Peace v. Pollard et al

Filing 61

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 8/31/2017. 28 Plaintiff's MOTION for Partial Summary Judgment DENIED. 32 Defendants' MOTION for Summary Judgment GRANTED. Case DISMISSED. Clerk of Court to correct spelling of defendants Larson and Radcliffe's last names on the docket. (cc: all counsel, via mail to Daniel Peace at Redgranite Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DANIEL ANTHONY PEACE,
Plaintiff,
v.

Case No. 15-cv-276-pp

DONNA LARSON,
BRIAN GREFF, and
AMY RADCLIFFE,1
Defendants.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT (DKT. NO. 28), GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (DOC. 32), AND DISMISSING CASE
______________________________________________________________________________
The court allowed plaintiff Daniel Anthony Peace, a state prisoner, to
proceed on claims under 42 U.S.C. §1983 that the defendants were deliberately
indifferent to his chronic headaches when they did not allow him to keep his
medication in his cell while he was on temporary lock up (TLU) status at
Waupun Correctional Institution (Waupun) in October 2014. Dkt. No. 17.
On June 15, 2016, the plaintiff filed a motion for partial summary
judgment. Dkt. Nos. 28-31. About two weeks later—on June 27, 2016—the
defendants filed a combined motion for summary judgment and response to
the plaintiff’s motion for partial summary judgment. Dkt. Nos. 32-38. The court
received the plaintiff’s reply materials and his response to the defendants’
The court updated the caption to reflect the correct spelling of the names of
defendants Donna Larson and Amy Radcliffe. The Clerk of Court will also
update the docket.
1

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motion for summary judgment on August 1, 2016. Dkt. Nos. 43-48. Two weeks
later, the defendants filed reply materials, which included additional proposed
findings of fact. Dkt. Nos. 51-56. The plaintiff responded to those newly raised
issues. Dkt. Nos. 57-59. For the reasons stated below, the court will deny the
plaintiff’s motion, grant the defendants’ motion, and dismiss the case.
I.

RELEVANT FACTS
The court takes the facts from the parties’ submissions regarding their

proposed findings of fact, including “Plaintiff’s Proposed Findings of Fact” dkt.
no. 30; “Defendants’ Proposed Findings of Fact,” dkt. no. 34; “Plaintiff’s and
Defendants’ Undisputed Facts,” dkt. no. 44; “Plaintiff’s Additional Proposed
Findings of Facts,” dkt. no. 45; and “Defendants’ Additional Proposed Findings
of Fact,” dkt. no. 54. The court also has considered the parties’ responses and
replies regarding these findings of fact. Dkts. Nos. 35, 46, 52, 53 and 59.
A.

Parties

Plaintiff Daniel Anthony Peace is a state prisoner who was housed at
Waupun in September and October of 2014. Dkt. No. 34 at ¶11. Waupun is a
maximum security prison; it houses inmates who have committed serious
crimes or have a history of violent behavior. Dkt. No. 34 at ¶2.
Defendant Amy Radcliffe is a licensed registered nurse, who from 2011
until December 2014 was employed by the Wisconsin Department of
Corrections (DOC) as a Nurse Clinician 2 at Waupun. Dkt. No. 34 at ¶¶7-9.
At all times relevant to the plaintiff’s claims, defendant Donna Larson
was the Acting Health Services Unit (HSU) Manager at Waupun. Id. at ¶10. Her
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duties included management and supervision of health care services,
monitoring care plans, and monitoring nursing practice documentation in
medical records. Id. She did not provide direct patient care to inmates at
Waupun. Id. at ¶23.
From 2012 until 2016, defendant Brian Greff was employed at Waupun
as a Corrections Program Supervisor. Id. at ¶4. In that capacity, he coordinated
and supervised programs for specialized housing units. Id. at ¶3.
B.

