Howard et al v. Walker et al

Filing 114

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS RENEWED MOTION FOR SUMMARY JUDGMENT Re: 96 signed by Judge Brett Ludwig on 2/4/21. Defendants ODonovan and Callister are DISMISSED. Status Conference to be held 2/18/21. (cc: all counsel and mailed to pro se party) (MP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JOSHUA HOWARD,
Plaintiff,
v.

Case No. 15-cv-0557-bhl

BELINDA SCHRUBBE,
TODD CALLISTER, AND
JOHN O’DONOVAN,
Defendants.
______________________________________________________________________________
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ RENEWED
MOTION FOR SUMMARY JUDGMENT (DKT. NO. 96)
______________________________________________________________________________
Plaintiff Joshua Howard is a Wisconsin state prisoner who, representing himself, filed
this lawsuit, alleging that three individual defendants at the Waupun Correctional Institution
(Waupun) violated his constitutional rights. The Court screened Howard’s second amended
complaint on June 10, 2016 and allowed him to proceed on claims that the defendants violated
his Eighth Amendment rights in connection with the dispensation of prescription medication.
(ECF No. 38 at 1.) This order addresses the defendants’ renewed summary judgment motion.
(ECF No. 96.) As explained below, the Court will grant the motion as to defendants John
O’Donovan and Todd Callister but deny the motion as to defendant Belinda Schrubbe.
PROCEDURAL BACKGROUND
In his second amended complaint, Howard claims that the defendants – a security
captain, psychiatrist, and the manager of Waupun’s Health Services Unit – violated his Eighth
Amendment rights in connection with their roles in dispensing prescription medications to him.
Howard has been prescribed several different medications to treat depression, anxiety, and
insomnia and claims he has experienced over eighty interruptions in the availability of his
medication. He has filed over fifty inmate complaints related to these interruptions over nearly a
ten-year period. (ECF No. 39 at 2-3.) Howard alleges that the “continuous and abrupt
unavailability of [his] medication has caused him many problems in addition to the migraine
headaches and severe nausea he experiences each time his medication is not tapered off.” (Id. at
1

3.) Howard generally complains that Waupun uses corrections staff, rather than professional
health staff, to dispense inmate medications, a system that he contends results in medication
errors and inconsistent medication refill procedures. (Id. at 1-2.)
With respect to the individual defendants, Howard alleges that John O’Donovan, a former
Waupun security captain, violated Howard’s rights by twice finding him guilty and punishing
him for conduct that was a direct result of Howard’s having been abruptly cut off from his
medication. (Id. at 5.) Howard alleges that Todd Callister, a Waupun psychiatrist, violated his
rights by failing to intercede when Howard complained about the interruptions in his medication.
(Id. at 3, 5.) Last, Howard alleges that Belinda Schrubbe, the manager of Waupun’s Health
Services Unit, failed to take remedial action to fix problems with the medication distribution
system, resulting in Howard not receiving his medication timely. (Id. at 4-5.) Howard also
claims Schrubbe violated his rights by maintaining a constitutionally infirm medicationdistribution system, leading to injuries, including migraine headaches, severe nausea, and
disruptions in sleeping patterns. (Id. at 3-5.)
On March 19, 2018, the Court denied defendants’ first motion for summary judgment.
(ECF No. 92.) In that motion, defendants argued that the statute of limitations barred Howard’s
claims against O’Donovan and Callister in their entirety, and barred consideration of claims
against Schrubbe based on instances of medication availability between 2004 and April 2009.
(ECF No. 56 at 9, 11 n.3.) They also argued that Howard’s claim against Schrubbe failed as a
matter of law to the extent that it occurred after April 2009. (Id. at 11-12.) In denying the
motion, the Court concluded that defendants had waived the statute of limitations defense. (ECF
No. 92 at 9.) The Court also explained that it could not fully evaluate claims against Schrubbe
based on pre-2009 events because defendants had not addressed the events that arose before that
time. (Id. at 10.) The Court ruled that either party could file a motion for summary judgment
addressing the substance of Howard’s claims. (Id.) On May 31, 2018, defendants renewed their
summary judgment motion. (ECF No. 96.)
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
2

(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).
BACKGROUND FACTS1
Howard is an inmate in the custody of the Wisconsin Department of Corrections
(WDOC) and was confined at Waupun at all times relevant to this case. (ECF No. 105 ¶1.)
Defendant Todd Callister is employed by the WDOC as a psychiatrist. (Id. ¶2.) Defendant John
O’Donovan previously worked as a security captain at Waupun. (Id. ¶3.) Defendant Belinda
Schrubbe was the manager of the Health Services Unit (HSU) at Waupun from December 9,
2001 to February 27, 2015. (Id. ¶4.)
A. Waupun’s Medication Delivery and HSU Policies
Like most WDOC institutions, Waupun uses correctional officers to deliver medications
to inmates as part of their normal job duties. (ECF No. 105 ¶19.) An orientation program
educates officers on how to deliver medications and officers also receive annual education on
this process. (Id.) Correctional officers deliver the controlled medications and document
compliance on a DOC-3026 “Medication Treatment Record.” (Id. ¶21.) As the HSU manager,

Howard argues that defendants’ failure to amend their objections to proposed findings of fact that were filed in
connection with their previous summary judgment motion should result in those facts being deemed conceded.
(ECF No. 102 at 1.) But that motion was previously resolved and is no longer before the court. Defendants’ failure
to amend responses related to that prior motion does not result in any admissions.
1

