Lewis v. Pollard et al

Filing 166

ORDER signed by Judge J P Stadtmueller on 3/28/13: denying 154 Plaintiff's Motion for Reconsideration; granting 95 Defendants' Motion for Summary Judgment and DISMISSING this case; denying as moot 164 Defendants' Motion to Stay Proceedings. (cc: Plaintiff, all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHRISTOPHER R. LEWIS,
Plaintiff,
v.

Case No. 11-CV-280-JPS

WILLIAM POLLARD, PETER ERICKSEN,
C.O. II VANLOO, DILLEN BERG
C.O. GIFFIN, MICHAEL BAENEN, and
JEANANNE G. ZWIERS,

ORDER

Defendants.

The pro se plaintiff, Christopher R. Lewis (“Lewis”), is proceeding in
forma pauperis on a claim under 42 U.S.C. § 1983 that he has been subjected
to severe sewage odors in his cell at the Green Bay Correctional Institution
and deprived of medical treatment in violation of his Eighth Amendment
rights, and that his First Amendment rights have been violated by retaliation
against him for filing complaints. Before the court is the defendants’ motion
for summary judgment, along with the plaintiff’s motion for reconsideration
and the defendants’ request for a stay of the proceedings.
1.

PLAINTIFF’S MOTION FOR RECONSIDERATION
Lewis previously asked the court to order sanctions against the

defendants for failing to produce records of any disciplinary actions taken
against defendant Peter Ericksen (“Ericksen”). The court denied the motion
for sanctions, but ordered the defendants to search for any responsive
records and to respond specifically to the plaintiff’s allegations that Ericksen
was one of the two unnamed, white correctional officers mentioned in a May
30, 1993 newspaper article submitted by the plaintiff which describes racial
harassment at Columbia Correctional Institution. (Court Order of July 26,

2012, Docket #143). In response, the defendants submitted an affidavit from
Ericksen denying any involvement in the events described in the article and
stating that he has never been disciplined by the Department of Corrections,
along with two affidavits from correctional officials describing their
unsuccessful search for any disciplinary records related to Ericksen. (Dockets
#149, #150, and #151). Lewis is disappointed with this response and maintains
that the defendants should be sanctioned for failure to keep better records of
employee disciplinary matters. Because the defendants have documented
their thorough search for responsive records and complied with this court’s
orders, no sanctions are warranted, and Lewis’s motion for reconsideration
will be denied.
2.

SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir.
2011). “Material facts” are those under the applicable substantive law that
“might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A
dispute over “material fact” is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by: “(A) citing to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence
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of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). “An affidavit or
declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.” Fed. R.
Civ. P. 56(c)(4).
3.

FACTUAL BACKGROUND1
3.1

Parties

Plaintiff Lewis is an inmate who at all times material to this action was
incarcerated at Green Bay Correctional Institution (GBCI).
Defendant William Pollard (“Pollard”) is presently employed by the
Wisconsin Department of Corrections (DOC) as Warden of the Waupun
Correctional Institution (WCI). Pollard previously was employed as Warden
at GBCI from March 2005 to April 2011. Defendant Michael Baenen
(“Baenen”) has been employed as Warden at GBCI since March 27, 2012.
Previously, Baenen was the Deputy Warden at GBCI.
Defendant Ericksen has been employed as Security Director at GBCI
since August 2000.
Defendants

Brian

VanLoo

(“VanLoo”),

Larry

Dillenberg

(“Dillenberg”), and Benjamin Giffin (‘Giffin”) are all employed as
Correctional Officers at GBCI.
Defendant Jeananne Zwiers (“Zwiers”) is employed as the Health
Services Manager in the Health Services Unit (HSU) at GBCI.

1

Facts are taken from the undisputed portions of the Defendants’ Proposed Findings
of Facts (Docket #110), as well as the plaintiff’s verified amended complaint (Docket #40),
and supporting affidavits filed by the parties.

