Lewis, Jerry v. Haines, Timothy et al

Filing 86

ORDER denying 54 Motion for Summary Judgment. Signed by District Judge Barbara B. Crabb on 10/21/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JERRY LEE LEWIS,
OPINION and ORDER
Plaintiff,
13-cv-457-bbc
v.
JEROME SWEENEY, BRIAN KOOL,
JOHN KUSSMAUL, MARY TAYLOR,
JEREMY McDANIELS and JARED BARR,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se prisoner Jerry Lee Lewis is proceeding on a claim that several correctional
officers (defendants Mary Taylor Jeremy McDaniels and Jared Barr) restrained him in a
manner that violated his Eighth Amendment rights on various occasions between March 27,
2012 and May 31, 2012 while escorting him to different parts of the Wisconsin Secure
Program Facility. In particular, plaintiff says that the wrist restraints defendants used were
too small for him and that defendants cuffed him with his arms behind his back, even
though his large size made that type of restraint painful for him. In addition, plaintiff says
that he complained to administrators (defendants Jerome Sweeney, Brian Kool and John
Kussmaul), but they refused to intervene until Sweeney issued a memorandum on April 16,
2012 requiring the use of larger cuffs on plaintiff and another memorandum on May 31,
2012 requiring double cuffing when restraining plaintiff behind his back.

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Defendants have filed a motion for summary judgment, dkt. #54, which is ready for
review. Defendants argue that plaintiff has not adduced sufficient evidence that he was
harmed by their actions or that they possessed the requisite mental state to meet the
requirements for a claim under the Eighth Amendment. Having reviewed the parties’
submissions, I am denying defendants’ motion for summary judgment because I conclude
that there are genuinely disputed facts with respect to both issues and that a reasonable jury
could find in plaintiff’s favor. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986).

UNDISPUTED FACTS
Since 2009, plaintiff Jerry Lee Lewis has been a prisoner at the Wisconsin Secure
Program Facility in Boscobel, Wisconsin.
On December 23, 2009, plaintiff received a medical restriction from the health
services unit for “large ankle cuffs” because of the large size of plaintiff’s ankles. (Plaintiff
says he is 6'4" and approximately 230 pounds.) The restriction was posted outside plaintiff’s
cell door; another copy was at the unit’s sergeant station. The restriction does not say
anything about wrist restraints. (Plaintiff says that he complained to health services staff
about the size of ankle and wrist restraints in 2009 and that on December 23, “a yellow card
was placed on [his] cell door stating ‘Large leg restraints’ and below that was written in black
marker, ‘Large-wrist restraints.’” Plt.’s Aff. at ¶ 14, dkt. #71.)
From December 23, 2009 until March 26, 2012, officers escorted plaintiff using large

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wrist restraints and an escort belt. (Defendants attempt to dispute this fact, but they did not
cite any contrary evidence, so I must treat the fact as undisputed. Procedure to be Used on
Motions for Summary Judgment, II.E.2, attached to dkt. #21 (“The court will not consider
any factual propositions made in response to the moving party’s proposed facts that are not
supported properly and sufficiently by admissible evidence.”)). Neither side explains what
an escort belt is in their proposed findings of fact, but I understand from the context of the
parties’ use of the term that an escort belt is a device placed on a prisoner’s waist to allow
higher-security prisoners to be handcuffed in the front rather than the back.) From March
27, 2012, to May 31, 2012, all staff used larger restraints and an escort belt when
transporting plaintiff, with the exception of defendants Mary Taylor, Jeremy McDaniels,
Jared Barr and one other correctional officer. (Plaintiff says that both the regular-sized
restraints and the cuffing behind his back caused him pain. In particular, plaintiff says that
the regular-sized restraints caused “pain from metal digging into [his] flesh and wrist bones”
and numbness and tingling in his hands; restraining him behind the back with a single set
of cuffs caused “throbbing pain” in his shoulders and the “sensation of [his] shoulders being
pulled out of socket”; after the restraints were removed, he experiencing bruising, pain and
numbness for up to two days.)
Prison staff may use an escort belt when transporting a prisoner even if the prisoner
does not have a medical restriction. Escort belts are stored on each unit outside the
sergeant’s station.
On March 27, 2012, Lewis submitted an “Interview/Information Request” that

