Gidarisingh, Sonniel v. Bittelman, Travis et al
Filing
93
Order GRANTING IN PART AND DENYING IN PART AND RESERVING IN PART defendants' 37 Motion for Summary Judgment; GRANTING plaintiff's 75 Motion for Assistance in Recruiting Counsel. All deadlines in this case are suspending pending recruitment of trial counsel for plaintiff. Signed by District Judge William M. Conley on 2/25/2015. (elc),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
SONNIEL R. GIDARISINGH,
Plaintiff,
OPINION AND ORDER
v.
12-cv-916-wmc
TRAVIS BITTELMAN, RAYMOND
MILLONIG, JASON WITTERHOLT,
PATRICK HOOPER, KIM CAMPBELL,
BRIAN FRANSON, MICHAEL
JULSON, TIMOTHY CASIANA,
DONALD MORGAN, DENISE
VALERIUS, BRIAN NEUMAIER,
SANDRA HAUTAMAKI, ANTHONY
ASHWORTH, JANEL NICKEL,
TIMOTHY ZIEGLER, TIM DOUMA,
KEVIN BOODRY, and KELLY RICKEY,
Defendants.
Plaintiff Sonniel R. Gidarisingh, an inmate at Columbia Correctional Institute
proceeding pro se, alleges among other things that various employees of CCI violated his
rights under the Eighth Amendment of the United States Constitution by failing to
provide medical treatment and by physical assaulting him.
Before the court is
defendants’ motion for summary judgment on all claims. (Dkt. #37.) For the reasons
that follow, the court will deny defendants’ motion with respect to Gidarisingh’s (1)
excessive force claim and state law battery claim against defendants Travis Bittelman,
Jason Witterholt and Kelly Rickey; (2) failure to protect claim against Brian Franson; and
(3) conditions of confinement claim against defendants Brian Franson and Kelly Rickey.
The court also declines to exercise supplemental jurisdiction on Gidarisingh’s state law
negligence claim, which will be dismissed without prejudice. The court will also reserve
on plaintiff’s First Amendment retaliation claim against defendant Bittelman.
In all
other respects, the court will grant defendants’ motion for summary judgment.
In addition to defendants’ motion for summary judgment, there is also a renewed
motion for assistance in recruiting counsel, which the court will grant. In light of this
decision, all remaining dates are suspended pending recruitment of counsel.
UNDISPUTED FACTS1
A. The Parties
Plaintiff Sonniel R. Gidarisingh is an inmate with the Wisconsin Department of
Corrections (“DOC”) and was confined at all times material to his lawsuit at Columbia
Correctional Institution (“CCI”).
CCI is a maximum-security institution located in
Portage, Wisconsin.
Defendants are all current or former employees of the DOC and, for all times
relevant to plaintiff’s complaint, were assigned to CCI. Defendants Travis Bittelman,
Raymond Millonig, Brian Neumaier, Kelly Rickey, Jason Witterholt and Michael Julson
were employed as Correctional Officers at CCI. Bittelman and Millonig are no longer
employed at CCI.
Neumaier, Rickey and Witterholt remain Correctional Officers at
CCI. Julson is now employed as a Correctional Sergeant at CCI.
1
While plaintiff’s claims cover a fairly sweeping factual landscape, defendants go well
beyond the boundaries material to deciding their summary judgment motion by
submitting extensive facts about Gidarisingh’s past violent episodes and his psychological
treatments. Moreover, the court is skeptical that much of this would even be admissible
at trial, either because of its lack of relevance, or if relevant, because of its prejudicial
value. With that said, the court finds the following facts material and undisputed unless
otherwise noted.
2
Defendants Timothy Casiana, Brian Franson, and Donald Morgan are and were
for all times material to the complaint employed at CCI as Supervising Officers 2
(Captains).2
Defendant Kevin J. Boodry was previously employed as a Supervising
Officer 1 (Lieutenant) and is currently employed at CCI as a Supervising Officer 2
(Captain). Defendant Patrick Hooper is a Correctional Sergeant at CCI.
At all times relevant to plaintiff’s complaint, defendants Anthony Ashworth,
Sandra Hautamaki and Timothy G. Ziegler were employed as Corrections Unit
Supervisors at CCI. Ashworth is currently employed as a Corrections Investigator for the
Office of Special Operation. Hautamaki is currently employed by the DOC as CCI’s
Deputy Warden.
Defendant Timothy Douma previously served as the Deputy Warden at CCI. He
is currently employed by the DOC as the Warden at New Lisbon Correctional
Institution. Defendant Janel Nickel was previously employed as the Security Director at
CCI. Defendants Kim M. Campbell and Denise Valerius are employed by the DOC at
CCI as Nurse Clinicians 2.
B. Gidarisingh’s GERD Diagnosis and Treatment
Gidarisingh represents that he was diagnosed with gastroesophageal reflux disease
(“GERD”) in 2006.
GERD is a digestive disorder that affects the lower esophageal
sphincter, the ring of muscle between the esophagus and stomach. Heartburn, also called
2
Morgan currently serves as the Administrative Captain at CCI, but it is not clear if he
served in that role at times relevant to this complaint.
3
acid indigestion, is the most common symptom of GERD. In most cases, heartburn can
be relieved through diet and lifestyle changes; however, some people may require
medication or surgery.
At some point, Gidarisingh was prescribed pantoprazole, a proton pump inhibitor
used to treat GERD. That prescription was discontinued on or about March 14, 2012,
after Gidarisingh attempted to commit suicide and was placed on a no medication
protocol.
On June 5, 2012, Gidarisingh submitted a Health Services Request (“HSR”),
complaining of severe chest pain and indicating that he did not know if it was a heart
attack or GERD. On June 6, HSU responded to the request, noting that Gidarisingh had
been scheduled to be seen. Defendants contend, however, that Gidarisingh refused to be
seen that day. Gidarisingh disputes this, claiming that he was never contacted about a
medical appointment on the 6th. There is no dispute, however, that Gidarisingh was
seen by a nurse on June 11, 2012, for severe GERD. At that time, Gidarisingh requested
a prescription for pantoprazole but was denied that medication, and instead instructed to
avoid spicy foods and not to lie down for two to three hours after eating.
On June 21, 2012, Dr. Dalia Suliene saw Gidarisingh for a renewal of selenium
sulfide for an apparent fungus infection on his chest and back, as well as for GERD.
Gidarisingh maintains that Suliene promised to reorder his GERD medicine, and the
parties agree that she planned for him to have an esophagogastroduodenoscopy (“EGD”)
4
test for erosive esophagitis.3 The next day, on June 22, Gidarisingh submitted another
HSR, complaining that he was experiencing severe chest pain as if he were having a heart
attack and requesting medical attention. (Defs.’ PFOFs (dkt. #56) ¶ 294.) He further
indicated that his GERD medication “was inappropriately discontinued.” (Id.)
C. June 23rd Incident
i.
Chest Pain Complaint
On June 23, 2012, Gidarisingh contends that he again complained of chest pains
to defendants Bittelman, Witterholt and Millonig. Gidarisingh submitted declarations
from three inmates housed in DS-1 on that day, all of whom aver to his having asked
these three defendants for requests for medical treatment. Bittelman contends that he
contacted HSU -- although he cannot recall with whom he spoke -- and was told that he
should have Gidarisingh complete an HSR form or “blue slip.” From the HSU records
from that day, it appears, as Gidarisingh contends, that Nurse Campbell was contacted.
(Pl.’s Exhibits, Ex. 9B (dkt. #71-2) p.19.) During a later interview as part of a DAI
investigation, Campbell did not recall Bittelman contacting her about Gidarisingh’s
health complaint on June 23. Gidarisingh disputes that Bittelman told him he should
submit an HSR. Neither Witterholt nor Millonig recall any complaints from Gidarisingh
on June 23 about chest pains.
