Berry v. Lutsey et al

Filing 118

ORDER signed by Chief Judge William C. Griesbach on 7/18/18. Defendants' 88 95 motions for summary judgment are GRANTED. Berry's 111 motion to amend his proposed filings of fact is DENIED. This action is DISMISSED, and the Clerk is directed to enter judgment for the defendants. (cc: all counsel and via US Mail to Christopher Berry)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

CHRISTOPHER BERRY,
Plaintiff,
v.

Case No. 17-C-551

JEAN LUTSEY, et al.,
Defendants.

DECISION AND ORDER GRANTING SUMMARY JUDGMENT

Plaintiff Christopher Berry, an inmate currently serving a state prison sentence at Green Bay
Correctional Institution (GBCI) and representing himself, filed this action under 42 U.S.C. § 1983,
alleging that ten defendants were deliberately indifferent to his serious medical needs by
discontinuing several medical restrictions that he had received at a previous institution. The case is
before the court on a motion for summary judgment by Defendants Lisa Allen, Mary Alsteen
Cassandra Baier, Scott Eckstein, James LaBelle, Kathy Lemens, Jean Lutsey, Mary Sauvey, and
Hannah Utter (collective the “State Defendants”) (ECF No. 95), as well as a motion for summary
judgment by Defendant Susan Peters, a non-state employee who was working at GBCI under a
contract. (ECF No. 88). Also before the court is Berry’s motion for leave to amend his proposed
findings of fact. ECF No. 111. For the reasons stated below, the defendants’ motions for summary
judgment will be granted, and Berry’s motion to amend will be denied.
BACKGROUND
Both Peters and the State Defendants submitted proposed findings of fact in support of their
motions for summary judgment, as required by Civil Local Rule 56(b)(1)(C). ECF Nos. 90, 98.

Berry has submitted his own statement of proposed findings of fact (ECF No. 105), as well as a
motion to amend those proposed findings (ECF No. 111), his own declaration (ECF No. 112), and
additional supplemental material regarding the treatment he received in spring 2018 (ECF Nos. 115,
116). However, he has not responded directly to the proposed findings of fact filed be either Peters
or the State Defendants, both of whom provided him with proper notice and warning regarding the
consequences of failing to respond to their proposed findings, as required by the local rules. Civil
L.R. 56(a)(1)(A) (E.D. Wis.). The court will thus treat the defendants’ proposed findings of fact as
undisputed. Civil L.R. (b)(4); see also Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir.
1994) (“We have . . . repeatedly upheld the strict enforcement of [local] rules, sustaining the entry
of summary judgment when the non-movant has failed to submit a factual statement in the form
called for by the pertinent rule and thereby conceded the movant’s version of the facts.”).
Additionally, Berry’s motion to amend his proposed findings of fact will be denied, as he seeks to
introduce evidence regarding his recent treatment, whereas his claims primarily focus on the
defendants’ treatment decisions during 2015 and 2016.
Berry has been housed at GBCI since November 18, 2015. State Defs.’ Proposed Findings
of Fact (DPFOF) ¶ 1, ECF No. 98. Defendant Dr. Mary Sauvey worked as an Advanced Care
Provider (ACP)1 at GBCI from prior to Berry’s arrival until April 26, 2016. Id. ¶ 7. Defendant Dr.
Lisa Allen was an ACP between June 2016 and January 2017. Id. ¶ 67. At all times relevant to this
matter, Defendant Susan Peters was an advanced practice nurse prescriber (APNP) working at GBCI
on a locus tenens assignment pursuant to a contract the Wisconsin Department of Corrections had

