Owens, Allan v. Litscher, Jon et al

Filing 147

ORDER granting plaintiff Allan Owens leave to proceed on Eighth Amendment medical care claims and Wisconsin-law medical malpractice or negligence claims against defendants Robert Franks, Randall Hepp, M. Meisner, Dr. Larson, C. Whitman, Ray Palop , Roger Krantz, and Paul Whitehead. Plaintiff's motion to supplement his complaint, Dkt. 146 , is DENIED. The remaining defendants are DISMISSED from the case. The Wisconsin Department of Justice may have until May 4, 2022, to notify the c ourt whether it will accept service for new defendants Franks, Meisner, Larson, Whitman, Palop, Krantz, and Whitehead. After defendants are served, the clerk of court is directed to set a preliminary pretrial conference before Magistrate Judge Stephen Crocker to set a schedule for the remainder of the case. Signed by District Judge James D. Peterson on 4/13/2022. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ALLAN OWENS,
Plaintiff,
v.
JON LITSCHER, RANDALL HEPP,
CHRIS KRUEGER, JOHN MAGGIONCALDA,
STEVE BETHKE, T. KISER, J. LABELLE,
PETE GALLUM, RANDY MATTISON,
C. WHITMAN, ROBERT FRANKS,
JOHN & JANE DOES 1-10, STEVEN L. SISBACH,
W. WEISENSEL, and DAVID BARKHAHN,

OPINION and ORDER
17-cv-611-jdp

Defendants.
Plaintiff Allan Owens, appearing pro se, is an inmate at Fox Lake Correctional
Institution (FLCI). Owens is one of many prisoners who filed lawsuits alleging that water at
the prison contained unsafe amounts of lead, copper, and other contaminants. This opinion
concerns Owens’s amended complaint about prison staff’s failure to properly treat his medical
problems that he believes were caused by the contaminated water.
Earlier, I consolidated several prisoners’ claims with Owens’s, recruited counsel for the
plaintiffs, and appointed water and medical/toxicology experts. I ultimately granted summary
judgment to defendants on plaintiffs’ conditions-of-confinement claims that DOC officials
consciously disregarded the risk of harm from the contaminants in the water. Dkt. 89; Stapleton
v. Carr, 438 F. Supp. 3d 925 (W.D. Wis. 2020). The undisputed evidence showed that the
defendants had not acted with conscious disregard to the water problems at FLCI, but that
instead, they successfully remediated the lead and copper in the water to concentrations well
below government-mandated thresholds. Id. at 938–40. My decision did not resolve medical

care claims about the health risks posed by FLCI’s water to particular inmates and the
treatment of medical conditions that were caused by the water. After the court-appointed
medical and toxicology expert received medical records from both consolidated and
unconsolidated plaintiffs and issued his report, I granted court-recruited counsel’s motion to
withdraw and I lifted the stay in each FLCI water case. I directed each plaintiff to submit an
amended complaint limited to the individual plaintiff’s medical care claims. Dkt. 137.
Owens has filed an amended complaint, Dkt. 143. Owens alleges that he has high blood
pressure and liver and kidney problems that caused him severe pain. Defendant Nurse Robert
Franks told him that his problems were caused by contaminants in the water, but defendants
Warden Randall Hepp, Warden M. Meisner, Dr. Larson, and C. Whitman blocked attempts
to test Owens for metals in his blood. Defendants Franks, Larson, and Dr. Ray Palop prescribed
him ineffective over-the-counter medications for his pain and did not attempt to treat him with
stronger medications. On one occasion, Owens’s pain was so severe that a sergeant sent him to
see medical staffer Roger Krantz. Krantz took Owens’s temperature and set an appointment
for weeks in the future, but he did nothing to treat Owens’s pain. Owens’s allegations are
sufficient to state Eighth Amendment medical care claims against Franks, Hepp, Meisner,
Larson, Whitman, Palop, and Krantz.
Owens also contends that defendants were negligent in failing to provide him with
adequate medical care. Under Wisconsin law, a claim for medical malpractice, “as all claims for
negligence, requires the following four elements: (1) a breach of (2) a duty owed (3) that results
in (4) an injury or injuries, or damages.” Paul v. Skemp, 2001 WI 42, ¶ 17, 242 Wis. 2d 507,
625 N.W.2d 860. Owens’s allegations are enough to state medical malpractice or negligence
claims against those defendants. Owens adds that Larson and Palop continued to prescribe him

