Rowe v. Walker et al

Filing 80

ORDER granting 45 Motion for Summary Judgment. (cc: all counsel and via US Mail to Joshua Rowe) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JOSHUA W. ROWE,
Plaintiff,
v.

Case No. 15-C-1006

JODY DEROSA, et al.,
Defendants.

DECISION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

Plaintiff Joshua Rowe, proceeding pro se, filed this action under 42 U.S.C. § 1983, alleging
that his civil rights were violated. He claims that the defendants violated his constitutional rights
through deliberate indifference to his medical and mental health needs. Originally assigned to Judge
Clevert, the case was reassigned to me on March 15, 2017. Currently before the court is defendants’
motion for summary judgment.

The motion is fully briefed and ripe for disposition. For the

following reasons, the defendants’ motion will be granted and the case will be dismissed.
I. BACKGROUND
Rowe’s claims arise out of the relatively brief period of time during which he was housed at
Dodge Correctional Institution between July 25, 2014, when he arrived, and October 4, 2014, when
he was transferred to Waupun Correctional Institution. DCI is the central reception center for all
adult male inmates sentenced to prison in Wisconsin. Dodge Correctional Institution, Wisconsin
Department of Corrections, https://doc.wi.gov/Pages/OffenderInformation/AdultInstitutions/

DodgeCorrectionalInstitution.aspx (last visited Jan. 19, 2018). Upon arrival at DCI, inmates
undergo a comprehensive assessment and evaluation with the goal of determining program needs,
custody level and institution placement. Id. It was during this evaluaton and assessment process that
Rowe claims his constitutional rights were violated.
In essence, Rowe claims that the defendants were deliberately indifferent to his serious mental
health needs. He claims that the prescriptions for the medications he was taking for his post
traumatic stress disorder, Trazadone and Prazosin, were allowed to run out, and on August 28,
2014, he did not receive his medication. The failure to provide him his medication, he contends, led
to his being involved in an altercation with another inmate on August 30, 2014. He was then placed
in segregation without a proper investigation of the psychological causes of the incident, and while
in segregation, denied proper mental health treatment. Lastly, he alleged that he received a
maximum security placement because of this fight, which also violated his constitutional rights. Id.
The facts established by the undisputed evidence relating to each allegation and each of the
defendants will be set forth in detail.
A. The Events of August 28, 2014 and the Subsequent Days
On Thursday, August 28, 2014, Defendant Carolyn Lewis, a DCI correctional officer, was
handing out medication during the evening medication pass in Rowe’s unit. Defendants’ Proposed
Findings of Fact (“DPFOF”), ECF No. 65 at ¶¶ 2, 20. The evening medication pass usually occurs
between 8 and 9 pm. Id. at ¶ 20. While Lewis was handing out medication, Rowe approached and
asked for his evening dose of Trazadone and Prazosin. Id. at ¶¶ 21–22. He was taking these pills
for post-traumatic stress disorder. Plaintiff’s Proposed Findings of Fact (“PPFOF”), ECF No. 75
at ¶ 10. Lewis informed Rowe that his medication was out. DPFOF ¶ at 25. It was Rowe’s
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responsibility, as described in the inmate handbook, to fill out a medication request for a prescription
refill when he was low.1 Id. at ¶ 23; ECF No. 56-1 at 8.
Rowe became upset, so Lewis contacted Sergeant Krueger, who was working on another
unit at the time, and he came to Rowe’s cell to speak with him. Id. at ¶¶ 26–27. Sergeant Krueger
then spoke with the Health Services Unit (“HSU”) to see if they could get Rowe’s medication that
night.2 Id. at ¶ 28. HSU told Sergeant Krueger that the medication would be delivered the next day,
Friday, August 29, 2014. Id. at ¶ 29. Sergeant Krueger also attempted to contact the Psychological
Services Unit (“PSU”), in order to make sure they were aware that Rowe was out of his medication.
Id. at ¶ 30. Sergeant Krueger was told that there was no one from PSU at the institution because
1

Rowe disputes this allegation by stating that “It is the duty of the officers to order
medication when it is 7 days before the medication runs out.” ECF No. 74 at 4. However, Rowe
failed to provide any evidentiary material to support this proposition. Rather, his only support is his
own allegation that it was the guards’ responsibility. Defendants supported their assertion with a
copy of the inmate handbook which explains that it was Rowe’s responsibility to refill the
prescription. ECF No. 51-1 at 29. Because Rowe has failed to provide any evidentiary support, the
court finds undisputed the fact that it was Rowe’s responsibility to submit a request to have his
prescription refilled. See Scott v. Harris, 550 U.S. 372, 380 (2007) (“As we have emphasized,
‘when the moving party has carried its burden under Rule 56(c), its opponent must do more than
simply show that there is some metaphysical doubt as to the material facts’ . . . . When opposing
parties tell two different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.”).
2

