United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 43)
HON. PAMELA PEPPER United States District Judge.
Plaintiff Carl Joseph McDaniel is a state prisoner. On September 12, 2014, the court entered an order allowing him to proceed on Eighth Amendment claims regarding the defendants’ refusal to bring trays to the plaintiff’s cell so that he could eat and receive medication, despite complications from diabetes that prevented the plaintiff from navigating the stairs to the dayroom to pick up his meals and medications. Dkt. No. 15 at 8-10. The court also allowed the plaintiff to proceed on claims under the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA) against Warden Meisner in his official capacity. Id. at 9-11. On March 13, 2015, the defendants filed a motion for summary judgment, which now is fully briefed. For the reasons stated below, the court denies the defendants’ motion for summary judgment.
The plaintiff was incarcerated at Columbia Correctional Institution (Columbia) at all times relevant to this case, and the defendants all were employees of the Wisconsin Department of Corrections (DOC) working at Columbia. Dkt. No. 44 at 1-4. Defendant Michael Meisner was the Warden; defendant Lukas Weber was the Security Director; defendant Brian Pillar was a correctional officer; defendant Timothy Ziegler was a Corrections Unit Supervisor; and defendant Karen Anderson, a registered nurse, was the Health Services Unit (HSU) Manager. Id.
B. Food Service and Medications
At Columbia, the food prepared for inmate meals is delivered to the housing units in bulk. Id. at 4. The inmate workers “portion the food into trays as the inmates move through the serving line” in the dayroom, where inmates receive their meals and eat. Id. “If an inmate is on cell confinement or has a medical, psychological, or security restriction to eat in his cell, he will be allowed out of his cell prior to the main meal being served.” Id. at 4-5. In such a case, the inmate “picks up his tray from the dayroom and takes it back to his cell to eat the meal.” Id. at 5. Then, “when the inmate’s respective tier is done eating in the dayroom, while the inmates are returning to their cells, he is allowed out of his cell in order to return his tray.” Id.
“Medications are also distributed in the dayroom.” Id. Inmates who need prescription medication “approach the staff member at the desk in the dayroom to receive their controlled medication; they consume it in front of staff.” Id. “The staff member verifies that the inmate consumed the medication by looking in the inmate’s mouth and under their tongue, ” and the staff member “documents in the medication treatment record whether the medication was taken or refused.” Id. The defendants state that “[d]uring the time period at issue in this action, inmates were administered their controlled medication upon the completion of their meal.” Id. The plaintiff disagrees, and says night or evening medications are done at 9:00 p.m. Dkt. No. 54 at 1.
“If an inmate does not come to the dayroom to receive and eat his meal and take his medications, and is not on a sanctioned medical/psychological/ security restriction” (which may include feed cell), he does not receive his meals or his medication. Dkt. No. 44 at 5.
C. Sick Cell and Feed Cell
The procedures described above may be modified if the plaintiff is on “sick cell” or “feed cell” status. In this case, the plaintiff asserts that he asked to be on feed cell. Dkt. No. 54 at 1.
Effective January 2013, sick cell consisted of “24-hour room confinement, with inmate activity determined by HSU staff.” Dkt. No. 44 at 5-6. “Unless staff decide otherwise, inmates on sick cell [were] still required to go to the dayroom to pick up their meal tray, ” but were not allowed out of their cells to eat or to participate in recreation, library, or dayroom activities. Id. at 6. “Sick cell is typically used when an inmate is ill and possibly contagious, has been diagnosed with an illness, or waiting for test results or cultures to return.” Id. When an inmate is contagious, or potentially contagious, “it is in the institution’s best interest to keep them isolated and/or quarantined to the extent possible.” Id.
The DOC’s Division of Adult Institutions has a policy entitled “Lay-In and Sick Cell Status, ” which “outlines that housing unit staff shall monitor sick-cell compliance.” Id. “The policy reiterates that sick cell activity will be determined by HSU.” Id.
