Bull, Duane v. Hepp, Randall et al

Filing 150

ORDER that plaintiff Duane Bull is GRANTED leave to proceed on an Eighth Amendment medical care claim against defendant Candice Whitman. The remaining defendants are DISMISSED from the case. The Wisconsin Department of Justice may have until March 8, 2022, to notify the court whether it will accept service for new defendant Whitman. After defendant Whitman is 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 2/22/2022. (lam),(ps)

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

DUANE R. BULL,

v.

Plaintiff,
OPINION and ORDER

RANDALL HEPP, EDWARD WALL,
JOHN MAGGIONCALDA, STEVE BETHKE,
and E. DAVIDSON,

17-cv-957-jdp

Defendants.
Plaintiff Duane Bull, appearing pro se, is a prisoner at Fox Lake Correctional Institution
(FLCI). Bull 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
Bull’s amended complaint about prison staff’s failure to give him bottled water despite his
particular susceptibility to harm from the contaminated water.
Earlier, I consolidated several prisoners’ claims with Bull’s, recruited counsel, and
appointed water and medical/toxicology experts. I ultimately granted summary judgment to
defendants on plaintiffs’ 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 courtrecruited 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.
Bull has filed an amended complaint, Dkt. 141, and a submission titled “Addition to
amended complaint by way of newly obtained information and evidence,” Dkt. 138. Bull has
amended the caption to include as a defendant Health Services Unit manager Candice
Whitman. Bull alleges that he is particularly susceptible to injury from lead in the water because
of his high blood pressure. Nonetheless, defendant Whitman would not provide him with
bottled water. He says that he has developed kidney stones and bladder cancer from the
contaminated water. These allegations are sufficient for Bull to state an Eighth Amendment
claim against Whitman for ignoring the risk of harm that the water posed to his health by
refusing his requests for bottled water.
Bull raises two other issues in his complaint and in his “addition to amended
complaint.” First, Bull states that prison officials blocked him and some of his co-plaintiffs
from receiving mail from court-recruited counsel. Bull doesn’t identify any specific defendants
who have interfered with his mail, and in any event, this issue is outside the scope of this
lawsuit. If Bull means to bring access-to-the-courts claims about interference with
communications between him and his lawyers, those claims belong in a separate lawsuit if he
is able to show that prison officials’ actions caused the loss or inadequate settlement of
meritorious claims in this or another case. See Christopher v. Harbury, 536 U.S. 403, 414 (2002).
Second, Bull states that the report issued by court-appointed medical and toxicology
expert Alfred Franzblau is inaccurate because Franzblau relied on summaries of the various

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plaintiffs’ medical records instead of the complete sets of records themselves and because prison
officials did not follow the proper procedures for obtaining water samples to be tested for
contaminants: rather than take samples of stagnant water as Franzblau’s report states, officials
flushed the water system before taking samples. Those allegations do not state separate claims
for relief in this lawsuit, but Bull 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.

ORDER
IT IS ORDERED that:
1. Plaintiff Duane Bull is GRANTED leave to proceed on an Eighth Amendment
medical care claim against defendant Candice Whitman.
2. The remaining defendants are DISMISSED from the case.
3. The Wisconsin Department of Justice may have until March 8, 2022, to notify the
court whether it will accept service for new defendant Whitman.
4. After defendant Whitman is 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.
Entered February 22, 2022.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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