Rowe attempts to dispute some of the defendants’ proposed facts by stating that he
“denies” the fact. However, the court notes that each of the facts Rowe challenges are supported
by evidence in the record, more specifically, declarations of the defendants indicating their personal
knowledge, as well as other supporting documentation. For these denials, Rowe offered no sworn
testimony or other evidentiary material setting forth contrary facts. In order to dispute a material
fact, Rowe must do more than raise mere “metaphysical doubt as to the material facts.” Siegel v.
Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010). Therefore, for the facts that Rowe merely “denies”
without citation to any evidentiary support in the record, the court deems the facts undisputed. Fed.
R. Civ. P. 56(e)(2). This applies to Defendant’s Proposed Findings of Fact ¶¶ 29, 32–35, 38, 44–47,
53–54, 56, 58, 63, 64, 76, 82, 85, 94, 99, 105–11, 114–17, 122, 130–34, 141, 143, 145, 157,
168–71, 174–75, 180–81. The disputed facts that Rowe properly supports are noted.
3

it was after hours. Id. Sergeant Krueger told Rowe to fill out a psychological services request form
to cover all available options to him that evening. Id. at ¶ 35. Rowe received his Trazadone and
Prazosin the next day, August 29, 2014.3 Id. at ¶ 40; see also ECF No. 67-1 at 76.
On August 30, 2014, at 3:30 pm, Defendant Gunderson, a correctional officer, heard a
scuffle by the stairwell as inmates returned to their cells. Id. at ¶¶ 2, 42. There, Gunderson observed
Rowe and another inmate wrestling on the floor with blood on their hands and on the floor. Id. at
¶ 42. Gunderson issued both Rowe and the other inmate a conduct report for fighting. Id. at ¶ 43.
Rowe never told Gunderson a reason why he was fighting. Id. at ¶¶ 44–45. Rowe did not tell
Gunderson that he had missed his medication two days prior nor did he allege that he had been
denied or was being denied mental health treatment. Id. at ¶ 45. Nor was there anything about the
incident that concerned Gunderson or caused him to conclude that Rowe had missed his medication
or mental health treatment. Id. at ¶ 46. After writing the conduct report, Gunderson did not have
any involvement in the decision to place Rowe in disciplinary separation or temporary administrative
segregation. Id. at ¶ 47.
Lieutenant Davis Arndt placed Rowe in temporary administrative segregation after the fight
pending the outcome of Rowe’s conduct report. Id. at ¶¶ 4, 48. Rowe was placed in temporary
administrative segregation because inmates who engage in physical altercations present a threat to
the safety and security of the institution, other inmates, and staff members. Id. at ¶ 48. Rowe was
3

Rowe disputes this fact by submitting a declaration that states that he “did not receive them
until after the fight on August 30th, 2014.” ECF No. 76. Defendants provided Rowe’s medical
records which clearly show that Rowe received his medication on August 29th. Rowe cannot create
a “genuine” dispute over when he received his medication again by simply denying he got it without
evidentiary support when his medical records contradict his allegation and clearly indicate that he
received his medication. See Fed. R. Civ. P. 56(c); see also Scott, 550 U.S. at 380. Therefore, the
court finds undisputed that Rowe received his medication again on August 29th, 2014.
4

placed there pending the outcome of his conduct report for fighting. Id. at ¶ 52. Rowe made no
comments to Lieutenant Arndt regarding his placement in temporary administrative segregation or
running out of his medications. Id. at ¶¶ 53–54. Arndt did not have any involvement in placing
Rowe in disciplinary segregation, which happened after he was found guilty of his conduct report.
Id. at ¶ 49.
On September 2, 2014, Captain Janel Nickel reviewed the conduct report and determined
that it should proceed to a disciplinary hearing as a major offense. Id. at ¶¶ 5, 55. Nickel’s job was
not to determine guilt or innocence, but to review the appropriateness of the charge. Id. at ¶ 56.
The conduct report did not mention anything about Rowe missing his medications or mental health
treatment. Id. at ¶ 57. Nickel did not discuss the conduct report with Rowe. Id.
On September 4, 2014, Lieutenant Thomas Mariani presided over Rowe’s disciplinary
hearing. Id. at ¶¶ 4, 59–60. At the disciplinary hearing, Rowe admitted that he was guilty of
fighting. Id. at ¶ 61. Rowe stated that the other inmate had been giving him a hard time and calling
him a child molester, so Rowe swung at him several times. Id. at ¶ 62. Rowe stated that he was
having “issues” with his medication at the time, but he did not attribute his conduct to any problems
with medication. Id. at ¶ 63. Based on the conduct report, photos of the incident, and Rowe’s
admission of guilt, Lieutenant Mariani determined that it was more likely than not that Rowe had
violated prison rules and sentenced him to thirty days of disciplinary segregation. Id. at ¶¶ 65, 66.
Rowe was moved from temporary administrative segregation to disciplinary segregation on
September 4, 2014. Id. at ¶ 67.
On September 10, 2014, Dr. Dawn Landers, a licensed psychologist at DCI, performed a
psychology staff evaluation on Rowe. Id. at ¶¶ 7, 68. Dr. Landers noted that based on her meetings
5

