McDaniel v. Meisner et al
Filing
73
ORDER signed by Judge Pamela Pepper on 3/30/2016 DENYING 43 Defendants' Motion for Summary Judgment. (cc: all counsel; by US Mail to plaintiff) (pwm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
CARL JOSEPH MCDANIEL,
Plaintiff,
v.
Case No. 14-cv-53-pp
WARDEN MICHAEL MEISNER,
KAREN ANDERSON,
CO BRIAN PILLAR,
TIMOTHY ZIEGLER, and
LUKAS WEBER,
Defendant.
______________________________________________________________________________
DECISION AND ORDER DENYING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT (DKT. NO. 43)
______________________________________________________________________________
Plaintiff Carl Joseph McDaniel is a state prisoner. On September 12,
2014, the court entered an order allowing him to proceed on Eighth
Amendment claims regarding the defendants’ refusal to bring trays to the
plaintiff’s cell so that he could eat and receive medication, despite
complications from diabetes that prevented the plaintiff from navigating the
stairs to the dayroom to pick up his meals and medications. Dkt. No. 15 at 810. The court also allowed the plaintiff to proceed on claims under the
Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA) against
Warden Meisner in his official capacity. Id. at 9-11. On March 13, 2015, the
defendants filed a motion for summary judgment, which now is fully briefed.
For the reasons stated below, the court denies the defendants’ motion for
summary judgment.
1
I.
FACTS1
A.
Parties
The plaintiff was incarcerated at Columbia Correctional Institution
(Columbia) at all times relevant to this case, and the defendants all were
employees of the Wisconsin Department of Corrections (DOC) working at
Columbia. Dkt. No. 44 at 1-4. Defendant Michael Meisner was the Warden;
defendant Lukas Weber was the Security Director; defendant Brian Pillar was a
correctional officer; defendant Timothy Ziegler was a Corrections Unit
Supervisor; and defendant Karen Anderson, a registered nurse, was the Health
Services Unit (HSU) Manager. Id.
B.
Food Service and Medications
At Columbia, the food prepared for inmate meals is delivered to the
housing units in bulk. Id. at 4. The inmate workers “portion the food into trays
as the inmates move through the serving line” in the dayroom, where inmates
receive their meals and eat. Id. “If an inmate is on cell confinement or has a
medical, psychological, or security restriction to eat in his cell, he will be
allowed out of his cell prior to the main meal being served.” Id. at 4-5. In such
a case, the inmate “picks up his tray from the dayroom and takes it back to his
cell to eat the meal.” Id. at 5. Then, “when the inmate’s respective tier is done
The court takes the facts from the “Defendants’ Proposed Findings of Fact,”
Dkt. No. 44, and the plaintiff’s sworn materials, including “Plaintiff’s Reply to
Defendant’s Proposed Findings of Facts,” Dkt. No. 54, “Plaintiff’s Supplemental
Pleading,” Dkt. No. 66, “Plaintiff’s Case Law in Support of Argument,” Dkt. No.
67, and the “Affidavit of Carl J. McDaniel,” Dkt. No. 70. The facts in this
section are undisputed unless otherwise indicated.
1
2
eating in the dayroom, while the inmates are returning to their cells, he is
allowed out of his cell in order to return his tray.” Id.
“Medications are also distributed in the dayroom.” Id. Inmates who need
prescription medication “approach the staff member at the desk in the dayroom
to receive their controlled medication; they consume it in front of staff.” Id. “The
staff member verifies that the inmate consumed the medication by looking in
the inmate’s mouth and under their tongue,” and the staff member “documents
in the medication treatment record whether the medication was taken or
refused.” Id. The defendants state that “[d]uring the time period at issue in this
action, inmates were administered their controlled medication upon the
completion of their meal.” Id. The plaintiff disagrees, and says night or evening
medications are done at 9:00 p.m. Dkt. No. 54 at 1.
“If an inmate does not come to the dayroom to receive and eat his meal
and take his medications, and is not on a sanctioned medical/psychological/
security restriction” (which may include feed cell), he does not receive his meals
or his medication. Dkt. No. 44 at 5.
C.
Sick Cell and Feed Cell
The procedures described above may be modified if the plaintiff is on
“sick cell” or “feed cell” status. In this case, the plaintiff asserts that he asked
to be on feed cell. Dkt. No. 54 at 1.
Effective January 2013, sick cell consisted of “24-hour room
confinement, with inmate activity determined by HSU staff.” Dkt. No. 44 at 5-6.
“Unless staff decide otherwise, inmates on sick cell [were] still required to go to
3
the dayroom to pick up their meal tray,” but were not allowed out of their cells
to eat or to participate in recreation, library, or dayroom activities. Id. at 6.
“Sick cell is typically used when an inmate is ill and possibly contagious, has
been diagnosed with an illness, or waiting for test results or cultures to
return.” Id. When an inmate is contagious, or potentially contagious, “it is in
the institution’s best interest to keep them isolated and/or quarantined to the
extent possible.” Id.
The DOC’s Division of Adult Institutions has a policy entitled “Lay-In and
Sick Cell Status,” which “outlines that housing unit staff shall monitor sick-cell
compliance.” Id. “The policy reiterates that sick cell activity will be determined
by HSU.” Id.
An inmate must notify unit staff (an area supervisor or unit sergeant) of
his desire to go on sick cell in a timely manner. Id. Inmates usually request
sick cell status “in the morning, prior to breakfast, and the inmate remains on
sick-cell for the entire day (24 hours/3 meals).” Id. “If there is no indication
that the inmate is abusing the status, the request is granted.” Id. at 7. “If there
is suspicion that the inmate is abusing the status, the request may be denied.”
Id.
