Davis v. Harrispeters et al

Filing 60

ORDER signed by Judge J P Stadtmueller on 7/24/2019. 30 Defendant Jean Lutsey's Motion for Summary Judgment is GRANTED. 38 Defendant Susan Peters' Motion for Summary Judgment is GRANTED. 37 Defendant Susan Peters' Mot ion to Seal Document is GRANTED. 57 Plaintiff's Motion for Separation from Defendant Susan Peters is DENIED as moot. CASE DISMISSED with prejudice. (cc: all counsel, via mail to Bruce Terrell Davis, Jr. at Green Bay Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRUCE TERRELL DAVIS, JR.,
Plaintiff,
v.

Case No. 18-CV-465-JPS

SUSAN PETERS and JEAN LUTSEY,

ORDER

Defendants.
Plaintiff, a prisoner incarcerated at Green Bay Correctional
Institution (“GBCI”), was allowed to proceed on claims of deliberate
indifference to his serious medical needs, in violation of the Eighth
Amendment, against nurse Susan Peters (“Peters”) and health services
manager Jean Lutsey (“Lutsey”), both employed at GBCI. (Docket #7).
Defendants filed motions for summary judgment on April 22, 2019. (Docket
#30) (Lutsey’s motion); (Docket #38) (Peters’ motion). Along with their
motions, Defendants filed supporting statements of fact. (Docket #32)
(Lutsey’s statement); (Docket #41) (Peters’ statement).
According to those statements, the material facts are as follows.
Plaintiff has complained of back pain for some years. In May 2017, while
Plaintiff was incarcerated at Fox Lake Correctional Institution (“Fox Lake”),
a Dr. Mann determined that Plaintiff did not need back surgery, but
recommended that he see a physiatrist (something like a doctor of physical
therapy). A physiatry appointment was scheduled, but then cancelled
because of Plaintiff’s transfer to GBCI.
Plaintiff was transferred to GBCI in June 2017, and that is when his
contact with Defendants began. Peters became Plaintiff’s primary care

provider at GBCI. This included managing his medications and other
avenues to relieve his back pain. This was quite a laborious task with
Plaintiff, as he constantly wanted to start and stop different medications
and increase or decrease their dosages. Plaintiff also repeatedly requested
narcotic pain medication, but this was refused. Still, Peters engaged with
Plaintiff extensively, adjusting his care when appropriate and referring him
to a pain specialist.
As part of her role to develop a treatment plan for Plaintiff’s back
pain, Peters reviewed Dr. Mann’s recommendation for a physiatry consult.
Because Plaintiff’s medical tests were somewhat aged at this point, Peters
also ordered new testing. In late October 2017, Dr. Chyatte, the
neurosurgeon who reviewed the tests, agreed that Plaintiff did not need
surgery, but suggested “[c]onsider referral to Pain and Spine.” (Docket #341 at 34). Dr. Chyatte never specifically recommended that Plaintiff see a
physiatrist. Peters also considered that Plaintiff had undergone physical
therapy less than a year before, and he had told Peters that the therapy did
not work.
Peters determined that a conservative treatment plan was
appropriate in light of the doctors’ recommendations and Plaintiff’s history
of noncompliance with treatment. Plaintiff was upset by this and
complained vociferously of pain, the need for surgery, and a physiatry
appointment. He filed many health services requests to this effect.
As the health services manager, Lutsey only manages the provision
of healthcare at GBCI. She does not prescribe medicine or make referrals,
and only rarely provides direct care to inmates. She never treated Plaintiff
directly. Her only interaction with Plaintiff was to respond to one of his

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health services requests and to approve one of his requests for additional
pillows, as part of one of her separate committee assignments.
On these facts, neither Defendant violated Plaintiff’s constitutional
rights. 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. The
Gayton case neatly summarizes a deliberate indifference 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, 724 F. App’x 470, 474 (7th Cir. 2018).
Assuming arguendo that Plaintiff’s pain qualified as a serious
medical condition, Peters comes nowhere close to displaying deliberate
indifference to his treatment needs. Deliberate indifference claims against
medical personnel cannot be sustained on “negligence or even
malpractice.” Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014). Rather, “[t]he
federal courts will not interfere with a [provider’s] decision to pursue a
particular course of treatment unless that decision represents so significant
a departure from accepted professional standards or practices that it calls
into question whether the [provider] actually was exercising [her]
professional judgment.” Peters clearly exercised her professional judgment
again and again when dealing with Plaintiff. She engaged in a constant,
varied, and determined campaign of treatment in an attempt to address his
pain, though she would not prescribe the narcotics he desired.
As to Lutsey, she lacks the required personal involvement to even
implicate Plaintiff’s Eighth Amendment rights. Burks v. Raemisch, 555 F.3d
592, 593–94 (7th Cir. 2009) (“Section 1983 does not establish a system of
vicarious responsibility. Liability depends on each defendant’s knowledge
and actions, not on the knowledge or actions of persons they supervise.”)
(citation omitted). She did not treat Plaintiff directly and, as relevant to this
case, merely responded to one of his written complaints about his
healthcare.
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Plaintiff responded to each of Defendants’ motions separately. Both
sets of responsive materials include a brief, a collection of exhibits, and a set
of “findings of fact.” These “findings of fact” are affirmative statements of
fact, comprising either citations to Plaintiff’s deposition in this case, or a
listing of exhibits with some explanatory parentheticals. See (Docket #47).
The briefs also contain statements of fact presented in prose form. See
(Docket #46 at 2–5).
Nowhere in Plaintiff’s submissions, however, does he provide a
response to Defendants’ statements of fact that complies with the applicable
procedural rules. Federal Rule of Civil Procedure 56 and Civil Local Rule
56 describe in detail the form and contents of a proper summary judgment
submission. In particular, they state that a party opposing a summary
judgment motion must file
(B) a concise response to the moving party’s statement of facts
that must contain:
(i) 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); see Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting
that a fact . . . is genuinely disputed must support the assertion by: (A) citing
to particular parts of materials in the record[.]”).
Rather than comply with this rule, Plaintiff simply provides his own
competing set of asserted facts. He fails to address each of Defendants’ facts
individually and cite appropriate evidence in support of any facts which he
might dispute. See also (Docket #50 and #53) (Defendants’ responses to
Plaintiff’s statements of facts, which demonstrate the proper method for

