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Grender v. Wall

United States District Court, E.D. Wisconsin

May 31, 2016

EDWARD F. WALL, et al., Defendants.


          William C. Griesbach, Chief Judge United States District Judge

         Plaintiff William R. Grender, a state prisoner serving a sentence, filed this pro se civil rights action under 42 U.S.C. § 1983 alleging that his constitutional rights were violated while he was housed at Green Bay Correctional Institution (GBCI). The case was allowed to proceed on multiple conditions of confinement claims regarding his time in the GBCI Restrictive Housing building. Plaintiff claims that the conditions in segregation caused him both physical and mental harm. He was also allowed to proceed on a medical claim relating to the nursing staff in response to his claims of Helicobacter pylori (H. pylori) and migraine headaches. This Court also allowed him to proceed on a retaliation claim against a correctional officer. This case is now before the Court on Plaintiff’s motion for summary judgment and Defendants’ motion for summary judgment. Plaintiff’s motion for reconsideration of this Court’s order denying his previous motion to appoint an expert witness is also pending. For the reasons that follow, Plaintiff’s motions will be denied and Defendants’ motion will be granted.


         During all times relevant to the facts of this action Plaintiff William R. Grender was incarcerated at Green Bay Correctional Institution (GBCI) in the Restrictive Housing Unit.[1] Each of the twelve defendants were employees of the Wisconsin Department of Corrections (DOC) during all times relevant to the facts of this suit. Edward Wall was Secretary of the DOC and Lori Alsum was a nursing coordinator with the DOC Bureau of Health Services in Madison. Each of the remaining defendants worked at GBCI for the relevant period. Brian Foster was the warden of GBCI; Cathy Francois was the corrections program supervisor; Ryan Bauman was a captain; Jay Van Lanen was a lieutenant; Michael Prebeg was a sergeant; Toa Chue Feng Vang, Edward Paul, and Wesley Bebo were officers; and Jean Lutsey and Kathy Lemens were nurses.

         Plaintiff was first housed in Restrictive Housing between August 23, 2013 and January 16, 2014. The record is silent as to the reason for his initial placement in Restrictive Housing. Plaintiff was placed in Restrictive Housing again from July 21, 2014 to February 6, 2015 for charging and repeatedly punching another inmate. Throughout the attack Plaintiff continued striking the victim despite orders from a correctional officer to stop, requiring officers to use force to restrain Plaintiff. Restrictive Housing is a punitive status and inmates in Restrictive Housing are subject to certain limitations as described in the GBCI Segregation handbook. While in Restrictive Housing, Plaintiff was allowed four hours of out-of-cell time per week. He could choose to use this time by having a 2-hour period of outside recreation and a 2-hour law library session, or by having two, 2-hour outside recreation sessions. Inmates may receive more recreation time through good behavior. Like all inmates in Restrictive Housing, Plaintiff ate all his meals in his cell. Pairs of officers delivered prepared meals to inmates in Restrictive Housing through traps in the cell doors.

         All cells in Restrictive Housing are single-occupant cells. The cells are austere, equipped with a sink, toilet, light, concrete bed frame, mattress, pillow, window, radio jack, medical intercom system, shower, shower stall, drain, and small shelf/desk. The drain is located on the floor in the shower stall. The shower stall shares a concrete floor with the rest of the cell so that if the drain is clogged water pools on the floor of the cell. Inmates are given one shower per week. Showers are controlled externally by prison officials on each wing and are run for a single seven minute period.

Image Omitted.

Photograph 1. Francois Dec. Ex. 1012-002, Depiction of Restrictive Housing Cell, ECF No. 51-2.

         The toilets in the cells are attached to a computerized Sloan Electronic System that regulates the number of times the toilet can be flushed over a certain period. After an inmate pushes the flush button on the toilet there is a timed delay before the toilet actually flushes. If an inmate attempts to flush the toilet three times in approximately two minutes or less the flushing system shuts down for approximately 15 minutes, at which time the system will reset and continue working. Inmates are given the opportunity to clean their own toilets once a week, with toilet brushes available upon request. The toilets are part of a stainless steel sink and toilet combination. The sink portion of the combination provides hot and cold water to inmates on demand.

         Inmates in Restrictive Housing have individual control over the lighting in their cell. Each cell’s light has two settings: high and low. If an inmate turns his light switch to “off, ” the low setting is activated. The low setting consists of a 5-watt light behind a cloudy or frosted cover. There is no way for inmates in Restrictive Housing to completely shut off their lights. As such, the cells are illuminated 24 hours a day, seven days a week. Prison officers are also equipped with flashlights that may be used to shine inside the cells to see the prisoner. The GBCI commissary sells sleep masks that inmates are allowed to use to cover their eyes at night. Though inmates are allowed to use a towel to cover their eyes to block out the light, inmates may not fully cover their faces.

