Doss v. Sweetman et al

Filing 68

ORDER signed by Judge Pamela Pepper on 1/12/2017 DENYING AS TO ALAN POTTS the parties' cross-motions for summary judgment 21 27 and SCREENING 66 the plaintiff's complaint. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TIMOTHY STEVEN DOSS,
Plaintiff,
Case No. 15-cv-6-pp

v.
ERIC SWEETMAN, et al.,

Defendant.
______________________________________________________________________________
DECISION AND ORDER DENYING PARTIES’ CROSS-MOTIONS FOR
SUMMARY JUDGMENT AS TO ALAN POTTS (DKT. NOS. 21, 27) AND
SCREENING THE PLAINTIFF’S AMENDED COMPLAINT (DKT. NO. 66)
______________________________________________________________________________
Plaintiff Timothy Steven Doss, who is representing himself, is
incarcerated at Wisconsin Resource Center. On June 24, 2015, the court
entered an order allowing him to proceed on deliberate indifference and
excessive force claims. Dkt. No. 10. On December 28, 2015, the plaintiff filed a
motion for summary judgment. Dkt. No. 21. On January 8, 2016, the
defendants filed a cross-motion for summary judgment. Dkt. No. 27.
On September 30, 2016, the court entered an order denying the
plaintiff’s motion and granting the defendants’ motion as to defendants Eric
Sweetman, Brian Foster, Cathy Francois, Ryan Baumann, Jeanne Zwiers, Onie
Walker, and Jay VanLanen. Dkt. No. 62. The court held in abeyance its
decision on the cross-motions as to defendant Alan Potts. Id. The court ordered
Potts to provide additional information to the court to assist it in making its
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decision. Id. Potts filed supplemental proposed findings of fact and a
supplemental declaration on October 7, 2016. Dkt. Nos. 63, 64. The plaintiff
filed his own declaration in response on November 14, 2016. Dkt. No. 67.
Finally, the court also ordered that the plaintiff could file an amended
complaint limited to the claims described in the order. Dkt. No. 62 at 18. The
court allowed the plaintiff to do so in the interest of justice, because the
plaintiff originally had named the wrong defendant (and potentially omitted
others) as a result of relying on inaccurate information given to him by a prison
official. Id. at 16-18. The plaintiff filed an amended complaint on November 14,
2016. Dkt. No. 66.
This decision resolves the cross-motions for summary judgment on the
plaintiff’s claim against Potts, and screens the plaintiff’s amended complaint.
I.

THE PLAINTIFF’S CLAIM AGAINST POTTS
A.

The Relevant Facts1

At all relevant times, defendant Alan Potts was a correctional officer at
Green Bay Correctional Institution. (Dkt. No. 54 ¶2).
The plaintiff suffers from sickle cell anemia, which is a condition that
causes red blood cells to form into a crescent shape, like a sickle. Dkt. No. 51
¶18. The sickle-shaped red blood cells break apart easily, causing anemia. Id.
Sickle red blood cells live only 10 to 20 days instead of the normal 120 days.