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Schrubbe did not oversee the officers who delivered the medications, nor did she have the
authority to change the WDOC’s medication delivery policies or practices. (Id. ¶20.)
The medication delivery system allowed inmates to have some self-administered
medication in their cells to take as needed. (Id. ¶22.) Other medications, including psychotropic
medications, like the Fluoxetine and Paroxetine prescribed for Howard, are officer-controlled
and come in a blister pack. (Id.) At Waupun, controlled medications (other than certain
narcotics) are taken from the sergeant’s cage and given to the correctional officers who place
them on a cart and deliver them to the inmates who are locked in their cells. (Id. ¶23.)
Corrections officers are supposed to document the distribution of medications. (Id. ¶21.)
If the inmate takes his medication, the staff member is to initial the appropriate box on the
Medication Treatment Record. (Id. ¶24.) Staff should also document on the form if the inmate
refuses the medication or was absent at the time of delivery, and if the medication was
unavailable at the time of delivery, was withheld per instructions from HSU, or was sent with the
inmate off-site (because of work or an off-site appointment.) (Id.) Howard claims that officers
do not always document whether the medication is unavailable, as his Medication Treatment
Record shows 2100 blank spaces when medication was not available. (Id.)
Each night, the third-shift sergeants review medication records and blister packs for those
inmates on controlled medications in the sergeants’ cell halls to determine if a refill is needed.
(Id. ¶28.) If there is less than a four-day supply, the sergeant writes the inmate name, number,
medication name, and medication dose on the DOC-3399 “Medication Distribution” log. (Id.)
The Medication Distribution log is then sent to the HSU medication room and processed that day
or the next day, depending on business hours of operation. (Id.) If the HSU medication room
has the medication in stock, the medication is sent out that day. (Id. ¶30.) If not, the refill order
is sent to the Bureau of Health Services’ Central Pharmacy for production. (Id.)
When inmates enter Waupun, they are given an inmate handbook informing them of the
institution’s rules, policies and procedures. (Id. ¶31.) The handbook directs inmates to keep
track of their controlled and non-controlled medication, including how much they have available.
(Id.) The handbook directs inmates to obtain medication refills as follows:
1. Complete a medication refill request (DOC-3035C) and place it in the HSU box
5 days prior to being out of the medication, controlled and non-controlled.

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2. If you don’t receive your medication 2 days prior to running out, write to the
HSU manager using a Health Services Request (DOC-3035). Fold the Health
Services Request and put on the outside, “For HSU Manager Only – MED”
Place in HSU box.
3. The day prior to running out, if you still haven’t received your medication, ask
the Sergeant in your cell hall to call the HSU Manager.
HSU responds to every written medication request in writing. If you have received
a response back informing you that your medication was sent, ask the Sergeant for
it if it is non-controlled. If the medication is controlled, it has been placed in the
mediation cart in back-up. If you do not receive a response back, HSU did not
receive your request.
(Id.)
Howard insists he was not given a handbook upon arriving at Waupun in 2002. (Id.) He
also claims that the excerpts cited by defendants were first published in a 2010 revision of the
handbook that was published and distributed at some point after 2011. (Id.)
B. Howard’s Repeated Complaints Over His Medication
During the relevant period of his incarceration, Howard was prescribed several
medications, including medications for anxiety and depression. (ECF No. 105 ¶14.) The record
shows that over a ten-year period, Howard complained repeatedly about outages of his
medications. Between January 2005 and February 2015, Howard filed 38 formal complaints
about the distribution of his medications. (Id. ¶39.) These complaints were filed under
institution procedures that allow inmates to file grievances/offender complaints through an
Inmate Complaint Review System. (Id. ¶35.) Howard’s complaints and the institution’s
responses to those complaints are described below.
1. Howard’s Initial Complaints (2005-2008)
Howard filed his first complaint related to a medication outage on January 10, 2005.
(ECF No. 105 ¶41.) The complaint concerned an alleged medication outage from January 2 to
January 6, 2005, but also referred to prior outages. (Id.) In response, a complaint examiner
contacted Schrubbe, who reviewed Howard’s medical records and concluded that he should not
have run out of the medication. (Id. ¶42.)
Nearly a year and a half later, on June 16, 2006, Howard filed another complaint, this
time concerning an outage of Bupropion/Wellbutrin. (Id. ¶44.) Two months later, on August
31, 2006, Howard filed a third complaint, this timing alleging a four-day outage of his “night

