Patterson v. Hepp et al

Filing 85

ORDER signed by Judge J.P. Stadtmueller on 7/31/2017: GRANTING 54 Defendants' Motion for Summary Judgment; DENYING 81 Plaintiff's Motion to Appoint Counsel; GRANTING 84 Defendants' Motion to Strike Plaintiff's Sur-Reply in Opposition to Motion for Summary Judgment; DISMISSING Defendants John and Jane Does 1-10 from action; and DISMISSING action with prejudice. (cc: all counsel, via mail to Shannon Patterson at Fox Lake Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHANNON PATTERSON,
Plaintiff,

v.

Case No. 16-CV-942-JPS

RANDALL HEPP, CHARLES LARSON,
RICHARD STELIGA, ROBERT FRANK,
HOLLY MEIER, JOHN MAGGIONCALDA,
PAULA STELSEL, and JOHN and JANE
DOES 1–10,

ORDER

Defendants.
Plaintiff Shannon Patterson (“Patterson”), a prisoner, brings this
action pursuant to 42 U.S.C. § 1983 against Defendants, prison officials at
Fox Lake Correctional Institution (“FLCI”), arising from Patterson’s slip
and fall on a loose floor tile in the prison and his ensuing medical care.
Patterson makes constitutional and state-law claims related to Defendants’
alleged misconduct. Defendants filed a motion for summary judgment as
to all of Patterson’s claims on May 3, 2017. (Docket #54). The motion is fully
briefed and, for the reasons stated below, it will be granted.1

Nearly a month after the briefing period closed on Defendants’ motion, see
Civ. L. R. 56(b), Patterson filed a third motion for appointment of counsel and what
appears to be a sur-reply in opposition to Defendants’ motion. (Docket #81, #83).
First, the sur-reply will be stricken from the record, pursuant to Defendants’
request, as sur-replies are not permitted as a matter of course (and are indeed
disfavored) and Patterson offers no reason why one is necessary in this case. See
Schmidt v. Eagle Waste & Recycling, Inc., 599 F.3d 626, 631 n.2 (7th Cir. 2010)
(observing that granting leave to file a sur-reply is within the district court’s
discretion); Groshek v. Time Warner Cable, Inc., Case No. 15–C–157, 2016 WL
4203506, at *4 (E.D. Wis. Aug. 9, 2016) (noting that sur-replies are permitted “only
rarely; the local rules provide for a motion, a response and a reply, and in the vast
1

1.

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

majority of cases, this is sufficient”); C&F Packing Co., Inc. v. IBP, Inc., 916 F. Supp.
735, 741 (N.D. Ill. 1995) (rejecting a sur-reply as the non-movant’s “attempt to get
in the ‘last word’” on the motion).
The Court will also deny Patterson’s request for appointment of counsel.
Patterson has requested the appointment of counsel twice before, and each time
he failed to present evidence supporting the request. See (Docket #45, #52). He then
responded to Defendants’ motion for summary judgment without the aid of
counsel. An eleventh-hour suggestion that counsel would have crafted a better
response will not be tolerated as a method to avoid summary disposition of his
claims. This is especially true here, where Patterson presents no new evidence
supporting his belief that he is actually unable to litigate his claims on his own.
Instead, he offers mere uncorroborated suggestions that Defendants have
employed tactics “to obstruct this litigation,” have failed to respond to discovery
requests, or have lied in their declarations. See (Docket #81 at 1–2).

Page 2 of 40

demonstrating that there is a pending dispute of material fact.” Waldridge
v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).
2.

RELEVANT FACTS
Patterson is an inmate at FLCI. He claims that on January 25, 2015,

he slipped on a loose, raised piece of a floor tile just outside his cell. He
purportedly injured his neck, leg, and back in the fall and aggravated
several preexisting conditions stemming from a car accident he was in prior
to his incarceration. He brought this suit against FLCI’s warden, Randall
Hepp (“Hepp”) and the prison Building and Grounds Superintendent, John
Maggioncalda (“Maggioncalda”). Also joined as defendants are Dr. Charles
Larson (“Larson”), a physician working in the FLCI Health Services Unit
(“HSU”), Robert Frank (“Frank”), an HSU nurse practitioner, Holly Meier
(“Meier”), the HSU Health Services Manager, Paula Stelsel (“Stelsel”), a
Dialysis Nursing Supervisor in the HSU and sometime-Health Services
Manager, and Dr. Richard Steliga (“Steliga”), another HSU physician.
2.1

Patterson’s Fall

Prior to Patterson filing the instant suit, Hepp and Maggioncalda
were aware of numerous locations around FLCI where floor tiles were loose
or missing. This circumstance had been occurring since before Hepp
assumed his position as warden in early 2014, and he knew about it since
his appointment. However, Maggioncalda had never witnessed an instance
where a floor tile was “sticking up,” as Patterson has alleged. In his
experience, the floor tiles are likely to crack if they are bent, rather than stick
upward from the floor. If staff found a loose floor tile, it would be removed,

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leaving the smooth concrete subfloor exposed.2 The concrete floor provided
similar traction to the floor tiles and the height difference between the two
was at most one eighth of an inch. In everyday life, walkers must often
negotiate walking surfaces with greater height disparities. Defendants note
that large-scale replacement of the floor tiles would require a significant
outlay, and neither could unilaterally approve such a project.
Although they knew about instances of missing or loose floor tiles,
Hepp and Maggioncalda aver that no inmates or institution staff ever
notified them of a dangerous condition created by the floor tiles. Patterson
accuses Defendants of lying about this, see (Docket #79 ¶ 18–19), but he
proffers insufficient evidence to support such a conclusion. Prior to his fall,
Patterson never himself complained to either Hepp or Maggioncalda that
loose floor tiles outside his own cell created a safety concern. Further,
although Patterson fell in January 2015, he cites his and another inmates’
complaints about the floor tiles from years later, claiming these put
Defendants on notice of the problem. These complaints would, of course,
have no relevance to Defendants’ knowledge at the time of Patterson’s

Throughout his submissions on summary judgment, Patterson tries to
raise disputes of fact as to whether Defendants’ practice of removing floor tiles in
this fashion exposed inmates to harmful asbestos. See, e.g., (Docket #79 ¶ 12);
(Docket #67 at 3). Patterson never raised such a claim in his complaint, he was not
permitted to proceed on the claim, and he made no attempt to allege the claim
prior to his summary judgment briefing. See (Docket #1, #9). The Court will not
entertain his eleventh-hour attempt to redefine the scope of this litigation.
Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996) (“A plaintiff may not
amend his complaint through arguments in his brief in opposition to a motion for
summary judgment.”). Nor would such a claim have any merit, as Patterson
proffers nothing beyond his own lay opinion that he was exposed to asbestos and
that such exposure harmed him. Accordingly, all disputes and argument relating
to asbestos exposure will be disregarded.
2

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injury. At most, Patterson appears to question Defendants’ credibility, but
the Court cannot do so at this stage. Berry, 618 F.3d at 691.
Additionally, while Patterson says that Hepp knew about the
severity of the floor-tile problem because he directed a “study” of it to be
conducted, Defendants point out that the study occurred after Patterson’s
fall, not before. (Docket #78 at 68–69). Indeed, the “study” was conducted
only after Patterson filed an inmate grievance relating to his fall. See (Docket
#69-1 at 10). Likewise, Patterson relies heavily on another grievance he filed
after his fall in which the complaint examiner notes in passing that the floor
tiles were “causing a safety issue if stepped on.” Id. at 25.
Finally, Patterson purports to show that Defendants had a special
duty to fix the floor tile problem around his cell, both because of his preincarceration car accident which left him with numerous chronic injuries,
and also because he was housed in a “medical unit.” Certainly, it is
undeniable that Patterson was injured by the car accident, but he has no
evidence showing that Hepp and Maggioncalda knew of this. Further, he
cites only the testimony of himself and other inmates who believed that
their unit was a “medical” unit for housing injured inmates. See (Docket
#69, #71, #72, #74). The formal designation and use of a particular prison
unit is not something with the inmates’ personal knowledge, and the Court
therefore cannot consider it. Fed. R. Civ. P. 56(c)(4); Cooper–Schut v. Visteon
Auto. Sys., 361 F.3d 421, 429 (7th Cir. 2004).
Patterson notes that a year and a half after his fall, in June 2016, he
observed inmates tearing up floor tiles and replacing them with new ones

