Bonner v. Rozmarynoski et al

Filing 37

ORDER signed by Judge J.P. Stadtmueller on 2/23/2018: GRANTING 22 Defendants' Motion for Summary Judgment and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Paul Bonner at Wisconsin Secure Program Facility) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PAUL BONNER,
Plaintiff,

v.

TONIA ROZMARYNOSKI,
MICHAEL SNODGRASS, ZACHARY
BERGER, and STEVE BOST,

Case No. 17-CV-674-JPS

ORDER

Defendants.
1.

INTRODUCTION
On June 14, 2017, the Court screened Plaintiff’s Complaint. (Docket

#9). The Complaint alleged that Defendants failed to appropriately treat
Plaintiff’s migraine headaches. Id. at 3-4. The Court allowed him to proceed
on the theory that Defendants were deliberately indifferent to his serious
medical needs, in violation of the Eighth Amendment. Id. at 4-6. The Court
later screened and accepted an Amended Complaint which substituted
various defendants, but did not change Plaintiff’s substantive claim.
(Docket #16). On January 12, 2018, Defendants moved for summary
judgment. (Docket #22). Plaintiff responded to the motion on February 1,
2018, and Defendants replied on February 15, 2018. (Response, Docket #30;
Reply, Docket #34). For the reasons explained below, Defendants’ motion
must be granted.
2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that the court “shall

grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th
Cir. 2016). A fact is “material” if it “might affect the outcome of the suit”
under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. The
court construes all facts and reasonable inferences in the light most
favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016).
3.

BACKGROUND
The following facts are material to the resolution of Defendants’

motion. The Court notes the parties’ disputes where appropriate.1 During
the events of this lawsuit, Plaintiff was first incarcerated at Green Bay
Correctional Institution (“GBCI”) and later the Wisconsin Secure Program
Facility (“WSPF”). Defendant Steve Bost (“Bost”) worked as a registered
nurse at GBCI. Defendants Tonia Rozmarynoski (“Rozmarynoski”),
Michael Snodgrass (“Snodgrass”), and Zachary Berger (“Berger”) were
correctional officers. Rozmarynoski was stationed at GBCI, while
Snodgrass and Berger were employed at WSPF.
As noted above, Plaintiff proceeds on claims related to the treatment
of his headaches. He identifies two dates of allegedly deficient care:
November 20, 2016 and December 16, 2016. Generally speaking, inmates
with medical concerns must fill out a request form (which Plaintiff calls a
“blue slip”) and submit it to the Health Services Unit (“HSU”). Nurses
review the forms on a daily basis, and medical staff are available

All facts are drawn from the parties’ factual briefing, (Docket #35 and #36)
unless otherwise noted.
1

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throughout the week to provide immediate medical care. If an inmate has
a medical emergency, they can report it to correctional staff, who will in
turn contact HSU. HSU then determines whether the situation is indeed an
emergency, and what should be done about it. Correctional officers defer
to HSU’s medical judgment; they do not provide medical care to inmates.
Prior to the dates in question, Plaintiff suffered a brain injury which
caused migraine headaches. A doctor ordered that Plaintiff be given a
Toradol injection at the outset of migraine symptoms, at a maximum of five
injections per month. The doctor later clarified that Toradol was only to be
used for severe pain. Otherwise, Plaintiff was to be provided Excedrin
Migraine or Naproxen. Toradol is a controlled medication that must be
administered by medical staff, while Excedrin Migraine and Naproxen are
over-the-counter drugs which inmates can possess themselves. Toradol is
kept in stock on a running basis; it is stored as a general supply, not to fulfill
any particular inmate’s prescription needs.
The Court begins with the November 21 incident, which occurred at
GBCI. Rozmarynoski and Bost were on duty that day.2 Bost received a call
at approximately 6:00 p.m. from Rozmarynoski, stating that Plaintiff
reported a headache. Bost asked Rozmarynoski about Plaintiff’s symptoms
to determine his level of pain. Rozmarynoski informed Bost that Plaintiff
had recently been to the dining hall and back without complaints or signs

Plaintiff’s Amended Complaint states that the incident occurred on
November 20. (Docket #19 at 1-2). Rozmarynoski states that it is her practice to
note requests for medical care in the appropriate log book. There are no such notes
from November 20, but there is one from November 21. Plaintiff does not dispute
that he was given a Toradol injection on November 22, 2016, within twenty-four
hours of his original complaint. (Docket #36 at 9). Thus, it appears that the
Amended Complaint is simply mistaken, and that the interaction between
Plaintiff, Rozmarynoski, and Bost occurred on November 21.
2