5

meds.” (Id. ¶47.) In response to both complaints, Schrubbe was contacted and responded by
reviewing Howard’s medical records and making findings about the validity or invalidity of his
complaints. (Id. ¶¶ 45, 48.) With respect to his June 16 complaint, she noted that Howard’s
psychiatrist, Dr. Froelich, had discontinued the medication on May 31, 2006, after Dr. Froelich
told Howard there was nothing he could do to assure that (1) the staff submits refill slips on time
and (2) HSU fills them in a timely manner. (Id. ¶46.) And she concluded it was not possible for
Howard to be out of Benadryl on the days he alleged in his August 31, 2006 complaint,
attributing any outage to officer error, not the lack of a refill. (Id. ¶48.)
The number of Howard’s complaints picked up in 2007; he filed four complaints that
year. He filed complaints on March 12, 2007 and April 23, 2007, concerning medication outages
from February 20 to February 25 and April 14 to April 16, 2007, respectively. (Id. ¶¶49, 51.)
Howard filed two more complaints in November and December of 2007. Schrubbe responded
to all four complaints, investigating them and making findings. (Id. ¶¶50, 54, 56, 58.). With
respect to the alleged February 2007 outage, Schrubbe found that, according to the HSU records,
the plaintiff should never have been without medication. (Id. ¶50.) Schrubbe concluded that the
prison’s refill procedure was not followed in April 2007, leaving Howard to go without his
Diphenhydramine for two days in April 2007. (Id. ¶54.) Howard’s November 2007 complaint
was affirmed after Schrubbe determined that Howard went one day without his sleep medication,
but noted that the outage did not place Howard at risk of serious injury or death. (Id. ¶56.)
Schrubbe again confirmed that Howard did not receive his medication on the dates reported in
his December 2007 complaint. (Id. ¶58.)
During 2008, Howard complaints increased – he filed ten complaints about his
medication in that year alone. Howard filed complaints on January 3, 2008 (medication outage
from December 25 to December 29, 2007); January 28, 2008 (medication outage on January 14,
2008); January 28, 2008 (outage of Paroxetine from January 21 to January 24, 2008); March 31,
2008 (outage of Paroxetine from March 22 to March 24, 2008); April 30, 2008 (outage of
Diphenhydramine on April 27, 2008); June 10, 2008 (outage of Diphenhydramine from May 27
to June 4, 2008); June 30, 2008 (outage of Diphenhydramine from June 16 to June 25, 2008);
July 25, 2008 (outage of Diphenhydramine from July 15 to July 23, 2008); October 13, 2008
(medication outage on September 30, 2008); October 27, 2008 (outage of Paroxetine from
October 22 to October 23, 2008) (Id. ¶¶59, 61, 64; 66, 68, 70, 72, 76, 80, & 82.) Other than the
6

October 13 complaint, which the examiner rejected as too vague, all the complaints were
promptly investigated by Schrubbe. (Id. ¶¶60, 62, 65, 67, 69, 71, 75, 77, & 83.) She concluded
that Howard was in fact likely out of medication from December 25-29, 2007, as alleged in the
January 3, 2008 complaint, an outage Howard insists resulted from officer-error. (Id. ¶60.)
Schrubbe concluded that the medication log did not show lapses as alleged in January, although
Howard insists the log shows otherwise. (Id. ¶¶62 & 65.) Her investigations of other complaints
show potential documentation errors and instances in which officers indicated Howard was “out”
of medication. (Id. ¶¶67, 69, 71, 72, 75, 77 & 83.) She also concluded on more than one
occasion that the HSU had sent medication out for Howard when notified that he was out. (Id.
¶¶71, 75, 83.)
2. Schrubbe’s Efforts to Address Howard’s Ongoing Complaints (2009-2010)
Howard filed two more medication-outage complaints in January and February 2009.
(ECF No. 105 ¶¶84 & 86.) In response to the January complaint, the examiner’s report shows
Schrubbe was considering ways to address Howard’s ongoing complaints:
Approximately 18 of Howard’s ICRS submissions at WCI allege medication was
not delivered timely, that the supply had run out, a combination of the two
scenarios. Inmate Howard has repeatedly been instructed to contact HSU at once
when he is out of medication, it appears he does not do this despite his claims to
the contrary. There is no verifiable communication from Howard to HSU that he
cannot sleep and has stomachaches or headaches.
Considering the frequency of this type of complaint from inmate Howard, it appears
that the way medication is delivered to him should be revised as his submissions of
this nature far exceed the norm. With that, and noting that he hadn’t contacted HSU
regarding his self-reported side affects [sic] from the medication shortage,
recommendation is made to affirm the complaint with modification regarding the
medication delivery system to inmate Howard. The medical and security variable
encompassing this issue are beyond the purview of the ICRS. As such, a copy of the
complaint will be sent to HSM Schrubbe and Security Director Strahota for followup on the medication delivery issue referenced above.
(ECF No. 69-1 at 153 (Ex. 2009A-03)).
Howard’s complaints stopped for a few months, but in or around June 2009, Schrubbe
spoke with Waupun’s security director and deputy warden regarding Howard’s complaints of
security staff not requesting timely refills. (ECF No. 105 ¶89.) They assured her they would
address the issue with the cell hall sergeants. (Id.)

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On July 1, 2009, Howard filed another complaint, alleging he was without Paroxetine
from June 22 to June 24, 2009. (Id. ¶90.) The investigator again contacted Schrubbe regarding
the plaintiff’s complaint, (Id. ¶91), and reported:
HSM Schrubbe has reviewed the matter and states, “According to patient’s
medication record, the Paroxetine was not available on the 24th. HSU did receive
request from patient on 6-25-09 and HSU sent the medication out. Patient was seen
by psychiatrist on 7-9-09 and patient did not mention any concerns about missing
medication and withdrawal symptoms. HSM has brought the issue of security not
requesting refills timely to the attention of Security Director and Deputy Warden
as of a week ago. This issue is being addressed with cell hall sergeants.”
From an ICRS standpoint, nothing can be recommended as a remedy to this matter
over and above what actions have already been taken according to the statement
from HSM Schrubbe. I will opine, however, that this is a consistent problem with
inmate Howard’s medications, and prior ICRS actions have suggested that,
considering that inmate Howard’s chronic problems with medication refills and
delivery, a more specific tracking system should be developed for all aspects of
Howard’s medication needs. A copy of the complaint will be sent to HSM Schrubbe,
Deputy Warden Meisner and to Security Director Strahota for follow-up actions
deemed necessary.
(ECF No. 69-1 at 169, Ex. 2009C-04.) Howard filed no further complaints in 2009.
Howard resumed his complaints in the Spring of 2010. On April 26, 2010, Howard filed
a complaint, contending he was out of Diphenhydramine from April 20 to April 22, 2010
resulting in insomnia, stomachaches, and headaches.2 (ECF No. 105 ¶92.) Howard re-filed this
complaint on May 13, 2010. (Id.) Schrubbe investigated and concluded Howard had missed one
dose of Diphenhydramine on April 22, 2010 and the medication was refilled on April 23, 2010
after the plaintiff sent a refill request to HSU. (Id. ¶93.) She noted that Howard had not written
to the HSU regarding the outage until April 28, 2010 and that HSU responded the next day, on
April 29, 2010. (Id. ¶94.) She also concluded he had not reported experiencing any symptoms
due to the unavailability of his medication. (Id.) Howard did not file any other complaints in
2010.

