United States District Court, E.D. Wisconsin
ANTHONY B. STELTER, Plaintiff,
ANTHONY MELI, RANDY VANDE SLUNT, BELINDA SCHRUBBE, PAULA TIRUVEECULA, JAY CERNY,  and CORY SABISH, Defendants.
DECISION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 36) AND DISMISSING CASE
HON. PAMELA PEPPER United States District Judge.
The plaintiff is a Wisconsin state prisoner, representing himself. On September 9, 2014, the court entered an order allowing the plaintiff to proceed on two claims under 42 U.S.C. §1983 that the defendants violated his Eighth Amendment rights with regard to his work conditions with Badger State Industries (BSI) at Waupun Correctional Institution (Waupun). Dkt. No. 12 at 3. On March 30, 2015, the defendants filed a motion for summary judgment, Dkt. No. 36, which is fully briefed. For the reasons set forth below, the court will grant the defendants’ motion for summary judgment.
The plaintiff is a state prisoner who was housed at Waupun Correctional Institution (Waupun) at all times relevant to this lawsuit. Dkt. No. 38, ¶ 16. The plaintiff worked for Badger State Industries (BSI) at Waupun. Dkt. No. 38 at ¶ 23. He worked in the Metal Furniture Body Shop from June 17, 2013, until May of 2014. Id. Since May 2014, the plaintiff has worked as a clerk in the Metal Furniture Shop. Id.
Most of the defendants work at Waupun. Anthony Meli is the security director, Cory Sabish is a lieutenant, Jay Cerney is a sergeant; Belinda Schrubbe was the Health Services Unit (HSU) manager; and Randy Vande Slunt is the Bureau of Correctional Enterprises-Badger State Industries Supervisor at Waupun. Id. at ¶¶ 1, 3, 5, 7, 13. Defendant Paula Tiruveedula is the Bureau of Correctional Enterprises-Badger State Industries Corrections Administrative Supervisor. Id. at ¶¶ 10-12.
B. Badger State Industries
“BSI is a prison industry program operated by the State of Wisconsin.” Id. at ¶ 17. It employs inmates at various correctional institutions to make products and provide services for state and federal agencies. Id. BSI includes “a wood furniture shop, metal furniture shop, print shops, metal stamping shop (license plates), sign shop, textiles shops, upholstery shop, computer and wheelchair recycling shops, and laundry operations.” Id. at ¶ 18. “The prison industries program provides inmates with meaningful employment opportunities and, in turn, assists inmates with reintegration into their communities.” Id. at ¶ 19. “The BSI employment opportunities are extremely desirable for inmates within the prison setting;” they pay more than any other prison jobs. Id. at ¶ 20. “Because inmates hired for these positions often work with dangerous equipment” and hazardous material, inmates seeking employment with BSI “must be responsible and have a record of good behavior.” Id. at ¶ 21. Inmates apply for their desired position and go through an interview process, but the Security Director or his designee makes the final hiring decision. Id.
Inmates who work for BSI in the Metal Furniture Building build products such as metal fencing, office furniture, and lockers. Id. at ¶ 22. As a Body Shop worker in the Metal Furniture Building, the plaintiff prepared metal for sanding and painting. Id. at ¶ 24. In his position as a clerk, he “handled clerical tasks such as entering work orders into a computer system and processing time cards.” Id. at ¶ 25.
“All inmates employed with BSI at WCI are provided with a copy of the Prison Industries Inmate Workers Handbook.” Id. at ¶ 26. “The handbook states that each industry location shall develop policies and procedures covering things such as personal business, breaks, cleanup, tool control, health and safety, and other policies and procedures related to the unique operation of that particular industry.” Id. at ¶ 27. “The Work Rules and Discipline Policy is outlined in the handbook.” Id. at ¶ 28. “It states that prison industries work rules are defined” in Wis. Admin. Code § DOC 313.08, “and that each individual work location may develop standards to clarify the applicability of certain work rules, and/or establish additional policies and procedures in accordance with the needs of a particular work environment.” Id.