The court takes the facts from “Plaintiff’s Objections to Defendants’ Proposed
Finding of Fact,” (Dkt. No. 51), “Defendants’ Response to Plaintiff’s Proposed
Findings of Fact” (Dkt. No. 54), and Defendants’ Supplemental Proposed
Findings of Fact (Dkt. No. 63). The facts are undisputed unless otherwise
noted.
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Id. The damaged sickle red blood cells also clump together and stick to the
walls of blood vessels, blocking blood flow. Id. This can cause severe pain and
permanent damage to the brain, heart, lungs, kidneys, liver, bones, and spleen.
Id.
Patients with sickle cell disease may develop severe pain anywhere in
their body, and severe pain is an emergency called sickle cell crisis. Id. ¶19.
Treatment of sickle cell crisis may include: opioid pain medications, antiinflammatory medications, antibiotics for infection, oxygen, and/or intravenous
or oral fluids. Id. ¶20.
The plaintiff was transferred to GBCI on January 3, 2014, and sickle cell
disease was listed as a significant illness on his transfer screening form. Id.
¶21. Dr. Sauvey (not a defendant), a physician at GBCI, implemented a plan of
care with Dr. Warren (not a defendant), a hematologist at Green Bay Oncology
who treats the plaintiff. Id. ¶22. Dr. Warren outlined the plaintiff’s plan of care
after each of the plaintiff’s appointments. Id. ¶23. Although correctional officers
were not given written documents from the plaintiff’s medical files, they were
advised via a posted note that the plaintiff has a significant chronic condition
and they should contact health services immediately with any complaints from
the plaintiff. Id. ¶23, 25.
1. July 5, 2014
The plaintiff alleges that on July 5, 2014, around 8:30 a.m. to 8:45
a.m., he began to experience excruciating pain, nausea, dizziness, and feeling
as if he was about to pass out. Dkt. No. 54 ¶23. The plaintiff states that he
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recognized the symptoms as on-coming sickle cell crisis. Id. In line with his
healthcare plan, the plaintiff contacted a correctional officer via his cell’s
intercom system and asked that he notify health care services staff. Id.
The plaintiff states that Officer Vang (not a defendant) answered the
call at 9:00 a.m. and noted in the logbook “sickle cell hurts bad.” Id. When no
one arrived and his condition worsened, the plaintiff informed another inmate
that he felt faint, and he asked the inmate to press his emergency call button.
Id. At about 9:15 a.m., the plaintiff again reported that he was having
difficulties Id. The plaintiff then became dizzy and fell unconscious, hitting his
head on the wall behind him. Id.
According to another inmate, Potts arrived at the plaintiff’s cell at about
11:15 a.m. to distribute meal trays to inmates. Id. The inmate told the plaintiff
that Potts saw him lying on the floor, but Potts did not get help. Id. Instead,
Potts taunted the plaintiff, and when he received no response, Potts secured
the trap door and continued distributing meal trays. Id.
Potts states that he does not specifically recall the July 5, 2014
incident. Dkt. No. 63 ¶139. He explains that, generally, if he observes an
inmate lying on the floor during meal time, he will attempt to get the inmate’s
attention Id. ¶140. He states that it is not uncommon for inmates to lie on the
floor or not verbally respond to an officer. Id. If an inmate does not respond,
Potts will ensure the inmate is breathing and will notify the unit sergeant. Id.
Potts explains that, although he does not recall this specific event, if
the plaintiff had been lying on the floor and not responding, Potts would have
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acted consistent with his training and would have looked for a rise or fall of his
chest and/or body movement to ensure the plaintiff was breathing. Id. ¶141.
Potts states that he likely would have finished feeding the rest of the wing as it
would have taken only a few minutes to do so, then he would have informed
the sergeant that the plaintiff was lying on the floor and not responding to
Potts’ verbal requests. Id. Potts asserts that it is likely that he followed this
procedure because Walker (whom the court dismissed as a defendant) arrived
to evaluate the plaintiff at about 11:35 a.m. Id.
The plaintiff states that Potts rode with him in the ambulance. Dkt. No.
51 ¶77. Potts states that he did not ride to the hospital in the ambulance, but
instead arrived at the hospital after the plaintiff was admitted in order to
provide security supervision for the plaintiff. Dkt. No. 44 at ¶7. Potts indicates
that at the hospital, and the plaintiff had a conversation, and the plaintiff told
Potts that he felt staff did not believe him. Id. ¶8. Potts indicates that he told
the plaintiff that there are many inmates that falsely report medical issues, and
the officers do not like “having their chain yanked.” Id.
B. 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
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“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.
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).
C. The Eighth Amendment Deliberate Indifference Standard
"Prison officials violate the Eighth Amendment's proscription against
cruel and unusual punishment when their conduct demonstrates 'deliberate
indifference to serious medical needs of prisoners.'" Gutierrez v. Peters, 111
F.3d 1364, 1369 (7th Cir. 1997). This standard contains both an objective
element (that the medical needs be sufficiently serious) and a subjective
element (that the officials act with a sufficiently culpable state of mind). Id. 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
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in disregard of that risk. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011).
“Deliberate indifference ‘is more than negligence and approaches intentional
wrongdoing.’” Arnett v. Webster, 658 F.3d 742, 759 (7th Cir. 2011) (quoting
Collignon v. Milwaukee Cnty., 163 F.3d 982, 988 (7th Cir. 1998)).
D. The Court’s Analysis
For purposes of summary judgment, Potts has conceded that the plaintiff
is a lifelong sufferer of sickle cell anemia. Dkt. No. 54 ¶10. This is a serious
condition that may result in life-threatening symptoms. Id. ¶13. Therefore, the
court finds that the plaintiff satisfies the objective element of the above
standard. The court’s analysis will focus only on the subjective element, i.e.,
whether Potts was deliberately indifferent to the plaintiff’s condition.
Potts states that, while he was not aware of the plaintiff’s diagnosis, he
had been instructed to report any medical complaints from the plaintiff to
health services. The plaintiff alleges that Potts arrived at his cell at 11:15 a.m.
to distribute the lunch meal trays. The plaintiff was unconscious, and an
inmate in the cell next to his heard Potts say something along the lines of, “Set
[sic] up and get your food tray.” Dkt. No. 26 at 2. When Potts received no
response from the plaintiff, the other inmate indicates that Potts closed the
plaintiff’s trap door and continued distributing the meal trays to the inmates.
Potts does not affirmatively dispute these allegations; instead, he states
only that he does not remember what happened on July 5, 2014. He explains
that he likely acted consistent with his training, which required that he confirm
the inmate was breathing and then report the incident to the unit sergeant. He
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states that he probably would have finished distributing the lunch trays
because it would have taken only a few additional minutes to do so. Potts
points to the fact that the unit sergeant arrived at the plaintiff’s cell about
twenty minutes later as evidence that he likely followed this procedure.
Potts cannot carry his burden on summary judgment because he cannot
remember what he did or didn’t do that day. See Omni-Circuits, Inc. v DRP,
Inc., No. 85 C 9081, 1987WL7290, at *4 (N.D. Ill. Feb. 23, 1987) (holding that
“lack of memory is not equivalent to a positive statement” and therefore is not
sufficient to carry burden on summary judgment). Further, while Potts points
to the arrival of the unit sergeant as evidence that he acted consistent with his
training, the court notes that the sergeant did not arrive until twenty minutes
after Potts encountered the plaintiff. In addition, Potts states that, even though
he had been instructed to contact health services with the plaintiff’s medical
complaints, it is likely that he would have delayed doing so in order to finish
delivering the lunch trays.
The court finds that a reasonable jury could conclude that Potts’ decision
to delay contacting the unit sergeant by a few minutes and/or his failure to
contact health services as instructed in the posted note demonstrated
deliberate indifference to the plaintiff’s serious medical needs. Admittedly, a
reasonable jury also could conclude that Potts had insufficient information
about the plaintiff’s condition to understand the serious implications of the
plaintiff’s lack of response and, therefore, that a delay of a few minutes in
contacting the unit sergeant as his training required demonstrated only
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negligence (which is not actionable under §1983), not deliberate indifference.
Either way, there exists a genuine dispute as to an issue of material fact, and
thus, neither party is entitled to summary judgment on the plaintiff’s deliberate
indifference claim against Potts.
II.