2
Under Waupun’s Inmate Complaint Review System, a complaint examiner may “return” a complaint to
an inmate and direct the inmate to attempt to resolve the issue before accepting the submission for filing. (ECF No.
105 ¶36.) Starting in 2010, the complaint examiner frequently returned Howard’s complaints to him, with
instructions to try to work out his medication issues directly with corrections staff or Schrubbe. Most if not all of
these efforts failed, and Howard simply refiled his complaints.

8

3. Howard’s Complaints Continue (2011-2014)
Howard’s complaints resumed in 2011. On January 4, 2011, he filed a complaint that he
was out of Paroxetine from December 17 to December 20, 2010. (ECF No. 105 ¶96.) The
examiner contacted Schrubbe, who reviewed Howard’s medical file and found it was possible
that he might have been out of medication. (Id.) But she noted that HSU only sends out
medication when requested and neither Howard nor the cell hall sergeant requested the
medication. (Id.) She further observed that Howard did not report the outage to HSU until
December 28, 2010. (Id. ¶97.) She advised Howard to request a refill from HSU when he
noticed his card getting low. (Id.) Howard filed two more complaints about medication outages
in April and October 2011. (Id. ¶¶98 & 101.) In both instances, the examiner returned the
complaints to him, only to have Howard refile the complaints. (Id.) Schrubbe investigated both
sets of complaints, each time noting that Howard had not requested help from HSU for his
alleged symptoms. (Id. ¶¶99 & 102.)3
Between January and October 2012, Howard made five more medication-related
complaints. (Id. ¶¶103, 105, 107, 109, & 111.) In each case, Schrubbe was contacted by the
examiner and made findings concerning the alleged outages. (Id. ¶¶104, 106, 108, 110, & 11213.) For three of the complaints, Schrubbe noted that Howard had not contacted the HSU to
report any of the symptoms he alleged in his complaint and that he waited until running out of
medication before complaining. (Id. ¶¶104, 106, & 110.) For one of these three, Schrubbe
found that the medication was likely available, but that maybe the officer could not find it on the
cart. (Id. ¶106.)
This pattern continued through 2014. Howard filed and/or refiled medication outage
complaints on April 23, 2013, alleging his sleeping medication was not available on the unit on
April 18, 2013. (Id. ¶114.) The examiner contacted Schrubbe, who investigated and found that
Howard’s medication log showed his medications had in fact been distributed. (Id. ¶115.)
Howard filed another complaint on May 14, 2013, which was returned to him and then refiled on
May 31, 2013. (Id. ¶116.) This complaint concerned an outage of Diphenydramine from May 912, 2013, an outage that Schrubbe investigated and found that HSU had sent the medication to

3

The plaintiff disputes that Schrubbe could not confirm whether the plaintiff was given his April 6, 2011 dose of
Diphenhydramine by looking at his medication record because he states that the med log clearly shows that he was
not given his Diphenhydramine medication on April 5 and 6. (Id. ¶99.)

9

the cell hall on May 3, but the medication was returned to HSU on May 11 for some unknown
reason. (Id. ¶117.) HSU sent the medication back to the cell hall on May 12. (Id.)
Due to Howard’s continued complaints regarding lapses in his medications, sometime
between June and August 2013, Schrubbe verbally informed the nursing staff that they should
automatically issue a thirty-day supply of Howard’s officer-controlled medications on the
seventh of every month. (Id. ¶118.) Schrubbe placed a paper calendar in the medication room at
Waupun with Howard’s name on the seventh of every month. (Id.)4 Schrubbe also wrote a note
directly on Howard’s Medication Profile sometime around March 2014 so that any new nursing
staff filling in for regular staff were aware of the directive. (Id. ¶119.)
Amid these latest efforts by Schrubbe, on June 17, 2013, Howard filed another complaint,
which was returned to him and then refiled on July 2, 2013. (Id. ¶120.) In August 2013, the
Bureau of Health Services’ Nursing Coordinator Alsum contacted Schrubbe regarding Howard’s
complaint that his Fluoxetine was unavailable on June 11, 2013. (Id. ¶121.) Schrubbe found
that the medication was sent to the cell hall on June 12, 2013 and, according to the medication
sheet, he received it. (Id.) Schrubbe noted that missing one dose does not present any danger or
health risk to the patient. (Id.)
Howard filed and refiled additional complaints about medication outages from October
2013 through July of 2014. (Id. ¶¶122, 126, 129, 131, & 134.) In each instance, a complaint
examiner contacted Schrubbe and she investigated the outage. (Id. ¶¶123-24, 127, 130, 132, &
136.) Schrubbe’s findings confirm that Howard continually waited until his medication ran out,
only to then later file a complaint about the outage. (Id. ¶¶124, 128, 130, 133, & 136.) On two
or three occasions, the medication had been on the unit, but corrections officers had apparently
been unable to locate the medication. (Id. ¶¶124, 133, & 136.).
C. The Roles of O’Donovan and Callister in Howard’s Medication Complaints
Howard’s complaint against Callister relates in part to the medication Bupropion.
Howard discontinued taking the medication Bupropion in May 2006 after a conversation with his
psychiatrist at the time, Dr. Froelich. (ECF No. 105 ¶15.) Howard’s first appointment with
Callister was on October 19, 2006, five months after he stopped taking Bupropion. (Id.) At that