Page 5 of 40

in the unit where he fell.3 He further reports that he heard about another
inmate at the prison who had fallen on the same floor tiles prior to their
repair. This inmate had not filed a grievance about the fall.
2.2

Patterson’s Medical Care

The remainder of the relevant facts concern Patterson’s post-injury
care. This Part is lengthy because his allegations of medical mistreatment
span more than two years.
After he fell on January 25, 2015, Patterson was seen by an HSU
nurse, who instructed that Patterson be taken to Waupun Memorial
Hospital for a medical evaluation. Patterson noted a history of orthopedic
surgeries, including rods in his left tibia and fibula, and he had a history of
chronic leg pain. On examination, medical personnel discovered preexisting, non-healing fractures in his lower left leg, with no new definitive
fractures noted. He was diagnosed with a contusion/strain to his left leg.
He was prescribed ibuprofen and sent back to the prison.4
Patterson had a follow-up appointment in the HSU on January 26,
2015 regarding his fall. He reported tingling in his buttock, a stiff back, and

Patterson says that he heard from some inmates that the tiles were being
replaced because of the lawsuit Patterson had filed. See (Docket #78 at 42); (Docket
#70). This is inadmissible hearsay which the Court cannot consider in resolving
Defendants’ motion. Logan v. Caterpillar, Inc., 246 F.3d 912, 925 (7th Cir. 2001).
3

Patterson complains that the doctors did not give him a “thorough
examination,” (Docket #78 at 5), but he does not explain what additional
diagnostics or treatments he believes were appropriate. The Court gathers that
Patterson believes they did not give enough attention to his back injury and
therefore prescribed him crutches, which he says he could not use because of the
back injury, and ibuprofen, which he could not take because it would hinder the
regrowth of his broken bones. In any event, the Waupun doctors are not
defendants in this case, and their treatment decisions do not matter.
4

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a sore neck. The nurse found that these were acute injuries that would likely
fade with time. Patterson was provided ibuprofen and scheduled for
another follow-up visit on January 27. Patterson, unhappy with the delay,
had his mother call Meier to complain.
At his January 27 appointment, Meier discovered bruising and
swelling on Patterson’s left shin. He was ordered to continue with
ibuprofen and use rest and ice. The nurse then referred Patterson to an HSU
physician for further evaluation. Patterson claims that Meier did not do a
sufficiently thorough check-up, arguing that she failed to see whether his
pre-existing conditions from the car accident were aggravated by the fall.
Dr. Larson saw Patterson later that day. Larson reviewed the
emergency room records from January 25 as part of his examination. Larson
claims that during his visit with Patterson, Patterson was evasive,
inconsistent in his descriptions of when and how he was injured, and
exaggerated his injuries. He was also generally non-compliant during the
physical examination. Larson noted that Patterson showed no signs of acute
distress or pain other than a reluctance to bear weight on his left leg. In light
of the exam results, the available records, Patterson’s history of substance
abuse, and Larson’s perception that Patterson was interested only in
obtaining narcotic pain medications, Larson decided to continue Patterson
on the existing course of non-narcotic pain treatment. Larson avers that
Patterson mocked him throughout the exam, apparently confident that he
could file inmate grievances or lawsuits in order to obtain the narcotics he
desired.
Patterson disagrees with Larson’s allegations, claiming that Larson
performed only a cursory exam, laughed at his injuries, ignored his concern
about taking ibuprofen given his prior bone fractures, and seemed annoyed
Page 7 of 40

that Patterson’s mother had called the institution to complain. Patterson
states that he should have been more thoroughly examined and that his
pain warranted treatment with narcotics. He claims that he has never had
prescription painkiller dependency issues, although he does not dispute
that the medical record shows a history of substance abuse more generally.
He also accuses Larson of fabricating his findings about Patterson, his
history, and his behavior, in order to cover up his failure to provide
adequate medical treatment and to avoid a lawsuit brought by Patterson’s
mother. Surprisingly, however, Patterson does not dispute that (1) he was
a poor candidate for opioid pain treatments and (2) his pain was being
adequately managed with non-narcotic pain medications and other
treatments such as ice, elevation, and physical therapy. See (Docket #79 ¶¶
44–45, 50).5
After this appointment, Patterson’s mother called the prison again,
complaining that her son was not receiving adequate treatment. Meier took
the call and informed Patterson’s mother that Patterson was receiving
medical care from Larson, who indicated that Patterson was exhibiting
drug-seeking behavior. Meier told Patterson’s mother that if he was
unhappy with his care, he could file an inmate grievance.
On February 8 2015, Meier received a health services request from
Patterson. He claimed that he was still in pain from his fall, that Larson had
refused to treat him, and that he wanted to see a different doctor. In

Patterson makes much of his later request to correct his medical record
and remove Larson’s purported falsehoods and the fact that this request was
allegedly ignored. See (Docket #78 at 16). Because Patterson cannot avoid summary
judgment by questioning Larson’s veracity, Berry, 618 F.3d at 691, it is even less
tenable to raise allegations against unnamed prison officials for ignoring his
request to alter his medical record.
5

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response, Meier scheduled Patterson for evaluation by Dr. Steliga on
February 20, 2015. After this time, Meier never received another complaint
from Patterson or his mother about his medical care. Patterson was seen
again in the HSU on February 10, with complaints of pain and seeking
something to abate it. What precisely happened at this appointment is not
explained by the parties.
Before his appointment with Steliga, Patterson was seen by Dr. Lang,
an outside orthopedic surgeon. Lang agreed with Larson’s decision not to
prescribe Patterson narcotic painkillers, and he did not change Larson’s
treatment plan. Lang noted that Patterson had a left tibial nonunion
requiring a “revision nailing procedure,” and suggested that Patterson use
a wheelchair until the pain in his left leg subsided.
Patterson was seen by Steliga on February 20, 2015. Patterson again
complained of chronic back, neck, and shoulder pain. Steliga, like Larson,
noted that Patterson had a tibia fibula fracture, was taking Tylenol and
gabapentin for pain, and was a poor candidate for narcotic pain relievers
due to his history of substance abuse. Steliga diagnosed Patterson with
chronic pain syndrome secondary to multiple fractures. Steliga opines that
such a condition is treated with pain management methods including
medication, physical therapy, and psychological care. Steliga instructed
Patterson to continue taking his medications and scheduled him for a
follow-up appointment at the University of Wisconsin Hospitals and
Clinics.
Again, Patterson counters all this by accusing Steliga of lying,
denying his history of substance abuse, and claiming that all of the doctor’s
decisions and notations were part of a cover-up for his inadequate medical
care. He also claims that physical therapy did not relieve his pain.
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On March 12, 2015, Patterson raised for the first time, in a note to the
HSU, that gabapentin was causing undesirable side effects and was not
alleviating his pain. Steliga saw Patterson again on April 1, and at this
appointment Patterson complained of dizziness and confusion. Steliga
reviewed Patterson’s most recent x-ray, from February 27, 2015, which
showed old fractures, a normal cervical spine, and degenerative joint
disease. In response to Patterson’s complaint about the side effects of
gabapentin, Steliga reduced the dosage and also prescribed amitriptyline, a
psychotropic anti-depressant. Steliga did not make any other changes to the
course of treatment, since Patterson was scheduled to be seen again by Lang
a week later, the reduction in the gabapentin dose addressed Patterson’s
concern about side effects, and the x-ray did not reveal a need for any
urgent additional treatment.
Patterson’s next appointment was with Lang on April 8, 2015. Lang
again noted that Patterson had a tibial nonunion, and recommended a
surgical repair of the condition. He completed an order report on April 16,
2015 regarding that surgery. On May 13, Steliga added a prescription for
acetaminophen to Patterson’s pain treatment after Patterson reported that
he fell and hit his head in his cell. On June 13, Patterson wrote to the HSU
complaining of neck and back pain, as well as problems with speech,
memory, and clarity. He was put on the list to see an HSU doctor.
Patterson saw Steliga one final time on June 24, 2015. Patterson
complained during this appointment that he had a piece of glass lodged in
his forearm. He did not complain of any other issues or pain. Steliga
ordered an x-ray to determine whether there was something in Patterson’s
arm.

