The Estate of Kristina Ann Fiebrink et al v. Armor Correctional Health Service Inc et al

Filing 307

ORDER signed by Judge J P Stadtmueller on 5/3/2019. 74 Defendant Armor Correctional Health Services Inc.'s Motion to Dismiss Counts One and Two of Plaintiffs' Amended Complaint is GRANTED in part and DENIED in part. 193 Milwauke e County Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part. 210 Armor Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part. 219 Defendants Eva Cage and Briteny Kirk's M otion for Summary Judgment is GRANTED in part and DENIED in part. 223 Defendant Veronica Wallace's Motion for Summary Judgment is GRANTED. Count I of the Amended Complaint, Plaintiffs' respondeat superior claim, is DISMISSED again st Defendant Armor Correctional Health Services Inc. Count II of the Amended Complaint, Plaintiffs' Monell claims against Defendants Armor Correctional Health Services Inc. and Milwaukee County are DISMISSED. Count I of the Amended Complaint, Pl aintiffs' Eighth Amendment claim, and Count III of the Amended Complaint, Plaintiffs' Section 1983 loss of consortium claim, are DISMISSED as to Defendants Latrail Cole, Veronica Wallace, Brandon Decker, Eva Cage, and Briteny Kirk. Counts IV and V of the Amended Complaint, Plaintiffs' negligence and state law loss of companionship claims, are DISMISSED as to Defendants Veronica Wallace and Latrail Cole. Defendants Veronica Wallace and Latrail Cole are DISMISSED from this a ction. 228 Defendants Eva Cage and Briteny Kirk's Motion to Withdraw as Attorney is GRANTED; Attorney Ronald E Neroda is terminated as counsel. 241 Plaintiffs' Motion to Restrict Document is GRANTED. 257 Armor Defendants' Motion to Restrict Document is GRANTED. See Order. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THE ESTATE OF KRISTINA ANN
FIEBRINK by Special Administrator
Nathaniel Cade, Jr., THE ESTATE OF
ANGELICA M. FIEBRINK, JOSE D.
MARTINEZ, JR., and ROBERT
MARTINEZ,
Plaintiffs,

Case No. 18-CV-832-JPS

ORDER

v.
ARMOR CORRECTIONAL HEALTH
SERVICES, INC., VERONICA
WALLACE, BRITENY R. KIRK, EVA
CAGE, BRANDON DECKER,
MILWAUKEE COUNTY, LATISHA
AIKENS, LATRAIL COLE,
WISCONSIN COUNTY MUTUAL
INSURANCE CORPORATION, and
JOHN DOES 1-20,
Defendants.
This action arises from the death of Kristina Fiebrink (“Fiebrink”) on
August 28, 2016 at the Milwaukee County Justice Facility (“MCJF”). On
October 16, 2018, Plaintiffs filed an amended complaint alleging civil rights
violations and wrongful death claims on behalf of Fiebrink as a result of
inadequate health care at MCJF. (Docket #57). Specifically, the claims
include a Section 1983 claim based on an Eighth Amendment violation of
Fiebrink’s right to medical care against all defendants; a Monell claim
against Milwaukee County and Armor Correctional Health Services, Inc.
(“Armor”); a loss of companionship claim against all defendants based on

the Section 1983 claim; a state law negligence claim against all defendants;
and a state law loss of companionship claim against all defendants based
on the negligence claim. Id. at 23–32. On October 30, 2018, Armor filed a
motion to dismiss Counts One and Two of the Plaintiffs’ amended
complaint. (Docket #74). On March 8, 2019, Milwaukee County, Latisha
Aikens (“Aikens”), Latrail Cole (“Cole”), and Wisconsin County Mutual
Insurance Corporation (collectively “County Defendants”); Armor and
Brandon Decker (“Decker”) (collectively “Armor Defendants”); Eva Cage
(“Cage”) and Briteny Kirk (“Kirk”); and Veronica Wallace (“Wallace”) filed
motions for summary judgment. (Docket #193, #210, #219, and #223). The
motion to dismiss will be addressed first, and granted in part, for the
reasons stated below. The motions for summary judgment will also be
granted in part, for the reasons stated below.1
1.

ARMOR’S MOTION TO DISMISS
Armor filed a motion to dismiss Counts One and Two of Plaintiffs’

amended complaint. With regard to Count One, Armor argues that it
cannot be liable for constitutional violations under a respondeat superior
theory. With regard to Count Two, Armor contends that the Monell claims
are overly broad, lack allegations of a widespread policy that caused similar
incidents, and lack allegations that the policy was the moving force behind
Fiebrink’s injuries. For the reasons explained below, Armor’s motion to
dismiss will be granted in part and denied in part. Because some of the
Monell claims brought under Count Two are dismissed from the entire

Defendants Cage and Kirk have submitted an unopposed motion to
withdraw attorney, which will be granted. (Docket #228).
1

Additionally, the parties’ unopposed motions to restrict sensitive
documents (Docket #241 and #257) will be granted.

Page 2 of 35

action as improperly pled, they are necessarily dismissed as to Milwaukee
County as well.
1.1

Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of
complaints which fail to state a viable claim for relief. Fed. R. Civ. P.
12(b)(6). To state a viable claim, a complaint must provide “a short and
plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). In other words, the complaint must give “fair notice
of what the. . .claim is and the grounds upon which it rests.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). The allegations must
“plausibly suggest that the plaintiff has a right to relief, raising that
possibility above a speculative level[.]” Kubiak v. City of Chicago, 810 F.3d
476, 480 (7th Cir. 2016) (quotation omitted).
In reviewing the complaint, the Court is required to “accept as true
all of the well-pleaded facts in the complaint and draw all reasonable
inferences in favor of the plaintiff.” Id. at 480–81. However, a complaint that
offers “‘labels and conclusions’” or “‘a formulaic recitation of the elements
of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 555). The Court must identify allegations
“that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Id. at 679.
1.2

Analysis
1.2.1

Respondeat Superior

In Count One of the amended complaint, Plaintiffs assert what is,
essentially, a respondeat superior claim against Armor, alleging that it is
responsible for the inadequate health care that its employees provided by
virtue of the fact that it is their employer. (Docket #57 at 23).
Page 3 of 35

The Supreme Court held in Monell v. Department of Social Services, 436
U.S. 658, 693 (1978), that a local governmental body cannot have vicarious
liability for the constitutional violations of its employees. Instead, it can
only be liable under Section 1983 if the government’s policy or custom
caused the violation. Id. at 694. All Circuits to consider the issue have
extended that reasoning to private corporations sued under Section 1983.
Shields v. Ill. Dep’t of Corr., 746 F.3d 782, 790 (7th Cir. 2014); Iskander v. Forest
Park, 690 F.2d 126, 128 (7th Cir. 1982). The Seventh Circuit recently declined
to overrule Iskander’s holding that “private corporations, when deemed to
be state actors in suits under 42 U.S.C. § 1983, must be treated the same as
municipal corporations. This means that they are not subject to vicarious
liability.” Gaston v. Ghosh, 920 F.3d 493, 494 (7th Cir. 2019). Accordingly,
Count One is dismissed as to Armor.
1.2.2

