Adell v. Hepp et al

Filing 48

ORDER signed by Judge J.P. Stadtmueller on 12/7/2017 GRANTING 34 Defendants' Motion for Summary Judgment. Plaintiff's claims for inadequate conditions of confinement and deliberate indifference to serious medical needs, in violation of t he Eighth Amendment, DISMISSED. Defendants Randall Hepp, Chris Krueger, John Maggioncalda, John Congdon and Mark Schomisch DISMISSED from action. Remaining Defendants may file a summary judgment motion as to Plaintiff's remaining claims by 12/28/2017; Plaintiff to respond within 21 days of filing of Defendants' motion; Defendants may reply within 7 days thereafter. See Order. (cc: all counsel, via mail to Mark Anthony Adell at Wisconsin Secure Program Facility)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARK ANTHONY ADELL,

v.

Plaintiff,

RANDALL HEPP, CHRIS KRUEGER,
JOHN MAGGIONCALDA, LT. JOHN
CONGDON, MARK SCHOMISCH,
WISCONSIN DEPARTMENT OF
CORRECTIONS, and JON LITSCHER,

Case No. 17-CV-267-JPS

ORDER

Defendants.
Plaintiff Mark Anthony Adell (“Adell”), a prisoner, brings this action
against Defendants, prison officials at Fox Lake Correctional Institution
(“FLCI”), the Wisconsin Department of Corrections (“DOC”), and the DOC
Secretary, Jon Litscher (“Litscher”), for their alleged failure to properly treat
and accommodate Adell’s needs arising from his chronic ulcerative colitis.
Specifically, Adell alleges that he was forced to drink contaminated
drinking water while incarcerated in the restricted housing unit (“RHU”)
at FLCI between December 12, 2016, and January 24, 2017. The Court
allowed Adell to proceed on both constitutional claims under 42 U.S.C. §
1983 and statutory claims under the Americans With Disabilities Act
(“ADA”) and Rehabilitation Act. See (Docket #15). Defendants filed a
motion for summary judgment that addressed the constitutional claims
only. (Docket #34). The motion is fully briefed and, for the reasons stated
below, it will be granted.

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
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
2.1

Adell’s Failure to Dispute the Material Facts

The relevant facts are undisputed because Adell did not properly
dispute them. In the Court’s scheduling order, issued on May 10, 2017,
Adell was warned about the requirements for opposing a motion for
summary judgment. (Docket #18 at 3). Accompanying that order were
copies of Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both
of which describe in detail the form and contents of a proper summary
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judgment submission. Most relevant here is Local Rule 56(b)(2), which
obligates the non-movant on summary judgment to file “a concise response
to the moving party’s statement of facts that must contain a reproduction
of each numbered paragraph in the moving party’s statement of facts
followed by a response to each paragraph, including, in the case of any
disagreement, specific references to the affidavits, declarations, parts of the
record, and other supporting materials relied upon[.]” Civ. L. R.
56(b)(2)(B)(i).
Next, on November 1, 2017, Defendants filed their motion for
summary judgment. (Docket #34). In the motion, Defendants also warned
Adell about the requirements for his response as set forth in Federal and
Local Rules 56. Id. at 1–2. He was provided with additional copies of those
Rules along with Defendants’ motion. See id. at 3–12. In connection with
their motion, Defendants filed a supporting statement of material facts that
complied with the applicable procedural rules. (Docket #35). It contained
short, numbered paragraphs concisely stating those facts which Defendants
proposed to be beyond dispute, with supporting citations to the attached
evidentiary materials. See id.
In response, Adell submitted three documents, none of which
respond to Defendants’ statement of facts in compliance with the Federal
and Local Rules. The first is his brief in opposition to Defendants’ motion.
(Docket #43). It contains a prose recitation of his version of the relevant
events, id. at 2–3, but it neglects to specifically address the numbered
paragraphs set forth in Defendants’ statement of facts. Attached to the brief
are nearly 100 pages of exhibits, including medical records and inmate
grievances. See (Docket #43-1). Similarly, Adell’s other submissions, which
include his affidavit and his own proposed findings of fact, provide few
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citations to actual evidence, and do not address Defendants’ statement of
facts in any fashion. (Docket #44, #45).
Despite being twice warned of the strictures of summary judgment
procedure, Adell ignored those rules by failing to properly dispute
Defendants’ proffered facts with citations to relevant, admissible evidence.
Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Though the Court is required
to liberally construe a pro se plaintiff’s filings, it cannot act as his lawyer,
and it cannot delve through the record to find favorable evidence for him.
See Waldridge, 24 F.3d at 922; Herman v. City of Chicago, 870 F.2d 400, 404 (7th
Cir. 1989) (“A district court need not scour the record to make the case of a
party who does nothing.”). Further, while the Court is cognizant that Adell
lacks legal training, his utter failure to comply with the rules of procedure
is not excusable on that ground alone. Thus, the Court will, unless
otherwise stated, deem Defendants’ facts undisputed for purposes of
deciding their motion for summary judgment. See Fed. R. Civ. P. 56(e); Civ.
L. R. 56(b)(4); Hill v. Thalacker, 210 F. App’x 513, 515 (7th Cir. 2006) (noting
that district courts have discretion to enforce procedural rules against pro se
litigants).
2.2

