Adell v. Hepp et al

Filing 11

ORDER signed by Judge J.P. Stadtmueller on 4/10/2017 DISMISSING Plaintiff's claims under the Americans with Disabilities Act, the Rehabilitation Act, and the Fourteenth Amendment Equal Protection Clause. Plaintiff permitted to proceed against all Defendants on the following claims arising from the RHU water supply: 1) deliberate indifference to Plaintiff's serious medical needs, in violation of the Eighth Amendment and 2) inadequate conditions of confinement, in violation of the Eigh th Amendment. Copies of Plaintiff's Amended Complaint and this Order to be sent electronically to Wisconsin DOJ for service on Defendants; Defendants to file responsive pleading within 60 days. See Order. (cc: all counsel, via mail to Mark Anthony Adell and Warden at Wisconsin Secure Program Facility)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARK ANTHONY ADELL,
Plaintiff,
v.
RANDALL HEPP, CHRIS
KRUEGER, MAGGIONCALDA,
CAPTAIN CONGDON, and MARK
SCHOMISCH,
Defendants.

Case No. 17-CV-267-JPS

ORDER

On March 14, 2017, the Court screened Plaintiff’s original complaint.
(Docket #9). The Court found that Plaintiff’s complaint joined many unrelated
claims against unrelated defendants, in violation of Federal Rules of Civil
Procedure 18 and 20, as well as George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007). Id. The Court struck the original complaint but permitted Plaintiff to
file an amended complaint. Id. Plaintiff filed an amended complaint on March
22, 2017. (Docket #10).1
As noted in the first screening order, the Court is required to screen
complaints brought by prisoners seeking relief against a governmental entity
or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
Court must dismiss a complaint, or portion thereof, if the prisoner has raised

1

As he did with his original complaint, see (Docket #9 at 4 n.1), Plaintiff attached
to his amended complaint many pages of exhibits. See (Docket #10-2). As before,
the Court ignored these documents, since a complaint must be judge solely on the
allegations within its four corners. Hill v. Trustees of Ind. Univ., 537 F.2d 248, 251
(7th Cir. 1976).

claims that are “frivolous or malicious,” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a defendant who is
immune from such relief. Id. § 1915A(b). All of the standards cited in the first
screening order remain applicable here. (Docket #9 at 1–3).
In Plaintiff’s original complaint, he described a series of unrelated
episodes that occurred during his incarceration at Foxlake Correctional
Institution (“FCI”), where he was housed from March 11, 2014 until January
24, 2017. (Docket #9 at 4). The Court found it to be a complaint of the
“kitchen-sink variety” and directed Plaintiff to narrow his allegations to
related claims and defendants. Id. at 9–10. In the amended complaint,
Plaintiff largely accomplishes that goal by focusing his attention on one of the
episodes described in his original complaint: the contaminated water in the
restrictive housing unit (“RHU”) at FCI. (Docket #10). Plaintiff names as
defendants FCI’s warden, Randall Hepp (“Hepp”), the deputy warden, Chris
Krueger (“Krueger”), the security director, Mark Schomisch (“Schomisch”),
the security supervisor, Captain Congdon (“Congdon”), and the building and
grounds supervisor, Mr. Maggioncalda (whose first name is not provided).
Id. at 2.
The predicate for Plaintiff’s complaint is that he has chronic ulcerative
colitis as a complication of Crohn’s disease. Id. at 3. According to Plaintiff,
this condition means that he has to use the restroom often and that the need
to do so arises urgently and without warning. Id. at 4. Plaintiff contends that
he needs constant access to toilet facilities on demand to avoid the possibility
of incontinence. Id. He also has to take medications daily to treat the

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condition, though these do not solve the problem of his urgent need to use
the restroom. Id.
This condition caused Plaintiff special problems when dealing with the
allegedly unsafe water supply at FCI. Plaintiff asserts that the water was
often brown, with a “putrid sulfuric odor to it.” Id. at 5. He further claims
that Hepp, Schomisch, and Maggioncalda posted warnings in the prison
indicating that inmates with auto-immune diseases like Plaintiff were at a
higher risk of harm from the contaminated water than other inmates. Id.
Plaintiff says that the warnings were not followed by corrective action as to
the water contamination. See id. at 5–6.
As the Court explained in the prior screening order, prison officials
would allow inmates to run faucets indefinitely to clear out the
contamination. Id. But this was not possible in the RHU, where a newly
installed plumbing system limited the flow of water to short bursts. Id. at 6.
Plaintiff accuses each Defendant of playing a part in requesting that the
RHU’s new plumbing system be installed, though he does not explain what
each Defendant’s authority and involvement was in that decision. See id. He
does allege, however, that each Defendant knew that this new system would
prevent inmates in the RHU from flushing out water contamination. Id. at 7.
Plaintiff alleges that when he was housed in the RHU between
December 12, 2016 and January 24, 2017, he lacked safe drinking water. Id. at
7–8. As noted above, Plaintiff needs to take medications daily for his bowel
condition, as well as a “Gatorade drink mix” created with water provided in
the cells, and he claims he was forced to take both using contaminated,
unsafe water when housed in the RHU. Id. Further, Plaintiff states that he

