Brown, Larry v. Bellile, Doug et al

Filing 93

OPINION and ORDER granting defendants' 66 Motion for Summary Judgment; and denying 92 plaintiff's transcript request. The clerk of court is directed to enter judgment in defendants' favor and to close this case. Signed by District Judge William M. Conley on 9/12/2022. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
LARRY J. BROWN,
Plaintiff,

OPINION AND ORDER

v.
20-cv-337-wmc
DOUG BELLILE,
DANIEL KATTENBRAKER,
LAURA THOMAS, LISA POUILLIE,
SARAH DONOVAN,
JOSEPH SCHMELZLE, and
DANIEL PARK,
Defendants.
On December 3, 2020, pro se plaintiff Larry J. Brown was granted leave to proceed
under 42 U.S.C. § 1983 against several Sand Ridge Secure Treatment Center staff members
on claims that they refused to consider or accommodate his chronic dermatological and
gastroesophageal issues. In late October of 2021, defendants filed a motion for summary
judgment, along with all necessary, supporting materials. (Dkts. ##66-72.) After much
cajoling, denials of multiple requests for counsel, and repeated extensions of time, plaintiff
finally responded to that motion on May 23, 2022, including a counter set of proposed
findings of facts, a supporting declaration, and exhibits. (Dkt. ##81-82.) He has now
also filed a sur-reply with additional exhibits.1

(Dkt. #85.)

The parties then filed

Brown did not have leave to file a sur-reply, but the court has considered it in light of his pro se
status, especially since nothing in the sur-reply changes the outcome. Primary among his additional
arguments is Brown’s challenge to the court’s earlier decisions denying his requests for assistance
with recruiting counsel based on limited law library access at Sand Ridge. Rather than grant those
requests, the court repeatedly extended Brown’s summary judgment response deadline, and
ultimately reduced his obligation at summary judgment just to respond to defendants’ proposed
findings of fact in hopes of easing any remaining concern he may have to being allowed limited law
library access. (Dkt. ##76, 78, 80.) The court will not revisit this issue.
1

supplemental briefing after the court held a videoconference on June 17, 2022, with the
parties on the summary judgment motions. (Dkt. ##88-91.)2 For the reasons set forth
below, the court will now deny plaintiff Brown’s motion, and grant defendants’ motion.

UNDISPUTED FACTS3
A. Background
Since July 23, 2019, Brown has been civilly committed to Sand Ridge for treatment
under Wisconsin Statutes Chapter 980. Sand Ridge provides specialized mental health
treatment, rehabilitation, training, and supervision to Chapter 980 patients who, like
Brown, have been convicted of “a sexually violent offense” and completed the incarceration
portion of their sentences within a Department of Corrections (“DOC”) facility, but are
still deemed unsafe for release back into the community because “the person’s mental
disorder makes it likely that he or she will engage in acts of sexual violence.” Wis. Stat.
§ 980.02(2)(a)-(c).

Brown subsequently filed a motion for a transcript of that proceeding, as well as for copies of
certain notes, which is addressed in the last section of this opinion. (Dkt. #92.)
2

The court has drawn these facts from the parties’ proposed findings of fact and responses, as well
as the underlying evidence, including Brown’s medical records (dkt. ##33-2, 55-1, 69-1), all being
viewed in the light most favorable to Brown as the non-moving party. Defendants submitted
proposed findings of fact explaining their version of the underlying events. (Dkt. #68.) Ultimately,
Brown did not follow the court’s procedures by submitting numbered responses to each of
defendants’ proposed findings of fact, but he did finally submit a declaration and some of his own
proposed findings of fact, as well as supplemental briefing, all of which provide his side of the story.
After considering those submissions, however, the defendants’ proposed findings of fact are largely
undisputed because Brown chose not to respond at all, even if only by submitting admissible
evidence in dispute or clarifying factual disputes and gaps in the record during the videoconference
on the pending motions for summary judgment. Thus, unless otherwise noted, the following facts
are material and undisputed on this record.
3

2

Defendants have all worked at Sand Ridge during at least part of Brown’s civil
confinement, including Psychiatric Care Supervisors Daniel Park and Sara Donovan,
Psychiatric Care Technician Joseph Schmelzle, Institution Unit Supervisor Lisa Pouillie,
Director Doug Bellile, Physician Manager Daniel Kattenbraker, M.D., and Director of
Nursing Laura Thomas. Dr. Kattenbraker and Nurse Thomas also comprise the only
members of Sand Ridge’s “Special Needs Committee,” which was created to prevent
conflict between patients and primary care providers at Sand Ridge over “special” medical
needs requests.
While still completing his criminal sentence at the DOC’s Columbia Correctional
Institution (“CCI”), Brown was diagnosed with dermatitis. (Dkt. ##1-3 at 4, 69-1 at 261.)
To relieve his associated itching and irritation, a doctor at CCI ordered Brown two cotton
blankets.