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stated:
For the past 3 years that I’ve been at WSPF, every time I’ve been moved in
restraints I’ve had the black belt used because I cannot get both of my hands
behind my back through the cell door slot. Now the unit sergeant says that I
have to get some kind of paperwork from medical. Do you know what the
sergeant is talking about? Can I get the paperwork to have the belt used?
The same day, health services staff informed plaintiff that his request had been sent to the
special needs committee for consideration. Defendant Brian Kool, the supervisor on the unit
where plaintiff was housed, is on the special needs committee. (The parties dispute whether
plaintiff submitted another “Interview/Information Request” the same day directed at
defendant Jerome Sweeney, the prison’s security director, in which plaintiff said that the
“small handcuffs” were “hurting” him.)
On March 31, 2012, plaintiff complained to defendant John Kussmaul, a sergeant,
about an officer (not a defendant in the case) who cuffed plaintiff behind the back using
regular-sized cuffs.

(According to plaintiff, he told Kussmaul there is a “yellow card”

restriction on his cell door for large restraints and Kussmaul said, “We’ll see about that.”
Kussmaul told plaintiff that normal-sized wrist restraints would be used on him and the
restraints would be secured behind plaintiff’s back.

When plaintiff again reminded

Kussmaul of his “yellow card” restriction, Kussmaul took the card off the cell door, put it in
his pocket and stated, “What restriction on whose door?”)
The same day, a nurse assessed plaintiff’s wrists for a large cuff restriction. She
observed that the regular cuffs extended to 8" at their largest capacity and that plaintiff’s
wrists measured 8 1/4". In addition, she observed that, after one to two minutes of being

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placed in the regular-sized cuffs, plaintiff’s wrists had indentations in the skin approximately
1/8-1/4 deep and his hands became red as a result of a decrease in blood flow. The nurse
assessed plaintiff with “potential injury for soft tissue due to restrictive tissue for perfusion
evaluation secondary to tight cuffs.” Defendant Kussmaul was present during the assessment
and observed that plaintiff “does not have enough span for the ability to put [his] arms
together without great difficulty to allow cuff application.” The nurse told plaintiff that her
role was to gather information and forward it to the special needs committee for
consideration.
Later the same day, another nurse examined plaintiff in response to a complaint about
his wrist. (According to plaintiff, his wrists “were swollen and ached something fierce,” but
the nurse said, “There isn’t anything I can do for you.” Plt.’s Aff. ¶ 27, dkt. #71. According
to defendants, the nurse observed that plaintiff’s wrists were slightly swollen and reddened.)
On April 2, 2012, plaintiff submitted three Interview/Information Requests. In the
request to defendant Kussmaul, plaintiff asked Kussmaul to “write a memorandum to let
someone know how bad it was to put the small cuffs on and pulling my wrists together. At
least let someone know that I need the big handcuffs and black belt?” In response, Kussmaul
wrote, “If someone asks, I’ll tell them.”
In plaintiff’s request to defendant Kool, he complained about
all the pain that’s being inflicted on me with forcing my wrists together and
putting the small cuffs on me. Everyone knows that they are causing me pain
but they keep doing it. I can’t take the pain when staff force my hands behind
the back and jam the regular size cuffs on me. Since Dec ‘09 I’ve been moved
with the black belt and big cuffs. Why are the staff now forcing me to go back
to the [smaller] cuffs behind the back.
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In response, Kool wrote, “HSU is evaluating this need for wrist cuffs. Staff may
either use belt or behind the back. Their discretion.” In a followup response, Kool wrote
that plaintiff needs a “medical restriction” to use the larger cuffs.
In plaintiff’s third request, he wrote:
On 3-31-12 I was informed that big hand restraints will no longer be used on
me, even though I have a tag on my door saying that big hand and leg
restraints are to be used. On 3-31-12 my wrist were measured by HSU staff.
Can you somehow get the big hand cuffs back on my tag on my door.
Plaintiff did not receive a response to that request.
On April 3, 2012, plaintiff submitted another request in which he asked for the
results of the March 31 assessment because he was “tired of these staff members trying to
hurt me with these baby cuffs.” In response, a nurse stated that “it would be up to the M
team formerly the special needs committee” to decide whether to approve the request for
larger cuffs. (The parties dispute whether plaintiff submitted a separate request to defendant
Sweeney the same day in which he complained that “these little cuffs and forcing my arms
back” were “hurting” him. Dkt. #70-1, exh. 107.)
On April 5, 2012, defendant Taylor escorted plaintiff to the law library. Plaintiff told
Taylor that the wrist restraints were too small “and would cause distress and pain with
possible injury to [his] wrist and shoulder areas.” Despite plaintiff’s objections, Taylor used
the regular-size wrist restraints and did not use the escort belt. (According to plaintiff, when
he asked Taylor why she was not using the belt that she had been using for the last three
years, she said, “Sooner or later you’ll realize we do what we want around here.” When
plaintiff returned from the law library, plaintiff showed Taylor the indentations on his skin
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caused by the restraints. He said, “You need to tell somebody about this,” and Taylor
responded, “Yeah, okay, I’ll do just that.” Plt.’s Aff. ¶ 35, dkt. #71. )
On April 9, 2012, defendant Kool informed defendant Sweeney that plaintiff was
complaining that “he was too stiff or broad to be cuffed behind the back with one set of
cuffs.”
On April 10, 2012, defendant Taylor escorted plaintiff to the law library. (According
to plaintiff, he asked her why she had not told anyone about “what happened” on April 5.
Taylor asked, “Are we going to have to hear your crap again?” Plaintiff told Taylor that the
regular cuffs are “killing” him and “were close to ripping [his] shoulders apart last time.”
Plt.’s Aff.