SCREENING THE PLAINTIFF’S AMENDED COMPLAINT
As permitted by the court, the plaintiff filed an amended complaint on

November 14, 2016. Dkt. No. 66. Federal law requires that the court screen
complaints, including amended complaints, brought by prisoners seeking relief
against a governmental entity or officer or employee of a governmental entity.
28 U.S.C. § 1915A(a).
To state a claim under the federal notice pleading system, a plaintiff
must provide a “short and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). A plaintiff does not need to plead
specific facts and his statement need only “give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). However, a complaint that offers “labels and conclusions” or
“formulaic recitation of the elements of a cause of action will not do.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state
a claim, a complaint must contain sufficient factual matter, accepted as true,
“that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
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misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint
allegations “must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555 (citation omitted).
In considering whether a complaint states a claim, courts follow the
principles set forth in Twombly. First, the court “identif[ies] pleadings that,
because they are no more than conclusions, are not entitled to the assumption
of truth.” Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions
with factual allegations. Id. Second, if there are well-pleaded factual
allegations, courts must “assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Id.
To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege
that the defendant(s): 1) deprived him of a right secured by the Constitution or
laws of the United States; and 2) acted under color of state law. BuchananMoore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing
Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see
also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give a
plaintiff’s pro se allegations, “however inartfully pleaded,” a liberal
construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
A. The Plaintiff’s Allegations
The plaintiff alleges that he suffers from sickle cell anemia, a blood
disorder where the blood does not get enough oxygen. Dkt. No. 66 at 3. On July
4, 2014, while housed at Green Bay Correctional Institution, the plaintiff began
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to experience severe pain, so he pushed his cell’s emergency call button and
informed the officer in the “control bubble” that he was experiencing a sickle
cell attack. Id. The officer, who is not named as a defendant, told the plaintiff
that he would inform the health services unit. Id.
The plaintiff then asked another inmate to also push his emergency call
button. Id. at 4. The officer once again said he would call the health services
unit. Id. The plaintiff pushed his call button yet another time. Id. At some time
between 9:15 a.m. and 9:30 a.m., the plaintiff again tried to push his call
button, but he fell down and hit his head against the wall, knocking himself
unconscious. Id.
The plaintiff alleges that the officer contacted defendant John Doe
sergeant to inform him that the plaintiff was experiencing sickle cell crisis. Id.
at 6. The plaintiff alleges that John Doe did not notify medical staff even
though it had been documented in the log book on a sticky note to contact
health services promptly if the plaintiff complained of an attack. Id. at 6, 7.
About two hours later, at 11:15 a.m., defendant Alan Potts2 began to
pass out the afternoon meal trays. Id. at 4. When he arrived at the plaintiff’s
cell, the plaintiff was lying unresponsive on the floor. Id. Potts said to the