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of pain. Further, Rozmarynoski said that Plaintiff had not reported
dizziness, nausea, sensitivity to light, or vomiting, all of which might be
signs of a migraine. Plaintiff claims that he reported a headache prior to
going to the dining hall.3
Based on these facts, Bost determined that Plaintiff’s headache was
not severe and did not warrant emergency treatment. Bost told
Rozmarynoski to tell Plaintiff that he should submit an HSU request form
to be seen the next day. Rozmarynoski did so. Plaintiff filled out the form
and, according to Rozmarynoski, did not report any further pain symptoms
for the remainder of November 21. Plaintiff says he was in severe pain for
the rest of the day and blacked out at one point. He also claims to have
asked Rozmarynoski again for a Toradol injection, but was refused in light
of the earlier call to Bost and the pending HSU request. Plaintiff does not
dispute that he self-treated with Excedrin Migraine that night, and was
given a Toradol injection the next day, within twenty-four hours of his
original complaint.
Plaintiff was transferred to WSPF on November 29. His medical
records were sent with him. Toradol was not sent, however. As noted
above, it is a stock medication, and both GBCI and WSPF were expected to

Plaintiff supports his assertion by citation to his “complaint.” (Docket #36
at 7). The Court gathers that this is intended to cite his original complaint. That
document is sworn and, generally speaking, sworn pleadings can supply
testimonial evidence admissible at the summary judgment stage. (Docket #1 at 4);
Beal v. Beller, 847 F.3d 897, 901 (7th Cir. 2017). The amended complaint is not sworn.
(Docket #19 at 4). Of course, with his filing of an amended complaint, the original
has become moot for pleading purposes. Beal, 847 F.3d at 901. However, Beal holds
that old sworn complaints remain a viable source of admissible testimony. Id.
Thus, to the extent Defendants object to Plaintiff’s citation to the unsworn
amended complaint, the original complaint contains the necessary testimony and
affirmation of truth.
3

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have their own supply. Plaintiff’s prescriptions for Excedrin Migraine and
Naproxen were filled upon his arrival.
Berger was working in Plaintiff’s unit on December 16 (Snodgrass
did not work that day). Like Rozmarynoski, Berger’s practice is to log
inmate medical complaints and contact HSU. The log book contains no such
entries for December 16. Berger does not recall any specific interactions
with Plaintiff that day. In his own statement of facts, Plaintiff claims that he
told Berger multiple times that he was having a severe headache, and that
Berger variously ignored him or said he would call HSU but never did.
However, Plaintiff does not dispute Defendants’ proposed fact that the
correctional officer on duty did in fact call HSU.4 The HSU staff apparently
felt the situation was not serious and, like Bost, indicated that Plaintiff
should file an HSU request form. Plaintiff would have had his over-thecounter medications available to him at that time, in any event.
Plaintiff cites to grievances he filed as support for his claims. For the
November 21 incident, his grievance was accepted. The complaint
examiner determined that while Bost exercised his medical judgment in
declining a meeting with Plaintiff, he should have seen Plaintiff face-to-face
that day. With respect to the December 16 incident, the complaint examiner
noted that HSU was out of Toradol, and in light of Plaintiff’s prescription,
more should have been ordered. The examiner’s comments were directed
at HSU, though; they said nothing about Berger’s conduct.

Defendants are correct that Plaintiff did not dispute this fact. The Court
has significant concerns about it, however, as discussed below. See infra note 7.
4

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4.

ANALYSIS
Again, Plaintiff proceeds against all Defendants for violating his

Eighth Amendment right to adequate medical care. Prisoners are entitled
to a minimal level of healthcare while in custody. Petties v. Carter, 836 F.3d
722, 727-28 (7th Cir. 2016). The Eighth Amendment is violated when the
prisoner shows that they “suffered from an objectively serious medical
condition,” and that “the individual defendant was deliberately indifferent
to that condition.” Id. at 728. As the Court noted at screening, the Gayton
case neatly summarizes the claim:
[T]he plaintiff must show that: (1) [he] had an
objectively serious medical condition; (2) the defendants
knew of the condition and were deliberately indifferent to
treating h[im]; and (3) this indifference caused h[im] some
injury. An objectively serious medical condition is one that
has been diagnosed by a physician as mandating treatment or
one that is so obvious that even a lay person would perceive
the need for a doctor’s attention. A medical condition need
not be life-threatening to be serious; rather, it could be a
condition that would result in further significant injury or
unnecessary and wanton infliction of pain if not treated.
With regard to the deliberate indifference prong, the
plaintiff must show that the official acted with the requisite
culpable state of mind. This 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.
Evidence that the official acted negligently is insufficient to
prove deliberate indifference. Rather, deliberate indifference
is simply a synonym for intentional or reckless conduct, and
that reckless describes conduct so dangerous that the
deliberate nature of the defendant’s actions can be inferred.
Simply put, an 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. Even if a
defendant recognizes the substantial risk, he is free from

