Ards v. Delavega et al

Filing 64

ORDER signed by Judge J P Stadtmueller on 11/16/16: granting in part and denying in part 33 Defendants' Motion for Summary Judgment; dismissing with prejudice Plaintiff's deliberate indifference claim against Defendants Travis Brady and Lora Blasius; and, denying as moot 56 Plaintiff's Motion for Extension of Time to file his response to Defendants' Motion for Summary Judgment. See Order. (cc: Plaintiff, all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TYRONE D. ARDS,
Plaintiff,
v.

Case No. 15-CV-1293-JPS

CHRISTOPHER DE LA VEGA,
TRAVIS BRADY, and
LORA BLASIUS,

ORDER

Defendants.
1.

INTRODUCTION
Plaintiff Tyrone Ards (“Ards”), a prisoner, brings this action against

several prison officials pursuant to 42 U.S.C. § 1983. The Court permitted two
claims to proceed past the screening stage. (Docket #9); see 28 U.S.C. § 1915A.
First, Ards alleges that Defendant Christopher De La Vega (“De La Vega”)
violated the Eighth Amendment prohibition on the use of excessive force
after he slammed Ards’ finger in the trap door of his cell. Second, Ards
claims that Defendants Travis Brady (“Brady”) and Lora Blasius (“Blasius”)
showed deliberate indifference to his serious medical needs, in violation of
the Eighth Amendment, when they decided to leave sutures in his injured
finger for too long and refused his requests for narcotic pain medication.
On August 1, 2016, Defendants filed a motion for summary judgment
as to both of Ards’ claims. (Docket #33). On August 23, 2016, Plaintiff timely
filed a response to the motion. (Docket #44).1 On September 7, 2016,

1

On September 2, 2016, Plaintiff filed a motion for extension of time to file
his response. (Docket #56). Plaintiff explained that he was unsure whether he had
mailed his response to the correct court and sought additional time to resubmit the
brief in case he had sent it elsewhere. Id. Because the Court did receive his
response, Plaintiff’s motion will be denied as moot.

Defendants replied. (Docket #58). The motion is fully briefed and, for the
reasons explained below, it will be granted in part and denied in part.
2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that 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 Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016).
A fact is “material” if it “might affect the outcome of the suit” under the
applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute of fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. The
court construes all facts and reasonable inferences in the light most favorable
to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360
(7th Cir. 2016). The court must not weigh the evidence presented or
determine credibility of witnesses; the Seventh Circuit instructs that “we
leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688,
691 (7th Cir. 2010). The party opposing summary judgment “need not match
the movant witness for witness, nor persuade the court that [his] case is
convincing, [he] need only come forward with appropriate evidence
demonstrating that there is a pending dispute of material fact.” Waldridge v.
American Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).
3.

RELEVANT FACTS
Ards is currently incarcerated at Columbia Correctional Institution

(“Columbia”). (Defendants’ Reply to Plaintiff’s Response to Defendants’

Page 2 of 27

Proposed Findings of Fact (“DFOF”), Docket #60, ¶ 1).2 At all times relevant
to this litigation, he was incarcerated at Racine Correctional Institution
(“Racine”). Id. Defendant Christopher De La Vega has been employed as a
correctional officer at Racine since January 13, 2014. Id. ¶ 2.3 Defendant Lora
Blasius is a nurse practitioner in the Health Services Unit at Racine and has
been since 2011. Id. ¶ 3; (Defendants’ Response to Plaintiff’s Proposed
Findings of Fact (“PFOF”), Docket #59, ¶ 3).4 Defendant Travis Brady has
been employed as a nurse at Racine since November 2007. DFOF ¶ 4.
3.1

Excessive Force Claim

On December 7, 2014, De La Vega was assigned to the lower
Waukesha West segregation unit where Ards was housed. Id. ¶ 8. Prior to
December 7, 2014, De La Vega had never had a negative interaction with
Ards. Id. ¶ 10. At approximately 5:20 p.m., after picking up dinner trays,
De La Vega was returning to the segregation control unit, commonly referred
to as the “bubble.” Id. ¶ 11. Ards asked De La Vega, while on his way to the
bubble, if he would bring him his antacid medication. Id. ¶ 12. De La Vega
told Ards that he would check with his superior on duty, Sergeant
Springtube, to confirm that Ards should receive antacid medication. Id.

2

Defendants filed a reply in support of their statement of material facts.
(Docket #60). The Local Rules do not contemplate a reply in support of the moving
party’s own statement of facts, see Civil L. R. 56(b)(3)(B), but Plaintiff did not object
to its filing and the document succinctly presents the parties’ competing views of
the record evidence. As a result, the Court will reference it here.
3

Plaintiff refers to this defendant as “Christopher Delavega,” but Defendant
refers to himself in his affidavit as “Christopher De La Vega.” The Court will use
Defendant’s spelling as evidenced in his affidavit.
4

Plaintiff refers to this defendant as “Lara Blesius,” but Defendant refers to
herself in her affidavit as “Lora Blasius.” The Court will use Defendant’s spelling
as evidenced in her affidavit.

Page 3 of 27

After confirming that Ards was to receive antacid medication, De La
Vega brought the medication bottle to Ards’ cell. Id. ¶ 13. De La Vega opened
the upper trap of Ards’ cell door and attempted to dispense the medication
into Ards’ hand from the bottle. Id. ¶ 20. Ards directed De La Vega to give
him four tablets, and De La Vega agreed to do so because the request did not
significantly exceed the daily recommended dose. Id. ¶ 21.5
At this point, the parties’ versions of events diverge. Defendants
themselves acknowledge this, stating that“[t]here is a dispute of fact as to the
sequence of events that occurred leading up to Ards’ finger being closed into
the trap door.” PFOF ¶ 14. According to De La Vega, as he was attempting
to pour the tablets into Ards’ outstretched hand, Ards grabbed De La Vega’s
right hand, which was holding the bottle, and attempted to pull De La Vega’s
hand and the bottle into his cell, saying in a loud and aggressive tone, “Fuck
that! Give me that shit right now!” DFOF ¶ 22. Ards and De La Vega
struggled for a few seconds before De La Vega was able to free his hand from
Ards’ grip. Id. ¶ 23. Ards then returned his hands inside his cell, saying, “Yea
mother fucker.” Id.
When Ards moved his hands back inside his cell, De La Vega
“bladed” his body by positioning himself at a diagonal to the cell door rather
than standing directly in front of it. Id. ¶ 24. De La Vega claims that he
wanted to keep a safe distance from Ards to avoid further physical contact.
Id. ¶ 25. Next, De La Vega, standing to the side of Ards’ cell door, positioned
his right foot under the flap of the hinged cell trap door. Id. ¶ 26. Once the

