Almond v. Pollard et al

Filing 130

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 8/30/2017. 25 Plaintiff's MOTION for Summary Judgment DENIED. 73 Defendants' MOTION for Summary Judgment GRANTED. (cc: all counsel, via mail to Dwayne Almond at Milwaukee Secure Detention Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DWAYNE ALMOND,
Plaintiff,
v.

Case No. 14-cv-901-pp

WILLIAM POLLARD, DR. BAIRD,
DR. ENDRES, DR. JOHNSON,
DR. LUDVEGSON, N. KAMPHUIS,
MR. NESBIT, WELCOME ROSE,
CHARLES FACKTOR, MATTHEW FRANK,
and KAREN GOURLIE,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 25) AND GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 73)
______________________________________________________________________________
The plaintiff, Dwayne Almond, is a prisoner representing himself. He filed
this lawsuit alleging that the defendants deprived him of mental health care for
his serious mental health needs since November or December 2013, in
violation of his constitutional rights. Dkt. No. 1. The plaintiff has filed a motion
for summary judgment, Dkt. No. 25, as have the defendants, Dkt. No. 73. For
the reasons explained in this order, the court will deny the plaintiff’s motion,
grant the defendants’ motion, and dismiss the case.

1

I.

FACTS1
A.

The Parties

The plaintiff was incarcerated at Waupun Correctional Institution
(Waupun) at all times relevant to this case. Dkt. No. 76 at ¶1. He began his
incarceration at Waupun on December 2, 2011. Dkt. No. 26 at ¶2.
Defendants Paul Ludvigson, Courtney Endres, Lesley Baird and Sandra
Johnston were members of the Psychological Services Unit at Waupun at all
times relevant. Dkt. No. 76 at ¶¶10, 12, 14, 16. Defendant Nicole Kamphuis is
the Americans with Disabilities Act (ADA) coordinator at Waupun, and
defendant Greg Nesbit was the backup ADA coordinator at the relevant time.
Id. at ¶¶4-5. Defendants Welcome Rose, Charles Facktor and Karen Gourlie
served as corrections complaint examiners, who investigate and respond to
The court takes facts from the Defendants’ Proposed Findings of Facts.
Dkt. No. 76. The plaintiff did not respond to the defendants’ proposed facts.
The defendants’ facts are therefore undisputed. See Fed. R. Civ. P. 56(e)(2).
The plaintiff also filed Proposed Findings of Facts. Dkt. No. 26. The
defendants object to the plaintiff’s facts generally, to the extent that they
include allegations beyond the scope of the court’s November 14, 2014,
screening order (Dkt. No. 14), which permitted the plaintiff to proceed on
claims that the named defendants failed to provide him with adequate mental
health care beginning in November or December of 2013. Dkt. No. 75 at 1. In
support of his proposed findings of fact, the plaintiff has submitted documents
including portions of medical records dating back as far as 1987, depositions
from prior litigation, and inmate complaints from prior years not at issue in
this case. Id. The defendants object to the records to the extent that they are
incomplete. Id. at 2. They also contend that the records and testimony
predating the relevant timeframe are immaterial to any issues in this case. Id.
The defendants request that the court “strike” the plaintiff’s proposed
facts that are not properly supported and/or material. The court will not
“strike” these facts. Instead, the court will not consider facts that are not
properly supported and/or material. The court will include in its discussion
only material facts that are supported by admissible evidence. See Fed. R. Civ.
P. 56(c)(1), (2); 56(e).
1

2

inmate complaints. Id. at ¶¶7, 9. Defendant William Pollard is the former
warden at Waupun, and defendant Matthew Frank is the former secretary of
the Department of Corrections. Id. at ¶¶2, 8.
B.

Psychological Services at Waupun

Waupun staff assign all Waupun inmates a primary clinician from the
Psychological Services Unit (PSU). Id. at ¶31. At intake, staff members assess
inmates and assign them one of the following mental health codes:
MH-0: No mental health needs;
MH-1: Acute or minor mental health need;
MH-2: Presence of a serious mental illness;
MH-2A: Serious mental illness such as schizophrenia or
bipolar disorder; or
MH-2B: Inmate has a personality disorder that seriously
impairs his functioning such that he is in need of clinical
monitoring.
Id. at ¶¶20-21.
PSU staff members see MH-0 inmates if those inmates request services
or if they are imminently suicidal (in which case the clinician assigned to crisis
duties for that day would see the inmate immediately). Id. at ¶24. Generally,
clinicians do not see general population inmates with an MH-0 mental health
rating unless such inmates submit a Psychological Services Request (PSR). Id.
at ¶55. In that case, the clinician typically sees the inmate within three to six
weeks, depending on that clinician’s caseload, which could vary from 100-300
inmates. Id.

3

PSU staff members routinely see MH-1 and MH-2 inmates for wellness
checks, and to assess their symptomatology and treatment needs. Id. at ¶26.
Staff members monitor MH-1 inmates every six months while in general
population, and MH-2 inmates every three months while housed in general
population. Id. at ¶27.
In the segregation unit, PSU staff conduct routine rounds every one to
two weeks, during which they approach inmates’ cell fronts and speak with
them to provide wellness checks and determine if the inmates need further
treatment. Id. at ¶¶41, 43-44. Staff members see all inmates, regardless of
mental health code, upon their arrival in segregation to assess their mental
status and adjustment to segregation. Id. at ¶42.
C.