Page 10 of 40

On July 7, 2015, Patterson had a follow-up appointment with Larson
to check on his left leg. Larson noted that Patterson declined an examination
but did cooperate in an interview. Patterson, unsurprisingly, says that
Larson’s statements are false. After learning the details of Patterson’s care
since their last appointment, Larson determined that Patterson’s current
restrictions—including assignment to a lower bunk, crutches, wheelchair
use for long distances, and canteen delivery, among others—were sufficient
and should be maintained indefinitely.
Next, on July 24, 2015, nurse Stelsel received two voicemail messages
from Patterson’s mother regarding Patterson’s need for orthopedic surgery.
Stelsel instructed Patterson’s mother that the HSU was waiting for
cardiology to send dictation before the surgery could go forward.
Patterson’s mother stated that she would call again for an update. On July
28, Stelsel called the orthopedic office regarding scheduling Patterson’s
surgery. Stelsel left a message requesting that they call back because the
calendar for outside medical appointment are set by the medical providers,
not by the HSU.
Patterson was admitted to a University of Wisconsin hospital on
September 8, 2015 for surgical repair of his tibial nonunion, which Dr. Lang
performed. He was discharged on September 10 with instructions on
cleaning the wound. He was also instructed to schedule a follow-up
appointment.
On September 17, 2015, Stelsel returned a call to Patterson’s mother
to update her regarding Patterson’s pain medication. She informed
Patterson’s mother that Patterson had a new order for Norco, the brand
name for a hydrocodone-acetaminophen painkiller, and that Patterson had
been scheduled for a follow-up evaluation. An exam by Dr. Lang on
Page 11 of 40

September 22 revealed that Patterson’s knee motion was excellent and that
his sutures had been successfully removed. Dr. Lang recommended that
Patterson could bear weigh on his left leg while in a walking boot and that
the boot could be removed when resting. He further recommended that
Patterson should order impact-resistant footwear, that he could return to
showering and getting the incision wet, and that he would have a followup appointment with x-rays in four weeks.
Based on Dr. Lang’s recommendation for impact-resistant footwear,
Dr. Larson initially approved an order for the same, but later determined
that Patterson would instead be issued a pair of black Velcro shoes. He
reasoned that the black Velcro shoes had a much softer sole than the leather
boots normally issued to FLCI inmates, and that this was sufficient to
accommodate Patterson’s needs.
Patterson’s first appointment with nurse practitioner Frank occurred
on October 7, 2015. Patterson reported that his surgery went well and that
his recovery was also going well. He was able to walk in his cell over short
distances but used a wheelchair for longer distances. He reported pain with
prolonged standing and felt that his pain was exacerbated by a lack of
support in his shoes. Frank did not note that Patterson complained of neck
or back pain, other than the issue with his shoes, but Patterson has broadly
averred that he consistently complained of neck and back pain throughout
this period.
Frank’s examination revealed a normal range of motion in
Patterson’s left knee and trace swelling at the ankle. Patterson was
scheduled to see Dr. Lang again in about two weeks. At Patterson’s request,
Frank sent a note to Lang asking that Patterson be fitted with different
shoes. Frank also scheduled Patterson for an appointment to have a foreign
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body—the aforementioned piece of glass—removed from his forearm.
Frank did no more than this at the time, believing that Patterson was in no
acute distress and knowing he had a follow-up appointment scheduled in
two weeks.
Patterson next saw Dr. Lang on October 20, 2015. Lang noted that
Patterson had possible suture abscess, so he gently debrided the area and
applied a bandage. Patterson’s x-ray showed further consolidation of the
bone graft with no complications. Thus, Lang recommended that Patterson
continue to bear weight has he could tolerate it and that he could wean
himself out of the walking boot into shoes. Lang also recommended that
Patterson be allowed to order different shoes with greater shock absorption
than the black Velcro shoes ordered by Larson.
On October 22, based on Lang’s recommendation, Dr. Larson
discontinued the black Velcro shoes and approved an order allowing
Patterson to switch between his walking boot and regular shoes as comfort
allowed. He also entered an order allowing Patterson to order shoes and
over-the-counter arch support inserts from the institution catalog that
would better address Patterson’s shock-absorption needs. The catalog
contains shoes with the sort of shock-absorption characteristics that Lang
recommended. Larson also consulted with the Department of Corrections’
medical director, who determined that the institution catalog offered
appropriate shoes and that there was no need for custom shoes or orthotics.
Patterson then saw Frank on November 10, 2015, to remove the
foreign body in his arm. At the appointment, Patterson reported pain,
numbness, and weakness in his left arm resulting from the preincarceration car accident. He claimed it had not been addressed since his
incarceration. Frank reviewed an x-ray from February 2015 and noted a
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transverse fracture of the left scapula with nonunion, meaning that
Patterson’s shoulder blade was fractured long ago and had not grown back
together properly. Frank ordered another x-ray and told Patterson to follow
up with him after it was completed.
Per Frank’s order, an x-ray was taken of Patterson’s clavicle. The two
had an appointment to review the results on November 18, 2015. The x-ray
revealed a left scapular fracture with subsequent nonunion, and Frank’s
examination that day showed the Patterson had reduced mobility with the
left arm. Nevertheless, Patterson expressed that he did not want to undergo
a surgery for the nonunion in his scapula, and so Frank deferred ordering
such treatment and asked Patterson to follow up with him in 3–4 months.
Patterson was next seen by Dr. Lang on December 8, 2015, for his sixweek surgical follow-up. Patterson says that he complained about the FLCI
staff’s refusal, in his view, to provide any appropriate care for his neck and
back pain. According to Patterson, Lang responded that he was assigned
only to assess Patterson’s leg injuries.
Lang found that Patterson was doing well and that the x-rays
indicated good healing of the tibia. Lang recommended that Patterson
order higher-quality shoes than those generally available to the prisoners,
that soft restraints be used when transporting Patterson, and that Patterson
be evaluated for possible treatment of neck and back pain by a physical
therapist or a chiropractor in light of his complaints. Based on this
recommendation, Larson initially approved Lang’s recommendation for
ordering Patterson better shoes, but he cancelled that approval on
December 11, 2015, after reviewing the prison catalog with nursing staff
and identifying several options therein that would meet Lang’s