If unit staff approve an inmate’s request for sick cell, the inmate may
submit a Health Service Request (HSR), asking to be seen by HSU staff. Id. If
HSU sees the inmate, HSU staff will either approve continued sick cell status
or the status will end after 24 hours. Id. HSU staff also determines the proper
4
level of activity for the inmate. Id. “If the inmate does not submit an HSR, the
sick cell-status automatically ends after 24 hours.” Id.
“While the inmate is on sick cell status, he is typically ineligible for work,
school, or other programs,” and he is placed on an unpaid status. Id. “If the
inmate misses work or school due to illness, he is not permitted to leave his
cell except to get his meal tray to take back to his cell, attend visits, showers
and HSU appointments.” Id. “Once the sick-cell status time is up, the inmate is
allowed to return to normal daily activities.” Id.
“Staff may use discretion and employ ‘feed-cell’ status for an inmate who
may be injured, on crutches, recovering from a procedure, etc.” Id. “If, for
example, an inmate is on crutches, staff may deliver meals and medications to
his cell.” Id. at 7-8.
Unless an inmate is on Temporary Lock-Up (TLU) status, feed cell status,
or staff deem it absolutely necessary, staff are “unable to deliver meals and/or
medications to inmates’ cells unless such accommodation is medically
documented and warranted.” Id. at 8. “Without such an order, inmates are
required to attend meals in the dayroom like everyone else.” Id. Without these
restrictions, “staff would be delivering meals and medications to multiple
inmates in the institution,” which would be an “enormous drain on time and
resources.” Id.
When an inmate has a medical restriction from HSU, “the restriction is
sent to the inmate’s housing unit so unit staff know the specifics” of the
restriction and can honor it. Id.
5
D.
Relevant Facts Pertaining to the Plaintiff
The plaintiff was assigned to Housing Unit 1 at Columbia from
November 8, 2013, to December 11, 2013. Dkt. No. 44 at 8.
On November 25, 2013, the plaintiff filed Offender Complaint Number
CCI-2013-22743, “in which he alleged that HSU refused to address his serious
medical need because he had been seen three times by nursing staff regarding
his foot sores, diabetic neuropathy, and swelling.” 2 Dkt. No. 44 at 13. The
plaintiff wanted to see a physician. Id. Columbia’s institution complaint
examiner (ICE) investigated the claim, contacted HSU manager defendant
Anderson, obtained information regarding the plaintiff’s medical care, and, on
November 27, 2013, recommended that the complaint be dismissed. Id. at 14.
Bureau of Health Services (BHS) Regional Nursing Coordinator Keisha
Perrenoud reviewed the complaint and dismissed it on November 29, 2013,
based on the ICE’s findings and the fact that the plaintiff was being seen and
treated.3 Id. The plaintiff alleges that the complaint was dismissed “based on a
“Diabetic Neuropathy is a type of nerve damage that can occur if you have
diabetes. High blood sugar can injure nerve fibers throughout your body, but
diabetic neuropathy most often damages nerves in your legs and feet.
Depending on the affected nerves, symptoms of diabetic neuropathy can range
from pain and numbness in your extremities to problems with your digestive
system, urinary tract, blood vessels and heart. For some people, these
symptoms are mild; for others, diabetic neuropathy can be painful, disabling
and even fatal. Diabetic neuropathy is a common serious complication of
diabetes. Yet you can often prevent diabetic neuropathy or slow its progress
with tight blood sugar control and a healthy lifestyle.” Diabetic Neuropathy,
Mayo Clinic, http://www.mayoclinic.org/diseases-conditions/diabeticneuropathy/basics/definition/con-20033336 (last visited March 11, 2016).
2
The plaintiff appealed this decision January 2, 2014, and the Corrections
Complaint Examiner (CCE) recommended on January 7, 2014, that the appeal
3
6
procedure of ‘properly dismissed at the institution level,’” and believes that the
reviewing authority did not conduct an independent examination of the
plaintiff’s medical file. Dkt. No. 54 at 3.
According to the plaintiff, he told a correctional officer named Nelson that
his diabetic neuropathy was causing him extreme pain in his feet. Dkt. No. 54
at 1. The plaintiff says he had frequent discussions with Nelson about this
topic and, on November 29, 2013, told Nelson that he wanted to go on either
sick cell or feed cell status. Id.
On November 30, 2013, the plaintiff submitted an HSR that said his feet
and legs were too painful to go up and down stairs. Dkt. No. 70-1 at 15. At the
bottom of that HSR, a staff member marked the box “Treated Today,” and dated
his signature December 1, 2013. Id. The plaintiff provided the court with a
DOC “Progress Notes” form containing an entry dated December 2, 2013,
indicating that the plaintiff went to the HSU on that date for knee pain and to
evaluate use of his ACL brace. Dkt. No. 66-1 at 52. The note states, in part:
[Patient] reports he wears his brace for strenuous
exercise but has needed to wear more frequently due
to “knees folding out on me, especially to go up &
down stairs.” [Complaints of] feet neuropathy & knee
pain that is “outrageous.” Then started [complaining
of] wrist pain, blood sugars, requesting sick cell
restriction and requesting approval to wear personal
shoes “at all times.” Majority of complaints have been
previously addressed multiple times & [patient]
be dismissed as untimely. Dkt. No. 44 at 15. Even taking into account a fourday grace period for the prison mailbox rule, the plaintiff submitted the appeal
beyond the ten-day timeframe required by Wis. Admin. Code § DOC 310.13(1).
Id. The Secretary accepted the CCE’s recommendation on January 10, 2014.
Id. The plaintiff suggests that the untimeliness of his appeal resulted from
extensive problems with his legal loan in December. Dkt. No. 54 at 3.
7
informed he needs to follow institution rules. [Patient]
is to address his concerns again [at] his next
scheduled MD apt. While in HSU [patient] began
asking psych and pt for orders/items & was escorted
out of HSU due to [unintelligible]. [Patient] ambulates
[without] difficulty, no assistive devices used.