with Rowe on September 3rd and 10th, he demonstrated an adequate psychological adjustment to
disciplinary segregation. Id. at ¶¶ 69–70. Dr. Landers recommended that Rowe be released from
disciplinary segregation on September 19, 2014, after having served half of his thirty day sentence.
Id. at ¶ 71. Captain Scot Galligan, program captain of the restrictive housing unit, and Captain
Nickel also recommended that Rowe be released on September 19, 2014. Id. at ¶¶ 6, 72. Deputy
Warden Schneiter ultimately ordered that Rowe be released on September 17, 2014 because he had
conducted himself in an appropriate manner while housed in disciplinary segregation and had served
adequate time. Id. at ¶¶ 8, 73–74. Galligan, Nickel, and Schneiter all reviewed Dr. Landers’ note
that Rowe demonstrated adequate psychological adjustment to his disciplinary segregation before
making their recommendations. Id. at ¶ 75. Galligan’s and Schneiter’s recommendations for release
were the only interactions they had with Rowe. Id. at ¶ 72. Rowe spent a total of thirteen days in
disciplinary segregation after his four days in temporary administrative segregation. Id. at ¶ 77.
B. Rowe’s Mental Health Services at DCI
On July 28, 2014, Dr. Landers had her first appointment with Rowe after he was transferred
to DCI. Id. at ¶ 78. She conducted a mental health screening interview, which inquired about
Rowe’s mental health history and current mental health status. Id. at ¶ 79. At the time, Rowe
denied any psychological distress but said that he had a prescription for psychotropic medications
to treat symptoms of post-traumatic stress disorder and depression, which included nightmares. Id.
at ¶ 80. After conducting her assessment, Dr. Landers classified Rowe as an MH-1, which indicates
that he had a mental health need but was not experiencing clinically significant symptoms. Id. at
¶ 81. When Rowe was taking his medication, he was reasonably emotionally stable. Id. at ¶ 83. Dr.
Landers recommended that Rowe be seen every six months for follow up and evaluation. Id. At that
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time, Dr. Landers had no special placement concerns about Rowe because he presented as
psychologically stable overall with minimal active mental health symptoms. Id. at ¶ 84. Additionally,
Rowe did not present with any serious mental illness concerns that would be considered to be a risk
to himself or to other inmates. Id. at ¶ 85.
On August 30, 2014, two days after the missed medication, Defendant Kathy Hielsberg, a
licensed nurse at DCI, was forwarded a psychological service request from HSU. Id. at ¶ 86. This
request from Rowe was dated August 28, 2014. Id. at ¶ 87. The request indicated that Rowe
wanted to be seen by the psychology staff and that he was not given his medication on August 28,
2014. Id. at ¶ 88. The request was forwarded to HSU because PSU does not refill prescriptions.
Id. at ¶ 89. Hielsberg’s supervisor, a registered nurse, forwarded the psychological service request
to Hielsberg and instructed her to call the unit to see if they got the Trazodone on August 29th. Id.
at ¶ 90. Hielsberg called the unit and was told that the Trazadone had been sent to Rowe’s unit on
August 29, 2014. Id. at ¶ 92. Hielsberg then returned Rowe’s psychological services request to him
with the response that “Trazadone was sent to your unit 8/29/2014. The officer gives you these
meds.” Id. at ¶ 93. Hielsberg’s only responsibility was to confirm whether Rowe had received his
Trazadone on August 29, 2014. Id. at ¶ 91. Hielsberg had no authority to schedule an appointment
for Rowe with Psychological Services, which must be made either by PSU or by her supervisor. Id.
at ¶¶ 94–95. Hielsberg had no other contact with Rowe during his incarceration. Id. at ¶ 96.
Dr. Landers had her second interaction with Rowe on Wednesday, September 3, 2014, while
conducting routine PSU rounds in the restrictive housing unit, where Rowe was being kept during
his temporary administrative segregation. Id. at ¶¶ 97–98. Rowe did not request a follow up
psychological request or any other psychological service between his initial meeting with Dr. Landers
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and her second visit. Id. at ¶ 99. During her visit with him, Rowe informed Dr. Landers that he was
there because of a physical altercation with another inmate. Id. at ¶ 101. Dr. Landers was unaware
of the altercation when she met with Rowe but confirmed the physical altercation with a security
staff member after her appointment with him. Id. at ¶ 100.
At the September 3rd meeting, Dr. Landers and Rowe discussed Rowe’s history of anger and
aggression. Id. at ¶ 102. Rowe blamed his fight and administrative segregation on having missed
his sleep medication a few days prior. Id. Dr. Landers reviewed Rowe’s medical logs, which
indicated his receipt of his medication on August 29th, and determined that Rowe was attempting
to avoid acceptance of responsibility for his maladaptive actions by blaming it on the missed
medication. Id. at ¶¶ 103–05. Dr. Landers stated that it was inappropriate for him to blame his
behaviors on poor sleep and irritability caused by missing one dose of medication. Id. at ¶ 106. Dr.
Landers believed in her professional opinion that Rowe’s excuse was unreasonable and baseless
because there was no evidence of serious mental health concerns that would result in an impairment
of judgment, decision making, general cognition, or understanding of adaptive and expected
appropriate behaviors. Id. at ¶ 109. For this reason, Dr. Landers determined that Rowe’s placement
in segregation was a reasonable and appropriate consequence for his behaviors and that it was not
damaging to his present or ongoing functioning or well being. Id. at ¶ 110.
On September 10, 2014, Dr. Landers had her next and final appointment with Rowe. Id. at
¶ 112. Rowe presented as alert and oriented; did not relay any complaints; did not present as
delusional or experiencing serious mental illness; did not report any ongoing psychotropic medication
concerns; and did not report any adverse behavioral or cognitive impacts because of his placement
in disciplinary segregation. Id. at ¶ 116. Dr. Landers noted that Rowe’s reports and presentation
8