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recommendation. As a result, Larson ordered that Patterson select shoes
from the catalog and not order them from elsewhere.
The next appointment between Frank and Patterson occurred on
March 30, 2016. Patterson reported no significant changes in his condition.
By this point, he was undergoing physical therapy for his neck and back
pain, pursuant to Lang’s recommendation. The medical record shows that
Patterson said that physical therapy was helpful, but now he says that it
was not alleviating his pain. He also indicated that his ankles were
bothering him and that he was still reliant on a wheelchair for long-distance
travel and could not stand for prolonged periods. Patterson reported that
he had an appointment with the orthopedist to discuss a second surgery on
his leg. He was still ambivalent toward the idea of having surgery on his
scapula.
Frank’s examination revealed that Patterson was not in any apparent
distress. He was wearing a personal pair of shoes rather than the institutionissued boots. His lower extremities were not swollen and he demonstrated
a nearly full active range of motion in both ankles. From Patterson’s reports
and Frank’s exam, he determined to renew Patterson’s prescription for a
wheelchair for long-distance travel, an extra pillow, a cane as needed, and
a lower bunk restriction. Frank felt it was appropriate to leave to Lang, the
orthopedist, any additional care for Patterson’s leg and to follow up after
that. Patterson complains that Frank should have requested that Lang
attend to Patterson’s neck and back pain but did not.
On April 1, 2016, Stelsel received another call from Patterson’s
mother. She reported that her son requested a clarification of Frank’s
wheelchair order. Patterson complained that he needed the wheelchair
while inside his housing unit, not just for long distances, since he could not
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stand for long periods of time. Stelsel reviewed the March 30 progress note
by Frank and also was aware that housing units in the prison had chairs
available for prisoner use if needed. She apparently did not make the
requested change in Patterson’s plan of care.
Patterson had another visit with Lang on May 17, 2016 to deal with
Patterson’s new leg-related complaints. Lang recommended a surgical
decompression of the anterior compartment of his left leg. On May 22 and
May 25, Patterson wrote to the HSU and requested that he be seen by a
specialist for his neck and back pain. He does not say what the HSU’s
response was to these inquiries.
The medical record next shows that on July 5, 2016, Frank ordered
that Patterson be allowed to use the Transcutaneous Electrical Nerve
Stimulation (“TENS”) unit to address his lower back and thoracic back pain.
Patterson also claims that at this appointment, Frank ordered an
electromyogram (“EMG”) study, which evaluates the presence of nerve
damage, to assess Patterson’s complaints of pain. Patterson contends that
Frank cancelled the order after he left the HSU without explanation.
Lang saw Patterson again on July 14, 2016, for the surgical
decompression. The procedure was successful, and Lang provided aftercare instructions as well as a prescription for Norco. Patterson returned to
Lang for a follow-up appointment on July 28. Patterson’s surgical incision
was sealed and benign, he had good active ankle motion, and his sutures
were removed.
He reported that he was stiff and experienced persistent neck and
back pain. He asserted that the HSU staff were refusing to provide
treatment for his neck and back despite his continuous complaints about it.
Lang noted that Patterson claimed that the previous course of physical
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therapy did not resolve his pain. Lang referred Patterson to a non-operative
spine rehabilitation provider for further evaluation of his neck and back
pain, with a follow-up in three months.6
Frank saw Patterson next on August 30, 2016 and noted Patterson’s
second leg surgery. During the appointment, Patterson reported chronic
pain in his left leg which was exacerbated by prolonged standing. He also
described chronic numbness and pain in and below the left knee, bilateral
ankle pain that worsened with prolonged standing, and intermittent
scapular pain that radiated into his arms and hands.
Frank examined Patterson and found that he slightly limped. During
the interview, Patterson was calm and showed no signs of acute distress.
The two discussed Patterson’s complaints, the current specialist
recommendations as compared with Patterson’s request to use his
wheelchair whenever he wanted to, and Patterson’s need for other assistive
devices for long-distance travel.
Frank diagnosed Patterson with chronic, widespread subjective
neuropathic/musculoskeletal pain secondary to the pre-incarceration car
accident.7 That accident had, in Frank’s view, caused several fractures
which had healed (or been repaired, in the case of the tibial nonunion) but

Patterson reports that when he arrived back at the institution from this
appointment, an HSU nurse (who is not a defendant in this case) obliged his
request to update his wheelchair restriction to “as needed” rather than only for
long-distance travel. (Docket #78 at 26). Defendants rightly point out that this is
inadmissible hearsay, and so the Court cannot consider it. Logan, 246 F.3d at 925.
Consistent with his approach to everyone else involved in this case, Patterson
accuses the nurse of failing to do as she promised and then falsifying her notes to
show that he had no complaints of pain. (Docket #78 at 26).
6

Neuropathic pain results from damage to nerves for various reasons. The
range of neuropathy is graded from mild, moderate, to severe.
7

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would not unexpectedly continue to cause some ongoing pain. Frank
opines that the community standard of care for chronic pain includes
acetaminophen, non-steroidal anti-inflammatories, physical therapy, use of
the

TENS

unit,

neuroleptic

and

anticonvulsant

medications,

antidepressants, and exercise—all of which Patterson was either using, had
used in the past, continued to use currently, or was offered but chose not to
use.
Frank renewed Patterson’s allowances for a lower bunk restriction,
cane, and wheelchair for long distances. He informed Patterson that he
needed more input from the prison staff that monitored Patterson on a daily
basis to determine whether he should extend Patterson’s wheelchair
privileges to unlimited use as Patterson requested. At the time of the
appointment, Frank was not convinced that this should be done because it
would not benefit Patterson’s long-term rehabilitation.
Frank also ordered an EMG to assess what Frank perceived to be
Patterson’s complaints of neuropathic pain. The EMG would, if positive,
help focus treatment efforts or, if negative, would help show that
Patterson’s complaints of pain were illegitimate. Patterson disputes that
Frank ordered the EMG, but his dispute appears to be directed at the fact
that the July 2016 EMG was ordered and then cancelled, as noted above.
Frank recommended that Patterson start taking ibuprofen for pain.
Patterson had another appointment with Frank on October 24, 2016,
to review the results of the EMG that had been taken on October 6.
Patterson continued to report numbness and pain in his left leg and back,
exacerbated by long periods of standing. Patterson claimed that he had a
collapsed disc in his spine from the car accident which would require back
surgery to fix. Patterson also asserted that he experienced pain and
Page 18 of 40

numbness in his upper extremities. He reported that ibuprofen was helping
somewhat but that it upset his stomach.
Frank’s examination showed that Patterson demonstrated a slight
limp, but he was calm and in no apparent distress. He reviewed the EMG
results with Patterson, which showed mild, chronic neuropathy resulting
from nerve damage in his legs. The neuropathy was not active, meaning it
was not getting any worse over time. Moreover, the EMG showed the
neuropathy did not stem from a compression in Patterson’s lower back, as
he believed. Furthermore, Frank opines that it was strange for Patterson to
complain of increased pain after prolonged standing, as the EMG did not
show radicular neuropathy.
Treatment for neuropathy mirrors the treatment of chronic pain
described above, with a greater emphasis on neuroleptics and
antidepressants. Since Patterson had already tried multiple medications
that are routinely used for neuropathy, including gabapentin, duloxetine,
and amitriptyline, but had stopped them due to their side effects, Frank
decided to offer a trial of pregabalin. Patterson declined, contending that
related medications had caused unpleasant side effects in the past and had
not relieved his pain. He also expressed a desire for treatment other than
simply treating his pain through medication.
Frank also ordered a second EMG of Patterson’s upper extremities
to address the complaints of pain there. Finally, Frank referred Patterson
the Department of Corrections Special Needs Committee for his request to
use his wheelchair at any time while in the housing unit. The Committee
denied Patterson’s request.
Patterson was seen by Dr. Lang again on October 18, 2016, for a
follow-up on the second leg surgery. Lang recommended that Patterson
Page 19 of 40

could use his left leg with limitations and that he should follow up with the
prison medical providers in the future.
Patterson inquired with the HSU on December 11, 2016 about
whether an appointment with a back specialist had been scheduled. The
next day, the HSU responded that this would be discussed at his upcoming
appointment in January 2017. Patterson was seen by a non-defendant HSU
nurse on January 9, 2017, who suggested that Patterson should seek help
from Frank about his back treatment. This angered Patterson; he viewed it
as yet another instance of denying him medical care and shunting his care
off to the next person. Defendants respond that the reason Patterson was
referred back to Frank was to maintain continuity of care.
Apparently during this appointment, Patterson learned that his
spine specialist referral had been cancelled. He wrote the HSU the next day
demanding an explanation. An HSU staff member who is not a defendant
responded to the request but did not answer Patterson’s question.
The upper-extremity EMG was conducted on January 13, 2017. The
results were normal, with no evidence of cervical radiculopathy or brachial
plexopathy—meaning there was no indication that there existed nerve
compression from Patterson’s brachial plexus or his neck. Thus, the
treatment options for Patterson’s complaints of chronic pain remained as
they were.8
Frank’s last appointment with Patterson occurred on February 10,
2017. However, Defendants report that Patterson continues to receive care
from HSU staff and from off-site providers as necessary for his continued

Again, Patterson offers inadmissible hearsay that the doctor who
performed this second EMG opined that Patterson had a pinched nerve that would
not show up on an EMG. (Docket #78 at 47); Logan, 246 F.3d at 925.
8

Page 20 of 40

complaints of pain. He is scheduled for an appointment with the University
of Wisconsin Spine clinic later this year.
In all, from his fall on January 25, 2015 through February 10, 2017,
Patterson was seen approximately fifty-eight times in the HSU. He
underwent many diagnostic studies, including x-rays and two EMGs. He
was treated with two surgeries by outside medical providers to address leg
problems and had numerous follow-up appointments with those
providers. His neck, leg, and back pain was addressed with numerous
medications over time, as well as physical therapy, the TENS unit, and
accommodations like a wheelchair, cane, extra pillow, and lower bunk
restriction.
3.