5

The parties dispute whether De La Vega was authorized to dispense a
higher dosage of antacid medication than what was recommended. See DFOF ¶ 21;
PFOF ¶¶15–16. Because Plaintiff makes no claim related to an overdose of the
medication, this dispute is immaterial.

Page 4 of 27

trap was in the ready position to be closed, De La Vega lifted his foot to
provide sufficient momentum that the trap would latch securely when it
made contact with the locking mechanism. Id. ¶ 27.
According to De La Vega, as the trap door was already in motion to
close, Ards stuck his fingers out of the trap near the lock mechanism and his
hand was caught in the closing door. Id. ¶ 28. De La Vega asked Ards if he
was ok, but Ards did not respond. Id. ¶ 29. De La Vega immediately notified
Sergeant Springtube of what had happened, who then notified his superior,
Captain Serrano. Id. The Health Services Unit was also notified. Id. ¶ 30. Ards
was first seen by Defendant Brady and then sent to the Wheaton Franciscan
Hospital (“Wheaton”) emergency room for treatment. Id.
Ards’ account differs significantly from De La Vega’s. Ards claims that
De La Vega tried to dump the antacid pills into Ards’ hand and then,
seemingly inexplicably, De La Vega “dumped [sic] back and kicked the trap
door while [Ards] was trying to get his medication.” Id.; (Declaration of
Tyrone Ards, Docket #51, ¶ 12).6 According to Ards, he never touched De La
Vega’s hand or the medication bottle, nor did he “become loud” or exclaim
as De La Vega contends. DFOF ¶¶ 22–23; (Plaintiff’s Declaration in
6

Ards contends that he had special restrictions applicable to him because he
was on clinical observation. PFOF ¶ 13. Those restrictions are, in his words, “[b]ack
to cell, lower trap, [h]ook meds, etc.” Id. The Court received no clearer explanation
of what these restrictions entail, but it appears that Plaintiff believes that he should
have been ordered to stand with his back to the back wall of his cell so as to
preclude him from interfering with De La Vega’s medication dispensing. See id.
Defendant objects to this assertion, noting that Plaintiff did not cite any evidence
that he was under such restrictions. Id. Further, Defendants claim that even if De
La Vega failed to follow the security restrictions applicable to Ards, that conduct
does not amount to a constitutional violation. Id.; see also DFOF ¶ 19. Given the
other factual disputes raised by the parties’ presentations, discussed further below,
De La Vega’s alleged failure to follow these security precautions is of little moment
to the instant decision.

Page 5 of 27

Opposition to Christopher De La Vega’s Declaration (“Pl. Decl. Opp. De La
Vega”), Docket #47, ¶¶ 15–17). Additionally, Ards indicates that he did not
pull his hand back inside the trap door until after Sergeant Springtube
arrived. DFOF ¶ 24; Pl. Decl. Opp. De La Vega ¶¶ 17–18. Further, Ards
contends that there was a large window in the side of his cell and, through
the window, he observed that De La Vega never bladed himself in relation
to the cell door. Pl. Decl. Opp. De La Vega ¶¶ 18–20. Ards appears to contend
that his hand was outstretched through the door to receive the medication
during the entire encounter with De La Vega, and that De La Vega knew this
because he never bladed himself in relation to the door, thereby discrediting
De La Vega’s assertion that he did not know that his kick to the trap door
would catch Ards’ hand. See DFOF ¶¶ 27–28; Pl. Decl. Opp. De La Vega
¶¶ 15–22. In short, then, Ards believes that De La Vega purposefully kicked
shut the trap door with Ards’ hand in the way. (Declaration of Tyrone Ards,
Docket #51, ¶ 12).7
Ards further asserts that rather than inquire whether Ards was
injured, De La Vega simply walked away from Ards’ cell after the trap door
shut on his hand. DFOF ¶ 29; (Declaration of Tyrone Ards, Docket #51, ¶ 13).
Ards claims that when Sergeant Springtube came out of the bubble, he spoke
with Ards and “was able to gain complies [sic] by having Ards place his hand
in the trap without further problems.” PFOF ¶ 18. Sergeant Springtube then

7

Ards claims that video footage of the December 7, 2014 incident existed and
that Racine employees destroyed it to cover up De La Vega’s alleged misconduct.
(Declaration of Tyrone Ards, Docket #51, ¶¶ 18–21). The Court will not consider the
import of the absence of these purported videotapes here since Ards has offered no
more than speculation as to possible spoliation and has not requested any
particular relief. See Fed. R. Civ. P. 37 (outlining procedures for seeking relief from
the opposing party’s discovery violations).

