Locke v. Oleson et al

Filing 118

ORDER signed by Judge J P Stadtmueller on 9/29/15 granting 75 and 83 Defendants' Motions for Summary Judgment, and DISMISSING this action on the merits. See Order. (cc: Plaintiff, all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ADAM A. LOCKE,
Plaintiff,
v.

Case No. 14-CV-1143-JPS

AUSTIN RITTER, STEPHANIE
DUCKETT, DR. ADEMI FATOKI,
and DODGE COUNTY,

ORDER

Defendants.
In this action under 42 U.S.C. § 1983, Plaintiff Adam A. Locke,
(“Locke”) a state prisoner, claims the defendants violated his due process
rights by acting with deliberate indifference to a serious medical need.
Presently before the Court are two separate motions, including: (1)
Defendant Stephanie Duckett’s (“Nurse Duckett”), Defendant Dr. Ademi
Fatoki’s (“Dr. Fatoki”) and Austin Ritter’s (“Nurse Ritter”) motion for
summary judgment (Docket #83); and (2) Defendant Dodge County’s motion
for summary judgment (Docket #75).1 For the reasons detailed herein, both
of the motions for summary judgment will be granted and this action will be
dismissed in its entirety. The Court now turns to discuss the factual
background of the case.
1.

FACTUAL BACKGROUND
The facts of this case are fairly simple. In short, Locke alleges that the

defendants violated his Eighth Amendment rights by failing to provide

1

In order to clarify the record, the Court notes that Locke voluntarily
dismissed Defendant Brent Oleson from this action when he filed his amended
complaint on February 10, 2015, and did not allege any claims against Defendant
Oleson. (See Docket #39).

proper medical care after Locke allegedly swallowed a metal object in his
food.
1.1

The Parties

Locke was an inmate at the Dodge County Jail from April 4, 2014, to
July 31, 2014. (Docket #84 ¶ 3). Defendants Ritter and Duckett are licensed
nurses in the state of Wisconsin; Defendant Dr. Fatoki is a licensed physician
in the state of Wisconsin. All three of their licenses were in effect throughout
July of 2014. (Docket #84 ¶ 8). Throughout July of 2014, Nurses Ritter,
Duckett and Dr. Fatoki were employed by Correctional Healthcare
Companies (“CHC”) to provide on-site healthcare to the inmates of the
Dodge County Jail. (Docket #84 ¶ 9).
In their role as licensed healthcare providers at the Dodge County Jail
Health Services Unit (“HSU”), Nurses Ritter, Duckett, and Dr. Fatoki had
access to inmate medical records and charts, including progress notes,
problem oriented records, written inmate requests for medical care (“Medical
Slip”), and medical administration records (“MAR”), and they have reviewed
those documents for Locke as they pertain to this matter. (Docket #84 ¶ 10).
1.2

Dodge County Jail Medical Policies2

When inmates enter Dodge County Jail, they are informed that if they
require non-emergency medical attention, they are required to submit a
written Medical Slip to HSU. (Docket #84 ¶ 11). During Locke’s booking, he
acknowledged receipt of the Jail Rules and that he understood how to obtain
medical care while in custody. (Docket #81 ¶ 13).

2

The Court notes that Locke disputes the written jail medical policies.
However, Locke has failed to establish personal knowledge or produce any
evidence of the jail policies and fails to create a genuine issue of fact. See Fed. R.

Civ. P. 56(c)(1).
Page 2 of 19

During Locke’s incarceration, Dodge County provided inmates with
medical care through a contract with CHC. (Docket #81 ¶ 11). In 2014, CHC
and the nurses and medical providers it contracted with were independent
contractors and not employees of Dodge County. (Docket #81 ¶ 11). If an
inmate at Dodge County is in need of non-emergency care, he would make
a request for medical care. Any medical request made by an inmate would
be evaluated by the nursing staff. (Docket #81 ¶¶ 14, 30). Unless it is an
emergency situation requiring immediate medical attention, jail officers or
supervisors would have no involvement in the evaluation of an inmate’s
request for medical care. The jail nurses and/or the physician would
determine what course of action was necessary, including whether the
inmate should be examined by a nurse or physician. (Docket #81 ¶¶ 15, 30).
Under Dodge County policies, an inmate who would like medical
attention would submit a request for medical attention. (Docket #81 ¶¶ 14,
30). Under these policies, both jail supervisors and medical personnel have
the authority to transfer an inmate to the emergency room if warranted.
(Docket #81 ¶¶ 17, 33). In particular, Policy 240.10 provides for the procedure
for inmates to access medical care. It also provides that in the absence of
medical staff, Dodge County Detention supervisors have the authority to
arrange for any immediate and necessary medical care. It states:
5.