Monell Claims
1.2.2.1 Allegations

Plaintiffs make the following allegations regarding the constitutional
adequacy of Fiebrink’s care. First, they allege that MCJF had “an alleged
policy and procedure requiring an inmate to receive a medical screening
within 72-hours of admission,” and that Fiebrink did not receive such a
screening, in violation of that policy. (Docket #57 at 2). They allege that
MCJF employees knew that Fiebrink was suffering from “life threatening
withdrawal symptoms,” but intentionally “failed to administer withdrawal
medications, employ the preventative detox protocol, or provide any
treatment.” Id. at 3. Plaintiffs further allege that Fiebrink should have
received a medical assessment and a physical exam upon admission.
Plaintiffs aver, however, that in light of Milwaukee County’s “de facto

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policy and procedure” of “avoiding performance of a medical exam,”
Fiebrink was ignored. Id. at 15–16.
Plaintiffs also contend that MCJF was perpetually understaffed,
which resulted in substandard medical care due to “delays in access to care
and deterioration in quality of care for detainees.” Id. at 17. MCJF ignored
recommendations to provide adequate staffing, thereby condoning and
approving of a de facto policy of inadequate medical care. As a result of this
understaffing, Plaintiffs allege that a “de facto policy of allowing
[untrained] correctional staff to make medical determinations about the
health and well-being of detainees” arose. Id. at 18.
In support of their allegations that inadequate medical care was part
of a wide-spread problem at MCJF, Plaintiffs describe the deaths of three
inmates in 2016. Terrill Thomas died of dehydration when MCJF cut off the
water supply in his cell. Laliah Swayzer, the newborn of an inmate, Shade
Swayzer, died after Shade was forced to give birth alone in a solitary cell.
Michael Madden died following a heart infection and seizure, before
responding officers were able to secure medical attention.
From this disjointed assortment of allegations in the complaint,
Plaintiffs argue, in response to the motion to dismiss, that the following de
facto policies, or customs, are the bases for their Monell claims: MCJF’s
failure to (1) conduct medical intake assessments more than once per year;
(2) require interval history and physical examinations when someone is
jailed more than once per year; (3) require administration of medicine, or
other necessary medical care, when someone is going through

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withdrawal;2 (4) provide adequate care to inmates; and (5) train staff on
how to respond to inmates suffering from heroin withdrawal. (Docket #116
at 5–6). Plaintiffs allege that Milwaukee County and Armor “were the
moving force behind these de facto policies because they refused to
adequately train, supervise and control [or discipline] staff, both
correctional and medical.” (Docket #57 at 21). In turn, these de facto policies
were “the moving force behind the constitutional violations” that Fiebrink
suffered. Id. at 22. Plaintiffs contend that it would be “obvious that Armor
employees and correctional officers w[ould] confront detainees that
w[ould] develop symptoms from heroin withdrawal and that those
detainees will be injured or killed by a policy and practice that eschews
immediate medical care.” (Docket #116 at 9).
1.2.2.2 Discussion
Monell allows municipalities to be held liable under Section 1983, but
not on a theory of respondeat superior. Milestone v. City of Monroe, Wis., 665
F.3d 774, 780 (7th Cir. 2011); City of Oklahoma City v. Tuttle, 471 U.S. 808, 810
(1985). Instead, “[m]isbehaving employees are responsible for their own
conduct,” and “‘units of local government are responsible only for their
policies rather than misconduct by their workers.’” Lewis v. City of Chicago,
496 F.3d 645, 656 (7th Cir. 2007) (quoting Fairley v. Fermaint, 482 F.3d 897,
904 (7th Cir. 2007)). For municipal liability to arise under Section 1983, the
constitutional violation must be brought about by (1) an express municipal

Plaintiffs articulate their third and fourth allegations as, “Third, Armor
lacks a policy requiring the administration of a preventative detoxification
protocol. Fourth, Armor’s policy and practice is not to provide medication or other
immediate medical care when withdrawal symptoms are observed.” These
policies address the same issue—i.e., prompt and appropriate care for inmates
with habitual heroin use—so the Court has condensed them into one policy.
2

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policy; (2) a widespread, though unwritten, custom or practice; or (3) a
decision by a municipal agent with “final policymaking authority.” Darchak
v. City of Chicago Bd. of Ed., 580 F.3d 622, 629 (7th Cir. 2009).
Plaintiffs do not take issue with a specific policy; rather, they proceed
under the second species of Monell liability. Accordingly, Plaintiffs must
plead facts allowing the reasonable inference that Defendants were
deliberately indifferent to these widespread practices. Palmer v. Marion Cty.,
327 F.3d 588, 596 (7th Cir. 2003); Bd. of Cty. Comm’rs of Bryan Cty., Okla. v.
Brown, 520 U.S. 397, 407 (1997). Only if Defendants consciously ignored a
need for action can it be said that they adopted a de facto “policy” of
violating inmates’ constitutional rights. City of Canton, Ohio v. Harris, 489
U.S. 378, 388 (1989); Calhoun v. Ramsey, 408 F.3d 375, 380 (7th Cir. 2005) (“If
the same problem has arisen many times and the municipality has
acquiesced in the outcome, it is possible (though not necessary) to infer that
there is a policy at work.”). This can be demonstrated “by showing a series
of bad acts and inviting the court to infer from them that the policymaking
level of government was bound to have noticed what was going on and by
failing to do anything must have encouraged or at least condoned, thus in
either event adopting, the misconduct of subordinate officers.” Jackson v.
Marion Cty., 66 F.3d 151, 152 (7th Cir. 1995). In other words, because
Plaintiffs’ Monell claims generally target the Defendants’ lack of policies,
Plaintiffs must plead facts alleging that the “gap” in Defendants’ policies
reflected a decision to act unconstitutionally. Calhoun, 408 F.3d at 380. In
assessing whether the absence of a policy or protocol gives rise to a decision
to violate an inmate’s right to medical care, the Court will look for
“evidence that there is a true municipal policy at issue, not a random
event.” Calhoun, 408 F.3d at 380. The absence of a policy could mean a
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variety of things—“that the government sees no need to address the point
at all, or that it believes that case-by-case decisions are best, or that it wants
to accumulate some experience before selecting a regular course of action.”
Id.
In very rare instances, sometimes even a single constitutional
violation, “accompanied by a showing that a municipality has failed to train
its employees to handle recurring situations presenting an obvious
potential for such a violation, could trigger municipal liability.” Brown, 520
U.S. at 409 (citing Harris, 489 U.S. at 390). This extremely limited class of
Monell liability applies only to situations where “a violation of federal rights
may be a highly predictable consequence of a failure to equip [officials]
with specific tools to handle recurring situations.” Id. The Supreme Court
has recently explained that in Harris, “[t]he Court sought not to foreclose
the possibility, however rare, that the unconstitutional consequences of
failing to train could be so patently obvious that a city could be liable under
§ 1983 without proof of a pre-existing pattern of violations.” Connick v.
Thompson, 563 U.S. 51, 64 (2011).
In addition to showing sufficient culpability on the part of the
governmental entity, a Monell plaintiff must allege facts allowing the
inference that the challenged policy, practice, or custom was the “moving
force” behind her injury. Harris, 489 U.S. at 389. Simple but-for causation is
not enough. See Wilson v. Cook Cty., 742 F.3d 775, 784 (7th Cir. 2014) (citing
Brown, 520 U.S. at 410). Instead, the challenged practice “must be closely
related to the ultimate injury” that the plaintiff suffered. Harris, 489 U.S. at
391; Estate of Sims ex rel. Sims v. Cty. of Barbeau, 506 F.3d 509, 515 (7th Cir.
2009) (there must be a “direct causal link” between a custom and the alleged
constitutional violations). The Seventh Circuit has said that a “moving
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force” is the “catalyst” for the injury in question, not merely a “contributing
factor.” Johnson v. Cook Cty., 526 F. App’x 692, 696 (7th Cir. 2013); Thomas v.
Cook Cty. Sheriff’s Dep’t, 604 F.3d 293, 307 (7th Cir. 2010) (training or policy
changes that “might” have had an effect on plaintiff’s treatment did not
satisfy causation requirement).
Most of Plaintiffs’ Monell violations must be dismissed because
Plaintiffs have not alleged facts that support the inference that these policies
were widespread, that the policies had resulted in similar harm in the past,
that Fiebrink’s harm was the obvious result of these policies, or, finally, that
the policies were the moving force behind Fiebrink’s constitutional harm.
1.2.2.2.1 Medical policies
Plaintiffs argue that they allege that Armor had “a policy and
practice” of conducting “clinical intake assessments by medical
practitioners. . .only once per year.” (Docket #116 at 5). Plaintiffs also claim
that Armor “lacks a policy requiring an interval history and physical
examination when someone is jailed more than once in a year.” Id. These
policies articulate the same failure to conduct an adequate and timely
medical examination upon re-entry to MCJF, so they will be analyzed as
one policy. Plaintiffs argue that these policies were widespread, systematic,
and the moving force behind Fiebrink’s constitutional harm.
Despite claiming a policy of inadequate medical examination for
inmates re-entering CMJF, in their amended complaint, Plaintiffs
acknowledge that Armor conducted an initial health screening of Fiebrink
when she was booked. (Docket #57 at 14). They also state that it was
Armor’s policy to “require[] an inmate to receive a medical screening
within 72-hours of admission.” Id. at 2. Fiebrink did not receive her
screening before she died, id., because the screening was re-scheduled, but
Page 9 of 35