(Dkt. #1-12.)

Brown was also diagnosed with progressive macular

hypomelanosis, which causes light-colored spots on the skin. (Dkt. #1-3 at 1-2, 33-2 at
74.) For that condition, dermatological specialists recommended benzoyl peroxide body
wash and clindamycin gel or lotion, as well as UVB phototherapy treatment. (Dkt. #1-3
at 2.) Brown was also prescribed hydroquinone cream. (Dkt. ##33-2 at 75, 55-1 at 10.)
In 2017, Brown further underwent fundoplication surgery at the University of
Wisconsin Hospital in Madison, Wisconsin (“UW”), to address a hiatal hernia and
gastroesophageal reflux disease.

(Dkt. #33-2 at 102, 181.)

His UW doctors also

recommended that he: (1) raise the head of his bed so it is 6 to 8 inches higher than the
foot of his bed; and (2) eat 4 to 5 small meals a day, rather than 3 big meals. While at
CCI, Brown received two, extra pillows and a wedge to elevate his head, a nighttime snack,

3

and meals in his cell. (Dkt. #1-12.) Then, on July 1, 2019, Brown had an esophageal pH
test at UW, which produced normal results. (Dkt. #33-2 at 1.) Even so, Brown has
reported continued difficulty swallowing, esophageal pain and having to eat more slowly.

B. Requests for Medical Care at Sand Ridge
After moving to Sand Ridge in 2019, Brown began requesting similar
accommodations and items as provided to him without cost at CCI.

Patient care

management at Sand Ridge developed a slightly different approach based on its own
providers’ assessments, determinations of medical necessity, and that facility’s policy and
protocols, including requiring Brown to cover some of the costs of healthcare. In response,
Brown sent two health services requests (“HSR”) to Sand Ridge’s health services unit
(“HSU”) on August 12, 2019. In one HSR, Brown explained that even with both a wedge
and a standard pillow provided at Sand Ridge, he still needed an extra, standard pillow,
citing past doctors’ orders and his fundoplication surgery. In reply, Brown was told that
the Sand Ridge HSU does not dispense pillows. In addition, Brown requested a nightly
snack because he would get hungry due in part to his gastrointestinal problems, but that
request was also denied.4
Two days later, Sand Ridge’s Director of Nursing Thomas and Physician Manager
Kattenbraker, in their capacity as the sole members of the Special Needs Committee,
denied Brown’s similar requests in writing.

(Dkt. ##56-2 at 1, 82-2 at 2.)

The

In supplemental briefing, Brown further notes that he needs a snack at night because he suffers
from diabetes, thereby attempting to revive a claim against a defendant that the court dismissed at
screening. (Dkt. ##88 at 2, 89 at 1.) The court will not permit Brown to do so at this late stage
of the lawsuit.
4

4

Committee’s letter response rather summarily explained that Sand Ridge simply does not
provide snacks nor extra pillows above the allowable limit of two. The letter further
suggested that Brown retain fruit from his meal trays to eat later, as well as consider
purchasing additional food from the canteen. In his declaration in support of summary
judgment, defendant Kattenbraker further attests that because Sand Ridge’s kitchen does
not operate 24 hours a day, a bedtime snack service is not practical.

Finally, Dr.

Kattenbraker asserts that a third pillow is not medically necessary because Brown already
has a wedge pillow to insert under his mattress and raise his head.
Still, Brown asserts that without a third pillow, he cannot raise the head of his bed
to the recommended 6-8 inches, and he continued to request similar items and
accommodations in follow-up HSRs. Brown also asked that in lieu of 3 regular meals, he
instead be provided 4-5 small meals throughout the day.

Nursing Director Thomas

responded to these additional HSRs which Brown submitted on August 14, August 15, and
October 13, respectively, either by advising Brown to refer to the Special Needs
Committee’s original, August 2019 decision or refer his concerns to the “client rights
department.” (Dkt. ##33-2 at 180, 177, 69-1 at 314). Dr. Kattenbraker similarly referred
Brown back to the “prior response” upon receipt of his additional, September 25 HSR,
which again asked for a pillow, snack and “5 small meals.” (Dkt. #33-2 at 178.) Brown
also asked for cotton blankets around this time, which the Committee similarly declined
to provide, stating in an October 25, 2019, letter that there was no such recommendation
in his medical chart and inviting him to provide any additional information supporting
that request. (Dkt. ##1-11, 56-2 at 3.) Brown did so by submitting a “special handling”