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needed constant access to clean drinking water to combat dehydration caused
by his condition, something that was denied to him in the RHU. Id.
Plaintiff claims that none of the Defendants took corrective action after
Plaintiff alerted them to the unsafe water condition and his particular need
for a safe water supply in inmate grievances submitted between December
2016 and February 2017. Id. at 7. In one instance, Plaintiff submitted a
complaint to Congdon about the water conditions and with a request that he
be single-celled, apparently on the notion that having two inmates in one cell
would strain the already meager water resources available. Id. at 7–9.
Congdon never responded in writing. Id. at 8. Instead, when Plaintiff asked
him about the complaint, Congdon claimed never to have received it and
refused to acknowledge the existence of a problem with the water. Id.
Plaintiff later received a conduct report for refusing to be double-celled with
another inmate in the RHU. Id. at 9. As for Krueger, Plaintiff claims that he
affirmed the dismissal of all of Plaintiff’s inmate grievances in an attempt to
actively hinder Plaintiff’s ability to seek relief from the water problem. Id.
Plaintiff contends that any of the Defendants could have assigned him to a
single cell in the RHU or transferred him to another institution where his
needs could have been better accommodated, but they all balked at these
requests. Id.
Plaintiff alleges that Defendants’ conduct displayed deliberate
indifference to his serious medical needs, in violation of the Eighth
Amendment, and constituted denial of reasonable accommodations for his
bowel conditions, in violation of the Americans with Disabilities Act and/or
the Rehabilitation Act. He also asserts that the denial of safe drinking water

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constituted cruel and unusual punishment, in violation of the Eighth
Amendment, and was a denial of equal protection of the law, in violation of
the Fourteenth Amendment.
Plaintiff’s claims related to the deprivation of clean water and
deliberate indifference to his medical needs may proceed, but the other
claims may not. First, Defendants, all individual employees of the Wisconsin
Department of Corrections, are not amenable to suit under the Americans
with Disabilities Act or the Rehabilitation Act. Jaros v. Ill. Dep’t of Corr., 684
F.3d 667, 670 (7th Cir. 2012); Garcia v. S.U.N.Y. Health Sci. Ctr. of Brooklyn, 280
F.3d 98, 107 (2d Cir. 2001). Thus, these claims must be dismissed.
Second, Plaintiff’s equal protection claim cannot proceed because the
Supreme Court has not recognized individuals with bowel diseases, like
Plaintiff, as constituting a suspect class under the Fourteenth Amendment. See
Mlaska v. Schicker, Case No. 15-cv-00918-MJR, 2015 WL 6098733, at *11 (S.D.
Ill. Oct. 16, 2015) (finding that group of inmates with a certain type of
medical condition did not constitute a suspect class). Where a non-suspect
class is implicated in such a claim, prison administrators are constitutionally
entitled to treat prisoners differently “as long as the unequal treatment is
rationally related to a legitimate penological interest.” Flynn v. Thatcher, 819
F.3d 990, 991 (7th Cir. 2016). As Plaintiff concedes in his complaint, the lowflow water provision in the RHU is rationally related to the prison’s interest
in imposing discipline on those prisoners who engage in misconduct and are
moved into restricted housing. (Docket #10 at 6). This is reason enough for
the prison’s decision to install this particular plumbing system, at least
insofar as the Equal Protection Clause is concerned. See Al-Alamin v. Gramley,

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926 F.3d 680, 686 (7th Cir. 1991) (noting that prisons have legitimate interests
in security, crime deterrence, and prisoner rehabilitation).
The result is the same even when Plaintiff’s allegations are construed
as a “class of one” equal protection claim. A “class of one” claim arises when
a plaintiff alleges that he has been “intentionally treated differently from
others similarly situated and that there is no rational basis for the difference
in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Plaintiff’s allegations make clear that he was treated just like every other
prisoner assigned to the RHU; indeed, the thrust of his complaint is that he
should have received different treatment because of his medical needs. See
(Docket #10 at 12). Thus, he was not intentionally treated differently from
anyone else, and his equal protection claim must be dismissed.
Plaintiff has, however, stated a claim based upon inadequate
conditions of confinement. Such a claim has two parts. Townsend v. Fuchs, 522
F.3d 765, 773 (7th Cir. 2008). First, the conditions must be “sufficiently
serious” so that “‘a prison official’s act or omission results in the denial of the
minimal civilized measure of life’s necessities.’” Id. (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (internal quotations omitted)). If the
prisoner passes that threshold, the court next examines whether prison
officials acted with “deliberate indifference” to the alleged conditions. Id.
“Deliberate indifference” means that the official knew that the inmate faced
a substantial risk of serious harm in the alleged conditions and yet
disregarded that risk by failing to take reasonable measures to address it. Id.
Here, Plaintiff’s claim meets the low bar required at the screening stage to
show that he suffered sufficiently serious conditions while confined in the