Page 6 of 27

notified Captain Serrano, who called Defendant Brady. Id. ¶¶ 19–20. Brady
arrived, evaluated Ards’ injury, and then sent him to Wheaton for further
treatment. Id. ¶¶ 21–22.
De La Vega prepared an incident report relating to the events of
December 7, 2014, which was ultimately reviewed by the prison security
director, Jason Aldana (“Aldana”). DFOF ¶ 31. Aldana concluded that De La
Vega did not intentionally injure Ards and that he properly responded when
he saw Ards was injured. Id. ¶ 32. An Inmate Complaint Examiner reviewed
De La Vega’s report and Aldana’s findings. Id. ¶ 33. She also determined that
there was no unlawful use of force against Ards. Id.
3.2

Deliberate Indifference Claim

As noted above, Brady saw Ards in the Health Services Unit on
December 7, 2014, after Ards’ finger was injured. Id. ¶ 35. Brady consulted
with the on-call physician, who determined that Ards should be taken to the
emergency room for treatment. Id. Ards was taken to Wheaton on that same
day and diagnosed with a laceration to his right hand and an open fracture
and nail injury to his right index finger. Id. Ards received sutures at the
emergency room for these injuries. Id. ¶ 37.
3.2.1

Suture Removal

In Ards’ discharge instructions, the emergency room physician noted
that the sutures should be removed in seven days. Id. ¶ 38. Ards was also
prescribed Vicodin for pain and an antibiotic. Id. Ards received his antibiotic
from December 9, 2014, through December 21, 2014. Id. ¶ 39. Ards received
follow-up care both on-site at Racine by Health Services Unit staff and
off-site by outside medical providers. Id. ¶ 40.
On December 9, 2014, Dr. Michael Birndorf, an orthopedic hand
surgeon associated with Wheaton Franciscan Medical Group, saw Ards for
Page 7 of 27

a scheduled follow-up appointment. Id. ¶ 41. Dr. Birndorf scheduled another
follow-up appointment for approximately two weeks later and planned to
remove Ards’ sutures at that time. Id. ¶ 42. The follow-up appointment never
occurred. PFOF ¶ 32.
On December 15, 2014, Ards submitted a Health Service Request
indicating that “the top of my finger by the nail part is turning a whitish
green.” DFOF ¶ 43. The next day, on December 16, 2014, Ards was seen by
a Health Services Unit nurse, Mark Weber (“Weber”). Id. ¶ 44. Weber noted
a low-grade fever and high heart rate. Id. ¶ 45. Based on that information,
coupled with Ards’ report of finger discoloration, Weber sent Ards to the
Wheaton emergency room. Id. That same day, after arriving at the hospital,
Ards was seen by seen by Jill Wanggaard, an advanced practice nurse
prescriber. Id. ¶ 46. She observed the following: “Finger injury appears to be
healing. No drainage noted at this visit. Patient was uncooperative and
would not let me touch the finger. I do not appreciate any unusual color
change other than bruising to the finger. Patient is…moving the finger well.”
Id. Additionally, x-rays were taken that showed no signs of infection. Id.
Similarly, on December 17, 2014, Ards saw Brady in the prison for a followup appointment. Id. ¶ 47. Brady wrote in his notes that Ards’ fingertip was
a normal color and that he had no discharge from the wound. Id. The injury
was wrapped in gauze and the splint was replaced. Id.
Two days later, on December 19, 2014, Blasius instructed nurse Kim
Ewatter that, consistent with Dr. Birndorf’s December 9, 2014 order, Ards’
sutures could be removed 10–14 days after the injury. Id. As part of the
nursing staff, Blasius and Brady must defer to the treatment decisions of
Ards’ treating physicians, including Dr. Birndorf. Id. ¶ 49. The timing of
suture removal varies with the anatomic site. Id. ¶ 50. Sutures in the hands
Page 8 of 27

and feet are typically removed in 10–14 days. Id. According to Ards’ medical
records, Brady removed Ards’ sutures on December 22, 2014, fifteen days
after the initial injury, without problems. Id. ¶ 51. At the time the sutures
were removed, Brady noted “no sign or symptom [of] infection,” although
Ards indicated that his finger was still in pain. Id. ¶ 52.
Ards attempts to dispute Blasius’ decision to follow Dr. Birndorf’s
order rather than the discharge order of the Wheaton emergency room
physician. Id. ¶ 50. Ards claims that Blasius should have deferred to the
orders of the doctor who applied the sutures—the emergency room
doctor—and not Dr. Birndorf. Id. Ards produced no medical expert
testimony or reports, or any other evidence, to support this contention.
Instead, he relies solely on his own view of what Blasius should have done.
3.2.2

Pain Medication

While Ards was in the emergency room on December 7, 2014, he
received Vicodin for pain. Id. ¶ 54. On December 8, 2014, a verbal order was
entered by an unknown medical provider at the prison for Tylenol
3/acetaminophen, with a dosage of 1–2 tablets to be taken up to three times
per day for seven days or as needed. Id. ¶ 55. Blasius avers that Tylenol 3 is
an opioid pain medication used to treat acute, short-term moderate to severe
pain. Id. ¶ 56. She further avers that narcotics are habit-forming and studies
have shown that long-term use can be counterproductive in controlling pain.
Id. In her opinion, over-the-counter pain medications are usually more

Page 9 of 27

appropriate for treating long-term pain because they go to the site of the pain
and block the pain receptors. Id.8
On December 15, 2014, Dr. Richard Steliga, another prison physician,
ordered Tylenol 3/acetaminophen with codeine for Ards’ pain. Id. ¶ 57. The
dosage was identical to the December 8, 2014 prescription. Id. Ards received
doses of this medication on December 9–17 and December 19–21, 2014. Id.
¶ 58. On December 24, 2014, nurse Daniel Townley (“Townley”) saw Ards
in the Health Services Unit at the segregation sergeant’s request. Id. ¶ 59. At
that time, Ards complained of stabbing and aching pain and numbness in his
finger. Id. Townley noted that Ards’ range of motion was intact, there was no
redness or swelling in his finger, and that Ards’ continued complaints of pain
may have been related to attention-seeking behavior—something Ards
denies. Id.; (Plaintiff’s Declaration in Opposition to Travis Brady’s
Declaration (“Pl. Decl. Opp. Brady”), Docket #48, ¶ 23). Defendants claim
that Townley offered acetaminophen to alleviate Ards’ pain, though the
medical records supplied do not reflect such an offer. DFOF ¶ 60.9

8

Ards tried to dispute Blasius’ assertions about the long-term effects of
narcotic pain medication. See DFOF ¶ 56. His only retort, however, is that these are
conclusions for medical experts and the jury to make. Id. He cites no medical expert
report and or any other evidence contrary to her assertions and has, therefore,
failed to properly dispute them for purposes of summary judgment. See Fed. R. Civ.
P. 56(c) (requiring the non-movant to cite to particular parts of the record
demonstrating a genuine dispute of fact or to explain why the cited material does
not support the asserted fact).
9

Ards claims that Townley offered him nothing because, as Brady avers,
nurses are not allowed to prescribe over-the-counter medications. DFOF ¶ 60; Pl.
Decl. Opp. Brady ¶ 22. Defendants claim that Townley could offer but not prescribe
acetaminophen. DFOF ¶ 60. This dispute is not material to the resolution of this
motion, since Ards has not named Townley as a defendant.