An inmate must notify unit staff (an area supervisor or unit sergeant) of his desire to go on sick cell in a timely manner. Id. Inmates usually request sick cell status “in the morning, prior to breakfast, and the inmate remains on sick-cell for the entire day (24 hours/3 meals).” Id. “If there is no indication that the inmate is abusing the status, the request is granted.” Id. at 7. “If there is suspicion that the inmate is abusing the status, the request may be denied.” Id.
If unit staff approve an inmate’s request for sick cell, the inmate may submit a Health Service Request (HSR), asking to be seen by HSU staff. Id. If HSU sees the inmate, HSU staff will either approve continued sick cell status or the status will end after 24 hours. Id. HSU staff also determines the proper level of activity for the inmate. Id. “If the inmate does not submit an HSR, the sick cell-status automatically ends after 24 hours.” Id.
“While the inmate is on sick cell status, he is typically ineligible for work, school, or other programs, ” and he is placed on an unpaid status. Id. “If the inmate misses work or school due to illness, he is not permitted to leave his cell except to get his meal tray to take back to his cell, attend visits, showers and HSU appointments.” Id. “Once the sick-cell status time is up, the inmate is allowed to return to normal daily activities.” Id.
“Staff may use discretion and employ ‘feed-cell’ status for an inmate who may be injured, on crutches, recovering from a procedure, etc.” Id. “If, for example, an inmate is on crutches, staff may deliver meals and medications to his cell.” Id. at 7-8.
Unless an inmate is on Temporary Lock-Up (TLU) status, feed cell status, or staff deem it absolutely necessary, staff are “unable to deliver meals and/or medications to inmates’ cells unless such accommodation is medically documented and warranted.” Id. at 8. “Without such an order, inmates are required to attend meals in the dayroom like everyone else.” Id. Without these restrictions, “staff would be delivering meals and medications to multiple inmates in the institution, ” which would be an “enormous drain on time and resources.” Id.
When an inmate has a medical restriction from HSU, “the restriction is sent to the inmate’s housing unit so unit staff know the specifics” of the restriction and can honor it. Id.
D. Relevant Facts Pertaining to the Plaintiff
The plaintiff was assigned to Housing Unit 1 at Columbia from November 8, 2013, to December 11, 2013. Dkt. No. 44 at 8.
On November 25, 2013, the plaintiff filed Offender Complaint Number CCI-2013-22743, “in which he alleged that HSU refused to address his serious medical need because he had been seen three times by nursing staff regarding his foot sores, diabetic neuropathy, and swelling.” Dkt. No. 44 at 13. The plaintiff wanted to see a physician. Id. Columbia’s institution complaint examiner (ICE) investigated the claim, contacted HSU manager defendant Anderson, obtained information regarding the plaintiff’s medical care, and, on November 27, 2013, recommended that the complaint be dismissed. Id. at 14. Bureau of Health Services (BHS) Regional Nursing Coordinator Keisha Perrenoud reviewed the complaint and dismissed it on November 29, 2013, based on the ICE’s findings and the fact that the plaintiff was being seen and treated. Id. The plaintiff alleges that the complaint was dismissed “based on a procedure of ‘properly dismissed at the institution level, ’” and believes that the reviewing authority did not conduct an independent examination of the plaintiff’s medical file. Dkt. No. 54 at 3.
According to the plaintiff, he told a correctional officer named Nelson that his diabetic neuropathy was causing him extreme pain in his feet. Dkt. No. 54 at 1. The plaintiff says he had frequent discussions with Nelson about this topic and, on November 29, 2013, told Nelson that he wanted to go on either sick cell or feed cell status. Id.
On November 30, 2013, the plaintiff submitted an HSR that said his feet and legs were too painful to go up and down stairs. Dkt. No. 70-1 at 15. At the bottom of that HSR, a staff member marked the box “Treated Today, ” and dated his signature December 1, 2013. Id. The plaintiff provided the court with a DOC “Progress Notes” form containing an entry dated December 2, 2013, indicating that the plaintiff went to the HSU on that date for knee pain and to evaluate use of his ACL brace. Dkt. No. 66-1 at 52. The note states, in part:
[Patient] reports he wears his brace for strenuous exercise but has needed to wear more frequently due to “knees folding out on me, especially to go up & down stairs.” [Complaints of] feet neuropathy & knee pain that is “outrageous.” Then started [complaining of] wrist pain, blood sugars, requesting sick cell restriction and requesting approval to wear personal shoes “at all times.” Majority of complaints have been previously addressed multiple times & [patient] informed he needs to follow institution rules. [Patient] is to address his concerns again [at] his next scheduled MD apt. While in HSU [patient] began asking psych and pt for orders/items & was escorted out of HSU due to [unintelligible]. [Patient] ambulates [without] difficulty, no assistive devices used.