On June 17, 2013, when the plaintiff began working at BSI, he signed the Work Rules and Discipline Policy for Prison Industries Inmate Workers. Id. at ¶ 29. “The Work Rules for Inmate Workers section establishes that inmates are in breach of the rules if they violate any health and safety procedure or instruction, including but not limited to shop or machine procedures.” Id. at ¶ 30. The plaintiff objects to any rule not written down and given to the inmate workers and submits that most workers in his area (MF-2) were never told of safety rules and warnings. Dkt. No. 47 at ¶ 4, 5, 6, 11; Dkt No. 47-2 at ¶ 2, 3; Dkt. No. 47-3 at ¶ 9; Dkt. No. 47-4 at ¶ 2-4.
C. Plaintiff’s Claims
The court allowed the plaintiff to proceed on a claim that defendants Schrubbe, Cerney, Sabish, and Meli failed to provide or require proper safety equipment when the plaintiff was working with carcinogens. Dkt. No. 12 at 3. The plaintiff claims that he was exposed to a “known carcinogen” while working in the Body Shop, and was “never told about the hazards from the sanding pads or paper, grinding and cutting discs.” Dkt. No. 22 at 3, ¶¶ 12 and 14. Specifically, the plaintiff says that he was exposed to “Microcrystalline Silica.” Id. at ¶ 14. He claims that breathing metal dust and Microcrystalline Silica caused him to “cough and sneeze out black matter, causing chest pains, dizziness and nose bleeds.” Id. at 3-4, ¶ 16.
The court also allowed the plaintiff to proceed on a claim that defendants Vande Slunt and Tiruveedula failed to warn the plaintiff or provide safety equipment for working with a blade. Dkt. No. 12 at 3. According to the plaintiff, he came into contact with a blade coolant product on March 4, 2014, and developed “a large rash and hives” on the back of his hand that “lasted over 10 days.” Dkt. No. 22 at 4, ¶¶ 17 and 19.
D. The Body Shop
In his position as a Body Shop worker at Waupun, the plaintiff worked in the Metal Furniture Building and prepped metal for sanding and painting. Dkt. No. 38 at ¶ 24. He was required to use sanding products and operate equipment to cut and grind metal. Id. The plaintiff contends that the sanding products contained microcrystalline silica (MCS) and that he was never told or warned to wear a mask. Dkt. No. 22 at ¶¶ 15-16. MCS is commonly referred to as sandpaper, and the proper precaution when working with sandpaper and/or sanding disks is to wear a safety mask. Dkt. No. 38 at ¶ 42.
The defendants submit that inmates who work in the Body Shop have an abundance of safety equipment available to them. Id. at ¶ 31. The defendants say workers are provided with protective gear “such as waterproof gloves, leather gloves, rubber gloves, rubber-dipped cloth gloves, body coverings, disposable coveralls, caps, masks, and eye protection.” Id. Inmates get five work uniforms per week, which stay in their lockers; they put on the uniforms when they arrive for work, and when they leave, the dirty uniforms go to the laundry. Large sinks with plenty of soap are available in the Body Shop and basement, so that inmates may wash up during breaks, lunch or at other times during their shifts. Id. at ¶¶38, 48. The plaintiff submitted declarations suggesting that inmates are not provided with waterproof gloves, rubber gloves, adequate body coverings, or adequate masks. Dkt. No. 48 at ¶ 16; Dkt. No. 47 at ¶ 9; Dkt. No. 47-3 at ¶ 2, 5-6.
The Body Shop has a ventilation system. Dkt. No. 38 at ¶ 32. “Multiple overhead exhaust fans and vents provide airflow and suck any residual dust out of the air.” Id. The Body Shop also has “multiple portable vents which allow inmates to place a vent in the best position for proper ventilation in their immediate work area.” Id. Vent filters are regularly changed. Id.
The plaintiff says the ventilation is inadequate; that he was told that the smoke eaters were only for welding fumes and wouldn’t work for sanding tall items; and that the overhead vents were located to the right of the Body Shop outside the plastic curtain, so they do not aid in exhaust in the Body Shop. Dkt. No. 48 at ¶ 8. The plaintiff also says that the photos of the Body Shop which the defendants submitted (Dkt. No. 44-3) show no posted warning signs telling people to wear masks, and that the filters “are not N-95 rated and come up to MF-2 from MF-1 paint room used.” Id.; Dkt. No. 47-3 at ¶ 8. He argues that this allows MCS to be blown onto inmates working in the Body Shop. Dkt. No. 48 at ¶ 8.