Psychological Care of the Plaintiff

Dr. Endres was the plaintiff’s primary clinician from May 2013 to May
2014. Id. at ¶38. The plaintiff’s mental health code was MH-0 during that time.
Id. at ¶39.
Dr. Endres’ initial contact with the plaintiff occurred on May 6, 2013,
when the plaintiff was in the segregation unit. Id. at ¶40. That day, the plaintiff
asked Dr. Endres to transfer him to the Behavioral Health Unit, a special unit
at Waupun for chronically and severely mentally ill inmates. Id. at ¶47. The
plaintiff insisted that he was schizophrenic, despite any overt manifestation of
psychosis or any indication of such a diagnosis in recent records. Id. at ¶48.
Dr. Endres informed the plaintiff that the plaintiff did not have a mental health

4

diagnosis and that he lacked any signs of psychosis, and that transfer to the
Behavioral Health Unit would be inappropriate. Id. at ¶49.
A week later, on May 13, 2013, Dr. Endres arrived at the plaintiff’s cell
door for a brief check of mental status. Id. at ¶50. The plaintiff shouted a
somewhat unintelligible statement about not wanting to speak with any “DOC
people because [we] are all the same!” Id.
The plaintiff did not request any further mental health care until
November 2013, when he submitted a psychological services request (PSR)
from his cell in general population. Id. at ¶51. In the PSR, the plaintiff asked
“to see the (Mental – Expert – Doctor), do[sic] to hearing-voices, and seeing
unknowed [sic]– people – before – me?” Id. at ¶52. Waupun staff forwarded the
PSR to Dr. Endres, who responded in writing, informing the plaintiff that the
plaintiff would be “put on my schedule; it will be in 4-5 weeks.” Id. at ¶¶53-54.
In December 2013, the plaintiff transferred into segregation status. Id. at
¶56. Dr. Endres checked on him during rounds on December 16, 2013, noting
that the plaintiff appeared to be sleeping. Id. at ¶57. Ten days later, on
December 26, 2013, Dr. Endres checked on the plaintiff again. Id. at ¶58. The
plaintiff was awake and appeared to be writing something, but he would not
respond when Dr. Endres called his name and knocked on his door. Id. On
January 6, 2014, Dr. Endres tried again, and the plaintiff ignored her attempts
to speak with him. Id. at ¶59.
In March 2014, the plaintiff was back in segregation, and Dr. Endres
again attempted to speak with him. Id. at ¶61. When Dr. Endres approached
5

his cell, the plaintiff shouted, “I’m busy!” and would not further acknowledge
her presence. Id. On April 14, 2014, Dr. Endres tried again. Id. at ¶62. The
plaintiff was awake and appeared to be doing paperwork, but would not
respond to her attempts to speak with him. Id. On April 28, 2014, Dr. Endres
approached the plaintiff’s cell door and the plaintiff yelled, “Get the f—k away
from my door!” Id. at ¶63.
On May 5, 2014, Dr. Endres attempted to speak to the plaintiff at his cell
and received the same result. Id. That same day, the plaintiff sent a PSR to the
“Supervisor of PSU,” asking for a transfer to the Wisconsin Resource Center, a
facility for severely mentally ill patients, so that he could participate in a prerelease program. Id. at ¶¶64-65. Primary clinicians initiate transfers to this
program, and a series of officials approves the transfers. Id. at ¶65. Officials
typically permit transfers where the inmate has made efforts to participate in
group or individual treatment at Waupun, and where the inmate requires
additional, more intensive mental health treatment. Id. at ¶66. Officials require
inmates who do not meet these specialized needs to use the pre-release
services that Waupun’s social work department offers. Id. at ¶67.
Consequently, Dr. Endres denied the plaintiff’s request, and suggested that he
contact the social work department regarding pre-release programming. Id. at
¶68.
On May 12, 2014, Dr. Endres tried to speak with the plaintiff, who
responded by yelling obscenities at her. Id. at ¶69. When Dr. Endres explained
her presence at his cell, the plaintiff began screaming at her again. Id. The
6

following week, the plaintiff posted a sign on his door indicating that he did not
wish to speak with PSU staff. Id. at ¶70. At some point after May 19, 2014, the
plaintiff transferred to another PSU staff member, and Dr. Endres had no
further involvement with him. Id.
Defendant Ludvigson was not the plaintiff’s primary clinician, but he did
provide the plaintiff care on an as-needed basis, and saw him during clinical
rounds when his primary clinician was not available. Id. at ¶74. Ludvigson
attempted to meet with the plaintiff during rounds on June 2, 2014. Id. ¶75.
He noted that the plaintiff was upset because the psychiatrist had not seen
him for medications. Id. During rounds on June 9, 2014, Ludvigson stopped to
speak with the plaintiff at his cell front, and noted that the plaintiff wanted an
appointment with the psychiatrist. Id. at ¶78. The plaintiff informed Ludvigson
that he had stopped taking medication “years ago” and that he had previously
taken Haldol. Id. Ludvigson advised the plaintiff to write to the psychiatrist if
he wanted an appointment. Id. On June 23, 2014, during rounds, Ludvigson
spoke with the plaintiff for clinical monitoring at his cell front. Id. at ¶79. The
plaintiff asked Ludvigson if Ludvigson had told psychiatry that the plaintiff
wanted medications, and Ludvigson told the plaintiff that Ludvigson had
notified his clinician of his request for medications. Id. Ludvigson also informed
the plaintiff that the plaintiff could write to Health Services Unit (HSU) for an
appointment with the psychiatrist. Id.
In mid-May of 2014, Bonnie Halper (who is not a defendant in this case)
became the plaintiff’s primary clinician after Dr. Endres. Id. at ¶74. Halper saw
7