Plaintiff’s History of Headaches

When the plaintiff was a child, he was struck by an automobile, and
ended up as a patient at Froedtert Memorial Lutheran Hospital. Dkt. No. 30 at
¶1. He had an abrasion-contusion with significant soft tissue swelling to the
mid-forehead. Id. He had operations on his right frontal skull; the medical team
sutured his chin, lower lip and nose; and he had rehab at Children’s Hospital.
Id.
At a later age, the plaintiff was struck by a car while riding his bike home
from work. Id. at ¶2. He lost consciousness, and his pelvis bone was broken.
Id. For this accident, he was a patient at St. Joseph Hospital in Milwaukee for
a while, then received outpatient rehab from St. Joseph Clinic. Id.
Several years later, the plaintiff was shot in the head while driving his
car. Id. at ¶3. He had two wounds in his front mid-forehead, and he injured his
left hip and thigh. Id. He was treated at Froedtert, and began suffering from
chronic migraines. Id. at ¶¶3-4. The plaintiff used marijuana and over-the-

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counter pain medication to treat the migraines and chronic headaches. Id. at
¶¶4, 7.
On March 1, 2005, the plaintiff was taken into custody for an unrelated
body warrant. Id. at ¶5. Three ten-dollar bags of marijuana were found on him,
which he was using to control his chronic migraines. Id. The plaintiff was
charged with possession of a controlled substance; he pled to a misdemeanor.
Id. Between 2007 and 2009, the plaintiff was incarcerated; he was released to
probation on March 3, 2009. Id. at ¶6. The plaintiff was taken back into
custody in Milwaukee County for parole violations on October 31, 2009, and
has been incarcerated ever since. Id. at ¶¶7-8. When he was taken into
custody, the Milwaukee County Sheriff’s Department and the Department of
Community Corrections recovered thirty-three bags of marijuana, and the
plaintiff was charged with possession with intent to deliver a controlled
substance. Id. at ¶7.
On March 29, 2014, while he was incarcerated at the Sturtevant
Transitional Facility, the plaintiff was taken to Wheaton Franciscan Hospital in
Racine when he suffered a migraine headache after his forehead hit a wall. Id.
at ¶9; Dkt. No. 34 at ¶25. In his discharge instructions, the physician’s
assistant at the hospital suggested that the plaintiff take a combination of
Acetaminophen, Benadryl and Naproxen for migraines, and that he take
Acetaminophen alone for headaches, as needed. Dkt. No. 30 at ¶9.
When patients are sent to outside providers, recommendations from
those providers are considered recommendations to the DOC providers. Id. at
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¶26. The DOC providers need to fit those recommendations to DOC and
Bureau of Health Services (BHS) policies and procedures, formulary and
guidelines. Id.
Between March and October 2014, the plaintiff was prescribed various
medications to treat his headaches, asthma and other ailments. Id. at ¶27. His
primary care providers ordered, changed and renewed his medications
throughout this time. Id. This included treatment the plaintiff received at
Sturtevant Transitional Facility, Racine Correctional Institution, the Milwaukee
County Jail and Waupun. Dkt. No. 30 at ¶¶10-12.
At Waupun, the plaintiff wrote to HSU about his migraines, and Dr.
Jeffry Manlove, M.D. prescribed Metoprolol 25 mg. twice a day. Id. at ¶13.
C.

Restrictive Housing Unit

On September 30, 2014, the plaintiff was placed on Temporary Lock Up
(TLU) status while being investigated for sexual misconduct. Dkt. No. 34 at
¶11. While on TLU status, he was housed in the Restrictive Housing Unit (RHU)
at Waupun, formerly known as “segregation.” Id. He remained in the RHU until
October 22, 2014. Id.
TLU status is a non-punitive status that allows an inmate to be
separated from the general population pending further investigation or
administrative action. Id. at ¶12. TLU is not considered a punitive housing
status ,despite the location of TLU housing in the RHU. Id.
The RHU at Waupun is separated into three wings, or “ranges:” A, B and
C. Id. ¶13. The inmates in the RHU are subject to additional rules and policies.
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Id. While on TLU status in the RHU, the plaintiff was housed on B range in cell
B-208. Id. at ¶14.
The RHU handbook, which became effective August 31, 2010, contains a
policy on page 11 regarding the delivery of medication. Id. at ¶15. A and B
wings in the RHU were “Control All Medication Wings,” which means staff
members distributed all oral medications to the individual inmate’s cell. Id. at
¶16. Inmates were not allowed to possess non-control medications in their
cells. Id. The rule restricting access to non-control medications was in place to
eliminate the possibility of medication transfer or abuse, particularly by
behaviorally unstable inmates. Id. at ¶19. The rule also was instituted as a
cost-saving measure, to reduce emergency medical trips due to overdose. Id.
Inmates in the RHU can receive medications at morning, noon, afternoon
and bedtime medication passes. Id. at ¶30. During these medication passes,
correctional officers distribute medications to the individual inmates according
to the directions on the “Medication/Treatment Record DOC-3026.” Id. The
correctional officers track when an inmate refuses or accepts his medications
and verify that the inmate has properly ingested the medication. Id.
Inmates placed on TLU status are housed only on the A and B wings of
the RHU, because the C wing generally is used for inmates who have
progressed through the step process in the RHU and are at the final step before
reentry into the general population. Id. at ¶¶17-18. Part of the transition back
to the general population involves increased property and privileges. Id. at ¶18.
Giving inmates back their non-controlled medications was part of that process.
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Id. Placement of TLU status inmates on C wing would disrupt the order of the
wing and the transition process for inmates who were housed in the RHU for
punitive reasons. Id.
D.

