), with those facts taken
as usual in the light most favorable to the nonmovant.
Even so, summary judgment for the defendants was
proper. The district court permissibly applied Local Rule
56(b)(4) to deem the defendants’ facts unopposed, regardless
of Robinson’s later filings. See Flint v. City of Belvidere, 791
F.3d 764, 766–67 (7th Cir. 2015). And based on the defendants’
statement of facts, no reasonable jury could conclude that
Nurse Anderson (whom Robinson mistook for Nurse Drone)
was deliberately indifferent to a serious medical risk, as she
was not involved in his medical care. See Walker v. Wexford
Health Sources, Inc., 940 F.3d 954, 965 (7th Cir. 2019). Nor could
a jury conclude that the health‐services manager violated his
No. 20‐1370 5
constitutional rights by failing to intervene, where Robinson
submitted nothing to suggest that an underlying constitu‐
tional violation had occurred. See Gill v. City of Milwaukee, 850
F.3d 335, 342 (7th Cir. 2017). As for Robinson’s state‐law neg‐
ligence claims, those were barred by Wisconsin’s no‐
tice‐of‐claim statute, see Wis. Stat. § 893.82(3), because his no‐
tice of claim—which referred to the defendants only as “offic‐
ers” and “John” and “Jane Doe” nurses—failed to comply
strictly with the statute by using the defendants’ correct
names. See id. § 893.82(2m); Est. of Hopgood v. Boyd, 825
N.W.2d 273, 278 n.11 (Wis. 2013).
Robinson next challenges the denial of his Rule 59(e) mo‐
tion on the ground that the court erred by ignoring the fact
that he supplemented his motion with a copy of the response
brief he intended to file in opposition to the motion for sum‐
mary judgment. But the court did nothing wrong. A motion
under Rule 59(e) may be granted only if there has been a man‐
ifest error of fact or law, or if there is newly discovered evi‐
dence that was not previously available. Cincinnati Life Ins. Co.
v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013). The district court
rightly determined that Robinson did not make either show‐
ing. A Rule 59(e) motion is not meant to allow a party to undo
errors made in the district court before the judgment. See A&C
Construction & Installation, Co. WLL v. Zurich Am. Ins. Co., 963
F.3d 705, 709 (7th Cir. 2020).
We have considered Robinson’s other arguments, and
none has merit.
AFFIRMED