Facts Material to Defendants’ Motion
2.2.1

FLCI Water System and Compliance Efforts

FLCI has a municipal water system, but is unique in that the owner
of the water system—the State of Wisconsin—also owns all of the buildings
that the water system services. The Wisconsin Department of Natural
Resources (“DNR”) requires regular sampling and testing of drinking
water as part of maintaining any municipal water system. The DNR entered
into a consent order with the DOC to address the water quality at FLCI in
May 2014 after test results showed that despite FLCI’s efforts (and
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following remediation recommended by the DNR), water test samples
continued to show elevated levels of certain elements in the prison’s water
supply.
Drinking water regulations are promulgated by the Environmental
Protection Agency. One such regulation is pertinent here. It is known as the
“Lead and Copper Rule,” and it addresses the transfer of lead and copper
from piping materials into water. The Rule prescribes “action” levels, or
maximum contaminant level limits, for metals including lead, copper, and
arsenic. An “action” level of contaminants does not reflect that the water is
unsafe to consume but rather is the point at which consumer education,
continued investigation, and development of a plan to resolve the issue
become necessary. The action level for lead in the Lead and Copper Rule is
15 parts per billion. Ninety percent of the samples collected must be under
15 parts per billion for compliance. The action level for copper is 1,300 parts
per billion.
Aesthetic issues, such as discolored water or odors, are not
dangerous to human health, and discolored water often results from iron
and manganese. Iron often gives water a rusty hue, and manganese can give
water a brownish or black hue. Discolored water is a very common issue in
all water systems, and all water systems can suffer “events” that may lead
to discolored water. Secondary drinking water regulations address
aesthetic issues with water, which do not pose health concerns, but may
cause staining in sinks and laundry, for example.
In the consent order, FLCI agreed to provide required public
education regarding lead and copper action level exceedances, submit
rehabilitation plans for portions of the water system, and obtain compliance
with Safe Drinking Water Act lead and copper standards. FLCI was also
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required to establish a routine monitoring schedule for lead and copper.
FLCI’s warden, Defendant Randall Hepp (“Hepp”) signed the consent
order on behalf of FLCI. Nothing in the consent order indicated that the
water at FLCI was unsafe for human consumption or that FLCI should
provide water from another source for drinking by FLCI inmates and staff.
To comply with the consent order’s requirement that a
comprehensive water study be completed, the State hired expert engineer
Abigail Cantor (“Cantor”). Cantor was first contacted by the Wisconsin
Department of Administration after FLCI experienced Lead and Copper
Rule compliance issues in 2013. Cantor consults on water quality issues in
water distribution systems stemming from the Lead and Copper Rule
nationwide. Cantor’s approach to water quality analysis “promote[s] the
use of many measurements of water quality in order to make decisions
about the system. [Cantor] has a technique to determine the mechanisms
that are causing the lead and copper to transfer to the water and then
[suggests] remedies for inhibiting the transfer.” (Docket #35 ¶ 20). Cantor
is typically hired to investigate an existing problem within water
distribution systems. In addition to discovering the origin of the problem
and advising what needs to be done to remedy it, she also recommends a
proactive approach to solving future problems, including continued data
collection and routine water evaluation.
Cantor was hired by the State to analyze FLCI’s municipal water
system, the distribution system, and the water quality within the buildings.
Cantor’s initial work at FLCI included the installation of a monitoring
system in June 2013. The State also hired an independent laboratory to take
weekly water samples at FLCI. Further, because Cantor is not a well expert,