Id. The name of the medical professional who signed this progress note is
illegible.
On December 3, 2013, Officer Nelson wrote Incident Report Number
98063. Dkt. No. 44 at 8. In the report, Nelson detailed what happened next:
On 11-30-13 for library inmate McDaniel left the unit
1 in his personal tennis shoes. McDaniel sent back to
the unit, as of November 1, he is supposed to wear
only state issue to recreation and library. During
lunch time inmate McDaniel has informed me with
disrespectful manner: “I told officer in the bubble, I
told recreation officer and I let you know that I am sick
today.” and left the dayroom. He stated that the state
shoes are hard on his feet and he can’t walk. I
contacted HSU which was willing to see him; per HSU
and Lt. Bredemann inmate McDaniel can come down
to the dayroom and get the meal tray and meds. On
12-02-13 I contacted, spoke to nurse Christa and
verified that McDaniel is not on sick cell. On 12-3-13
inmate McDaniel refused to come down to the dayroom
for breakfast. Inmate has a manipulative and bossy
attitude. I believe he has made up this situation so he
can get a different cell and to wear his personal tennis
shoes, also inmate McDaniel abused his medical
restriction: he does wear knee brace all day long and
does not wear knee sleeve under brace to protect skin.
Capt. Franson was notified about incident, inmate
McDaniel placed in feed cell status. HSU was notified
about incident.
Dkt. No. 49-3, Ex. 1002 at 2.
Defendant Security Director Weber approved Nelson’s Incident Report on
December 4, 2013. Dkt. No. 49-3, Ex. 1002 at 2-3. Weber commented, “HSU to
8
follow with inmate and determine appropriate action,” and referred the report
to the Warden, Deputy Warden, and HSU Manager. Id.
The plaintiff also submitted HSRs on December 3, 2013, December 4,
2013, and December 5, 2013. In the first HSR, the plaintiff asked for
information about the medical professionals who cleared the plaintiff on the
“Problems List” for his diabetic neuropathy, knee pain, and Grave’s disease.
Dkt. No. 66-1 at 132. The staff member who responded was not clear about
what the plaintiff was asking and instructed the plaintiff to obtain the
information at the chart review that was already scheduled. Id.
The December 4 HSR deals with the plaintiff’s request for orthopedic
shoes, which had been “going on for years.” Dkt. No. 66-1 at 131. He asks for
orthopedic treatment for “diabetic feet,” which he alleged were painful and
swollen. Id. He represented that the state shoes didn’t work and that his
attempts to use personal shoes to relieve costs were denied. Id. The response
informed the plaintiff that he had an appointment scheduled with the doctor
soon to discuss treatments. Id. The plaintiff also noted in the HSR that he was
currently on sick cell for gout pain and knee. Id.
On December 5, 2013, the plaintiff asked (in all capital letters), “WHEN
DO I SEE THE MD.” Dkt. No. 66-1 at 133. A nurse responded the same day
that the plaintiff was scheduled to be seen by the doctor “within 10 days.” Id.
Also on December 5, 2013, the plaintiff filed Offender Complaint Number
CCI-2013-23502, in which he alleged that he had been refused three meals
since November 30, 2013, when he requested sick cell status as a result of his
9
left knee issues and foot pain. Dkt. No. 44 at 22. He said staff knew about
these issues. Id. The ICE investigated this claim and, on December 9, 2013,
after determining no staff misconduct or work rule violations, recommended
that the complaint be dismissed. Id. Defendant Warden Meisner reviewed the
complaint, together with the ICE’s findings and recommendation, and
dismissed the complaint on December 16, 2013. Id. The plaintiff appealed the
decision to the CCE, who recommended that the appeal be dismissed, and the
Secretary adopted the CCE’s recommendation. Id. at 22-23. The plaintiff
alleges that he is not privy to any investigation conducted and never was told
what information was researched or the criteria on which staff based their
decision. Dkt. No. 54 at 4.
On December 6, 2013, staff noted in the unit log that the plaintiff refused
to go to the dayroom to get his morning medications. Dkt. No. 44 at 10; Dkt.
No. 49, Ex. 1003 at 4. The plaintiff asserts that he did not refuse meals and
medications; he says that by December 6, he was weakened from missing
meals and physically unable to use the stairs. Dkt. No. 54 at 2. The unit log
also indicates that the plaintiff refused meals and medications on December 7,
2013, and December 9, 2013. Dkt. No. 49, Ex. 1003 at 5-6. The plaintiff
asserts that he was further weakened on December 7 by missing more meals,
and that by December 9, he had significant trouble staying awake and focusing
due to food deprivation. Dkt. No. 54 at 2.
On December 9, 2013, defendant correctional officer Pillar authored
Incident Report Number 98727. Dkt. No. 44 at 10. In the report, Pillar noted
10
that the plaintiff was on his third consecutive day without receiving a meal or
his medication. Dkt. No. 47-1, Ex. 1004 at 2. Pillar wrote:
Inmate McDaniel is refusing to leave his cell to eat his
meals and to take his controlled medication at the
appropriate times due to the continued soreness he is
experiencing in his lower extremities due to his
current medical conditions. Inmate McDaniel is upset
because HSU has not seen him to evaluate his current
conditions and he believes that they are refusing
treatment because of his current legal situation
involving the treatment or lack of treatment while he
has been in state custody. Inmate McDaniel has been
very pushy and bossy towards unit staff over the last
week because of his medical conditions and he is
insistent that staff place him on sick cell, or feed cell.
Upon making several calls by myself and other staff
who have been working on housing unit 1 to HSU
inmate McDanniel does not have a medical order in
place to be on sick cell or feed cell until he is seen by
the medical doctor for his conditions. Upon checking
with various supervisors I along with staff on the unit
were instructed to treat inmate McDaniel like everyone
else on the unit and if he wanted to eat his meals he
was to come through the tray line like everyone else.