Medical staff will require requests for sick call by
scheduling a “Med Appt/Nurse in House” event in the
RMS.
a.

DCDF Supervisors will, in the absence of medical
staff, determine if any health care requests
require immediate attention and arrange for any
necessary health care.

Page 3 of 19

(Docket #81 ¶ 30). Policy 240.05A3h provides as follows:
Medical staff/Shift Commander will determine need for
transportation of inmate to Beaver Dam Community Hospital
and will notify Mater Control to contract Dodge County
Sheriff’s Office Communications of the need for an ambulance.
(Docket #81 ¶ 31). Policy 220.06 (7) Emergency Response Provides as follows:
7.

Medical staff and/or health-trained staff will begin
triage upon their arrival. Health-trained staff will defer
authority upon arrival of medical staff.
a.
b.

First-aid procedures will be applied as needed.

c.

9.

Triage assistance will be available through the
medical department.

Ambulance will transport designated individuals
to Beaver Dam Community Hospital per Policy
220.02 Inmate Movement and Policy 240.05
Medical Emergencies. Contract inmates will be
escorted.
…

When applicable, the Shift Commander will notify the
contracting agency within 2 hours, when an inmate is
transported to the hospital, and will document
notification in RMS.

(Docket #81 ¶ 32). In sum, under the written policy, both the jail and medical
personnel had the power and authority to transport any inmate to the
emergency room, if warranted. (Docket #81 ¶¶ 17, 30-33)
1.3

July 17, 2014 Incident and Locke’s Treatment

On July 17, 2014, at approximately 12:30 p.m., Locke allegedly
swallowed a piece of metal while consuming his lunch. Nurse Ritter was
working in his capacity as a registered nurse at the Dodge County Jail. Nurse
Ritter was summoned by a guard to assist Locke. Locke told Nurse Ritter
that he had believed he swallowed a metal object and had felt it in his mouth

Page 4 of 19

prior to swallowing. (Docket #84 ¶ 15). Nurse Ritter assessed Locke and took
Locke’s vital signs, which were stable and within normal limits. (Docket #84
¶ 16).3 Nurse Ritter also visually inspected Locke’s mouth and throat, and
saw no evidence of a foreign object or irritation. (Docket #84 at 18).4 Nurse
Ritter observed that Locke was not spitting or coughing blood, vomiting,
retching, or dry heaving. (Ritter Decl. ¶ 18). Locke alleges that he was
gagging in front of Nurse Ritter. (Locke Decl. at 21, Docket #102 at 8). Nurse
Ritter’s medical notes indicate that he believed it was possible that Locke had
swallowed a foreign object, but also possible that he could have swallowed
an air bubble. (Docket #86-1 at 10).
Locke felt that he could not breath and immediately requested to go
to an emergency room and to obtain an x-ray. (Locke Decl. at 3, Docket #95).
Based upon his education and experience, Nurse Ritter knew that swallowed
foreign objects typically pass through the digestive system uneventfully.
(Ritter Decl. ¶ 20). As such, Nurse Ritter’s assessment of Locke concluded
that he was not experiencing a medical emergency. (Ritter Decl. ¶ 21). Locke
maintains that Nurse Ritter said Locke could not go to the hospital because
only a doctor had the authority to send an inmate to the hospital and that no
doctor was available. (Locke Decl. at 3, Docket #95).

3

Locke disputes that his vital signs were within normal limits.

4

Locke disputes this contention and argues that Nurse Ritter “could not
have visually inspected [his] throat without the proper medical equipment.”
(Docket #97 at 8). However, Locke is not a trained medical professional and has
provided nothing in the record to establish this fact. As such, Locke’s contention
fails to establish a genuine dispute of fact. See Fed. R. Civ. P. 56(c)(1).