Page 10 of 27

On December 26, 2014, Ards commenced a hunger strike, stating, “I
was supposed to see the bitch ass nurse.” Id. ¶ 61. On December 29, 2014,
Ards was seen by Health Services Unit nurse Amandy Moore, who ordered
200 mg strength ibuprofen to address Ards’ continuing complaints of pain.
Id. ¶ 62. On January 3, 2015, Townley saw Ards in the Health Services Unit
for his daily hunger strike assessment. Id. ¶ 63. Ards indicated to Townley
that he wanted treatment and that “treatment is the same as ending the
hunger strike.” Id. Townley determined that Ards’ nutrition and hydration
were insufficient for his body’s needs and sent him to the Wheaton
emergency room for further assessment. Id.
Later that day, Ards saw physician’s assistant Daniel Teska at
Wheaton. Id. ¶ 64. Ards was diagnosed with dehydration, an old healed
fracture of bone,10 and semi-starvation. Id. During this visit, Ards was
prescribed fifteen tablets of Tylenol 3. Id. ¶ 65. When Ards returned to Racine
on January 3, 2015, Blasius, Ards’ assigned care provider, did not order the
prescription for Tylenol 3. Id. ¶ 66. Rather than order the Tylenol 3 prescribed
at the hospital, Blasius continued Ards on 200 mg strength ibuprofen to be
taken as needed. Id. ¶ 68.
As the assigned nurse practitioner, Blasius had the final say on when
to stop or start medications and could override hospital recommendations
if she felt it was in the patient’s best interest. Id. ¶ 67. She opines that she
decided to override the hospital’s orders for two primary reasons. First,
Tylenol 3 is potentially addictive and prison staff have an interest in limiting
inmate access to narcotics. Id. ¶ 66. Second, Ards’ injury was almost a month

10

Ards contends, without elaboration or citation to evidence, that his finger
was not fully healed at this point. See DFOF ¶ 65.

Page 11 of 27

old and he already had been prescribed Tylenol 3 for more than two weeks
immediately following his injury. Id. ¶ 68. Because narcotics are not generally
used for long-term pain management, Blasius felt that over-the-counter
medication was more appropriate than Tylenol 3 to treat Ards’ chronic pain
resulting from his hand injury. Id. Blasius asserts that Ards’ pain was from
an acute fracture and that, over time, the body’s natural healing process
occurs and the pain dissipates. Id. ¶ 69.
As with Blasius’ decision to follow Dr. Birndorf’s order regarding the
sutures, here Ards takes exception to Blasius’ decision not to fill the Tylenol
3 prescription from Wheaton. He appears to claim that Blasius acted outside
the scope of her experience and medical judgment when she refused to
follow the hospital’s order. Id. ¶ 67; Pl. Decl. Opp. Brady ¶ 29. Similarly, he
argues that Blasius’ assessment of Ards’ healing progress was not within the
scope of her authority to make. See DFOF ¶ 68. Ards fails, however, to
appreciate or distinguish the nuances in Blasius’ authority as a nurse
practitioner: namely, her authority to ignore physician instructions regarding
suture removal in contrast to outside provider instructions regarding
medication prescriptions. Compare (Declaration of Lora Blasius, Docket #37,
¶ 14), with (Plaintiff’s Declaration in Opposition to Lora Blasius’ Declaration
(“Pl. Decl. Opp. Blasius”), Docket #49, ¶ 24).
On January 9, 2015, Ards was transferred from Racine to Columbia.
DFOF ¶ 71. After being transferred, Ards was seen by the Health Services
Unit at Columbia regarding his complaints of ongoing pain. Id. ¶ 72. On
January 11, 2015, Ards submitted a Health Services Request form asking
when he would be receiving the Tylenol 3 that had been prescribed at
Wheaton on January 3, 2015. Id. A prison nurse responded and told Ards that
the last order for Tylenol 3 was made on December 15, 2014, with no refills.
Page 12 of 27

Id. She further informed Ards that if he was still having pain he would need
to be evaluated by Columbia healthcare staff. Id.
On January 12, 2015, Ards submitted a medication refill request, again
asking for the Tylenol 3 that had been prescribed on January 3, 2015, by
Wheaton staff. Id. ¶ 73. Columbia Health Services Unit staff responded that
the prescription could not be refilled and a Health Service Request was
required to request an appointment. Id. Ards submitted another Health
Service Request on January 13, 2015, indicating that he was still in pain and
again referencing the Wheaton order for Tylenol 3. Id. ¶ 74.
On January 14, 2015, Columbia nurse Shelli Jarocki saw Ards for his
pain complaint and offered acetaminophen to alternate with the ibuprofen
for pain until he could be seen off-site for further evaluation. Id. ¶ 75. On
February 21, 2015, Ards submitted yet another Health Service Request asking
for “my Tylenol,” which presumably meant the January 3, 2015 prescription
for Tylenol 3. Id. ¶ 76. Columbia nurse Melissa Thorne responded that there
was no order for Tylenol 3 and that the prescription issued in January 2015
indicated no refills. Id.
Ards claims that Defendants’ failure to provide proper pain
medication slowed the healing process. PFOF ¶ 57. Ards cites medical
reports that he believes show that his finger was not fully healed until
approximately sixteen months after the December 7, 2014 incident. Id.
¶¶ 58–60. Defendants do not dispute that Ards’ finger continued to heal over
time but disagree with the assertion that lack of pain medication caused any
delay. See id. Ards further asserts that he was denied Tylenol 3 not for any
medical reason but to save costs for the institution. (Declaration of Tyrone
Ards, Docket #52, ¶ 9).