3
An EGD is a “test to examine the lining of the esophagus, stomach, and first part of the
small
intestine.”
“Esophagogastroduodenoscopy,”
MedLine
Plus,
http://www.nlm.nih.gov/medlineplus/ency/article/003888.htm (last visited Feb. 25, 2015).
5
ii.
Exchange of Words
Around 1:00 p.m. on the 23rd, Gidarisingh spoke with Bittelman again about his
medical concerns, eventually telling him that he was “going to file a complaint against
him (Bittelman), COII Witterholt, Sgt. Millonig and Nurse Campbell for denying [him]
medical attention.” (Declaration of Sonniel R. Gidarisingh (“Gidarisingh Decl.”) (dkt.
#70) ¶ 47.) Gidarisingh claims that Bittelman responded, “[g]o ahead[,] you piece of
shit,” to which Gidarisingh responded by calling Bittelman a “racist honkey.” (Id. at ¶¶
48, 49.)
Gidarisingh’s version of this conversation is consistent with declarations
submitted by inmates in neighboring cells.
Bittelman acknowledges an “exchange of
words,” but his recollection is less precise, simply stating that Gidarisingh made
“derogatory comments” to him, as well as other unit staff. (Affidavit of Travis Bittelman
(“Bittelman Aff.”) (dkt. #77) ¶ 7.)
iii.
Physical Incident on the Way to Shower
At approximately 1:45 p.m. on the 23rd, Bittelman placed handcuffs on
Gidarisingh and removed him from his cell for escort to the A-upper shower.4 During the
escort, Bittelman avers that Gidarisingh turned his body toward him and stated, “I’m
gonna beat your -itch-ss for denying me medical treatment.” (Bittelman Aff. (dkt. #77) ¶
8.)
Bittelman further contends that Gidarisingh turned toward him in an aggressive
manner, making him fear that Gidarisingh was about to lash out and attempt to cause
bodily injury. (Id. at ¶ 9.) Bittelman contends that he then “decentralized” Gidarisingh,
4
According to Gidarisingh and other inmates in neighboring cells, Bittelman skipped
other inmates who would normally be given the option to shower first before
approaching Gidarisingh’s cell to ask him whether he wanted a shower.
6
which is a process of securing an inmate on the floor to prevent further action on the
inmate’s part. (Id. at ¶ 10.) Bittelman further contends -- and the other defendants
provide support -- that he suffered a small abrasion to his left elbow as part of this
altercation.
Gidarisingh denies that he made any statement to Bittelman or otherwise resisted
him physically. Instead, Gidarisingh contends that immediately after opening his cell
door, Bittelman punched him twice in the face, then slammed him to the concrete floor
and began gouging his left eye and choking him.
Gidarisingh’s account is again
consistent with that provided in affidavits submitted by other inmates housed close to his
cell in DS-1.
In contrast, Bittelman’s account is largely consistent with defendant Millonig’s
affidavit.
Millonig avers that he was working his position as sergeant for the DS-1
building on June 23, 2012. As per normal operating procedures, showers for inmates
housed in segregation were started on the first shift. Gidarisingh, housed in cell 13 on
the A-upper tier, was handcuffed to be escorted to the A-upper tier shower area. Millonig
observed Gidarisingh turning into Bittelman, who turned Gidarisingh back in the
direction of travel and ordered him to face forward. Millonig then observed Gidarisingh
become “physically restrictive by pulling away” from Bittelman and verbally threatening
Bittelman, though Millonig does not recall what was specifically said.
(Affidavit of
Raymond Millonig (“Millonig Aff.”) (dkt. #49) ¶ 10.) In response, Millonig observed
Bittelman direct Gidarisingh to the floor. Millonig then ordered defendant Witterholt to
assist and activated his unit’s assist button.
7
For his part, defendant Witterholt avers that he was directed up to A-upper tier of
DS-1 at approximately 1:45 p.m. on June 23, 2012. As he headed in that direction, he
heard Bittelman direct Gidarisingh to stop resisting. When Witterholt arrived on the
tier, both Bittelman and Gidarisingh were on the floor.
Witterholt contends that
Bittelman was attempting to gain control of Gidarisingh. Witterholt states that at that
point, he controlled Gidarisingh’s legs to prevent him from kicking at staff, by blanketing
his legs (presumably with his own body) and wrapping his arms around his legs. In
response, Gidarisingh disputes that he was resisting, stating that Witterholt joined in the
attack by punching him in his testicles and causing extreme pain. In turn, Witterholt
expressly disputes Gidarisingh’s version of events.
Defendants Franson and Rickey also arrived at the unit and were given a set of leg
restraints. Defendant Rickey maintains that he responded to Millonig’s call to DS-1,
Cell A-13 on the upper tier, but that the situation was under control by the time he
arrived. Despite the emergency being “called off” or “under control” by that time, Rickey
avers that he still “assisted but do[es] not recall to what extent.” (Affidavit of Kelly
Rickey (“Rickey Aff.”) (dkt. #52) ¶ 8.) At another point in his affidavit, Rickey avers
that he “was not present during the incident on June 23, 2012,” and “do[es] not recall
having ‘hands on’ Gidarisingh.” (Id. at ¶ 13.)5 Gidarisingh, however, contends that
Rickey struck him in his right side with his knee and knelt on his back, causing breathing
problems, and jammed his fist in his spinal column. (Pl.’s Resp. to Defs.’ PFOFs (dkt.
#69) ¶ 92 (citing Gidarisingh Decl. (dkt. #70) ¶¶ 62-63).) This Rickey denies.
Defendants do nothing to clarify this apparent contradiction, repeating both statements
in their proposed findings of fact. (Defs.’ PFOFs (dkt. #56) ¶¶ 92, 97.)
5
8
Finally, Franson contends that upon his arrival, he “bladed” Gidarisingh’s shoulder
and upper chest, which means that he laid his shin across his upper body to control him
until the leg restraints could be placed by Witterholt. Gidarisingh does not dispute this
account. Franson also avers that he ordered Gidarisingh to keep his spit in his mouth
because it appeared Gidarisingh had a mouth full of saliva and that Gidarisingh then
swallowed. Gidarisingh disputes both that Franson ordered him to not spit and that he
had excess saliva in his mouth.
Franson avers that he ordered Gidarisingh to stand, but that Gidarisingh refused.
In contrast, Gidarisingh claims he was unconscious after the attack and had difficulty
walking, which required defendants to assist him to the shower stall. Franson disputes
this account, stating that Gidarisingh was speaking to Franson during the entire process.
Franson represents that Gidarisingh simply refused to walk, stopping several times, and
also pulling his knees to his chest, requiring staff to bare his weight.6
iv.
Strip Search
At the shower, Franson states that he then ordered a staff-assisted strip search
because “he did not feel comfortable having staff relinquish physical control of him.”
(Affidavit of Brian T. Franson (“Franson Aff.”) (dkt. #45) ¶ 18.) There is no dispute
that Gidarisingh was subject to a strip search in the shower area, while tethered to the
inside of the shower door. Gidarisingh avers that defendant Rickey pulled and cut off his
6
Defendants Bittelman, Witterholt, Millonig, and Rickey completed incident reports,
detailing the incident on June 23, 2012, the contents of which are largely consistent with
their descriptions above. (Ex. 1007 (dkt. #40-3) pp.1-13.)
9
clothing in the open shower observation area, lifted his penis and testicles and spread his
buttocks, in front of other inmates and staff.
Rickey avers that while he remembers being “around the area” when Gidarisingh
was led to the shower area for a strip search, he would not have performed the actual
cutting off of his clothes or the physical search since the standard operating procedure is
for the regular staff assigned to the unit to perform the search. Franson further maintains
that it would not have been possible for other inmates to view Gidarisingh because of the
bubble wall and the staff congestion in the area.
