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Blue v. Baenen

United States District Court, E.D. Wisconsin

May 20, 2016

RANDALL BLUE, Plaintiff,



         The pro se plaintiff, Randall Blue, is a Wisconsin state prisoner. He filed this lawsuit under 42 U.S.C. § 1983. Blue alleges that defendants Warden Michael Baenen, Cathy Francois, and Captain Yana Pusich were deliberately indifferent to his safety because they did not give him a sturdy chair to access his top bunk bed, and that he fell and injured himself using the non-sturdy chair they did provide. Blue also claims that defendant Dr. Mary Sauvey was deliberately indifferent in that she withheld medical treatment after the fall. The defendants have filed a motion for summary judgment. For the reasons explained in this order, the Court will grant the defendants’ motion and dismiss this case.


         “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 under the applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A dispute over “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).

         FACTS [1]

         Blue was an inmate at Green Bay Correctional Institution (GBCI) at all times relevant to this lawsuit. (ECF No. 87 ¶ 1.) The defendants were employees at GBCI during that time. Michael Baenen was the warden; Cathy Francois was the institution complaint examiner; Yana Pusich is a captain; and Dr. Mary Sauvey is the institution physician. (Id. ¶¶ 3-6.)

         A. Blue’s Complaints about Bunk Beds

         Most of the cells at GBCI are double cells, meaning there are two inmates housed in one cell. All double cells are equipped with a metal frame bunk bed. (Id. ¶ 10.) There are 168 bunk beds in use at GBCI. (Id. ¶ 11.) The bunk beds have a metal frame that is 4’ 5” tall, 6’ 9” long, and 2’ 9” wide. Inmates in double cells are assigned to the top or bottom bunk. Blue is 6’ 1” tall. (Id. ¶ 12.)

         There is no official procedure/process that dictates how an inmate gets up and down from the top bunk. (Id. ¶ 13.) In Pusich’s experience, based on her observations while working, most inmates get up onto the top bunk by stepping on the metal frame for the lower bunk, and then pulling themselves up onto the top bunk. (Id.) Similarly, inmates get down by lowering themselves from the top bunk until they step onto the metal frame for the lower bunk, and then lowering themselves from there to the floor. (Id. ¶ 13.) Pusich does not recall ever witnessing an inmate have difficulty getting up onto the top bunk, or down from the top bunk. (Id. ¶ 14.) Based on Pusich’s observations, inmates at GBCI are able to safely get up and down from the top bunk without difficulty. (Id.)

         Occasionally, Pusich has had inmates complain to her that they are unable to get up or down from a top bunk due to physical problems or limitations. (Id. ¶ 15.) For example, inmates have complained to Pusich that they could not be assigned a top bunk due to back problems, leg issues, and obesity. (Id.) When inmates make this complaint, Pusich directs them to contact the Health Services Unit (HSU) to request a low bunk restriction, which would guarantee them a low bunk assignment. (Id.) Per institution policy, all housing restrictions resulting from a medical issue go through the HSU and the institution’s special needs committee. (Id.)

         Depending on availability, GBCI provides inmates a chair for use in their cell. (Id. ¶ 16.) GBCI has a limited supply of chairs, so not every single cell, or cell with one inmate assigned, has a chair. (Id.) All double cells do have a chair. (Id.) The chairs are not provided for inmates to use to climb into and down from top bunk beds. (Id. ¶ 17.) Chairs are provided to inmates in double cells as a courtesy so both inmates in the cell have a place to sit at ground level for activities like writing, watching television, and conversing. (Id. ¶ 18.)

         All inmates at GBCI are provided with a copy of the institution’s inmate handbook. (Id. ¶ 7.) The handbook includes a problem solving guide, which provides a process inmates are to follow to resolve everyday problems. (Id. ¶ 8.) It directs inmates to follow the chain of command to resolve their problems, and provides a detailed list of who they should contact for specific issues. (Id.) The handbook also directs inmates to first attempt to resolve their problem by contacting the staff member listed in the problem solving guide before filing an inmate complaint. (Id. ¶ 9.) For housing unit repairs, or other issues, inmates are directed to first contact their unit sergeant, then contact a security supervisor if the problem is not resolved. (Id.)

         On July 22, 2013, Francois received a complaint from Blue that stated:

On 7-19-13, I was getting off the top bunk at 9:00 PM count I use the chair to get down because there’s no other way to climb down from the top bunk, I step on the chair and it slip from under me, if it wasn’t for my cellmate being there to catch me, I’m sure I would of fell and hurt myself seriously, this is not the first time I’ve slip, Officer Lenz was doing security check on A-tier in the north cell, I informed her that I slipped getting off the top bunk, I told her I need a sturdy chair to climb down on, and to get on the top bunk, truthfully there’s no (safe) way to climb up and down the top bunk, I do fear hurting myself, especially in the middle of the night when it’s totally dark, these bunks need a ladder of some type, like I said, this is a very very dangerous set-up not having a (safe) way to climb up and down the top bunk hope you don’t reject this complaint, I’m making you aware of the dangerous situation I’m in.

(Id. ¶ 19.)

         That same day, Francois sent Blue a letter returning his complaint materials and directing him to first attempt to resolve the issue by contacting Captain Pusich. (Id. ¶ 20.) Francois’s letter stated in part:

Please inform Capt. Pusich that you were instructed to contact her by the ICE regarding needing a sturdy chair you can use to get on and off the top bunk, so that you do not slip and hurt yourself. You are also encouraged to contact HSU if you feel you need to be placed on a lower bunk restriction. You should submit this copy of your return letter along with your request to her. If you feel that she does not address the issue to your satisfaction, you may resubmit your complaint. When resubmitting your complaint, include any correspondence to and/or from Capt. Pusich and this letter.
. . .
To Capt. Pusich from ICE:
1) please document, date and sign this letter, your response taken on this issue; 2) return this document to inmate Randall Blue #188858.


         Wis. Admin. Code § DOC 310.09(4) authorizes institution complaint examiners to direct an inmate to first try to resolve a submitted complaint with staff before accepting the complaint. (Id. ¶ 21.) As an ICE, Francois would regularly do this. (Id.) She did so because unit staff is usually in a better position to address the inmate’s complaint and resolve any issue quickly. (Id.) Further, if the inmate is unhappy with staff’s response to his issue and refiles his complaint, staff’s written response would provide her a better understanding of the issue. (Id.) She also directed inmates to try to resolve the issue because doing so helps the inmate’s rehabilitation, and fosters a better correctional environment. (Id.) Asking inmates to attempt to resolve their issues with staff helps the inmate develop problem-solving skills and promotes better relationships between inmates and staff. (Id.)

         On July 25, 2013, Blue re-submitted the exact same offender complaint Francois returned, without first trying to resolve the issue with Capt. Pusich. (Id. ¶¶ 25-26.) Francois processed the complaint and made a recommendation that it be dismissed stating:

Inmate Blue complains that he needs a sturdy chair in his cell so he can climb up to bunk. He states that when he tried to climb up to his bunk on 07/19/13 using the chair in his ...

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