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Orlowski v. Milwaukee County

United States District Court, E.D. Wisconsin

April 21, 2016

GARY ORLOWSKI, individually, and ESTATE OF ALEXANDER L. ORLOWSKI, by Special Administrator Gary Orlowski, Plaintiffs,



Gary Orlowski, individually and as the special administrator of the estate of his deceased son, Alexander Orlowski, filed a civil rights action under 42 U.S.C. §1983 against Milwaukee County and three individuals who were employed as correctional officers at the Milwaukee County House of Correction (“the HOC”)-Irby Alexander, Anthony Manns and Ronald Malone. Dkt. No. 1. The plaintiff’s claims arise out of the death of his son, Alexander Orlowski (“Mr. Orlowski”). Mr. Orlowski died from a fatal methadone overdose on November 22, 2007, while incarcerated at the HOC. The plaintiff pleaded §1983 claims based on the conditions of Mr. Orlowski’s confinement, failure to provide medical care, and loss of familial relationship, society and companionship. He pleaded §1983 claims against the County under Monell v. Department of Social Services, 436 U.S. 658 (1978), as well as a state law indemnification claim.

The defendants have moved for summary judgment as to all of the plaintiff’s claims. In response to the defendants’ motion, the plaintiff dismissed “all claims against [defendant Ronald Malone], because there is no evidence [he] was individually involved in the events” preceding Orlowski’s death. Dkt. No. 51 at 1. Otherwise, the plaintiff opposed the defendants’ motion. Invoking Rule 56(f)(1), the plaintiff’s opposing brief argued that the court ought to deny the defendants’ motion for summary judgment, and instead award summary judgment in his favor. Dkt. No. 51 at 3-4. The plaintiff contended that, even though he had not moved for summary judgment on or before the December 18, 2015 deadline the court had set in the scheduling order, he could ask the court to award summary judgment under Rule 56(f) because he notified the defendants in a motion for leave to file statements of additional fact that he planned to request summary judgment in his response to the defendants’ motion for summary judgment. Id. at 2-3. The plaintiff also moved to strike the defendants’ reply to the plaintiff’s responses to the defendants’ statements of fact. Dkt. No. 64.

For the reasons explained below, the court will grant the defendants’ motion for summary judgment as to all of the plaintiff’s claims, decline the plaintiff’s request that it award summary judgment in his favor, and deny the plaintiff’s motion to strike the defendants’ reply to the plaintiff’s responses to the defendants’ proposed statements of fact.


A. Undisputed Facts

Mr. Orlowski was incarcerated at the HOC from July 8, 2007 to November 22, 2007, serving a sentence for violating the terms of his probation related to a conviction for burglary of a building or dwelling. Dkt. No. 52 at 14, ¶¶42-43 (Pl’s Resp. to Def’s Stm. of Facts).

On the morning of November 22, 2007, Mr. Orlowski was asleep in his bed (bed 14) in the Zebra-2 dorm. Id. at ¶44. Defendant Alexander, a corrections officer, began his shift as the dorm supervisor for the Zebra-2 dorm at 12:05 A.M. on that day. Id. at 15, ¶45. At that time, the inmates in Zebra-2 dorm already were in their beds. Id. at ¶46. The Zebra-2 dorm log book reflects that, around 12:28 A.M. and again at 1:36 A.M., Alexander conducted security checks of the dorm. Id. at 16, ¶¶49-52. Also around 1:36 A.M., defendant Manns, a corrections officer and Alexander’s supervisor, toured the dorm. Id. at 17, ¶54. Neither Alexander nor Manns made an entry in the log book pertaining to Mr. Orlowski at those times. Id. at 16-17, ¶¶51-55.

At approximately 4:00 A.M., Alexander noted in the Zebra-2 dorm log book:

Z214 Orlowski #719775403 appears to have a severe sleeping disorder. Inmate appears not to be breathing at times. Inmate makes a lot of noise while trying to breath [sic] and or when he is breathing. Inmate appears to have a lot of difficulties sleeping. Sgt Manns Notified about Z214 Orlow[ski].