After the strip search was conducted, HSU was contacted to evaluate a small
abrasion on Gidarisingh’s left cheek area. Nurse Campbell avers that his left eye was
slightly reddened, but there was no “active” bleeding. Gidarisingh maintains that he was
bleeding from his left eye, with blood running down his face. Gidarisingh further avers
that he told her about his neck, back, chest and heart area pain, but Campbell neither
assessed these concerns nor otherwise provided medical treatment.
Franson avers that Gidarisingh was naked only for the amount of time it took
Campbell to arrive and assess him, which Franson further represents was just a “few
moments” and not thirty minutes. (Defs.’ PFOFs (dkt. #56) ¶ 143 (citing Franson Aff.
(dkt. #45) ¶ 17).) Franson also believes they wrapped a towel around Gidarisingh’s
waist, but Gidarisingh insists that he was left completely naked. Gidarisingh maintains
that he was in the observation shower area, naked and chained to the door in handcuffs
and leg restraints for thirty minutes.
10
v.
Investigation
On or about June 25, 2012, Gidarisingh wrote a letter to Warden Michael
Meisner and a second letter to defendant Nickel, in which he recounted his version of the
events of June 23 and 24. (Pl.’s Exhibits, Exs. 14-15 (dkt. #71-2) pp.40-49.) Casiana
was assigned to investigate the allegations in Gidarisingh’s letters, ultimately determining
that it was more likely than not that Gidarisingh (1) was offered medical services, (2)
threatened staff, refused orders and resisted staff, (3) was not punched by staff nor did
staff gouge his eyes, and (4) exaggerated the altercation and the extent of his injuries. In
response to Casiana’s report, Nickel concluded that all officers involved were advised that
incident reports were necessary in the event of witnessing/participating in the use of
force, and recommended that Gidarisingh be issued a conduct report for alleged lying
about staff. Meisner reviewed the report and closed the investigation.
D. Requests for Medical Care during Controlled Separation
After the strip search, Gidarisingh was placed in cell 45 on “controlled separation”
status under Wis. Admin. Code § DOC 303.71. A security supervisor may order an
inmate in segregation to controlled separation status for disruptive or destructive
behavior. Gidarisingh was released from controlled separation status the next day on
June 24, 2012.
In cell 45, Gidarisingh was given an anti-suicide smock and security mattress. The
smock is heavy, quilt-like and has insulation qualities.
11
Franson recalls that the
temperature was in the low 80s that day. He does not recall Gidarisingh asking for any
additional property. Gidarisingh, however, maintains that he asked for a blanket.7
While housed in cell 45, Gidarisingh was checked by a staff member every thirty
minutes. At least initially, defendant Casiana checked on Gidarisingh. During one of
those checks, around 2:38 p.m., Gidarisingh asked defendant Casiana to see a nurse due
to what he now characterizes as extreme pain in his left eye, back, neck, chest and heart
area.
Casiana does not dispute that Gidarisingh requested to see a nurse, and a log
containing observations of Gidarisingh and a record of staff visitors, also contains a note
by Casiana indicating that Gidarisingh requested to see a nurse at 2:38 p.m. on the 23rd.
(Affidavit of Kevin Boodry (“Boodry Aff.”), Ex. 1006 (dkt. #41-1) p.3.)
On the other hand, Casiana submitted an affidavit in support of defendants’
motion for summary judgment. In one paragraph, Casiana states that he “do[es] not
recall why [Gidarisingh] wanted to see a nurse or [if he] made a specific indication about
a chief complaint.” (Affidavit of Timothy Casiana (“Casiana Aff.”) (dkt. #43) ¶ 7.) Yet
in the next paragraph, Casiana also avers that “Gidarisingh did not complain about heart
or chest pains or request medical care for the injuries he allegedly received during the
June 23, 2012 incident.” (Id. at ¶ 8.) In yet another arguable inconsistency, Casiana
nonetheless recalls contacting HSU to confirm that Gidarisingh had been seen earlier
that day following the physical incident.
7
Gidarisingh was denied leave to proceed on a conditions of confinement claim based on
an alleged denial of a blanket for an approximately 24-hour period, but the alleged denial
could at least technically be considered as a retaliatory act in support of his First
Amendment retaliation claim.
12
Gidarisingh represents that between approximately 2:30 p.m. on June 23 until
approximately 4:00 p.m. on June 24, 2012, when he was released from controlled
separation, he complained to defendants Casiana, Franson, Boodry, Julson, Millonig,
Witterholt and Hooper, requesting medical attention.
Relying on the log described
above, defendants dispute this. In the log itself, defendants recorded observations on
Gidarisingh’s behavior, e.g., whether he was sitting on the bed, pacing, standing, etc.
(Boodry Aff., Ex. 1006 (dkt. #41-1).) Since there is no obvious place in the log form to
record a request for medical treatment, the import of this document is unclear.
In
contrast, the same form contains specific places where officers could record whether and
when Gidarisingh was offered water, medication, and a meal.
Millonig avers that he does not recall whether or not Gidarisingh made a medical
complaint between June 23rd and 25th.
Julson also does not recall Gidarisingh
requesting medical care or otherwise complaining of heart or chest pains on June 23rd or
24th. Boodry and Hooper similarly aver that Gidarisingh did not bring to their attention
any medical concerns and did not request any additional property (e.g., a blanket).
E. Subsequent Requests for Medical Care
After leaving cell 45, Gidarisingh submitted an HSR on June 25, 2012,
complaining of pain in his left eye, back and neck. The June 26th response to that
indicated that Gidarisingh would be scheduled to see a RN. Defendants maintain that
Gidarisingh was scheduled to see a nurse on June 27th, but that defendant Valerius’s
13
note in Gidarisingh’s chart indicates that he again refused that appointment. Gidarisingh
disputes that he did so.
On June 30, 2012, Gidarisingh voiced a complaint of eye pain during health
rounds; his complaint was forwarded to optometry. On July 3, Gidarisingh submitted a
HSR complaining of severe heart and chest pain and inquiring as to the status of the test
Dr. Suliene had ordered. A response to this HSR was provided on July 4, indicating that
he had been scheduled for an x-ray on July 3, but that appointment was cancelled after
he refused his sick call appointment on June 27. The response also indicated that he was
rescheduled for a sick call appointment. On July 3, Gidarisingh submitted another HSR
complaining of left eye pain. The responses similarly provided that he was would be
rescheduled.
On June 25, July 5 and July 6, 2012, Gidarisingh sent letters to HSU complaining
of Campbell’s denial of medical treatment on the 23rd and further indicating that his
requests for care since then have been ignored. On July 6 and 7, Gidarisingh submitted
requests seeking copies of Suliene’s June 21st order, among other requests.
On July 9, 2012, Gidarisingh was seen by a nurse at HSU for complaints of chest
pain and left eye pain.8 The nurse’s notes indicate that there was no redness, drainage or
discoloration in his left eye. The notes further indicate that she checked with the doctor
about the prescribed EGD, and subsequently arranged for the test to take place in
8
Defendants do not indicate which nurse provided treatment, and the court cannot
discern the name of the nurse from the signature at the bottom of the Nursing Encounter
Protocols form. (Ex. 1004 (dkt. #51-1) p.5.)
14
September. The nurse further provided Gidarisingh with a bottle of artificial tears and
instructed him to place a cool or warm compress on his eye for comfort.