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responding to proposed findings of fact). This is unacceptable, in light of
the fact that Plaintiff was provided a copy of the procedural rules three
times, once by the Court, (Docket #19), and once each by the Defendants
themselves along with their summary judgment motions, (Docket #30 at 3–
13 and Docket #38 at 3–8).
Despite being repeatedly warned of the strictures of summary
judgment procedure, Plaintiff 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. Even if such relevant and favorable evidence could be located in
the record, the Court cannot compile that evidence for him and construct
legal or factual arguments on his behalf. In other words, the Court cannot
abandon its role as a neutral decisionmaker and become an advocate for
one party. Thus, the Court deems Defendants’ facts undisputed for
purposes of deciding their motions 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).
Based on the undisputed facts presented by Defendants, summary
judgment is clearly appropriate in their favor. The Court will nevertheless
indulge Plaintiff’s arguments to the contrary located in his legal briefs. As
to Peters, Plaintiff emphasizes that this case is about her role in allegedly
delaying his referral to a physiatrist. (Docket #46 at 9). He is adamant that
Dr. Chyatte had made an unequivocal referral for a physiatrist, that Peters
refused to schedule the appointment despite the referral, and that this is
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sufficient to show deliberate indifference. Plaintiff is wrong on all accounts.
Dr. Chyatte said that Plaintiff’s care providers should consider referring him
to a physiatrist. This is similar to Dr. Mann’s prior statement, which
recommended the same treatment. Peters did consider such a referral, but
she determined that other treatment options were more appropriate at the
time. Indeed, she made numerous attempts to alleviate Plaintiff’s pain in
new and different ways. The fact that none was apparently successful does
not show that she was indifferent to Plaintiff’s medical needs. To the
contrary, the entire course of care Peters provided to Plaintiff demonstrates
careful consideration and patience.1
Plaintiff presents two arguments in favor of Lutsey’s liability. First,
he says that she had the authority and a responsibility to oversee his care
and could have ordered Peters to treat him differently. In essence, Plaintiff
contends that Lutsey should have acted on the doctors’ recommendations
in light of Peters’ failure to do so. But as noted above, Plaintiff
misunderstands what the doctors said. They made suggestions, not
referrals in themselves. Second, Plaintiff asserts that Lutsey knew that
Plaintiff had a previously scheduled physiatry appointment and hid that
fact from Peters. The evidence demonstrates, however, that Peters
independently knew of the doctors’ recommendations and Plaintiff’s prior
appointment.
The theme of this case is Plaintiff’s displeasure in not getting the
treatment he wanted. The Seventh Circuit holds, however, that “[a]

Plaintiff further argues that Peters changed her course of treatment after
being served with his lawsuit. (Docket #46 at 9–10). But as Peters explains, (Docket
#51 at 3–4), the timing for this assertion does not fit; Plaintiff’s plan of care was
changed before Peters was served.
1

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prisoner’s dissatisfaction with a [provider’s] prescribed course of treatment
does not give rise to a constitutional claim unless the medical treatment is
so blatantly inappropriate as to evidence intentional mistreatment likely to
seriously aggravate the prisoner’s condition.” Snipes v. DeTella, 95 F.3d 586,
592 (7th Cir. 1996). Nothing in record demonstrates that Plaintiff was
intentionally mistreated by Defendants.
Further, the fact that Plaintiff’s care provider at Fox Lake determined
that a physiatry appointment should be scheduled does not automatically
mean that either Peters or Lutsey were wrong in taking a different course.
A mere difference of opinion amongst medical providers does not support
a finding of deliberate indifference. Norfleet v. Webster, 439 F.3d 392, 396 (7th
Cir. 2006). Rather, Plaintiff needed to show that Defendants’ care was so
bad that a reasonable jury could believe Defendants failed to exercise any
medical judgment in providing that care. Id. He did not do so.
In light of the foregoing, Defendants have exhibited their entitlement
to summary judgment. The Court will, therefore, grant their motions to that
effect and dismiss Plaintiff’s claims, and this action generally, with
prejudice. The Court will also grant a related motion to seal filed by Peters.
(Docket #37).2
Accordingly,
IT IS ORDERED that Defendant Jean Lutsey’s motion for summary
judgment (Docket #30) be and the same is hereby GRANTED;

On June 20, 2019, Plaintiff filed a motion seeking to be separated from
Peters and transferred to a new prison. (Docket #57). Even assuming the Court
would entertain such interference in matters of prison administration, which it
would not, this action is being dismissed. The motion will be denied as moot.
2

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IT IS FURTHER ORDERED that Defendant Susan Peters’ motion
for summary judgment (Docket #38) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Defendant Susan Peters’ motion to
seal (Docket #37) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion for separation
from Defendant Susan Peters (Docket #57) be and the same is hereby
DENIED as moot; 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 24th day of July, 2019.
BY THE COURT:

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

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