5

summary from CCI, stating that he had been allowed cotton blankets in his cell. The
Committee then rejected Brown’s request once more in a November 4, 2019, letter because
the CCI summary provided “no identified medical need” for cotton blankets. (Dkt. #562 at 4.)
Even so, a treating doctor at Sand Ridge submitted a consultation request on
October 16, 2019, to allow Brown to see another provider at the UW Digestive Health
Center in response to his “ongoing complaint of abdominal pain and dysphagia.” (Dkt.
#33-2 at 95.) On November 12, 2019, Brown had a telemedicine visit with a nurse
practitioner at the UW Digestive Health Center regarding post-surgery gastroesophageal
issues and abdominal pain. During that call, Brown told the nurse practitioner that: (1)
Sand Ridge staff were refusing to adopt the accommodations previously approved by CCI’s
medical staff; and (2) he was “still struggling” with abdominal pain and dysphagia, which
he believed were the result of his 2017 surgery. (Dkt. #33-2 at 100.) At the conclusion
of that visit, the nurse practitioner recommended that Brown: (1) be referred for a surgical
consult; (2) be allowed more time to eat or to eat in his room, if possible; (3) eat
peppermints with each meal to relax his esophageal muscle; (4) elevate the head of his bed
at night; and (5) try to eat smaller, more frequent meals, if possible. (Id. at 102.) On
January 15, 2020, Brown asked a Sand Ridge physician assistant about the
recommendations, who advised that Sand Ridge could not provide several smaller meals a
day so Brown should “eat slowly, supplement w/canteen, & hold onto fruits.” (Id. at 9.)
Brown raised the same concerns during a visit with his Sand Ridge treating physician on
January 24, and the doctor agreed with the physician assistant’s advice. (Id.)

6

Next, Brown sent an HSR on January 30, 2020, asking why he was not receiving
these recommended accommodations at Sand Ridge, to which Nursing Director Thomas
responded the following day. Specifically, Thomas explained that while outside providers
may make recommendations, Sand Ridge medical staff make the final decisions. (Id. at 16364). Even after a Sand Ridge health care provider submitted a request on Brown’s behalf
on February 4, 2020, for an additional pillow, peppermints, more frequent, smaller meals
and to be able to eat at his own pace (id. at 10), the Special Needs Committee referred
Brown to “previous information provided about similar requests.” (Dkt. ##3-2 at 1, 562 at 12.)

C. Ongoing Medical Care at Sand Ridge
Still, Brown has continued to receive follow-up care regarding his gastroesophageal
symptoms. He underwent a swallow study and esophagram on April 16, 2021, with normal
results. The speech pathologist concluded that Brown was experiencing anxiety before
swallowing “as there is no apparent structural cause” for his swallowing difficulty. (Dkt.
#55-1 at 29.)

The pathologist recommended that Brown continue with a regular

consistency diet, as well as consume frequent, small meals (or snacks), and also take his
reflux medication as prescribed, add extra moisture to dry or dense foods, and alternate
solids and liquids when he ate. In addition, after a meeting with another UW Hospital
nurse practitioner on July 22, 2021, Brown agreed to proceed with a “gastric emptying
study,” and is scheduled for follow up testing at UW Hospital. (Dkt. #69-1 at 145.)
As for Brown’s dermatitis, the record does not include any renewed requests for

7

cotton blankets after November 2019. Brown was referred to UW Dermatology on April
5, 2020, for his hypomelanosis, but blankets were never discussed. (Dkt. #33-2 at 69.)
In July 2020, Brown also restarted UVB light therapy and had several, follow-up visits into
2021. (Dkt. #33-2 at 72, 74-77, 91.) Further, Brown was seen by the UW Dermatology
Department in June 2021, who recommended that he continue with UVB light therapy
and found it reasonable for him to continue using hydroquinone cream after a short pause.
(Dkt. #69-1 at 136, 163.) Brown has since had additional, follow-up appointments with
his Sand Ridge provider to monitor his progress. (Dkt. #69-1 at 136, 140, 143.)
Finally, Dr. Kattenbraker attests that Brown’s medical condition has remained
“stable” while he has been at Sand Ridge, and he remains overweight.5 (Dkt. #69 at 7.)
In Kattenbraker’s view, Brown also could obtain all of his requested items, “but simply did
not want to pay for them.”6 For example, Kattenbraker attests that Brown already has a
wedge pillow, may use cotton blankets, and is allowed to eat in his room (except when
demoted to level B, as addressed below). He also attests that Brown could eat as little or
as frequently as desired simply by keeping fruit from his meal trays and ordering food from
canteen services, including peppermints, or designated restaurants that he can store in his

In his sur-reply, Brown purports to dispute the assertion that his medical condition has been
stable, while at the same time acknowledging receipt of follow-up and ongoing care for the medical
conditions underlying this lawsuit. At the videoconference, Brown attested more specifically that
instances of “food coming up” and other medical issues associated with an inability to digest
adequately had gotten worse after his move from CCI. However, that assertion is not enough to
create a genuine dispute regarding the sufficiency of Dr. Kattenbraker’s medical assessment of
Brown’s overall health.
5