Id. at 19, ¶60; Dkt. No. 47-7 at 3. Alexander testified at his deposition that he had not encountered Mr. Orlowski before January 22, 2007. Dkt. No. 48-2 at 208. Alexander’s 4:00 A.M. log book entry reflects the first time Alexander had noticed that Mr. Orlowski was having any problems. Id. At that time, Alexander contacted Manns via his radio to discuss his observations of Mr. Orlowski. Id. at 208-09. Alexander testified that he told Manns that he was concerned about Mr. Orlowski, and Manns replied that either Alexander could talk to Orlowski at breakfast, or both of them could talk to Orlowski in the morning, to “ask him if he, you know, knew that-how he was sleeping.” Id. at 209. Alexander testified that he was concerned that Mr. Orlowski might have a sleep disorder, such as sleep apnea, and was concerned that the loud noises Mr. Orlowski was making during his sleep would affect other inmates in the dorm or potentially lead to a fight. Id. at 208-18.

In response to the plaintiff’s counsel’s questions regarding what caused Alexander to believe Mr. Orlowski had a severe sleeping disorder, Alexander testified that “[t]he loud snoring was the key. This intermittent-type breathing type thing was, you know, another kind of indicator that, you know, there was some type of thing-issue going.” Id. at 210. Alexander explained that “[i]t seemed like he stopped breathing . . . And then all of a sudden a loud roar come out. And, you know, seemed to be some agitation at times that-that he had.” Id. at 210.

At some time on November 22, 2007 (the exact time is not clear from the record), Alexander tried to rouse Mr. Orlowski by shaking his bed and calling his name. Id. at 210, 238. Alexander testified that Mr. Orlowski made a load roar, which startled him and made him jump. Id. at 211. He indicated that some other inmates laughed at his response to the roar, saying, “Oh, he sleeps like that all the time.” Id. In response to Alexander shaking his bed and calling his name, Mr. Orlowski would or change his breathing pattern from hard to soft, as if Alexander was disturbing his sleep, but Mr. Orlowski did not wake up. Id. Alexander testified that Mr. Orlowski’s sleep disturbances reminded him of sleep apnea, and that he was aware of inmates who suffered from sleep apnea and who displayed symptoms such as trembling and “all kind of, like, activities.” Id. at 217. Alexander indicated that there wasn’t anything officers could do when they saw those inmates behave in that fashion, other than to think, “Man, these guys need a CPAP;” he testified that there were other inmates who had CPAP machines. Id. at 217-218. The record does not reflect that Alexander made any other attempts to wake up Mr. Orlowski.

Manns prepared an incident report after Mr. Orlowski had died in which he described his discussion with Alexander. Dkt. 48-4 at 151. Manns testified that he wrote that Alexander reported “that inmates in Z dorm was complaining about Inmate Orlowski. Alexander with his number, Z14 sleeping behavior that he was snoring too loud.” Id. Manns further testified that he wrote that Alexander “went to Orlowski . . . and observed this inmate’s chest and stomach go up and down and at times his body would make sudden moves but he was breathing okay.” Id. at 152. Based on the information Manns received from Alexander, he testified that, at that time, he did not believe that Alexander had any concerns about Mr. Orlowski’s “health or breathing conditions or intermittent breathing or anything like that.” Id. at 167. Manns further testified that he did not believe that Mr. Orlowski had “any type of sleeping or medical condition, ” based on the information provided to him by Alexander. Id. at 178; see also, id. at 162-65. Manns advised Alexander “to keep a close watch on him and . . . And if [Orlowski] gets up for breakfast, you should talk to him. And if he don’t get up for breakfast, you should wake him up this morning and ask him if he is aware of the way he sleeps.” Id. at 152. Manns expected that Alexander would ask Mr. Orlowski if he had any sleeping disorders or if Mr. Orlowski was aware that he snored very loudly when he slept. Id. at 179-80.

Manns denied that Alexander told him that Mr. Orlowski appeared not to be breathing. Id. at 181-82. Manns testified that if Alexander “would’ve said the inmate was not breathing, we would’ve called a medical emergency.” Id. at 181. Manns expanded on that testimony by explaining that “[i]f Alexander would’ve told me that an inmate is not breathing, I would’ve told him to call a medical emergency. Simple as that. And I would’ve ran down to the area immediately to assist.” Id. at 184. Bonnie Crissey, Milwaukee County’s corporate representative, testified in her deposition testimony that a correctional officer has the discretion to call a medical emergency “[i]f a correctional officer can’t wake someone up without knowing why[.]” Dkt. No. 48-7 at 140-41. Alexander did not contact Manns again, and Manns was not present again in the Zebra-2 dorm until after Mr. Orlowski was found to be unresponsive at about 6:10 A.M. Dkt. No. 52 at 24, ¶73; 28, ¶96.