When they are hired, inmates receive an “orientation from the industry supervisor/specialist.” Dkt. No. 38 at at ¶ 33. In the Waupun Metal Furniture Shop, Body Shop Technicians (Techs) who are assigned to production posts perform inmate training and “act as the immediate supervisors in each area.” Id. at ¶ 34. Techs provide inmates with individual, one-on-one verbal training. Id. The Techs also show inmates the protective gear and safety equipment available and teach the inmates proper use of tools and machinery, safety precautions, and expectations. Id. at ¶ 35. “Equipment manuals for the machines are also made available to the inmates to read through if they want to study further.” Id. at ¶ 34.
Vande Slunt contends that he is not a Body Shop Technician and did not train the plaintiff on how to perform his job in the Body Shop or train him on the proper safety precautions. Id. at ¶ 36. The plaintiff asserts that Vande Slunt is responsible either for training the Techs or for providing them with information on health and safety. Dkt. No. 48 at ¶ 9. The plaintiff never complained to Vande Slunt about his concerns regarding lack of safety equipment. Dkt. No. 38 at ¶ 56. The plaintiff asserts that he and others all asked about safety equipment, but none of this evidence disputes Vande Slunt’s assertion because it does not say that they complained to Vande Slunt (versus someone else).
The defendants submit that “various signs are posted throughout the Body Shop which prohibit inmates from going past certain points if they are not wearing proper safety attire, such as steel-toe shoes and safety goggles.” Dkt. No. 38 at ¶ 37. As indicated above, the plaintiff says that the defendants’ photo of the Body Shop shows no warning signs. Dkt. No. 48 at ¶ 8.
The defendants state that inmates are advised to wear masks when working in the Body Shop, “especially when working with machinery that creates dust.” Id. at ¶ 39. “Because masks are often stolen, inmate workers are given one mask to keep in their locker.” Id. “When that mask gets old or worn, they may turn it in for a new one.” Id. According to the plaintiff, he was never provided with a “proper CDC Approved face mask” or told to wear one. Dkt. No. 22 at ¶ 13.
There is also a dispute about whether “range books” are available that contain Material Data Safety Sheets (MSDS) about every product or chemical used in the Body Shop. Dkt. No. 38 at ¶ 40; Dkt. No. 47-1 at ¶ 4; Dkt. No. 47-3 at ¶ 7.
Cerney is the assigned sergeant in the Metal Furniture Building. Dkt. No. 38 at ¶ 57. The defendants state that he is “not responsible for training inmates on how to perform their job, supervising their work, or making sure they are following proper safety procedures.” Id. “If Cerney notices that an inmate is not following safety procedure, he may tell the inmate to stop, but he more likely would report the concern to the inmate’s technician supervisor.” Id.
The plaintiff asked Sergeant Knapp if BSI sergeants were responsible for inmate health and safety while they were working at BSI. Dkt. No. 48 at ¶ 10. Knapp replied that “protecting inmates and staff was the number one job of the sergeant.” Id. On another day, the plaintiff asked Knapp if “as a sergeant you saw an inmate worker working with a material in a way that could harm the inmate would you have to stop it?” Id. Knapp replied, “Because its security related I would have to.” Id.
“Cerney and the correctional officers who work in the Metal Furniture Building are responsible for distributing and keeping track of sharps and power tools that could be used as weapons.” Dkt. No. 38 at ¶ 58. “They are also responsible for other supplies, including protective gear.” Id. “Security distributes these items to prevent theft. Protective gear is distributed upon request.” Id.
The plaintiff never complained to Cerney about his concerns regarding lack of proper safety equipment. Id. at ¶ 92. If he had, Cerney would have directed the plaintiff to talk to the Tech supervising him or “informed him about the safety equipment that is available.” Id. The plaintiff says he expressed his concerns to his Tech (Russ) and to Lowney. Dkt. No. 48:2 at ¶¶ 5, 7.