a policy was nevertheless allegedly in place. The complaint, therefore,
undermines the very Monell policies of which it tries to make claims.
Even if Plaintiffs had successfully alleged a cognizable policy of
failing to appropriately examine newly re-admitted inmates, there are still
no allegations that Armor was on notice that its health screening policies
were likely to result in violations of inmates’ constitutional rights. Plaintiffs
do not point to a single other instance of constitutional harm arising from
Armor’s medical screening policies as they relate to re-entering inmates.
1.2.2.2.2 Detoxification policies
Plaintiffs attempt to allege Monell claims based on Armor’s lack of a
policy “requiring the administration of a preventative detoxification
protocol,” and the policy and practice of failing to provide “medication or
other immediate medical care when withdrawal symptoms are observed.”
(Docket #116 at 5). These policies articulate the same failure to provide
adequate care to inmates suffering from withdrawal, so they will be
analyzed as one claim.
The facts of the amended complaint suggest that the decision to
administer taper medication is conducted on a case-by-case basis. See
(Docket #57 at 6–7). That complaint points to no other instances of abject
denial of medications that suggest a de facto policy of withholding
necessary medications from heroin users. Moreover, the amended
complaint indicates that medical care was envisioned for Fiebrink as her
withdrawal was monitored. Id. Therefore, Plaintiffs have failed to
sufficiently plead the existence of a de facto policy of refusing medical
attention or medication for inmates who used heroin and/or are
withdrawing.

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Additionally, even if they had sufficiently pled such a policy,
Plaintiffs have failed to point to a single other constitutional violation
arising from such a policy. Accordingly, there are no facts to suggest
Armor’s knowledge that such a practice commonly occurred. To the extent
that Plaintiffs attempt to allege a single-incident Monell claim, they have not
credibly alleged that “a violation of federal rights [is] a highly predictable
consequence of” failing to immediately medicate an inmate who indicates
heroin use or demonstrates withdrawal symptoms. Brown, 520 U.S. at 409.
The amended complaint contains facts suggesting that Fiebrink’s
withdrawal was supposed to be monitored, which undermines the “high[]
predictab[ility]” of the constitutional violation. Id. For example, that
complaint indicates that taper medications were evaluated, but determined
to be unnecessary at the time of admission. (Docket #57 at 6–7). Meanwhile,
three nurses were ordered to conduct detox/withdrawal monitoring of
Fiebrink over the course of several days. Id. at 6. The amended complaint,
therefore, does not support the allegation that Armor had a widespread, de
facto policy of withholding medical care to inmates suffering from or at risk
of withdrawal.
1.2.2.2.3 Failing to provide adequate medical
care
Plaintiffs broadly allege that Armor failed to provide adequate
medical care to inmates and point to four deaths at MCJF in 2016 in an
attempt to illustrate a wide-spread practice of ignoring medical needs. The
deaths, discussed above, include Fiebrink’s, a baby who was born in
solitary confinement, a man who died in solitary confinement when his
water was cut off for six days, and a man who died after suffering from a
heart condition and a seizure.
Page 11 of 35

In Terry v. County of Milwaukee, this Court declined to find a
widespread municipal custom or practice of ignoring inmates’ medical
needs based on these same deaths. 2018 WL 2567721, at *4, *6 (E.D. Wis.
June 4, 2018). The Court explained that the circumstances surrounding each
death were too distinct to suggest a pattern. As here, the plaintiffs made no
allegations that the same staff, medical conditions, or policies were behind
the deaths. The only common fact underlying each passing was that these
individuals died in MCJF custody because their medical needs were
ignored—“though one instance of being ignored appears to mean
something vastly different from the next.” Id. at *7. The Court must reiterate
what it held then, which is that there are insufficient factual allegations to
suggest that “tolerating the problem amounted to a conscious choice.” Id.
at *8. Indeed, the “custom or policy underlying a Monell claim cannot be so
amorphous that it effectively exposes a municipality to respondeat superior
liability.” Id. Because Plaintiffs have failed to state a cognizable practice, this
claim must be dismissed.
1.2.2.2.4 Failing to train staff to respond to
inmate withdrawal
Plaintiffs finally argue that Armor had a policy of failing to train
employees on adequate medical care for inmates suffering from heroin
withdrawal, which amounted to deliberate indifference. Defendant argues
that there is no “recurring situation that presents an obvious potential for a
constitutional violation,” and no allegation that Armor “fail[ed] to provide
further training after learning of a pattern of constitutional violations.”
(Docket #137 at 11–12) (citing and quoting Dunn v. City of Elgin, Illinois, 347
F.3d 641, 646 (7th Cir. 2003)). They further argue that there is no “obvious
need” that leaves open the possibility that the “unconstitutional
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consequences of failing to train could be so patently obvious that a city
could be liable under Section 1983 without proof of a pre-existing pattern
of violations.” Connick, 563 U.S. at 64.
The Court finds that the pleadings do sufficiently allege a failure to
train employees on how to respond to inmates suffering from heroin
withdrawal. (Docket #57 at 18, 26). Plaintiffs allege that Fiebrink was not
properly treated for her heroin withdrawal symptoms due to Armor’s and
Milwaukee County’s failure to train employees on how to recognize and
care for withdrawing inmates, and that she died as a result. Id. In light of
the high rate of individuals who suffer from opioid addiction, as well as the
sweeping media coverage of the issue, it is conceivably obvious that
constitutional violations would arise from a failure to train staff on how to
respond to this issue. At the motion to dismiss juncture of this analysis,
Plaintiffs have adequately alleged that Armor’s and Milwaukee County’s
failure to train was the moving force behind Fiebrink’s death. This claim
will be analyzed on summary judgment, infra.
2.

DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
Milwaukee

County,

Wisconsin

County

Mutual

Insurance

Corporation, Latrail Cole, Latisha Aikens, Armor Correctional Health
Services, Inc., Brandon Decker, Briteny Kirk, Eva Cage, and Veronica
Wallace have submitted motions for summary judgment. For the reasons
stated below, the motions submitted by the Milwaukee County Defendants,
(Docket #193), the Armor Defendants, (Docket #210), and Briteny Kirk and
Eva Cage (Docket #219) will be granted in part and denied in part. Veronica
Wallace’s motion for summary judgment, (Docket #223), will be granted in
full.

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2.1

Legal Standard

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); 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 [C]ourt 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).
2.2

Relevant Facts

On August 24, 2016, Fiebrink was arrested by the Milwaukee Police
Department and detained on an outstanding probation violation. During
her arrest, she sustained an injury to her foot and was transported to St.
Francis Hospital for evaluation. She received a foot x-ray and an EKG, both
of which came back as normal. Fiebrink was transported to MCJF, where a
pre-booking screening was completed by an Armor nurse. After booking,
another nurse, Mai Bruno (“Bruno”), performed an intake health screening
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on Fiebrink in the early morning of August 25, 2016. Fiebrink told Bruno
that she was a habitual heroin user. Bruno indicated on the health screening
form that Fiebrink was a daily heroin user and had last used heroin the
previous day. Bruno also noted that Fiebrink had had difficulty with drug
withdrawal in the past. At the time she was booked, Fiebrink did not have
any symptoms of withdrawal, and registered a “zero” on a withdrawal
symptom scale of 0-10. Nevertheless, Bruno completed a withdrawal
screening flowsheet form and a mental health intake screening form, and
reported Fiebrink’s heroin use to a clinician, Brandon Decker. Decker
formulated a withdrawal assessment plan that did not include
detoxification medications. The parties agree that this failure to provide
detoxification medication violated protocols. (Docket #245 at 3). Decker did,
however, prescribe regular withdrawal checks, which consist of a nurse
practitioner taking the patient’s vital signs and asking various questions
about withdrawal symptoms. Aside from this, Decker was not involved in
Fiebrink’s care, nor did he receive any other updates about her. At no point
during these various health evaluations did Fiebrink disclose any heart
issues.
At the time Fiebrink was admitted, it was Armor’s policy to conduct
withdrawal monitoring checks twice per day on inmates who indicated
heroin use. Detoxification was to be done under the supervision of a
physician. Armor also had a list of possible medications that could be
administered to individuals going through the detoxification process.
Fiebrink was put into jail’s general population, but placed on a lower
bunk, which sometimes indicates that an inmate has special needs. Bruno
scheduled a “Level 2” medical appointment with a clinician for opiate

Page 15 of 35

withdrawal on August 26. This appointment was subsequently rescheduled
for a later date.
On August 25, the day Fiebrink was admitted MCJF, Nurse Kirk
went to the sixth-floor common area in order to conduct withdrawal checks.
During these withdrawal checks, inmates are supposed to come out of their
cells and undergo a brief examination. If inmates refuse treatment, Armor’s
policy requires the nurse to inform the patient of the risks of refusing
consent, and have the patient sign a refusal of treatment form. If the patient
refuses to sign the form, then the correctional officer on duty must sign.
Armor trains its nurses never to go into the inmate’s cells, so if an inmate
refuses to come out of his or her cell, the corrections officer will serve as a
go-between for the inmate and the nurse.
On August 25, Fiebrink refused the withdrawal check conducted by
Kirk. (Docket #235 at 11). This was the only attempted withdrawal check
that anybody conducted that day. Kirk filled out a refusal form but did not
explain the risks of refusing treatment to Fiebrink. Kirk never saw Fiebrink,
and communicated with her through a guard. The correctional officer on
duty signed the refusal form in lieu of Fiebrink.
On August 26, Fiebrink refused a withdrawal check from Nurse
Wallace. This was the only attempted withdrawal check of the day. Wallace
did not fill out a refusal form, but she did explain the risks of refusing
treatment to Fiebrink and made a note that Fiebrink refused treatment on
Fiebrink’s electronic medical records, so that future nurses would see it.
On August 27, Fiebrink refused a withdrawal check from Nurse
Cage. This was the only attempted withdrawal check of the day. Cage filled
out a refusal form but did not explain the risks of refusing treatment to
Fiebrink. Cage did not see Fiebrink or speak directly to her, but
Page 16 of 35

communicated through the security guard. Fiebrink was last noted to be
alive at 6:00 p.m. on August 27, 2016.
Correctional Officer Cole was on duty during Fiebrink’s time at
MCJF. She knew that Fiebrink was assigned to a lower tier and a lower
bunk, but the parties dispute whether Cole understood that Fiebrink was
assigned to this type of bunk because she was going through withdrawal.
Generally speaking, correctional staff were not apprised of inmates’ health
information, including prior heroin use. (Docket #234 at 5). On August 27,
Cole witnessed Fiebrink refuse breakfast, which was fairly common among
inmates. Later that day, Fiebrink defecated on herself. In response to the
defecation, Cole ensured that Fiebrink’s cell was cleaned, and noted that
Fiebrink showered herself without incident. Following the defecation,
Fiebrink socialized with other detainees in the day room. There is no
evidence that the diarrhea, or any other symptoms, persisted or worsened.
The parties dispute whether, from these incidents, Cole knew that Fiebrink
was suffering from severe withdrawal. Cole was not formally trained to
recognize heroin withdrawal symptoms.
Correctional Officer Aikens was assigned to the night shift on
Fiebrink’s floor the night she died. Aikens was tasked with making sure
that inmates were in their cells and, if necessary, responding to calls for
help. Aikens knew that an inmate who was assigned a lower tier/lower
bunk was likely to have special needs. Aikens did not have any interactions
with Fiebrink prior to Fiebrink’s death. Aikens performed regular bed
checks at Fiebrink’s cell at around 10:30 p.m. and 11:13 p.m. on August 27,
2016, and then again at approximately 12:05 a.m., 12:50 a.m., and 1:42 a.m.
on August 28, 2016. Defendants provided evidence that Aikens conducted
additional bed checks at approximately 1:25 a.m., 2:15 a.m., 3:02 a.m., 3:30
Page 17 of 35

a.m., 5:15 a.m., 5:50 a.m. When conducting these bed checks, officers were
to look at the rise and fall of the inmates’ chests, if possible, to ensure that
they were breathing. Many of Aikens’s rounds were quickly completed,
and there is an issue of fact as to whether she performed these rounds
thoroughly.
There is a “call-light” outside each cell, which inmates are able to
activate when they are in distress. There is an issue of fact as to whether
Fiebrink called for help in the night and activated her call-light. Plaintiffs
have provided a witness who remembers hearing Fiebrink call for help and
seeing Fiebrink’s call-light activate; Defendants have provided evidence
seeking to undermine this witness’s account. Aikens testifies that neither
she, nor her partner on duty, recall anything out-of-the-ordinary from that
night. (Docket #234 at 15).
When Cole entered Fiebrink’s cell around 7:24 a.m. on August 28 to
bring her to a medical assessment, Fiebrink was cold to the touch. She was
pronounced dead shortly thereafter. The parties dispute the cause of
death—Defendants’ autopsy points to cardiovascular disease, while
Plaintiffs’ expert opines that the cause of death was due to withdrawalrelated complications. See (Docket #221-6 at 10–16).
2.3