the plaintiff on clinical rounds nine times during the remainder of 2014. Id. at
¶81.
Halper saw the plaintiff in the group room in the segregation unit on
November 5, 2014, for an individual session. Id. at ¶85. Halper noted that the
plaintiff arrived calm, and was cooperative throughout their discussion about
his mental health concerns. Id. The plaintiff indicated to Halper that he was
sad/depressed at a 7/8 on a scale of 1 to 10, and that he had experienced
depression since childhood. Id. Halper noted that the plaintiff stated that he
had little energy and could focus his attention for only a few moments at a
time. Id. The plaintiff also felt very stressed, and could tolerate the voices (in
his head) for so long, but they become unbearable and his cellmates become
irritated with him because he sometimes answered the voices, making the
inmates think the plaintiff was talking with them, and at times took offense. Id.
The plaintiff reported that he had been treated with Thorazine and Seroquel in
the community and would get daily Haldol, but there were times he was given
Haldol shots. Id. The plaintiff stated that he, his father and a cousin all were
diagnosed with schizophrenia (paranoid type), and asked for a referral for
psychiatry for the purpose of medication consideration. Id. Halper agreed to
prepare a referral. Id.
Based on her examination, Halper found that although the plaintiff
reported hearing voices, it actually might be intrusive thoughts, and she
decided to conduct further assessment. Id. at ¶87. Halper diagnosed the
plaintiff with Unspecified Depressive Disorder, Dysthymic Disorder, and a Hx
8

(history) of Schizophrenia. Id. at ¶88. She made a plan to change the plaintiff’s
level of mental health monitoring due to the referral for psychiatric care, and
changed his mental health code to MH-1. Id. Defendant Baird reviewed and
signed Halper’s Psychological Services Clinical Contact note on December 1,
2014. Id.
On November 24, 2014, the plaintiff saw psychiatrist Todd Callister (who
is not a defendant in this case). Id. at ¶90. Dr. Callister noted that the plaintiff
did not present with a psychotic illness, and he did not prescribe any
medication at that time. Id.
On December 18, 2014, Halper saw the plaintiff in response to his
request to be seen. Id. at ¶91. Halper noted that the plaintiff reported that he
felt “more than” depressed, yet she found that his affect appeared to express
anger and agitation. Id. Halper further noted that the plaintiff indicated that he
felt fearful and felt afraid of the voices that told him things like “he should kill
himself, drink water out of the toilet, they’ll kill you, or they’re setting you up.”
Id. The plaintiff informed Halper that the hallucinations he saw involved “scary
faces.” Id. The plaintiff indicated that he had some concerns about
transitioning to regular GP (general population), and said that he would like to
participate in pre-release treatment. Id. The plaintiff spoke about not being
seen by Dr. Callister and still not having medications; Halper encouraged him
to send another PSR to HSU. Id.
Based on her exam, Halper maintained the plaintiff’s MH-1 mental
health code and diagnosis of Unspecified Depressive Disorder, Dysthymic
9

Disorder, and a history of Schizophrenia per PSU Records. Id. at ¶93. Halper
noted that the plaintiff indicated that he wanted to participate in a pre-release
and coping skills group, and that he agreed to complete a screen form for that
group and return it to PSU. Id. Defendant Baird reviewed and signed Halper’s
Psychological Services Clinical Contact note on January 5, 2015. Id.
On January 15, 2015, Dr. Callister saw the plaintiff for a follow-up
appointment, and observed that he did not believe any psychiatric treatment,
including medication, was necessary. Id. at ¶94. Dr. Callister instead
diagnosed the plaintiff as “malingering,” with a history of personality disorder
with narcissistic and antisocial features. Id.
The January 15, 2015 psychiatric report on the plaintiff indicated that “a
review of his chart and numerous providers have come to the conclusion that
the patient is malingering symptoms . . . ,” and further that “he has been
incarcerated since 2005 and reports from psychology staff have consistently
noted an absence of any evidence of psychotic symptoms.” Id. at ¶95. The
psychiatrist concluded with the diagnoses of malingering and a “history of
personality disorder with narcissistic and antisocial features.” Id.
On January 22, 2015, defendant Ludvigson attempted to meet with the
plaintiff, who glared at him and said, “All you honkeys keep your honkey asses
away from my door.” Id. at ¶97. Ludvigson performed a limited mental health
status evaluation, and observed that the plaintiff’s mental health status was
within normal limits. Id. Ludvigson then made a treatment plan, which
specified that the plaintiff would be seen routinely during clinical rounds in
10