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RHU—that is, deprivation of clean drinking water, which affected his ability
to treat his bowel conditions and stay hydrated—and that Defendants knew
of the deprivation and ignored it. Of course, “failing to provide a maximally
safe environment, one completely free from pollution or safety hazards,” is
not required by the Constitution. Caroll v. DeTella, 255 F.3d 470, 472 (7th Cir.
2001). But at this early stage, the Court finds is appropriate that Plaintiff’s
claim should proceed.2
For similar reasons, Plaintiff’s claim for deliberate indifference to his
serious medical needs may proceed past screening. To state a claim of
deliberate indifference to a serious medical need, 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 here, like that

2

As in his original complaint, Plaintiff tries to litigate unrelated issues, though
this time the problem is not as egregious. Toward the end of the amended
complaint, Plaintiff expands on his allegations about doubling up of prisoners in
the RHU cells. (Docket #10 at 9–10). He complains that the RHU cells are designed
for one and that being doubled up forced him to sleep on a mattress on the floor.
Id. Additionally, he worried that doubling up prisoners in the RHU exposed one
prisoner to punishment if his cellmate decided to act out. Id. To the extent Plaintiff
alleges that he needed a single cell to accommodate his medical needs, that falls
within the scope of the rest of his allegations. However, to the extent Plaintiff
alleges that being doubled up in a cell exposes him to other dangers—like
additional discipline or uncomfortable sleeping conditions—these have nothing
to do with his medical needs or the water supply. They are a challenge to
conditions of confinement in the RHU, but unlike the water problem, here Plaintiff
makes no allegation that connects each of the Defendants to the double-celling
policy. Consequently, the joinder of this claim violates George, 507 F.3d at 607, and
so it will be dismissed without prejudice for him to pursue elsewhere if he
chooses.

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applicable to conditions of confinement, 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, 511 U.S. at 843). 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).
Construing Plaintiff’s allegations liberally, the Court finds that Plaintiff
can proceed on his claim that Defendants knew of his serious medical needs
and engaged in several activities—including installing a particular plumbing
system in the RHU and ignoring his requests for single-celling, transfer, or
other accommodation—that showed deliberate indifference to those needs.
Of course, Plaintiff faces an uphill battle on his claim, since he must show that
Defendants each knew of his medical needs (an allegation the Court must
assume as true at present), and that Defendants displayed objective
deliberate indifference to those needs, which is hard to prove with respect to
non-medical prison officials, who are typically entitled to rely on the care
being provided by prison medical staff. Greeno v. Daley, 414 F.3d 645, 656 (7th
Cir. 2005); Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004))
The Court also harbors concern that some of the defendants, such as
Maggioncalda, are joined here only on the allegation that they violated a
general duty to keep prison conditions safe for inmates. See (Docket #10 at
11). This is not the sort of personal involvement in a constitutional

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deprivation which Section 1983 requires. Gentry v. Duckworth, 65 F.3d 555, 561
(7th Cir. 1995). Nor is negligence actionable under Section 1983. Johnson v.
Snyder, 444 F.3d 579, 585 (7th Cir.2006). Yet, construing the allegations
presented in Plaintiff’s favor, he will be permitted to proceed at this time
against all the Defendants.
For the reasons stated above, Plaintiff will be permitted to proceed
against all the Defendants on the following claims: (1) deliberate indifference
to his serious medical needs, in violation of the Eighth Amendment, arising
from the RHU water supply; and (2) inadequate conditions of
confinement—specifically, the denial of clean water in the RHU—in violation
of the Eighth Amendment.
Accordingly,
IT IS ORDERED that Plaintiff’s claims under the Americans with
Disabilities Act, the Rehabilitation Act, and the Fourteenth Amendment
Equal Protection Clause be and the same are hereby DISMISSED;
IT IS FURTHER ORDERED that pursuant to an informal service
agreement between the Wisconsin Department of Justice and this Court,
copies of Plaintiff’s complaint and this order will be electronically sent to the
Wisconsin Department of Justice for service on Defendants;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court,
Defendants shall file a responsive pleading to the complaint within sixty (60)
days of receiving electronic notice of this order; and
IT IS FURTHER ORDERED that a copy of this order be sent to the
warden of the institution where the inmate is confined.

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Dated at Milwaukee, Wisconsin, this 10th day of April, 2017.
BY THE COURT:

_________________________________
J.P. Stadtmueller
U.S. District Judge

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