4

Howard disputes that Schrubbe gave this order and he states that, even if she did, the records show her staff did not
carry out the order. (Id.) According to Howard, his medication profile shows that medications were not issued on
the seventh of the month, or any other particular date, before or after the summer of 2013. (Id.)

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appointment, Howard claims he expressed a desire to go back on Bupropion if Callister could do
something about the regular unavailability of the medication. (Id.) Callister declined to
prescribe the medication. Id.
Howard met with Callister again about five and a half years later, on March 7, 2012. (Id.
¶17.) According to Howard, a complaint examiner had confirmed on February 24, 2007 that
Schrubbe would review Howard’s night medications with Callister due to chronic outages. (Id.)
When Howard met with Callister on March 7, 2012, he explained that Paroxetine had been
effective but that he worried about it running out again. (Id.) Howard complains that instead of
taking action or developing a plan with Schrubbe, Callister suggested Fluoxetine as an
alternative because the withdrawals would be less severe when Howard inevitably experienced
outages with the new medication. (Id.) On March 7, 2012, Callister prescribed a trial of
Fluoxetine on March 7, 2012 as an alternative to Paroxetine. (Id.)
Howard’s complaints against O’Donovan relate to two hearings on adverse conduct
reports issued to Howard, one on December 20, 2007 and the other on January 17, 2008. The
first conduct report alleged that Howard failed to report for his two-hour legal library court
deadline pass. (Id. ¶7.) The officer went to Howard’s cell and directed him to honor the pass,
but Howard refused. (Id.) Howard was not on sick cell, another pass, or a visit at the time he
refused his legal library pass. (Id.) Institution policies and procedures require inmates to go on
every pass they receive unless they are on sick cell, another pass, or a visit. (Id. ¶8.) Failure to
honor a received pass may result in disciplinary action. (Id.) At the disciplinary hearing,
O’Donovan found Howard guilty of Disobeying Orders and Violations of Institution Policies and
Procedures. (Id.) He imposed a disposition of twenty days loss of recreation. (Id.) In Howard’s
appeal, he reiterated that he had not slept in two days because his medication ran out. (Id.) On
appeal, O’Donovan’s decision was affirmed and the sentence was modified to a reprimand. (Id.
¶9.)
The second conduct report alleged that on December 30, 2007, Howard had refused to
stand for count after hearing the count announcement. (Id. ¶11.) When the officer told him it
was count time, Howard replied that he was on “sick cell” and the officer said that “even on sick
cell you have to stand for count.” (Id.) Institution policies and procedures require inmates to
stand in clear view at the bars of their cell with their cell light after the count announcement. (Id.
¶12.) At the disciplinary hearing, O’Donovan found Howard guilty of Disobeying Orders and
11