segregation based on the clinical monitoring schedule, and as he requested. Id.
at ¶98. Baird reviewed and signed Ludvigson’s plan. Id.
Ludvigson attempted to speak with the plaintiff for clinical monitoring on
April 13, 2015, after the plaintiff was placed in temporary lockup for assault.
Id. at ¶99. The plaintiff refused the visit, stating, "Get the fuck away from my
door with that hoe-ass shit! Sick ass fags!” Id. Ludvigson maintained the
plaintiff’s MH-1 mental health code and made a plan to have him seen
routinely by his clinician during clinical rounds, and as requested. Id.
Ludvigson had no further involvement in the mental health care of the plaintiff
after April 13, 2015. Id. at ¶100.
PSU staff continued to try to engage the plaintiff for treatment during
clinical rounds, but he refused to cooperate with staff efforts. Id. at ¶101.
Specifically, PSU staff members attempted to speak with the plaintiff, and were
rebuffed, during clinical rounds on: January 26, 2015; February 5, 2015;
February 10, 2015; February 17, 2015; February 23, 2015; April 20, 2015;
April 27, 2015; May 5, 2015; May 18, 2015; May 26, 2015; June 1, 2015; June
8, 2015; July 6, 2015; July 14, 2015; July 20, 2015; July 27, 2015; August 3,
2015; and August 17, 2015. Id. at ¶102.
Baird had no further involvement in the plaintiff’s mental health care
after March 20, 2015. Id. at ¶103. Baird did not provide direct mental health
care to the plaintiff from November, 2013 until her departure from Waupun in
March 2015. Id. at ¶104. Her only involvement consisted of her supervision, as
the PSU Supervisor, of the plaintiff’s mental healthcare. Id.
11

Defendant Johnston was not the plaintiff’s primary clinician from
November 2013 until she left Waupun in January 9, 2015. Id. at ¶105.
Johnston has no knowledge of, nor was she ever personally involved in, any
decisions related to the plaintiff’s mental health care from November 2013 until
January 9, 2015. Id. at ¶106. She had no involvement regarding the plaintiff’s
mental health care since November 2013. Id.
D.

ADA Coordinator

Each DOC institution appoints an ADA Coordinator. Id. at ¶116. The
ADA Coordinator, in conjunction with HSU, determines whether an inmate
needs an ADA accommodation. Id. at ¶117. Defendant Kamphuis’s duties
include determining the appropriateness of the requested accommodation to
ensure that individuals with disabilities could access and use services,
programs, and activities, such as school, recreation, canteen, etc. Id. at ¶119.
Defendant Nesbit did not review and/or respond to any Reasonable
Modification/Accommodation Request from the plaintiff regarding mental
health care since November 2013 to his retirement from state service. Id. at
¶120. Nesbit does not recall any conversations with the plaintiff regarding
mental healthcare since November 2013 to his retirement from state service.
Id. at ¶121.
The plaintiff submitted to Kamphuis a Reasonable
Modification/Accommodation Request (Form DOC-2530) dated June 9, 2014,
stating:
I, Mr. Dwayne Almond, #238839-A, have been [“sic”];
“mental health treatment; for; hearing voices/inside my12

head”; and I have continuously hallucinations.’ Despite,
inmate Dwayne Almond #238839-A has been (“deprived”):
of any-adequate mental health care or treatment since:
December 2, 2011 or (“transferred”) from: GBCI, to: WCI?
Inmate Almond #238839-A, has [“sic”]; “history –
schizophrenia – or – schizoaffective – paranoid – type,
(“chronic”): mental health are – record’s / since: “early’s –
1990’s?” / (See / Exhibit’s ## 70, - 80, of: (6), pages –
mental – health – records?
Id. at ¶122. On June 11, 2014, Kamphuis informed the plaintiff that his
request did not describe a modification and/or accommodation. Id. at ¶123.
Kamphuis asked the plaintiff if he sought a specific accommodation under the
ADA. Id. at ¶124. She informed the plaintiff that his complaint about the
deprivation of adequate mental health care was not an ADA issue, and advised
him to speak with PSU or HSU staff about any problems with his treatment. Id.
at ¶125.
On June 12, 2014, the plaintiff sent an Interview/Information Request to
Kamphuis, stating:
. . . you Ms. N. Kamphuis states that I didn’t describe a
modification and/or accommodation that you are
requesting.
Fact’s
of
[“sic”];
Modification
and
accommodation,
is
the
“DOC.
–
Psychiatrists/
Psychologists, of (“WCI”), saying I’m a (“M/H0”)! And don’t
need any treatment for mental – medications!
Id. at ¶126. In response, on June 13, 2014, Kamphuis informed the plaintiff
that he should notify the PSU if he did not believe his treatment was adequate,
and reiterated that he had not raised an ADA issue. Id. at ¶127. Kamphuis
denied the plaintiff’s request. Id. at ¶128.
On June 24, 2014, the plaintiff submitted a Reasonable
Modification/Accommodation Request to Kamphuis, stating:
13