Analysis
2.3.1

Estate of Fiebrink’s Section 1983 Claim for Violation
of her Eighth Amendment Rights

As a threshold matter, the parties dispute whether the Eighth or
Fourteenth Amendment applies to Fiebrink’s Section 1983 claim. The due
process protections of the Fourteenth Amendment “govern [a] pretrial
detainee’s conditions of confinement after the judicial determination of
probable cause, and the Eighth Amendment applies following conviction.”
Page 18 of 35

Lopez v. City of Chicago, 464 F.3d 711, 719 (7th Cir. 2006). Fiebrink was
arrested and detained at MCJF pursuant to a warrant issued as a result of
an outstanding probation violation. The case law in this circuit is clear that
the Eighth Amendment applies “following conviction.” Id. Since probation
is a term of punishment imposed in lieu of confinement following
conviction, the Eighth Amendment applies.
The Eighth Amendment’s “deliberate indifference” standard
requires that (1) Fiebrink suffered from an objectively serious medical
condition; (2) the government official subjectively knew of the condition
and was deliberately indifferent in treating it; and (3) this indifference
caused Fiebrink’s injury. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Gayton
v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).
The parties do not dispute that heroin withdrawal constitutes a
serious medical condition. See Davis v. Carter, 452 F.3d 686, 692–93 (7th Cir.
2006) (assuming, without deciding, that heroin withdrawal is a sufficiently
serious medical condition that would give rise to a violation of the Eighth
Amendment). The issue here is whether the parties acted with deliberate
indifference towards Fiebrink’s medical need.
The deliberate indifference 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.” Gayton, 593 F.3d at 620. Even
if an official is aware of the risk to the inmate’s health, he is not liable if he
“responded reasonably to the risk, even if the harm ultimately was not
averted.” Farmer, 511 U.S. at 844; Estate of Novack ex rel. Turbin v. Cty. of
Wood, 226 F.3d 525, 529 (7th Cir. 2000); Fisher v. Lovejoy, 414 F.3d 659, 662
(7th Cir. 2005). Establishing deliberate indifference is a heavy burden; the
Seventh Circuit has emphasized that deliberate indifference “comprehends
Page 19 of 35

more than mere negligence but less than the purposeful or knowing
infliction of harm.” Estate of Novack, 226 F.3d at 529; Peate v. McCann, 294
F.3d 879, 882 (7th Cir. 2002). Indeed, the Court of Appeals has characterized
the required showing “as ‘something approaching a total unconcern for [the
prisoner’s] welfare in the face of serious risks.’” Collins v. Seeman, 462 F.3d
757, 762 (7th Cir. 2006) (quoting Duane v. Lane, 959 F.2d 673, 677 (7th Cir.
1992)). The operative inquiry is not whether the inmate believes some other
course of treatment would have been better. Snipes v. DeTella, 95 F.3d 586,
591 (7th Cir. 1996); Reynolds v. Barnes, 84 F. App’x 672, 674 (7th Cir. 2003)
(“[T]he Constitution does not mandate that a prisoner receive exactly the
medical treatment he desires.”). The individual defendants’ deliberate
indifference will be analyzed below.
2.3.1.1

Nurse Brandon Decker

Plaintiffs have failed to establish a genuine issue of material fact as
to whether Decker knew that Fiebrink was in need of withdrawal
medication when she was booked into MCJF. Decker was informed that
Fiebrink was a regular heroin user with a history of difficult withdrawal.
However, he also knew that she did not exhibit a single withdrawal
symptom upon entry to MCJF. Accordingly, Decker developed a
monitoring plan that entailed withdrawal checks for Fiebrink—including
one later in the day that she was admitted—and a medical appointment
within 72-hours. There is no evidence that Decker ignored the risks of
future heroin withdrawal. To the contrary, he addressed it with a plan
tailored to her symptoms at the time of admittance (which were nonexistent) and which could accommodate any future symptoms of
withdrawal as they arose. There is no evidence that Decker had any
responsibility past this initial consultation, nor was his opinion requested
Page 20 of 35

at a later hour. While Decker may have been negligent in failing to order
taper medications, there is no evidence of deliberate indifference.
2.3.1.2

Nurse Briteny Kirk

There is no evidence that Kirk knew that Fiebrink was undergoing
withdrawal symptoms when she entered the day room to conduct a
withdrawal check. On August 25, Fiebrink declined the withdrawal check,
as was her right to do, and the correctional officer who relayed the
communications to Kirk gave no indication that Fiebrink was in distress.
Additionally, Fiebrink had not been assigned any taper medication at that
point, so Kirk had no basis to believe that Fiebrink was in need of medical
attention. Although Kirk should have informed Fiebrink of the risks of
refusing medical attention and conducted another withdrawal check later
in the day, “her failure to do so was not a deliberate indifference to a serious
medical condition,” but may have been merely negligent in light of the fact
that Fiebrink gave no indication of suffering from serious withdrawal
symptoms. Gayton, 593 F.3d at 623. Because Kirk was not subjectively aware
that Fiebrink was suffering from severe withdrawal symptoms, there is no
deliberate indifference.
2.3.1.3

Nurse Veronica Wallace

Like Kirk, Wallace had no subjective knowledge that Fiebrink was
suffering from serious heroin withdrawal on August 26. Fiebrink was not
prescribed taper medications, and she refused a withdrawal check, as was
her right. Wallace saw Fiebrink and explained to her the risks of refusing
medical treatment. There is no evidence that Fiebrink was exhibiting
withdrawal symptoms that would have put Wallace on notice of her
condition. Although Wallace should have filled out a refusal form and
conducted another withdrawal check that day, “her failure to do so was not
Page 21 of 35

a deliberate indifference to a serious medical condition,” but may have been
merely negligent in light of the fact that she did not know that Fiebrink was
suffering from serious withdrawal symptoms. Gayton, 593 F.3d at 623.
Because Wallace was not subjectively aware that Fiebrink was suffering
from severe withdrawal symptoms, there is no deliberate indifference.
2.3.1.4

Nurse Eva Cage

Like Kirk and Wallace, Cage had no subjective knowledge that
Fiebrink was suffering from serious heroin withdrawal. When Cage
attempted to conduct the withdrawal check on August 27, Fiebrink still had
not been prescribed taper medications, and she had refused two
withdrawal checks. Cage was not informed that Fiebrink had defecated on
herself or refused breakfast. Thus, there is no evidence that Cage knew that
Fiebrink was suffering from withdrawal symptoms, let alone serious ones.
Fiebrink declined the withdrawal check, as was her right to do, and the
correctional officer who communicated between them gave no indication
that Fiebrink was in distress. Although Cage should have warned Fiebrink
about the risks of refusing medical care, “her failure to do so was not a
deliberate indifference to a serious medical condition,” but may have been
merely negligent in light of the fact that she did not know that Fiebrink was
suffering from serious withdrawal. Gayton, 593 F.3d at 623. Because Cage
was not subjectively aware that Fiebrink was suffering from severe
withdrawal symptoms, there is no deliberate indifference.
2.3.1.5