Page 13 of 27

4.

ANALYSIS
Plaintiff’s two claims are fundamentally distinct. To go to the jury with

his deliberate indifference claim, Plaintiff was required to provide credible
evidence raising disputes of fact as to the reasonableness of Defendants’
medical judgment. This he has not done, and so the claim must be dismissed.
By contrast, the excessive force claim raises triable questions of fact. The
claim ultimately rests on a credibility determination regarding Plaintiff’s and
De La Vega’s versions of the events of December 7, 2014. On summary
judgment, the Court cannot make such a determination. Likewise, because
De La Vega’s assertion of qualified immunity rests on disputed facts, which
the Court must here resolve in Ards’ favor, De La Vega cannot avail himself
of qualified immunity at this time. Accordingly, as explained further below,
the Court must grant summary judgment as to the deliberate indifference
claim and deny summary judgment as to the excessive force claim.
4.1

Deliberate Indifference

For an Eighth Amendment claim of deliberate indifference to a serious
medical need, the plaintiff must prove: (1) an objectively serious medical
condition; (2) that the defendants knew of the condition and were
deliberately indifferent in treating it; and (3) this indifference caused the
plaintiff some injury. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).11 The
deliberate indifference inquiry has two components. “The official must have
subjective knowledge of the risk to the inmate’s health, and the official also
must disregard that risk.” Id. Even if an official is aware of the risk to the
inmate’s health, “he is free from liability if he ‘responded reasonably to the

11

Defendants do not contest, for purposes of their motion, that Ards’ finger
injury was a serious medical condition. (Docket #34 at 16).

Page 14 of 27

risk, even if the harm ultimately was not averted.’” Id. (quoting Farmer v.
Brennan, 511 U.S. 825, 843 (1994)).
Negligence cannot support a claim of deliberate indifference, nor is
medical malpractice a constitutional violation. Estelle v. Gamble, 429 U.S. 97,
105–06 (1976); Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011). The question is
not whether the plaintiff believes some other course of treatment would have
been better. Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996). Instead, he must
prove that the defendant’s treatment decisions were “such a substantial
departure from accepted professional judgment, practice, or standards as to
demonstrate that the person responsible did not base the decision on such a
judgment.” Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261–62 (7th Cir.
1996). Put differently, the plaintiff must show that his medical providers
made treatment decisions “‘so dangerous’ that the deliberate nature of [their]
conduct can be inferred.” Gayton, 593 F.3d 623 (quoting Qian v. Kautz, 168
F.3d 949, 955 (7th Cir. 1999)); see also Walker v. Zunker, 30 F. App’x 625, 628
(7th Cir. 2002) (“Mere dissatisfaction with a particular course of treatment,
or even malpractice, does not amount to deliberate indifference.”).
Ards’ evidentiary presentation on his deliberate indifference claim
falls well short of raising triable questions of fact. At best, Ards offers only
his own views as to what treatment he should have received. For instance,
it is his opinion that Blasius should have followed the seven-day timeline for
suture removal indicated by the Wheaton emergency room physician and not
the fourteen-day timeline ordered by Dr. Birndorf. Yet Ards points to no
record evidence, whether in the form of prison policy or medical expert
opinion, showing that Blasius was not authorized to follow Dr. Birndorf’s
opinion over that of the emergency room physician. See Petties v. Carter, No.
14–2674, 2016 WL 4631679, at *4 (7th Cir. banc Aug. 23, 2016) (observing that
Page 15 of 27

failure to follow protocols may support finding of deliberate indifference)
(citing Mata v. Saiz, 427 F.3d 745, 757 (10th Cir. 2005)). Nor does he offer any
evidence, beyond his own assessment of the circumstances, that Blasius’
treatment decision was such a reckless departure from accepted medical
standards as to show deliberate indifference to his medical needs. Estate of
Cole, 94 F.3d at 261–62. Indeed, Ards does not provide evidence of what the
appropriate medical standards are, much less how Blasius violated them.
This is not a case where a prison physician ignored the opinion of a
specialist regarding a serious medical need. See Gil v. Reed, 381 F.3d 649,
663–64 (7th Cir. 2004). The opposite is true, for Blasius determined that she
should follow the instructions of Dr. Birndorf, an orthopedic hand surgeon,
over those of the emergency room physician. There is no indication that her
deference to Dr. Birndorf that was “blind or unthinking” or that following
Dr. Birndorf’s order was likely to harm Ards in some way. Berry v. Peterman,
604 F.3d 435, 443 (7th Cir. 2010). Additionally, the record reveals that
Defendants responded quickly to Ards’ complaint of infection and even sent
him back to the hospital for evaluation of that complaint. That complaint, of
course, eventually came to nothing, since the hospital staff found no sign of
infection in Ards’ finger.
Furthermore, “while it is true that a delay in necessary treatment can
establish deliberate indifference, ‘verifying medical evidence’ must exist to
show how the delay adversely affected a patient’s condition.” Reynolds, 84 F.
App’x at 674 (quoting Langston v. Peters, 100 F.3d 1235, 1240–41 (7th Cir.
1996)); Williams v. Liefer, 491 F.3d 710, 715 (7th Cir. 2007) (finding that the
plaintiff must show that the delay in treatment exacerbated his existing
injury or otherwise harmed him). The record shows that Ards’ wound was
not infected during the period the sutures were in place or on the day they
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were removed. Ards fails to show that he suffered some concrete harm from
the delay in suture removal. Rather, the evidence, viewed in Ards’ favor,
demonstrates that, at worst, his finger healed somewhat slowly. His personal
belief that his finger became infected and changed colors does not carry his
burden on this claim, and so it must be dismissed. See, e.g., Davis v. Samalio,
286 F. App’x 325, 328 (7th Cir. 2008) (affirming grant of summary judgment
where prisoner proffered no competent medical evidence supporting his
claim that an eight-day delay in treatment had a detrimental effect).
The same goes for his claim regarding Defendants’ failure to provide
him narcotic pain medication. Plaintiff believes that he should have received
Tylenol 3 in late December 2014 , after his prescription from Dr. Steliga ran
out. He also contends that he was inappropriately denied the Tylenol 3
prescribed for him at Wheaton in January 2015. In neither instance has
Plaintiff produced colorable evidence showing what the standard of care was
for prescribing him pain medication, how that standard was violated, or how
that violation meets the high bar required to show that Defendants acted
with deliberate indifference to his need for medication. Again, he offers no
more than his own views on the matter, though he himself admits that he is
not a doctor and cannot offer expert opinion on the appropriate standards
Defendants should have followed. See DFOF ¶ 21.12