2

 While the plaintiff fails to name Alan Potts in the caption of his amended

complaint or in the section entitled “Parties,” the plaintiff refers to “defendant”
Alan Potts in the body of his amended complaint (Dkt. No. 66 at 4) and directs
numerous allegations at him (Id. at 4-6). The court concludes that the omission
was merely an oversight and does not indicate the plaintiff’s intention to drop
his claim against Potts. The plaintiff’s allegations against Potts in his amended
complaint are substantively the same as those in his original complaint. The
court will not require Potts to respond to the plaintiff’s amended complaint,
but, as explained later in this order, will wait for the plaintiff’s new claim to
catch up procedurally with his claim against Potts.  
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plaintiff, “Get up and get your lunch tray.” Id. When he received no response,
Potts did not get help but simply continued to pass out the lunch trays. Id.
At about 11:48 a.m., the plaintiff finally was removed from his cell and
assessed by medical staff. Id. at 5. He was sent to the emergency room for
sickle cell anemia crisis and a head injury. Id.
The plaintiff states that Potts was assigned to go with the plaintiff to the
emergency room. Id. While there, Potts stated that he did not like his “chain
being yanked” and that a lot of “inmates play games,” so you don’t know when
an inmate is really serious. Id. The plaintiff also states that, on October 12,
2014, Potts indicated that he did not believe the plaintiff’s condition was
serious. Id. The plaintiff argues that these comments demonstrate that Potts
had made up his mind about the plaintiff’s condition, which is why he did not
get the plaintiff help on July 5. Id. at 6.
Finally, the plaintiff alleges that defendants Jean Lutsey, Kathy Lemens,
Mary Alsteen, C. Baier, H. Utter, Swijas, and Cpt. Van Gheem violated his
rights because, despite being aware of the seriousness of his condition, they
failed to sufficiently educate the correctional officers on his plan of care and the
procedures to be followed in the event the plaintiff complained of a crisis. Id. at
6-8. Instead, they “only posted a handwritten note that plaintiff has a
significant, chronic condition and that they should contact health service[s]
immediately with any medical complaints.” Id. at 8.

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B. The Court’s Analysis
The plaintiff may proceed on an Eighth Amendment deliberate
indifference claim against defendant John Doe based on his allegations that
John Doe failed to either check on the plaintiff or contact health services after
being notified that the plaintiff was complaining of severe pain and a potential
sickle cell crisis.
The plaintiff may not, however, proceed on his claim that defendants
Jean Lutsey, Kathy Lemens, Mary Alsteen, C. Baier, H. Utter, Swijas, and Cpt.
Van Gheem were deliberately indifferent to his serious medical needs when,
rather than issuing a formal memo, they opted to place a sticky note on the
logbook instructing officers to contact health services in the event the plaintiff
should make any medical complaints. The plaintiff is entitled to privacy in
connection with his health condition. The defendants took steps to both protect
his privacy and ensure that his medical complaints would be taken seriously.
The plaintiff acknowledges that they communicated the necessary information
to the officers—how they communicated it (e.g., via a formal memo, a staff
meeting, or a sticky note in a common area) is irrelevant.
III.

CONCLUSION

Ordinarily, the court would schedule a trial date on a claim that survives
summary judgment; this case is procedurally unusual, however, in that the
court is allowing the plaintiff to proceed on a new claim against a new
defendant despite the fact that the court already has ruled on the parties’
motions for summary judgment. For the sake of judicial economy, the court
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will put the plaintiff’s claim against Potts on hold until the plaintiff’s claim
against John Doe “catches up” procedurally.
Because the plaintiff does not know the proper name of John Doe, the
court will allow him to conduct limited discovery on that topic. The plaintiff
may serve discovery on Potts for the limited purpose of discovering the proper
name of John Doe. The plaintiff may not serve requests on any topic other than
that one, and Potts is not obligated to respond to requests on any topic other
than that one. Once the plaintiff identifies John Doe, he should file a motion to
substitute John Doe’s real name for the “John Doe” placeholder. Once the
plaintiff has identified John Doe, the court will order service of the amended
complaint on him.
The court will give the plaintiff sixty days to identify John Doe. If he does
not identify John Doe by the deadline or explain to the court why he is unable
to identify him by the deadline, the court will dismiss the claim against John
Doe.
The court ORDERS that the parties’ cross-motions for summary
judgment respect to Alan Potts are DENIED. Dkt. Nos. 21, 27.
The court further ORDERS that the plaintiff may serve limited discovery
on Potts to identify John Doe. The plaintiff must identify the John Doe
defendant by March 14, 2017, or the court will dismiss John Doe as a
defendant.

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The court also ORDERS that Jean Lutsey, Kathy Lemens, Mary Alsteen,
C. Baier, H. Utter, Swijas, and Cpt. Van Gheem are DISMISSED.
Dated in Milwaukee, Wisconsin this 12th day of January, 2017.

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