Correctional Officer Latrail Cole

Plaintiffs have failed to establish a genuine issue of material fact as
to Cole’s deliberate indifference to a serious medical need. There is no
evidence that Cole had subjective knowledge of Fiebrink’s severe heroin
withdrawal. The parties dispute whether Cole would have understood the
Page 22 of 35

significance of Fiebrink’s lower bunk assignment, but this is of no
consequence. Even if the Court assumed that Cole did understand, from
Fiebrink’s bunk assignment, that Fiebrink may have had special needs, it is
undisputed that Cole did not know what those special needs were. The
parties agree that refusing meals is a fairly common occurrence, so the only
indication Cole may have had of a serious medical issue was the selfdefecation. However, in response to Fiebrink’s self-defecation, Cole
ensured that Fiebrink and her cell were swiftly cleaned. Cole attested that
Fiebrink used the shower by herself without incident, then socialized with
other inmates in the day area. Fiebrink never told Cole that she was going
through withdrawal or experiencing continuing/worsening diarrhea, nor
did she appear to be in obvious anguish. There is, in short, no evidence that
Cole subjectively knew that Fiebrink was suffering from severe withdrawal.
2.3.1.6

Correctional Officer Latisha Aikens

It is undisputed that Aikens did not know that Fiebrink was
suffering from heroin withdrawal at the beginning of the night that Fiebrink
died. However, Plaintiffs offer some evidence which, if believed, indicates
that at some point in the early morning of August 28, Fiebrink called for
help and activated the call button outside of her cell, but nobody
responded. Defendants, on the other hand, have provided evidence that
Aikens diligently conducted her rounds twice an hour—which included a
“bed check” of Fiebrink’s cell—and concluded that nothing out of the
ordinary happened that night. This issue of fact is left to the jury to resolve.
If Aikens ignored Fiebrink’s calls for help and call light while on her rounds,
then it can be inferred that she knew that Fiebrink was in distress, and
ignored her, which would potentially give rise to a deliberate indifference
claim.
Page 23 of 35

2.3.1.6.1

Qualified Immunity

Qualified immunity shields officials from the civil consequences of
their constitutional violations when the law did not put the officials on clear
notice that their conduct would be unlawful. Saucier v. Katz, 533 U.S. 194,
202 (2001); see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (holding that
the doctrine protects officials from civil liability when they perform
discretionary functions “insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.”). “Put simply,” says the Supreme Court, “qualified
immunity protects ‘all but the plainly incompetent or those who knowingly
violate the law.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Malley
v. Briggs, 475 U.S. 335, 341 (1986)).
The test for qualified immunity is (1) whether the defendants’
alleged actions violated the plaintiff’s constitutional rights; and (2)
“whether the implicated right was clearly established at the time.” Jones v.
Wilhelm, 425 F.3d 455, 461 (7th Cir. 2005). Once the defense is raised, the
plaintiff bears the burden to defeat it. Weinmann v. McClone, 787 F.3d 444,
450 (7th Cir. 2015). To overcome an assertion of qualified immunity,
Fiebrink must proffer facts which, if believed, would amount to a violation
of her constitutional rights. Katz, 533 U.S. at 201. As the discussion above
shows, Fiebrink has done this. Next, Fiebrink must show that the violation
of her constitutional rights was “clearly established under applicable law at
the time and under the circumstances that the defendant official acted.”
Easterling v. Pollard, 528 Fed. App’x 653, 656 (7th Cir. 2013).
A right is clearly established if “a reasonable official would
understand that what he is doing violates that right.” Anderson v. Creighton,
483 U.S. 635, 640 (1987). Factually identical precedent is not necessary; the
Page 24 of 35

guiding question is whether the official would have had “fair warning” that
the conduct was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002).
“Deliberately ignoring a request for medical assistance has long been held
to be a form of cruel and unusual punishment.” Cooper v. Casey, 97 F.3d 914,
916 (7th Cir. 1996). Accordingly, if Aikens heard Fiebrink call for help and
saw her activate the call-light outside her door, but ignored the request for
medical assistance, then qualified immunity would not apply.
2.3.1.7

Causation

Defendants contend that Plaintiffs have not established an issue of
material fact as to whether Defendants’ unconstitutional conduct was the
cause in fact of her injury. Muckway v. Craft, 789 F.2d 517, 521 (7th Cir. 1986).
Causation is generally a question of fact for the jury to decide. Shick v. Ill.
Dept. of Human Servs., 307 F.3d 605, 615 (7th Cir. 2002) (“While generally the
issue of proximate cause is a jury question, in extreme circumstances ... the
question of proximate cause is an issue of law properly resolved by a
court.”); Gayton, 593 F.3d at 624 (in addressing a claim for deliberate
indifference to an inmate's medical needs under the Eighth Amendment,
“[p]roximate cause is a question to be decided by a jury, and only in the rare
instance that a plaintiff can proffer no evidence that a delay in medical
treatment exacerbated an injury should summary judgment be granted on
the issue of causation.”). The issue may only be resolved on summary
judgment “when there is no evidence from which a jury could reasonably
find the required proximate, causal nexus between the careless act and the
resulting injuries.” Johnson v. City of Philadelphia, 837 F.3d 343, 352 (3d Cir.
2016). The Court is satisfied that a reasonable jury could find causation
between Aikens ignoring Fiebrink’s alleged calls for help and Fiebrink’s
death.
Page 25 of 35

2.3.2

Estate of Fiebrink’s Monell Claim3

At summary judgment, Plaintiffs must provide evidence that Armor
and Milwaukee County failed to train their staff on how to respond to
inmates suffering from heroin withdrawal, and that this policy of failing to
train was the moving force behind Fiebrink’s constitutional violation.
Wilson, 742 F.3d at 784.
There is evidence that Armor’s training policies were deficient and
that Milwaukee County’s correctional officials were not trained on how to
identify and respond to inmates suffering from heroin withdrawal.
However, there is no evidence that the failure to train policy was the
moving force behind Fiebrink’s constitutional violation. This is because
Fiebrink was not exhibiting obvious signs of heroin withdrawal that would
have put any observing Armor or Milwaukee County employees on notice
even if they had been trained to identify signs of heroin withdrawal. The
only evidence of any out of the ordinary behavior that Fiebrink exhibited to
Cole—refusing one meal and defecating on herself once—are also
symptoms of a variety of other ailments or psychological conditions.
Additionally, there is no evidence that Fiebrink’s symptoms progressed or
were accompanied by other signs of withdrawal. Instead, the evidence
shows that after the defecation occurred, Fiebrink cleaned herself up and
proceeded to socialize in the day room without incident. There is no
evidence that Fiebrink complained of or exhibited any other withdrawal
symptoms, or that anybody observed her in obvious distress, until the night
In their oppositions to summary judgment, Plaintiffs also advance Monell
theories regarding a de facto policy of understaffing. See (Docket #240 at 4).
Summary judgment is not the appropriate time to advance these arguments for
the first time, so the Court will not consider them. Shanahan v. City of Chicago, 82
F.3d 776, 781 (7th Cir. 1996).
3

Page 26 of 35

that she passed away. Training could not have avoided the harm that
occurred because Fiebrink did not clearly present withdrawal symptoms.
Accordingly, there is no evidence that this failure to train was the moving
force behind her constitutional harm. Therefore, this Monell claim must be
dismissed.
2.3.3