E. Blade Coolant
“The basement of the Body Shop is where all the raw material is prepped.” Dkt. No. 38 at ¶ 43. “Materials such as sheet metal, pipes, tube steel, and angle iron are all purchased by the bundle and can be delivered in 20’ lengths.” Id. “The equipment in the basement cuts or shears the product to the size that is needed for the making of metal furniture, i.e., desks, file cabinets, bookcases, etc.” Id. “The parts are then moved to the 2nd floor for actual production of the furniture.” Id.
On March 4, 2014, the plaintiff worked in the basement on a machine that was used to bend and cut metal. Id. at ¶ 44. The machine generates heat in the process, so it is necessary to “temper the heat with a mixture of blade coolant and water in order to keep [the machine] from overheating.” Id. The defendants say that “some minimal coolant may spray from the machine during operation, ” but that it is “not enough that the operator would become soaked in it.” Id. The plaintiff disputes this, and submits evidence that clothing gets soaked while working on the saw. Dkt. No. 47-3 at ¶ 3-6. The plaintiff states that on March 4, 2014, after working with soaked gloves for about six hours, he discovered a rash, and showed it to CO Lowney. Dkt. No. 22 at ¶¶ 17, 18, 19.
“Klear Kut is the semi-synthetic cutting coolant” used with the machine the plaintiff used on March 4, 2014. Dkt. No. 38 at ¶ 45. “The MSDS sheets for the coolant reveal that ‘prolonged contact may cause drying of skin with possible irritation and/or dermatitis.’” Id. “If the coolant comes into contact with skin, the skin should be flushed with water, and then washed with soap and water.” Id. “Medical attention should be sought if irritation persists.” Id.
On Saturday, March 8, 2014, the plaintiff submitted a Health Service Request (HSR). Id. at ¶ 49. In it, the plaintiff said that he had a rash and/or hives on the back of his left hand after working with blade coolant on Tuesday (March 4). Id. The plaintiff was seen in the HSU on March 12, 2014. Id. at ¶ 50. He told the nurse that he had been working with blade coolant and, “at the end of the day, had a rash on his left hand and right arm.” Id. Upon examination, “the nurse found a faint area of redness 6 cm X 5 cm on the back of [the plaintiff’s] left hand, near the thumb, with some coarseness of skin; slightly raised and rough to the touch.” Id. at ¶ 51. The plaintiff also had two spots on his inner lower forearm that were faintly red and raised. Id. “The nurse noted that [the plaintiff] had tried hydrocortisone, antibacterial lotion, and lanolin lotion twice a day. Id. at ¶ 52. The plaintiff’s chart was referred to the Nurse Practitioner for review, and the Nurse Practitioner wrote a prescription for Clobetosol cream the next day. Id. at ¶¶ 52-53. The plaintiff was advised to apply to the affected area twice per day as needed for one month, and then stop using it. Id. at ¶ 53.
According to the defendants, the plaintiff had the opportunity to wear long rubber gloves while operating this machine; the gloves are kept with the machine. Id. at ¶ 47. They assert that if the plaintiff had worn the gloves while operating the machine, the plaintiff’s hand, wrist, and forearm would have been covered. Id. The plaintiff disputes that there were long rubber gloves available to him while operating the machine; he says they were placed near the machine just for pictures. Dkt. No. 48 at ¶ 3; Dkt. No. 47-3 at ¶ 2, 6; Dkt. No. 47-4 at ¶¶ 5-8.
The sinks in the Body Shop and basement are extra-large, deep, and “with ample soap supply.” Dkt. No. 38 at ¶ 48. As indicated above, inmates are allowed to wash up in the sinks during scheduled breaks, lunch, and at any other time throughout their shift. Id. According to the plaintiff, those sinks have lead in them and warning memos were posted briefly and then removed within a few days. Dkt. No. 48 at ¶¶ 3-6.
Inmates incarcerated at Waupun are permitted to shower four days per week (unless they are housed in segregation). Dkt. No. 38 at ¶ 59. “A shower crew consisting of second shift officers generally handles shower detail.” Id. at ¶ 60. At Waupun, “there are four cell halls with one bath house in between.” Id. at ¶ 61. “Each cell hall consists of four ranges which house up to 70 inmates each.” Id. “The South West Cell Hall, where [the plaintiff] is housed, can house up to 57 inmates on each range.” Id. “When inmates are showered, each range is called one at a time, and inmates have the opportunity to shower for up to 20 minutes.” Id. ...