As of the time of this report I spoke to RN Price in HSU
to once again verify with them if he had been given any
medical orders to be allowed to eat in his cell and she
reported that he was not on any kind of restriction
allowing him to do so. She also informed me that he
will have to be placed on a medical meal monitoring
due to his current hunger strike.
Id.
Pillar recalls informing the plaintiff that he would have to go to the
dayroom in order to get his meals and medications because there was no
restriction in place for the plaintiff. Dkt. No. 44 at 11.
On December 9, 2013, defendant Weber spoke with the plaintiff and
asked what could be done to ease his reported pain. Dkt. No. 44 at 11. The
11
plaintiff told Weber that he had problems using the stairs due his pain and
frequently missed meals because of it. Id.
The plaintiff submitted an HSR on December 10, 2013, asking for sick
cell because he was “missing many meals,” had “low blood sugar,” and “can’t
get meds either.” Dkt. No. 70-1 at 16. He wrote in this HSR that he was ordered
by HSU to keep weight off his right wrist, and wondered, “How can I bring up a
tray with bad legs too?” Id. He says, “Please give me ‘sick-cell’ till seen by M.D.”
Id. A nurse responded the same day, but only checked the boxes that the
plaintiff was scheduled to be seen by the doctor. Id.
On December 11, 2013, after being seen by a doctor, the plaintiff was
moved to a housing unit without stairs and with a much shorter walk to the
dayroom. Dkt. No. 44 at 12.
A supervisor, B. Franson, commented on Pillar’s report on December 12,
2013: “Inmate is refusing to come out of his cell over an issue with his feet.
HSU is treating the inmate for his foot malady. Staff will monitor his behavior.
Request copy to HSU Manager.” Dkt. No. 47-1, Ex. 1004 at 2. The plaintiff
disagrees with this characterization, and says that his medications were
ineffective and that he also had problems with his left elbow and right wrist
that were not mentioned. Dkt. No. 54 at 2.
Weber updated the report again on December 12, 2013, stating: “Inmate
was seen by MD on 12-11-13;” “Diabetic care plan established;” and “Inmate
will be called to HSU today to discuss hunger strike.” Id. The plaintiff says he
“is not aware of a ‘diabetic care plan,’” and he “was not called to HSU on
12
December 12, or any other day to discuss ‘hunger strike’ because as Weber
admitted, McDaniel DENIED that he was on any hunger strike.” Dkt. No. 54 at
2 (emphasis in original). Copies of Pillar’s report were referred to the warden,
deputy warden, corrections unit supervisor, an HSU nurse clinician, and the
HSU Manager. Dkt. No. 44 at 11-12.
E.
Facts Relating to Specific Defendants
1.
Ziegler
Unit Supervisor Ziegler remembers the plaintiff requesting sick cell
status, but he does not recall the specifics of any conversations he may have
had with the plaintiff about the issue. Dkt. No. 44 at 12. Ziegler believes he
would have directed the plaintiff to address his medical concerns with HSU
staff, just as he refers other inmates to do, because HSU staff determine sick
cell status and activity. Id. Nor does Ziegler recall staff asking him whether
they should place the plaintiff on feed cell or sick cell. Id. at 13. If they had,
Ziegler would have told them to confirm whether the plaintiff had a restriction
in place and, if there was no restriction, to direct the plaintiff to go to the
dayroom to receive his meals and medications, just like every other inmate. Id.
During the relevant time period, with the exception of the plaintiff being placed
on feed cell on December 3, 20133, the plaintiff was required to leave his cell to
receive his meals and medications, as there was no memo from HSU or security
establishing any medical restriction. Id. at 12.
The plaintiff disagrees with Ziegler’s assertions, and states that he was
never placed on feed cell. Dkt. No. 54 at 2. The plaintiff submits that Ziegler
13
was aware of his condition via “kites.” Id. The plaintiff asserts that he received
no responses to his kites to Ziegler. Id. He acknowledges that he cannot force
staff to address kites, but he believes that Ziegler is trying to set up “plausible
deniability.” Id.
2.
Anderson
As HSU Manager, Anderson’s job duties did not normally involve
providing direct care to patients, and she avers that she did not provide any
direct care to the plaintiff. Dkt. No. 44 at 13. According to the plaintiff, he met
with Anderson on June 10, 2013, to discuss diabetic shoes, hearing test
results and medications. Dkt. No. 54 at 2.
Anderson contends that she reviewed a pertinent portion of the plaintiff’s
medical record, and it reveals that the plaintiff was seen multiple times in the
HSU during his relevant incarceration at Columbia. Dkt. No. 44 at 13.
Anderson did not attach that pertinent portion of the plaintiff’s medical record
to her affidavit, and the defendants did not submit the plaintiff’s medical
records, in whole or in part, in support of their motion for summary judgment.
According to the plaintiff, Anderson allowed nursing staff to evaluate and
ascertain the plaintiff’s disability status. Dkt. No. 54 at 3. He believes that a
doctor or specialist would have come to a different conclusion; he bases this
belief on the treatment he received after December 11, 2013, when he saw a
doctor. Id.
14
Additionally, Anderson received copies of the incident reports prepared
by Nelson and Pillar on December 4, 2013, and December 12, 2013,
respectively. Dkt. No. 49-3, Ex. 1002 at 3; Dkt. No. 47-1, Ex. 1004 at 3.
3.