Robert Martinez’s Wrongful Death Claim

Plaintiffs bring a federal wrongful death action based on any Section
1983 violations. The Seventh Circuit has yet to consider whether minor
children have standing to bring claims under Section 1983 for loss of society
or companionship of a parent. Defendants ask the Court to extend the
holding of Russ v. Watts, 414 F.3d 783, 791 (7th Cir. 2005), which established
that parents do not have “a constitutional right to recover for the loss of the
companionship of an adult child when that relationship is terminated as an
incidental result of state action,” to preclude a minor child’s ability to
recover for loss of companionship because the challenged state action was
not committed with the intent of interfering with the familial relationship.
The Court declines to do so at this juncture, although it acknowledges that
this is an unsettled area of the law. Russ’s holding intended to cabin due
process protections to mitigate “the risk of constitutionalizing all torts
against individuals who happen to have families.” Id. at 790. However, in
dicta, the Seventh Circuit acknowledged that the “need for the guidance
and support of. . .parents warrants sharply different constitutional
treatment.” Id. at 790. The only court to consider the issue in this district has
allowed minor children’s loss of companionship claims brought under
Section 1983 where the state action was not committed with intent to
interfere with the family relationship. See Avery v. City of Milwaukee, 2015
WL 13016242, at *1 (E.D. Wis. May 19, 2015); see also Mombourquette ex rel.
Page 27 of 35

Mombourquette v. Amundson, 469 F. Supp. 2d 624, 654 (W.D. Wis. 2007).
Therefore, if a jury finds that Aikens violated Fiebrink’s civil rights, then
this Court will permit the jury to hear Robert Martinez’s claim. Martinez
was born on October 6, 1998 and was approximately 17 years and ten
months of age when Fiebrink passed away. A jury will be able to factor his
age into the damages computed for loss of society and companionship.
2.3.4

Negligence (Wis. Stat. § 895.03)

Plaintiffs bring a negligence claim against all defendants for their
conduct in relation to Fiebrink’s care in the days leading up to her death. In
Wisconsin, the elements of a negligence claim are: “(1) [a] duty of care on
the part of the defendant; (2) a breach of that duty; (3) a causal connection
between the conduct and the injury; and (4) an actual loss or damage as a
result of the injury.” Antwaun A. v. Heritage Mut. Ins. Co., 596 N.W.2d 456,
461 (Wis. 1999). The duty in this case would be one of reasonable or
ordinary care, which is defined as the care “which a person of ordinary
prudence would exercise under the same or similar circumstances.”
Schuldies v. Serv. Mach. Co., Inc., 448 F. Supp. 1196, 1199 (E.D. Wis. 1978).
Notably, Wisconsin has adopted the Andrews approach to duty, see Palsgraf
v. Long Island R.R. Co., 162 N.E. 99, 102 (Ct. App. N.Y. 1928) (Andrews, J.,
dissenting), holding that “[t]he duty of any person is the obligation of due
care to refrain from any act which will cause foreseeable harm to others
even though the nature of that harm and the identity of the harmed person
or harmed interest is unknown at the time of the act.” A.E. Inv. Corp. v. Link
Builders, Inc., 214 N.W.2d 764, 766 (Wis. 1974); Klassa v. Milwaukee Gas Light
Co., 77 N.W.2d 397, 401 (Wis. 1956). Thus, negligence arises when “it can be
said that it was foreseeable that [the defendant’s] act or omission to act may
cause harm to someone.” Rolph v. EBI Cos., 464 N.W.2d 667, 672 (Wis. 1991)
Page 28 of 35

(citations and quotations omitted). Yet, while Wisconsin has adopted the
view that “everyone owes a duty to the world at large, the duty owed to the
world is not unlimited but rather is restricted to what is reasonable under
the circumstances.” Hocking v. City of Dodgeville, 768 N.W.2d 552, 556 (Wis.
2009).
2.3.4.1

Immunity

State officials are immune from liability for “acts done in the exercise
of legislative, quasi-legislative, judicial or quasi-judicial functions.” Wis.
Stat. § 893.80(4). Wisconsin courts have interpreted this protection as
extending to all conduct involving “the exercise of discretion and
judgment.” Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 691 N.W.2d
658, 673 (Wis. 2005) (quotation omitted). A “discretionary duty” requires “a
public official to determine how a general policy should be carried out or
how a general rule should be applied to a specific set of facts.” Patterson v.
Hepp, 2017 WL 3261715, at *12 (E.D. Wis. July 31, 2017) aff'd, 722 F. App’x
585 (7th Cir. 2018) (citing Lifer v. Raymond, 259 N.W.2d 537, 541 (Wis. 1977)).
Wisconsin courts have recognized four categories of acts to which
immunity does not apply: “(1) ministerial duties imposed by law, (2) duties
to address a known danger, (3) actions involving professional discretion,
and (4) actions that are malicious, willful, and intentional.” Scott v. Savers
Prop. & Cas. Ins. Co., 663 N.W.2d 715, 721 (Wis. 2003). The immunity
afforded by Section 893.80(4) and the exceptions thereto represent “a
judicial balance struck between ‘the need of public officers to perform their
functions freely [and] the right of an aggrieved party to seek redress.’” C.L.
v. Olson, 422 N.W.2d 614, 617 (Wis. 1988) (quoting Lister v. Bd. of Regents of
Univ. of Wis. Sys., 240 N.W.2d 610, 621 (Wis. 1976)); Patterson, 2017 WL
3261715, at *11. Three exceptions to discretionary immunity potentially
Page 29 of 35

apply to this case: the professional discretion exception to Armor, Decker,
Cage, Kirk and Wallace; and either the ministerial duty exception or the
malicious, willful, and intentional exception to the County Defendants.
2.3.4.1.1

Armor, Decker, Cage, Kirk, and
Wallace
The “professional discretion” exception to immunity applies most
often in medical contexts because “[t]he theory behind immunity for quasijudicial decisions does not dictate an extension of the immunity to cover the
medical decisions of medical personnel employed by a governmental
body.” Scarpaci v. Milwaukee Cty., 292 N.W.2d 816, 827 (Wis. 1980); Estate of
Perry v. Wenzel, 872 F.3d 439, 462–63 (7th Cir. 2017) (applying Wisconsin
law and holding that because defendants “were exercising their medical
discretion. . .governmental immunity does not act as a bar to suit.”). Armor
does not dispute that immunity does not protect it or its employees;
therefore, the medical negligence claims against them will go forward.
2.3.4.1.2

County Defendants

The ministerial duty exception removes an official’s immunity
where the duty in question “is absolute, certain and imperative, involving
merely the performance of a specific task when the law imposes, prescribes
and defines the time, mode and occasion for its performance with such
certainty that nothing remains for judgment or discretion.” Lister, 240
N.W.2d at 622.4 In contrast to ministerial tasks, discretionary acts require a
public official to determine how a general policy should be carried out or
how a general rule should be applied to a specific set of facts. Lifer, 259
Plaintiffs also argue that the professional discretion exception applies to
the County Defendants, but the correctional officers are not “medical personnel”
who made medical decisions regarding Fiebrink’s care. See Scarpaci, 292 N.W.2d
at 827.
4