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she recommended, and the State hired, Dr. Andrew Jacques to investigate
the wells that are connected to the system.
Cantor continues to be involved with water quality monitoring at
FLCI, continues to receive these weekly water quality sample reports, and
advises FLCI regarding the water quality. Cantor works directly with
William Weisensel, a non-defendant, who is the utility plant operator at
FLCI. Cantor worked on water quality issues with FLCI for at least three
years before the time that is relevant to Adell’s claims.
2.2.2

Adell’s Complaints Regarding Water Quality

Against this backdrop, the facts directly relevant to Adell’s claims
are quite limited. Adell has chronic ulcerative colitis as a complication of
Crohn’s disease. According to him, this condition means that he has to use
the restroom often and that the need to do so arises urgently and without
warning. He also needs to take medications daily, including a daily drink
mix to replenish his electrolytes.
From March 11, 2014 until January 24, 2017, Adell was housed at
FLCI. Between December 12, 2016 and January 24, 2017, Adell was housed
in the RHU at the prison. When he was first taken the RHU, a correctional
officer attempted to place him in a cell with another inmate. When Adell
refused, he was assigned to a single-person cell, which he occupied for the
entire time he was in RHU. He was separately issued a conduct report for
his disobedience. On January 24, 2017, Adell was transferred to the
Wisconsin Secure Program Facility (“WSPF”).1

Adell is unhappy that he was disciplined for requesting a single cell,
which he believed he was entitled to, see (Docket #43 at 2), but the disciplinary
proceedings have no bearing on the disposition of the present motion.
1

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Elevated levels of manganese and iron were detected at FLCI
following testing in June 7, 2016. Iron and manganese compounds are
common in Wisconsin groundwater. Manganese and iron are regulated
only via “secondary standards,” which are used to judge taste, color, and
smell of drinking water. The water test results also showed that lead and
copper levels were well below action levels prescribed in the Lead and
Copper Rule. On June 30, 2016, Warden Hepp sent a notice to all inmates
and prison staff explaining that lead and copper testing showed both to be
well within acceptable limits.
The DNR notified FLCI in a letter dated October 10, 2016 that the
elevated levels of iron and manganese were above aesthetic levels but did
not create a health risk. DNR required that FLCI post a notice to warn
inmates and staff about these elements. The notice explained that the water
remained safe to drink, although it might not look, smell, or taste very good.
It also stated that infants, young children, and those with liver disease were
at risk of health problems if they had prolonged exposure to high levels of
manganese in water. The notice said nothing about auto-immune or bowel
conditions.
Cantor testified at her deposition in a related case that some
unknown event around October 31, 2016, perhaps in the well or in the
piping system, caused a disturbance in the water system which released
some additional iron into the water supply, discoloring it. Adell first
complained of contaminated water on November 16, 2016, when he filed an
offender complaint. He wrote: “[t]he water here at FLCI is contaminated
and the water report itself confirms that people with the type of medical
problems I have (autoimmune) are at a high risk. . . . While at recreation the
water is unsafe as it pertains to my consumption.” (Docket #38-1 at 11–12).
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The complaint was returned to Adell because it contained more than one
issue. He was instructed to address his medical issues to the health services
manager and his issues with restroom use, water quality, and requesting an
institution transfer to the program director. Adell failed to do so and the
complaint was dismissed by the inmate complaint examiner. Chris Krueger
(“Krueger”), the deputy warden, affirmed the dismissal.
Cantor noted that there has only been one lead release event since
she has monitored FLCI. That event occurred in December 2016, and was
caused during maintenance on the prison’s fire protection system, which is
connected to the municipal water system. Cantor theorizes that the fire
suppression contractor opened and closed the valves quickly during
testing, which likely resulted in the disturbance of accumulations, which
caused discolored water. If discolored water is discovered at FLCI, the
facilities manager and water systems operator flush the system to get the
disturbed accumulation out, and they did so in January 2017.
Adell submitted another complaint on December 16, 2016, four days
after entering the RHU, stating that “[t]he water at FLCI is contaminated.
Advisory memos suggest that we allow the water to run in advance of
drinking it to allow contaminants to be flushed. But for the new plumbing
system installed at the seg building that is impossible. The system restricts
use of water to 4 pushes per hour. . .every cup of water contains small metal
flakes that settle at the bottom of the cup. There is no possible way to flush
the system because it will lock you out.” (Docket #38-2 at 7). This complaint
was rejected as moot because Adell was transferred to WSPF before the
complaint was investigated. Krueger affirmed the rejection.
On December 13, 2016, the DNR sent a “close out” letter to DOC
regarding the May 2014 consent order. DNR commended DOC for their
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work and cooperation and noted that DNR would not take further action,
because the most recent sampling showed that FLCI was in compliance
regarding lead and copper levels, which were the primary concerns
addressed in the consent order.
On December 22, 2016, a public notice was posted at FLCI
concerning the close-out of the consent order and the most recent water test
results which demonstrated that lead and copper levels were well below
the established thresholds for compliance. The notice warned that if the
inmates wanted to further reduce their exposure to lead and copper in the
drinking water, they could run the faucet briefly before drinking.
Adell submitted one other relevant complaint, on January 14, 2017.
The complaint states that the water in the toilet and sink “had a brown tinge
and sulfuric scent. Due to the water restrictions limited access to
water/toilet usage, I was unable to flush the system—doing so would cause
the water to lock me out of the system for one hour—only a few
flushes/water button pushes allowed.” (Docket #38-3 at 7). This complaint
was rejected as moot because Adell had already been transferred to WSPF.
Krueger affirmed the rejection.
Tests conducted on April 26, 2017 show that the lead and copper
detected in the RHU building were well below the action level for these
metals. There are no test results that show that Adell was exposed to levels
of lead and copper that would negatively impact his health.
3.