12

In fact, much of the evidence relating to Ards’ requests for pain medication
involves healthcare providers at Columbia, not Racine. Whether or not those
persons impermissibly refused his repeated demands for Tylenol 3, they are not
defendants here and there is no theory under which Blasius and Brady could be
responsible for their conduct. See Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.
1995) (officials are liable for another’s constitutional violation only where they
know of it, condone it, approve it, facilitate it, or turn a blind eye toward it).

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This case is much like Fitzgerald v. Greer, 324 F. App’x 510, 514–15 (7th
Cir. 2009), where the Seventh Circuit found that denial of narcotic pain
medication did not rise to the level of deliberate indifference. The plaintiff in
Fitzgerald claimed that he should have been prescribed methadone but was
only given ibuprofen. Id. The Court of Appeals concluded that the doctors’
decision was grounded in medical judgment—namely, that the plaintiff had
no objective indications of pain and had a penchant for exaggerating his pain.
Id. at 515. The court declined to second-guess the doctors’ treatment decision,
observing that “[w]e must give deference to a doctor’s treatment decisions
unless ‘no minimally competent professional would have so responded
under those circumstances.’” Id. (quoting Sain v. Wood, 512 F.3d 886, 894–95
(7th Cir. 2008)).
Here, as in Fitzgerald, the Court cannot disturb Defendants’ decision
not to give Ards Tylenol 3. As Blasius explained in her affidavit, she relied
on several objective factors in concluding that such a prescription was
inappropriate, including the general need to limit inmate access to narcotics,
the potentially addictive nature of narcotic pain medications, the age of Ards’
injury, and the limited usefulness of narcotics as opposed to over-the-counter
medications in treating long-term pain. Like the Seventh Circuit, this Court
cannot second-guess Blasius’ treatment decisions absent evidence that no
other minimally competent medical professional would have done the same.
Ards argues that Blasius was influenced by the cost of Tylenol 3 versus overthe-counter painkillers, but this alone does not support a deliberate
indifference claim absent a showing that she knew the less expensive
treatment method would be ineffective. See Johnson v. Doughty, 433 F.3d 1001,
1013 (7th Cir. 2006). Since Ards has provided no evidence coming close to
that mark, the Court cannot allow this claim to proceed to the jury.
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Ards’ bare reliance on his own judgment about his medical care is
inadequate to withstand summary judgment on his deliberate indifference
claim. See Snipes, 95 F.3d at 591; Reynolds v. Barnes, 84 F. App’x 672, 674 (7th
Cir. 2003) (“[T]he Constitution does not mandate that a prisoner receive
exactly the medical treatment he desires.”). Accordingly, summary judgment
is appropriate on this claim.
4.2

Excessive Force

The Eighth Amendment prohibits the “unnecessary and wanton
infliction of pain” on prisoners. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir.
2001). When an official is accused of using excessive force, the core inquiry
is “whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” Hudson v.
McMillian, 503 U.S. 1, 7 (1992); Santiago v. Walls, 599 F.3d 749, 757 (7th Cir.
2010). Several factors are relevant to this determination, including the need
for force, the amount applied, the threat an officer reasonably perceived, the
effort made to temper the severity of the force used, and the extent of the
injury caused to the prisoner. Hudson, 503 U.S. at 7; Fillmore v. Page, 358 F.3d
496, 504 (7th Cir. 2004). Generally, a de minimis use of force cannot support
a constitutional claim. Hudson, 503 U.S. at 2. However, Defendants concede,
for purposes of summary judgment, that Ards’ injury was severe and that,
as a result, De La Vega’s use of force should not be considered de minimis.
(Docket #34 at 12).
The Seventh Circuit has, on several occasions, addressed claims of
excessive force where a correctional officer closes a cell trap door on an
inmate, causing him injury. Those precedents demonstrate that summary
judgment is inappropriate in this case. For instance, in Sallie v. Thiel, 23 F.
App’x 586, 587 (7th Cir. 2001), the inmate stuck his arm through his cell trap
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door and refused to retract it back into his cell. Correctional officers sprayed
him with pepper spray and then one of them pushed on the trap door,
severing the tip of the inmate’s finger in the process. Id. The Court of Appeals
overturned a grant of summary judgment to the officers, finding that a
reasonable jury could conclude that the officer who pushed the door shut did
so maliciously. Id. at 589. The court observed that, while “valid security
reasons exist for keeping the feed slot doors in the segregation unit of a
prison closed whenever possible,” there appeared to be no urgent need to
close the door at the time of the incident. Id. More importantly, the Seventh
Circuit found that,
[the officer’s] awareness and intent when he shut the feed
slot door is a material question of fact. If [the officer] closed
the feed slot door knowing that [the inmate’s] finger was
caught in the hinges and intending to injure him, then [the
officer] “maliciously and sadistically” caused [the inmate]
harm. Because of the difficulty of proving a subjective state
of mind, cases involving motivation and intent are often
inappropriate for summary judgment. See Alexander v. Wis.
Dep’t of Health and Family Servs., 263 F.3d 673, 681 (7th Cir.
2001). The record offers conflicting evidence concerning [the
officer’s] awareness and intent. The district court credited [the
officer’s] account of events over [the inmate’s] and concluded
that [the officer] had severed [the inmate’s] finger accidentally.
At the summary judgment stage, however, the record should
have been reviewed in the light most favorable to [the inmate],
and all inferences should have been drawn in his favor. Frost,
241 F.3d at 867–68. [The inmate] claimed that he cried out
before [the officer] completely shut the door and severed his
finger. In addition, in his response to interrogatories, [the
officer] stated that he heard [the inmate] cry out while he was
closing the door. [The inmate] also filed two affidavits from
fellow prisoners who stated that [he] had cried out while [the
officer] was closing the door. One could therefore infer that
[the officer] knew that [the inmate’s] finger was caught in the