of psychological functioning were indicative of generally adequate psychological adjustment to
disciplinary separation. Id. at ¶ 117. Therefore, Dr. Landers determined there was no psychological
contraindication to Rowe’s continued placement in disciplinary segregation. Id. at ¶ 118. In total,
Rowe spent seventeen days in segregation (combined administrative and disciplinary) and Landers
had two appointments with Rowe during those days. Id. at ¶ 119. After September 10, 2014,
Landers did not have any additional interactions with Rowe nor did she receive any requests from
Rowe for an appointment. Id. at ¶ 121.
On September 12, 2014, Dr. John Wean, a psychiatrist at DCI, had his only appointment with
Rowe. Id. at ¶¶ 123, 125. The purpose of Dr. Wean’s visit was to conduct a full psychiatric
assessment, including the history of Rowe’s present illness, psychiatric history, medical history,
substance abuse history, family history, and social history. Id. at ¶¶ 126–27. Dr. Wean noted the
medication that Rowe was currently on. Id. at ¶ 128. Dr. Wean also noted that during the
examination Rowe was alert, oriented, and reasonably well groomed and cooperative, but somewhat
rambling and circumstantial in his presentation. Id. at ¶ 129. Dr. Wean noted the Rowe exhibited
no abnormal psychomotor movements and did not witness any psychotic process. Id. at ¶ 130. Dr.
Wean noted that Rowe’s voice was of normal tone, rate, and volume and that his speech was
relevant and coherent. Id. Dr. Wean also noted that Rowe did not have any thoughts of hurting
himself or others and that Rowe’s affect was minimally dysphoric but appropriate. Id. at ¶ 131.
Overall, Dr. Wean noted that Rowe’s mental status examination was unremarkable and in
Dr. Wean’s professional opinion, Rowe showed an absence of distress at being in disciplinary
segregation and showed no pressing need to be moved out of disciplinary segregation. Id. at
¶¶ 133–34. Dr. Wean diagnosed Rowe with unspecific depressive disorder with PTSD-like
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symptomology, anti-social personality traits, a history of marijuana and alcohol abuse, and uncreative
colitis. Id. at ¶ 136. Dr. Wean adjusted Rowe’s medication slightly and recommended a follow up
appointment in three weeks or sooner if necessary. Id. at ¶¶ 137–38. During the time between Dr.
Wean’s appointment and Rowe’s transfer out of DCI, Rowe did not contact Dr. Wean about a
follow up appointment. Id. at ¶ 139.
Additionally, outside of Rowe’s interactions with Landers and Dr. Wean, he did not request
an appointment or help from the Psychological Services Unit after being placed in administrative or
disciplinary segregation. Id. at ¶ 122.
C. Rowe’s Inmate Complaint
On September 2, 2014, Rowe filed an offender complaint alleging that he ran out of his
medication and needed it reordered. Id. at ¶ 140; see also ECF No. 56-1 at 1. In his offender
complaint, he did not allege a denial of mental health treatment or that he became violent because
of his denied medication. Id. at ¶ 141. Nor did he allege that he was placed in disciplinary
segregation as a result of being denied his medication. Id. at ¶ 142.
Defendant Michael Patten, the Institution Complaint Examiner, reviewed the complaint and
noted that medicine had been reordered and that Rowe had his medication at that time. Id. at ¶¶ 11,
143. With the problem solved, Patten recommended that the complaint be dismissed. Id. at ¶ 144.
Patten contacted Lewis, and no one else, for information about Rowe’s offender complaint. Id. at
¶ 145.
On September 3, 2014, Defendant Jody DeRosa, the Health Services Nursing Coordinator,
accepted Patten’s recommendation and dismissed the offender complaint. Id. at ¶¶ 12, 146. In
dismissing the complaint, DeRosa included a portion of the Inmate Handbook, which Rowe received
10

upon arrival at DCI, that explains the process for inmates to refill their medication. Id. at ¶¶ 146–47;
see also ECF No. 56-1 at 3. DeRosa noted that refilling medications is the responsibility of the
inmate. Id.; see also ECF No. 56-1 at 3. On the same day, Defendant Beth Dittman, the Nursing
Supervisor, received copy of the decision, noted the dismissal, and took no further action. Id. at ¶
148.
On September 15, 2014, Rowe appealed this decision to the corrections complaint
examiner’s officer. Id. at ¶ 149. On appeal, for the first time, Rowe alleged that he was denied
mental health treatment and that the fight could have been avoided if there was a way for him to get
psychological help in time. Id. at ¶ 150. However, inmates may not raise a new issue upon review
to the corrections complaint examiner; rather, all issues must first be raised to the inmate complaint
examiner. Id. at ¶ 152. Because Rowe did not raise this issue with the inmate complaint examiner,
the corrections complaint examiner could not review it. Instead, he was limited to reviewing
whether Rowe’s prescription was refilled. Id. at ¶ 153. Charles Facktor, the Corrections Complaint
Examiner, noted that the complaint had been reviewed and that Rowe provided no new information
on appeal that warranted overturning the decision. Id. at ¶ 154. Facktor recommended that the
complaint be dismissed. Id. at ¶ 155. Defendant Cindy O’Donnell was the Policy Initiatives Advisor
and was the Secretary’s Designee for making final agency decisions under the Inmate Complaint
Review System. Id. at ¶ 14. O’Donnell accepted Facktor’s recommendation and dismissed the
complaint. Id. at ¶ 156. O’Donnell did not consider Rowe’s new allegations of denial of mental
health treatment because it was raised for the first time on appeal. Id. at ¶ 157.