ANALYSIS
In this case, Adell was permitted to proceed on two constitutional

claims and two statutory claims. The constitutional claims, alleging
inadequate conditions of confinement and deliberate indifference to Adell’s
serious medical needs, both arise under the Eighth Amendment and are
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asserted against Hepp and Krueger, as well as Mark Schomisch, the FLCI
security director, John Congdon, the prison security captain, and John
Maggioncalda, the buildings and grounds supervisor. The two statutory
claims, each alleging intentional discrimination and failure to provide
reasonable accommodations for Adell’s ulcerative colitis, arise under Title
II of the ADA and the Rehabilitation Act, respectively. The statutory claims
are asserted only against the DOC and Litscher.
As noted above, in their motion Defendants addressed only the
constitutional claims. Those claims can be easily disposed of, as the
undisputed facts reveal that the water at FLCI was not unsafe for drinking.
The Court will address each in turn.
3.1

Conditions of Confinement

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
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
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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. It is “obduracy and wantonness, not inadvertence
or error in good faith, that characterizes the conduct prohibited by [the]
Eighth Amendment[.]” Whitley v. Albers, 475 U.S. 312, 319 (1986).
Adell’s conditions-of-confinement claim fails because the FLCI
water supply was simply not unsafe as a factual matter. The Seventh
Circuit’s decision in Carroll v. DeTella, 255 F.3d 470 (7th Cir. 2001),
underscores the point. In that case, an inmate alleged that the prison
drinking water was contaminated with lead and radium. Id. at 471. The lead
resulted from corrosion in the pipes, and running the water for a few
minutes before drinking eliminated any lead hazard. Id. at 471–72.
If this was all Carroll said, Adell would be happy to rely upon it, since
the thrust of his complaint is that the RHU’s burst-based water delivery
system made it impossible to flush the water lines properly. But that was
not the end of Carroll. The water also contained radium at almost twice the
maximum level set by the EPA. Id. at 472. The court noted that the EPA was
considering raising the maximum tolerable level of radium because of the
low risk of harm from higher levels thereof, but it had not done so yet. Id.
The court nevertheless denied the claim, noting that “failing to
provide a maximally safe environment, one completely free from pollution
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or safety hazards, is not[]” cruel and unusual punishment. Id. “Many
Americans live under conditions of exposure to various contaminants,”
wrote Judge Posner, and “[t]he Eighth Amendment does not require
prisons to provide prisoners with more salubrious air, healthier food, or
cleaner water than are enjoyed by substantial numbers of free Americans.”
Id. The court held that
it would be inconsistent with this principle to impose upon
prisons in the name of the Constitution a duty to take
remedial measures against pollution or other contamination
that the agencies responsible for the control of these hazards
do not think require remedial measures. If the environmental
authorities think there’s no reason to do anything about a
contaminant because its concentration is less than half the
maximum in a proposed revision of the existing standards,
prison officials cannot be faulted for not thinking it necessary
for them to do anything either. They can defer to the superior
expertise of those authorities.
Id. at 473. In sum, “[p]rison officials do not demonstrate deliberate
indifference to the inmates’ welfare which is the sine qua non of cruel and
unusual punishment when they refuse to take measures against hazards
that they reasonably believe to be nonexistent or slight.” Id.
If exceeding the EPA’s prescribed element levels did not support a
claim in Carroll, complying with them—which FLCI did here—certainly
cannot. At FLCI, the levels of copper, lead, manganese, and iron in the
water did not exceed any EPA health standards in December 2016 or
January 2017, when Adell was housed in the RHU. On December 13, 2016,
the DNR closed out the 2014 consent order regarding lead and copper.
Recent testing before and after this time showed that the lead and copper
levels were well below the applicable thresholds. The iron and manganese
levels, although they spiked during this time, likewise did not exceed any
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health standards. In short, while FLCI certainly has had severe water
quality issues in the past, the record evidence indicates that during the
period relevant to this lawsuit, the water met all purity standards. Because
the water “survived regulatory scrutiny, it cannot plausibly serve as the
basis for a constitutional claim.” Moore v. Monahan, 428 F. App’x 626, 630
(7th Cir. 2011); see also White v. Monoham, 326 F. App’x 385, 387 (7th Cir.
2009) (inmate stated claim for water pollution by submitting evidence that
the water quality fell below EPA standards).
Adell complains that he was not able to secure expert testimony to
contradict the water-quality analyses submitted by Defendants, see (Docket
#43 at 7), but his imprisonment and indigency are not excuses for this
failure, see Porter v. Dep’t of Treasury, 564 F.3d 176, 180 n.3 (3d Cir. 2009). To
be sure, there is no per se rule that expert testimony is required in a case like
this one. But the key here is that Adell’s personal conjecture cannot prove
that the water was unsafe for his consumption. He asserts, without
evidentiary support, that he required especially clean drinking water as a
result of his ulcerative colitis. See (Docket #43 at 3); (Docket #47 ¶ 8). He
further alleged in his inmate grievances that the RHU water supply had a
brown tinge, a sulfurous odor, and contained metal flakes. (Docket #43 at 3,
7). Additionally, he could not flush out the apparently dirty water before
drinking, as was possible in other areas of the prison, because of the burst
delivery of water in the RHU. Id. at 8. Yet this criticism does not overcome
the facts, which establish that the water supply, while perhaps not pristine,
was not a health hazard. Beyond suggesting that Cantor’s analysis is “junk”
science, id. at 7, he has no evidence on this score.
Put differently, saying that the Constitution mandates clean
drinking water is both true and irrelevant. Such a truism does not prove
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that Adell had special water purity needs or that FLCI’s water was unsafe.
Adell’s reliance on Helling v. McKinney, 509 U.S. 25 (1993), is thus misplaced,
for there the Court explained that “a prison inmate also could successfully
complain about demonstrably unsafe drinking water without waiting for an
attack of dysentery.” Id. at 32 (emphasis added). Contrary to Adell’s belief
that the Court “must accept as true” that the water was unsafe for him, he
was obligated to come forward with evidence substantiating this. (Docket
#43 at 6). He did not. Therefore, this claim fails as a matter of law.
3.2