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door and that he intentionally and maliciously harmed [the
inmate]. Summary judgment was therefore inappropriate.
Id.
The analysis here is indistinguishable from that in Sallie. First,
although De La Vega claims that he needed to apply force to prevent further
assault from Ards, (Docket #34 at 12–14), Ards avers that he never grabbed
De La Vega or exclaimed profanities at him. In the present posture, the Court
must credit Ards’ account of events, and that account undermines De La
Vega’s claimed need for the use of force. Moreover, Ards’ version of the
encounter calls into question the amount of force De La Vega applied and his
efforts to temper the force he used. See Hill v. Shelander, 992 F.2d 714, 717
(7th Cir. 1993) (“If the fact-finder were to accept [plaintiff’s] story, then
[defendant] arguably acted without justification because there would have
been no need for [defendant] to physically assault [plaintiff] in order to
maintain or restore discipline in the cell.”). In fact, similar to the partial
amputation in Sallie, here De La Vega lacerated Ards’ hand and broke his
index finger, injuries which required emergency-room surgery and lengthy
follow-up treatment.
Recognizing the severity of Ards’ injury and the questions
surrounding the events leading up to it, Defendants attack the contention
that De La Vega acted “maliciously and sadistically” when he kicked Ards’
trap door shut on his finger. Id. at 15–16. Ards says De La Vega did act
maliciously, claiming that De La Vega knew that Ards’ hand was in the path
of the closing trap door. Ards reasons that since he never retracted his hand
from the opening and De La Vega never bladed himself as to the door, De La
Vega had an unimpeded view of the location of Ards’ hand. De La Vega
disagrees, arguing that he acted in response to Ards’ unprovoked attack and
Page 21 of 27

that he did not see Ards’ hand in the trap door until it was too late. For
purposes of this motion, the Court cannot decide whose story is to be
believed; as the Seventh Circuit instructed in Sallie, questions of the officer’s
intent and awareness in cases like this one are reserved for the jury at trial.
Construing these conflicting accounts in Ards’ favor permits the inference
that De La Vega purposefully and maliciously kicked the trap door shut with
Ards’ hand in the way.
The Seventh Circuit’s decision in Outlaw does not suggest a different
result. There, the undisputed evidence showed that the officer slammed the
inmate’s hand in his cell trap door after the inmate extended his hand
through the door while holding trash and exclaiming, “take this garbage,
you bitch.” Outlaw, 259 F.3d at 834–36. The inmate suffered only minor
injuries. Id. The Seventh Circuit affirmed summary judgment in the officer’s
favor, finding that, because the inmate did not dispute that he had
been insubordinate and threatening to the officer, there existed sufficient
justification for the use of force. Id. at 838–39. Moreover, the court compared
the need for force to the inmate’s relatively minor injuries and concluded that
the force applied was not excessive. Id. at 839. Thus, said the Court of
Appeals, the most that could be said is that the officer “deliberately and
perhaps unnecessarily applied a relatively minor amount of force to achieve
a legitimate security objective.” Id.; see also White v. Matti, 58 F. App’x 636, 638
(7th Cir. 2002) (rejecting excessive force claim where it was undisputed that
the inmate reached through his trap door in violation of prison rules and
suffered only minor injuries).
Two important facts distinguish this case from Outlaw. First,
Defendants do not contest that, unlike the minor injuries in Outlaw, here
Ards suffered severe injuries to his hand and finger. Second, Ards has
Page 22 of 27

adequately contested the facts underlying De La Vega’s version of their
encounter. Thus, in contrast to Outlaw, where the plaintiff had admitted that
he was insubordinate and threatening, here Ards’ sworn statements indicate
that he did nothing to provoke De La Vega. There is no other evidence, such
as a video recording or statements of witnesses, regarding the events of
December 7, 2014, beyond the averments of the two participants. Because
their testimony differs in critical respects, the question of what really
happened that evening must be posed to the jury and not prejudged by the
Court. Further, despite the findings of two other prison officials that De La
Vega did not use excessive force against Ards, the Court cannot grant
summary judgment by counting which side has produced more affidavits in
support of its position. Waldridge, 24 F.3d at 921. Absent evidence that Ards’
version of events is fabricated or unreliable, the Court cannot discredit it at
this stage.13 Defendants’ motion for summary judgment on this claim will,
therefore, be denied.
4.3

Qualified Immunity

In addition to attacking Ards’ claims directly, Defendants raise the
defense of qualified immunity. That doctrine protects government officials
from civil liability when they perform discretionary functions “insofar as

13

The district court decisions Defendants cite which follow Outlaw are
distinguishable on similar grounds—namely, that the inmate suffered only minor
injuries and there was undisputed evidence justifying the correctional officer’s use
of force. See, e.g., Butler v. Meyers, No. 10–CV–653, 2012 WL 996604, at *5–7 (E.D.
Wis. Mar. 23, 2012) (inmate pepper sprayed after he refused numerous orders, was
verbally threatening, and guards had attempted negotiations); Jordan v. Anderson,
No. 09–1242, 2011 WL 2516928, at *3 (C.D. Ill. June 24, 2011) (officer caused minor
injuries to inmate’s arm while pushing back into cell through trap door after inmate
refused to retract it); Whitmore v. Alpert, No. 08–cv–420–JPG–PMF, 2011 WL
1481956, at *1 (S.D. Ill. Apr. 19, 2011) (same); Flanigan v. Wallace, No. 09-cv-1179,
2010 WL 5071574, at *4 (C.D. Ill. Dec. 8, 2010) (same).