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D. Rowe’s Inmate Security Classification
On September 17, 2014, Defendant Anna Neal, the Offender Classification Specialist, met
with Rowe for an initial classification to address Rowe’s custody, site placement, and program
assignment. Id. at ¶¶ 16, 159. Neal reviewed Rowe’s incarceration history, offenses, offense
dynamics, offense history, sentence structure, institutional behavior, institutional conduct,
institutional adjustment, medical needs, dental needs, mental health needs, risk rating, and program
needs. Id. at ¶ 162. Neal found that Rowe had recently been found guilty of fighting and received
thirty days of disciplinary segregation. Id. at ¶ 163. Rowe reported that the night of the fight he had
been denied his medication, which threw his sleeping patterns off and that he knew he was going to
be a danger. Id. at ¶164. Rowe also stated that he attempted to get help prior to this occurring. Id.
Neal noted Rowe’s version of the events. Id. at ¶ 165.
Neal recommended that Rowe be placed in maximum security because he had violated his
supervision rules in the community by viewing multiple digital images of child pornography on his
laptop, because he had thirteen counts of possession of child pornography pending, and because of
his previous incarceration conduct history, current history of fighting, and history of assaultive
offenses. Id. The maximum sentence for each of his possession of child pornography charges was
fifteen years; therefore, his charges had the potential for further incarceration, which made him a high
risk on the classification risk scale for temporary factors. Id. at ¶¶ 166–67. Additionally, Rowe was
considered high risk due because his offense history was lengthy and serious in nature, and due to
his assaultive past, which included previous weapons offenses and a conviction for Battery to Law
Officers/Firefighters. Id. at ¶ 168. Neal explained that the dynamics of Rowe’s current offense and
pending charges, his motivation and attitude regarding his offense and violation, and his prior
12

criminal history were all factors in her decision making process. Id. at ¶ 169. Neal also explained
that the conduct report for fighting further justified the decision to place him in maximum security
but that it was not the deciding factor. Id. at ¶ 170. Neal recommended placement at a maximum
security institution and a sixth month recall, so that Rowe’s custody could be reviewed. Id. at ¶ 171;
ECF No. 65; ECF No. 57-1.
Gary Kumber, the Senior Offender Classification Specialist, reviewed Neal’s security
recommendation for approval. DPFOF at ¶ 17, 173. Kumber reviewed the same risk factors Neal
had reviewed. Id. at ¶ 173. Kumber’s role was not to make new findings in the matter but to review
Neal’s decision to make sure there were no mistakes and the placement was supported by
documentation. Id. at ¶¶ 174–75. Kumber noted that the documentation supported Neal’s
recommendation because of Rowe’s poor conduct and the seriousness of his pending charges for
possession of child pornography. Id. at ¶ 176.
On September 18, 2014, Rowe submitted an Administrative Review of Initial Classification
or Re-Classification Decision. Id. at ¶ 177. Rowe stated:
The custody level proposed by Anna Neal, and imposed by G. Kumber, is
dramatically unnecessary. According to the classification report, Kumber cites “poor
conduct, serious charges” as justification for the decision of maximum custody.
These are erroneously used for these reasons: one—a cursory examination of
complaint DCI-2014-17116 will prove I had informed P.S.U. that, as a result of
medicine denial, I was feeling my “anger rise to dangerous levels.” As I was not seen
or helped by DCI, using a resulting conduct report to predicate max custody is
inhumane, and violation of due process. Two: My pending charges are in such an
early stage of adjudication, a reliable decision cannot be made from them.
Id. at ¶; ECF No. 59-1. John Bett, the Inmate Appeal Examiner, reviewed the record and rejected
Rowe’s request on October 9, 2014. DPFOF at ¶ 18, 179. Bett noted that there was no factual
error that led to the classification. Id. at ¶¶ 179–80. Bett made no new findings of fact. Id. at ¶ 180.
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E. Federal Complaint
On August 20, 2015, Rowe filed a pro se 37-page complaint pursuant to 42 U.S.C. § 1983,
alleging that his constitutional rights had been violated by 50 individual defendants. ECF No. 1.
That complaint was stricken at the screening stage for improper joining of unrelated claims, see
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007), but Rowe was given leave to file an amended
complaint, which he did on May 12, 2016. ECF Nos. 15, 18. In his amended complaint, Rowe
alleged that more than twenty defendants were deliberately indifferent to his medical needs by failing
to provide his mental health medication, which caused him to assault another inmate two days later
and resulted in his placement in disciplinary segregation. ECF No. 18 at 3. After screening, he was
allowed to proceed against nineteen defendants on his claims. He first claims that the defendants
were deliberately indifferent to his medical needs by failing to provide his mental health medication,
which caused him to assault another inmate two days later. ECF No. 18 at 3. Rowe further alleges
that the defendants violated his constitutional rights by placing him in disciplinary segregation
without investigating the incident. Id. at 4. Additionally, he alleged that they were deliberately
indifferent in providing mental health treatment while he was in segregation. Id. at 5. Lastly, he
alleged that he received a maximum security assignment because of this fight, which also violated
his constitutional rights. Id.
Defendants moved for summary judgment. ECF No. 45. They allege that Rowe’s deliberate
indifference claims fail as a matter of law and that there was no deliberate indifference by any actor.
ECF No. 64 at 24–44. They also allege that Neal, Kumber, and Bett have absolute immunity for
their recommendation that Rowe be assigned to a maximum security facility. Id. at 44–46.