Greff’s Personal Involvement

Greff never created a policy prohibiting inmates on A and B wings from
possessing medications. Dkt. No. 34 at ¶20. There was such a policy, but it
became effective in 2010, two years prior to Greff becoming Corrections
Program Supervisor in the RHU. Id. Greff never was involved in any
determination regarding when the plaintiff received his medications. Id. at ¶21.
Greff did not have the authority to override medication orders written by HSU
staff. Id.
At some point while the plaintiff was in the RHU, Greff came to the
plaintiff’s cell door and introduced himself as the “Segregation Unit” supervisor.
Dkt. No. 45 at ¶16. Greff told the plaintiff to contact him if the plaintiff had any
problems with staff. Id. The plaintiff did not understand that Greff was
Correctional Program Supervisor. Id. ¶17. He wrote to “Sgt. Brian Greff”
regarding not receiving a tray. Id.
E.

Medical Care in RHU

The plaintiff was housed in the RHU from September 20, 2014 to October
22, 2014. Dkt. No 34 at ¶11. At that time, the plaintiff was prescribed six
medications to assist with his headaches/migraines, asthma, and other
ailments. Id. at ¶28. The medications for the plaintiff’s headaches/migraines
included: (1) Naproxen 500 mg. once daily as needed and provided during the
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a.m. medication pass; (2) Acetaminophen 500 mg. twice a day as needed; and
(3) metoprolol 25 mg. twice a day on a scheduled basis to prevent both
headaches and high blood pressure. Id. These medications were available to
the plaintiff during the a.m. and p.m. medication pass. Id. The plaintiff also
received Ceirizine, an antihistamine, once daily during the a.m. medication
pass. Id. The three medications used to treat the plaintiff’s headaches mirrored
the recommendations in the discharge instructions from the hospital:
acetaminophen, a non-steroidal anti-inflammatory drug and an antihistamine.
Id. at ¶29.
The plaintiff’s medical records demonstrate that during his time in the
RHU, he often refused medication offered to him during medication pass. Id. at
¶31. In response to this finding of fact, the plaintiff says that he took his
metoprolol and acetaminophen “almost regularly during the PM medications
pass,” but that he “never took Naproxen” because Wheaton had advised the
plaintiff to take Naproxen with acetaminophen and benidrin, but the benidrin
had been discontinued. Dkt. No. 46 at 8; Dkt. No. 45 at ¶15.
On October 17, 2014, the plaintiff stopped the medication delivery officer
and asked for some of his headache medication. Dkt. No. 30 at ¶15. The officer
told the plaintiff that the last time he could receive any medications was during
the 4:00 p.m. medication pass and that he should write to HSU. Id.
The plaintiff wrote to HSU using a Psychological Service Request form.
Id. at ¶16. He wrote: “Most of the headaches I have are bad, they take place
mostly between 8pm and 8AM med pass. Why won’t they let me have my non8