ANALYSIS
In this suit, Patterson raises essentially two types of claims. The first,

against Hepp and Maggioncalda, relates to Patterson’s fall. The second,
against the medical Defendants, concerns the care he received after the fall.
For each type of claim, Patterson asserts that Defendants’ conduct violated
both the Constitution and Wisconsin state law. The Court will address each
of these claims in turn.9
3.1

Eighth Amendment Claim Arising From Floor Tiles

The Supreme Court has interpreted the Eighth Amendment as
requiring a minimum standard for the treatment of inmates by prison
officials: prison conditions must not, among other things, involve “the

At various points in his briefing, Patterson also tries to raise a claim that
certain unnamed prison officials have harassed him since he filed the instant
lawsuit and his professed need for constant use of a wheelchair. See, e.g., (Docket
#78 at 34, 50–51). As with the claim related to asbestos, see supra note 2, Patterson
will not be permitted to proceed on this new claim at such a late stage in this case.
Shanahan, 82 F.3d at 781.
9

Page 21 of 40

wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452 U.S.
337, 347 (1981). An inmate’s constitutional challenge to the conditions of his
confinement has two elements. Whitman v. Nesic, 368 F.3d 931, 934 (7th Cir.
2004). First, he must show that the conditions at issue were “sufficiently
serious” so that “a prison official’s act or omission results in the denial of
the minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511
U.S. 825, 834 (1994) (internal quotations omitted).
Even if conditions were sufficiently severe, the prisoner must also
demonstrate that prison officials acted with “deliberate indifference” to the
conditions. See Wilson v. Seiter, 501 U.S. 294, 302 (1991); Whitman, 368 F.3d
at 934. “Deliberate indifference” means that the official knew that the
inmate faced a substantial risk of serious harm from the conditions in
question, and yet disregarded that risk by failing to take reasonable
measures to address it. Farmer, 511 U.S. at 847; Johnson v. Phelan, 69 F.3d 144,
149 (7th Cir. 1995). It is not enough for the inmate to show that the official
acted negligently or that he or she should have known about the risk.
Pierson v. Hartley, 391 F.3d 898, 902 (7th Cir. 2004); Haley v. Gross, 86 F.3d
630, 641 (7th Cir. 1996). Instead, the inmate must show that the official
received information from which the inference could be drawn that a
substantial risk existed, and that the official actually drew the inference.
Pierson, 391 F.3d at 902.
Patterson fails to establish either element. First, he cites no case, and
the Court has located none, finding that loose or damaged floor tiles
constitute a prison condition of constitutional magnitude. Prison conditions
may be “harsh and uncomfortable without violating the Eighth
Amendment’s prohibition against cruel and unusual punishment.” Dixon
v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997). The Eighth Amendment “does
Page 22 of 40

not require prisons to provide prisoners with more salubrious air, healthier
food, or cleaner water than are enjoyed by substantial numbers of free
Americans.” Carroll v. DeTella, 255 F.3d 470, 472–73 (7th Cir. 2001). Rather,
“extreme deprivations are required to make out a conditions-ofconfinement claim.” Turner v. Miller, 301 F.3d 599, 603 (7th Cir. 2002);
Hudson v. McMillian, 503 U.S. 1, 9 (1992). Viewed through this lens,
Patterson’s complaint about poorly maintained floor tiles cannot be
considered a denial of “the minimal civilized measure of life's necessities.”
Farmer, 511 U.S. at 834. Rather, a slip-and-fall case like Patterson’s
implicates nothing more than a “‘daily risk faced by members of the public
at large,’” and as such is not so grave as to raise constitutional concerns.
Coleman v. Sweetin, 745 F.3d 756, 764 (5th Cir. 2014) (quoting Reynolds v.
Powell, 370 F.3d 1028, 1031 (10th Cir. 2004)); Pyles v. Fahim, 771 F.3d 403, 410
(7th Cir. 2014).
As to the second element—deliberate indifference—Patterson’s
evidence also falls short. He was required to come forward with evidence
showing that Defendants “acted with the equivalent of criminal
recklessness.” Grieveson v. Anderson, 538 F.3d 763, 777 (7th Cir. 2008). That
is, “a plaintiff must establish that the official knew of the risk (or a high
probability of the risk) and did nothing.” Pope v. Shafer, 86 F.3d 90, 92 (7th
Cir. 1996). At most here, however, Defendants failed to act with due care in
attending to the condition and repair of the floor tiles. Such conduct does
not implicate the protections of the Constitution. County of Sacramento v.
Lewis, 523 U.S. 833, 849 (1998) (“[T]he Constitution does not guarantee due
care on the part of state officials; liability for negligently inflicted harm is
categorically beneath the threshold” of constitutional protections); Benson
v. Cady, 761 F.2d 335, 339 (7th Cir. 1985) (“[S]imple inattention or
Page 23 of 40

inadvertence [] may not form the basis for an eighth amendment claim[.]”),
overruled on other grounds, Henderson v. Wilcoxen, 802 F.3d 930 (7th Cir. 2015).
Further, there is little evidence in the record suggesting that Hepp
and Maggioncalda in fact knew that there was a substantial safety hazard
posed by the floor tiles prior to Patterson’s fall. Most of Patterson’s evidence
post-dates the fall and is therefore irrelevant. Further, the poor condition of
the floor tiles themselves was not enough to put Defendants on notice of a
significant risk of harm, as Patterson does not contest that most people are
confronted by more hazardous walking conditions in everyday life. Indeed,
the risk of injury in this case was far less obvious than the risk of injury in
a leaking, unsanitary shower without floor mats—as was the situation in
Patterson’s cited case, Curry v. Kerik, 163 F. Supp. 2d 232, 234–35 (S.D.N.Y.
2001)—making Defendants’ failure to attend to the floor tiles less culpable.
See also Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985) (safety hazards
in prison were actionable because they were exacerbated by faulty lighting
through the institution); Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991)
(noting that a totality of unsafe conditions can violate the Constitution
where each condition might not do so alone, such as overcrowding
combined with unsanitary conditions).
Patterson claims that Hepp and Maggioncalda had a special duty to
ensure that the area around his cell was safe, both because they knew of his
injuries from his prior car accident and because his was a “medical unit”
housing injured prisoners. (Docket #67 at 5). As discussed above, he cites
no authority establishing that either of these things are true as a matter of
fact, or that they heightened Defendants’ duty as a matter of law. Thus,
Patterson’s reliance on cases like Frost v. Agnos, 152 F.3d 1124, 1129 (9th Cir.
1998), is misplaced, as there the prison officials did nothing despite
Page 24 of 40

knowing that the plaintiff had fallen several times while walking on
crutches on a slippery floor. See also Coleman, 745 F.3d at 766 (distinguishing
Frost on similar grounds).
For these reasons, Patterson’s Eighth Amendment claim relating to
the floor tiles is without merit and must be dismissed.
3.2