1

The defendants use the term Advanced Care Provider to refer generally to doctors and
advanced practice nurse prescribers. DPFOF ¶ 3 n.1.
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with Maxim Physician Resources, LLC. Peters Proposed Findings of Fact (Peters PFOF) ¶ 4, ECF
No. 90. Defendant Jean Lutsey has been the Health Services Manager at GBCI since 2015.
DPFOF ¶ 15. GBCI also maintains a Special Needs Committee (SNC), which consists of Lutsey,
a security liaison, and Defendants Mary Alsteen, Cassandra Baier, Kathy Lemens, and Hannah Utter.
Id. ¶ 55. Defendant Scott Eckstein is the warden of GBCI. See id. ¶ 72. Finally, Defendant James
LaBelle has worked as a Regional Nursing Coordinator for the Bureau of Health Services since
2012. Id. ¶ 37.
Berry’s claims primarily focus on the defendants’ decisions regarding certain medical
restrictions that he has had put in place and removed at various times. At GBCI, medical restrictions
are evaluated on a case-by-case basis, and any restrictions implemented for an inmate arriving from
a different institution are not necessarily continued. Id. ¶ 54. When an inmate arrives from another
institution, GBCI keeps his restrictions in place until an ACP can reevaluate him. Id. ¶ 56. GBCI
does not issue indefinite restrictions, so any restrictions implemented for an inmate last no longer
than a year and are subject to annual renewal. Id. Inmates often ask both their ACP and the SNC
to consider implementing restrictions, and the SNC considers its own guidelines and any input from
ACPs when making a decision regarding an inmate’s restriction requests. Id. ¶ 57.
When Berry arrived at GBCI in November 2015, he had medical restrictions requiring that
he receive a lower bunk, back brace, hot and cold treatments, an extra mattress and pillow, and
supportive Velcro shoes. Id. ¶ 5. Berry’s principal claim seems to be that the defendants violated
his constitutional rights by failing to maintain the same medical restrictions when he was transferred
to GBCI. Berry failed to mention these restrictions or request their continuation during an initial
intake appointment with Dr. Sauvey on January 11, 2016, and several apparently lapsed on February
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18, 2016. Id. ¶¶ 10–11, 13. At a subsequent appointment on March 7, 2016, Dr. Sauvey found no
medical reason to continue restrictions for Velcro shoes and extra toilet paper, but she did continue
his back brace restriction and a medication; she also ordered that he be reexamined in 6 months.
Id. ¶ 14. Berry demanded permanent reinstatement of all previously ordered restrictions during a
September 2, 2016 examination by Dr. Allen, who ordered extra pillow, low bunk, and gel insert
restrictions and indicated that they should be reevaluated annually. Id. ¶¶ 67–68. APNP Peters
began her assignment at Green Bay in September 2016, and first entered an order related to Berry’s
treatment in January 2017. Dr. Peters continued treating him throughout the year. Peters PFOF
¶¶ 24, 25, 39, 53, 66–69, 79, 82, 106.
Berry also believed that Lutsey, Alsteen, Baier, Utter, and Lemens—in their capacities as
members of the SNC—should have overriden his ACPs’ decisions and implemented the restrictions
he sought. DPFOF ¶ 70. After Berry’s transfer to GBCI, Alsteen, Baier, Utter, and Lemens
reviewed numerous Health Service Request (HSR) forms filed by him, and they examined him on
several occasions. Id. ¶¶ 59–66. Between November 2015 and January 2018, Berry’s patient
request file at GBCI accumulated 499 pages, and his medical records accumulated 350 pages.
Id. ¶¶ 77–78. Berry also filed written communications and complaints reviewed on different
occasions by Warden Eckstein and LaBelle. Id. ¶¶ 40–43, 72–73. Additional factual information
will be set forth as necessary in the analysis that follows.
LEGAL STANDARD
Summary judgment is appropriate when the moving party shows 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.
Fed. R. Civ. P. 56(a). All reasonable inferences are construed in favor of the nonmoving party.
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Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party opposing the motion for
summary judgment must “submit evidentiary materials that set forth specific facts showing that there
is a genuine issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (quoted
source and internal quotation marks omitted). “The nonmoving party must do more than simply
show that there is some metaphysical doubt as to the material facts.” Id. Summary judgment is
properly entered against a party “who fails to make a showing sufficient to establish the existence
of an element essential to the party’s case, and on which that party will bear the burden of proof at
trial.” Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012) (internal quotation
mark omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
ANALYSIS
A plaintiff may prevail on a claim for relief under 42 U.S.C. § 1983 by showing that he was
(1) deprived of a federal right (2) by a person acting under color of state law. Gomez v. Toledo, 446
U.S. 635, 640 (1980). “[D]eliberate indifference to serious medical needs of prisoners constitutes
the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Chatham
v. Davis, 839 F.3d 679, 684 (2016) (alterations in original) (quoting Estelle v. Gamble, 429 U.S.
97, 104 (1976)). “A prison official may be liable for deliberate indifference only if he ‘knows of and
disregards an excessive risk to inmate health or safety.’” Id. (quoting Farmer v. Brennan, 511 U.S.
825, 837 (1994)). To succeed on a deliberate indifference claim, a prisoner must prove that he
“suffered from ‘(1) an objectively serious medical condition to which (2) a state official was
deliberately, that is subjectively, indifferent.’” Id. (quoting Duckworth v. Ahmad, 532 F.3d 675, 679
(7th Cir. 2008)). Considering the record in the light most favorable to Berry, he cannot satisfy either
prong of the deliberate indifference standard.
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A.