control headaches meds in my cell 208-B Seg.” Id. The Psychology Services
Unit forwarded the request to the HSU for a response. Dkt. No. 34 at ¶32. The
plaintiff submitted an identical Health Service Request the same day. Id. ¶33.
The next day, Radcliffe responded to the plaintiff’s requests by informing
him that he could not have medications in his cell. Id. at ¶34. Radcliffe
recommended that the plaintiff try relaxation, meditation or cool compresses to
relieve his headaches. Id. She personally had used these methods successfully
to reduce and relieve headache symptoms. Id. ¶35. Radcliffe based her
response on the fact that the RHU handbook did not allow inmates in A and B
wing to have medications in their cells. Id. ¶36. She did not have the authority
to override the RHU’s established medication rules. Id. Nor did she, as a nurse,
have the authority to overturn medical decisions or change prescription
medications. Id. at ¶44-45.
After receiving Radcliffe’s response, the plaintiff consulted his handbook
and determined that he should follow the chain of command and write to the
HSU Manager. Dkt. No. 30 at ¶18-20. On October 18, 2014, the plaintiff
submitted another Health Service Request concerning his headaches; it was
addressed to “Unit Manager.” Dkt. No. 34 at ¶39. He wrote: “Most of my
headaches are bad, they take place between 8pm and 8AM med pass. Why
can’t I have my non-control headache meds in my cells 208-B Seg.” Dkt. No. 30
at ¶20.
Larson responded on October 20, 2014: “All medications are controlled
on A + B ranges. I will schedule you with a nurse to better manage your
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headaches. Your medications are not ordered during those times. They are
ordered Am (Naproxen + AM = PM Cacelantion as needed.” Id. at ¶21. As HSU
Manager, Larson did not have the authority to change or alter what
medications the prescriber ordered or when the plaintiff could receive those
medications. Dkt No. 34 at ¶44. Nor did she have the ability or authority to
override the established medication rules for the RHU. Id. at ¶46.
On October 21, 2014, a member of the HSU staff had a discussion with
the plaintiff at his cell regarding his October 18, 2014 Health Service Request.
Id. at ¶41. The plaintiff was informed of the medication policy in the RHU, and
he was instructed to continue fluids and to try relaxation to relieve his
symptoms. Id. The plaintiff disputes that he had this conversation, or at least
says that he did not understand what it meant to continue fluids. Dkt. No. 46
at 10.
The plaintiff was seen in the HSU on October 27, 2014 regarding his
medications, but his issue was resolved by then because he was no longer in
the RHU and could maintain his non-controlled medications in his cell. Dkt.
No. 34 at ¶42. The plaintiff’s medication order was renewed. Id.
F.

RHU Medication Policy Change

Paul Ludvigson currently is employed as a Corrections Program
Supervisor for the RHU at Waupun; he has held this position since May 2015.
Dkt. No. 54 at ¶3. On March 11, 2016, Ludvigson issued a memorandum to
the RHU staff informing them of a change in practice regarding the distribution
of medications in the RHU. Id. at ¶4. From that point, all medications were
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officer-controlled for all wings and distributed from the RHU medications cart,
with the exception of medications designated or ordered by the HSU to be kept
on person, or for those inmates who already had their allowed medications. Id.
On May 11, 2016, Ludvigson issued a second memorandum to the RHU
staff and inmates, informing them of the transition to all medications being
officer-controlled. Id. ¶5. An exception to this practice could be made if the
medications were designated to be kept on person by the HSU. Id.
These changes were made with the intention of reducing the number of
overdoses in the RHU. Id. ¶6. The plaintiff submitted an affidavit from another
inmate who had been in the RHU on and off for a total of two years. Dkt. No.
45 at ¶19. That inmate was aware of inmates overdosing on C wing of the RHU.
Id.
G.