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3.2

Sewer Odor

When an inmate has a maintenance problem, such as a drain that is
emitting an odor, they are to contact their unit staff to look into and to fill out
a work order if deemed appropriate. Occasionally, there is an odor from the
floor drains. Approximately twice a year, staff will pour a 50/50 solution of
bleach and warm water down the drains to clean and sanitize them. This
procedure was completed in July 2010. Maintenance staff typically clean the
floor drains in the hallway. The segregation security staff typically clean the
floor drains in the individual cells. As stated above, when GBCI
cleans/sanitizes the drains, they typically clean/sanitize all of the drains.
GBCI policy does not allow inmates to possess bleach to clean their
own drains, as this would present a security issue. The inmate could try to
throw the bleach in the officer’s face or eyes. However, Lewis avers that he
and other inmates were given bleach to pour down their drains in July of
2010.
Lewis filed offender complaint GBCI-2011-1273 regarding the sewage
smell in his cell. The report from the Institution Complaint Examiner (ICE)
states the following:
Mr. Lewis claims his drain smells of raw sewage. Mr. Lewis
states he started covering the drain in August of 2010, but
writes in his date of incident 1/10/11 “notified Schultz.”
Sgt. Greil stated that he has not been informed by Mr. Lewis
nor has staff notified him that Mr. Lewis has a concern with his
drain. Sgt. Greil stated he would have staff check into Mr.
Lewis’ claim and will if necessary complete a work order to
have the problem remedied.
The most efficient way to deal with a drain or maintenance
type problem is to immediately bring it to staff’s attention, and
it will be corrected.
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Pollard was the reviewing authority. Based on the information from the ICE’s
investigation, Pollard felt confident that Lewis’ concerns were being
addressed. On January 18, 2011, in agreement with the ICE, Pollard
dismissed the complaint with the modification that a copy of the offender
complaint be given to the segregation supervisors. This was the only written
complaint Lewis made in regards to the drain odor. No other inmates filed
written complaints regarding drain odors in the segregation unit during this
time.
Lewis entered cell #431 in June 2010 and left cell #431 on August 12,
2011. He is currently in general population in the South Cell Hall, H-1.
According to Lewis, Sgt. Greil (who is not a defendant) wrote to Lewis in
January or February of 2011 that he would submit a work order for his drain.
However, there were no work orders for Lewis’ drain in cell #431 from June
1, 2010, until August 12, 2011.
Ericksen does not recall receiving any correspondence from inmate
Lewis regarding a drain smell. Baenen has no knowledge of, nor was he ever
personally involved in, addressing any issues or complaints related to
sewage odors in Lewis’ cell and he does not have any documentation relating
to this issue.
3.3

Complaints about VanLoo and Ericksen

Ericksen recalls receiving correspondence from inmate Lewis about
staff harassment. He believes it was pertaining to VanLoo. Ericksen no longer
has that correspondence. Ericksen believes there were several investigations
regarding allegations made by Lewis. He does not recall the specifics of those
allegations or the investigations into those allegations.
From June 2010 until March 2011, Pollard assigned Baenen the task of
reviewing complaints related to allegations of staff misconduct and ordering
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investigations for staff actions when appropriate. Baenen and Pollard
reviewed offender complaints filed by Lewis about VanLoo regarding
medication, an odor coming from the drain in his cell and/or conduct reports
written by VanLoo. Baenen also reviewed offender complaints filed by
Lewis regarding conduct reports complaining about Dillenberg regarding
medication and/or conduct reports written by Dillenberg.
Between June 2010 and July 2011, Lewis made numerous complaints
alleging VanLoo was harassing him. Four investigations were conducted and
none of Lewis’ complaints were substantiated. The only conduct report that
Dillenberg wrote for Lewis between June 2010 and April 2011 is dated March
12, 2011, and was written for disruptive or disrespectful conduct. Dillenberg
wrote that Lewis placed his bare buttocks up against the open trap in his cell
door and passed gas, and then insulted Dillenberg for wearing a smelly
uniform. Lewis states that he simply insulted Dillenberg’s wife as a response
after Dillenberg told him that he smelled, and that Dillenberg falsified the
conduct report by making up other allegations against him. Lewis was
restricted to the back of his cell for seven days as a consequence for the
conduct report, but Erickson lifted the restriction after two days because he
determined the back of cell security precaution was not necessary.
Lewis avers that on April 23, 2011, Vanloo denied him his medications
during med pass, and on September 18, 2010, Vanloo tried to give him
medicine that had been dropped on the ground. Lewis further avers that on
January 18, 2011, Dillenberg refused to look for his ibuprofen until the
noontime meds. Lewis also avers that on January 14, 2011, Dillenberg told
him that he could not find his ibuprofen. Lewis suspects that Dillenberg hid
the bottle on the medication cart, and other correctional officers were unable
to find it for the next four days. Vanloo and Dillenberg aver that they did not
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deny Lewis his medications or tamper with them, and that they did not
retaliate against Lewis in any way for filing complaints.
3.4

