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Sura v. Kemper

United States District Court, E.D. Wisconsin

January 28, 2016

WARDEN PAUL KEMPER, et al., Defendants.



Wayne Erich Sura, Jr., a pro se plaintiff, filed an action pursuant to 42 U.S.C. § 1983, alleging that his civil rights were violated. Judge James D. Peterson of the Western District of Wisconsin (the judge assigned to the case at the time) screened Sura’s complaint pursuant to 28 U.S.C § 1915A(a) and allowed him to proceed with his claims that defendants Paul Kemper, Ronald Malone, Jason Aldana, and Susan Nygren were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment to the U.S. Constitution. The case was transferred to this court on May 22, 2015.

The court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because the matter arises under federal statutes. The case was assigned to this court according to the random assignment of civil cases pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rules 72 (E.D. Wis.), and the parties have consented to United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and General Local Rule 73 (E.D. Wis.). The case is presently before the court on the defendants’ motion for summary judgment. (ECF No. 34.)


The facts in this section are primarily taken from “Defendants’ Proposed Findings of Fact.” (ECF No. 36.) Sura responded to only some of the defendants’ proposed facts; those that he did not respond to are admitted for the purpose of deciding summary judgment. See Civil Local Rule 56(b)(4). Additional facts are taken from Sura’s sworn complaint (ECF No. 1), which the United States Court of Appeals for the Seventh Circuit has instructed district courts to construe as an affidavit at the summary judgment stage. Ford v. Wilson, 90 F.3d 245, 246-47 (7th Cir. 1996).

Sura, a Wisconsin Department of Corrections (DOC) inmate, was housed at Racine Correctional Institution (Racine) at all times relevant to his complaint. (ECF No. 36 ¶ 1.) All of the defendants were employed by the Wisconsin DOC at Racine: Kemper was the warden (ECF No. 36 ¶ 3); Malone was the deputy warden (ECF No. 36 ¶ 4); Aldana was the security director (ECF No. 36 ¶ 5); and Nygren was the health services manager (ECF No. 36 ¶ 6).

On February 27, 2014, Sura submitted a psychological service request (PSR) indicating that he “would like to get back on his meds.” (ECF No. 50-1 at 24.) Sura explained that he had “anxiety and depression” and that he couldn’t sleep because his mind raced and he tossed and turned. (Id.) He stated, “I used to take these meds at Waupun and they really helped me. I would like to resume them.” (Id.)

On March 3, 2014, an unidentified staff member returned the PSR to Sura and instructed him to submit a health services request (HSR) because he was requesting psychiatric medication, which could be prescribed only by a psychiatrist in the health services unit. (ECF No. 50-1 at 24; ECF No. 36 ¶ 17.) The next day, Sura submitted an HSR requesting that he be placed back on his meds. (ECF No. 36 ¶ 38.) On March 5, 2014, an unidentified staff member noted on the bottom of Sura’s HSR, “forwarded to psychiatrist for review/Appt. Schedule.” (ECF No. 50-1 at 1.) On March 6, 2014, Sura informed an unidentified psychological services unit staff member who was making rounds that he would like to restart his medication. (ECF No. 36 ¶ 40.)

On April 30, 2014, Sura submitted interview/information request forms to Kemper, Malone, Aldana, and Nygren. (ECF No. 50-1 at 11, 12; ECF No. 1-1 at 4-5; ECF No. 1 at 1.) The requests were generally the same. In each, Sura explained that he had been waiting for two months to be scheduled for an appointment. (Id.) He stated that he had mental health problems, wanted to get back on his meds, and needed help. (Id.)

None of the defendants were personally involved in any decision to provide psychological or psychiatric care for Sura. (ECF No. 36 ¶¶ 74, 86, 94, 101.) Kemper and Malone state that they never would have undertaken an investigation on their own into Sura’s claims, as they delegate tasks such as those to personnel better positioned to handle them. (ECF No. 36 ¶¶ 71, 83.) The request Sura sent to Nygren was reviewed and responded to by nurse Travis Brady (ECF No. 52 at 2); Nygren states that she never received the request and was unaware that Sura’s medical and psychological needs were not being met. (ECF No. 36 ¶ 104.) Similarly, Aldana does not recall receiving a request from Sura and was unaware that Sura was being denied medical or psychological care. (ECF No. 36 ¶¶ 93; 96-97.)

On May 2, 2014, Malone sent a note to one of the prison psychologists (not a defendant) asking him to investigate and respond to Sura’s concerns. (ECF No. 36 ¶¶ 84, 86.) On May 5, 2014, Kemper sent a note to Malone and directed him to forward Sura’s request to the Housing Unit Director, whom Kemper believed was in a better position to investigate Sura’s concerns. (ECF No. 36 ¶¶ 72, 73.)

Sura saw prison psychiatrist Dr. Parikh (not a defendant) “for under two minutes” on May 2, 2014. (ECF No. 36 ¶ 48; ECF No. 1 at 3.) Dr. Parikh prescribed clonidine and amitriptyline, the medications that Sura had requested. (ECF No. 36 ¶¶ 84, 86.) Sura informed Dr. Parikh that he wanted to be cautious about over-medicating, so he was prescribed a low dose. (ECF No. 36 ¶ 49.) The dosage was increased shortly after the first appointment at Sura’s request. (ECF No. 36 ¶ 50.)


“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A dispute over a “material ...

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