Additional Proposed Findings of Fact

The remainder of the plaintiff’s proposed findings of fact relate to his
exhaustion of administrative remedies, dkt. no. 30 at ¶¶23-28, and treatment
he received for his headaches after October 2014, including during a
subsequent stay in the RHU, id. at ¶¶29-46, dkt. no. 45 at ¶18. The
defendants, however, did not raise the issue of exhaustion in their motion for
summary judgment, and the facts regarding treatment after October 2014 do
not relate to these defendants and are not relevant to the plaintiff’s claims in
this case.
In “Plaintiff’s Additional Proposed Findings of Facts,” the plaintiff
presents information regarding a February 9, 2015 nursing visit and his
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subsequent communication with Larson regarding why he was charged a copay
for the visit. Dkt. No. 45. Larson, as acting HSU Manager, told the plaintiff that
the copay applied because he was seen face-to-face and assessed. Id. at ¶3.
The plaintiff filed a complaint. Id. at ¶4.
Larson had a face-to-face meeting with the plaintiff on February 24,
2015; she assessed the plaintiff’s left foot and scheduled the plaintiff to see a
medical provider. Id. ¶6. Before leaving the HSU that day, the plaintiff asked
Larson about the copay issue, and she advised him to write to her about it. Id.
at ¶7. The plaintiff wrote to Larson that day, indicating that on February 9 the
nurse had addressed the plaintiff’s asthma, not his joint pain. Id. at ¶8. When
another nurse responded that the plaintiff had been seen on February 24 and
that the issue had been addressed, the plaintiff wrote to Larson again. Id. at
¶¶9-10.
Larson responded on February 27, 2015:
Mr. Peace, nurses can’t recommend treatment without
assessing the problem. That is why you were scheduled. During
your visit the [nurse] became concerned with your breathing
after having you cough at night and your opening of the
maintance [sic] inhaler not working. So she assessed your
respiratory system. This is a face to face contact and you
brough[t] up the cough at night, which is asking for help. Copay
applies.
Id. ¶11. The plaintiff filed another complaint regarding the copay issue. Id.
¶¶12-14.

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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 a “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).

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B.

Deliberate Indifference to Serious Medical Need

“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)). “Prison officials violate the Constitution if they are
deliberately indifferent to prisoners’ serious medical needs.” Arnett, 658 F.3d at
750 (citing Estelle v. Gamble, 4289 U.S. 97, 103 (1976)). “[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 (citations omitted). “Deliberate 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 103).
The defendants argue that suffering even a “painful and uncomfortable”
migraine headache should not be considered an excessive risk to the plaintiff’s
health or safety, particularly because the plaintiff received medication for his
headaches twice a day. Dkt. No. 33 at 12. Yet it is undisputed that the plaintiff
had chronic migraines and headaches, and medical professionals had
prescribed several medications to treat those conditions. Dkt. No. 30 at ¶9, 13;
Dkt. No. 34 at ¶¶ 25-29. The court concludes that the plaintiff’s migraines and
headaches do constitute a serious medical need, one that “has been diagnosed

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by a physician as mandating treatment . . . .” Roe v. Elyea, 631 F.3d 842, 857
(7th Cir. 2011) (quoting Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)).
The second prong of the deliberate indifference standard requires the
court to determine whether Radcliffe, Larson or Greff acted with a sufficiently
culpable state of mind. Although the defendants argue that none of them had
sufficient personal involvement to be liable for a constitutional violation, dkt.
No. 33 at 6-9, the facts indicate that Radcliffe and Larson were involved with
the plaintiff’s request to keep his headache medication in his cell, so the court
will consider whether they were deliberately indifferent. The court will address
the plaintiff’s claim against Greff separately.
“To demonstrate deliberate indifference, a plaintiff must show that the
defendant acted with a sufficiently culpable state of mind, something akin to
recklessness.” Arnett, 658 F.3d at 751 (quotation omitted). 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. Roe, 631 F.3d at 857. “Deliberate indifference ‘is more than
negligence and approaches intentional wrongdoing.’” Arnett, 658 F.3d at 759
(quoting Collignon v. Milwaukee Cnty., 163 F.3d 982, 988 (7th Cir. 1998)).
1.

Amy Radcliffe

Radcliffe’s only involvement with the plaintiff regarding this claim is her
response to the plaintiff’s October 17, 2014 requests to keep his headache
medications in his cell in the RHU. Dkt. No. 34 at ¶¶34-36. When she received
the plaintiff’s request, Radcliffe either checked, or knew, that the RHU
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handbook did not allow inmates in A and B wing to have medications in their
cells. Id. ¶36. Because she did not have the authority to override the RHU’s
medication rules, she provided the plaintiff with methods (not medication) that
she herself had successfully used to reduce and relieve headache symptoms.
Id. at ¶¶35-36.
No reasonable jury could conclude that Radcliffe’s response was
deliberately indifferent to the plaintiff’s suffering from his migraines and
headaches. She provided him with care—the only care that she was authorized
to provide: alternative ways to reduce or relieve his headache symptoms, which
was something that was within her power and authority. The court will grant
the defendants’ motion for summary judgment as to Radcliffe, and will deny
the plaintiff’s motion for partial summary judgment.
2.