Page 30 of 35

N.W.2d at 541. Even acts performed pursuant to a legal obligation may be
discretionary because there may exist room for judgment. Scott, 663 N.W.2d
at 723. A key step in inquiring whether an act is discretionary or ministerial
is to identify the law creating the duty to act. “Where there is a written law
or policy defining a duty, we naturally look to the language of the writing
to evaluate whether the duty and its parameters are expressed so clearly
and precisely, so as to eliminate the official’s exercise of discretion.” Pries v.
McMillon, 784 N.W.2d 648, 656 (Wis. 2010). The Court begins, therefore,
with the alleged source of Defendants’ duty.
Plaintiffs contend that Aikens and Cole had “a series of ministerial
duties imposed by both federal constitutional law and Milwaukee County
policy and procedure to ensure the safety and wellbeing of County
inmates.” (Docket #239 at 28). However, they do not point to a specific
writing that the Court can examine to determine whether “its parameters
are expressed so clearly and precisely, so as to eliminate the official’s
exercise of discretion.” Pries, 784 N.W.2d at 656. Certainly, all people have
a duty of care to one another, and custodial officials have a duty to carry
out their jobs according to the constitution and the legislation of Milwaukee
County, but a mandate to follow the law does not necessarily give rise to a
ministerial duty. See Swatek v. Cty. of Dane, 531 N.W.2d 45, 59–60 (Wis. 1995)
(evaluating a Wisconsin statute requiring prison officials to provide
appropriate medical care to inmates and concluding that the statute
imposes a discretionary duty). At summary judgment, Plaintiffs must do
more than simply allege that a ministerial duty exists—they must provide
evidence of the source of the ministerial duty in order for the Court to
evaluate whether the exception applies. Plaintiffs have not done this;

Page 31 of 35

therefore, to the extent that the County Defendants were negligent,
discretionary immunity shields them from liability.
The Court notes, however, that if a jury finds Aikens to be
deliberately indifferent, then the exception to governmental immunity for
actions conducted with malice, intent, or purpose may apply. See Brown v.
City of Milwaukee, 288 F. Supp. 2d 962, 984 (E.D. Wis. 2003) (leaving for the
jury the question of whether a police officer, who was also sued under
Section 1983, was malicious, willful, and intentional in his arrest of the
plaintiff); see also Campbell v. Brown Cty., 2006 WL 1207833, at *5 (E.D. Wis.
May 2, 2006) (Section 1983 case in which the court left for the jury the
question of whether immunity applied to a state law negligence claim).
Accordingly, if the jury finds that Aikens was deliberately indifferent, then
the question of whether she acted with malice, willfulness, or intent for the
purpose of negating governmental immunity will also be submitted to the
jury.
2.3.4.2

Standard of Care and Causation

A prima facie case of medical malpractice under Wisconsin state law
requires Plaintiffs to establish the standard of care through expert
testimony. Carney-Hayes v. N.W. Wis. Home Care, Inc., 699 N.W.2d 524, 537
(Wis. 2005); Payne v. Milwaukee Sanitarium Found., Inc., 260 N.W. 386, 390
(Wis. 1977) (recognizing a “distinction between medical care and custodial
or routine hospital care.”). Plaintiffs have provided one admissible expert
opinion, from Timothy Ryan, that bears on the standard of medical care as
to Armor, Decker, Kirk, and Cage, thereby creating a genuine issue of
material fact as to whether the standard of care was breached. To the extent
Defendants take issue with the reliability of this expert’s qualifications and
conclusions, they may elicit those weaknesses through cross-examination.
Page 32 of 35

Plaintiffs’ tardy submission of Dr. Richard Lewan’s opinion (Docket #230)
is inadmissible to establish the standard of care. See Fed. R. Civ. P. 37(c)(1);
Baker v. Indian Prairie Cty. Unif. Sch. Dist. No. 204, 1999 WL 988799, at *3
(N.D. Ill. Oct. 26, 1999). Moreover, since Ryan does not opine on the
standard of care administered by Wallace, Plaintiffs have failed to make out
a prima facie case against her. Therefore, the negligence claims as to
Wallace must be dismissed.
Armor, Decker, Kirk, and Cage also argue that Fiebrink’s own
refusal of treatment was a superseding cause to any purported negligence
that may have contributed to Fiebrink’s death. Causation is generally an
issue for the jury, unless there is absolutely no issue of fact. Shick, 307 F.3d
at 615. Here, while the Armor Defendants have provided evidence that
Fiebrink’s death was caused by issues unrelated to their putative
negligence, Plaintiffs have also provided evidence that medical negligence
may have contributed to Fiebrink’s death. See (Docket #221-6). A reasonable
jury could find a causal connection between the remaining defendants’
negligence and Fiebrink’s death. Therefore, the medical negligence claims
against the Armor Defendants are not properly resolved on summary
judgment.
3.

CONCLUSION
Accordingly,
IT IS ORDERED that Defendant Armor Correctional Health

Services, Inc.’s motion to dismiss Counts One and Two of Plaintiffs’
amended complaint (Docket #74) be and the same is hereby GRANTED in
part and DENIED in part;

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IT IS FURTHER ORDERED that the Milwaukee County
Defendants’ motion for summary judgment (Docket #193) be and the same
is hereby GRANTED in part and DENIED in part;
IT IS FURTHER ORDERED that the Armor Defendants’ motion for
summary judgment (Docket #210) be and the same is hereby GRANTED in
part and DENIED in part;
IT IS FURTHER ORDERED that Defendants Eva Cage and Briteny
Kirk’s motion for summary judgment (Docket #219) be and the same is
hereby GRANTED in part and DENIED in part;
IT IS FURTHER ORDERED that Defendant Veronica Wallace’s
motion for summary judgment (Docket #223) be and the same is hereby
GRANTED;
IT IS FURTHER ORDERED that Count I of the Amended
Complaint, Plaintiffs’ respondeat superior claim, be and the same is hereby
DISMISSED against Defendant Armor Correctional Health Services, Inc.;
IT IS FURTHER ORDERED that Count II of the Amended
Complaint,

Plaintiffs’

Monell

claims

against

Defendants

Armor

Correctional Health Services, Inc. and Milwaukee County, be and the same
is hereby DISMISSED;
IT IS FURTHER ORDERED that Count I of the Amended
Complaint, Plaintiffs’ Eighth Amendment claim, be and the same is hereby
DISMISSED as to Defendants Latrail Cole, Veronica Wallace, Brandon
Decker, Eva Cage, and Briteny Kirk;
IT IS FURTHER ORDERED that Count III of the Amended
Complaint, Plaintiffs’ Section 1983 loss of consortium claim, be and the
same is hereby DISMISSED as to Defendants Latrail Cole, Veronica
Wallace, Brandon Decker, Eva Cage, and Briteny Kirk;
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IT IS FURTHER ORDERED that Counts IV and V of the Amended
Complaint, Plaintiffs’ negligence and state law loss of companionship
claims, be and the same are hereby DISMISSED as to Defendants Veronica
Wallace and Latrail Cole;
IT IS FURTHER ORDERED that Defendants Veronica Wallace and
Latrail Cole be and the same are hereby DISMISSED from this action;
IT IS FURTHER ORDERED that Defendants Eva Cage and Briteny
Kirk’s motion to withdraw as attorney (Docket #228) be and the same is
hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiffs’ motion to restrict
document (Docket #241) be and the same is hereby GRANTED; and
IT IS FURTHER ORDERED that the Armor Defendants’ motion to
restrict document (Docket #257) be and the same is hereby GRANTED.
Dated at Milwaukee, Wisconsin, this 3rd day of May, 2019.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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