On July 19, 2012, Gidarisingh submitted a request to see the eye doctor due to
pain in his left eye. HSU responded the next day indicating that he was on the waiting
list. On July 30, Gidarisingh again submitted a request to see the eye doctor, and was
told that he would be seen “soon.” On August 12, Gidarisingh again submitted a HSR
complaining that he was experiencing excruciating pain in his left eye. Gidarisingh was
told that he would be seen “this week.” Gidarisingh was seen by an optometrist for eye
pain on August 15, but Gidarisingh contends that the eye doctor did not address his eye
pain, but rather prescribed a new pair of prescription glasses.
On July 23, 2012, during health rounds, Gidarisingh complained of left side
numbness.
A chest x-ray and EKG were subsequently ordered.
On August 12,
Gidarisingh submitted an HSR, asking when he was scheduled for tests.
Valerius
responded that he would be seen in HSU for additional tests next week and that he was
scheduled to be seen by a UW specialist in September. On August 26, Gidarisingh again
submitted a HSR, complaining of chest pain and pain in his left eye.
A response
provided the next day indicated that he was scheduled for some tests related to his chest
pain. Gidarisingh was seen UW Health on September 12 for an EGD test with biopsy.
The results of that test indicate that there was no hiatal hernia or evidence of esophagitis,
but that there was “increased vascularity of esophageal mucosa at GE junction, [which]
can be associated with reflux.”
(Affidavit of Brian Neumaier (“Neumaier Aff.”), Ex.
1004, part 2 (dkt. #51-1) p.25.) The biopsy was normal. (Id. at p.23.)
15
F. Conduct Reports
Bittelman issued Gidarisingh Conduct Report No. 2159939 for his misconduct
during the June 23rd incident.
Nickel approved it for further processing.
The
disciplinary hearing on the report was held on July 13, 2012, with a committee consisting
of defendants Morgan and Ziegler.
(Defendant Hautamaki did not participate.)
Gidarisingh attended the hearing and provided a written statement in advance. The
parties dispute whether Gidarisingh was argumentative and difficult during the hearing.
Prior to the hearing, Gidarisingh had posed a series of written questions for Bittelman to
answer, which he did.
The same day as the hearing, the committee found Bittelman’s account to be
credible, found Gidarisingh not credible, and rejected his objections to the hearing. The
committee further found Gidarisingh guilty of battery, disobeying orders, and threat
charges, and sentenced him to 10 days loss of recreation and 300 days disciplinary
separation.
Gidarisingh appealed the disciplinary committee’s decision to the CCI
warden. The warden’s designee, defendant Douma, reviewed the appeal and affirmed the
decision and sentence.
After completion of the investigation described above, Casiana also issued
Gidarisingh Conduct Report No. 2250976 for lying about staff conduct during the June
23rd incident on September 5, 2012. Franson reviewed the conduct report and approved
it for further processing. The disciplinary hearing was held on October 1, 2012, in front
of a disciplinary committee consisting of Morgan and Hautamaki.
16
(Ziegler did not
participate in this hearing.) Gidarisingh attended the hearing and made a statement in
which he challenged being punished for the same incident twice, among other points.
The committee found Gidarisingh not credible and the other witnesses credible.
The committee further found Gidarisingh guilty of lying about staff.
As a result,
Gidarisingh received a disposition of 210 days disciplinary separation.
Gidarisingh
appealed the committee’s decision to the CCI Warden. Douma, acting as the warden’s
designee, affirmed the committee’s decision and sentence.
G. Supervising Officers Knowledge of Bittelman’s Propensity for Violence
and Campbell’s Failure to Provide Medical Care
In response to Gidarisingh’s failure to protect claim, defendants Nickel, Ashworth,
and Morgan uniformly aver that they are unaware of any incidents where Bittelman was
disciplined for being “violent with inmates.” (Affidavit of Janel Nickel (“Nickel Aff.”)
(dkt. #78) ¶ 48; Affidavit of Anthony Ashworth (“Ashworth Aff.”) (dkt. #40) ¶ 9;
Affidavit of Donald Morgan (“Morgan Aff.”) (dkt. #50) ¶ 33.) Morgan further avers
that Bittelman does not have a “propensity for violence.” (Morgan Aff. (dkt. #50) ¶ 32.)
Gidarisingh disputes this, contending that Bittelman has assaulted several other
inmates in DS-1 and that Morgan is aware of these assaults.
More specifically,
Gidarisingh directs the court to a declaration by inmate Darrin A. Gruenberg, averring
that Bittelman physically assaulted him on February 13, 2012, and that he filed an
institution complaint against Bittelman.
(Pl.’s Exhibits, Ex. 29 (dkt. #71-3) p.40.)
17
Gidarisingh, however, concedes that he did not submit a complaint about Bittelman
being violent before the incident on June 23, 2012.9
All three defendants similarly aver to being unaware of Campbell having a history
of ignoring inmate requests for medical care. (Nickel Aff. (dkt. #78) ¶ 49; Ashworth Aff.
(dkt. #40) ¶ 10; Morgan Aff. (dkt. #50) ¶ 34.)
OPINION
Gidarisingh was granted leave to proceed on the following claims, against the
following defendants:
Claim
Defendants
Deliberate indifference to serious medical needs Bittelman, Witterholt, Millonig,
under the Eighth Amendment
Campbell,
Casiana,
Franson,
Boodry, Julson, Hooper, and
Valerius
Negligence with respect to denial of medical Bittelman, Witterholt, Millonig,
treatment
Campbell,
Casiana,
Franson,
Boodry, Julson, Hooper, and
Valerius
Excessive force in violation of the Eighth Bittelman, Witterholt, and Rickey
Amendment
Battery with respect to June 23rd incident
Bittelman, Witterholt, and Rickey
Failure to protect in violation of the Eighth Franson, Ashworth, Nickel and
Amendment
Morgan
Conditions of confinement based on being held Rickey and Franson
naked in violation of the Eighth Amendment
First Amendment retaliation
Bittelman, Witterholt, Valerius,
Campbell,
Neumaier,
Morgan,
Ziegler, Douma, Casiana, Franson,
and Hautamaki
9
While Gidarisingh submitted a request for formal separation from Bittelman, his
request was also submitted after the June 23rd incident. (Affidavit of Anthony Ashworth
(“Ashworth Aff.”), Ex. 1007 (dkt. #40-3) p.22.)
18
The court addresses defendants’ motion for summary judgment with respect to each of
these claims separately below.
I.
Medical Treatment Claims
Plaintiff was granted leave to proceed on Eighth Amendment deliberate
indifference and negligence claims premised on defendants’ alleged failure to provide
adequate medical care. Consistent with the court’s treatment of Gidarisingh’s claims in
its screening order, these claims cover three time periods and are directed at various
defendants: (1) June 23rd requests for medical attention due to chest and heart pain,
which preceded the physical incident involving Bittelman, Witterholt and Millonig; (2)
June 23rd and 24th requests for treatment of an injured eye and for neck and back pain
involving defendants Campbell, Casiana, Franson, Boodry, Julson, and Hooper; and (3)
subsequent requests for medical treatment of eye, neck and back, and chest and heart
pain involving defendants Campbell and Valerius.
A. Deliberate Indifference Claim
For plaintiff to survive summary judgment on his claim that defendants were
deliberately indifferent to his serious medical needs, he is required to provide evidence
from which a reasonable jury could find that (1) Gidarisingh had an objectively serious
medical need and (2) defendants were deliberately indifferent to it. Grieveson v. Anderson,
538 F.3d 763, 779 (7th Cir. 2008).
19
As for Gidarisingh’s complaints of chest and heart pain, defendants submit the
expert testimony of Dr. Suliene, who opines that GERD “is a chronic condition, but not
a serious medical need.” (Declaration of Dalia Suliene, M.D. (“Suliene Decl.”) (dkt.