Although Brown does not claim that he qualifies, Sand Ridge Policy #SR648 provides for loans
to indigent patients to purchase certain items to be repaid in installments as funds become available.
(Dkt. #1-5 at 11-12.)
6

8

unit’s refrigerator. (Id. at 7-8.) Brown has purchased snack food and beverage items from
the canteen, including mints. (Dkt. #33-3 at 1-16.)
Brown disputes that he should not have to purchase items recommended to help
relieve medical symptoms. Brown also disputes that he can use the unit’s refrigerator, as
he has not yet reached the required patient level for that privilege and asserts that he
cannot always eat the type of fruit the state provides at mealtime.

D. Disciplinary Action
Brown further claims that defendants punished him because his medical condition
limits how much he can eat, beginning with a warning on August 25, 2019, because Brown
had fruit juice in his room past mealtime. Patients at Sand Ridge have 30 minutes to eat
each meal, and those who are classified at level C may eat in their room, the dayroom, or
courtyard. Upon completion of a meal, however, uneaten food must be returned to the
kitchen, except for two pieces of fruit that must be eaten by curfew. To provide a secure,
therapeutic environment for patients, Sand Ridge also places limits on what personal
property is allowed. In particular, Sand Ridge Policy #SR115 establishes the policy and
provides a list of allowable personal property items, excluding “food items in excess of the
allowable in-room limits found during a room search.” (Dkt. #72-3 at 5.)
Director Bellile further attests that:

(1) food items become contraband after

mealtime ends; and (2) contraband items are considered counter-therapeutic for the
patients, as well as threaten the safety of the facility, because such items can be sold for
cash or trade, used to hide or disguise other forms of contraband, and can lead to strongarming and bartering. (Dkt. #70 at 6-7.) Regardless, Psychiatric Supervisor Park attests

9

that security staff and unit managers do not have the authority to modify rules at their
own discretion; rather, if a patient alleges a medical condition as a defense to not following
institutional policies or rules, a medical determination is made by a member of Sand Ridge
medical staff; and if an accommodation is approved, a “special needs” slip is generated.
(Dkt. #72 at 4.) There is also no record of Brown ever being granted a right to keep food
longer by Sand Ridge medical staff, other than retaining fruit for later.
While doing rounds at approximately 9:00 a.m. on October 12, 2019, Psychiatric
Care Technician Schmelzle noticed that Brown had 3 fruits, corn flakes, milk, and juice in
his room from breakfast served two hours earlier. After telling Brown that he had 30
minutes to eat his breakfast like everyone else and directing him to dispose of the food,
Schmelzle recalls Brown replying that, “I forgot to eat my breakfast. I’m going to eat my
breakfast! I’m not scared of no [behavior disposition records]! I can write as well as you
can!”

(Dkt. #72-1 at 1.)

While Brown disputes saying this (dkt. #81 at 5), he

acknowledges explaining that he could not eat as quickly as everyone else.

At his

disciplinary hearing, Brown also admitted responding to Schmelzle after he repeated the
directive to dispose of the food as follows: “Ain’t no way I’m throwing that stuff out! Fuck
that! Fuck you, put that in there!” (Dkt. #72-1 at 1.) Ultimately, Schmelzle offered
Brown a “summary sanction,” which is meant to encourage patients to take ownership and
responsibility for the consequences of their behavior and would have allowed him to admit
to the charges without the need for a formal hearing. Instead, Brown replied, “I ain’t
accepting nothing!” (Id.) At that point, Schmelzle told Brown that a behavior disposition
record (“BDR”) would be forthcoming, and Psychiatric Care Supervisor Park would be

10

notified. After being notified, Park then signed the BDR, although he asserts that such
BDRs do not impact the length of a patient’s stay at Sand Ridge. (Dkt. ##72 at 4, 72-1
at 1.) Still, Schmelzle did not just charge Brown with possession of contraband, but also
with failure to take direction, disrespecting staff, and showing disruptive behavior.
On October 15, 2019, a BDR Hearing Committee comprised of Psychiatric Care
Supervisor Donovan, Unit Supervisor Pouillie, and a nondefendant heard from Brown.
Specifically, the allegations were read to Brown, who was then given the opportunity to
respond. Although he refused to explain his medical history in detail, Brown asserted that
he could no longer eat normally since his surgery, while stating that he generally did not
talk to health services doctors or nurses. (Dkt. #72-1 at 2.) However, Brown did show
the Committee members his health forms from CCI that he maintained explained his
condition. (Id.) At the hearing, Brown also admitted to having the food in his room past
mealtime and refusing to throw it out, including saying to Psychiatric Care Technician
Schmelzle, “Fuck that! Fuck you, put that in there!” (Id.) Based on those admissions, the
Committee upheld the BDR and demoted Brown from level C to level B for a one-month
period, from October 15 through November 13, 2019. At level B, Brown was subjected to
a greater degree of supervision.
Brown did not receive a copy of the BDR itself until after the disciplinary process
had ended on October 15, 2019. Sand Ridge Director Bellile asserts that in this respect,
Sand Ridge’s disciplinary process differs from the disciplinary process Brown would have
encountered as an inmate in DOC custody, and that former inmates often assume
mistakenly that the rules remain the same when they become civilly detained. Brown also