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Alternatively, defendants allege that they are all entitled to qualified immunity. Id. at 46–51. The
matter has been fully briefed and is ripe for decision.
II. LEGAL STANDARD
Under the Federal Rules of Civil Procedure, summary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with any affidavits, show
that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c). “[T]he plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
“At the summary judgment stage, the facts must be viewed in the light most favorable to the
nonmoving party only if there is “genuine” dispute as to those facts.” Scott v. Harris, 550 U.S. 372,
380 (2007) (citing Fed. R. Civ. P. 56(c)). However, “when the moving party has carried its burden
under Rule 56(c), its opponent must do more than simply show that there is some metaphysical
doubt as to the material facts . . . . Where the record is taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)). “The mere
existence of some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). Therefore, “[w]hen
opposing parties tell two different stories, one of which is blatantly contradicted by the record, so

15

that no reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380.
III. ANALYSIS
Rowe’s claims of deliberate indifference fail as a matter of law. In essence, Rowe argues that
he should not be responsible for any of the consequences that befell him after he instigated a fight
with another inmate. Rowe believes he should not be responsible because he missed his medication
two days prior to the fight. Rowe then argues that over a dozen correctional staff members were
deliberately indifferent to his mental health needs because they imposed, or were part of the process
that imposed, consequences for his actions. A claim of deliberate indifference is not a “get out of
jail free” card for inappropriate behavior and Rowe’s claims of deliberate indifference fail as a matter
of law on the undisputed facts before the court.
In order to succeed on a claim of deliberate indifference Rowe must show two elements: (1)
that he suffers from an objectively serious medical condition; and (2) that the state official was
subjectively deliberately indifferent to that objectively serious medical condition. Duckworth v.
Ahmad, 532 F.3d 675, 679 (7th Cir. 2008) (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)).
Defendants have conceded, for purposes of their summary judgment motion only, that Rowe had an
objectively serious medical condition. However, Rowe must still show that each state official was
subjectively deliberately indifferent to that serious medical condition. Stated another way, Rowe
must show that each “defendant had actual knowledge of impending harm which he consciously
refused to prevent.” Hill v. Shobe, 93 F.3d 418, 421 (7th Cir. 1996). Furthermore, deliberate
indifference is a high standard. Ordinary negligence, or even gross negligence, are not sufficient to
establish deliberate indifference. McGill v. Duckworth, 944 F.2d 344, 348 (7th Cir. 1991).
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A) Defendants Lewis and Krueger
Rowe’s claims against Lewis and Krueger fail as a matter of law because neither of them
denied him his evening medications, nor were they deliberately indifferent to his medical needs.
Rowe was responsible for refilling his prescriptions; he cannot blame his failure to do so on Lewis
and Krueger.4 Furthermore, because it was after 8 pm, Lewis and Krueger were unable to secure
medication for him. The fact that they tried to do so, however, shows that Lewis and Krueger were
responsive—not indifferent—to Rowe’s pleas for his medication. Lewis double-checked the
medication cabinet. Krueger called HSU and PSU and encouraged Rowe to submit an Psychological
Services Request form to cover all of his available options and ensure he got his medication. Lewis
and Krueger’s active attempts to procure Rowe’s medication are the antithesis of deliberate
indifference.
Rowe also argues that the defendants were deliberately indifferent in failing to place him in
segregation to prevent him from harming others. Rowe asserts that he warned them that he would
be a danger to himself and others without his medication. Lewis and Krueger dispute this allegation,
but the dispute is immaterial because Rowe did not become violent on the night of the same night
he did not take his medication. Rowe instigated a fight with another inmate on August 30th, two
days later and after he had received his medication on August 29th. Even if the court construes the
facts in favor of Rowe and finds that Rowe warned them that he would be dangerous on the night

4

Even if it had been the guards’ responsibility to reorder prescriptions and not Rowe’s,
Rowe’s claims would still fail because there is no evidence that Lewis or Krueger were the guards
responsible for refilling the prescription to ensure that Rowe did not run out. There is no indication
the either Lewis or Krueger were aware that Rowe may run out of medication before that night. At
best, Rowe’s argument is that some unknown guard was responsible for refilling his prescriptions
and did not.
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of August 28th, Rowe still fails to show subjective knowledge because Rowe did not harm himself
or anyone else on the night of August 28th. He did not harm himself or anyone on August 29th.
Rather, Rowe instigated a fight on August 30th, after having received his medication the night
before. Even finding the Rowe warned them he might be dangerous on the 28th, he did not warn
them that he would continue to be dangerous even after receiving his medication. There is no
evidence that either Lewis or Krueger had actual knowledge that Rowe would be dangerous on
August 30th after receiving his medication again.