Violations of Institution Policies and Procedures, and not guilty of Lying. (Id. ¶13.) Howard
received a disposition of sixty days disciplinary separation. (Id.) On appeal, the warden
affirmed O’Donovan’s guilty disposition on the Disobeying Orders charge but removed the
guilty finding for Violations of Institution Policies and Procedures charge. (Id.)
ANALYSIS
“The Eighth Amendment’s proscription against ‘unnecessary and wanton infliction of
pain’ is violated when prison officials demonstrate ‘deliberate indifference to serious medical
needs’ of prisoners – whether the indifference ‘is manifested by prison doctors in response to
prison needs or by prison guards in intentionally denying or delaying access to medical care.’”
Lewis v. McLean, 864 F.3d 556, 562 (7th Cir. 2017) (quoting Estelle v. Gamble, 429 U.S. 97,
104 (1976)). A deliberate indifference claim contains both an objective and a subjective
component. “[A] prisoner must first establish that his medical condition is ‘objectively,
sufficiently serious,’ and second, that prison officials acted with a ‘sufficiently culpable state of
mind’ – i.e., that they both knew of and disregarded an excessive risk to inmate health.” Id. at
562-63 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
Objectively serious medical needs are those that have either been diagnosed by a
physician and demand treatment or are “so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.” Cesal v. Moats, 851 F.3d 714, 721 (7th Cir. 2017)
(quoting King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012)). “To determine if a prison
official acted with deliberate indifference, [courts] look into his or her subjective state of mind.”
Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) (citing Vance v. Peters, 97 F.3d 987, 992
(7th Cir. 1996)). “[S]howing negligence is not enough.” Id. (citing Estelle, 429 U.S. at 106).
“Even objective recklessness – failing to act in the face of an unjustifiably high risk that is so
obvious that it should be known – is insufficient to make out a claim.” Id. (citing Farmer, 511
U.S. at 836-38). “[A] plaintiff must provide evidence that an official actually knew of and
disregarded a substantial risk of harm.” Id. (citing Farmer, 511 U.S. at 837).
A. Defendant O’Donovan
The defendants contend that Howard’s claim against O’Donovan fails because there is
“no constitutional requirement to absolve an inmate of his misbehavior just because the inmate
claims there was a factor mitigating the behavior.” (ECF No. 97 at 10.) Howard insists that his
claim against O’Donovan is “a common-sense” instance of deliberate indifference to a serious
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medical need. (ECF No. 102 at 8.) Howard asserts that a reasonable jury could find that
O’Donovan violated the Eighth Amendment when he punished the plaintiff for conduct that
resulted directly from HSU-correctional staff’s failure to provide a timely refill of his sleeping
medication. (ECF No. 100 at 8.)
Contrary to Howard’s assertions, a reasonable jury could not conclude that O’Donovan
acted with deliberate indifference to his serious medical need. Howard faults O’Donovan for
finding him guilty on two conduct reports occurring after instances in which Howard had not
received his medication before the incidents. To support this claim, he cites Coleman v. Wilson,
912 F. Supp. 1282, 1320 (E.D. Cal. 1995) (“[B]eing treated with punitive measures by the
custody staff to control the inmates’ behavior without regard to the cause of the behavior . . .
violated [a] seriously mentally ill prisoner’s Eighth Amendment rights.”). (ECF No. 100 at 8.)
Coleman is not binding on this Court, but even if it was, its holding does not help Howard here.
The record does not support a finding that O’Donovan was trying to control Howard’s behavior;
he was simply the hearing officer for hearings on other officers’ conduct reports. And
O’Donovan’s actions do not rise to an Eighth Amendment violation because he did not have
anything to do with Howard’s medical needs. See Estelle, 429 U.S. at 104-05 (The Eighth
Amendment prohibits deliberate indifference “whether the indifference is manifested by prison
doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or
delaying access to medical care or intentionally interfering with the treatment once prescribed.”).
The Court will therefore grant the defendants’ motion for summary judgment as to Howard’s
claim against O’Donovan.
B. Defendant Callister
Defendants contend that Howard’s claim against Callister fails both because Howard did
not exhaust his administrative remedies and because no jury could find in his favor on the merits.
(ECF No. 97 at 11.) The Court will address the defendants’ exhaustion argument first.
Defendants argue that Howard did not exhaust his claim against Callister because
Howard did not file an offender complaint about Callister’s alleged failure to intercede regarding
interruptions of his medication. (Id. at 10.) Under the Prison Litigation Reform Act, “[n]o
action shall be brought with respect to prison conditions ... until such administrative remedies as
are available are exhausted.” 42 U.S.C. §1997e(a). The exhaustion requirement is mandatory
and “applies to all inmate suits.” Woodford v. Ngo, 548 U.S. 81 (2006); Porter v. Nussle, 534
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U.S. 516, 524 (2002). The exhaustion requirement’s primary purpose is to “alert[ ] the state” to
the problem “and invit[e] corrective action.” Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir.
2004).
Section 1997e(a) requires “proper exhaustion,” Woodford, 548 U.S. at 93; Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which means that the prisoner must follow
prison rules when filing the initial grievance and all necessary appeals, “in the place, and at the
time, the prison’s administrative rules require.” Burrell v. Powers, 431 F.3d 282, 284-85 (7th
Cir. 2005). “[A] prisoner who does not properly take each step within the administrative process
has failed to exhaust state remedies.” Pozo, 286 F.3d at 1024. Because exhaustion is an
affirmative defense, defendants bear the burden of establishing that the plaintiff failed to exhaust
his available remedies. Jones v. Bock, 549 U.S. 199, 216 (2007).
Howard filed multiple offender complaints regarding his missed medications. He faults
Callister for not addressing the regular unavailability of his medication. Defendants’ argument
that Howard failed to exhaust his claim against Callister runs counter to cases stating that a
prisoner need not name any particular defendant in a grievance to properly exhaust his claim,
Jones v. Bock, 549 U. S. 199, 219 (2007), and that a prisoner need not mention each specific
instance in a chain of misconduct by prison officials, Turley v. Rednour, 729 F.3d 645, 650 (7th
Cir. 2013). Thus, the Court concludes that Howard has exhausted as to his claim against
Callister.
Turning to the merits, defendants contend that Callister was not responsible for the
discontinuance of Howard’s Bupropion and, as such, his claim against Callister fails due to lack
of personal involvement. (ECF No. 97 at 11.) They also contend that Howard has not identified
any action or inaction by Callister that would constitute a constitutional violation. (Id.) In
response, Howard acknowledges he discontinued his Bupropion medication before Callister
started at Waupun, but he contends that Callister became personally responsible when Howard
notified him of the problem, and he failed to act. (ECF No. 102 at 2-3.) According to Howard,
Callister’s “inaction continued from that day in 2006 and continued throughout his tenure at WCI
which resulted in not only hundreds of instances of withdrawal of all of the medications he
prescribed the plaintiff, but also years of going without two effective medications, Bupropion
and Paroxetine.” (Id. at 3.)