11

attests that Schmelzle omitted from his BDR any reference to Brown explaining his medical
condition to Schmelzle. (Dkt. #81 at 5.)
Brown appealed the BDR Hearing Committee’s ruling and award of sanctions,
arguing that: (1) he was being punished for having a medical condition limiting how much
and how quickly he could eat at any one time; and (2) the Committee did not provide him
with notice of the charges or a witness form before his hearing, and did not consider his
medical evidence. (Dkt. #72-1 at 3.) Sand Ridge Director Bellile affirmed the BDR
Hearing Committee’s decision and disposition because policy was followed and because the
rule violation was substantiated, although Bellile now attests that he was unaware of
Brown’s medical condition until after his affirmance, which Brown disputes. Moreover,
Bellile found no record of Brown being granted a relevant medical accommodation by Sand
Ridge medical staff.

(Dkt. #70 at 5.)

Finally, Brown unsuccessfully challenged the

disciplinary decision through the client rights grievance resolution process. (Dkt. #82-6
at 3-6.)

OPINION
Defendants seek summary judgment on the merits of all of plaintiff’s claims.7
Plaintiff is not a prisoner, so his claims arise under the Fourteenth Amendment and are
subject to an objective reasonableness inquiry.8 Williams v. Ortiz, 937 F.3d 936, 942 (7th

Because defendants are entitled to summary judgment on the merits, the court will not reach their
alternative argument that they are entitled to qualified immunity.
8
Although sometimes mistakenly referred in prior orders as claims for “deliberate indifference” (e.g.,
dkt. #21), the court has consistently recognized that plaintiff’s claims arise under the Fourteenth
Amendment, not the Eighth. (Dkt. #21 at 12-13 (granting plaintiff leave to proceed).)
7

12

Cir. 2019).

To survive summary judgment in the face of a substantial showing by

defendants, therefore, plaintiff must demonstrate that genuine issues of material fact exist
on two questions: (1) whether he suffered from an objectively serious medical need; and
(2) whether defendants’ response to that need was objectively reasonable. Id. In assessing
the reasonableness of a defendant’s response, the court considers the totality of the facts
and circumstances. Id. Proof of negligence will not meet this standard; rather, plaintiff
must show the defendants acted “with purposeful, knowing, or reckless disregard of the
consequences” of their actions. Miranda v. Cnty. of Lake, 900 F.3d 335, 354 (7th Cir.
2018).
Here, defendants do not dispute for purposes of summary judgment that plaintiff’s
chronic gastroesophageal and dermatologic issues are serious medical conditions, so the
sole, operative question on the merits of plaintiff’s claims is whether defendants’ responses
to those conditions were objectively reasonable. Before turning to plaintiff’s remaining
claims against the other defendants involved in his disciplinary proceeding, the court will
first address plaintiff’s claims against Sand Ridge’s Director of Nursing Thomas and
Physician Manager Kattenbraker, as the only members of the Special Needs Committee.

I. Defendants Thomas and Kattenbraker
Plaintiff challenges the Special Needs Committee’s decision to deny him certain
accommodations such as smaller, more frequent meals, and to decline to provide at no cost
cotton blankets, peppermints, a third pillow, or a nighttime snack, most of which he had
reportedly received free as a medical accommodation while an inmate at CCI. As an initial
matter, the record does not begin to support an inference of objective unreasonableness in

13

requiring plaintiff to provide his own cotton blankets or peppermints since he neither
offered evidence that itching remained a known, ongoing concern for him at Sand Ridge,
nor that the blankets had been prescribed to relieve any symptoms of hypomelanosis.
Moreover, plaintiff gives no specific response to defendants’ assertion that cotton blankets
or peppermints were not medically necessary for either of his serious medical needs. Thus,
he has failed to establish any genuine dispute of material fact on which a reasonable jury
could find in his favor as to either item.
Nurse Thomas and Dr. Kattenbraker also repeatedly declined to provide plaintiff
with a third pillow. Plaintiff does not dispute that he has a wedge pillow that raises the
head of his bed. Rather, he maintains that he needs a second, regular pillow to raise the
head of his bed by the full 6 to 8 inches originally recommended by a physician in 2017,
without explaining how that would make a material, medical difference. Even if the jury
accepted plaintiff’s estimate, the more recent 2019 recommendation by the UW nurse
practitioner was merely to “elevate” the head of the bed (dkt. #33-2 at 102), which the
combination of the wedge and pillow would appear to do. Thus, while the Special Needs
Committee explanation that Sand Ridge “does not provide extra pillows beyond the
allowable limit of two” might appear a bit rigid (dkt. ##56-2 at 1, 82-2 at 2), allowing
plaintiff a wedge and pillow leaves no room for a reasonable jury to find the defendant
medical providers’ explanation for not allowing a third pillow to be objectively unreasonable.
Plaintiff makes a stronger showing in support of his request for a snack or more,
small state-provided meals and additional time to consume them. These defendants denied
plaintiff’s requests from August 2019 through February 2020, inflexibly insisting on his