Therefore, Rowe’s claims of deliberate

indifference against Lewis or Krueger fail as a matter of law and are dismissed.
B) Defendants Gunderson and Arndt
Rowe has failed to state a claim of deliberate indifference against Gunderson, who issued his
conduct report for fighting, or Arndt, who placed him in administrative segregation after fighting.
There is no allegation or evidence that either Gunderson or Arndt was subjectively aware of Rowe’s
missed medication or his mental health needs. Because neither of them were aware of Rowe’s
mental health situation, neither of them could be deliberately indifferent to it. Therefore, Rowe’s
claims against Gunderson and Arndt are dismissed.
C) Defendant Nickel
Rowe’s claim against Nickel similarly fails. Nickel reviewed the conduct report and referred
it to a disciplinary hearing for a major event. Because Rowe did not mention the missed dosage or
his mental health needs to Gunderson, who wrote the conduct report, there is no mention of them
in the report. Therefore, Nickel could not be deliberately indifferent in her review of the conduct
report because she had no subjective knowledge of Rowe’s mental health when reviewing the
conduct report.
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Additionally, Nickel was not deliberately indifferent to Rowe’s mental health needs while in
segregation. Nickel reviewed Rowe’s disciplinary segregation on September 10, 2014, after Rowe
had been given a sentence of 30 days segregation. Nickel had no subjective knowledge of a risk of
harm to Rowe’s mental health while in segregation. Rather Nickel’s knowledge came from her
review Dr. Landers’ note that Rowe demonstrated adequate psychological adjustment while in
segregation. As a non-medical professional Nickel was justified in relying on Dr. Landers’
assessment. See Hayes v. Snyder, 546 F.3d 516, 526 (7th Cir. 2008) (explaining that if a prisoner
is under the care of medical experts then a non-medical prisoner is justified in believing that the
prisoner is in capable hands). Because Nickel had no subjective knowledge of a risk to Rowe’s
mental health at any point Rowe’s claims against Nickel fail and must be dismissed.
D) Defendant Mariani
Rowe’s claim against Mariani, who performed Rowe’s disciplinary hearing and sentenced
him to 30 days of disciplinary segregation, also fails. At the disciplinary hearing, Rowe confessed
to fighting with the other inmate. Although Rowe stated that he was having “issues” with his
medication, he did not explain or elaborate on what those issues were or why they would be relevant.
In fact, there is no indication that Rowe ever explained that the missed medication was for his mental
health, as opposed to medicine to treat a physical ailment. Mariani did not have any subjective
knowledge of Rowe’s underlying mental illness and Rowe did not tell him during the disciplinary
hearing; therefore, Mariani could not be deliberately indifferent to those needs.
E) Doctors Landers and Wean
Rowe’s claims that Dr. Landers and Dr. Wean were deliberately indifferent to his mental
health needs while he was in segregation fail as a matter of law. Rowe does not allege that he was
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deprived of mental health services while in segregation.5 Rather, Rowe alleges that Drs. Landers
and Wean were deliberately indifferent simply by allowing him to remain in segregation. Rowe also
alleges that Dr. Landers was deliberately indifferent because she declared that it in her professional
medical opinion, it was not appropriate for Rowe to use the missed medication as a justification for
starting a fight a few days later. However, these allegations are simply Rowe’s disagreement with
the medical treatment he received and his continued placement in segregation. Disagreement with
a medical professional’s course of treatment, alone, is insufficient to state a claim of deliberate
indifference against either doctor. See Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010).
Furthermore, neither Dr. Landers nor Dr. Wean identified any risk to Rowe while in segregation.
Rowe has not even identified a risk that he faced while in segregation. Without a risk of harm, there
is nothing for the doctors to be indifferent to and Rowe’s claims fail as a matter of law.
F) Defendants Galligan and Schneiter
Rowe’s claims against Galligan and Schneiter also fail as a matter of law. Rowe alleges that
they were deliberately indifferent to his medical or mental health needs by allowing him to stay in
disciplinary segregation. Galligan and Schneiter’s only involvement with Rowe was when they
reviewed his disciplinary segregation and recommended to release him. In doing so, both reviewed
Dr. Landers’ assessment that Rowe demonstrated adequate psychological adjustment to his
segregation and was not experiencing harm from being in segregation. As non-medical professionals,
5

The court notes that to the extent that Rowe sought to bring a claim for depriving him of
mental health services while in segregation, that claim would also fail. Rowe received his medication
while in segregation and was seen three times by two doctors over his seventeen day stay.
Furthermore, Rowe never requested psychological help or services while in segregation. His only
PSU request was filed on August 28th when he missed his medication. Rowe has simply failed to
identify any deprivation of mental health services that he needed and was deprived of while in
segregation.
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both were entitled to rely on her assessment. See Hayes, 546 F.3d at 526 (explaining that if a
prisoner is under the care of medical experts then a non-medical prisoner is justified in believing that
the prisoner is in capable hands). There is no allegation or evidence that Galligan or Schneiter had
any subjective knowledge of a risk to Rowe’s mental health while he was in segregation—especially
considering Dr. Lander’s assessment that he was adequately adjusting. Because of this, Rowe’s
allegations against Galligan and Schneiter fail as a matter of law.
G) Defendant Heilsberg
Rowe’s allegation that Heilsberg was deliberately indifferent also fails. Rowe alleges
Heilsberg was deliberately indifferent because she responded to his psychological services request,
where he claimed he could feel his anger rising, and did not give the request to PSU to schedule an
appointment. However, Heilsberg received the request from PSU.6 Therefore, Heilsberg was not
deliberately indifferent in failing to give the request to PSU, because she received it from them.
H) Defendants Patton, DeRosa, Facktor, O’Donnell, and Dittman
Rowe’s claims against Patton, DeRosa, Facktor, O’Donnell, and Dittman all fail as a matter
of law. Rowe alleges that these defendants were deliberately indifferent to his mental health needs
because they failed to investigate his inmate complaint and the denial of his medication. However,
Rowe cannot bring a claim of deliberate indifference against an officer reviewing an inmate’s
grievances when they have not somehow caused or participated in the violation of rights. See
George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007) (explaining that only “persons who cause or
participate in the violations [of constitutional rights] are responsible); Burks v. Raemisch, 555 F.3d
6