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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. Ill. Dep’t of Nat. Res., 347 F.3d 1014, 1039 (7th Cir. 2003). Howard cannot
maintain a claim against Callister based on the discontinuation of his Bupropion because the
medication was discontinued before Howard’s first meeting with Callister.
Howard faults defendant Callister for his inaction regarding the regular unavailability of
Bupropion medication, a medication that Howard had stopped taking about five months before
his first meeting with Callister. Howard’s supplemental brief sets forth his claim against
Callister and it cites to his previously filed proposed findings of fact. (ECF No. 100 at 9-11.)
Howard describes Callister’s personal involvement as follows:
Defendant Callister was personally informed of the problem on his first meeting
with the plaintiff and he failed to act throughout his tenure at WCI which lasted
until 2016. When the plaintiff agreed to start taking Bupropion in 2008, the
defendant was aware that the plaintiff was going to face the same painful episodes
which caused him to stop taking the medication in the first place. In the following
years the defendant was notified by the plaintiff that nothing had improved, he
had been directly brought into the ICRS remedy process and his email with
Schrubbe demonstrates that he was aware of the chronic unavailability of
medication he prescribed to his patients. (PPFF 57) In March of 2012, the plaintiff
told Defendant Callister that while Paroxetine was helping him he decided not to
take it anymore because he had just went through a particularly awful withdrawal
and did not want to keep going through them. (PPFF 46) The defendant was
aware that until his departure from the DOC that the plaintiff had continued to
abstain from taking this medication that had been effective in treating his
symptoms. (P-Ex. Y at 23-28) While the defendant’s failure to act resulted in the
plaintiff foregoing two medications from 2006 to 2008 and 2012 to 2018, it also
resulted in the plaintiff suffering hundreds of episodes of withdrawal from 2006 to
2017. During that entire (11) year period Defendant Callister was aware of the
continuous outages and he made no attempt at resolving the problem, even when
the plaintiff directly asked him for help.
(ECF No. 11 at 10-11.)
A reasonable factfinder could not conclude that Callister acted with deliberate
indifference to Howard’s medical needs. Howard has not established that Callister had any
personal involvement regarding the medication interruptions. While Howard allegedly told
Callister that he missed some medication doses, there is no indication that Callister took any
actions or had anything to do with the unavailability of Howard’s medication. Howard’s broad
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contention that Callister’s inaction resulted in him suffering hundreds of episodes of withdrawal
from 2006 to 2017 is not supported by the record, nor is Howard’s statement that Callister was
aware of the outages for eleven years. Because the record, including the exhibits referenced in
Howard’s supplemental brief, does not support a finding that Callister acted with deliberate
indifference, the court will grant defendants’ motion for summary judgment as to Callister.
C. Defendant Schrubbe
The defendants contend that Howard’s claim against Schrubbe fails because he did not
suffer a cognizable harm due to Schrubbe’s actions or inactions. (ECF No. 97 at 12.) The
defendants assert that Schrubbe, in her role as HSU manager, did not oversee the officers or have
the authority to change WDOC policy on medication delivery; Schrubbe repeatedly told Howard
to monitor the quantities of his medications and submit refill requests before the medications ran
out; and Howard failed to do so in any of the thirty-eight time periods that medication may have
been unavailable to him. (Id. at 13.) Defendants also contend that Howard cannot meet either
the objective or subjective element of an Eighth Amendment claim. (Id. at 14-17.) Lastly, they
contend they are entitled to qualified immunity. (Id. at 18.)
In response, Howard contends defendants’ “refill defense is a transparent attempt to
distract from the failure to solve the actual problem caused by the distribution of medication by
untrained correctional staff while placing the blame on the plaintiff.” (ECF No. 102 at 5.)
Howard contends that the “physical, mental and emotional impact resulting from being abruptly
cut off of psychiatric medication is common sense and a medical diagnosis is unnecessary.” (Id.)
He also contends that Schrubbe “concedes her own indifference” because she: (1) “admits that
she took no action until over (4) years after the plaintiff’s first complaint in 2005[;]” (2) her June
2009 conversation with the security director only occurred after complaint WCI-2009-14719
even though the ICE [institution complaint examiner] had sent Schrubbe and the security director
copies of five affirmed complaints for review of the medication outages in 2006, 2007, 2008, and
earlier in 2009; and (3) “[i]n addition to her apparently ignoring five previous opportunities to
address the issue with the Security Director, the fact that in 2009 her conversation concerned
staff’s refill requests also demonstrates a willful ignorance considering that between 2004-08 the
records would have shown 570 of the 630 missed doses occurred while medication was on the
unit.” (Id. at 6.)