Page 23 of 27

their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). “Qualified immunity balances two important
interests—the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.” Pearson
v. Callahan, 555 U.S. 223, 231 (2009).
To defeat an assertion of qualified immunity, the plaintiff must first
proffer facts which, if believed, amount to an actual violation of his
constitutional rights. Saucier v. Katz, 533 U.S. 194, 201 (2001); Easterling v.
Pollard, 528 F. App’x 623, 656 (7th Cir. 2013). Next, the plaintiff must show
that the violation of his constitutional rights was “clearly established under
applicable law at the time and under the circumstances that the defendant
official acted.” Easterling, 528 F. App’x at 656 (citing Pearson, 555 U.S. at 232).
A right is clearly established when its contours are “sufficiently clear that
every reasonable official would have understood that what he is doing
violates that right.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (internal
quotation marks and alterations omitted). Courts should “not require a case
directly on point, but existing precedent must have placed the statutory or
constitutional question beyond debate.” Ashcroft v. al–Kidd, 563 U.S. 731, 741
(2011). “Put simply, qualified immunity protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Mullenix v. Luna, 136
S. Ct. 305, 308 (2015) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
The Supreme Court recently emphasized that courts must not “‘define
clearly established law at a high level of generality.’” Id. (quoting al–Kidd, 563
U.S. at 742. It would not do, for example, to deprive a correctional officer of
immunity merely because the Eighth Amendment broadly proscribes “cruel
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and unusual punishment,” or even more specifically, prohibits excessive
force in the context of inmate discipline. See id. at 309 (faulting overbroad
descriptions of Fourth Amendment rights such as “warrantless searches
not supported by probable cause and exigent circumstances violate the
Fourth Amendment”). The inquiry should be focused on particular conduct
undertaken in particular situations. Id.
The Court finds De La Vega’s assertion of qualified immunity
unavailing.14 Defendants argue that no case exists “that would give notice
that the Eighth Amendment prohibits Department of Corrections officials
from closing a trap door to restore order and security based on a threat that
the official perceives.” (Docket #34 at 26). This assertion is flawed on two
levels. Initially, it wrongly assumes that the Court will accept De La Vega’s
version of events—that is, that Ards assaulted him and he therefore had
legitimate security concerns for using force to close the trap door. The Court
must construe the evidence in Ards’ favor at this stage. Mordi v. Ziegler, 770
F.3d 1161, 1164 (7th Cir. 2014) (“The court cannot resolve disputed issues of
fact when it addresses [whether a constitutional violation occurred] because
the ordinary rules governing summary judgment apply in that situation.”).
As explained in the preceding section, the record, viewed in the light most
favorable to Ards, could lead a reasonable jury to conclude that De La Vega
used unconstitutionally excessive force during the December 7, 2014
encounter. See Buchanan v. City of Milwaukee, 290 F. Supp. 2d 954, 962 (E.D.
Wis. 2003). Thus, Ards has developed evidence which, if believed, would
amount to a violation of his constitutional rights.

14

Because the Court grants summary judgment to Defendants Blasius and
Brady on other grounds, it does not decide whether they would, in the alternative,
enjoy qualified immunity from Ards’ claims.

Page 25 of 27

Second, the Court finds that Ards’ constitutional right was clearly
established at the time of De La Vega’s conduct. In keeping with the most
recent authority from the Supreme Court, this Court will define the relevant
constitutional right narrowly, tailoring it to the context of this case. See
Mullenix, 136 S. Ct. at 308. Employing that approach, the question is whether
any reasonable official would have known that kicking a cell trap door shut
with an inmate’s hand in the way, without provocation and causing severe
injury, violated the inmate’s constitutional rights.
The Court answers that question in the affirmative. In the preceding
section, the Court discussed a line of cases in this Circuit addressing claims
of excessive force arising from incidents involving cell trap doors. One such
case, Sallie, is particularly apposite here. Sallie explains that where an officer
knowingly closes a cell trap door on an inmate’s hand without a valid reason,
causing severe injury, he will be liable for using unconstitutionally excessive
force. Sallie, 23 F. App’x at 589. Even Outlaw, in which the Seventh Circuit
ruled in the officer’s favor, demonstrates what sort of factors need to be
present to avoid liability—e.g., a good reason to use force, such as threats or
insubordination, and an amount of force tailored to those needs. Outlaw, 259
F.3d at 838–39. Given this controlling precedent, it was “beyond debate” at
the time De La Vega acted that his conduct violated Ards’ Eighth
Amendment right to be free from cruel and unusual punishment. Werner v.
Wall, No. 14-1746, 2016 WL 4555610, at *7 (7th Cir. Sept. 1, 2016).
Resolving the disputed facts in Ards’ favor, as the Court must do here,
De La Vega is not entitled to summary judgment on his qualified immunity
defense. See Hernandez v. Cook Cnty. Sheriff’s Office, 634 F.3d 906, 916 & n.13
(7th Cir. 2011). After the jury determines the facts underlying this defense, he
may revisit it.
Page 26 of 27

5.

CONCLUSION
Ards has demonstrated that genuine disputes of material fact exist

with respect to his excessive force claim against De La Vega. He has not done
as much for his deliberate indifference claim. Additionally, De La Vega is not
entitled to qualified immunity at this time. Defendants’ motion for summary
judgment must, therefore, be denied as to the excessive force claim and
granted as to the deliberate indifference claim.
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #33) be and the same is hereby GRANTED in part and DENIED in
part;
IT IS FURTHER ORDERED that Plaintiff’s deliberate indifference
claim against Defendants Travis Brady and Lora Blasius be and the same is
hereby DISMISSED with prejudice; and
IT IS FURTHER ORDERED that Plaintiff’s motion for extension of
time to file his response to Defendants’ motion for summary judgment be
and the same is hereby DENIED as moot.
Dated at Milwaukee, Wisconsin, this 16th day of November, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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