Medical Complaints

On January 13, 2011, Lewis was seen by the nurse after submitting a
Health Services Request (HSR) complaining that he has headaches caused by
an odor from his sewer drain. He stated that he was having the headaches
three to four times a week since Christmas. A nurse saw Lewis and
completed an assessment. The nurse instructed Lewis to increase his fluid
intake to improve his hydration status, and to consider requesting a routine
eye exam. Ibuprofen was placed on the medication cart per protocol. Lewis
was advised to follow-up with HSU on the effectiveness of his medication.
His weight was 205 lbs.
On February 17, 2011, Lewis was seen by the nurse pursuant to a HSR
complaining of dry skin. The nurse who saw Lewis noted a thick yellow
callus on his great toes and ordered foot soaks per protocol. His weight was
189 lbs.
In early 2011, inmate Lewis requested a refill for his ibuprofen. Lewis
was instructed that he could obtain the ibuprofen from the stock on the
medication carts. On or about March 16, 2011, Zwiers was contacted about
Lewis’s complaint that HSU would not give him his own prescription of
ibuprofen because the medication cart is only stocked 2 out of 7 days. The
ICE contacted Zwiers and nursing staff and summarized their response in
dismissing the complaint:
Nurse Lutsey stated there is not a need for a prescription for
stock medication; Mr. Lewis may receive a stock medication at
any of the four med pass times during the day. The Med Room
Nurses stated that they are very aware of Mr. Lewis’
complaint. The Nurses noted that Mr. Lewis is presently on the
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400 Wing of the Segregation Unit and they specifically make
sure that cart is stocked.
(ICE Report, Docket #102-6 at 2).
On March 18, 2011, Lewis was seen by the physician, who reviewed
his vitals and stated that Lewis was stable. The doctor changed the frequency
of Lewis’s checkups to every six months for his Hypertension Care Plan.
Lewis weighed 193 lbs.
On March 23, 2011, Lewis was seen by the nurse pursuant to his
request for dizziness, lightheadedness and queasiness 3-4 times a week,
which he believed was due to the strong smell from his drain. The nurse
completed a thorough physical assessment and informed Lewis there were
no abnormalities noted. The nurse also noted that Lewis was well muscled
with good energy and that he has lost 60 lbs. in the past ten months. His
weight was 180 lbs. Lewis reported that he believed his weight loss was due
to being in segregation for much of that period and when he had been in
general population he ate a lot of canteen and was able to maintain a higher
weight. The nurse noted that Lewis had a very strong body odor. Lewis
states that he uses his sink to wash every morning, and security staff
reported that Lewis worked out every morning. The nurse offered the
possibility that the odor in his cell was possibly his own body odor as
security staff have noted the body odor smell outside his cell. The nurse
encouraged Lewis to have labs as previously ordered which may be helpful
to the physician and Lewis agreed.
On March 29, 2011, Lewis was seen by the nurse for a comprehensive
health panel, lipids and complete blood count draw. The results were
unremarkable and reviewed by Dr. Heidorn on April 16, 2011; no changes to