1.) I, Mr. Dwayne Almond, #238839-A, has been [“sic”];
“Diagnosed with: Paranoid – type schizophrenia/
schizoaffective,
and
continuously
hallucinations?”;
(“Identify above disabilities”). Despite the (“PSU-clinical of
WCI”) has said I am “no longer [“sic”]; “mentally ill?”; and
– for that reason I’m not qualified for any mental
medications/for “hearing chronic voices/hallucinations?;
or
have
the
right
to
access
any
mentally
ill/program/service/activities – herein (“WCI”)
2.) “Health Service Unit (“HSU”), has also said they not
gone to respect my: physical – disabilities of: lower back,
lower-abdomen-left-side/chronic-pain-in fingers/leg”? or
*And I’m not qualified for any-physical-ill/chronicmed’s/have to access (“P/S/C?)
Id. at ¶129.
On June 25, 2014, Kamphuis denied the plaintiff’s request, advising him
that this is not an ADA issue, and that he should work with PSU and HSU. Id.
at ¶130.
The plaintiff submitted an Interview/Information Request dated June 25,
2014, stating:
. . . This is your “second time-denied-my-requests for:
“Reasonable
Modification/Accommodation/request(“ADA”). On 6-24-14; it stated my: ADA-Coordinatorissues;
[“sic”];
“DOC
is
“depriving”
me
from
“mental/physical-programs,/service/and activity, which
I’m qualified for?; with respect of my: [“sic”]; “disabilities
impairment?” Qualified to be protected ADA?”
Id. at ¶131. On June 26, 2014, Kamphuis informed the plaintiff that if he
disagreed with her decision he could appeal it by filing an inmate complaint. Id.
at ¶132.
The plaintiff submitted a Reasonable Modification/Accommodation
Request to Kamphuis dated June 29, 2014, stating:
14

I, Mr. Dwayne Almond, #238839-A, has a [“sic”];
“disability called schizophrenia or schizoaffectiveparanoid-type?/continuously
hallucinations!”;
By:
(“History”), since the/early’s-1990’s.” “On May 4, 2014, I
asked or requested that Dr. Endres,/refer: Inmate
Dwayne Almond #238839-A, to the [“SIC”];” WRC’s prerelease program?”; she stated: I’m currently coded as an
(“MH0”), and thus would not be appropriate for “mental
health
programming?”
(“dispute”).
(“Also:
Dr.
Manlove,/Belinda Schrubbe (“HSU”), has “denied” inmate
Almond #238839-A-an-physicial-(“MRI”) that’s needed to
determined serious need of: surgeries/of-a-untreated/
(“diagnosed-hemorrhoid?)
Id. at ¶133.
On July 2, 2014, Kamphuis denied the plaintiff’s request, noting that he
did not seek an accommodation that she could grant, and informing him that
she would forward the information to PSU and HSU. Id. at ¶134. Kamphuis
then stated that the ADA Coordinator did not make placement referrals, nor
could she diagnose inmates. Id.
Kamphuis then emailed PSU Supervisor Baird and HSU Manager Belinda
Schrubbe regarding the plaintiff’s requests/issues. Id. at ¶135. She denied the
requests because the plaintiff again was complaining regarding treatment that
should be addressed by a mental health treatment provider. Id.
As the ADA Coordinator and secondary ADA Coordinator, Kamphuis and
Nesbit do not make psychological or mental health treatment decisions. Id. at
¶138.

15

E.

Inmate Complaint

The plaintiff filed Offender Complaint WCI-2014-505, which the inmate
complaint examiner (ICE) received on January 7, 2014. Id. at ¶139. The
plaintiff stated:
On the above date of January 2, 2014, I inmate Dwayne
Almond #238839-A, after a first request of seeking
(“Mental Health Care of Treatment”). Which the
“Supervisor of PSU,” received my first requested backin’
early / November, 2013; Placed “me” on the listed to be
seen by the (“Psychiatrist Expert-Doctor”), within (5) fiveweek’s? – For: Hearing Voices and seeing-things
(“Schizophrenia – Paranoid”) has started back up?
“Despite, I inmate Dwaye Almond #238839-A, has never
been called to see the (Psychiatrist-Expert-Doctor”)? “So I
forwarded a “Second” request of seeking “Mental Health
Care of Treatment,” to the “Supervisor of PSU,-regarding:
“Hearing Seriously Threatening Voices telling “me” – bad
things to do,” that’s very disstressful and painful!” I have
continually been (“Deprived”), of (“Mental-Treatment?”),
(“Undisputed”) (under 28 U.S.C. § 1746”)
Id.
The ICE, Jim Muenchow (who is not a defendant in this case),
investigated the plaintiff’s complaint. Id. at ¶140. His ICE Report states in
relevant part:
Dr. Endres has been contacted regarding the claims made
in the complaint. Inmate Almond is an M/H 0. She did
confirm that in early November she advised inmate
Almond she would make contact with him within a 5week period. Inmate Almond was in GP status at the time.
On the 5th week, inmate Almond was placed in TLU
status (12/12/13) so a pass could not be issued. Given
that, Dr. Endres attempted to interview him during SEG
Clinical Rounds on 12/16/13. Inmate Almond appeared
to be sleeping and did not respond to clinician’s attempts
to engage him. Dr. Endres attempted twice more to
interview inmate Almond, 12/26/13 and 1/6/14. Inmate
16

