Cox v. Baenen et al

Filing 248

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 10/9/2019 GRANTING 201 defendants Society Insurance, SMA Construction Services, Abhold and Feucht's motion for summary judgment. (cc: all counsel)(cb)

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

Case No. 15-cv-395-pp

MICHAEL BAENEN, YANA PUSICH,
AMY BASTEN, RANDY MATTISON,
SCOTT LEURQUIN, SMA CONSTRUCTION SERVICES,
MIKE ABHOLD, BURT FEUCHT,
and SOCIETY INSURANCE,
Defendants.
______________________________________________________________________________
ORDER GRANTING DEFENDANTS ABHOLD, FEUCHT, SMA
CONSTRUCTION SERVICES AND SOCIETY INSURANCE’S MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 201) AND DISMISSING CASE
Plaintiff Dwayne Cox, a Wisconsin state prisoner, filed a complaint
alleging that nine defendants—Warden Michael Baenen of the Green Bay
Correctional Institution, Security Supervisor Yana Pusich, Corrections Manager
Amy Basten, Grounds Superintendent Chris Timmers, Engineer Randy
Mattison, Corrections Officer Scott Leurquin, John Doe Construction
Company, CEO John Doe Construction Company and Site Supervisor[s] from
John Doe Construction Company—violated his rights by exposing him to
exhaust fumes and extreme cold during the construction of a bath house at the
institution.1 Dkt. No. 1. That complaint alleged four causes of action—an

The plaintiff didn’t have a lawyer when he filed the case, but United States
District Judge Charles N. Clevert, Jr., who initially presided over the case,
recruited an attorney to represent the plaintiff pro bono. Dkt. No. 162. The case
was reassigned to this court on Judge Clevert’s retirement.
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Eighth Amendment conditions-of-confinement claim against all defendants; a
Fourteenth Amendment equal protection claim against all defendants; a statelaw negligence claim against all defendants; and a state law claim of
respondeat superior, failure to train and failure to supervise against all
defendants. Id.
The plaintiff subsequently filed a motion to amend the complaint, dkt.
No. 11, and the court granted that motion, dkt. no. 17. The amended complaint
added a fifth cause of action against all defendants—a state-law claim of
negligent infliction of emotional distress. Dkt. No. 18. At screening, Judge
Clevert allowed the plaintiff to proceed on his Eighth Amendment claim and the
state law claims, but did not allow him to proceed on the equal protection
claim. Dkt. No. 17 at 7.
After extended litigation regarding discovery, the plaintiff filed a motion
for leave to file a second amended complaint, naming Doe construction
defendants. Dkt. No. 116. The court granted that motion, dkt. no. 124, and the
second amended complaint became the operative complaint, dkt. no. 125. The
plaintiff identified SMA Construction Services as the company that built the
bath house, Mike Abhold as SMA’s CEO, Burt Feucht as SMA’s site supervisor,
and Liberty Mutual Insurance Company as SMA’s insurer.2 Dkt. No. 125. The

Insurance company Liberty Mutual answered the complaint. Dkt. No. 151.
The parties subsequently stipulated to dismissing Liberty Mutual as a
defendant, dkt. no. 169, and the court dismissed it based on that stipulation,
dkt. no. 170. The plaintiff eventually asked leave to amend the complaint to
add Society Insurance Company as a Construction Defendant. Dkt. No. 186.
The court granted that motion and ordered Society to answer. Dkt. No. 194.
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second amended complaint otherwise contained the same factual allegations
and alleged the same causes of action as the amended complaint. Id.
Baenen, Basten, Leurquin, Mattison, Pusich and Timmers—all
employees of Green Bay Correctional and referred to as the “State
Defendants—answered the second amended complaint. Dkt. No. 146. SMA
Construction, Abhold and Feucht—who were not employees of the Department
of Corrections and are referred to as the “Construction Defendants”—filed a
motion to dismiss on the ground that they were not acting under color of law at
the time of the alleged events. Dkt. No. 147. The plaintiff responded that he did
not object to the court dismissing the Eighth Amendment and Equal Protection
claims—the two federal claims—against the Construction Defendants.3 Dkt.
No. 167 at n.1. The plaintiff argued, however, that because the court had
jurisdiction over the federal claims against the State Defendants, it should
exercise its supplemental jurisdiction under 28 U.S.C. §1367 over the state law
claims against all the defendants, including the Construction Defendants. Id.
at 4-8. Judge Clevert agreed; he dismissed the federal Eighth Amendment
claim against the Construction Defendants but denied their motion to dismiss
the state law claims. Dkt. No. 171.