Berry Cannot Show That He Suffers From An Objectively Serious Medical
Condition.

An essential element of a claim for deliberate indifference to a serous medical condition is
the existence of a serious medical condition. “A medical condition is deemed to be objectively
serious if it is ‘one that has been diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize the necessity for a doctor’s attention.”
Williams v. Rodriguez, 509 F.3d 392, 401 (7th Cir. 2007) (quoting Henderson v. Sheahan, 196 F.3d
839, 846 (7th Cir. 1999)). Yet Berry’s medical records indicate that he consistently ambulates easily
and does not appear to be in pain. DPFOF ¶ 44 (citing ECF No. 97-1 at 8, 10–11, 16, 27, 30, 33,
35, 39, 45–46, 49, 51, 54, 56–57, 62, 67, 69, 85, 134). In fact, a video dated July 12, 2017,
depicting Berry effortlessly running down two flights of stairs at GBCI, approaching a supervisor,
and then walking through several of the institution’s corridors with his hands cuffed behind his back
has been submitted by the defendants. ECF No. 51-1. In the video, there is no indication that Berry
is in pain or otherwise limited in his ability to ambulate. Id.; DPFOF ¶¶ 45–46. The court has
previously noted that “at the very time [this video was recorded,] Berry had pending before the court
no less than five separate motions for preliminary injunctions based on complaints that his severe
back impairments prevented him from leaving his cell even for meals, walking up any stairs, and
requiring intense treatment by a pain specialist.” ECF No. 87 at 3. Given this irrefutable evidence,
no jury could conclude that the defendants’ conclusion that Berry’s claim of chronic pain was
exaggerated was unreasonable. Even if this evidence does not by itself preclude Berry from going
forward on his claim, the defendants have submitted other evidence as well.
In November 2017, Dr. Robert Bilkovski conducted a special examination of Berry and
reviewed his medical records. ECF No. 97-1 at 16. Although Dr. Bilkovski determined that Berry’s

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medical records supported a diagnosis of mild scoliosis and degenerative changes at the disc spaces
in the thoracic lumbar region, he also concluded that Berry’s complaints of pain vastly overstated
the severity of his condition, that his pain could be managed with conservative pain management, and
that his requested accommodations (feed in cell, back brace, and referral to specialists) were not
clinically warranted. Id. Indeed, all of the doctors who have examined Berry, including Dr. Sauvey,
Dr. Allen, Dr. Joseph, as well as Dr. Bilkovski, agree: Berry’s medical condition is not serious.
Thus, medical opinion evidence in the record undermines Berry’s argument that various individuals’
failure to give him the restrictions he seeks reflects deliberate indifference. Berry has no medical
evidence to counter Dr. Bilkovski’s opinion, and his own opinion as to what is a serious medical
condition is inadmissible.
In his brief in opposition to the motions for summary judgment, Berry argues that the
defendants only assume that the video shows him running, noting that “[t]he video doesn’t show the
full body of Plaintiff coming downstairs until he’s at the bottom of [the] stairs walking up to the
supervisor.” ECF No. 106 at 6 (emphasis omitted). He goes on to elaborate that “[t]he Plaintiff is
of the position that[] he was holding both sides of the railings and sliding down with the gravity
without his feet ever touching the steps until he reached the bottom.” Id. at 23. But the video itself
belies Berry’s characterization. Although Berry does seem to jump over the last couple of steps at
the bottom of each flight of stairs, he also lifts his hands from the railing in the middle of each flight,
indicating that he did actually plant his feet. In any event, only his feet are obscured on the first flight
of stairs, and his entire body is visible on the second flight, his feet clearly landing on the ground.
Considering this video evidence demonstrating Berry’s ability to walk and run, as well as the
objective medical evidence in the record indicating that he did not need restrictions, I conclude that
no reasonable jury could conclude that Berry suffered from an objectively serious medical need.
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B.