State Law Claim Arising From Floor Tiles

Patterson’s related state-law negligence claim concerning the floor
tiles also cannot proceed, but not because the evidence necessarily
establishes a lack of negligence. Instead, Patterson has not proffered facts
to overcome Defendants’ discretionary immunity provided by Wisconsin
statute.
Wisconsin officials are immune from liability for “acts done in the
exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.”
Wis. Stat. § 893.80(4). Wisconsin courts have interpreted this protection as
extending to all conduct involving “the exercise of discretion and
judgment.” Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 691 N.W.2d
658, 677 (Wis. 2005) (quotation omitted). There are, however, four
categories of acts to which immunity does not apply: “(1) ministerial duties
imposed by law, (2) duties to address a known danger, (3) actions involving
professional discretion, and (4) actions that are malicious, willful, and
intentional.” Scott v. Savers Prop. & Cas. Ins. Co., 663 N.W.2d 715, 721 (Wis.
2003). It should be noted that the ministerial exception is not really an
exception to immunity at all; instead, it denotes situations in which
immunity does not apply in the first place because the act in question was
non-discretionary. See Spencer v. County of Brown, 573 N.W.2d 222, 224 (Wis.
Ct. App. 1997), abrogated on other grounds, Blum v. 1st Auto & Cas. Ins. Co.,
786 N.W.2d 78, 90 (Wis. 2010). The immunity afforded by Section 893.80(4)
Page 25 of 40

and the exceptions thereto represent “a judicial balance struck between ‘the
need of public officers to perform their functions freely [and] the right of an
aggrieved party to seek redress.’” C.L. v. Olson, 422 N.W.2d 614, 617 (Wis.
1988) (quoting Lister v. Bd. of Regents of Univ. of Wis. Sys., 240 N.W.2d 610,
621 (Wis. 1976)).
Here, Patterson seems to resist Defendants’ assertion of immunity
on the ground that their duty was ministerial, not discretionary, and that
they failed to respond to a known danger. The Court will address each
argument in turn.
3.2.1

Ministerial Versus Discretionary Duties

The ministerial exception removes an official’s immunity where the
duty in question “is absolute, certain and imperative, involving merely the
performance of a specific task when the law imposes, prescribes, and
defines the time, mode and occasion for its performance with such certainty
that nothing remains for judgment or discretion.” Lister, 240 N.W.2d at 622.
In contrast to ministerial tasks, discretionary acts require a public official to
determine how a general policy should be carried out or how a general rule
should be applied to a specific set of facts. Lifer v. Raymond, 259 N.W.2d 537,
541 (Wis. 1977). Even acts performed pursuant to a legal obligation may be
discretionary because there may exist room for judgment. Scott, 663 N.W.2d
at 722. A key step in inquiring whether an act is discretionary or ministerial
is to identify the law creating the duty to act. Legue, 849 N.W.2d at 294.
“Where there is a written law or policy defining a duty, we naturally look
to the language of the writing to evaluate whether the duty and its
parameters are expressed so clearly and precisely, so as to eliminate the
official’s exercise of discretion.” Pries v. McMillon, 784 N.W.2d 648, 656 (Wis.
2010).
Page 26 of 40

The Court begins, therefore, with the alleged source of Defendants’
duty. Patterson cites Henderson v. Milwaukee County, 543 N.W.2d 544, 547
(Wis. Ct. App. 1995), for the proposition that Defendants have a duty to
maintain a safe prison. (Docket #67 at 8). The duty in Henderson was
premised on the Wisconsin safe place statute, which sets forth a heightened
duty for owners of public buildings to construct, repair, or maintain
buildings safely. Wis. Stat. § 101.11; Mair v. Trollhaugen Ski Resort, 715
N.W.2d 598, 604 (Wis. 2006).10 The statute provides, in relevant part:
Every employer shall furnish employment which shall be safe
for the employees therein and shall furnish a place of
employment which shall be safe for employees therein and
for frequenters thereof and shall furnish and use safety
devices and safeguards, and shall adopt and use methods and
processes reasonably adequate to render such employment
and places of employment safe, and shall do every other thing
reasonably necessary to protect the life, health, safety, and
welfare of such employees and frequenters. Every employer
and every owner of a place of employment or a public
building now or hereafter constructed shall so construct,
repair or maintain such place of employment or public
building as to render the same safe.
Wis. Stat. § 101.11(1).
As applied to Defendants, the duty imposed by this statute is
discretionary, not ministerial. The Wisconsin Court of Appeals so held in
Spencer, where a prison inmate was injured when he slipped and fell on a
terrazzo floor in the shower area. Spencer, 573 N.W.2d at 224. The court

The prisoner in Henderson alleged both a common-law duty and a
statutory duty arising from the safe place statute. Henderson, 543 N.W.2d at 749.
However, the court did not discuss the contours of the prison’s common-law duty
as distinct from the duty imposed by the safe place statute, and Patterson does not
explain whether or what the differences might be. See (Docket #67 at 8).
Consequently, the Court focuses on the duty announced in the safe place statute.
10

Page 27 of 40

rejected the inmate’s contention that the sheriff had a ministerial duty to
make the shower safer, such as by providing railings or skid-proof floors.
Id. at 226. The court observed that the safe-place statute required the
defendant “to use reasonably adequate methods to make the shower area
safe, and to do every other thing reasonably necessary to protect the safety
of individuals like [the inmate].” Id. (emphasis in original). In the court’s
view, “[t]his language implies the exercise of discretion and judgment by
government officials in determining what measures are reasonably
necessary to make the shower facilities safe.” Id. The statute does not supply
specificity “as to time, mode and occasion ‘with such certainty that nothing
remains for judgment or discretion.’” Id. (quoting Stann v. Waukesha County,
468 N.W.2d 775, 779 (Wis. Ct. App. 1991)); see also Larsen v. Wis. County Mut.
Ins. Co., 855 N.W.2d 493, at *3 (Wis. Ct. App. 2014).
So too, here, Defendants’ alleged duty to maintain the tile floors was
discretionary. Patterson’s argument is not appreciably different from that
of the inmate in Spencer. In both instances, the inmate asserted that certain
measures would better protect them from injury. In the case of the prison
shower in Spencer, the Wisconsin Court of Appeals determined that the
sheriff enjoyed discretion in deciding how best to use the resources at his
disposal to fashion appropriate safeguards in the shower area. Likewise,
the general duty imposed by Section 101.11 left room for Defendants to
exercise judgment in deciding what protective measures or repairs
concerning the floor tiles were reasonably necessary in light of the resources
available to them. Nowhere does the statute purport to define the contours
of the safe place duty with specificity. Patterson’s belief as to what measures
were reasonably necessary to protect him cannot overcome the discretion

Page 28 of 40

afforded to Defendants in making that determination. Thus, Defendants’
duty was discretionary, not ministerial.
3.2.2

Known and Compelling Danger

Patterson argues in the alternative that even if Defendants’ duty was
discretionary, they were aware of Patterson’s special needs and ignored
them. In particular, Patterson claims that Defendants knew of his
preexisting injuries resulting from his car accident and that there was an
increased risk for injury in Patterson’s unit because it was a “medical unit”
housing prisoners with injuries. Patterson contends that Defendants
ignored these special risks and therefore are deprived of immunity. See
(Docket #67 at 8).
The known-danger exception, similar to the ministerial exception,
applies in instances where “there exists a known present danger of such
force that the time, mode and occasion for performance [are] evident with
such certainty that nothing remains for the exercise of judgment and
discretion.” Lodl v. Progressive N. Ins. Co., 646 N.W.2d 314, 324 (Wis. 2002)
(quotation omitted). In other words, the danger must be an “accident
waiting to happen.” Heuser ex rel. Jacobs v. Comm. Ins. Corp., 774 N.W.2d 653,
659 (Wis. Ct. App. 2009) (quotation omitted). The circumstances must be
“sufficiently dangerous so as to give rise to a ministerial duty—not merely
a generalized ‘duty to act’ in some unspecified way, but a duty to perform
the particular act upon which liability is premised.” Lodl, 646 N.W.2d at 324
(emphasis added). Put differently, the official must have failed to make a
particularized response that was required under the circumstances
presented. Heuser, 774 N.W.2d at 660. The choice of remedy is within the
official’s discretion and is therefore shielded by immunity under Section