Meisner
Although Meisner had general supervisory authority over Columbia’s
operations, he did not supervise the day-to-day routine of individual
employees, unit staff, or medical personnel. Dkt. No. 44 at 20. Meisner says he
does not have personal knowledge regarding the plaintiff’s medical condition,
id. at 21, but the plaintiff disputes this assertion. Dkt. No. 54 at 4. The plaintiff
also disputes Meisner’s assertion that he was “not qualified to make medical
decisions, order, or provide medical services for inmates” because “[s]uch
diagnostic and treatment services are provided to inmates by the health care
professionals, i.e., physicians, nurse practitioners, or physician assistants,
employed at the inmate’s respective housing institution, in consultation with
any additional outside providers, when warranted.” Dkt. No. 44 at 20. The
plaintiff acknowledges that Meisner is not a medical professional, but suggests
that as warden, Meisner could have ordered an independent investigation or a
doctor’s intervention. Dkt. No. 54 at 4.
According to Meisner, his only involvement with the plaintiff’s claims
consisted of his involvement in the disposition of Offender Complaint Numbers
CCI-2013-23502 and CCI-2014-1030. Dkt. No. 44 at 22. As part of his duties
as Columbia’s Warden, Meisner acted as the appropriate reviewing authority on
15
certain offender complaints filed by inmates. Id.; Wis. Admin. Code § DOC
310.12.
On December 5, 2013, the plaintiff filed Offender Complaint Number
CCI-2013-23502, in which he alleged that he had been refused three meals
since November 30, 2013, when he requested sick cell status as a result of his
left knee issues and foot pain, which he alleged staff new about. Dkt. No. 44 at
22. The ICE investigated this claim and, on December 9, 2013, after finding no
staff misconduct or work rule violations, recommended that the complaint be
dismissed. Id. The plaintiff submits that he was not privy to any “investigation”
and suggests that nearly all of his complaints are routinely dismissed. Dkt. No.
54 at 4.
Meisner reviewed the complaint, together with the ICE’s findings and
recommendation, and dismissed the complaint on December 16, 2013. Dkt.
No. 44 at 22. The plaintiff appealed the decision to the CCE, who recommended
that the appeal be dismissed, and the Secretary adopted the CCE’s
recommendation. Id. at 22-23. The plaintiff disputes the assertions that the
institution reasonably and appropriately addressed the issue raised and that
he did not present further information on appeal that would warrant
overturning Meisner’s decision. Dkt. No. 54 at 4. He says he was assured that
the investigation was done based upon a medical review, but he was never
apprised of the information researched or the criteria on which the decision
was based. Id.
16
On January 13, 2014, the plaintiff filed Offender Complaint Number CCI2014-1030, alleging that Security Director Weber deliberately ignored his
request for help, thereby exacerbating the plaintiff’s pain issues. Dkt. No. 44 at
23. The plaintiff alleged that he missed meals and medications as a result. Id.
The ICE investigated the plaintiff’s claims and recommended that the
complaint be dismissed. Id. Meisner reviewed the complaint, together with the
ICE’s findings and recommendation, and dismissed the complaint. Id. The
plaintiff appealed to the CCE, the CCE recommended the appeal be dismissed,
and the Secretary adopted the CCE’s recommendation. Id. at 23-24. Once
again, the plaintiff avers that he was not privy to the investigation conducted.
Dkt. No. 54 at 4. He also submits that he was not apprised of the findings
specific to the dismissal of the original complaint and, therefore, could not offer
further information warranting overturning the complaint. Id. at 5.
Meisner submits that he is not aware of any additional correspondence
directed to him from the plaintiff related to this action and that he was never
personally involved in any decisions concerning the plaintiff’s medical
condition, or sick cell or feed cell status. Dkt. No. 44 at 24. The plaintiff
references missing correspondence but admits that he cannot prove Meisner
ever saw it. Dkt. No. 54 at 5.
Meisner did receive copies of the incident reports prepared by Nelson and
Pillar on December 4, 2013, and December 12, 2013, respectively. Dkt. No. 493, Ex. 1002 at 3; Dkt. No. 47-1, Ex. 1004 at 3.
17
F.
Plaintiff’s Requests for Accommodations
The defendants presented evidence of two requests the plaintiff made for
accommodations. “Special accommodations may be made for inmates with
documented medical or mental health conditions.” Dkt. No. 44 at 18. “An
inmate requests a special accommodation by submitting a DOC-2530
Reasonable Modification/Accommodation Request form to the ADA Coordinator
or designee.” Id. “In order to determine whether an inmate needs a modification
or accommodation, ADA staff explore the issue with the inmate, as well as
related department personnel and outside providers as necessary, in order to
determine whether the inmate has a documented disability.” Id. at 18-19.
“Subsequently, ADA staff determine whether the inmate meets the criteria for
service and discern if a reasonable accommodation may be warranted to enable
the inmate equal access, or equal participation in programs, services, and
activities offered by the DOC/CCI, and if so, what type of accommodation.” Id.
at 19. “An accommodation is granted if the questions of disability and service
eligibility are affirmed and if ADA staff believe a reasonable accommodation is
necessary in order to enable the inmate equal access or equal participation in
one or more programs, services, or activities offered by DOC/CCI.” Id.
On June 16, 2013, the plaintiff submitted a Reasonable
Modification/Accommodation Request form, asking to be allowed “personal
shoes; soft wrist and ankle cuffs; authorization to wear personal shoes during
off-site visits; employment in which he must stand or walk to keep his feet and
joints extremely active; and access to law computers because of his need to
18
walk slowly.” Id. at 19. The plaintiff claimed he “needed these accommodations
because of left knee damage, diabetic neuropathy and joint issues.” Id. “The
HSU staff was consulted on June 20, 2013.” Id.
On July 17, 2013, ADA Coordinator Hautamaki denied the plaintiff’s
request, indicating that the plaintiff “did not have a qualified disability in order
to grant such accommodations.” Id. at 20. Hautamaki noted that HSU staff saw
the plaintiff for his foot issues and found “no justification for soft restraints,
and state-issued shoes must be worn for off-site appointments.” Id.