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liability if he responded reasonably to the risk, even if the
harm ultimately was not averted.
Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010) (citations and quotations
omitted). In sum, “deliberate indifference means actual, personal
knowledge of a serious risk, coupled with the lack of any reasonable
response to it.” Ayoubi v. Dart, No. 17-1561, 2018 WL 671152, at *2 (7th Cir.
Feb. 2, 2018).5
With these general principles in mind, the Court addresses each of
Defendants’ potential liability in turn, beginning with Rozmarynoski. The
Seventh Circuit applies the deliberate indifference standard differently
depending on the job duties of the defendant in question. For non-medical
correctional staff, like Rozmarynoski, who are “not responsible for
administering medical care to [prisoners],” they are “entitled to defer to the
judgment of [prison] health professionals so long as [they] d[o] not ignore
[the prisoner].” King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012).
Rozmarynoski did not ignore Plaintiff, but rather called Bost upon
Plaintiff’s request. She is not a medical professional herself and was entitled
to defer to Bost’s medical judgment. Rozmarynoski did not display
deliberate indifference to Plaintiff’s headache.
Plaintiff’s two arguments to the contrary lack merit. First, he asserts
that his pain was so severe that Rozmarynoski should have known that
simply checking with the nurse was not enough. This argument ignores the
fact that the medical staff, and not the security staff, are in charge of inmate

Defendants appear to concede that Plaintiff’s headaches constitute a
serious medical condition. (Docket #23 at 8) (“Bonner cannot demonstrate
Defendants were deliberately indifferent to his serious medical condition.”). The
Court will assume the same for the purposes of this Order.
5

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medical care. Rozmarynoski had no authority to make her own treatment
decisions regarding Plaintiff’s care. Second, Plaintiff relies on the favorable
grievance outcome for this incident as evidence of deliberate indifference.
The grievance reviewers did not question Rozmarynoski’s behavior,
however. More importantly, they did not utilize the deliberate indifference
standard. Finally, even if they had, the Court alone is an expert on legal
matters, namely application of that standard to the facts of this case.
Grussgott v. Milwaukee Jewish Day School, Inc., No. 17-2332, 2018 WL 832447,
at *5 (7th Cir. Feb. 13, 2018).
The Court turns to Bost. As a medical professional, his conduct is
deliberately indifferent only when it “is such a substantial departure from
accepted professional judgment, practice, or standards as to demonstrate
that the person responsible did not base the decision on such a judgment.”
King, 680 F.3d at 1018-19 (quotation omitted). The undisputed evidence
confirms that Bost did indeed exercise his medical judgment. Based upon
the symptoms reported to him, Bost concluded that Plaintiff was not
experiencing emergent pain requiring an immediate Toradol injection.
“Neither medical malpractice nor [Plaintiff’s] mere disagreement with
[Bost’s] medical judgment is enough to prove deliberate indifference.” Berry
v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010). Plaintiff himself is no doctor,
and has marshalled no competent evidence showing that Bost’s decision
was so below the range of acceptable care that it could be considered
deliberately indifferent. King, 680 F.3d at 1019 (“In evaluating the evidence,
we must remain sensitive to the line between malpractice and treatment
that is so far out of bounds that it was blatantly inappropriate or not even
based on medical judgment.”).