The log book indicates that breakfast was announced at 4:05 A.M., and seventeen Zebra-2 dorm inmates went to breakfast at 4:20 A.M. Dkt. No. 48-2 at 211. The defendants do not dispute that the HOC’s written policy required Mr. Orlowski to wake up and go to breakfast. Dkt. No. 59 at 6, ¶22. Mr. Orlowski had been assigned to work in the kitchen that morning, but Alexander did not wake him for breakfast because there were more inmates who were assigned or volunteered to work than were needed. Id. Larry Green, an HOC inmate housed in the Zebra-2 dorm who was assigned as the head cook in the HOC kitchen, stated in his affidavit that he tried to wake Mr. Orlowski up for his shift as a morning kitchen worker, but that Mr. Orlowski would not wake up. Dkt. No. 56 at ¶16-17. Green further stated that it was unusual for Mr. Orlowski not to wake for his shift, and that he repeatedly “told an HOC correctional officer that something was wrong with Alex.” Id. at ¶¶18-20. The defendants dispute that Green made these statements to Alexander, but they do not dispute that Green made these statements to some HOC corrections officer. Dkt. No. 59 at 5, ¶¶18-19.

At 4:35 A.M., Corrections Manager Virginia Ertman, the highest ranking correctional officer on duty that night, toured the dorm and read Alexander’s 4:00 A.M. log entry regarding Mr. Orlowski. Dkt. No. 52 at 25, ¶¶78-80. Alexander and Ertman went to observe Mr. Orlowski, and at that time, he was breathing and sleeping. Id. at ¶82; Dkt. No. 48-6 at 145-46. Ertman testified that she could tell Mr. Orlowski was breathing “[b]ecause his chest was going up and down.” Dkt. No. 48-6 at 144. According to the log book and his deposition testimony, Alexander conducted security checks on the inmates of Zebra-2 dorm at approximately 4:45 A.M, 4:55 A.M., and 5:48 A.M. Dkt. No. 52 at 26-27, ¶¶84-85, 88. During that period of time, Alexander “didn’t see anything” that would have given him reason to believe “that [Mr. Orlowski] could’ve been in any physical distress.” Dkt. No. 48-2 at 255.

At about 6:10 A.M., as the inmates were returning from breakfast, Alexander heard several inmates call out, “Man down, man down.” Id. at 251; Dkt. No. 52 at 27, ¶¶90-91. Alexander testified that he didn’t understand what that phrase meant, and he interpreted it literally to mean that a person had fallen out of his bunk. Dkt. No. 48-2 at 255-56. When Alexander reached Mr. Orlowski’s bunk, he observed that Mr. Orlowski’s face was “stiff” and “solid, ” and “so still that something was wrong. And it just made me just call out for help.” Id. at 258. Alexander testified that at 6:12 A.M., he called a medical emergency and added “an enhancement” to the urgency of the situation by stating that those responding should “step to, ” as in “come here right away.” Dkt. No. 52 at 28, ¶95; Dkt. No. 48-2 at 259-60. Resuscitation efforts were unsuccessful, and at 6:54 A.M., Mr. Orlowski was pronounced dead. Dkt. No. 52 at 28, ¶99. An investigation into Mr. Orlowski’s death determined that he had obtained methadone and Seroquel from another inmate or inmates prior to his death. Dkt. No. 52 at 29, ¶101 and Response No. 101. The parties agree that Mr. Orlowski “died as a result of a drug overdose.” Dkt. No. 52 at 30, ¶102. The Milwaukee County Medical Examiner determined that methadone toxicity caused Mr. Orlowski’s death. Dkt. No. 53-1 at 42.

In 2007, the HOC had a written policy and procedure for medication distribution, which required “that only licensed health care staff could administer medication to inmates.” Dkt. No. 52 at 6-7, ¶¶20-21. Under that policy, the “health care staff were stationed just outside the entrance to the dormitory, ” where the inmates received their medication, and corrections staff “were stationed in the threshold of the entrance so that they could monitor the dormitory and the inmate receiving medication.” Id. at 7, ¶24. After an inmate received medication, the inmate was to open his mouth “after swallowing oral medication to allow a visual inspection of the mouth by health care staff and correctional staff to ensure the inmate has swallowed the medication.” Id. at 8, ¶26 (alterations omitted).