The plaintiff says he never met with defendant Pamela Schmidt, the
Assistant ADA Coordinator, to explore issues regarding his claims. Dkt. No. 54
at 3. He also submits that ADA staff cannot make a competent determination
whether an inmate meets the criteria for services or discern whether a
reasonable accommodation may be warranted if the inmate is not involved in
the process. Id. at 4.
On February 6, 2014, the plaintiff submitted another Reasonable
Modification/Accommodation Request form; this time, he asked to be allowed
“access to recreation, music, and chapel; soft cuffs; pillow; white socks;
glucometer access; less painful state shoes and proper unit placement.” Dkt.
No. 44 at 20. The plaintiff asserted that he needed these accommodations due
to painful feet, left knee, neuropathy, and joint issues, and also stated that he
had Grave’s Disease, diabetes, and chronic kidney disease. Id.
Schmidt consulted HSU on February 6, 2014, and denied the plaintiff’s
request “on the grounds that all of his concerns had been addressed by HSU
19
Manager Candace Warner on January 22, 2014.” Id. The plaintiff disagrees,
stating that his meeting with Warner consisted of her reciting policies and
denying the plaintiff services. Dkt. No. 54 at 4. The plaintiff presented Warner
with an executive order and she said she’d never seen it before. Id. She asked
the plaintiff where he had gotten it and said she would look into it, but he
never heard from her again. Id.
II.
DISCUSSION
A.
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.” 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 disputed 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 of a genuine dispute, or that an
20
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).
B.
Eighth Amendment Claims
The Eighth Amendment prohibits cruel and unusual punishment and
applies to the states through the Due Process Clause of the Fourteenth
Amendment. Gillis v. Litscher, 468 F.3d 488, 491 (7th Cir. 2006) (citation
omitted). To prevail on an Eighth Amendment claim, the plaintiff must show
that the defendants denied him “the minimal civil measure of life’s necessities.”
Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69
L.Ed.2d 59 (1981)). This includes adequate food and medical care. Farmer v.
Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The
plaintiff also must show that the defendants knew he faced a “substantial risk
of serious harm” and “disregard[ed] that risk by failing to take reasonable
measures to abate it.” Gillis, 468 F.3d at 491 (quoting Farmer, 511 U.S. at
847).
The Seventh Circuit has concluded that missed meals do not constitute
an Eighth Amendment violation when the missed meals result from the
prisoner’s choice not to comply with a rule. In Rodriguez v. Briley, 403 F.3d
952, 952 (7th Cir. 2005), the Court found no Eighth Amendment violation
where a prisoner missed 300-350 meals in an eighteen-month period because
21
he refused to store certain of his belongings in a storage box before leaving his
cell. The Court concluded that “deliberate noncompliance with a valid rule does
not convert the consequences that flow automatically from that noncompliance
into punishment.” Id. at 953. The court found that the plaintiff could have left
his cell and gone to the cafeteria at any time if he had put his belongings in the
storage box. Id.
Similarly, in Freeman v. Berge, 441 F.3d 543, 544-45 (7th Cir. 2006), the
plaintiff was “the author of his deprivation rather than a victim of punishment”
because he refused to put on pants when his meals were delivered. “The pants
requirement, violation of which was the major cause of Freeman’s missed
meals, imposed a condition that he could readily have complied with; he offers
no excuse for his noncompliance.” Id. at 545.
The plaintiff’s sworn assertions in this case distinguish him from the
plaintiffs in Rodriguez and Freeman. The plaintiff here did not “hold[] the keys
to his own fate.” Gillis, 468 F.3d at 494. He had alleged that he could not just
walk down to the dayroom several times a day to get his meals and medication,
because he was in excruciating pain and feared he would fall down the stairs.
Thus, the court must consider whether there is a genuine dispute of material
fact as to whether each defendant was deliberately indifferent to the plaintiff.
“Claims of deliberate indifference to medical needs are examined
differently depending on whether the defendants in question are medical
professionals or lay persons.” McGee v. Adams, 721 F.3d 474, 481 (7th Cir.
2013). Medical professionals are “entitled to deference in treatment decisions
22
unless no minimally competent professional would have so responded under
[the] circumstances” at issue. Id. (quoting Roe v. Elyea, 631 F.3d 843, 857 (7th
Cir. 2011)).
When a medical professional acts in his professional
capacity, he may be held to have displayed deliberate
indifference only if the decision by the professional is
such a substantial departure from accepted
professional judgment, practice, or standards, as to
demonstrate that the person responsible actually did
not base the decision on such a judgment. Deliberate
indifference is not medical malpractice; the Eighth
Amendment does not codify common law torts.
McGee, 721 F.3d at 481 (quotations and citations omitted).
Non-medical professionals are entitled to rely on the medical
professionals’ determinations. McGee, 721 F.3d at 483. “The only exception to
this rule is that nonmedical officers may be found deliberately indifferent if
they have reason to believe (or actual knowledge) that prison doctors or their
assistants are mistreating (or not treating) a prisoner.” Id. (quoting King v.
Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012) (internal quotation omitted)).
The defendants argue that they were not deliberately indifferent to the
plaintiff and are entitled to summary judgment. They acknowledge that the
plaintiff missed a number of meals between November 30, 2013, and
December 11, 2013, but they submit that they were allowed to rely on
information from medical professionals who determined that the plaintiff had
no medical need for meal delivery.
The defendants also assert that there is no evidence in the record to
support the plaintiff’s claim that he could not leave his cell to receive meals.
23
They suggest that the plaintiff’s claim amounts to disagreement with a medical
professional’s treatment decision and therefore does not state a claim under
the Eighth Amendment. Oddly, though, the defendants did not submit the
plaintiff’s medical records for consideration. They rely on a description of the
plaintiff’s November 18, 2013 visit to the University of Wisconsin Hospital’s
Nephrology Clinic from a decision on an offender complaint.