Deliberate Indifference to Serious Medical Needs

Adell’s other constitutional claim asserts that Defendants acted with
deliberate indifference to his medical needs by subjecting him to
contaminated drinking water while he was housed in the RHU. This claim
fails for largely the same reasons as the conditions-of-confinement claim—
namely, that there is no evidence from which a reasonable jury could
conclude that FLCI’s water was harmful to him.
To establish that Defendants were deliberately indifferent to his
serious medical needs, in violation of the Eighth Amendment, Adell was
required to show: (1) an objectively serious medical condition; (2) that
Defendants knew of the condition and were deliberately indifferent in
treating it; and (3) this indifference caused him some injury. Gayton v.
McCoy, 593 F.3d 610, 620 (7th Cir. 2010).2 The deliberate indifference inquiry
with respect to medical needs is functionally identical to that applied to his
conditions-of-confinement claim. “The official must have subjective
knowledge of the risk to the inmate’s health, and the official also must

Defendants concede for purposes of their motion that Adell’s bowel
condition qualifies as an objectively serious medical condition. (Docket #39 at 10
n.5).
2

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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)).
Further, “an inmate has no claim unless the official knows of and
disregards an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.” Dale v.
Poston, 548 F.3d 563, 569 (7th Cir. 2008) (internal quotation marks omitted;
citation omitted). Even if a prison official failed to alleviate a significant risk
of harm he or she should have perceived, there is no liability without actual
knowledge. Whiting v. Marathon County Sheriff’s Dep’t, 382 F.3d 700, 704 (7th
Cir. 2004).
Additionally, for purposes of this claim it is important to appreciate
that Section 1983 creates a cause of action based upon personal liability and
predicated upon fault. There is no vicarious liability under the statute.
Monell v. Dep’t of Social Servs., City of NY, 436 U.S. 658, 690–91 (1978).
Consequently, it is not enough to allege that an official is liable on the basis
of his supervisory status alone. Id. Instead, “plaintiff must prove that [each
defendant] in particular knew about a substantial risk of harm, he may not
allege facts about ‘jail staff’ generally.” Anderson v. County of La Crosse, No.
08-CV-234-BBC, 2009 WL 1139991, at *3–5 (W.D. Wis. Apr. 27, 2009); Chavez
v. Ill. State Police, 251 F.3d 612, 652 (7th Cir. 2001). “In order to recover
damages against a state actor under § 1983, a plaintiff must show the actor
was personally responsible for the constitutional deprivation.” J.H. ex rel.
Higgin v. Johnson, 346 F.3d 788, 793 (7th Cir. 2003). That said, a claim against
a supervisor can be premised on the notion that he knew of the deprivation
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and either condoned it or turned a blind eye toward it. Pepper v. Vill. of Oak
Park, 430 F.3d 809, 810 (7th Cir. 2005); Sanville v. McCaughtry, 266 F.3d 724,
740 (7th Cir. 2001); Brokaw v. Mercer County, 235 F.3d 1000, 1012 (7th Cir.
2000).
Adell’s medical claim has several critical defects. First, except for
deputy warden Krueger, none of the Defendants were even aware of
Adell’s complaints. Adell’s offender complaints were addressed by the
inmate complaint examiner and rejected or dismissed. The only Defendant
who was alerted to his complaints was Krueger, who affirmed the
disposition of each. None of Defendants apart from Krueger had any
involvement with these complaints, and thus Adell cannot show that any