¶ 39, dkt. #71.)

Taylor used the regular-sized restraints on plaintiff and

restrained him behind his back on the way to the law library and when she returned plaintiff
to his cell.
On April 12, 2012, defendant Taylor demonstrated the use of the regular cuffs on
plaintiff in front of defendants Kool and James Sweeney, the security director. Sweeney
stated, “I can see that your hands are already red and swelling.”
On April 16, 2012, defendant Sweeney issued a memorandum in which he stated, “A
request has been made for the use of large cuffs while escorting Inmate Lewis, Jerry
#537276. The request is approved for large cuffs only. This will apply to both cuffing his
hands behind his back or in front.” Sweeney did not require officers to cuff plaintiff in the
front because he believes that cuffing behind the back provides a higher level of security and
he was concerned about plaintiff’s “assaultive history.”

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Dfts. PFOF ¶ 58, dkt. #85

(Defendants do not provide details about that history or explain why they believe an escort
belt would not provide a sufficient level of security, but plaintiff does not dispute this
proposed finding of fact for the purpose of summary judgment, so I do not consider whether
defendants had valid security reasons for restraining plaintiff behind his back.)
After Sweeney issued the memorandum, defendants McDaniels, Taylor and Barr
began using large wrist cuffs for plaintiff, but they continued to cuff plaintiff behind his back
rather than use the escort belt.
On April 17, 2012, defendant Taylor escorted plaintiff to the unit barber and then
back to his cell. (According to plaintiff, when Taylor was securing the restraints behind
plaintiff’s back, she “clipped [plaintiff’s] flesh with the jagged part of the right wrist
restraint.” Plt.’s Aff. ¶ 47, dkt. #71. When plaintiff complained, Taylor said, “So sue me.”)
On April 18, 2012, defendant Taylor escorted plaintiff to the recreation area and then
back to his cell. (According to plaintiff, when he asked Taylor to use the escort belt, she
said, “What for?” After it took Taylor “a long time” to remove the restraints, plaintiff
stated, “This is why you need to use the black belt like you used to.”)
On April 19, 2012, the special needs committee declined to take action on the ground
that defendant Sweeney had “addressed” plaintiff’s concerns.
On April 22, 2012, plaintiff submitted an “Interview/Information Request” to
defendant Sweeney in which he complained that Sweeney had “refuse[d] to approve the use
of a belt” and alleged that officers were “inflicting injury on him when removing the wrist
restraints.” In response, Sweeney wrote, “There has been no staff request for the use of an