14

consumption of 3 standard meals, each at a single, 30-minute sitting.

Thomas and

Kattenbraker have not offered plaintiff much explanation for doing so in their denials,
beyond references to general institutional policy. (See dkt. #56-2 at 1, 12.) Plaintiff avers
that the 30 minutes allotted for consumption of a standard meal is not enough for him to
digest comfortably, an assertion that at least one UW specialist credits. Moreover, a
reasonable jury could find on this record that staff enforces meal consumption times strictly
absent medical accommodation, apparently out of contraband concerns. Plaintiff further
argues that the Committee’s position appears to contradict Wisconsin Department of
Health Services’ regulations for treatment facilities, including Sand Ridge, which direct,
among other things, that “[e]ach inpatient shall be provided a nutritional diet,” and that
“snacks between meals shall be accessible to inpatients on all living units, except when
contraindicated for individual patients.” Wis. Admin. Code § DHS 94.24(4)(a), (b).
Defense counsel represented at the videoconference that snacks are accessible, and
defendants maintain that no special, medical accommodations are required for plaintiff to
be able to eat several, small meals throughout the day. That is because the canteen is
available to patients and patients can keep state-provided fruit beyond mealtimes.
Defendants further assert without dispute that the Sand Ridge kitchen closes at night and
cannot provide a nighttime snack, and otherwise providing food outside of regular meal
service hours would require additional, administrative oversight. Although plaintiff may
not have access to his unit refrigerator, he does purchase snack food and drinks from the
canteen and does not dispute that he can also save the fruit from his meal trays to eat
throughout the day, leaving him with less food to consume during the regular mealtime as

15

well as food to keep for in between his meals. While plaintiff asserts that he cannot always
eat all of the state-provided fruit, he does not substantiate how often this is the case, nor
does he substantiate his claim that the canteen offerings are not healthy or specify any staff
concerns documented in the record about his meal consumption time.
Plaintiff asserts that his symptoms have worsened at CCI, but objective measures of
plaintiff’s overall medical health have remained stable as Kattenbraker attests and
plaintiff’s HSRs do not reveal a consistent history of complaints about digestive issues.
Since his fundoplication surgery, plaintiff has had a normal esophageal pH study in July of
2019; a normal swallow study and esophagram in April of 2021; and he has enjoyed
medical stability generally and received ongoing, follow-up care without exhibiting a
decline in health or documented, concerning symptoms, such as weight loss or
malnutrition.
In fairness, plaintiff has an argument that defendants Thomas and Kattenbraker
failed to adequately explain their rejection of plaintiff’s requests for additional snacks or
smaller meals, or a longer mealtime, in their responses to his accommodation requests.
However, in explaining their decision, these defendants did point to other accommodations
already made for the plaintiff -- like keeping fruit and at least the possibility of
supplementing his diet from other sources -- and now note the practical constraints at Sand
Ridge of making an exception for plaintiff. More importantly, defendants point out that
the accommodations they declined were only recommendations made in light of ongoing
follow-up care that did not reveal any concerning physical changes. When combined with
the lack of any contrary medical evidence that plaintiff’s conditions worsened after the

16

change in treatment at Sand Ridge, the record does not support a finding that the
defendants’ exercise of medical judgment even amounted to negligence, at least absent
evidence of a medical necessity or definitive prescription for a different approach by a
medical specialist. Although plaintiff disagrees with Kattenbraker and Thomas’s decisions,
“a plaintiff’s disagreement with the provider’s course of treatment [does not] mean that
the course of treatment was objectively unreasonable.” Montanez v. Mahaga, No. 18-cv692-pp, 2020 WL 2085288, at *3 (E.D. Wis. April 30, 2020) (citing Williams v. Ortiz, 937
F.3d 936, 944 (7th Cir. 2019)). Accordingly, Kattenbraker and Thomas are entitled to
summary judgment on plaintiff’s claims.