Page 5 of 19

Locke got up and walked out of the room under his own power,
which reaffirmed Nurse Ritter’s belief that there was no medical emergency.
(Ritter Decl. ¶ 21). Nurse Ritter placed Locke on the doctor’s list and later, on
July 17, 2014, wrote that Locke could request Tylenol as needed. (Docket #861 at 11).
At approximately 3:00 a.m. on July 18, 2014, Locke was evaluated by
Nurse Merrietta Brady (who is not a defendant in this action). (Docket #82
¶ 24). Nurse Brady provided Locke a one-time dose of Tylenol and liquid
antacid. She instructed him to continue drinking fluids and to contact the
medical department if his symptoms persisted or worsened. (Docket #84
¶ 27).
In the early afternoon of July 18, 2014, Nurse Duckett was performing
afternoon “med-pass.” (Duckett Dec. ¶ 13). “Med-pass” is the dispensation
of prescription medications to inmates; it requires a nurse’s full attention to
avoid medication errors. (Duckett Dec. ¶ 13). Prescription medication cannot
be left unattended during “med-pass.” (Docket #81 ¶ 28). At this time, Locke
did not have any prescribed medications at the time, and he had no
legitimate reason to stand in the “med-pass” line. Dodge County Jail policies
state, “You may request over the counter medications using the medication
request slips provided in your housing area. All requests for over-the counter
medication must be submitted to the Pod Officer on duty PRIOR to nurse’s
arrival on Pod for medication distribution.” (Docket #79-1 at 16).
When Locke reached the front of the med-pass line, he requested
medication and to be assessed. At this time, Nurse Duckett knew that Locke
had claimed he swallowed a foreign object, and that he had been assessed by
Nurse Ritter the day before and by Nurse Brady earlier that day. Nurse
Duckett told Locke that if he wished to be seen by a nurse, he was required
Page 6 of 19

to submit a medical slip, per jail policy. (Docket #84 ¶ 31). In Nurse Duckett’s
professional opinion, Locke was not experiencing an emergent medical
situation that would require urgent medical attention. (Docket #84 ¶ 32).
Locke made an additional medical request later that day. ((Docket #84 ¶ 33).
On July 19, 2014, Locke was again assessed by medical staff. (Ritter
Dec. ¶ 29). Locke had reported that he had passed an object in a bowel
movement, which appeared to be a small portion of a metal drill bit. Locke’s
vital signs were again taken and the fact that he had no complaints of pain
or bleeding was noted. (Docket #84 ¶ 34). Between July 19 and July 23, 2014,
Locke made no written medical requests.
On July 24, 2014, Dr. Fatoki and Nurse Ritter examined Locke. Locke’s
vital signs were again normal and he did not appear to be in distress. (Fatoki
Decl. ¶ 13). Dr. Fatoki noted that Locke was eating well and that he was
experiencing only a little gas and a stomach ache off and on. (Docket #84 ¶
36). Locke maintains that he was still in physical distress and required an
x-ray and emergency treatment at this time. (Docket #97 at 19).
On July 28, 2014, Locke submitted another medical request form. In
it, he complained of stomach pain and cramps.(Docket #84 ¶ 38). Although
Locke contends Nurse Ritter or Dr. Fatoki never saw him on July 28, 2014,
Locke’s medical charts refute this assertion. (Docket #88-1 at 21-22). Locke
reported he had been having abdominal pain/cramping and diarrhea for
three days. Nurse Ritter assessed Locke and his vital signs were stable. Nurse
Ritter then shared his assessment with Dr. Fatoki, who ordered Locke placed
on observation status. (Docket #88-1 at 21-22). Nurse Ritter also provided
Locke with Loperamide, a medication for diarrhea. Further, Nurse Ritter
offered Locke Tylenol, which Locke refused. (Docket #88-1 at 21).

Page 7 of 19

On July 30, 2014, Nurse Ritter assessed Locke again. Locke’s medical
records indicate that he was feeling a “little better,” and that Locke did not
have a fever and there was no evidence of diarrhea or other physical issues.
(Docket #88-1 at 21-22). On July 31, 2014, Locke was transported out of the
Dodge County Jail. (Docket #84 ¶ 42).
2.

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

there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir.
2011). “Material facts” are those under the applicable substantive law
that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A
dispute over “material fact” is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by: “(A) citing to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). “An affidavit or
declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56(c)(4).
Page 8 of 19

3.

DISCUSSION
Nurse Ritter’s, Nurse Duckett’s, and Dr. Fatoki’s motion for summary

judgment argues that the undisputed facts establish that they were not
deliberately indifferent to Locke’s medical condition because they provided
prompt and reasonable care.