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escort belt. I suggest that you review this with Unit Supervisor Kool.”
On April 23, 2012, defendant McDaniels escorted plaintiff to the recreation area,
restraining him behind his back using larger cuffs. (According to plaintiff, when McDaniels
brought plaintiff back, it took “a few minutes” for McDaniels to remove the restraints.
Plaintiff showed McDaniels the indentations in his flesh and stated, “Someone has to do
something about this because this crap isn’t cool.” McDaniels said, “Agreed.”)
On April 30, 2012, defendant McDaniels escorted plaintiff to the recreation area,
restraining plaintiff behind his back using larger cuffs. (According to plaintiff, when Daniels
returned plaintiff to his cell, it took “about two minutes of twisting [plaintiff’s] wrist” to
remove the restraints. Plaintiff stated, “Why hasn’t anyone said anything about all this to
the higher-ups? You people aren’t going to be happy until you snap my wrist or something.”
In response, McDaniels stated, “You’ll have to talk to Sgt. Kussmaul about that—his orders.”
Plt.’s Aff. ¶ 57, dkt. #71.)
On May 2, 2012, defendant Taylor escorted plaintiff from the recreation area to
plaintiff’s cell. (According to plaintiff, he asked Taylor, “Why hasn’t anyone told someone
of authority about what you guys have to go through to handcuff me, especially what
happens when you try to take the cuffs off?” Taylor replied, “Who cares?” Plt.’s Aff. ¶ 59,
dkt. #71.)
On May 7, 2012 defendant Taylor escorted plaintiff to the recreation area.
(According to plaintiff, Taylor said, “I’m not in the mood to hear your crap today so don’t
start.” Plaintiff replied, “Yeah, it’s okay for you to rip out my arms and wrist, but keep my

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mouth shut about it.” Plt.’s Aff. ¶ 60, dkt. #71). When Taylor returned plaintiff to his cell,
it took her approximately two minutes to remove the restraints.
On May 12, 2012, defendant Barr escorted plaintiff to the law library. (According
to plaintiff, after Barr secured the restraints behind plaintiff’s back, plaintiff asked Barr, “Are
you going to report to the higher-ups about the problems you had forcing my wrists together
to secure them?” In response, Barr said, “What problems?” Plt.’s Aff. ¶ 62, dkt. #71.
When Barr returned plaintiff to his cell, it took Barr “some considerable time” to remove the
restraints, “at one point twisting [plaintiff’s] wrist to what felt like the breaking point.”
When plaintiff asked Barr whether he was going to inform a higher-ranking official about
the difficulty he had uncuffing plaintiff, Barr asked, “For what purpose?”)
On May 16, 2012, defendant McDaniels escorted plaintiff to the recreation area,
restraining plaintiff behind his back with large cuffs.

(According to plaintiff, when

McDaniels returned plaintiff to his cell, “it took McDaniels a good two-minutes to remove
the wrist restraints after twisting [plaintiff’s] wrist to the right, then [his] left wrist was
twisted to the right.” Plaintiff stated, “You have got to tell somebody and get this crap
stopped,” but McDaniels “tried to blame the incident on how [plaintiff’s] wrists were
turned.” Plt.’s Aff. ¶ 65, dkt. #71.)
On May 21, 2012, plaintiff submitted a health service request in which he asked for
an “evaluation for black waist belt.” On May 22, 2012, health services staff informed
plaintiff that defendant Sweeney had addressed this issue.
On May 23, 2012, defendant McDaniels escorted plaintiff to the recreation area.