Berry Cannot Show Deliberate Indifference.

Even assuming Berry’s back condition (the mild scoliosis and degenerative disc described
by Dr. Bilkovski) and resultant pain does reflect a serious medical condition, the undisputed facts
show that no defendant acted with indifference toward it. An inmate alleging deliberate indifference
must “show that the defendants actually knew of a substantial risk of harm to the inmate and acted
or failed to act in disregard of that risk.” Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002).
The Seventh Circuit has elaborated on the nature of this high standard:
Deliberate indifference requires a showing of “more than mere or gross negligence,
but less than the purposeful or knowing infliction of harm.” We have characterized
the required showing as “something approaching a total unconcern for [the
prisoner’s] welfare in the face of serious risks.” To establish deliberate indifference,
a plaintiff must present evidence that an individual defendant intentionally
disregarded the known risk to inmate health or safety. A defendant with knowledge
of a risk need not “take perfect action or even reasonable action[,] . . . his action
must be reckless before § 1983 liability can be found.”
Collins v. Seeman, 462 F.3d 757, 762 (7th Cir. 2006) (citations omitted; alterations in original) (first
quoting Matox ex rel. Matos v. O’Sullivan, 335 F.3d 553, 557 (7th Cir. 2003); then quoting Duane
v. Lane, 959 F.2d 673, 677 (7th Cir.1992); and then quoting Cavalieri v. Shepard, 321 F.3d 616,
622 (7th Cir. 2003)).
Considering first Dr. Sauvey, Berry alleges that she was deliberately indifferent for removing
his existing medical restrictions when he arrived at GBCI and for refusing to see him. Dr. Sauvey
saw Berry initially in January 2016 and again in March 2016, after many of his restrictions had
expired the previous month. DPFOF ¶¶ 13–14. At the March 2016 appointment, she determined
that there was no medical need for some restrictions but that Berry’s condition did warrant others,
particularly the continuation of the back brace. Id. ¶ 14. Berry strenuously objects to Dr. Sauvey’s