Id. The name of the medical professional who signed this progress note is illegible.
On December 3, 2013, Officer Nelson wrote Incident Report Number 98063. Dkt. No. 44 at 8. In the report, Nelson detailed what happened next:
On 11-30-13 for library inmate McDaniel left the unit 1 in his personal tennis shoes. McDaniel sent back to the unit, as of November 1, he is supposed to wear only state issue to recreation and library. During lunch time inmate McDaniel has informed me with disrespectful manner: “I told officer in the bubble, I told recreation officer and I let you know that I am sick today.” and left the dayroom. He stated that the state shoes are hard on his feet and he can’t walk. I contacted HSU which was willing to see him; per HSU and Lt. Bredemann inmate McDaniel can come down to the dayroom and get the meal tray and meds. On 12-02-13 I contacted, spoke to nurse Christa and verified that McDaniel is not on sick cell. On 12-3-13 inmate McDaniel refused to come down to the dayroom for breakfast. Inmate has a manipulative and bossy attitude. I believe he has made up this situation so he can get a different cell and to wear his personal tennis shoes, also inmate McDaniel abused his medical restriction: he does wear knee brace all day long and does not wear knee sleeve under brace to protect skin. Capt. Franson was notified about incident, inmate McDaniel placed in feed cell status. HSU was notified about incident.
Dkt. No. 49-3, Ex. 1002 at 2.
Defendant Security Director Weber approved Nelson’s Incident Report on December 4, 2013. Dkt. No. 49-3, Ex. 1002 at 2-3. Weber commented, “HSU to follow with inmate and determine appropriate action, ” and referred the report to the Warden, Deputy Warden, and HSU Manager. Id.
The plaintiff also submitted HSRs on December 3, 2013, December 4, 2013, and December 5, 2013. In the first HSR, the plaintiff asked for information about the medical professionals who cleared the plaintiff on the “Problems List” for his diabetic neuropathy, knee pain, and Grave’s disease. Dkt. No. 66-1 at 132. The staff member who responded was not clear about what the plaintiff was asking and instructed the plaintiff to obtain the information at the chart review that was already scheduled. Id.
The December 4 HSR deals with the plaintiff’s request for orthopedic shoes, which had been “going on for years.” Dkt. No. 66-1 at 131. He asks for orthopedic treatment for “diabetic feet, ” which he alleged were painful and swollen. Id. He represented that the state shoes didn’t work and that his attempts to use personal shoes to relieve costs were denied. Id. The response informed the plaintiff that he had an appointment scheduled with the doctor soon to discuss treatments. Id. The plaintiff also noted in the HSR that he was currently on sick cell for gout pain and knee. Id.
On December 5, 2013, the plaintiff asked (in all capital letters), “WHEN DO I SEE THE MD.” Dkt. No. 66-1 at 133. A nurse responded the same day that the plaintiff was scheduled to be seen by the doctor “within 10 days.” Id.
Also on December 5, 2013, the plaintiff filed Offender Complaint Number CCI-2013-23502, in which he alleged that he had been refused three meals since November 30, 2013, when he requested sick cell status as a result of his left knee issues and foot pain. Dkt. No. 44 at 22. He said staff knew about these issues. Id. The ICE investigated this claim and, on December 9, 2013, after determining no staff misconduct or work rule violations, recommended that the complaint be dismissed. Id. Defendant Warden Meisner reviewed the complaint, together with the ICE’s findings and recommendation, and dismissed the complaint on December 16, 2013. Id. The plaintiff appealed the decision to the CCE, who recommended that the appeal be dismissed, and the Secretary adopted the CCE’s recommendation. Id. ...