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(According to plaintiff, he asked McDaniels whether he had spoken to “someone of higher
rank about all this distress and pain you guys are causing me without using the black belt.”
McDaniels said that he had not. After McDaniels secured the restraints behind plaintiff’s
back by forcing his wrists together, plaintiff said, “Enough of this bullcrap. You have got to
tell someone before you wind up breaking something.”) When McDaniels returned plaintiff
to his cell, it took McDaniels “some time” to remove the restraints.
On May 29, 2012, defendant Taylor escorted plaintiff to the unit barber. While
trying to secure plaintiff’s right wrist behind his back, Taylor “clipped [plaintiff’s] skin with
the jagged part of the restraints.” Plt.’s Aff. ¶ 72, dkt. #71. (According to plaintiff, he said,
“You need to tell someone higher-up in rank about all this pain and distress that’s being
done to me just to cuff.” In response, Taylor said, “Shut up.” Id. After Taylor returned
plaintiff to his cell, she “about broke [his] wrist trying to remove the restraints by twisting
and yanking on” them. Id. at ¶ 73.)
On May 30, 2012, defendant McDaniels escorted plaintiff to the recreation area,
using larger cuffs behind plaintiff’s back. Plaintiff said, My situation needs some serious
attention.” When McDaniels returned plaintiff to his cell, McDaniels needed to “twist and
pull” on plaintiff’s wrists to remove the restraints.
On May 31, 2012, defendant Sweeney issued a memorandum in which he placed
plaintiff on a “double cuff restriction,” which means that plaintiff would be restrained with
two sets of cuffs that are hooked together. Sweeney denied plaintiff’s request to be placed
on a “cuff in front with waist belt restriction,” stating that double cuffing “will allow staff

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to maintain a safe and secure transport while also allowing [plaintiff] more comfort while
being restrained.”

OPINION
A. Scope of Plaintiff’s Claim
As an initial matter, it is important to establish the boundaries of plaintiff’s claim.
Plaintiff discusses events before March 27, 2012 and after May 31, 2012 in his summary
judgment materials, but his claim is limited to events that occurred during those two months
in 2012. Plaintiff did not include allegations in his complaint about potential constitutional
violations that occurred before March 27, 2012, so I have not considered new allegations
about that time period in his summary judgment materials. Plaintiff did include some
allegations in his complaint about events after May 31, 2012, but I did not allow him to
proceed on a claim for events after that date because that was the date that defendant
Sweeney imposed a double cuff restriction for transporting plaintiff. Although plaintiff had
asked to be transported with a waist belt, he did not allege that the double cuff restriction
was insufficient to eliminate his pain and discomfort during transport. Plaintiff also includes
new allegations about staff failures to comply with the restrictions in place since May 31,
2012, but plaintiff did not seek leave to amend his complaint to add those allegations, so I
have not considered them either.

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B. Standard of Review
In the screening order, dkt. #4, I noted that the case law was not clear regarding the
appropriate standard of review. One possibility is the standard for excessive force cases:
“whether force was applied in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the very purpose of causing harm.” Whitley v. Albers, 475
U.S. 312, 320 (1986). Another possibility is the standard for conditions of confinement
cases: whether defendants were “deliberately indifferent” to plaintiff’s health or safety, or,
in other words, whether defendants consciously disregarded a substantial risk of serious
harm. Guzman v. Sheahan, 495 F.3d 852, 857 (7th Cir. 2007). Courts have applied both
standards to claims involving the allegedly improper use of restraints on prisoners. Compare
Hope v. Pelzer, 536 U.S. 730, 737-38 (2002) (applying deliberate indifference standard to
claim that defendants handcuffed prisoner to hitching post for seven hours), and Gruenberg
v. Gempeler, 697 F.3d 573, 579-80 (7th Cir. 2012) (applying deliberate indifference
standard to claim that defendants restrained prisoner for five days), and Key v. McKinney,
176 F.3d 1083, 1086 (8th Cir. 1999) (applying deliberate indifference standard to claim
that defendants placed prisoner in handcuffs and shackles for 24 hours), with O'Malley v.
Litscher, 465 F.3d 799, 805 (7th Cir. 2006) (applying excessive force standard to claim that
defendants placed plaintiff in five-point restraints for several hours, applied them too tightly
and refused to allow plaintiff to use bathroom), and Williams v. Burton, 943 F.2d 1572,
1576 (11th Cir. 1991) (applying excessive force standard to claim that defendants placed
prisoner in fourpoint restraints for more than 28 hours). See also Santiago v. Walls, 599