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Howard filed thirty-eight inmate complaints between 2005 and 2015 alleging that he did
not receive doctor-prescribed medication for his depression, anxiety, and insomnia. Most of
these complaints described withdrawal symptoms such as severe nausea, headaches, inability to
sleep for twenty-four hours or more, lightheadedness, pain, anxiety attacks, suicidal tendencies,
throwing up, depression, and stomachaches. Whether Howard’s medical need was the
underlying condition for which he was prescribed the medication, or the withdrawal symptoms
from not receiving the medication a doctor determined he should have, a reasonable fact-finder
could conclude that Howard had a serious medical need during the relevant time period. See
Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005) (“A serious medical condition is one that has
been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay
person would perceive the need for a doctor’s attention.”); Sanville v. McCaughtry, 266 F.3d
724, 734 (7th Cir. 2001) (“[T]he need for a mental illness to be treated could certainly be
considered a serious medical need.”); see also Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir.
1996); Wellman v. Faulkner, 715 F.2d 269 (7th Cir. 1983).
To survive summary judgment on his claim that Schrubbe acted with deliberate
indifference, Howard must supply evidence suggesting that she knew or recklessly ignored that
officers often violated the medication distribution policy to his detriment. See Robbins v.
Pollard, 734 F. App’x 366, 368 (7th Cir. 2018) (citing Farmer v. Brennan, 511 U.S. 825, 837
(1994)); Rosario v. Brown, 670 F.3d 816, 821 (7th Cir. 2012); see also Flynn v. Doyle, 630 F.
Supp. 2d 987, 992 (E.D. Wis. 2009) (granting plaintiffs’ motion for preliminary injunction on
requiring changes to prison medication distribution system based on finding that system of filling
medication order posed substantial risk of serious harm to class members and defendant knew of
risk but failed to take reasonable steps to abate it).
Howard has marshalled sufficient evidence that a jury could find that Schrubbe knew or
should have known about Howard’s repeated failure to receive his medication. For example,
Howard filed thirty-eight offender complaints regarding his missed medications that were sent to
Schrubbe for investigation. Howard was also directed repeatedly to seek help from Schrubbe
before several of his offender complaints were accepted. Thus, the record supports a finding that
Schrubbe knew about the problem.
The record would also permit a jury to find that Schrubbe failed to take reasonable steps
that were within her power to address the problem. In 2009, Schrubbe spoke with Waupun’s
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security director and deputy warden about the numerous complaints Howard had filed between
2004 and 2009 regarding the unavailability of his medication and security staff not requesting
timely refills. That same year, an ICE Report was issued recommending that “a more specific
tracking system should be developed for all aspects of Howard’s medication needs” and that “a
copy of the complaint will be sent to HSM Schrubbe and Security Director Strahota for followup on the medication delivery issue referenced above.” (ECF No. 69-1 at 153 (Ex. 2009A-03)).
Also, the parties dispute whether Schrubbe acted in 2013 to address the medication delivery
issues. According to Schrubbe, she told nursing staff to automatically issue a thirty-day supply
of Howard’s medical on the seventh of every month. Howard states that Schrubbe did not give
this order and that, even if she did, her staff failed to carry it out. The record thus supports a
possible finding that Schrubbe could have done more to address the problem.
According to defendants, when Schrubbe worked at Waupun, there was no system in
place for HSU to track whether the officers requested timely refills of the officer-controlled
medications. (ECF No. 105 ¶140.) Defendants also state that HSU is not aware of a lapse in
medications unless an inmate or security staff brings it to HSU staff’s attention. (Id.) According
to Howard, while he agrees that a better system could have been put in place during Schrubbe’s
fifteen years as health services manager, the med logs (DOC-3026) and medication profiles
(DOC-3034) can be used to track whether timely refills are being sent. (Id.) Howard states that
the profile tells the reader what the daily dosage is, how many doses the last refill contained, and
when it was sent to the unit. (Id.) On this record, a reasonable factfinder could conclude that
Schrubbe knew that the policy that officers dispense medication to inmates placed Howard at a
substantial risk of harm and that she did not take remedial action to address the problem. While
she may not have had authority to change the entire policy, the record supports a possible finding
that she could have done more.
Lastly, the defendants have argued that they are entitled to qualified immunity. Qualified
immunity “protects government officials from suit for damages when their conduct does not
violate clearly established statutory or constitutional rights.” Pearson v. Callahan, 555 U.S. 223,
231 (2009). Determining whether a state official is entitled to qualified immunity involves two
inquiries: “(1) whether the facts, taken in the light most favorable to the plaintiff, make out a
violation of a constitutional right, and (2) whether that constitutional right was clearly
established at the time of the alleged violation.” Williams v. City of Chi., 733 F.3d 749, 758 (7th
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Cir. 2013). If either inquiry can be answered in the negative, the official is entitled to summary
judgment.
Courts may address the two prongs of qualified immunity in either order. Pearson, 555
U.S. at 236. A right is clearly established if a “reasonable official would have understood what
he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal
quotations and brackets omitted). Qualified immunity is not a defense available to officials sued
in their official capacity. See Kerr v. Puckett, 967 F. Supp. 354, 362 (E.D. Wis. 1997) (citing
Flynn v. Sandahl, 58 F.3d 283, 289 (7th Cir. 1995)). Thus, qualified immunity does not protect
Schrubbe to the extent he sues her in her official capacity for declaratory relief.
Regarding Howard’s individual capacity claim against Schrubbe, it is clearly established
that inmates have an Eighth Amendment right to be free from cruel and unusual punishment and
that officials violate that right if they are deliberately indifferent to inmates’ serious medical
needs. A reasonable prison official would have known that years of interruptions in prescribed
medication, such as Howard experienced, would violate that right. See Wellman v. Faulker, 715
F.2d 269, 272 (7th Cir. 1983).
CONCLUSION
In sum, the court will grant the defendants’ motion for summary judgment as to
O’Donovan and Callister. The court will deny summary judgment as to Schrubbe.
ORDER
THEREFORE, IT IS ORDERED that the defendants’ renewed motion for summary
judgment (ECF No. 96) is GRANTED IN PART AND DENIED IN PART as described
herein.
IT IS FURTHER ORDERED that defendants O’Donovan and Callister are
DISMISSED.
IT IS FURTHER ORDERED that the Court will hold a telephone status conference on
February 18, 2021 to discuss next steps.
Dated at Milwaukee, Wisconsin this 4th day of February, 2021.
BY THE COURT:
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge
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