PSU transferred the request to Heilsberg because it requested a medication refill, which
PSU does not do. Heilsberg’s only responsibility was to confirm that Rowe received his medication
refill, which she did.
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592, 595 (7th Cir. 2009) (“Dismissal [of an inmate complaint] no more manifests ‘deliberate
indifference’ to the underlying problem than does a judge’s decision dismissing a § 1983 suit”).
Furthermore, this was an inmate grievance, not the appeal of his disciplinary hearing. A “[p]rison
officials’ mishandling or failure to respond to individual grievances does not implicate any
constitutional right. . . . The Constitution requires no procedure at all, and the failure of state prison
official to follow their own procedures (or to establish effective grievance procedures) does not, of
itself, violate the Constitution.” Miller v. Rauner, No. 17-cv-859-NJR, 2017 WL 4284568, at * 11
(S.D. Ill. Sept. 27, 2017) (citing Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Maust
v. Headley, 959 F.2d 644, 648 (7th Cir. 1992); and Shango v. Jurich, 681 F.2d 1091, 1100–01 (7th
Cir. 1982)). Therefore, Rowe’s claims against Patton, DeRosa, Facktor, O’Donnell, and Dittman
fail as a matter of law.
I) Defendants Neal, Kumber, and Bett
Lastly, Rowe has failed to state a claim against Neal, Kumber, and Bett for his security
placement in maximum security facility. Rowe does not have a liberty interest in being placed within
a lower-security facility. As the Supreme Court has explained: “The initial decision to assign the
convict to a particular institution is not subject to audit under the Due Process Clause, although the
degree to confinement in one prison may be quite different from that in another. The conviction has
sufficiently extinguished the defendant’s liberty interest to empower the State to confine him in any
of its prisons.” Meachum v. Fano, 417 U.S. 215, 225–29 (1976); Whitford v. Boglino, 63 F.3d 527,
532 (7th Cir. 1995) (applying Meachum and finding no implication of liberty interest in the transfer
of an inmate to the maximum security institution). Rowe has identified no liberty interest that he was
deprived of during his security placement and without an established liberty interest, there can be no
22

due process violation. Therefore, Rowe’s claims that Neal, Kumber, and Bett improperly placed,
or affirmed his placement, in a maximum security prison fail as a matter of law.
J) Qualified Immunity
Even if defendants had violated Rowe’s constitutional rights, they have qualified immunity
against liability. “[G]overnment officials performing discretionary function, generally are shielded
from liability for civil damages insofar as their conduct does not violate clearly established statutory
or constitutional right of which a reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 817 (1982). The “plaintiff . . . bears the burden of demonstrating the existence of the
allegedly “clearly established” constitutional right.” Alvarado v. Picur, 859 F.2d 448, 452 (7th Cir.
1988). The “right the official is alleged to have violated must have been ‘clearly established’ in a
more particularized, and hence more relevant, sense: The contours of the right must be sufficiently
clear that a reasonable official would understand what he is doing violates that right.” Saucier v.
Katz, 533 U.S. 194, 202 (2001), overruled on different grounds by Pearson v. Callahan, 555 U.S.
223 (2009)).
Rowe failed to respond to Defendants’ qualified immunity argument. Furthermore, he has
not established a case demonstrating a clearly established constitutional right that defendants have
violated. Rowe cites to a handful of cases, but are all factually distinguishable. See Gil v. Reed, 381
F.3d 649, 662 (7th Cir. 2004) (finding deliberate indifference in a malicious denial of available
medication); Ralston v. McGovern, 167 F.3d 1160, 1162 (7th Cir. 1999) (finding deliberate
indifference in the failure to give prescribed pain medication when the prisoner was vomiting blood);
Wynn v. Southward, 251 F.3d 588, 594 (7th Cir. 2001) (finding deliberate indifference when the
prison lost the inmate’s heart medication during a transfer and the inmate was without medication
23

for over a week); Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999) (finding deliberate indifference
when the prison doctor’s failure to provide treatment as ordered by a specialist). However, none
of these cases involve an inmate who has failed to refill his prescription and then runs out.
Therefore, they are insufficient to defeat qualified immunity for the defendants. Rowe has failed to
demonstrate a clearly established constitutional right that defendants have violated and they are also
entitled to qualified immunity.
IV. CONCLUSION
For the reasons stated above, the court finds that Rowe’s claims fail as a matter of law and
even if they did not, defendants would be entitled to qualified immunity. Accordingly, the
defendants’ motion for summary judgment (ECF No. 45) is GRANTED and the case is
DISMISSED. The Clerk is directed to enter judgment forthwith.

Dated this 22nd

day of January, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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