Donna Larson

Similarly, Larson’s only involvement with the plaintiff regarding this
claim was her response to his October 18, 2014 request. Dkt. No. 30 at ¶21.
Larson informed the plaintiff that all medications were controlled on the A and
B ranges of the RHU. Id. She also scheduled the plaintiff to be seen by a nurse
to determine a better way for the plaintiff to manage his headaches. Id. Even as
Acting HSU Manager, Larson did not have the authority to change or alter the
medications the prescriber ordered or when the plaintiff could receive those
medications. Dkt No. 34 at ¶44. Nor did she have the ability or authority to
override the established medication rules for the RHU. Id. at ¶46. Though
Larson did not have the authority to order those changes herself, she
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scheduled the plaintiff to be seen by someone who might have that authority.
There was no suggestion in the plaintiff’s request that it was a medical
emergency that required something other than the usual procedure to be seen
by medical personnel.
The plaintiff argues that Larson’s statement in 2015 that she could not
recommend treatment without assessing the problem contradicts her response
to his request regarding his headache medication. He maintains that Larson
could look at his medications and treatment records and make changes. He
also suggests that she should have assessed him before making the decision to
refer him to a nurse. Finally, the plaintiff insists that Larson had “the ability to
correct and alter by talking with the Institution Doctor, about an inmate’s
medication be[ing] prescribed at the wrong times.” Dkt. No. 43 at 5.
The plaintiff’s arguments are just that—arguments. He has provided no
evidence in support of these contentions. He states his opinion as to what
Larson could have done, or should have done, or was authorized to do.
Larson’s handling of the plaintiff’s subsequent claim regarding his joint pain
and the copay issue (which is not a medical issue) does not undermine her
assertion that she did not have the power to alter RHU policy or the plaintiff’s
medications. Even viewing the evidence in the light most favorable to the
plaintiff, no reasonable jury could conclude that Larson was deliberately
indifferent to the plaintiff’s migraines and headaches or his need for medication
for those conditions. She did respond to his medical need—she scheduled him
to be seen by a nurse. That response to the plaintiff’s request was not “such a
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substantial departure from accepted professional judgment, practice, or
standards, as to demonstrate that the person responsible actually did not base
the decision on such a judgment.” Roe, 631 F.3d at 857 (quoting Sain, 512
F.3d at 894-95). The court will grant the defendants’ motion for summary
judgment as to Larson and deny the plaintiff’s motion for partial summary
judgment.
3.

Brian Greff

Finally, at the screening stage, the court allowed the plaintiff to proceed
on a claim that Greff created a policy regarding non-control medication which
was deliberately indifferent to the plaintiff’s serious medical need (a need which
required that the plaintiff have access to his medication any time a headache
began). Dkt. No. 17 at 10. As part of the summary judgment process, the
parties submitted evidence—including affidavits and declarations. The
undisputed evidence at this later stage of the case shows that Greff did not
create the policy that precluded the plaintiff from keeping his non-control
medication in his cell. Nor has the plaintiff submitted any evidence that he
alerted Greff to his migraines or headaches or his need for medication in his
cell.
Section 1983 limits liability to public employees who are personally
responsible for a constitutional violation. Burks v. Raemisch, 555 F.3d 592,
595-96 (7th Cir. 2009). For liability to attach, the individual defendant must
have caused or participated in a constitutional violation. Hildebrandt v. Illinois
Dept. of Natural Resources, 347 F.3d 1014, 1039 (7th Cir. 2003). Greff did not
18

participate in any violation of the plaintiff’s constitutional rights. The court will
grant the defendants’ motion for summary judgment as to Greff.
III.

CONCLUSION
The court DENIES the plaintiff’s motion for partial summary judgment.

Dkt. No. 28.
The court GRANTS the defendants’ motion for summary judgment. Dkt.
No. 32.
The court ORDERS that this case is DISMISSED.
The court DIRECTS the clerk of court to enter judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
See Federal Rule of Appellate Procedure 3, 4. This court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Federal
Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Federal Rule of Civil
Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b) must
be filed within a reasonable time, generally no more than one year after the
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entry of the judgment. The court cannot extend this deadline. See Federal Rule
of Civil Procedure 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 31st day of August, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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