#57) ¶ 34.) Since Dr. Suliene does not define “serious medical need,” her definition may
not be synonymous with the law. For example, a serious medical need under the law
includes instances of withholding of medical care that results in needless pain and
suffering. See Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). Of course, it is
Gidarisingh’s burden to establish a serious medical need. This he has not done either (1)
by establishing his GERD or eye condition ever led to complications or need for serious
treatment; or (2) describing severe pain that only subsided with treatment.10
Even if Gidarisingh could meet the “serious medical need” threshold, he still falls
short of proof with respect to whether defendants were deliberately indifferent to his
serious medical needs. In Gayton v. McCoy, 593 F.3d 610 (7th Cir. 2010), the Seventh
Circuit described the proof required to establish “deliberate indifference”:
[T]he plaintiff must show that the official acted with 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
In faulting Gidarisingh for this lack of proof, the court has in mind its decision to deny
Gidarisingh’s requests for assistance in recruiting pro bono counsel, which in turn could
arguably have assisted in retaining an expert to support claims that Gidarisingh’s medical
needs -- particularly with respect to the degree of pain from and available treatment for
GERD, his eye, back and neck -- were serious medical conditions. Still, this impediment
does not excuse Gidarisingh’s total failure to establish even now that his was a serious
medical condition for which treatment was ultimately necessary to correct the condition
or at least alleviate serious pain.
10
20
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 liability if he responded reasonably to the risk, even if
the harm ultimately was not averted.
Id. at 620 (internal quotations and citations omitted). Gidarisingh has not met this
burden for the period immediately before or after the June 23rd incident or any time
subsequent.
1. June 23rd Complaints of Chest and Heart Pain
On the morning of June 23, 2012, defendants concede that Gidarisingh
complained of heart and chest pains to Bittelman. Gidarisingh has also raised a genuine
issue of fact as to whether he alerted Millonig and Witterholt about these same concerns.
However, Bittelman also represents -- and Gidarisingh failed to dispute -- that he
contacted HSU about these complaints and was told that Gidarisingh should submit an
HSR. In light of this inquiry, Gidarisingh’s recent complaints of GERD, and the fact that
Gidarisingh had just seen Dr. Suliene two days before about these very complaints, no
reasonable jury could find that Bittelman, Millonig and Witterholt acted recklessly with
regard to Gidarisingh’s complaints of chest and heart pain.
This finding is bolstered by the well-established principle that “[e]xcept in the
unusual case where it would be evident to a layperson that a prisoner is receiving
inadequate or inappropriate treatment, prison officials may reasonably rely on the
judgment of medical professionals.” Johnson v. Doughty, 433 F.3d 1001, 1011 (7th Cir.
21
2006) (internal citation and quotation marks omitted); see also Berry v. Peterman, 604
F.3d 435, 440 (7th Cir. 2010) (holding that nonmedical prison employees are “entitled
to defer to the judgment of jail health professionals, so long as [they] did not ignore
[plaintiff]”); Greeno v. Daley, 414 F.3d 645, 657 (7th Cir. 2005) (finding no deliberate
indifference on the part of non-medical defendants who relied on HSU’s assurance that
inmate’s health concerns were being addressed).
2. Post-Attack Treatment
Gidarisingh next complains of medical care immediately after the attack and while
held in controlled separation status on June 23 and 24, 2012. Immediately following the
attack, it is undisputed that Nurse Campbell was called to the shower area to examine
Gidarisingh. While plaintiff complains about the lack of any treatment, there is again no
dispute that Campbell examined Gidarisingh and found no injuries which warranted
treatment. Gidarisingh may have disagreed with her assessment, but no reasonably jury
could find Campbell, or the defendants who called for her, acted with reckless disregard
of Gidarisingh’s medical needs, especially since there is no evidence that Gidarisingh ever
required follow up treatment or suffered any long-term injuries.
Again, mere
disagreement with a medical profession’s judgment is insufficient to constitute deliberate
indifference. Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007); Greeno, 414 F.3d
645, 653 (7th Cir. 2005) (noting that “a mere disagreement with a doctor’s medical
judgment” does not amount to deliberate indifference).
22
While on controlled status, Gidarisingh also represents that he asked a number of
other defendants for medical treatment. Other than Casiana, none of the defendants
recall such requests. Even crediting Gidarisingh’s account at this stage, as the court must,
no reasonable jury could find that defendants acted in reckless disregard of Gidarisingh’s
medical needs by failing to forward his requests to HSU or otherwise insure treatment for
the approximate 26-hour period while Gidarisingh was on controlled separation status
because: (1) he had been seen by Dr. Suliene for treatment two days prior to the June
23rd incident; and (2) any injuries due to the physical incident had been assessed
immediately after the incident by Nurse Campbell. See Johnson, 433 F.3d at 101; Berry,
604 F.3d at 440; Greeno, 414 F.3d at 657.
3. Subsequent Requests for Medical Treatment
Finally, Gidarisingh complains about a lack of medical treatment in the weeks
following the June 23rd incident. This claim is directed solely against the two nurse
defendants, Campbell and Valerius.
As an initial matter, individual liability under §
1983 requires “personal involvement.” See Smith v. Bray, 681 F.3d 888, 899 (7th Cir.
2012) (“[I]ndividual liability under § 1983 is appropriate where the ‘individual
defendant caused or participated in a constitutional deprivation.’”) (quoting Hildebrandt
v. Ill. Dep’t of Natural Res., 347 F.3d 1014, 1039 (7th Cir. 2003)). As such, Campbell
and Valerius cannot be liable based merely on actions or omissions of Dr. Suliene or
other HSU staff.
23
From the record, it appears that Valerius was involved in two medical incidents.
First, on June 27, 2012, Valerius made the notation that Gidarisingh refused a sick call
appointment. She acknowledges making this notation, but understandably enough no
longer recalls the reason for her note. Second, on August 12, Gidarisingh submitted an
HSR, asking when he was scheduled for tests, and Valerius responded that he would be
seen in HSU for additional tests next week and was scheduled to be seen by a UW
specialist in September. From this limited record, no reasonable jury could find that
Valerius acted in reckless disregard of Gidarisingh’s medical needs. As for defendant
Campbell, there is no mention of her involvement in Gidarisingh’s medical treatment
after her assessment of his injuries on June 23rd. As such, there is also no basis for
finding her deliberately indifferent to Gidarisingh’s medical needs, serious or otherwise.11
If the court were to disregard the personal involvement requirement, the record
further reflects that Gidarisingh was seen by HSU on July 11th, approximately two weeks
after the physical incident. Moreover, Gidarisingh’s eye complaint was forwarded to the
optometrist, and he was seen by that specialist in mid-August. Gidarisingh also saw a
UW specialist to evaluate whether he had any conditions requiring surgery or other
treatment as a result of his GERD. While a delay in treatment can constitute deliberate
indifference in certain circumstances, any delay at issue here does not rise to that level,
because Gidarisingh fails to put forth evidence that the delay exacerbated any injury or
prolonged his pain. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); McGowan v. Hulick,
11
To the extent Valerius or Campbell were involved in Gidarisingh’s care on other
occasions, he has failed to direct the court to those instances in his summary judgment
opposition.
24
612 F.3d 636, 640 (7th Cir. 2010) (“[T]he length of delay that is tolerable depends on
the seriousness of the condition and the ease of providing treatment.”) (citations
omitted). Indeed, there is no evidence that either visit resulted in meaningful, much less
serious, medical attention.
B. Negligence Claim
In light of this court’s decision granting defendants’ motion for summary
judgment on plaintiffs’ Eighth Amendment deliberate indifference claim, the court will
decline to exercise supplemental jurisdiction over Gidarisingh’s state law negligence
claim, finding that the facts and law surrounding that claim are distinct from the facts at
issue in any of the other federal law claims that might proceed to trial. See 28 U.S.C. §
1367(c)(4) (distinct nature of facts and law of state claim constitutes a compelling reason
for declining to exercise supplemental jurisdiction).