Samuel Pelkey, a Zebra-2 dorm inmate during the time period relevant to this case, stated in his affidavit that another Zebra-2 dorm inmate, Samuel Fitzpatrick, was able to “cheek” his methadone pills (by hiding them in his mouth instead of swallowing them) because the HOC employees failed to adequately check Fitzpatrick’s mouth. Dkt. No. 59 at 8-9, ¶¶35, 37-38. Henry Delgado, another Zebra-2 dorm inmate during the time period relevant to this case, stated in his affidavit that “[a]t times when HOC nurses administered methadone pills to Fitzpatrick, ” he saw Fitzpatrick “take the pills out of his mouth and put them in his hand.” Id. at 10, ¶40. Pelkey stated that over at least a two-day period of time, between November 19 and November 21, 2007, Fitzpatrick sold his methadone pills to Mr. Orlowski. Id. at 11, ¶46. One of the defendants’ experts, Dr. Chad Zawitz, testified “that it would have been standard practice for a correctional facility such as the HOC to house an inmate who was receiving methadone in a medical unit instead of the general population, to prevent diversion of methadone to other inmates.” Id. at 13, ¶54.

Kristen Babe, an HOC nurse, told Ertman after Mr. Orlowski had died that she knew Mr. Fitzpatrick had “a history of selling his meds.” Dkt. No. 59 at 12, ¶50. Nurse Babe testified in her deposition that she could not recall how she learned that Mr. Fitzpatrick had previously sold his medications, and she was unaware of whether any other correctional officers or supervisors were aware of that before Mr. Orlowski died. Dkt. No. 48-8 at 98-100. She further testified that it was “a classic thing” for inmates to horde medication and sell it in the dorm for canteen. Id. at 97. Amy Lynn Hazen, a former nurse at HOC, testified that, in 2007, “[a]t least 90 percent of our officers [in 2007] never checked” the mouths of inmates when medication was distributed, but she did not recall complaining about that practice to a supervisor in 2007. Dkt. No. 53-1 at 176.

On April 1, 2008, Fitzpatrick later was charged in Milwaukee County Circuit Court with one count of first degree reckless homicide, a felony, based on allegations that he supplied Mr. Orlowski with methadone prior to his death. Id. at 152-54. While the criminal investigation revealed that Mr. Orlowski had not been prescribed methadone, an inmate told investigating officers that he had seen Mr. Orlowski in possession of four or five methadone pills the day before his death, and another inmate told an officer that an inmate (whom police identified as Fitzpatrick) had been supplying Mr. Orlowski with methadone in exchange for bags of chips. Id.

B. Standards of Review

1. Summary Judgment

A court must grant summary judgment when “there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A court appropriately grants summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. The “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted) (citation omitted). “A party will be successful in opposing summary judgment only when that party presents definite, competent evidence to rebut the motion.” EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000).

Material facts are those “facts that might affect the outcome of the suit under the governing law, ” and a dispute about a material fact is genuine if a reasonable jury could find in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party opposing summary judgment cannot simply rest on allegations or denials in its pleadings; it must also “introduce affidavits or other evidence setting forth specific facts showing a genuine issue for trial.” Anders v. Waste Mgm’t of Wis., 463 F.3d 670, 675 (7th Cir. 2006). The court views all facts and draws all reasonable inferences in favor of the nonmoving party, but “inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion.” Herzog v. Graphic Packaging Int’l, Inc., 742 F.3d 802, 806 (7th Cir. 2014) (quoting Tubergen v. St. Vincent Hosp. & Health Care Ctr., Inc., 517 F.3d 470, 473 (7th Cir. 2008)).

2. Section 1983 Claims

To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege that: 1) he was deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation was visited upon him by a person or persons acting under color of state law. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980).

C. Discussion

1. Defendants Alexander and Manns Are Entitled To Summary Judgment on Claims One Through Five.

To survive summary judgment on his §1983 claims against the individual defendants, the plaintiff must produce evidence that on November 22, 2007, Alexander or Manns violated Mr. Orlowski’s constitutional rights.

a. Eighth Amendment Conditions of Confinement Claim[1]

The first §1983 claim in the complaint is entitled “Prison/Jail Conditions of Confinement, ” and alleges that the defendants violated the Eighth Amendment[2] by housing the plaintiff under conditions that posed a substantial risk of serious harm to his health and safety. Dkt. No. 1 at 28-29. “The burden is on the prisoner to demonstrate that prison officials violated the Eighth Amendment, and that burden is a heavy ...

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