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Plaintiff again points to the grievance, which found did find fault
with Bost’s conduct. For the same reasons stated above, the Court cannot
treat grievance reviewers’ opinions as authoritative on the issue of
deliberate indifference. At best, their conclusion supports a finding of
negligence or medical malpractice. That conduct, while certainly
inappropriate, does not rise to the level of a constitutional violation.
Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008) (“Deliberate
indifference is not medical malpractice; the Eighth Amendment does not
codify common law torts.”). Plaintiff further claims that the decision to give
him an injection the next day proves that Bost erred. This too is evidence of
negligence, or unintentional harm. Finally, Plaintiff cites his symptoms that
evening—severe pain and blacking out—as proof that Bost’s response was
inadequate. Those symptoms arose, however, after Bost had made his
treatment decision. There is no evidence that additional calls were placed
to Bost about Plaintiff’s deteriorating condition. Bost made his decision
based on what he knew at the time, and cannot be faulted for what he did
not know.6 Ayoubi, 2018 Wl 671152, at *2 (“[D]eliberate indifference means
actual, personal knowledge of a serious risk[.]”) (emphasis added).
Next up is Berger. No reasonable jury could find him deliberately
indifferent to Plaintiff’s headaches based on the third element of the claim:
causation. It is undisputed that an unidentified third-shift officer called

Plaintiff’s Amended Complaint suggests that he believes a supply of
Toradol should have been sent with him to WSPF. (Docket #19 at 3). Defendants
argue against this assertion in their opening brief, (Docket #23 at 11), and Plaintiff
makes no attempt to defend it in his response, see generally (Docket #30). In any
event, it is undisputed that Toradol is a stock medication kept in a general supply
at both GBCI and WSPF. There is no evidence that the lacking supply at WSPF was
the fault of any of the named Defendants.
6

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HSU, reported Plaintiff’s symptoms, and that HSU declined to give Plaintiff
an injection.7 Thus, even if Plaintiff’s assertions are true—that Berger either
ignored him or negligently failed to call HSU—the result would not have
changed. In other words, Plaintiff would have remained in pain for just as
long with or without Berger’s intervention. Because Plaintiff cannot show
that Berger’s inaction independently caused him harm, he presents no
triable issues of fact.
The final defendant is Snodgrass. Though Plaintiff alleges that
Snodgrass was involved in the December 16, 2016 incident, this is
demonstrably impossible. Snodgrass was not working that day. Snodgrass

As noted above, Defendants assert, and Plaintiff does not dispute, that
“the correctional sergeant on duty” called HSU on December 16. (Docket #36 at
12). The only support for this fact comes from Plaintiff’s Amended Complaint, not
the testimony of that unidentified officer. Id. In his Amended Complaint, Plaintiff
alleges that the third shift sergeant called HSU. (Docket #19 at 2). It is undisputed
that Berger worked the first and second shifts on December 16. Id. at 10.
7

Plaintiff maintains that he contacted Berger during his shifts seeking
medical care, but that none was forthcoming. (Docket #35 at 3-4). Defendants
dispute these assertions of fact, claiming that “[Plaintiff] admits the correctional
sergeant on duty contacted HSU and relayed to him that HSU felt that [Plaintiff’s]
condition was not sufficiently serious to warrant administration of the
medication.” Id. Defendants coyly avoid identifying the “correctional sergeant on
duty.” Plaintiff reiterates that it was the third shift sergeant who called, id. at 4, but
this is met with the same dispute from Defendants, id. Berger himself says he does
not remember interacting with Plaintiff that day. (Docket #26 at 2).
These facts indicate that Berger did not in fact call HSU. The Court was
surprised, then, to see that Defendants claim that he did in their reply. (Docket #34
at 4-5) (“Berger was the sergeant on duty. Bonner himself acknowledges that the
correctional sergeant on duty contacted HSU and relayed back that HSU felt that
Bonner’s condition was not sufficiently serious to warrant administration of the
medication. . . . Bonner’s admission that Berger called HSU is fatal to the claim
against Berger.”). The last sentence borders on a misrepresentation of the facts;
Plaintiff made no such admission. Though this causes the Court some concern, it
is of no moment to the disposition of the claim. Causation is clearly lacking.

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thus had no way to know about Plaintiff’s condition that day, much less
deliberately disregard it. Plaintiff essentially concedes that Snodgrass has
no liability. (Docket #30 at 1) (In the case at bar the defendant’s [sic] except
Snodgrass . . . are not entitled to summary judgment[.]”); see id. at 3-4
(discussing only Berger’s conduct, with no reference made to Snodgrass).
5.

CONCLUSION

On the undisputed facts presented, Plaintiff fails to create triable
issues of fact as to Defendants’ liability under the Eighth Amendment.
Summary judgment must, therefore, be granted in their favor. This action
will be dismissed with prejudice.
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #22) be and the same is hereby GRANTED; 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 23rd day of February, 2018.
BY THE COURT:

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

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