Accordingly, the court will dismiss
plaintiff’s negligence claim without prejudice.
II.
June 23rd Physical Altercation
Plaintiff asserts two claims based on the June 23rd physical altercation itself: an
Eighth Amendment excessive force claim and a state law battery claim, both of which are
asserted against Bittelman, Witterholt, and Rickey.
A. Eighth Amendment Claim
The Eighth Amendment prohibits conditions of confinement that “involve the
wanton and unnecessary infliction of pain.”
25
Rhodes v. Chapman, 452 U.S. 337, 347
(1981). Because prison officials must sometimes use force to maintain order, the central
inquiry for a court faced with an excessive force claim is whether the force “was applied
in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). To determine whether force
was used appropriately, a court considers the safety threat perceived by the officers, the
need for the application of force, the relationship between that need and the amount of
force used, the extent of the injury inflicted and the efforts made by the officers to
mitigate the severity of the force. Whitley v. Albers, 475 U.S. 312, 321 (1986); Outlaw v.
Newkirk, 259 F.3d 833, 837 (7th Cir. 2001).
1. Defendant Bittelman
Plaintiff focuses his excessive force claim on Bittelman’s actions. As evidenced by
the record described above, plaintiff’s claim against Bittelman turns on credibility
determinations. According to Gidarisingh, and corroborated at least in part by other
inmates, Bittelman punched him and gouged out his left eye in a premeditated,
orchestrated and unprovoked attack.
According to Bittelman on the other hand,
Gidarisingh became physically resistant during a routine trip to the shower, and he feared
that Gidarisingh would lash out at him. Although the ultimate injury to Gidarisingh does
not appear substantial, a reasonable jury could find that Bittelman engaged in an
unprovoked physical attack in a malicious effort to cause harm. Hudson, 503 U.S. at 6-7.
In a somewhat convoluted argument, defendant Bittelman also asserts a qualified
immunity defense essentially because: (1) the court may grant qualified immunity even
if disputed issues of fact exist; and (2) a defendant’s subjective intent is “simply
26
irrelevant” to such a determination. (Defs.’ Opening Br. (dkt. #38) 34.) On the first
point, as articulated in the very case cited by defendants,
when a claim of qualified immunity arises as part of a
summary judgment motion, the district court should, as in
any summary judgment case, look at all of the undisputed
evidence in the record, construed in a light most favorable to
the non-movant. If the undisputed facts, so read, show that
the defendant’s conduct, as a matter of law, violated no
clearly established legal norms, then the district court must
grant the defendant qualified immunity. However, if there are
issues of disputed fact upon which the question of immunity
turns, or if it is clear that the defendant’s conduct did violate
clearly established norms, the case must proceed to trial.
Green v. Carlson, 826 F.2d 647, 652 (7th Cir. 1987).
For the reasons articulated above, Bittelman’s assertion of immunity necessarily
turns on issues of disputed fact.12 The jury will need to determine whether his use of
force was a good faith effort to maintain order or inflict punishment. If they find that it
was the latter, then a qualified immunity defense would fail because it is clearly
established that an officer may not use force “maliciously and sadistically to cause harm.”
Hudson, 503 U.S. at 6-7; see also Hill v. Shelander, 992 F.2d 714, 718 (7th Cir. 1993)
(“The notion that unnecessary and wanton infliction of pain constitutes cruel and
12
Of course, there may be instances, as defendants assert and as described by the Green
Court in a footnote, where the existence of factual dispute may preclude a grant of
summary judgment on the merits, but not preclude a qualified immunity defense. 826
F.2d at 652 n.4. For example, there are certainly cases where you can accept the facts as
set forth by the plaintiff, and still find that the defendant’s actions did not violate clearly
established constitutional rights. See Borello v. Allison, 446 F.3d 742, 747 (7th Cir. 2006)
(finding defendants were entitled to qualified immunity on Eighth Amendment claim
based on plaintiff’s version of the facts).
27
unusual punishment forbidden by the Eighth Amendment is not a new or unusual
constitutional principle.” (internal quotations and citations omitted)).
As for defendants’ second point, the court agrees that qualified immunity turns on
what a reasonable person would know, not on what an individual defendant subjectively
knows. For this reason, a plaintiff need not show that the individual defendant actually
knew that his conduct violated clearly established, statutory or constitutional rights.
Similarly, even if a plaintiff claims that the individual defendant intended to violate the
plaintiff’s constitutional rights, no qualified immunity defense would lie unless the
defendant’s conduct violated a plaintiff’s clearly established rights.
See Crawford-El v.
Britton, 523 U.S. 574, 587-88 (1998) (discussing holding in Harlow v. Fitzgerald, 457 U.S.
800 (1982)). Here, plaintiff’s constitutional claim turns on which version of the facts the
jury believes: if plaintiff’s, then Bittelman’s action in taking plaintiff to the ground, while
punching and gouging his eye, was unprovoked and objectively contrary to the Eighth
Amendment; if defendants, Bittelman’s action in taking plaintiff to the ground to control
his acting out was objectively reasonable. See Mitchell v. Krueger, No. 14-1816, 2014 WL
5840734 at *2-3 (7th Cir. Nov. 12, 2014) (genuine issues of material fact existed as to
whether guard’s use of force after prisoner was restrained was excessive). As explained
above, the court cannot assess Bittelman’s entitlement to qualified immunity absent
resolution of this key factual dispute.
2. Defendants Witterholt and Rickey
Gidarisingh also asserts claims against Rickey and Witterholt based on their role
in the June 23rd physical incident. The record on summary judgment establishes that
28
Witterholt was ordered to the top tier by Millonig to assist Bittelman in restraining
Gidarisingh. Rickey similarly responded to Millonig’s call, seeking assistance. Whatever
happened before Bittelman and Gidarisingh ended up on the floor occurred before these
two defendants arrived on the scene. As such, they were necessarily relying on their
fellow officer’s assessment of the situation and apparent need to “decentralize”
Gidarisingh. Even if Bittelman were acting in bad faith at that point, Witterholt and
Rickey had no way of immediately knowing that. Cf. Bruce v. Guernsey, No. 14-1352,
2015 WL 309497, at *4 (7th Cir. 2015) (discussing “collective knowledge doctrine,
under which a law enforcement officer may rely on information conveyed to him by
another law enforcement officer or the agency for which he works” in the Fourth
Amendment context). Based on this, the court finds that Witterholt and Rickey’s joining
what they perceived to be Bittelman’s efforts to restrain Gidarisingh cannot form the
basis of an Eighth Amendment excessive force claim.
That said, defendants’ actions after they joined Bittelman in restraining
Gidarisingh could form a basis of such a claim if their subsequent use of force was
intended to maliciously cause harm. Gidarisingh contends that Rickey struck him in his
right side with his knee, knelt on his back causing breathing problems and jammed his
fist in his spinal column, all of which Rickey denies. (Pl.’s Resp. to Defs.’ PFOFs (dkt.
#69) ¶ 92 (citing Gidarisingh Decl. (dkt. #70) ¶¶ 62-63).)