was awake and appeared to be writing something. He
would not respond to Dr. Endres’ attempts to engage.
It is clear from the information provided by Dr. Endres
that nobody is ignoring inmate Almond’s requests for PSU
consultation. If he desires to have his concerns
addressed, he must cooperate with his assigned clinician.
Id. at ¶¶140-42; Dkt. No. 80-2 at 7. On January 29, 2014, based on his
findings, Muenchow recommended dismissal of WCI-2014-505. Dkt. No. 76 at
¶142.
On February 3, 2014, DOC Psychology Director Gary Ankarlo (who is not
a defendant in this case) issued a “Reviewer’s Decision” on WCI-2014-505. Id.
at ¶143. Dr. Ankarlo stated:
WCI-PSU has documented there [sic] attempts to
interview Mr. Almond and it is clear that he refused to
cooperate. Mr. Almond is currently classified as an MH-0,
indicating that he has no current mental illness. There is
no evidence to suggest that the classification is in error
beyond Mr. Almond’s claims.
Id.; Dkt. No. 80-2 at 8. Based on his findings, Dr. Ankarlo accepted
Muenchow’s recommendation and dismissed Offender Complaint WCI-2014505. Dkt. No. 76 at ¶143.
The plaintiff appealed this decision to the corrections complaint
examiner’s office. Id. On February 7, 2014, Charles Facktor recommended that
the appeal be dismissed. Id. at ¶144. Facktor noted that the institution’s
decision reasonably and appropriately addressed the plaintiff’s issue and that,
on appeal, he presented no information to warrant a recommendation
overturning that decision. Id.

17

On February 24, 2014, Gourlie sent a letter to the plaintiff notifying him
that under §DOC 310.14(1), Wis. Adm. Code, Deputy Secretary Morgan (who is
not a defendant in this case) had extended the time for deciding this appeal for
cause, effective February 21, 2014. Id. ¶145. Based on the findings and
recommendation of the CCE, the Secretary’s Designee, Cindy O’Donnell
dismissed Offender Complaint WCI-2014-505 on February 26, 2014. Id. at
¶146.
F.

Warden Pollard

Pollard does not recall any conversations with the plaintiff regarding his
complaints of denial of adequate mental health care and treatment. Id. at ¶152.
The plaintiff submitted an Interview/Information Request dated October
22, 2014, addressed to Pollard and the PSU Supervisor. Id. at ¶153. The
plaintiff stated “On: 10/20/14? [“sic”]; “deprived inmate or plaintiff – Dwayne
Almond #238839-A, of: Any-Adequate mental health/care treatment?; suffering
from: “hearing voices, - and – hallucinations . . . , / he need (“psyhotropic
medications”).” Id.
Pollard’s practice was to forward inmate correspondence stating concerns
of conditions and care to the appropriate department for review and response.
Id. at ¶154. In this case, Pollard would have forwarded the plaintiff’s
correspondence regarding concerns of inadequate mental health care to the
PSU Supervisor for response. Id. at ¶155. Because this request also was
addressed to the PSU Supervisor, Pollard would have relied on the PSU
Supervisor to address the plaintiff’s concerns. Id.
18

On July 19, 2015, the plaintiff sent Pollard a “Notice” that he would be
facing criminal charges for:
continuously permitting misconduct of criminal act’s of
intentional abuse, taunting prejudices and (“depriving –
Almond’s – serious needed – physical/mental – adequate
– treatment – care; that’s been personal …/ lefted
untreated on-gone, / since; December 2, 2011 – through
– July, 2015” and “continuously misconduct, retaliation,
abuse, taunting, and criminal intentional acts…/ against
Plaintiff Dwayne Almond #238839” and that Pollard was
the “leading – crooked – state – DOC – employed; -that’s
involved in – Almond’s – Cases No. – 14-cv-901-PP; No.
15-cv-365-PP, - No. 15-cv-568-PP?; as a defendant in all –
(3) three….
Id. at ¶156. Pollard does not believe that the plaintiff was asking him to
intervene in his mental health care in this notice. Id. at ¶157.
On August 5, 2015, the plaintiff submitted an Interview/Information
Request to Dr. Bonnie Halper, Dr. Callister, Dr. Baird and Pollard. Id. at ¶158.
In his request, the plaintiff stated, “I received a “Letter” from you / dated:
8/3/2015, that’s so “untruthful”; despite your - - misconduct of mental abuse,
taunting – to: Almond #238839-A; that you have - - permitted for the
“Defendants’ involved of case over?” Id. Dr. Halper responded to the plaintiff’s
Interview/Information Request by informing the plaintiff that if he would like to
engage in mental health treatment, he should send a Psychological Services
Request. Id. at ¶159.
The plaintiff submitted an Interview/Information Request dated August
10, 2015, addressed to Dr. Bonnie Halper, Dr. Baird and Pollard. Id. at ¶160.
In his request, the plaintiff alleged “criminal act’s of misconduct, abuse,
taunting… / Almond’s #238839-A, - mental illness . . . , that’s left untreated
19

on-gone . . .” Id. Dr. Halper responded to the plaintiff’s Interview/Information
Request informing him that his concerns had been noted. Id. at ¶161.
Although Pollard had the general supervisory authority over Waupun
operations as provided in the Wisconsin Statutes, he did not supervise the dayto-day operations of individual employees in each department. Id. at ¶162.
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 adverse
party cannot produce admissible evidence to support the
fact.
20

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.

Parties’ Arguments
1.

Plaintiff’s Arguments

The plaintiff contends that the court should grant his motion for
summary judgment because the defendants unlawfully failed to provide him
with mental health care for his mental illnesses, which included “paranoid-type
schizoaffective disorder, chronic-depression, and visual hallucinations.” Dkt.
No. 25 at 2. The plaintiff focused on his November 6, 2013 PSR, in which he
stated that he was hearing voices and having hallucinations. According to the
plaintiff, Dr. Endres told him that he was scheduled to be seen within five
weeks, but the plaintiff was never scheduled to be seen with a psychiatrist or
psychologist. Id. at 4.
The plaintiff asserts that he has a history of over thirty years of mental
health records, going back to 1987 at Mendota Mental Health Institute. Id. at
5. He also cites to a 1992 Wisconsin Department of Corrections clinical services
report. Id. The plaintiff asserts that he collected Social Security Disability since
1997 for suffering from “seriously chronic distressful ‘mental illnesses’” and
that he received “psychotic mental medication” from Wisconsin Community
Services during 2004 and 2005. Id. at 8.