Dodge County’s motion for summary

judgment argues that: (1) there is no evidence of an unconstitutional policy
or procedure which was causal of Locke’s injuries; and (2) that Locke failed
to exhaust his administrative remedies prior to filing suit. As discussed
below, the Court finds that Nurse Ritter, Nurse Duckett, and Dr. Fatoki are
entitled to summary judgment because they did not violate Locke’s Eighth
Amendment rights as a matter of law. Additionally, because there is no
underlying constitutional claim, Dodge County is entitled to summary
judgment as well.
3.1

Legal Standard—Deliberate Indifference

Locke alleges that Nurse Ritter, Nurse Duckett, and Dr. Fatoki acted
with deliberate indifference to his medical needs in violation of the Eighth
Amendment. See Estelle v. Gamble, 429 U.S. 97, 104-06 (1976) (holding that
deliberate indifference to the serious medical needs of a prisoner may serve
as the basis for a § 1983 claim). “The Eighth Amendment, applicable to the
states through the Due Process Clause of the Fourteenth Amendment,
protects prisoners from prison conditions that cause the ‘wanton and
unnecessary infliction of pain,’ including…grossly inadequate medical care.”
Pyles v. Fahim, 771F.3d403, 408 (7th Cir. 2014) (quoting Rhodes v. Chapman, 452
U.S. 337, 348 (1981)) (internal citations omitted). The prisoner has the burden
“to demonstrate that prison officials violated the Eighth Amendment, and
that burden is a heavy one.” Id. (citing Whitley v. Albers, 475 U.S. 312, 325
(1986)).
Page 9 of 19

To prove a claim of deliberate indifference to serious medical need,
Locke must show: (1) an objectively serious medical condition; (2) that the
defendants knew of the condition and were deliberately indifferent in
treating Locke ; and (3) this indifference caused Locke some injury. Gayton v.
McCoy, 593 F.3d 610, 620 (7th Cir. 2010). Defendants argue that Locke cannot
meet the second element (the subjective state-of-mind requirement) because
none of the defendants were deliberately indifferent to his medical condition.
(Docket #109 at 2).
The deliberate indifference inquiry has two components. “The official
must have subjective knowledge of the risk to the inmate’s health, and the
official also must disregard that risk.” Gayton, 593 F.3d at 620. Even if an
official is aware of the risk to the inmate’s health, “he is free from liability if
he ‘responded reasonably to the risk, even if the harm ultimately was not
averted.’” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 843 (1994)). Negligence
cannot support a claim of deliberate indifference; nor is medical malpractice
a constitutional violation. Estelle, 429 U.S. at 105-06; Roe v. Elyea, 631 F.3d 843,
857 (7th Cir. 2011); Barry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010). The
official must act with “a sufficiently culpable state of mind.” Walker v.
Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002).
When it comes to medical care in the prison setting, “prisoner[s] [are]
not entitled to receive ‘unqualified access to healthcare,’” Holloway v.
Delaware Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012) (quoting Hudson v.
McMillian, 503 U.S. 1, 9 (1992)); instead, “prisoners are entitled only to
‘adequate medical care,’” id. (quoting Johnson, 433 F.3d at 1013)). Adequate
medical care may involve care that the prisoner disagrees with; this
disagreement alone is insufficient to establish an Eighth Amendment
violation. See Pyles, 771 F.3d at 409. To establish deliberate indifference, the
Page 10 of 19

prisoner must demonstrate “that the treatment he received was ‘blatantly
inappropriate,’” id. (quoting Greeno v. Daley, 414 F.3d 645, 654 (7th Cir. 2005));
or, stated another way, that the treatment decision “represents so significant
a departure from accepted professional standards or practices that it calls
into question whether the [medical professional] was actually exercising his
professional judgment,” id. (citing Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.
2011) and Sain v. Wood, 512 F.3d 886, 895 (7th Cir. 2008)); Gayton, 593 F.3d at
622-23.
If the plaintiff fails to provide enough evidence to show deliberate
indifference, and it cannot be inferred from the medical professional's
treatment, “the deliberate indifference question may not go to the jury.”
Gayton, 593 F.3d at 620, 623.
3.2

