Brown v. Eck
ORDER signed by Judge J.P. Stadtmueller on 3/9/2018: GRANTING 26 Defendant's Motion for Summary Judgment; DENYING 22 Plaintiff's Motion for Summary Judgment; and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Devin L. Brown at Oshkosh Correctional Institution) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEVIN L. BROWN,
Case No. 16-CV-979-JPS
Plaintiff Devin L. Brown (“Brown”), a prisoner, brings this action
pursuant to 42 U.S.C. § 1983 against Defendant James Eck (“Eck”), a
correctional officer at Green Bay Correctional Institution (“GBCI”). Brown
alleges that Eck was deliberately indifferent to his serious medical needs, in
violation of his rights under the Eighth Amendment. Before the Court are
the parties’ cross-motions for summary judgment. (Docket #22, #26). For the
reasons stated below, Eck’s motion will be granted, Brown’s motion will be
denied, and the case will be dismissed.
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. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).
This case concerns an interaction between Brown and Eck in the
early morning hours of September 13, 2015, while Brown was incarcerated
in Dorm A at GBCI. Eck was assigned to Dorm A for the third shift, from
10:00 p.m. on Saturday, September 12 until 6:00 a.m. on Sunday, September
13. Medical staff were not present at the prison from midnight until around
5:30 a.m. that Sunday, although they were always available by phone.
Eck and another officer were supervising 111 inmates on Dorm A
during this shift. Dorm A is a dormitory style wing, with rows of beds
occupying the center of a large open room. The inmates are not contained
in individual cells. Upon entering Dorm A, there is an officer in the control
center who opens and closes the doors. This officer is located on the same
level as the bunks. There is also a sergeant and a second officer who sit at
an elevated desk above the bunk area with a view of the bunks as well as
At times, Brown attempted to dispute certain of Eck’s factual assertions
without providing any contrary evidence at all—not even his own sworn
testimony. See, e.g., (Docket #40 ¶¶ 10–12, 21, 23, 26–27, 35–36). Evidence-free
assertions are not enough to raise a valid dispute, and so the Court treated those
facts as undisputed. See Fed. R. Civ. P. 56(c)(1); Civ. L. R. 56(b)(2)(B)(i).
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the shower and dayroom. If an inmate wishes to communicate with staff,
he can get out of his bunk and walk to the officer in the control center, or to
the sergeant’s station.
During third shift on September 12, Eck was at times the officer
sitting with the sergeant at the elevated desk and at other times actively
patrolling the inmates’ sleeping area. Around 2:00 a.m. on Sunday morning,
Eck was seated at the sergeant’s desk with another officer, Sergeant Spoerl.2
Brown approached Eck and told him he was not feeling well. The
parties dispute exactly what Brown said, but Brown claims that he reported
having “throbbing” chest and back pain and difficulty breathing. (Docket
#27 ¶ 1). Eck denies that Brown said this. In any event, Eck did not observe
Brown sweating, having difficulty breathing, or showing any other
behaviors that would indicate he was in pain, despite the fact that Brown
was approximately five to six feet in front of Eck.
Eck did not inquire further about Brown’s condition. Instead, he told
Brown that the nursing staff had left the institution as of midnight. Brown
alleges that Eck then told Brown he would “have to wait.” Id. ¶ 2. Brown
then walked back to his bunk, and Eck observed that he did so without
apparent difficulty. Brown did not approach the sergeant’s desk or the
control officer’s desk for the rest of the shift to report that he was not feeling
Brown vehemently denies that Spoerl was there, see (Docket #35 at 5), but
he cites no evidence supporting his view. Moreover, although Brown appears
intent upon vindicating his precise recollection of the events of September 12–13,
it simply does not matter whether Spoerl was seated next to Eck for purposes of
Brown’s claim. Additionally, Brown’s gripes about Eck’s discovery responses,
littered throughout his submissions on summary judgment, are wholly inapposite
to the issues before the Court. If Brown had a reason to believe that Eck was
refusing to answer proper discovery requests, a motion to compel was the
procedural vehicle in which to raise such concerns.
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well or otherwise indicate that he wanted medical attention. Eck conducted
two sets of rounds during that shift after Brown had approached him.
During those rounds, Brown did not repeat to Eck that he was not feeling
well or indicate in any way that he wanted medical attention. Eck was also
able to observe the entire sleeping area both from his position at the
sergeant’s desk and while he was patrolling the sleeping area, and Brown
did not catch Eck’s attention from Brown’s bed that night in a manner
suggesting that Brown was in distress (e.g., thrashing, sitting up or
standing, calling out, etc.). None of the other officers on the third shift
observed Brown having any health issue that night, either. See (Docket #40
Nevertheless, Brown claims that he suffered “unbearable pain” until
the morning shift change. (Docket #25 ¶ 4). He asserts that he “chose not to
be disruptive after following the proper steps to seek medical attention.”