II. Defendants Bellile, Park, Donovan, Pouillie, and Schmelzle
Plaintiff also challenges the October 2019 disciplinary proceeding, but defendants
Bellile, Park, Donovan, Pouille, and Schmelzle are entitled to summary judgment.
Although not prisoners, Chapter 980 patients may still be disciplined for violating the rules
of the institution in which they are confined. See Allison v. Snyder, 332 F.3d 1076, 1079
(7th Cir. 2003) (Chapter 980 patients “may be subjected to conditions that advance goals
such as preventing escape and assuring the safety of others”); West v. Schwebke, 333 F.3d
745, 748 (7th Cir. 2003) (a pretrial detainee “may be punished for violating institutional
rules”). Here, plaintiff admitted at the hearing that he had food in his room past mealtime
and made disruptive statements disrespectful to Psychiatric Care Technician Schmelzle,
who contrary to his title was responsible for maintaining order in the civil psychiatric unit,
not providing medical treatment.
Even so, plaintiff maintains that defendants Bellile, Park, Donovan, Pouillie, and

17

Schmelzle, none of whom are medical personnel, all punished him unreasonably because
they did not consider that his medical condition limited how much he can eat. However,
these defendants are entitled to summary judgment in their favor as well. First, there is no
dispute that plaintiff had food in his room two hours after breakfast that he had not yet
tried to eat and at that point raised contraband concerns. Second, there is no dispute that
non-medical security staff and unit managers cannot modify rules; rather, they are
obligated to enforce those rules, including removing food contraband from patients. Third,
there is no dispute that if a patient raises a medical condition as a reason for not complying
with institutional policies or rules at Sand Ridge, medical staff make the determination
regarding any accommodation, and medical staff had not granted plaintiff a special needs
slip in October of 2019 that allowed him to keep his meal trays past mealtime. Fourth,
plaintiff had already been warned in August of 2019 not to violate the policy again.
Accordingly, the record does not support a finding that Schmelzle’s and Park’s
actions were objectively unreasonable in issuing plaintiff a formal BDR on October 19,
2019, even assuming plaintiff told Schmelzle that he must generally eat more slowly,
especially after he made at least one, disruptive and disrespectful statement and refused to
work towards a less formal resolution.9 In particular, plaintiff offers no evidence suggesting
that non-medical staff were trained to evaluate his medical needs, nor explain why they
should have excused his rule violations, even if they had the discretion to do so, especially
based on a medical condition requiring slow eating when he had not yet apparently even

The latter does not mean that plaintiff’s failure to accept Schmelzle’s offer of a summary sanction
instead of a formal BDR constituted a separate violation, but rather that an explicative-laden
response and refusal to dialogue made the issuance of a formal BDR reasonable, if not compelled.
9

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tried his food. Finally, like all these non-medical defendants, Schmelzle and his supervisor
Park were entitled to rely on Sand Ridge medical staff to issue any medical
accommodations appropriate for plaintiff, if any, before easing policy. See King v. Kramer,
680 F.3d 1013, 1018 (7th Cir. 2012) (institution staff who are not responsible for
administering medical care are entitled to defer to the judgment of health care
professionals); Miranda, 900 F.3d at 343 (in detainee context, non-medical staff “may
generally trust the professionals to provide appropriate medical attention”); Stojanovic v.
Bellile, No. 19-cv-729-bbc, 2020 WL 7477765, at *5 (W.D. Wis. Dec. 18, 2020) (granting
summary judgment to a Sand Ridge psychiatric technician who “acted reasonably in
deferring to the judgment of health services staff”).
In light of these facts and circumstances, defendants Belille, Donovan and Pouillie,
as panel members of the BDR Hearing Committee, could not reasonably be found to have
responded either with reckless disregard or in an objectively unreasonable manner. Again,
plaintiff admits to multiple rule violations, which Donovan and Pouillie discussed with him
at the hearing. While they did not allow plaintiff to present any witnesses, that, too, was
in keeping with institutional policy. Further, plaintiff does not specify even now who he
would have called as witnesses nor what testimony they would have provided. Finally,
plaintiff was allowed to present documentation of his medical condition.
While plaintiff argues that the hearing committee must have ignored his condition
because they still imposed a level demotion, plaintiff also acknowledged to the panel
members that he did not speak to HSU doctors or nurses, and he would not explain his
medical history to the panel, beyond indicating generally that he could not “eat like