Analysis

The Court finds as a matter of law that the defendants did not violate
the plaintiff’s Eighth Amendment rights. The parties do not quarrel over
whether Locke suffered from a serious medical condition; the dispute instead
concerns whether the defendants’ refusal to send Locke to a hospital or order
further testing permits an inference that they possessed the mental
culpability required to be liable under the Eighth Amendment.
Here, the Court finds that Locke has failed to present evidence that the
individual defendants were deliberately indifferent to his medical needs. In
their statement of facts, the defendants set out in detail the medical care that
Locke received at Dodge County Jail during the relevant time period from
July 17, 2014, to July 31, 2014. During this time, Locke was assessed three
times over the two days between when he claims he swallowed the object
and when he claims he passed it (Docket #84 ¶ 43), and at least six times
between July 17 and July 31, 2014. (Docket #84 ¶ 44). Because Locke alleges
Page 11 of 19

that each defendant was deliberately indifferent to his medical condition, the
Court will describe separately Locke’s interactions with each medical
provider and analyze them in turn.
3.2.1

Defendant Ritter

Nurse Ritter argues that he is entitled to summary judgment because
there is no evidence in the record showing that he was deliberately
indifferent to Locke’s medical needs. In turn, Locke argues that Nurse Ritter
was deliberately indifferent because his chosen course of treatment was not
based on sound medical judgment, as required by the Eighth Amendment
(Docket #112 at 9). Locke maintains, inter alia, that his vital signs were not
within normal limits when Nurse Ritter first saw him on July 17, 2014, and
that Locke required emergency care and further treatment. (Docket #97 at 67).
Locke admits that Nurse Ritter assessed him immediately following
the initial incident on July 17, 2014. (Locke Decl., Docket #98 ¶ 9). Locke’s
allegations against Nurse Ritter can be summed up as a disagreement in the
course of proper treatment. Whether to send a patient to the emergency
room or whether to order specific tests or treatment, such as an x-ray, is
inarguably an exercise of medical judgment, which is presumptively valid.
Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 262 (7th Cir. 1996). The Court
finds that Nurse Ritter is entitled to summary judgment because there is no
evidence in the record which suggests that he was deliberately indifferent to
Locke’s medical needs; Locke has failed to meet his “heavy” burden to prove
an Eighth Amendment violation. See Pyles, 771F.3d at 408.
Locke's argument centers around Nurse Ritter's assessment of his vital
signs. Locke maintains that his recorded vital signs show that he required
emergency medical care; Locke relies heavily on an “expert report” written
Page 12 of 19

by his sister, Laticia Locke, a registered nurse. (See Docket #100). Ms. Locke
maintains that her brother’s vital signs were unstable and prove that he
required emergency medical treatment. For example, Ms. Locke references
the plaintiff’s blood pressure as indicated in the plaintiff’s medical records,
which was 162/82 following the July 17, 2014 incident. (Docket #100 at 2). Ms.
Lock states that, in accordance with the American Heart Association’s
(“AHA”) guidelines, the normal blood pressure for an adult is 119/79 and
that a blood pressure of 140/90 or higher is considered a high blood pressure.
(Docket #100 at 2). Ms. Locke further indicates in her report that she drew
upon the AHA’s guidelines as well as her own ten years of nursing
experience in reaching this conclusion. (Docket #100 at 2).5 The plaintiff
maintains that this factual dispute over his vital signs precludes summary
judgment. The Court, however, disagrees.
At first blush, Locke’s argument may suggest that material issues of
fact exist to preclude summary judgment. However, even assuming Locke’s
version of the facts—that his vital signs did objectively suggest that he
required emergency care—this scenario is at worst medical malpractice,
which does not support a claim for deliberate indifference. Estelle, 429 U.S.
at 105-06; Roe, 631 F.3d at 857. The undisputed facts show that Nurse Ritter
assessed Locke and took his vital signs almost immediately after the
incident occurred. Locke maintains that Nurse Ritter did not believe that he
swallowed a piece of metal and instead swallowed an air bubble. However,
even if Nurse Ritter did misinterpret Locke’s vital signs and treat him based
on that misinterpretation for acid reflex, gas, and swallowing an air bubble

5

The Court notes that it is not clear on what specific AHA guidelines Locke
and his expert rely, as they do not use citations to support their assertions nor do
they include any attached AHA guidelines in their filings.