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F.3d 749, 757 (7th Cir. 2010) (referring to both excessive force standard and deliberate
indifference standard in discussing use of handcuffs in prison). In other cases, courts have
assumed that restraints may violate the Constitution under some circumstances without
specifying a standard of review. Murphy v. Walker, 51 F.3d 714, 718 (7th Cir. 1995) (“If
Murphy was indeed shackled to the floor of his cell, and we assume his factual allegations
are true for the purposes of this appeal, the district court erred in dismissing this claim.”)
(internal citation omitted); Wells v. Franzen, 777 F.2d 1258, 1264-65 (7th Cir. 1985)
(“[P]laintiff's allegations concerning the conditions of his restraint are sufficient to warrant
further examination.”).
I concluded in the screening order that the deliberate indifference standard should
apply. The Supreme Court has explained that the excessive force standard is appropriate
when “corrections officials must make their decisions ‘in haste, under pressure, and . . .
without the luxury of a second chance.”’ Hudson v. McMillian, 503 U.S. 1, 6 (1992)
(quoting Whitley, 475 U.S. at 320). That is not the situation in this case because none of
the uses of restraints at issue in plaintiff’s complaint relate to a disturbance or any type of
emergency. Rather, each occurred in the context of a routine movement from one part of
the prison to another. Neither side challenges the application of the deliberate indifference
standard to this case, so that is the standard I will apply.
In their briefs, defendants assert two arguments: (1) they were not deliberately
indifferent; and (2) plaintiff has not adduced sufficient evidence of injury. Because I
conclude that the facts are genuinely disputed as to both of these issues, I am denying

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defendants’ motion for summary judgment.

C. Harm
Defendants’ primary argument is that plaintiff has not adduced sufficient evidence
of injury. In particular, they argue that plaintiff “never sought treatment for any injury, pain
or discomfort resulting from the use of restraints,” and the only medical documentation
available shows that plaintiff’s wrists “were slightly swollen and redden[ed] from the
restraints,” Dfts.’ Br., dkt. #55, at 14-15, which defendants argue is a “de minimis” injury
that is not enough to sustain an Eighth Amendment claim.
Defendants’ argument that plaintiff never sought medical treatment is incorrect. He
requested medical treatment on March 31, 2012 because his wrists “were swollen and ached
something fierce.” In addition, a nurse determined that there was “potential injury for soft
tissue due to restrictive tissue for perfusion evaluation secondary to tight cuffs.” In any
event, defendants’ argument about plaintiff’s failure to seek more medical care is really an
argument that plaintiff’s allegations of harm are not credible. Because a court may not
consider credibility on a motion for summary judgment, Ortiz v. City of Chicago, 656 F.3d
523, 532 (7th Cir. 2011), that argument is a nonstarter.
Defendants’ larger mistake is their assumption that plaintiff needs documented
injuries in order to prevail under the Eighth Amendment. As I stated in the screening order,
it is well-established that a prisoner’s pain may qualify as a serious harm under the Eighth
Amendment. Smith v. Knox County Jail, 666 F.3d 1037, 1039-40 (7th Cir. 2012);

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Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816, 830 (7th Cir. 2009); Walker v.
Benjamin, 293 F.3d 1030, 1039-40 (7th Cir. 2002). In arguing that plaintiff has not alleged
sufficient harm, defendants simply ignore plaintiff’s allegations that he suffered from serious
pain each time officers placed regular-sized cuffs on him and restrained him behind his back
with only one set of cuffs. Accordingly, I conclude that defendants are not entitled to
summary judgment on the ground that plaintiff did not suffer a sufficient injury.

D. Deliberate Indifference
A prison official is “deliberately indifferent” under the Eighth Amendment if he is
aware of a substantial risk of harm to a prisoner and consciously fails to take reasonable
measures to help the prisoner. Farmer v. Brennan, 511 U.S. 825, 837 (1994). For the most
part, defendants do not deny that they were aware of plaintiff’s complaints about the
restraints, but they argue that they acted reasonably under the circumstances.