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the patient’s plan of care were made. Lewis also reviewed his medical record
and received copies per his request.
On April 22, 2011, Lewis was seen by the doctor, and a Hypertension
Care Plan was completed. Follow-up labs were ordered for the following
week, including thyroid studies, Vitamin D level and H. pylori. His weight
was 191 lbs. On April 26, 2011, Lewis was seen by the nurse (J. Lutsey) and
lab work was drawn. On May 4, 2011, the physician reviewed the results, the
thyroid was normal, his vitamin D was slightly low, the H. pylori was
positive. No new orders were written at this time.
On May 25, 2011, Lewis was seen in the HSU pursuant to an HSR for
complaints about his psych medications. He was told via HSR if he thought
his medication was causing his dizziness, he could stop if he wished and his
HSR would be forwarded to the psychiatrist. Lewis was given an
appointment to see the physician the following week for nightmares and
dizziness, which are listed as a side effect of the medications. Lewis’s weight
was 187 lbs, and he did not complain of stomach problems.
On June 9, 2011, Lewis was seen in the HSU pursuant to a HSR for a
request for ibuprofen for complaints of headaches. Lewis described his
headaches as being “not migraines – throbbing pain behind the eyes and
temple areas.” Lewis reported to the nurse that he had glasses since the 7th
grade and that his last eye exam was two years ago. Lewis reported that he
was using stock ibuprofen as needed, but was adamant about wanting his
own on the cart because the stock ibuprofen was not available on the cart 4-5
times a week. A follow up appointment was made with the physician. His
weight was 194 lbs., and no complaints of stomach problems were
documented. On July 1, 2011, Lewis was seen by the physician for complaints

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of headaches. Ibuprofen was ordered. No complaints of stomach problems
were raised at this time.
4.

ANALYSIS
The defendants argue that prison staff appropriately addressed

Lewis’s complaint regarding the drain odor in his cell, and that the drain
odor did not rise to the level of an Eighth Amendment violation. The
defendants also submit that they were not deliberately indifferent to any
serious medical needs of Lewis and that they did not retaliate against Lewis.
In response, Lewis maintains that the sewer odor was so severe that
it gave him headaches and caused him to lose weight and develop an
irregular heartbeat, and that the sewer odor was never properly addressed
although he complained repeatedly about it. Lewis further argues that the
defendants were deliberately indifferent to his need for health care and
medicine, and that they harassed him to retaliate for filing complaints.
4.1

Eighth Amendment Sewer Odor and Medical Care Claims

The plaintiff alleges that he was subjected to sewage odors in his cell
beginning on June 18, 2010, and continuing through the filing of this lawsuit
on March 21, 2011. The plaintiff left cell #431 on August 12, 2011, and is now
assigned to a different cell hall. The plaintiff states that the sewage odors in
his cell caused him to suffer severe headaches and lose weight. Ordinarily,
mere exposure to unpleasant odors does not constitute an Eighth
Amendment violation. See Sain v. Wood, 512 F.3d 886 (7th Cir. 2008).
(“[Plaintiff] submits that the peeling paint, foul odor and lack of airconditioning in his cell, his inability to open his window without letting in
bugs, and a cockroach infestation in his unity amounted to inhumane
treatment in violation of the Fourteenth Amendment…[however, t]he
peeling paint or an unpleasant odor in a cell described in this record, along
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with the absence of any evidence of serious injury, does not amount to
constitutional deprivation.”).
The record reflects that Lewis lost a significant amount of weight, but
nothing suggests that his weight loss was unhealthy. Lewis’s lowest recorded
weight was 180 pounds, and his medical records reflect that he was muscular
and energetic. The record also reflects his statement to a nurse that he lost
weight in segregation because he had less access to canteen food.
Nor are headaches and dizziness necessarily serious ailments.
However, in this case Lewis claims he was subjected to the sewer odors for
over a year, and suffered frequent headaches over a prolonged period as a
result. Accordingly, given the duration of these conditions, the court will
treat Lewis’s exposure to sewer odors and his resulting headaches as serious
conditions. See Antonelli v. Sheahan, 81 F.3d 1422, 1431 (7th Cir. 1996) (unlike
other cases involving shorter terms in pest-infested cells, “sixteen months of
infestation and significant physical harm” was sufficient to state a
constitutional claim); and Berry v. Peterman, 604 F.3d 435 (7th Cir. 2010) (tooth
decay resulting in constant pain and headaches constituted an objectively
serious medical condition).
Nevertheless, Lewis does not present evidence from which it could be
inferred that the defendants were deliberately indifferent to his conditions
of confinement or to his medical needs. To state an Eighth Amendment claim,
a plaintiff must demonstrate that he suffered a deprivation that “posed a
substantial risk of serious harm” that prison officials deliberately ignored. See
Farmer v. Brennan, 511 U.S. 825, 833-38, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994);
Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir.2002). The record reflects that
Lewis received significant medical care from nurses and a doctor at GBCI,
including routine checkups and visits at his own request. The medical staff
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was responsive to his request for ibuprofen for his headaches, and nothing
suggests that they ignored his medical concerns.
Similarly, Lewis does not present evidence from which it can be
inferred that any of the defendants were deliberately indifferent to serious
concerns about sewer odors in his cell. Lewis filed only one written
complaint regarding the sewer odor, and did not follow up further after a
work order was not completed. While some of the correctional officers may
have been unkind or unprofessional in mocking Lewis for his smell, the
record does not support an inference that anyone deliberately ignored
serious danger to Lewis.
4.2