Page 13 of 19

(as Locke alleges), the Court cannot say that the treatment decision
“represents so significant a departure from accepted professional standards
or practices that it calls into question whether the [medical professional] was
actually exercising his professional judgment” See Pyles, 771 F.3d at 409. The
Court recognizes that Nurse Ritter’s assessment and treatment of Locke may
not have addressed his concerns and may not have been what he wanted;
indeed, the Court can certainly understand Locke’s concern given his belief
that he swallowed a metal object. However, there is simply nothing in the
record to suggest that Nurse Ritter acted with “a sufficiently culpable state
of mind” to state a claim for deliberate indifference. See Walker, 293 F.3d at
1037.
Finally, although not necessary in reaching its conclusion, the Court
also notes that it has doubts regarding the conclusions drawn from Locke’s
expert and the AHA guidelines. The Court is not in the business of
questioning experts’ conclusions; however, as noted recently by Judge
Posner, [w]hen medical information can be gleaned from the websites of
highly reputable medical centers, it is not imperative that it instead be
presented by a testifying witness.” Rowe v. Gibson, –F.3ed– , 14–3316, 2015
WL 4934970 at *7 (7th Cir. August 19, 2015). Locke contends that AHA
guidelines establish a material issue of fact that precludes summary
judgment.
A review of the AHA’s website, a well-known and reputable medical
center, suggests only blood pressure reading of 180/110 requires emergency
medical treatment for a hypertensive crisis. Understanding Blood Pressure
Readings, heart.org, http://www.heart.org/HEARTORG/Conditions/High
BloodPressure/AboutHighBloodPressure/Understanding-BloodPressure-Readings_UCM_301764_Article.jsp. Here, Locke’s blood pressure
Page 14 of 19

was 162/82, which does not fall within or even close to the suggested
guidelines for emergent care. Moreover, the expert report provides no
information regarding the status of Locke’s normal blood pressure, which,
as the defendants point out in their reply brief, upon admittance to the jail in
April 2014 was already above average at 148/90. (See Docket #109 at 4). Nor
does the report discuss other relevant factors in assessing blood pressure,
such as the fact that Locke is overweight, had just finished eating, and is
African-American (Docket #86-1 at 3 and Ritter Supp. Decl. ¶ 5), all risk
factors of high blood pressure. As a pro se plaintiff, the Court construes
Locke’s filings liberally; however, the evidence before the Court simply does
not create a material issue of genuine fact to preclude summary judgment.
As such, the Court finds that no reasonable jury could find that Nurse
Ritter’s actions constituted deliberate indifference to Locke’s serious medical
need. Accordingly, the Court will grant Nurse Ritter’s motion for summary
judgment.
3.2.2

Defendant Duckett

Here, the Court finds that Nurse Duckett is entitled to summary
judgment because there is no evidence in the record which suggests that she
was deliberately indifferent to Locke’s medical needs. Locke’s claim against
Nurse Duckett appears to center around the concept that Locke believes he
was entitled to immediate medical assistance the moment he requested it
from Nurse Duckett on July 18, 2014. This standard of care, however, does
not come close to what the Eighth Amendment requires. Indeed, “prisoner[s]
[are] not entitled to receive ‘unqualified access to healthcare,’” Holloway v.
Delaware Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012) (quoting Hudson v.
McMillian, 503 U.S. 1, 9 (1992)).

Page 15 of 19

The undisputed facts show that Nurse Duckett was distributing
medications when Locke approached her for assistance. At this time, Locke
did not have any prescribed medications at the time, and he had no
legitimate reason to stand in the “med-pass” line. When Locke reached the
front of the med-pass line, he requested medication and to be assessed. At
this time, Nurse Duckett knew that Locke had claimed he swallowed a
foreign object, and that he had been assessed by Nurse Ritter the day before
and by Nurse Brady earlier that day.
The Court finds that Nurse Duckett’s decision not to abandon her
“med-pass” duties and medication cart to examine Locke, who had not
submitted a written request, exhibited no signs of being in medical distress,
and had already been examined twice in the past 24 hours, was entirely
reasonable. Indeed, as the defendants point out in their brief, had Nurse
Duckett abandoned her medical cart full of prescriptions in a room full of
prisoners, one can imagine a different lawsuit altogether against her. (Docket
#85 at 14). The Eighth Amendment does not require perfect decision making,
and the Court is mindful of the difficult decisions that healthcare providers
make each day. Nurse Duckett made a medical judgment that Locke was not
experiencing a medical emergency and did not require immediate treatment.
The fact that Locke disagreed with that medical judgment is insufficient to
meet the standard for medical deliberate indifference. See Pyles, 771 F.3d at
409.
As such, the Court finds that no reasonable jury could find that Nurse
Duckett’s actions constituted deliberate indifference to Locke’s serious
medical need. Accordingly, the Court will grant Nurse Duckett’s motion for
summary judgment.