21

The plaintiff states that he has offered “expert testimony” as to his
mental illnesses. Id. at 11. He cites to the 2007 deposition transcripts of Dr.
Janet Walsh, Dr. Michael Vanden Brook, Gregory Grams, Dr. Dana Diedrich
and Dr. Bret Reynolds, from Almond v. Grams, Case No. 06-C-0451-C (W.D.
Wis.). Id. at 11; Dkt. No. 27-3; Dkt. No. 27-4. The plaintiff interprets these
filings as undisputed evidence of his mental illnesses, and asserts that he has
been diagnosed with, and is suffering from, mild mental retardation, chronic
paranoid schizophrenia or schizoaffective psychosis, antisocial personality
disorder and chronic depression. Dkt. No. 25 at 11-12.
2.

Defendants’ Arguments

In their summary judgment motion, the defendants contend that (1) the
court should grant summary judgment to Matthew Frank, against whom the
plaintiff makes no claims (dkt. no. 74 at 10); (2) the court should grant
summary judgment to Welcome Rose, Charles Facktor and Karen Gourlie
because denying an inmate’s complaint does not violate the Constitution (id. at
11); and (3) the court should dismiss defendants Nicole Kamphuis, Greg
Nesbit, Sandra Johnston, Lesley Baird and William Pollard, because they
lacked personal involvement in the plaintiff’s treatment (id. at 13). The
defendants also contend that the plaintiff cannot state a claim for deliberate
indifference to a serious medical need against the remaining defendants, Dr.
Courtney Endres and Paul Ludvigson. Id. at 18. According to the defendants,
the plaintiff did not suffer from a serious medical need. Id. at 19. They also
contend that the record establishes that the plaintiff repeatedly refused mental
22

health treatment offered to him, and therefore cannot establish that any
defendant acted with deliberate indifference to his needs. Id. at 20.
In response, the plaintiff contends that two “expert psychiatrists”
recently put him back on Holdol2 for his chronic mental illness. Dkt. No. 95 at
2. The plaintiff asserts that on April 4, 2016, a psychiatrist at the P.A.T.H.
Program in Memphis, Tennessee, prescribed him 10 mgs. of Holdol. Id. In
addition, the plaintiff states that on May 18, 2016, a psychiatrist at the
Milwaukee Secure Detention Facility prescribed him 10 mgs. of Holdol for his
serious mental health needs. Id. at 3. The plaintiff also states that these “new
expert psychiatrists” stated that the Waupun defendants involved in this case
were very wrong for not giving the plaintiff Haldol for his serious mental
illnesses. Id. The plaintiff also states that these individuals are willing to testify
on his behalf. Id.
C.

Discussion
1.

Deliberate Indifference Standard

“The Eighth Amendment safeguards the prisoner against a lack of
medical care that ‘may result in pain and suffering which no one suggests
would serve any penological purpose.’” Arnett v. Webster, 658 F.3d 742, 750
(7th Cir. 2011) (quoting Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816,
828 (7th Cir. 2009)); see also Estelle v. Gamble, 429 U.S. 97, 103 (1976)).
Haloperidol (Haldol) is an antipsychotic medicine. It works by changing the
actions of chemicals in the brain. Haloperidol is used to treat schizophrenia. It
is also used to control motor and speech tics in people with Tourette's
Syndrome. https://www.drugs.com/search.php?searchterm=haldol (last
visited August 21, 2016).
2

23

“Prison officials violate the Constitution if they are deliberately indifferent to
prisoners’ serious medical needs.” Arnett, 658 F.3d at 750 (citing Estelle, 429
U.S. at 104). “[A] claim based on deficient medical care must demonstrate two
elements: 1) an objectively serious medical condition; and 2) an official’s
deliberate indifference to that condition.” Arnett, 658 F.3d at 750 (citation
omitted). “[D]eliberate indifference to serious medical needs of a prisoner
constitutes the unnecessary and wanton infliction of pain forbidden by the
Constitution.” Rodriguez, 577 F.3d at 828 (quoting Estelle, 429 U.S. at 104).
The need for a mental illness to be treated may be considered a serious
medical need if it could result in significant injury, such as death by suicide, or
the unnecessary and wanton infliction of pain. Sanville v. McCaughtry, 266
F.3d 724, 734 (7th Cir. 2001); see also Glick v. Walker, 272 Fed. App’x 514,
519 (7th Cir. 2008) (mental illnesses that require treatment are serious medical
needs under the Eighth Amendment).
To demonstrate deliberate indifference, a plaintiff must show that the
defendant “acted with a sufficiently culpable state of mind,” something akin to
recklessness. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011). A prison official
acts with a sufficiently culpable state of mind when he or she knows of a
substantial risk of harm to an inmate, and either acts or fails to act in
disregard of that risk. Id. A prison official cannot be found liable under the
Eighth Amendment unless the official “’knows of and disregards an excessive
risk to inmate health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm
24