(Docket #35 at 3).
Eck’s shift ended at 6:00 a.m. Around the time of the shift change,
Brown spoke with the next shift’s sergeant assigned to Dorm A. That
sergeant called the Health Services Unit (“HSU”) of the prison, which by
that time was staffed, and relayed Brown’s report that he was having
problems breathing. Brown alleges this occurred at around 5:30 a.m., while
documents suggest it occurred at around 8:15 a.m. Brown also filled out an
HSU request for care and delivered it to the nurse who was making her
regular rounds at 6:45 a.m. The nurse did not deem it necessary to give
Brown immediate medical attention. Instead, Brown was added to the sick
call list and was seen the next morning on Monday, September 14.
At that appointment, Brown reported pain in his back and his right
side. He claimed that he did not suffer an acute injury and had been trying
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to stretch the affected area. He reported that it hurt to lay down. The nurse
examined Brown and concluded that he displayed no acute distress, had an
even and steady gait, had no visual or palpable abnormalities on his back,
side, or chest, and had no redness or swelling. The nurse also assessed that
Brown had no apparent abnormalities relating to his psychological
condition, respiratory system, cardiovascular system, or musculoskeletal
system. The nurse diagnosed “alteration in comfort,” meaning pain,
provided ibuprofen and a muscle rub, and told Brown to rest. The nurse
deemed a referral to an advanced care provider unnecessary. Although a
follow-up appointment with nursing staff was apparently scheduled for
one week later, Brown was not seen again, and did not request to be seen
again, regarding this ailment.
The dispute in this case is simple: was Eck required to immediately
contact the on-call nurse upon Brown’s complaint of pain and difficulty
breathing? Brown says yes, arguing that prison policy and concern for
inmates’ well-being demanded it. Eck disagrees, contending that Brown
may not demand health care exactly when and how he desires. Because
Brown did not appear to be in any immediate distress, Eck believes that he
rightfully told Brown to wait.
To prove that Eck was deliberately indifferent to his serious medical
needs, in violation of the Eighth Amendment, Brown must show: (1) an
objectively serious medical condition; (2) that Eck knew of the condition
and was deliberately indifferent in treating it; and (3) this indifference
caused Brown 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,
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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)).
Moreover, it must be remembered that deliberate indifference is
greater 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). Similarly, the operative 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.”).
Brown’s evidence fails to satisfy the first two elements of his claim.
First, he has not proffered sufficient evidence demonstrating that he had an
objectively serious medical need. An objectively serious medical need is
“one that has been diagnosed by a physician as mandating treatment or one
that is so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.” Gutierrez v. Peters, 111 F.3d 1364, 1373
(7th Cir. 1997). It need not be “life-threatening,” id., but to rise to the level
of constitutional seriousness, the condition should constitute “a denial of
the minimal civilized measure of life’s necessities,” Farmer, 511 U.S. at 834.
Thus, a medical need may be deemed serious if it is life-threatening, carries
risks of permanent serious impairment if left untreated, results in needless
pain and suffering when treatment is withheld, Gutierrez, 111 F.3d at 1367–
73, “significantly affects an individual’s daily activities,” Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998), or otherwise subjects the
prisoner to a substantial risk of serious harm, Farmer, 511 U.S. at 834.
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Brown proffers no evidence that he had a pre-existing diagnosis
relevant to his claims of distress on the morning of September 13, such as
asthma or heart problems. Nor would Eck be expected to recognize a need
for treatment from Brown’s conduct that night, since Brown made only one
request for care and then spent several hours in Dorm A without so much
as a whimper. There is also no evidence regarding Brown’s alleged distress
over the course of Sunday the 13th, suggesting that his condition was not
serious. When Brown was eventually seen by HSU personnel on the
morning of Monday the 14th, the nurse found nothing wrong with him at
all. There is no more than a scintilla of evidence in this case that Brown had
a medical need.
Brown suggests that the pain he experienced that night was enough
to constitute a serious medical need. As mentioned above, a delay in care
that causes needless pain can, in certain cases, be enough to implicate the
Eighth Amendment. But because Section 1983 is only concerned with
injuries of constitutional dimension, “the illness or injury for which
assistance is sought [must be] sufficiently serious or painful to make the
refusal of assistance uncivilized.” Cooper v. Casey, 97 F.3d 914, 916 (7th Cir.
1996). Even under Brown’s version of events, there was no way for Eck to
draw the inference that Brown’s pain was so serious that he needed
immediate care. Indeed, other than Brown’s lone request to be seen by
medical personnel around 2:00 a.m., everything about the circumstances
that night pointed to the opposite conclusion. Brown did not cry out, come
back to reiterate his request, or display any distress whatsoever while under
Eck’s watch.3 Cf. Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1039-40 (7th Cir.