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decisions regarding these restrictions, “[b]ut ‘mere disagreement with a doctor’s medical judgment’
is not enough to support an Eighth Amendment violation.” Cesal v. Moats, 851 F.3d 714, 722 (7th
Cir. 2017) (quoting Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010)). Berry also claims that
Dr. Sauvey refused to see him because she did not respond to his HSR forms. But as an ACP, Dr.
Sauvey did not schedule her own appointments and did not even learn which inmates she was seeing
until she arrived at GBCI each day. DPFOF ¶¶ 9, 19. As a result, any delay in her appointments
with Berry was beyond her control and therefore does not reflect a refusal to see him. Because
Berry simply disagrees with Dr. Sauvey’s medical determinations and has presented no evidence that
she refused to see him, his deliberate indifference claims against her fail.
Turning to Dr. Allen, she examined Berry on September 2, 2016, and discussed his
restrictions at that time. Id. ¶ 67. Berry demanded indefinite reinstatement of all restrictions
previously ordered for him, and Dr. Allen agreed that extra pillow, low bunk, and gel insert
restrictions were appropriate, subject to annual reevaluation. Id. ¶ 68 (citing ECF No. 97-1 at 79).
Dr. Allen’s extensive notes from the appointment record Berry’s specific requests and pair them with
annotations regarding her medical decisions based on the examination. Id. ¶ 69. The notes also
include observations that Berry walked with a steady and even gait, appeared muscular and fit, and
had no gross neurologic abnormalities. ECF No. 97-1 at 78. Dr. Allen’s careful notes recording
Berry’s demands and then making annotations regarding her decisions—including her decisions to
reinstatement several of his requested restrictions—show that, far from disregarding his complaints
of pain, she took his requests seriously and exercised medical judgment with regard to each.
Because Dr. Allen’s decision to reinstate some restrictions while declining Berry’s request for others
reflects an exercise of her medical judgment, Berry’s disagreement with that decision does not render
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her liable to him for deliberate indifference to his pain. See Cesal, 851 F.3d at 722. Consequently,
Berry’s deliberate indifference claims against her will also be dismissed.
Berry’s claims against Peters likewise fail because her actions reflect an exercise of her
medical judgment and show regard for his claims of pain. In April 2017, she referred him to
Advanced Pain Management (APM), which resulted in a July off-site appointment at which a nondefendant doctor recommended, among other things, that Berry receive two cervical epidural steroid
injections. Peters PFOF ¶¶ 40, 56.2 Peters also recommended in September 2017 that the SNC
review its decision to discontinue several of his restrictions, and she recommended that his back
brace and Velcro shoe restrictions continue into February 2018. Peters PFOF ¶ 71; ECF No. 91-2
at 83. In addition to personally examining Berry on multiple occasions, other actions Peters took
on his behalf throughout 2017 included ordering an MRI prior to his APM referral, ordering an
evaluation of the MRI for possible surgical intervention, requesting non-formulary drugs, asking the
Medical Committee to review the SNC’s decisions regarding his requested restrictions, and ordering
a sleep study (which Berry refused). Peters PFOF ¶¶ 39–40, 53, 64, 66–69, 74, 79–80, 92. The
undisputed facts therefore show that Peters recognized and acknowledged Berry’s claims of pain,
referred him for several treatments, and recommended reinstatement of some of the restrictions he
seeks. Accordingly, her actions do not reflect indifference to his serious medical needs, and his
claims against her will be dismissed.