Page 16 of 19

3.2.3

Defendant Dr. Fatoki

Here, the Court finds that Dr. Fatoki is entitled to summary judgment
because there is no evidence in the record which suggests that he was
deliberately indifferent to Locke's medical needs. Dr. Fatoki first became
involved in Lock’s medical treatment on July 24, 2014—seven days after the
initial incident and four days after Locke allegedly passed the metal object
in a bowel movement. Locke’s claim against Dr. Fatoki can be summed up
as a difference of opinion in the course of medical treatment—which is
insufficient to state an Eighth Amendment claim. See Pyles, 771 F.3d at 409.
Dr. Fatoki noted that Locke was eating well, was experiencing only a little
gas and stomachache, and did not require emergency care. After the
assessment, Dr. Fatoki placed Locke on observation status and provided him
with materials to collect a stool sample.
The Court cannot say that Dr. Fatoki’s treatment decisions
“represent[] so significant a departure from accepted professional standards
or practices that it calls into question whether the [medical professional] was
actually exercising his professional judgment,” id. (citing Roe v. Elyea, 631
F.3d 843, 857 (7th Cir. 2011) and Sain v. Wood, 512 F.3d 886, 895 (7th Cir.
2008)). The plaintiff has simply failed to provide any evidence that at the time
he saw Dr. Fatoki, he required emergency or any other specific type of
treatment.
Thus, the Court finds that Dr. Fatoki is entitled to summary judgment
as a matter of law because there is no evidence in the record of deliberate
indifference to a serious medical need.
3.2.4 Defendant Dodge County
Dodge County also maintains that it is entitled to summary judgment
on Locke’s deliberate indifference claim. Locke alleges that Dodge County
Page 17 of 19

had an unconstitutional policy or practice with respect to the authority to
seek emergency care; specifically, Locke alleges that nurses who cared for
him told him he was unable to go to the emergency room because only a
doctor had the authority to send him and that no doctors were present at the
jail during that time.
The Supreme Court determined in Monell v. Dep’t of Social Servs., 436
U.S. 658 (1978), that a government entity is only liable under § 1983 when
execution of a government policy or custom “by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy” inflicts the
injury of which the plaintiff complains. Id. at 694. As the Seventh Circuit has
stated,
Unconstitutional policies or customs take three forms: (1) an
express policy that causes a constitutional deprivation
when enforced; (2) a widespread practice, that, although
unauthorized, is so permanent and well-settled that it
constitutes a “custom or usage” with the force of law; or (3) an
allegation that a person with final policymaking authority
caused the injury.
Chortek v. City of Milwaukee, 356 F.3d 740, 748 (7th Cir. 2004) (citing Rasche v.
Vill. of Beecher, 336 F.3d 588, 597 (7th Cir. 2003)).
Here, as the Court has stated above, there is no evidence that Locke’s
constitutional rights were violated by any defendants. As such, Dodge
County cannot be liable for damages because there is no underlying
constitutional violation. Pyles 771 F.3d at 412 (citing City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986) (per curiam) (“Finally, Wexford cannot be held
liable for damages because there is no underlying constitutional violation.”);
see also Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866 (7th Cir.2013)
(inmate failed to establish a constitutional problem with his medical

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treatment “and thus did not suffer actionable injury from the policy he
attributes” to Wexford).
The Court also notes that Locke has failed to provide any evidence,
other than his own testimony, of an unconstitutional policy. Because there is
no underlying constitutional violation, however, the Court need not address
this, or Dodge County’s argument related to the exhaustion of administrative
remedies.
Accordingly, the Court will grant Dodge County’s motion for
summary judgment.
4.

CONCLUSION
In sum, the Court will grant summary judgment for all the defendants

and finds that: (1) Defendants Ritter, Duckett, and Dr. Fatoki did not act with
deliberate indifference to Locke’s serious medical need; and (2) Defendant
Dodge County cannot be liable for an unconstitutional policy because there
are no underlying constitutional claims.
Accordingly,
IT IS ORDERED that the defendants’ motions for summary judgment
(Docket #75, #83) be and the same are hereby GRANTED, as more fully
described in detail above, and that this action be and the same is hereby
DISMISSED on the merits.
The Clerk is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 29th day of September, 2015.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge
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