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everyone else.” (Dkt. #72-1 at 1.) Similarly, plaintiff noted in his appeal to Sand Ridge
Director Belille that his condition generally “dictates how much [he] can eat” and he
“cannot eat like everyone else,” while providing little insight into his condition. Nor did
he explain to Belille how his demotion would affect him, why his breakfast remained
uneaten after two hours that day, or why his undisputed, offensive statements to Schmelzle
should be excused. (Dkt. #72-1 at 3.) At bottom, as with defendants Schmelzle and Park,
plaintiff offered no evidence suggesting that the remaining defendants had any medical
training to evaluate what they were being told, much less knew plaintiff was being
inadequately treated. Kramer, 680 F.3d at 1018; Miranda, 900 F.3d at 343; cf. Burks v.
Raemisch, 555 F.3d 592, 595 (7th Cir. 2009) (noting that “[b]ureaucracies divide tasks.”
and “people who stay within their roles” cannot be liable under § 1983 “for not being
ombudsmen”). Accordingly, all of these defendants are entitled to summary judgment in
their favor.
Finally, plaintiff suggests that there are procedural flaws in Sand Ridge’s disciplinary
process. Specifically, he notes the failure to provide him with a copy of his BDR before
the hearing, allow him to present witnesses, and to provide a written statement (other than
from the BDR) upon what evidence their decision was based. Plaintiff argues that all of
these things violate the requirements of Wolff v. McDonnell, 418 U.S. 539 (1974). In Wolff,
the United States Supreme Court held that due process in a prison disciplinary proceeding
requires: (1) advanced written notice of the disciplinary charge; (2) the opportunity to call
witnesses and present documentary evidence when not “unduly hazardous to institutional
safety or correctional goals”; and (3) a written statement by the factfinders of their decision

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that includes the evidence relied upon and the basis for their decision. Id. at 563-66.
Even ignoring that plaintiff was not granted leave to proceed on a procedural due
process claim, nor sought reconsideration of the court’s leave to proceed order, patients
civilly committed under Wis. Ch. Chapter 980, like prisoners, are not entitled to due
process protections, unless (1) their duration of confinement is increased or (2) they are
subjected to an “atypical and significant” hardship. Thielman v. Leean, 282 F.3d 478, 48384 (7th Cir. 2002); see also Sandin v. Conner, 515 U.S. 472, 484 (1995) (describing “atypical
and significant” hardship standard for prisoners). Here, plaintiff’s duration of confinement
was not increased based on his conduct; he was merely demoted to “level B” for about a
month. Plaintiff neither argues at summary judgment that this demotion constituted a
significant hardship, nor offers any medical evidence that would suggest his health was
declining because of the demotion.
In any event, this court has previously held that the usual consequences of a BDR
hearing for Chapter 980 patients does not constitute “atypical and significant” hardship.
E.g., Martin v. Bartow, No. 09-cv-584-bbc, 2009 WL 4042896, at *1 (W.D. Wis. Nov. 19,
2009) (Chapter 980 patient’s loss of various activities and privileges did not create liberty
interest under Sandin); Hogan v. State of Wisconsin, No. 06-c-467-c, 2006 WL 2849870, *2
(W.D. Wis. 2006) (Chapter 980 patient did not retain liberty interest in level of
classification, including placement in short-term segregated confinement); Thielman, 282
F.3d at 483-84 (“Sandin teaches that any person already confined may not nickel and dime
his way into a federal claim by citing small, incremental deprivations of physical
freedom.”). Accordingly, all defendants are entitled to summary judgement on all of

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plaintiff’s claims, and this case must be dismissed in its entirety.

III. Transcript Request
Finally, plaintiff has filed a request for a transcript of the June 17, 2022,
videoconference, as well as copies of “any notes or documents concerning the expert
testimony given to the court” and mentioned at that proceeding. (Dkt. #92.) As an initial
matter, the court is uncertain to what “expert testimony” plaintiff refers. Nor will the court
provide plaintiff any of its own notes concerning the proceeding. At most, the court can
direct plaintiff to the record in this case, including medical records, other exhibits, and
declarations.
As for a transcript, plaintiff does not explain why he is making this request, nor cite
any authority in support. Parties who request a transcript generally must pay a fee to the
court reporter. 28 U.S.C. § 753(f). There is a narrow exception that applies only when a
party who is proceeding in forma pauperis under 28 U.S.C. § 1915 needs transcripts for an
appeal that the judge “certifies . . .is not frivolous (but presents a substantial question).”
Id. In the context of determining when transcripts should be provided for indigent litigants,
the Supreme Court further directs that “the expenditure of public funds is proper only
when authorized by Congress.” United States v. MacCollom, 426 U.S. 317, 321 (1976).
Since neither § 1915 nor § 753 reflect a congressional directive that a transcript be
provided to litigants for proceedings in the district court, much less a relatively meaningless
exchange leading up to this opinion, the court will deny plaintiff’s request for a transcript.

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ORDER
IT IS ORDERED that:
1) Defendants’ motion for summary judgment (dkt. #66) is GRANTED.
2) Plaintiff’s transcript request (Dkt. #92) is DENIED.
3) The clerk of court is directed to enter judgment in defendants’ favor and to close
this case.
Entered this 12th day of September, 2022.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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