2

By late September 2017, Berry was scheduled to receive the recommended injections at
APM, but shortly before the appointment APM stopped seeing patients from GBCI, resulting in a
last minute cancellation requiring that new arrangements be made. Peters PFOF ¶¶ 79, 81, 83,
90–91, 93, 95.
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Next, Berry alleges that Jean Lutsey, in her capacity as HSU manager and member of the
SNC, had the authority to override his ACPs’ medical restriction recommendations or refer him to
a doctor who would reinstatement them, and he contends that she was therefore deliberately
indifferent to him because she failed to do so. However, Berry misunderstands the nature of
Lutsey’s role at GBCI. Although Lutsey does supervise the provision of health care services,
including monitoring nursing documentation in medical records, and serve as liaison to other
institution units and community health care providers, she does not provide medical treatment to
inmates. DPFOF ¶¶ 16–17. She meets with inmates to discuss their medical care only occasionally.
Id. ¶ 17. As a result, she did not even meet Berry until 2017, and there is no dispute that she never
provided him with any medical care or treatment. Id. ¶ 18. The court has already determined that
Berry has offered no evidence that the decision of Dr. Sauvey and Dr. Allen to discontinue several
restrictions was anything other than a reasonable exercise of medical judgment, and Lutsey therefore
cannot be liable for deliberate indifference, either, since she had no involvement in those medical
decisions. See Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (“Snipes’ deliberate indifference
claim against Dr. Ehrhardt, and thus against Warden DeTella, who had no involvement in the
treatment, is without merit.”). Berry’s claims against Lutsey will therefore be dismissed.
Similar to Lutsey, Berry contends that Alsteen, Baier, Utter, and Lemens were deliberately
indifferent to his need for medical restrictions in early 2016 after his arrival at GBCI because he
submitted numerous HSR forms asking to see a doctor but did not see one soon enough to satisfy
him. ECF No. 94-1 at 7–8. The record establishes that Alsteen, Baier, Utter, and Lemens each
examined Berry on multiple occasions throughout 2016 and 2017 and promptly replied to the
numerous HSR forms he filed. DPFOF ¶¶ 58–66 (citing treatment notes and HSR forms with
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responses). These copious documents show that Alsteen, Baier, Utter, and Lemens all responded
to his persistent complaints of pain, and it has already been established that Berry ultimately saw Dr.
Sauvey and Dr. Allen to discuss his restrictions. Even if Berry does not agree with the treatment
these nurses provided him, the record includes no evidence that they acted with the reckless
disregard toward his complaints of pain, an essential element needed to support a deliberate
indifference claim. Berry’s claims against Alsteen, Baier, Utter, and Lemens will therefore also be
dismissed.
Finally, the undisputed facts show that no reasonable jury could conclude that LaBelle, in his
capacity as a Regional Nursing Coordinator, and Scott Eckstein, as Warden of GBCI, were
deliberately indifferent to Berry’s serious medical needs. LaBelle is not a medical care provider at
any prison, and his primary responsibility as a Regional Nursing Coordinator is to serve as the
reviewing authority for inmate complaints related to healthcare. DPFOF ¶¶ 38–39. He did,
however, review several of Berry’s complaints, affirming multiple decisions by inmate complaint
examiners who determined that, based on the medical records, Berry was receiving ongoing medical
care that did not require additional intervention. Id. ¶¶ 41–42 (citing ECF Nos. 96-1, 96-2, 96-9,
96-12, 96-18, 96-23, 96-25). Because LaBelle served as the reviewing authority for inmate
complaints regarding medical care, Warden Eckstein did not serve as the reviewing authority for
those complaints and instead left those decisions to medical professionals. Id. ¶ 43.
“A plaintiff bringing a civil rights action must prove that the defendant personally participated
in or caused the unconstitutional actions.” Alejo v. Heller, 328 F.3d 930, 936 (7th Cir. 2003) (citing
Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir. 1981)). Particularly relevant here, “[r]uling
against a prisoner on an administrative complaint does not cause or contribute to the violation.”
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George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). Although it is possible for a complaint
examiner to engage in conduct that would give rise to a deliberate indifference claim, the Seventh
Circuit has suggested that such liability would arise only in the most extreme circumstances, such
as if “a complaint examiner routinely sent each grievance to the shredder without reading it” or
“intervened to prevent the medical unit from delivering needed care.” Burks v. Raemisch, 555 F.3d
592, 595 (7th Cir. 2009). Even where medical staff provides “woefully inadequate” treatment, a
complaint examiner’s “failure to realize the potential gravity of the situation does not amount to
deliberate indifference.” Greeno v. Daley, 414 F.3d 645, 657 (7th Cir. 2005).
Here, there is no indication that LaBelle failed to do his job as a complaint examiner. Not
only has the court already determined that the underlying medical decisions did not reflect deliberate
indifference, but the record is clear that LaBelle reviewed the medical records regarding Berry’s
complaints and made reasoned decisions based on the available evidence. Fundamentally, Berry
disagrees with LaBelle’s decisions affirming dismissal of Berry’s complaints, but that it not a basis
for find that LaBelle was deliberately indifferent in his capacity as a complaint examiner. Likewise,
there is no dispute that, because LaBelle reviewed the medical complaints, Warden Eckstein did not
review them. Eckstein’s reasonable decision not to intervene with regard to medical decisions
therefore does not reflect deliberate indifference, either. Berry’s claims against LaBelle and Eckstein
will therefore be dismissed.
CONCLUSION
For the foregoing reasons, the defendants’ motions for summary judgment (ECF Nos. 88,
95) are GRANTED. Additionally, Berry’s motion to amend his proposed findings of fact (ECF

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No. 111) is DENIED. This action is DISMISSED, and the Clerk is directed to enter Judgment for
the defendants.
SO ORDERED this 18th day of July, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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