A major portion of Brown’s theory of this case rests on the notion that
“[t]he defendant can’t determine the severity of my pain.” (Docket #40 ¶ 37).
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2012) (the plaintiff had alleged a sufficiently serious condition by stating
that he was attacked by another inmate, resulting in eye damage, bleeding,
vomiting, dizziness, and severe pain); Lewis v. McLean, 864 F.3d 556, 558-60,
563 (7th Cir. 2017) (same, for back spasms causing the plaintiff to scream in
pain, and which were ultimately treated with morphine).
Second, even if Brown had a serious medical need, Eck did not act
with deliberate indifference to that need by telling Brown to wait. When an
inmate alleges a delay (rather than complete denial) of medical assistance,
he generally must have medical evidence showing the delay itself was
harmful. Jackson v. Pollion, 733 F.3d 786, 790 (7th Cir. 2013); Langston v.
Peters, 100 F.3d 1235, 1240 (7th Cir. 1996) (inmate must offer “verifying
medical evidence” to show delay was objectively serious). However, when
an inmate alleges he was subjected to prolonged, unnecessary pain, rather
than claiming that the delay worsened an injury or medical condition, the
inquiry shifts to the subjective element of the claim: “‘A delay in treatment
may show deliberate indifference if it exacerbated the inmate’s injury or
unnecessarily prolonged his pain,’ and ‘even brief, unexplained delays in
treatment may constitute deliberate indifference.’” Lewis, 864 F.3d at 563.
Thus, the defendant’s reason for the delay, as well as the seriousness of the
medical need, become the relevant questions. “‘[T]he length of delay that is
tolerable depends on the seriousness of the condition and the ease of
providing treatment.’ Even a few days’ delay in addressing a severely
Technically, this is true; Brown could have suffered severe pain during the entire
night of September 12–13. But every objective indication available to those charged
with his care suggested that he was not in severe pain. Brown cannot go to trial
simply because it is not possible to disprove his subjective assertions of pain.
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painful but readily treatable condition suffices to state a claim of deliberate
indifference.” Smith, 666 F.3d at 1040 (citation omitted).
Based on Eck’s experience and training, and in light of the facts
detailed above, Brown did not present himself as having an emergency
situation. Thus, Eck lacked subjective knowledge of a serious risk to
Brown’s health sufficient to support a finding of deliberate indifference. See
Langston, 100 F.3d at 1238 (“The Court in Farmer also emphasized that
negligence is insufficient to impose liability: ‘[A]n official’s failure to
alleviate a significant risk that he should have perceived but did not, while
no cause for commendation, cannot under our cases be condemned as the
infliction of punishment.’”). Further, Eck followed his normal practice of
informing Brown to wait for medical staff to return to the prison in a few
hours to be seen for his complaints. Eck discharged his limited duty with
respect to medical care by speaking with Eck about his complaints rather
than ignoring him. Finally, because Brown was not in a medical emergency,
Eck was not remiss in instructing Brown to wait for medical staff. Eck had
no reason to believe that Brown’s treatment by HSU personnel would be
inadequate. Greeno v. Daley, 414 F.3d 645, 656 (7th Cir. 2005) (non-medical
correctional staff may rely on expert care afforded by medical professionals
so long as the correctional staff does not entirely ignore the prisoner).
Consequently, no reasonable jury could conclude that Eck was deliberately
indifferent to Brown’s medical needs.
Brown contends that Eck violated prison policy by failing to call the
nurse immediately upon hearing that he had difficulty breathing, failing to
document Brown’s request for care, failing to inquire further about Brown’s
condition, and failing to report Brown’s complaint to his supervisor.
(Docket #23 at 1–4); (Docket #25-1 at 3); (Docket #35 at 3–4, 6–7). Not only
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do the prison policies at issue not appear to dictate such actions, deliberate
indifference does not arise from a violation of prison policy standing alone.
Lewis v. Richards, 107 F.3d 549, 553 n.5 (7th Cir. 1997); Langston, 100 F.3d at
1238. Brown must do more than line up Eck’s conduct against the prison
handbook. He must offer proof which meets the demanding deliberate
indifference standard. See Gayton, 593 F.3d at 622-23 (nurse not deliberately
indifferent by failing to follow protocol when she responded reasonably to
the inmate’s complaints). Brown has not done so here.
Viewing the record evidence in the light most favorable to Brown,
the Court is constrained to grant summary judgment to Eck. Eck’s motion
must therefore be granted, Brown’s motion must be denied, and this case
will be dismissed with prejudice.
IT IS ORDERED that Defendant’s motion for summary judgment
(Docket #26) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion for summary
judgment (Docket #22) be and the same is hereby DENIED; 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.
Dated at Milwaukee, Wisconsin, this 9th day of March, 2018.
BY THE COURT:
J. P. Stadtmueller
U.S. District Court
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