         Bedding is provided to inmates in Restrictive Housing. The mattresses and pillows are made at GBCI in the Badger State Industries facility. The mattresses are made of foam and are covered with a vinyl cover. Misbehaving inmates may have their mattress removed and replaced with a black, heavy-weight and harder, security mattress. Mattresses can be removed from the bed, exposing the concrete bed frame below.

         A. Events of September 18, 2014

         September 18, 2014, was a shower day in Restrictive Housing. The parties have different versions of what happened on that day but some of the facts are uncontested. Plaintiff’s mattress, like many of the mattresses in Restrictive Housing, was quite worn. Somehow, Plaintiff’s mattress got wet during or after the showering period. Plaintiff alleges that he slipped while changing his bed and dropped his mattress into water that accumulated on the floor because of a clogged drain. Officers Vang and Paul claim that they saw no water on the floor and that they could not verify that the mattress was wet. Regardless, after the shower period Plaintiff told Vang and Paul that he had accidentally gotten his mattress wet and requested a new mattress. Plaintiff was given a towel to dry off his mattress. Defendants claim that Paul and Vang asked Sgt. Prebeg for a mattress for Plaintiff, but that Prebeg was unable to find one. The parties dispute whether Plaintiff was given a mattress by the end of Prebeg’s shift. Plaintiff alleges that he was forced to sleep on a wet mattress the night of September 18, 2014, causing him to develop a rash and irritation on the neck, back, and upper buttocks. The parties agree that Plaintiff’s mattress was replaced by September 19, 2014. The parties dispute whether Plaintiff’s mattress was replaced because it was wet or because it was worn.

         B. Plaintiff’s Complaints

         In August 2014, Plaintiff sent letters to a number of DOC officials, including Secretary Wall, requesting an investigation into the conditions of confinement in the Restrictive Housing Unit at GBCI. Among the complaints were allegations relating to the Restrictive Housing Unit’s recreation policy, 24-hour cell illumination policy, and the automated toilet flushing system. Plaintiff wrote that the 24-hour illumination causes inmates to develop migraine headaches[2] and sleep disorders. He also complained that the automated toilet systems caused cells to be filled with fecal matter resulting in an epidemic of Helicobacter pylori (H. pylori).[3] Shortly after sending these letters Plaintiff began complaining to prison medical staff that he had symptoms consistent with H. pylori. Plaintiff’s letter was forwarded to Warden Foster to prepare a response. Foster responded to Plaintiff that his concerns were noted and that he would continue to evaluate Plaintiff’s complaints and GBCI’s operations in Restrictive Housing. Plaintiff alleges that as a result of being in Restrictive Housing he suffered from stomach problems related to H. pylori, loss of weight, and loss of sleep from migraines and loud noises.

         C. Health Services Unit

         Plaintiff filed a request with the Health Services Unit (HSU) on August 27, 2014, complaining of stomach pains, stomach bloating, “gastestrial” problems, gas, and hunger. Nurse Lemens saw Plaintiff that same day. Lemens assessed Plaintiff and gave him over-the-counter medication for gassiness with instructions to return if his symptoms did not improve. Despite Plaintiff’s demands he was not tested for H. pylori that day.

         The next day, August 28, 2014, Plaintiff made a request to HSU complaining of migraine headaches and lack of sleep caused by constant illumination and loud noises. Though the nursing staff attempted to see Plaintiff that same day, Plaintiff refused to be seen. Plaintiff made a similar request to the HSU on September 2, 2014. After an assessment, Nurse Lemens gave him acetaminophen, recommending that he request an eye examination, drink more water, and return in two weeks if his symptoms did not improve.

         On September 17, 2014, Plaintiff submitted an additional request to the HSU asking to be tested by a doctor for H. pylori. The nursing staff responded that he was scheduled to see a doctor in two to three weeks. Plaintiff was seen by GBCI Physician Dr. Sauvey on September 26, 2014. Based on Plaintiff’s symptoms, Dr. Sauvey ordered a test for H. pylori. It is undisputed by the parties that to the extent Grender was having symptoms caused by H. pylori at that time, the medication Ranitidine would have helped alleviate those symptoms.

         On October 21, 2014, Plaintiff again filed a request with the HSU complaining of migraines and related symptoms. The HSU scheduled Plaintiff to see a doctor and on October 24, 2014, Plaintiff was again seen by Dr. Sauvey. During the appointment Dr. Sauvey switched Plaintiff’s H. pylori medication due to adverse side effects and informed Plaintiff of that he tested positive for H. pylori. This result did not mean that Plaintiff had an active H. pylori infection, only that he had the infection at some point. Additional testing would be needed to determine if he had an active infection. These were considered routine tests as H. pylori is not an urgent condition. Dr. Sauvey also approved Plaintiff’s acetaminophen use and ordered a follow-up. By December 17, 2014, Dr. Sauvey noted that Plaintiff’s follow-up tests were positive for H. pylori. Dr. Sauvey observed that when she was treating Plaintiff between September 2014 and January 2015, Plaintiff’s weight remained the same, around 160 pounds.

         D. Interactions ...

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