1. Defendant Sweeney
In arguing that defendant Sweeney acted reasonably, defendants point to Sweeney’s
April 16, 2012 memorandum in which Sweeney approved larger cuffs for plaintiff and a May
31, 2012 memorandum in which Sweeney approved a double cuffing restriction for plaintiff.
However, the May 31 memorandum has little relevance to plaintiff’s claim because, as noted
above, in the screening order, I limited plaintiff’s claim to events that occurred before May
31. The April 16 memorandum shows that Sweeney took some action to help plaintiff, but

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it is not dispositive for the purpose of summary judgment for two reasons.
First, plaintiff says that defendant Sweeney simply ignored two written requests for
help that plaintiff sent Sweeney on March 27, 2012 and April 3, 2012. Defendants object
to the admissibility of plaintiff’s written requests on the ground that “the cited evidentiary
material is not an original and/or complete original document and is inadmissible under Fed.
R. Evid. 1002,” Dfts.’ Rep. to Plt.’s Resp. to Dfts’ PFOF ¶ 60, dkt. #85, a rule that requires
“an original writing . . . to prove its contents.” However, as was often the case with
defendants’ evidentiary objections, defendants did not explain the basis for the objection.
In particular, they did not explain why they believe the documents are not “original” or
“complete.” Under Fed. R. Evid. 1003, “[a] duplicate is admissible to the same extent as the
original unless a genuine question is raised about the original’s authenticity or the
circumstances make it unfair to admit the duplicate.” Because defendants do not explain
their objection, it is impossible to determine whether plaintiff’s evidence violates Rule 1002
or 1003. Thus, for the purpose of defendants’ motion for summary judgment, I must
assume that Sweeney had notice of plaintiff’s problem almost three weeks before he issued
the April 16 memorandum and he consciously failed to take any steps to help plaintiff
during that time without any justification.
Second, the April 16 memorandum addresses one of plaintiff’s complaints (the size
of plaintiff’s cuffs), but it says nothing about the problems caused by cuffing plaintiff behind
his back, even though it is undisputed that defendant Kool informed defendant Sweeney on
April 9 that plaintiff was complaining that “he was too stiff or broad to be cuffed behind the

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back with one set of cuffs.” Defendants do not explain why Sweeney ignored that issue in
his April 16 memorandum except to say that officers had discretion to cuff plaintiff in the
front or the back.
A prison official cannot avoid liability under the Eighth Amendment by taking one
action if he knows that additional action is needed to solve the problem. Cf. Johnson v.
Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006) ("[M]edical personnel cannot simply resort
to an easier course of treatment that they know is ineffective.”). Although it may be that
Sweeney’s failure to address the problem caused by cuffing plaintiff behind his back was
nothing more than an oversight, the evidence is sufficient to allow a reasonable jury to find
that Sweeney consciously failed to take reasonable measures to help plaintiff.

2. Defendant Kool
Defendants argue that defendant Kool acted reasonably because he informed
defendant Sweeney of plaintiff’s complaint, which is all defendants say that Kool had
authority to do. Again, there are two problems with this argument.
First, it is undisputed that defendant Kool was on the special needs committee, which
had the authority to address both of plaintiff’s complaints. Defendants do not explain why
the committee waited more than three weeks to address plaintiff’s complaints and then
concluded that Sweeney had resolved them in his April 16 memorandum, even though that
memorandum did not address the problem of cuffing plaintiff behind his back with one set
of cuffs.

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Second, even if I assume that defendant Kool did not have authority to resolve the
problem on his own, plaintiff complained to Kool on April 2, 2012, but Kool said nothing
to Sweeney until April 9, 2012, and Kool does not suggest that he was unable to talk with
Sweeney sooner. Rather, in his response to plaintiff’s April 2 request, Kool denied any
responsibility for helping plaintiff, stating that the health services unit would determine
whether plaintiff should have larger cuffs (even though health services staff denied this) and
that it was up to individual officers to decide whether to cuff a prisoner in the back or the
front. It is not clear why Kool changed his mind between April 2, 2012 and April 9, 2012
and decided to try to help plaintiff. Again, the explanation may be as simple as Kool making
a mistake, but I conclude that a reasonable jury could find that Kool was consciously
disregarding plaintiff’s complaints during that relatively short period of time.