Page 29 of 40

893.80(4). Id. Only by doing nothing in response to a known and sufficiently
severe danger will the official open himself to liability. Id. at 662.
Patterson’s claim fails to meet the known danger exception for
several reasons. First, while all persons face the danger of a fall from uneven
floor tiles, this danger pales in comparison to those obvious and compelling
dangers recognized in Wisconsin courts as warranting abrogation of
immunity. See, e.g., Cords v. Anderson, 259 N.W.2d 672, 680 (Wis. 1977) (park
ranger ignored danger presented by hiking trail that passed within inches
of a ninety-foot gorge); Domino v. Walworth County, 347 N.W.2d 917, 919
(Wis. 1984) (sheriff’s dispatcher failed to warn motorists of a fallen tree that
blocked a road). Thus, the condition of the floor tiles alone did not give rise
to a sufficiently obvious danger.
Second, as noted previously, Patterson has not established as an
evidentiary matter that his was a “medical” unit or that Hepp or
Maggioncalda knew of his pre-incarceration accident. Further, Patterson
did not suffer any falls prior to January 25, 2015, nor did Hepp or
Maggioncalda receive complaints from other inmates before that date that
the floor tiles were dangerous. As a result, it is difficult to conclude that
Patterson’s injury, even if potentially foreseeable, was “an accident waiting
to happen.” Heuser, 774 N.W.2d at 659. Indeed, the Court of Appeals in
Spencer did not find the danger of a fall in the shower to be compelling
although the inmate in that case suffered from a noticeable limp and
showered without problems for only five days before he fell. Spencer, 573
N.W.2d at 227. Patterson’s ability to successfully navigate the floor tiles
prior to January 2015 belies his claim that there was an immediate, obvious
danger in need of a specific response.

Page 30 of 40

As a result, Defendants qualify for immunity under Wis. Stat. §
893.80(4) and Patterson’s state-law claim concerning the floor tiles must be
dismissed.
3.3

Eighth Amendment Claim Concerning Medical Care

Patterson’s other two claims arise from his allegation that he
received inadequate medical care following his fall. First, he asserts that
Defendants were deliberately indifferent to his serious medical needs, in
violation of the Eighth Amendment. To state such a claim, the plaintiff must
show: (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). 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 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 record does not establish that Defendants were deliberately
indifferent to Patterson’s condition, assuming arguendo that it was
sufficiently serious. To prove this, a plaintiff has to come forward with
evidence showing more than ordinary or even gross negligence. McGill v.
Duckworth, 944 F.2d 344, 348 (7th Cir. 1991); Hughes v. Joliet Corr. Ctr., 931
F.2d 425, 428 (7th Cir. 1991). Instead, he must prove that the medical
professional’s treatment decisions were “such a substantial departure from
Page 31 of 40

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). It is
“obduracy and wantonness, not inadvertence or error in good faith, that
characterize[s] the conduct prohibited by the [Eighth Amendment].”
Whitley v. Albers, 475 U.S. 312, 319 (1986).
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); 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.”). If the inmate has received some health care, it then
falls to him to show that the treatment he received was “so blatantly
inappropriate as to evidence intentional mistreatment likely to seriously
aggravate” his serious medical condition. Snipes, 95 F.3d at 592. Mere
disagreement with a doctor’s medical judgment is insufficient. Edwards v.
Snyder, 478 F.3d 827, 831 (7th Cir. 2007); 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.”). 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 at 623 (quoting
Qian v. Kautz, 168 F.3d 949, 955 (7th Cir. 1999)). Courts generally defer to
physicians’ treatment decisions, since “there is not one proper way to
practice medicine, but rather a range of acceptable courses.” Jackson v.
Kotter, 541 F.3d 688, 697–98 (7th Cir. 2008). A court must “examine the
totality of an inmate’s medical care when considering whether that care

Page 32 of 40

evidences deliberate indifference to his serious medical needs.” Dunigan ex
rel. Nyman v. Winnebago County, 165 F.3d 587, 591 (7th Cir. 1999).
Patterson’s claims against prison medical personnel follow several
familiar and unmeritorious themes. First, he expresses dissatisfaction with
their treatment decisions, such as denying him narcotic pain medication,
failing to adapt quickly enough to the undesirable side effects some of his
medications caused, prescribing him shoes from the prison catalog rather
than custom-fit orthotics, denying him unlimited wheelchair use, and
delaying his referral to a specialist for his purported neck and back pain.
These are matters of medical judgment, and Patterson advances no reason
why these decisions were “so blatantly inappropriate as to evidence
intentional mistreatment likely to seriously aggravate” his condition.
Snipes, 95 F.3d at 592. Instead, the record reveals that these were choices
selected from among a range of treatment options, informed by medical
judgment. As such, the Court is in no position to question them. Jackson, 541
F.3d at 697–98.
Patterson offers only his lay opinion that his medical providers
should have done more, or that their treatment was “cursory,” see (Docket
#67 at 12), but this does not help his claim. See Edwards, 478 F.3d at 831. His
treatment providers are not guilty of deliberate indifference for having
failed to abide by his desires, Reynolds, 84 F. App’x at 674, and he has
proffered no facts showing that her diagnosis and treatment were “so
inadequate that [they] demonstrated an absence of professional judgment,
that is, that no minimally competent professional would have [done the
same] under those circumstances.” Collignon v. Milwaukee County, 163 F.3d
982, 989 (7th Cir. 1998). Further, it matters not that, in cases like the
provision of shoes, Dr. Larson did not follow Dr. Lang’s recommendation,
Page 33 of 40

as he was entitled to make his own determination of the medically
appropriate course of treatment. See Zackery v. Mesrobian, 299 F. App’x 598,
601 (7th Cir. 2008) (“[A] difference of opinion among physicians is
insufficient to establish deliberate indifference.”); Askew v. Davis, 613 F.
App’x 544, 547 (7th Cir. 2015).
Similarly, even if Larson was dismissive of Patterson’s complaints
during their first appointment, as Patterson claims, see (Docket #67 at 12),
Patterson lacks evidence that Larson’s resulting treatment decisions were
constitutionally inadequate. This is the crucial point Patterson seems to
miss throughout. Larson is not required under the Constitution to have a
pleasant bedside manner or humor what he perceives as drug-seeking
behavior; he is merely obliged to provide prisoners with constitutionally
adequate healthcare. Patterson has not shown that Larson, influenced by
his dislike for Patterson, provided “easier and less efficacious treatment”
without exercising professional judgment. Estelle, 429 U.S. at 104 n.10;
Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006). In fact, despite
suspicions of malingering and narcotic-seeking, Dr. Larson and nurse
practitioner Frank did not simply dismiss him. Greeno v. Davis, 414 F.3d 645,
654 (7th Cir. 2005). Rather, they continually assessed Patterson’s condition
and complaints, offering what treatments were medically warranted and
going so far as to evaluate the neuropathic elements of Patterson’s ceaseless
complaints of pain. See Thomas v. Wahl, 590 F. App’x 621, 624 (7th Cir. 2014)
(finding no deliberate indifference where physician engaged in a lengthy
and conservative course of pain treatments).
Likewise, Patterson argues that HSU officials impermissibly ignored
his complaints of pain, but nothing in the record supports such a