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Tylenol and non-steroidal anti-inflammatory drugs (NSAIDs) even though such drugs are
counterindicated for patients with liver and kidney damages. I will grant Owens leave to
proceed on additional state-law medical malpractice claims against Larson and Palop
concerning these allegations.
Owens alleges that he twice had liver scans performed by defendant technician Paul
Whitehead. Owens states that at defendant Whitman’s direction, Whitehead altered the
results to make it appear that Owens had not sustained as much liver damage as he actually
had: Whitehead reported lower numerical readings for liver damage than Owens could see
displayed during the procedure. Defendants Hepp, Meisner, and Whitman delayed and denied
other attempts to have Owens’s liver scanned. Based on the fabricated scan results, a doctor
ruled out non-alcoholic fatty liver disease. I take Owens to be saying that the falsified results
led to him receiving less intensive treatment that has harmed him. I will grant Owens leave to
proceed on Eighth Amendment and medical malpractice or negligence claims against
Whitehead, Hepp, Meisner, and Whitman regarding his liver scans.
Owens alleges that defendant William Weisensel, the prison employee who collected
water samples for contaminant testing, violated the standards used for collecting water for such
tests by running the water before taking samples instead of collecting stagnant water. Owens
believes that the report issued by court-appointed medical and toxicology expert Alfred
Franzblau is inaccurate because of this violation. Those allegations do not state separate claims
for relief in this lawsuit, but Owens is free to present evidence challenging Franzblau’s report
or other evidence submitted by defendants as the case proceeds to the summary judgment or
trial stages.

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Owens has filed a proposed supplemental complaint, Dkt. 146. But the proposed
supplement does not state any claims for relief so I will not consider it part of the operative
complaint. Owens contends that defendant medical officials violated the Health Insurance
Portability and Accountability Act (HIPAA) by sharing his confidential medical information
with non-medical defendants wardens Hepp and Meiser. But individuals cannot sue to enforce
their rights under HIPAA. Stewart v. Parkview Hosp., 940 F.3d 1013, 1015 (7th Cir. 2019). So
Owens does not state a claim for relief under HIPAA.
Owens also alleges that defendant Nurse Jessica Bassuener incorrectly arranged his
medical file that was eventually sent to Owens’s court-recruited attorneys and Franzblau with
disordered and missing pages. That allegation also does not state a claim for relief, but during
the discovery phase of the lawsuit, Owens may request specific materials that he believes are
not part of the medical file that he has already received.

ORDER
IT IS ORDERED that:
1. Plaintiff Allan Owens is GRANTED leave to proceed on Eighth Amendment medical
care claims and Wisconsin-law medical malpractice or negligence claims against
defendants Robert Franks, Randall Hepp, M. Meisner, Dr. Larson, C. Whitman,
Ray Palop, Roger Krantz, and Paul Whitehead.
2. Plaintiff’s motion to supplement his complaint, Dkt. 146, is DENIED.
3. The remaining defendants are DISMISSED from the case.
4. The Wisconsin Department of Justice may have until May 4, 2022, to notify the
court whether it will accept service for new defendants Franks, Meisner, Larson,
Whitman, Palop, Krantz, and Whitehead.
5. After defendants are served, the clerk of court is directed to set a preliminary pretrial
conference before Magistrate Judge Stephen Crocker to set a schedule for the
remainder of the case.

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6. Plaintiff should keep a copy of all documents for his own files. If he is unable to use
a photocopy machine, he may send out identical handwritten or typed copies of his
documents.
7. If plaintiff is transferred or released while this case is pending, it is plaintiff’s
obligation to inform the court of his new address. If he fails to do this and
defendants or the court are unable to locate him, his claims may be dismissed for
his failure to prosecute them.
Entered April 13, 2022.
BY THE COURT:
/s/
_______________________________________
JAMES D. PETERSON
District Judge

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