The Construction Defendants, including Society, filed their answer to the
fourth amended complaint. Dkt. No. 196.
Judge Clevert had ruled that the plaintiff could not proceed on the Fourteenth
Amendment claim, so the stipulation to dismissal was not necessary as to that
claim. Dkt. No. 17 at 7.
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The Construction Defendants filed a motion for summary judgment on
the state-law claims, dkt. no. 201, and the State Defendants filed a separate
motion for summary judgment on the federal and state-law claims, dkt. no.
206. Both motions were fully briefed as of June 2018; the Construction
Defendants filed supplemental authority in April 2019, dkt. no. 245.
On September 30, 2019, this court granted summary judgment in favor
of the State Defendants on the Eighth Amendment claim. Dkt. No. 247 at 58.
Because it granted summary judgment on the sole federal cause of action, the
court concluded that it no longer had supplemental jurisdiction over the statelaw claims against the State Defendants. Id. Because the only claims against
the Construction Defendants are state-law claims over which the court had
only supplemental jurisdiction under 28 U.S.C. §1367, its dismissal of the
Eighth Amendment claim against the State Defendants deprives it of
supplemental jurisdiction over the state-law claims against the Construction
Defendants. The court must grant summary judgment in favor of the
Construction Defendants.
In its order granting summary judgment in favor of the State Defendants,
the court discussed extensive record evidence showing that between the fall of
2013 and March 2014, he and other inmates in the North Cell Hall at Green
Bay were exposed to exhaust fumes from the diesel-powered heavy equipment
being used to build the bath house. Dkt. No. 247 at 2-10, 24-47. More than
one inmate reported symptoms such as dizziness, nausea, blurred vision,
vomiting and headaches which they attributed to this exposure. More than one
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inmate reported the issue to various prison staff members. The prison staff
took action; building and grounds supervisor Chris Timmers (now deceased)
turned off the air handlers near where the work was being done, ostensibly to
avoid circulating the exhaust fumes through the living area. There were also
large floor fans blowing, allegedly to keep some air moving. Unfortunately,
turning off the air handlers also turned off the heat, at a time when Wisconsin
was experiencing unusually cold temperatures. Inmates complained that
turning off the air handlers and using the floor fans did not resolve the exhaust
issues and resulted in the inmates being exposed to severe cold. Some inmates
even proposed solutions, such as running tubing to vent the fumes back out of
the North Cell Hall. The State Defendants investigated; the facility engineer,
Randall Mattison, wrote a report indicating that he thought the problem was
resolved and that no one had been harmed. Id.
In the decision granting summary judgment in favor of the State
Defendants, the court wrote that
The court concedes that this is a difficult case. The inmates
were subjected to diesel exhaust fumes for an extended period. The
inmates lived in the North cell Hall twenty-four hours a day, seven
days a week, unlike guards or prison staff. They would have been
exposed to these fumes more regularly, more consistently and more
persistently that [corrections officers near the construction site] or
anyone else involved in the situation. The fact that some prison staff
. . . claimed they didn’t suffer from headaches, nausea or other
symptoms could well be attributed to their more limited exposure. It
is concerning that [some State Defendants] did not visit the cell hall
themselves, more than once, over time-to see if they could detect the
problem the inmates reported. It is concerning that [some State
Defendants] didn’t interview the complaining inmates, as [the
inmate complaint examiner had]. It is concerning that the HSU
[Health Services Unit] incorrectly reported that no inmate had
complained of symptoms related to the construction work. It is even
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concerning that [the security officer] did not stamp inmate letters
“received,” or write on them the date that she received them, or
acknowledge receipt in any way.
Also befuddling is the fact that it apparently didn’t occur to
maintenance staff that if they turned off the air handlers in the
middle of the Wisconsin winter (and a particularly brutal winter),
less heat would be pumped into the cell block and the inmates would
be exposed to cold. While it is good that the maintenance staff tried
to address the exhaust problem, it is perplexing that it didn’t seem
to occur to that staff that the “cure” might be as bad as, or worse
than, the “disease.” Chris Timmers, the buildings and grounds
manager who appears to have been responsible for the idea of
turning off the air handlers, has passed away, and none of the other
defendants are members of the maintenance staff. The record does
not indicate what the maintenance staff thought process was
regarding the impact their “solution” might have on the cell hall
temperature.
One might look at all these facts and conclude that staff at
Green Bay mishandled the fumes situation, and that this arguable
mishandling unnecessarily exposed inmates such as the plaintiff to
health issues and cold. The inmates should not have been exposed
to the fumes and the cold. The question is whether a reasonable jury
could find that these defendants were deliberately indifferent to the
risks, and to the inmates’ suffering, under the Eighth Amendment.
The court concludes that a reasonable jury could not reach that
conclusion. The court will grant the State defendants’ motion for
summary judgment.
Id. at 56-58.
The court’s sentiments, for what they are worth, are similar as to the
Construction Defendants. The plaintiff pointed to evidence indicating that the
Construction Defendants were aware of the inmate complaints regarding the
fumes, and knew that the equipment emitted hazardous fumes near a prison
residence hall where prisoners had limited movement. Dkt. No. 225 at 13-14.
He points to evidence that the Construction Defendants didn’t monitor the air
quality until after the bath house had been enclosed. Id. at 13. He argues that
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the Construction Defendants took no steps to reduce the fumes, despite this
knowledge. Id. Might a reasonable jury have concluded that the Construction
Defendants were negligent in some way? Possibly. Might a reasonable jury have
concluded that the plaintiff and other inmates suffered physical symptoms as a
result of their exposure to the fumes? Possibly. But because there no longer are
federal claims before this court, it has no supplemental jurisdiction over the
state-law claims that would have been the vehicle for presenting those
questions to a jury.
The court GRANTS the Construction Defendants’ motion for summary
judgment. Dkt. No. 201.
The court ORDERS that this case is DISMISSED. The court will enter
judgment accordingly.
The court gratefully acknowledges that the plaintiff has counsel. In an
abundance of caution, however, the court notes that 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
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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
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 at Milwaukee, Wisconsin this 9th day of October, 2019.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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