First Amendment Retaliation Claims

Lewis alleges that VanLoo and Dillenberg harassed and mocked him.
As discussed in previous orders, allegations of mockery and verbal
harassment fail to state a claim. See DeWalt v. Carter, 224 F.3d 607, 612 (7th
Cir. 2000) (“The use of derogatory language, while unprofessional and
deplorable, does not violate the Constitution.”) and Dobbey v. Ill. Dep’t of
Corrs., 574 F.3d 443,446 (7th Cir. 2009) (“[H]arassment, while regrettable, is
not what comes to mind when one thinks of ‘cruel and unusual’
punishment.”).
Lewis further alleges that after he filed complaints about their
conduct, VanLoo and Dillenberg retaliated against him. To establish a prima
facie case of retaliation, a plaintiff must produce evidence that: (1) he
engaged in constitutionally protected speech; (2) he suffered a deprivation
likely to deter protected speech; and (3) his protected speech was a
motivating factor in the defendants’ actions. See Kidwell v. Eisenhaur, 679 F.3d
957, 965 (7th Cir.2012) (clarifying allocation of evidentiary burdens at
summary judgment in light of Gross v. FBL Fin. Servs., Inc., 557 U.S. 167
Page 12 of 14

(2009)); Greene v. Doruff, 660 F.3d 975, 977 (7th Cir.2011) (same). Lewis
satisfies the first element, as he filed complaints using the prison grievance
system. See Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012)(“A prisoner has
a First Amendment right to make grievances about conditions of
confinement.”) (quoting Watkins v. Kasper, 599 F.3d 791, 798 (7th Cir. 2010)).
Lewis attempts to meet the second element by alleging that Dillenberg
wrote him up on a fabricated conduct report. See Lekas v. Briley, 405 F.3d 602,
614 (7th Cir. 2005) (“[A] prisoner can sufficiently state a claim for relief when
he alleges that prison officials issued baseless disciplinary tickets against him
in retaliation for pursuit of administrative grievances.”). However, even
accepting Lewis’s contention that portions of the conduct report were false,
he admits to making rude remarks to Dillenberg about his wife, which justify
the conduct report for disrespectful/disruptive behavior, and therefore the
Court cannot conclude that the report was fabricated. Accordingly, the
conduct report is not baseless. Furthermore, to the extent that Lewis contends
that Dillenberg and VanLoo retaliated against him by continuing to mock
and harass him, or by continuing to occasionally fail to provide him with
ibuprofen, such an argument fails to satisfy the third element of a retaliation
claim. Persevering in unpleasant behavior is not retaliatory if the continued,
unwelcome conduct predates the exercise of First Amendment rights. Given
these facts, the Court must conclude that Lewis cannot satisfy either the
second or third requirements to state a prima facie case, as he neither
suffered a deprivation likely to deter speech nor that his speech was a
motivating factor in the defendants’ action. Therefore, the Court is obliged
to grant the defendants’ motion for summary judgment as to Mr. Lewis’s
retaliation claim.
Accordingly,
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IT IS ORDERED that the plaintiff’s motion for reconsideration
(Docket #154) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that the defendants’ motion for
summary judgment (Docket #95) be and the same is hereby GRANTED, and
this case be and the same is hereby DISMISSED; and
IT IS FURTHER ORDERED that the defendants’ motion to stay
proceedings (Docket #164) be and the same is hereby DENIED as moot.
The Clerk is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 28th day of March, 2013.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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