Unlike Gidarisingh’s
allegations asserted against Bittelman -- that he punched him twice unprovoked -- these
alleged actions are arguably consistent with Rickey’s claim that he was restraining
Gidarisingh, and might prevent a finding that Rickey acted maliciously. See, e.g., Fillmore,
29
358 F.3d at 504 (holding that to survive summary judgment on an Eighth Amendment
excessive force claim, a prisoner must have evidence that supports a “reliable inference of
wantonness in the infliction of pain” (quoting Whitley v. Albers, 475 U.S. 312, 322
(1986))); Smith v. Dart, No. 10 C 6395, 2013 WL 315742, at *10 (N.D. Ill. Jan. 28,
2013) (granting summary judgment to defendant prison correctional officers where “no
reasonable jury could find that the force used by [defendants] was excessive, and that
their actions represented a good faith effort to restore order and prevent Plaintiff from
doing himself any further harm”). Still, this account too depends on the nature of the
scene upon which Rickey and Witterholt arrived. If as Gidarisingh avers, he was already
on the ground, handcuffed with his arms behind him and not resisting, this same conduct
may be found to be objectively unreasonable. Mitchell, 2014 WL 5870724, at *2-3.
In contrast, Witterholt represents that he merely controlled Gidarisingh’s legs to
prevent him from kicking at staff by blanketing his legs (presumably with his own body)
and wrapping his arms around his legs. Neither action would give rise to an objective
excessive force claim, but Gidarisingh also maintains that Witterholt joined in the attack
by punching him in his testicles. This characterization of Witterholt’s actions moves him
much closer to that of Rickey’s conduct, leaving a reasonable jury to sort out the facts.
Id.
Accordingly, the court will grant defendants’ motion for summary judgment on
the Eighth Amendment excessive force claim as to defendants Bittelman, Rickey and
Witterholt.
30
B. State Battery Claim
In addition to the Eighth Amendment claim, plaintiff also asserts a state law
battery claim based on the same June 23rd incident. Under Wisconsin law, “to establish
that a battery has occurred a plaintiff must establish the following three elements: (1) an
unlawful use of force or violence upon another; (2) the intentional direction of such force
or violence at the person of another; and (3) bodily harm sustained on the part of the
person against whom such force or violence is directed.” Vandervelden v. Victoria, 177
Wis. 2d 243, 249, 502 N.W.2d 276, 278 (Ct. App. 1993) (citing Wis J I-Civil 2005).
In moving for summary judgment on this claim, defendants simply contend that the
Bittelman, Rickey and Witterholt “acted appropriately to control the plaintiff; excessive
force was not used.” (Defs.’ Opening Br. (dkt. #38) 35.) Because the court finds that
plaintiff has raised a genuine issue of fact as to whether these defendants’ use of force
was objectively reasonable, the court will similarly allow plaintiff to proceed on a state
law battery claim against them.
III.
Failure to Protect
In a case alleging an official’s failure to protect a prisoner from harm, “[t]he
inmate must prove a sufficiently serious deprivation, i.e., conditions which objectively
‘pos[e] a substantial risk of serious harm.’” Pope v. Shafer, 86 F.3d 90, 92 (7th Cir.
1996). In addition, the inmate must prove that the prison official acted with deliberate
indifference to the inmate’s safety, “effectively condon[ing] the attack by allowing it to
31
happen.” Langston v. Peters, 100 F.3d 1235, 1237 (7th Cir. 1996) (quoting Haley v. Gross,
86 F. 3d 630, 640 (7th Cir. 1996)).
A. Defendant Franson
Gidarisingh’s failure to protect claim asserted against Franson is based on
Franson’s watching of the alleged attack. The record reflects that Franson responded to
Millonig’s unit alarm, bringing Rickey and leg restraints with him. When he arrived,
Bittelman and Witterholt were already on the floor with Gidarisingh. For the reasons
articulated above, Franson necessarily relied on Bittelman’s decision to decentralize
Gidarisingh based on events which Franson did not witness. As for Franson’s supervision
of Bittelman, Rickey and Witterholt’s collective restraint of Gidarisingh, a reasonable
jury could conclude that Franson condoned an attack if Gidarisingh’s version of events
were credited.
B. Defendants Ashworth, Nickel and Morgan
Gidarisingh also asserts a failure to protect claim against Ashworth, Nickel and
Morgan based on their knowledge of Bittelman’s alleged propensity for violence and
Campbell’s alleged indifference to medical needs.
Taking the latter claim first, it is
undisputed that all three defendants were unaware of Campbell’s alleged indifference to
the medical needs of inmates. At a minimum, plaintiff must show actual knowledge of
32
the risk for his claim to move forward. See McGill v. Duckworth, 944 F.2d 344, 349 (7th
Cir. 1991).13
As for plaintiff’s claim that these three defendants failed to protect him from
Bittelman, plaintiff has failed to offer any evidence that these three defendants had
personal knowledge of Bittelman’s alleged unlawful use of force in February 2012, the lone
identified prior incident. Even if these defendants were aware of that incident, plaintiff
has also failed to demonstrate that this one alleged incident could support a jury’s finding
of actual knowledge of “impending harm” caused by Bittelman. Lewis v. Richards, 107
F.3d 549, 553 (7th Cir. 1997).
IV.
Conditions of Confinement
Plaintiff was also granted leave to proceed on a claim against defendants Rickey
and Franson for holding him naked outside of the shower facility in violation of his
Eighth Amendment rights.
After the assault, Gidarisingh specifically claims (1)
defendant Rickey pulled off his clothes and left him naked, handcuffed and shackled,
outside of the shower area in sight of other guards, inmates, and Nurse Campbell for
approximately thirty minutes; and (2) Rickey and Franson then escorted him naked past
other guards and inmates to the controlled segregation cell.
To state a conditions of confinement claim under the Eighth Amendment, a
plaintiff must satisfy a test that involves both a subjective and objective component.
13
More recently, the Seventh Circuit has explained that plaintiff would have to show
that “the supervisor must want the forbidden outcome to occur.” Vance v. Rumsfeld, 701
F.3d 193, 204 (7th Cir. 2011) (en banc) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
33
Farmer, 511 U.S. at 834. The objective analysis focuses on whether prison conditions
were sufficiently serious that “a prison official’s act or omission results in the denial of
the minimal civilized measure of life’s necessities,” Farmer, 511 U.S. at 834, or “exceeded
contemporary bounds of decency of a mature, civilized society,” Lunsford v. Bennett, 17
F.3d 1574, 1579 (7th Cir. 1994). The subjective component requires proof that prison
officials acted wantonly and with deliberate indifference. Id.
As the court explained in the screening order, Gidarisingh has no claim against
Rickey and Franson purely based on their and other staff observing him nude.
See
Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir. 1995). On the other hand, deliberately
removing an inmate’s clothing and leaving him exposed for an extended period of time in
view of other inmates for the purpose of shaming or humiliating him could form the basis
of a conditions of confinement claim. See Mays v. Springborn, 575 F.3d 643, 649-50 (7th
Cir. 2009) (explaining that strip searches can form the basis of a constitutional challenge
if “conducted in a harassing manner intended to humiliate and cause psychological
pain”).
The parties dispute: (1) whether Gidarisingh was totally naked or whether he had
a towel wrapped around his waist; (2) even if he was totally naked, whether it was his
choice to be so, having rejected the towel; (3) the length of time he was held naked; and
(4) whether other inmates and staff could see him naked.
Accepting Gidarisingh’s
version of the facts, the court concludes that a reasonable jury could find that Rickey and
Franson conducted the strip search and held Gidarisingh naked in view of others for the
purpose of humiliating him. See Mays, 575 F.3d at 649-50 (reversing district court’s
34
grant of summary judgment of conditions of confinement claim, finding that sufficient
basis for reasonable jury to conclude that public strip searches constituted a violation of
the Eighth Amendment).
Accordingly, the court will deny defendants’ motion for
summary judgment on this claim as well.
V.
First Amendment Retaliation
Finally, Gidarisingh asserts a First Amendment retaliation claim against a number
of defendants for retaliating against him after threatening to file a complaint about their
denial of medical treatment on June 23rd, as well as after his subsequent written
complaints about the continued denial of medical care and the June 23rd attack.