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conclusion.11 HSU staff treated Patterson’s neck, leg, and back pain with
medication, the TENS unit, physical therapy, and other treatments. They
evaluated that pain numerous times, including with two EMG studies.
Whether they should have referred him to a specialist or provided some
additional treatment is, again, a matter of medical judgment. Patterson
erroneously assumes that each of his complaints should have received a
quality and quantity of care that he prescribed. The Constitution does not
mandate the prisoner’s choice of treatment. Reynolds, 84 F. App’x at 674.
The totality of Patterson’s course of treatment demonstrates that his
complaints were heard and treated over and over again. Dunigan, 165 F.3d
at 591.12
The second theme of Patterson’s claim ties into the first. Perhaps
recognizing that disagreement with a course of treatment does not establish
deliberate indifference, Patterson ups the ante by accusing every Defendant
of lying about his complaints, his physical condition, and his treatment
needs in order to deny him care. He also posits that Defendants conspired
to fabricate or alter, after the fact, documents in his medical record. See, e.g.,
(Docket #67 at 13–16). Much of Patterson’s consternation seems to stem
from Dr. Larson’s comment in January 2015 that he expected to be sued by

It is worth noting that whether Patterson’s injuries originated from his car
accident or were caused only by the January 25, 2015 fall, which the parties
strenuously dispute at several junctures, is immaterial; the record reflects that
Patterson’s conditions and pain were treated regardless of their origin.
11

Additionally, to the extent Patterson claims that Meier and Stelsel are
liable for other providers’ alleged misconduct merely in their role as supervisors
in the HSU, this is not a viable theory for a Section 1983 claim. See Burks v. Raemisch,
555 F.3d 592, 595 (7th Cir. 2009). Moreover, other than receiving a few phone calls
from Patterson’s mother, it does not appear that either nurse had any involvement
in Patterson’s care.
12

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Patterson’s mother. Id. Patterson believes that every action taken afterward
was part of a conspiratorial cover-up of Defendants’ medical malfeasance,
including fabrications and false promises by Larson, Frank, and the nursing
staff. See id.; (Docket #78 at 28–29, 36–39, 54–55, 61–64).
This position is flawed because of the posture in which the Court
finds itself. The Court cannot normally question the veracity of the
witnesses or the documents presented when considering a motion for
summary judgment. Berry, 618 F.3d at 691. Patterson offers no more than
his speculation that the witnesses are lying and that the documents are not
authentic. This does not carry his burden to show that material issues
remain for trial. See Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008);
Lindwurm v. Wexford Health Servs., Inc., 84 F. App’x 46, 48 (10th Cir. 2003)
(finding that the plaintiff failed to raise a triable issue as to whether his
medical records were falsified).
Moreover, the real thrust of Patterson’s accusations of lying is that
he disagrees with his medical providers as to the severity of his injuries and
the proper course of treatment. Without belaboring the point, this is not a
proper basis for a constitutional claim. Indeed, even assuming that
Defendants falsified records or lied to him about promised treatments or
tests, Patterson fails to demonstrate that his treatment was constitutionally
inadequate, which is the truly important question here. Rega v. Beard, Civil
Action No. 08–156, 2011 WL 7094571, at *6 (W.D. Pa. Dec. 13, 2011)
(“[M]erely lying to a patient does not constitute deliberate indifference.”);
Hines v. Smith, No. 04 Civ. 5903(PAC), 2006 WL 2038454, at *8 (S.D.N.Y. July
17, 2006) (a prisoner must show both that defendant lied to prevent him
from receiving care, and also that the care was objectively necessary). In
other words, Patterson’s claim is not for lying, which is generally not a
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Constitutional violation anyway. His claim is for deliberate indifference to
his medical needs, and the record indisputably establishes that he was
provided appropriate medical care.
Take, for example, Frank’s alleged cancellation of the July 2016 EMG.
First, Patterson offers only conjecture that Frank cancelled the appointment
out of ill will and a desire to deny him medical treatment. (Docket #78 at
30–31). And even assuming he promised to order the EMG and then
cancelled the order, this was not deliberate indifference. The record does
not reveal that failure to perform the test in April fell below the
constitutionally acceptable standard of care. Patterson claims that Frank
ordered the EMG only after this lawsuit was filed, in an effort to disprove
Patterson’s claims of pain. (Docket #67 at 14). Frank admits that he was
seeking to either substantiate or disprove Patterson’s allegations of pain,
but he also avers that this was a medically acceptable thing to do, as it
would better define the underlying causes of Patterson’s claims of pain. See
(Docket #55 at 9). Other than Patterson’s speculation of animus, there is
nothing suggesting that Frank’s decision to order or not order the test
constituted deliberate indifference. Gamble, 429 U.S. at 107 (“[T]he question
whether an X-ray or additional diagnostic techniques or forms of treatment
is indicated is a classic example of a matter for medical judgment.”).13

Another example is Frank’s alleged promise to update Patterson’s
wheelchair restriction to unlimited use, which Patterson says Frank failed to
follow through on and lied about afterward. (Docket #78 at 35–36). What Patterson
lacks is any evidence showing that unlimited wheelchair use was medically
indicated or that failure to order the same constituted deliberate indifference to his
needs. In fact, Patterson does not dispute that the Special Needs Committee made
the final decision about the wheelchair.
13

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The remainder of Patterson’s allegations of medical mistreatment
coupled with a cover-up conspiracy are similar, and so the Court declines
to review each in granular fashion. On the record as a whole, the Court finds
that Patterson’s medical deliberate indifference claim must be dismissed.
3.4

State Law Claim Concerning Medical Care

Patterson’s final claim, medical malpractice under Wisconsin state
law, is grounded on the same facts discussed in the previous Part. See supra
Part 3.3. This claim, however, is more easily disposed of, since Wisconsin
state law usually requires, as part of a prima facie medical malpractice case,
that a plaintiff establish the standard of care through expert testimony.
Carney-Hayes v. N.W. Wis. Home Care, Inc., 699 N.W.2d 524, 537 (Wis. 2005).
Patterson has offered none.
Nor has Plaintiff proffered facts supporting the only alternative to
expert testimony on the standard of care: namely, that the standard of care
“[is] within the area of common knowledge and lay comprehension.” Olfe
v. Gordon, 286 N.W.2d 573, 576 (Wis. 1980). Nothing in the evidence reflects
that the medical matters at issue would be part of the “ordinary experience
of mankind,” Cramer v. Theda Clark Mem’l Hosp., 172 N.W.2d 427, 429 (Wis.
1969), which normally includes things like “the removal of the wrong body
part despite a correct preoperative diagnosis or leaving a surgical
instrument in the patient,” Jeckell v. Burnside, 786 N.W.2d 489, at *2 (Wis. Ct.
App. 2010). Instead, it is clear that assessing the propriety of Defendants’
actions with respect to Patterson’s care would “require special learning,
study, or experience.” Cramer, 172 N.W.2d at 429. As a result, Patterson was
required to secure expert testimony to explain these matters to the jury, and
this he has not done. His claim must, therefore, be dismissed.

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4.

CONCLUSION
Viewing the record evidence in the light most favorable to Patterson,

there is insufficient evidence to raise triable issues of fact as to any of his
claims. The record and the relevant authorities oblige the Court to dismiss
this case in its entirety.14
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #54) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion for appointment
of counsel (Docket #81) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Defendants’ motion to strike
Plaintiff’s sur-reply in opposition to their motion for summary judgment
(Docket #84) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Defendants John and Jane Does 1–
10 be and the same are hereby DISMISSED from this action; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.

Patterson joined numerous Doe defendants in this action. See (Docket #1).
The Court ordered him to use discovery to ascertain their identities. (Docket #9 at
4). The Court set a deadline of January 4, 2017, for him to do so and file an amended
complaint identifying these individuals. (Docket #13 at 1). Patterson did not do so,
nor did he ask for the Court’s assistance in this endeavor. As a result, the Court
will dismiss the Doe defendants. See Donald v. Cook County Sheriff’s Dep’t, 95 F.3d
548, 556 (7th Cir. 1996).
14

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Dated at Milwaukee, Wisconsin, this 31st day of July, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Court

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