3. Defendant Kussmaul
Plaintiff has adduced evidence that Kussmaul intentionally interfered with plaintiff’s
attempt to receive accommodations by removing a card on plaintiff’s cell door that indicated
that he needed larger restraints and that Kussmaul refused to take steps to help plaintiff even
after Kussmaul determined that plaintiff “does not have enough span for the ability to put
[his] arms together without great difficulty to allow cuff application.” This evidence is
sufficient to allow a reasonable jury to find that Kussmaul consciously refused to take
reasonable measures to help plaintiff.
Defendants argue that Kussmaul acted reasonably because he “rel[ied] on [the health

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services unit] and other prison officials to act within the scope of their responsibility.” Dfts.’
Br., dkt. #55, at 20. However, defendants do not explain how Kussmaul relied on the
opinion of health services staff or higher-ranking officials.

They do not point to any

particular official who told Kussmaul that he did not need to help plaintiff.
Defendants may mean to argue that defendant Kussmaul relied on a nurse’s
statement on March 31, 2012 that the special needs committee would determine whether
plaintiff was entitled to an accommodation. If that is the case, defendants do not cite any
testimony from Kussmaul in which he makes that assertion. In fact, Kussmaul’s own
statement at the time suggests that he believed he had authority to direct officers to change
how they restrained plaintiff. On April 2, 2012, plaintiff asked Kussmaul to “write a
memorandum to let someone know how bad it was to put the small cuffs on and pulling my
wrists together.” In response, Kussmaul did not say that he was not authorized to help
plaintiff or that plaintiff needed to wait for a decision from the special needs committee.
Rather, Kussmaul wrote, “If someone asks, I’ll tell them.” That statement is evidence that
Kussmaul could have taken additional action to help plaintiff, but he chose not to do so.
Accordingly, I conclude that defendant Kussmaul is not entitled to summary judgment.

4. Defendants Taylor, McDaniel and Barr
Finally, defendants argue that officers Taylor, McDaniel and Barr are entitled to
summary judgment because they “do not have the authority to issue or grant any medical
restrictions/special needs requests.” Dfts.’ Br., dkt. #55, at 21. This argument has multiple

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problems as well.
First, it is undisputed that plaintiff did not need a medical restriction to allow an
officer to use an escort belt to transport plaintiff. Rather, both defendant Sweeney and
defendant Kool stated that it was up to the individual officer to decide whether a prisoner
should be cuffed in the front or the back. Second, even with respect to the larger cuffs, the
evidence is disputed whether plaintiff had a medical restriction, and, if he did not, whether
a medical restriction was needed. According to plaintiff, officers consistently escorted him
using larger cuffs and a belt before March 2012 and that even after that time, defendants
Taylor, McDaniel, Barr and one other officer were the only officers who refused to
accommodate plaintiff.

Plaintiff also says that Taylor, McDaniel and Barr told him

repeatedly that they were refusing to accommodate him, not because they lacked authority
to do so, but because they did not care about plaintiff’s complaints. The one exception is
defendant McDaniels, who, according to plaintiff, stated that defendant Kussmaul gave the
order to restrain plaintiff behind his back with one set of cuffs. However, even if I assume
that Kussmaul gave such an order (none of the defendants says that he did), and that Taylor,
McDaniel and Barr did not have authority to accommodate plaintiff, that would not explain
why they refused plaintiff’s requests to inform higher-ranking officials about his complaints.
According to plaintiff, he asked each of these defendants to communicate his concerns up
the chain of command, but each of them failed to do so. For these reasons, I cannot grant
defendants’ motion for summary judgment.

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ORDER
IT IS ORDERED that the motion for summary judgment filed by defendants Mary
Taylor, Jeremy McDaniels, Jared Barr, Jerome Sweeney, Brian Kool and John Kussmaul, dkt.
#54, is DENIED.
Entered this 21st day of October, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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