Specifically, Gidarisingh claims that (1) defendants Bittelman, Witterholt and Rickey
attacked him on June 23rd because of his oral threat to file a complaint; (2) defendants
Valerius, Campbell, Neumaier, and Bittelman denied him medical treatment for similar
reasons; and (3) defendants Bittelman, Morgan, Ziegler, Douma, Casiana, Franson, and
Hautamaki issued and adjudicated conduct reports, all in retaliation for his complaining
about this denial of medical care and the June 23rd physical incident.
To prevail on a claim for retaliation under the First Amendment, Gidarisingh must
demonstrate that: (1) he engaged in an activity protected by the First Amendment; (2)
he suffered a deprivation that would likely deter First Amendment activity in the future;
and (3) there exists a causal connection between the two. Watkins v. Kasper, 599 F.3d
791, 794 (7th Cir. 2010). Whether an activity constitutes protected conduct under the
First Amendment is an issue of law for the court. See Volkman v. Ryker 736 F.3d 1084,
35
1091 (7th Cir. 2013).
With respect to the third element requiring a showing of
causation, Gidarisingh must show that his “First Amendment activity was ‘at least a
motivating factor’” in each defendant’s decision to take retaliatory action.
Bridges v.
Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (quoting Woodruff v. Mason, 542 F.3d 545,
551 (7th Cir. 2008)). If Gidarisingh makes this initial showing, then the burden shifts to
defendants to demonstrate that they would have taken the same actions “even in the
absence of protected conduct.” Greene v. Doruff, 660 F.3d 975, 979 (7th Cir. 2011).
First, Gidarisingh contends that his threat to file a grievance against Bittelman and
others for denying him medical care was a motivating factor in the alleged physical attack
by Bittelman, Rickey and Witterholt.
With respect to Rickey and Witterholt,
Gidarisingh offers no evidence that these two defendants were aware of his threat to file a
complaint against Bittelman and others earlier on the 23rd. As such, there is no basis for
finding any causal connection between Rickey and Witterholt’s alleged role in the June
23rd physical incident and Gidarisingh’s purported protected speech earlier that day. See
Wackett v. City of Beaver Dam, Wis., 642 F.3d 578, 582 (7th Cir. 2011) (explaining that
plaintiff “must prove defendants’ knowledge of the protected speech to establish
retaliation”).
As for plaintiff’s claim against Bittelman, the Seventh Circuit has questioned
whether a threat to file a grievance can constitute protected conduct forming the basis of
a First Amendment retaliation claim.
See Bridges, 557 F.3d at 555 (“But it seems
implausible that a threat to file a grievance would itself constitute a First Amendmentprotected grievance.”) (emphasis in original). Moreover, Gidarisingh does not dispute
36
that his statement to Bittelman that he was going to file a grievance occurred in the same
exchange in which he called Bittelman a “racist honkey.” See Ustrak v. Fairman, 781 F.2d
573, 580 (7th Cir. 1986) (punishing an inmate for calling prison officers “stupid lazy
assholes” did not violate the First Amendment).
In light of these particular
circumstances, the court will reserve until trial on the issue of whether Gidarisingh’s
statement to Bittelman constitutes protected conduct under the First Amendment.14
Second, Gidarisingh alleges that defendants Valerius, Campbell, Neumaier, and
Bittelman denied him medical treatment in retaliation for his complaints about the lack
of care. On June 25, July 5 and 6, 2012, Gidarisingh sent letters to the HSU supervisor
complaining of Nurse Campbell’s denial of medical treatment on the 23rd. The latter
two letters further indicated that his requests for care since then have been ignored. In
support of his claim that he was denied care, Gidarisingh appears to focus on defendants’
false (according to plaintiff) representation that his refused an appointment on June 26.
In other words, Gidarisingh contends that these defendants (and Valerius in particular)
lied about his refusal in an orchestrated effort to deny him care.
However, while
Gidarisingh submitted these letters the day before, on June 25, 2012, there is no evidence
that Valerius, Campbell, Neumaier, or Bittelman were aware of the complaints lodged in
those letters at the time Valerius noted Gidarisingh had refused an appointment on the
14
The retaliation claim against Bittelman also proves odd since the alleged retaliatory act
in most cases, could be a legitimate act if taken for other reasons than retaliation. Here,
there is no legitimate basis for maliciously assaulting an inmate -- assuming Gidarisingh’s
account of the June 23rd incident were credited by the jury. In light of this,
Gidarisingh’s claim against Bittelman seems better suited for review under the Eighth
Amendment and the inclusion of a First Amendment claim would needlessly complicate
the verdict at trial.
37
26th. Accordingly, the court will deny Gidarisingh leave to proceed on this particular
First Amendment claim.
Third, Gidarisingh contends that defendants Bittelman, Morgan, Ziegler, Douma,
Casiana, Franson, and Hautamaki issued and adjudicated conduct reports all in
retaliation for his complaining about denial of medical care and the June 23rd physical
incident. Gidarisingh again appears to focus on the June 25, 2012, letters to Meisner
and Nickel, which triggered the DAI investigation. Except for Bittelman, to find the
other defendants liable, Gidarisingh would have to prove that they: (1) knew Bittelman
was lying about the June 23rd attack; and (2) nonetheless decided to issue a conduct
report (Casiana), adjudicate him guilty (Morgan, Ziegler and Hautamaki), and affirm the
disciplinary decision (Douma). Because plaintiff has failed to put forth any evidence in
support of a finding of this broad conspiracy, defendants will also be granted summary
judgment on this claim. See Johnson v. Kingston, 292 F. Supp. 2d 1146, 1158 (W.D. Wis.
2003) (explaining that plaintiff bears the burden to “adduce sufficient evidence at trial to
allow a jury to find that defendants were motivated by a desire to retaliate against him”).
VI.
Renewed Motion for Assistance in Recruiting Counsel
Gidarisingh has also repeatedly sought assistance from this court in recruiting
counsel for trial. (Pl.’s Mots. (dkt. #5, 20, 25, 26, 60, 75, 92).) In his sundry motions,
he asserts two main grounds for trial counsel:
(1) his need for an expert witness to
provide medical opinions; and (2) various short-comings, including limited knowledge of
the law and mental illness. On the first ground, having granted summary judgment to
38
defendants on plaintiff’s deliberate indifference claims -- for reasons largely unrelated to
whether his conditions constituted serious medical needs -- there is no need for medical
expert testimony at trial.
Gidarisingh’s second reason (or rather group of reasons), however, has more merit.
Despite his lack of legal knowledge and mental illness, Gidarisingh’s prosecution of his
claims to date has been admirable. Indeed, he far exceeds the average ability of inmates
to press their claims, at least on paper. While the court credits Gidarisingh’s concerns
about cross examining witnesses, the court finds no basis for finding that the challenges
of trial exceed Gidarisingh’s capacity. Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007)
(en banc). Still, the court agrees that Gidarisingh would be well served by trial counsel
and will at least undertake the effort to recruit counsel for this purpose.
ORDER
IT IS ORDERED that:
1) defendants’ motion for summary judgment (dkt. #37) is
a) DENIED with respect to plaintiff’s Eighth Amendment excessive force
claim and state law battery claim against defendants Travis Bittelman,
Kelly Rickey and Jason Witterholt, plaintiff’s failure to protect claim
against defendant Brian Franson, and plaintiff’s Eighth Amendment
conditions of confinement claims against defendants Kelly Rickey and
Brian Franson;
b) RESERVED with respect to plaintiff’s First Amendment Retaliation claim
against defendant Bittelman; and
c) GRANTED in all other respects;
2) plaintiff’s renewed motion for assistance in recruiting counsel (dkt. #75) is
GRANTED; and
39
3) all dates are SUSPENDED pending recruitment of trial counsel for plaintiff.
Entered this 25th day of February, 2015.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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