The plaintiff, on the other hand, has presented evidence of many HSRs
he submitted seeking treatment for pain and other medical conditions. He also
provided some medical records and progress notes in response to the
defendants’ motion for summary judgment. The plaintiff’s sworn declarations
are evidence. See Lax v. City of South Bend, 449 F.3d 773, 774 (7th Cir. 2006).
The number of HSRs the plaintiff submitted and their content, as well as
his decision as a diabetic to miss meals rather than navigate the stairs to get to
the dayroom for his meals and medication, underscore the plaintiff’s
complaints of excruciating pain. The evidence the plaintiff has submitted
demonstrates that there is a genuine issue of material fact regarding whether
the named defendants were deliberately indifferent to the plaintiff’s serious
medical needs. The submissions demonstrate that there is a dispute regarding
whether the named defendants ignored the plaintiff’s pain and inability to
navigate the stairs, and whether their turning a blind eye to that pain and
inability resulted in the plaintiff’s missing numerous meals between
November 30, 2013, and December 11, 2013.
24
1.
Anderson
Anderson is a nurse, and argues that she and other HSU staff assessed
the medical information available and determined that the plaintiff did not
require a special shoe restriction or feed cell restriction. Anderson also averred,
however, that she did not provide any direct care to the plaintiff. Dkt. No. 44 at
13. The defendants have presented no findings of fact regarding whether
Anderson or any other members of the HSU staff conducted assessments of the
plaintiff during the relevant time period, but Anderson suggests that she knew
about the plaintiff’s HSRs. It is undisputed that she received a copy of Officer
Nelson’s incident report on December 4, 2013. Given this evidence that
Anderson knew that the plaintiff was complaining of pain and was not getting
meals, a reasonable jury could conclude that Anderson was deliberately
indifferent to the plaintiff’s serious medical needs between November 30, 2013,
and December 11, 2013. A reasonable jury also could conclude that, at least by
December 4, 2013, Anderson knew about the conditions that were causing the
plaintiff to miss meals, and that she failed to take some action (placing him on
restriction, for example) to prevent him missing further meals. The court will
deny the motion for summary judgment as to Anderson.
2.
Pillar
By December 9, 2013, when Pillar prepared his incident report, the
plaintiff had missed many meals. Pillar notes that he and other staff had made
several calls to the HSU to determine whether the plaintiff had a medical order
to be on sick cell or feed cell. Pillar argues that he was entitled to rely on the
25
decisions of the medical professionals in that regard. It is true that nonmedical professionals are entitled to rely on the determinations of medical
professionals, but ‘nonmedical officers may be found deliberately indifferent if
‘they have a reason to believe (or actual knowledge) that prison doctors or their
assistants are mistreating (or not treating) a prisoner.’” McGee, 721 F.3d at 483
(quoting King, 680 F.3d at 1018). Pillar was on the unit, and knew the plaintiff
was not eating. He also knew or had reason to know that the plaintiff had not
been by a medical professional for at least a few days. A reasonable jury could
conclude that Pillar knew, or had reason to believe, that HSU was not treating
the plaintiff. A reasonable jury could find that Pillar could have stepped in to
deliver meals and medication to the plaintiff or to ask that the plaintiff’s status
be restricted to feed cell. The court will deny the motion for summary judgment
as to Pillar.
3.
Ziegler
A genuine dispute of material fact precludes the court granting summary
judgment in favor of Ziegler. Ziegler recalls that the plaintiff requested sick cell
status at some point during the time period at issue in the lawsuit, but he does
not recall specifics of any conversations he had with the plaintiff. Dkt. No. 44
at 12. The plaintiff submits that Ziegler was aware of his condition via “kites”
the plaintiff sent Ziegler, even though the plaintiff received no responses. Dkt.
No. 54 at 2. If Ziegler knew what was happening with the plaintiff—which,
under the plaintiff’s version of events, he may have—he could have intervened,
either by seeking to have the plaintiff placed on feed cell status of making sure
26
he was seen by HSU staff. The court will deny the motion for summary
judgment as to Ziegler.
4.
Weber
By December 4, 2013, when he approved Nelson’s incident report and
commented, “HSU to follow with inmate and determine appropriate action” and
referred the report to the Warden, Deputy Warden, and HSU Manager Weber
knew about the plaintiff’s situation,” Weber was aware of the plaintiff’s medical
allegations and missed meals. Dkt. No. 49-3, Ex. 1002 at 2-3. Weber did not
take additional action, however, until December 9, 2013, after Pillar’s incident
report. At that point, Weber spoke with the plaintiff and heard from the plaintiff
that he had problems using the stairs due his pain and frequently missed
meals because of it. Dkt. No. 44 at 11. Even then, it took until December 11,
2013, for the plaintiff to see a doctor and be moved to a housing unit without
stairs and with a much shorter walk to the dayroom. Dkt. No. 44 at 12.
A reasonable jury could conclude that Weber was deliberately indifferent
when he failed to act sooner to move the plaintiff or to make sure he was seen
by a doctor in a timely fashion. The jury concluded that the plaintiff missed
additional meals as a result of that deliberate indifference. The court will deny
the motion for summary judgment as to Weber.
5.
Meisner
Finally, the plaintiff has presented evidence that Meisner received notice
of his situation when Meisner received a copy of Nelson’s incident report on
December 4, 2013, Dkt. No. 49-3, Ex. 1002 at 3, and when the ICE submitted
27
a dismissal recommendation on December 9, 2013, Dkt. No. 44 at 22. A
reasonable jury could conclude that once Meisner knew about the plaintiff’s
missed meals, he showed deliberate indifference in failing to intervene. The
court will deny the motion for summary judgment as to Meisner.
C.