of them were aware of his situation. Adell alleges that other inmates made
other complaints about the FLCI water supply, (Docket #43 at 7–8), but this
is irrelevant; what matters for Adell’s constitutional claims against
Defendants is that they were aware of Adell’s needs. Without awareness of
Adell’s purported plight, Defendants cannot be said to have turned a blind
eye toward it.
Second, and more importantly, Adell has not shown that the water
quality in the RHU caused him any harm, even assuming each Defendant
knew about his circumstances. The undisputed facts demonstrate that
while the water quality at FLCI was under ongoing review and remediation
during the time that Adell complains, it was never unsafe for consumption.
The levels of potentially harmful elements did not exceed regulatory health
standards. Critically, as explained above, Adell proffered no evidence that
he, in light of his medical condition, had special water purity requirements
that were more stringent than the EPA dictated. He simply believes this to
be true, but Adell’s speculation on the matter does not create a triable issue
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for the jury. Indeed, in all of his complaints about the water, both now and
at the time of the events, not once does Adell say—much less submit
verifying medical evidence demonstrating—that he actually became ill or
suffered a degradation in his ulcerative colitis symptoms as a result of
drinking the water.
Moreover, Adell’s claim against Krueger for affirming the dismissal
of his complaints is without merit. Adell’s first complaint was dismissed
because he failed to follow the directions provided to him. His second and
third complaints were dismissed as moot because he had left the institution.
Dismissal of a complaint “no more manifests ‘deliberate indifference’ to the
underlying problem than does a judge’s decision dismissing a § 1983 suit
as barred by the statute of limitations.” Burks v. Raemisch, 555 F.3d 592, 595
(7th Cir. 2009). In Burks, the Seventh Circuit rejected a claim by an inmate
that an institution inmate complaint reviewer rejected his complaint and
did not go “beyond the requirements of her job and tr[y] to help him.” Id.
at 596. As the court in Burks stated, “[o]ne can imagine a complaint
examiner doing her appointed tasks with deliberate indifference to the risks
imposed on prisoners. If, for example, a complaint examiner routinely sent
each grievance to the shredder without reading it, that might be a ground
of liability. Id. at 595 (citing Greeno v. Daley, 414 F.3d 645, 655–56 (7th Cir.
2005)). Similarly, deliberate indifference might arise where “a complaint
examiner [] intervened to prevent the medical unit from delivering needed
care[.]” Id.
There is no allegation of any such conduct by Krueger here. He
simply executed his job duties by dismissing the offender complaints. In
addition, Adell alleges that Defendants were deliberately indifferent to his
needs because they denied his requests for a single cell so that he could
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conserve his water supply, and they denied his requests for a transfer to
another institution. Even if Defendants had been aware of these requests,
they could not have been deliberately indifferent to them because Adell
received both accommodations. Adell was in a single cell during the entire
time he was in the RHU. Further, he was transferred to WSPF on January
24, 2017. Thus, even Adell’s theory of how the defendants failed to address
his needs fails as a factual matter. Consequently, this claim must also be
dismissed.
3.3