exists, and he must also draw the inference.’” Gutierrez, 111 F.3d at 1369
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “Deliberate indifference
‘is more than negligence and approaches intentional wrongdoing.’” Arnett, 658
F.3d at 751 (quoting Collignon v. Milwaukee Cnty., 163 F.3d 982, 988 (7th Cir.
1998)). Deliberate indifference does not, however, include medical malpractice;
“the Eighth Amendment does not codify common law torts.” Duckworth v.
Ahmad, 532 F.3d 675, 679 (7th Cir. 2008) (citation omitted).
Establishing deliberate indifference under the subjective prong is a high
standard; medical malpractice is insufficient, as is a mere disagreement with a
medical professional’s medical judgment. See Estelle, 429 U.S. at 106; Arnett,
658 F.3d at 751. “A plaintiff can show that the professional disregarded the
need only if the professional’s subjective response was so inadequate that it
demonstrated an absence of professional judgment, that is, ‘no minimally
competent professional would have so responded under those circumstances.’”
Id. (quoting Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)).
The court will focus on whether the defendants acted with deliberate
indifference.
2.

Doctors Endres and Ludvigson

Because Dr. Endres and Dr. Ludvigson are medical professionals, the
court can find that they acted with deliberate indifference only if their
treatment decisions were “such a substantial departure from accepted
professional judgment, practice, or standards . . . as to demonstrate” that they
were not relying “on a professional judgment.” Youngberg v. Romeo, 457 U.S.
25

307, 323 (1982) (internal quotation marks and citation omitted); Sain v. Wood,
512 F.3d 886, 894-95 (7th Cir. 2008). Conduct that is akin to criminal
recklessness—but not medical malpractice or negligence—violates the Eighth
Amendment. Farmer, 511 U.S. at 836-39.
The undisputed factual record establishes that PSU staff determined that
the plaintiff did not suffer from paranoid schizophrenia during the relevant
time. The undisputed facts also show that Waupun psychological staff
regularly checked on the plaintiff during 2013, 2014 and 2015, and that the
plaintiff repeatedly refused psychological care—from Dr. Endres in particular.
The plaintiff’s submissions from prior lawsuits do not establish that he
suffered from paranoid schizophrenia or schizoaffective disorder during the
timeframe he alleges in this case. Even if the plaintiff had submitted evidence
that he currently suffers from paranoid schizophrenia/schizoaffective disorder,
such evidence would not prove that the defendants acted with deliberate
indifference.
The plaintiff disagrees with the defendants’ determination that he did not
suffer from paranoid schizophrenia or schizoaffective disorder, as well as with
their treatment protocols. The plaintiff insists that he has paranoid
schizophrenia/schizoaffective disorder. He would have liked to have been
transferred to the Wisconsin Resource Center and prescribed medication for
that diagnosis. Dr. Endres, Bonnie Halper and Dr. Callister all determined,
however, that the plaintiff did not have paranoid schizophrenia or
schizoaffective disorder.
26

Disagreement with a course of treatment does not give rise to an
inference that prison medical staff acted with deliberate indifference to a
prisoner’s needs. Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010);
Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003). The record does not
support a finding that Dr. Endres’ or Dr. Ludvigson’s actions were a
“substantial departure from accepted professional judgment, practice, or
standards as to demonstrate that the person responsible did not base the
decision on such a judgment.” Estate of Cole v. Fromm, 94 F.3d 254, 262 (7th
Cir. 1996). A reasonable factfinder could not conclude that they acted with
deliberate indifference to the plaintiff’s mental health needs.
3.

Kamphuis, Nesbit, Johnston, Baird, Pollard, Rose, Facktor and
Gourlie

Only a defendant who is personally responsible for depriving the plaintiff
of a constitutional right may be held liable under 42 U.S.C. §1983. Grieveson v.
Anderson, 538 F.3d 763, 778 (7th Cir. 2008). If someone else has committed
the act that resulted in the constitutional deprivation, a defendant is personally
responsible, and thus liable under §1983, only if he knows about the other
person’s act and has a realistic opportunity to prevent it, but deliberately or
recklessly fails to do so. Lewis v. Downey, 581 F.3d 467, 472 (7th Cir. 2009).
Even if the plaintiff had established a constitutional violation, the
remaining defendants lacked direct personal involvement in his mental health
care at Waupun. The record does not support a finding that Baird, Johnston,

27

Pollard, Kamphuis, Nesbit, Rose, Facktor, Gourlie3 or Frank4 acted with
deliberate indifference to the plaintiff’s mental health needs. Thus, the court
will grant the defendants’ motion for summary judgment as to these
defendants.
III.

CONCLUSION
The court DENIES the plaintiff’s motion for summary judgment. Dkt. No.

25.
The court GRANTS the defendants’ motion for summary judgment. Dkt.
No. 73.
The court ORDERS that this case is DISMISSED.
Dated In Milwaukee, Wisconsin this 30th day of August, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

The court agrees with the defendants that the fact that Rose, Facktor and
Gourlie denied his inmate complaints does not constitute a constitutional
violation. In its screening order, however, the court allowed the plaintiff to
proceed on only one claim—deliberate indifference to serious medical need.
Because these defendants were not involved in any respect with any decisions
regarding the plaintiff’s medical care, the court need not go into a detailed
discussion of the law on complaint examiner liability under §1983.
4
The court agrees that the plaintiff made no claims at all against defendant
Frank.
3

28