Americans with Disabilities Act and Rehabilitation Act
The court also allowed the plaintiff to proceed on claims under the ADA
and the RA. The defendants argue that they are entitled to summary judgment
on these claims because the plaintiff did not have a qualified disability. The
plaintiff responds that his diabetes qualifies as a disability under the ADA and
the RA as a matter of law.
The relief available to the plaintiff under the ADA and the RA is
coextensive. Jaros v. Ill. Dep’t of Corr., 684 F.3d 667, 671 (7th Cir. 2012)
(citations omitted). “And . . . the analysis governing each statute is the same
except that the Rehabilitation Act includes as an additional element the receipt
of federal funds, which all states accept for their prisons.” Id. at 671-72
(citations omitted). As a practical matter, then, the court “may dispense with
the ADA and the thorny question of sovereign immunity,” since the plaintiff
“can have but one recovery.” Id. at 672 (citations omitted).
To succeed on a claim under the Rehabilitation Act, a plaintiff “must
meet the threshold burden of establishing that he is ‘disabled’ within the
meaning of the statute.” Stein v. Ashcroft, 284 F.3d 721, 724 (7th Cir. 2002)
(quoting Roth v. Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995)).
“For purposes of the Rehabilitation Act, a person is ‘disabled’ if he or she ‘has a
28
physical or mental impairment which substantially limits one or more of such
person’s major life activities.’” Stein, 284 F.3d at 724 (quoting Hamm v.
Runyon, 51 F.3d 721, 724 (7th Cir. 1995)); 29 U.S.C. § 706(8)(B). “Major life
activities are defined as ‘functions such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning and
working.’” Stein, 284 F.3d at 724-25 (quoting Roth, 57 F.3d at 1454); 29 C.F.R.
§ 1613.702(c).
The parties disagree regarding whether the plaintiff had a physical
impairment that substantially limited a major life activity.
Diabetes is a recognized impairment under the ADA, but it is not
sufficient, per se, to qualify as a disability. Branham v. Snow, 392 F.3d 896,
902-033 (7th Cir. 2004). “For example, a diabetic whose illness does not impair
his or her daily activities, after utilizing medical remedies such as insulin,
should not be considered disabled.” Id. at 903 (quotations and citations
omitted). In Branham, the court suggested that “[a]n individualized inquiry into
each plaintiff’s condition remains the rule in cases under the Rehabilitation Act
and the ADA.” Id.
In 2008, however, Congress enacted amendments to the ADA (ADAAA)
(which became effective January 1, 2009) that broadened the definition of what
constitutes a disability. Nyrop v. Indep. Sch. Dist. No. 11, 616 F.3d 728, 734
n.4 (8th Cir. 2010). “[T]he ADAAA broadened the ADA’s protection by
superseding portions of Sutton v. United Air Lines, Inc., 527 U.S. 471, 119
S.Ct. 2139, 144 L.Ed.2d 450 (1999) and Toyota Motor Mfg. v. Williams, 534
29
U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), to [] include a wider range of
impairments that substantially limit a major life activity.” Fleishman v. Cont’l
Cas. Co., 698 F.3d 598, 606 n.3 (7th Cir. 2012).
“The ADA Amendments Act of 2008 superseded Williams, by expressly
rejecting the court’s narrow interpretation of the terms ‘substantially limits’
and ‘major life activity’ in favor of a broader interpretation.” E.E.O.C. v.
AutoZone, Inc., 630 F.3d 635, 641 n.3 (7th Cir. 2010).
Part of Congress’s purpose in enacting the
Amendments was to make clear its intent that the
determination of whether an individual has a disability
under the ADA “should not demand extensive
analysis.” ADA Amendments Act of 2008 § 2(b)(5), 122
Stat. at 3554. Of particular note, Congress stated that
the term “substantially limits” should be interpreted
broadly to provide wide coverage. See id. § 2(a)(1), 122
Stat. at 3553.
Id.
In this case, genuine disputes of material fact preclude the court from
determining as a matter of law whether the plaintiff was disabled during the
relevant time period. The plaintiff swears that he was in so much pain that he
could not walk to the dayroom several times a day for his meals and
medication. The defendants submit that the plaintiff provided no record
evidence to establish that he had a qualifying disability, and that he was
provided a timely accommodation.
Determinations prison staff made at other times regarding other
accommodation requests are not dispositive regarding whether the plaintiff was
disabled at the time relevant to this case. It is unclear what medical
30
professionals evaluated the plaintiff during the relevant time period. The court
has only the progress note from December 2, 2013. The next time the plaintiff
saw a medical professional was his appointment with a doctor on December 11,
2013, after which he was moved to a cell without stairs and with a shorter walk
to the dayroom for medication and meals.
The Seventh Circuit has made it clear that “summary judgment cannot
be used to resolve swearing contests between litigants.” McCann v. Iroquois
Mem’l Hosp., 622 F.3d 745, 752 (7th Cir. 2010) (quoting Payne v. Pauley, 337
F.3d 767, 770 (7th Cir. 2003). Nor may the court “weigh the evidence or decide
which testimony is more credible.” McCann, 622 F.3d at 752 (citations
omitted). Because there are genuine issues of material fact regarding whether
the impact of the plaintiff’s diabetes during the relevant time period rendered
him “disabled” for purposes of the statutes, the court must deny the
defendants’ motion for summary judgment as to those claims.
III.
CONCLUSION
The court DENIES the defendants’ motion for summary judgment. Dkt.
No. 43.
The court will contact the plaintiff’s case worker and counsel for the
defendants to schedule a telephonic status conference. At this conference, the
parties should be prepared to discuss—next steps, such as whether they are
31
willing to participate in magistrate-facilitated mediation and whether they wish
the court to schedule final pretrial conference and trial dates.
Dated in Milwaukee, Wisconsin this 30th day of March, 2016.
32
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?