The Statutory Claims

Inexplicably, Defendants ask for dismissal of this entire action
although they did not address in any fashion Adell’s claims for
discrimination and failure to accommodate arising under the Rehabilitation
Act and the ADA. See (Docket #46 at 1). It would appear that Defendants
simply did not read the most recent and operative screening order. See
(Docket #15). The Court cannot overlook this error, just as it could not
forgive Adell’s procedural stumbles. However, because the failure to seek
summary judgment on these claims was the result of apparent innocent
oversight, the Court will permit the remaining Defendants—the DOC and
Litscher—a very brief period in which to file a motion for summary
judgment on these claims. That schedule will be outlined below.
4.

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

there is insufficient evidence to raise triable issues of fact as to either of his
constitutional claims. The record and the relevant authorities oblige the
Court to dismiss those claims and the applicable Defendants.
If the DOC and Litscher wish to seek summary judgment on the
statutory claims in this case, they will be permitted an opportunity to do so.
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Such a motion must be filed not later than December 28, 2017. Adell must
respond no later than twenty-one (21) days after the motion is filed.
Defendants may reply within seven (7) days thereafter. If Defendants do
not file such a motion by the stated deadline, the Court will issue a trial
scheduling order that provides dates for the trial and final pretrial
conference, as well as details about the requirements for the parties’ pretrial
submissions.
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #34) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s claims for inadequate
conditions of confinement and deliberate indifference to serious medical
needs, both in violation of the Eighth Amendment, be and the same are
hereby DISMISSED;
IT IS FURTHER ORDERED that Defendants Randall Hepp, Chris
Krueger, John Maggioncalda, John Congdon, and Mark Schomisch be and
the same are hereby DISMISSED from this action; and
IT IS FURTHER ORDERED that the remaining Defendants may file
a motion for summary judgment as to Plaintiff’s remaining claims no later
than December 28, 2017. Plaintiff shall respond no later than twenty-one
(21) days after the motion is filed. Defendants may reply within seven (7)
days thereafter.
Dated at Milwaukee, Wisconsin, this 7th day of December, 2017.
BY THE COURT:

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