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Ards v. De La Vega

United States District Court, E.D. Wisconsin

November 16, 2016

TYRONE D. ARDS, Plaintiff,




         Plaintiff Tyrone Ards (“Ards”), a prisoner, brings this action against several prison officials pursuant to 42 U.S.C. § 1983. The Court permitted two claims to proceed past the screening stage. (Docket #9); see 28 U.S.C. § 1915A. First, Ards alleges that Defendant Christopher De La Vega (“De La Vega”) violated the Eighth Amendment prohibition on the use of excessive force after he slammed Ards' finger in the trap door of his cell. Second, Ards claims that Defendants Travis Brady (“Brady”) and Lora Blasius (“Blasius”) showed deliberate indifference to his serious medical needs, in violation of the Eighth Amendment, when they decided to leave sutures in his injured finger for too long and refused his requests for narcotic pain medication.

         On August 1, 2016, Defendants filed a motion for summary judgment as to both of Ards' claims. (Docket #33). On August 23, 2016, Plaintiff timely filed a response to the motion. (Docket #44).[1] On September 7, 2016, Defendants replied. (Docket #58). The motion is fully briefed and, for the reasons explained below, it will be granted in part and denied in part.


         Federal Rule of Civil Procedure 56 provides that 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 Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh the evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). The party opposing summary judgment “need not match the movant witness for witness, nor persuade the court that [his] case is convincing, [he] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact.” Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).

         3. RELEVANT FACTS

         Ards is currently incarcerated at Columbia Correctional Institution (“Columbia”). (Defendants' Reply to Plaintiff's Response to Defendants' Proposed Findings of Fact (“DFOF”), Docket #60, ¶ 1).[2] At all times relevant to this litigation, he was incarcerated at Racine Correctional Institution (“Racine”). Id. Defendant Christopher De La Vega has been employed as a correctional officer at Racine since January 13, 2014. Id. ¶ 2.[3] Defendant Lora Blasius is a nurse practitioner in the Health Services Unit at Racine and has been since 2011. Id. ¶ 3; (Defendants' Response to Plaintiff's Proposed Findings of Fact (“PFOF”), Docket #59, ¶ 3).[4] Defendant Travis Brady has been employed as a nurse at Racine since November 2007. DFOF ¶ 4.

         3.1Excessive Force Claim

         On December 7, 2014, De La Vega was assigned to the lower Waukesha West segregation unit where Ards was housed. Id. ¶ 8. Prior to December 7, 2014, De La Vega had never had a negative interaction with Ards. Id. ¶ 10. At approximately 5:20 p.m., after picking up dinner trays, De La Vega was returning to the segregation control unit, commonly referred to as the “bubble.” Id. ¶ 11. Ards asked De La Vega, while on his way to the bubble, if he would bring him his antacid medication. Id. ¶ 12. De La Vega told Ards that he would check with his superior on duty, Sergeant Springtube, to confirm that Ards should receive antacid medication. Id.

         After confirming that Ards was to receive antacid medication, De La Vega brought the medication bottle to Ards' cell. Id. ¶ 13. De La Vega opened the upper trap of Ards' cell door and attempted to dispense the medication into Ards' hand from the bottle. Id. ¶ 20. Ards directed De La Vega to give him four tablets, and De La Vega agreed to do so because the request did not significantly exceed the daily recommended dose. Id. ¶ 21.[5]

         At this point, the parties' versions of events diverge. Defendants themselves acknowledge this, stating that“[t]here is a dispute of fact as to the sequence of events that occurred leading up to Ards' finger being closed into the trap door.” PFOF ¶ 14. According to De La Vega, as he was attempting to pour the tablets into Ards' outstretched hand, Ards grabbed De La Vega's right hand, which was holding the bottle, and attempted to pull De La Vega's hand and the bottle into his cell, saying in a loud and aggressive tone, “Fuck that! Give me that shit right now!” DFOF ¶ 22. Ards and De La Vega struggled for a few seconds before De La Vega was able to free his hand from Ards' grip. Id. ¶ 23. Ards then returned his hands inside his cell, saying, “Yea mother fucker.” Id.

         When Ards moved his hands back inside his cell, De La Vega “bladed” his body by positioning himself at a diagonal to the cell door rather than standing directly in front of it. Id. ¶ 24. De La Vega claims that he wanted to keep a safe distance from Ards to avoid further physical contact. Id. ¶ 25. Next, De La Vega, standing to the side of Ards' cell door, positioned his right foot under the flap of the hinged cell trap door. Id. ¶ 26. Once the trap was in the ready position to be closed, De La Vega lifted his foot to provide sufficient momentum that the trap would latch securely when it made contact with the locking mechanism. Id. ¶ 27.

         According to De La Vega, as the trap door was already in motion to close, Ards stuck his fingers out of the trap near the lock mechanism and his hand was caught in the closing door. Id. ¶ 28. De La Vega asked Ards if he was ok, but Ards did not respond. Id. ¶ 29. De La Vega immediately notified Sergeant Springtube of what had happened, who then notified his superior, Captain Serrano. Id. The Health Services Unit was also notified. Id. ¶ 30. Ards was first seen by Defendant Brady and then sent to the Wheaton Franciscan Hospital (“Wheaton”) emergency room for treatment. Id.

         Ards' account differs significantly from De La Vega's. Ards claims that De La Vega tried to dump the antacid pills into Ards' hand and then, seemingly inexplicably, De La Vega “dumped [sic] back and kicked the trap door while [Ards] was trying to get his medication.” Id.; (Declaration of Tyrone Ards, Docket #51, ¶ 12).[6] According to Ards, he never touched De La Vega's hand or the medication bottle, nor did he “become loud” or exclaim as De La Vega contends. DFOF ¶¶ 22-23; (Plaintiff's Declaration in Opposition to Christopher De La Vega's Declaration (“Pl. Decl. Opp. De La Vega”), Docket #47, ¶¶ 15-17). Additionally, Ards indicates that he did not pull his hand back inside the trap door until after Sergeant Springtube arrived. DFOF ¶ 24; Pl. Decl. Opp. De La Vega ¶¶ 17-18. Further, Ards contends that there was a large window in the side of his cell and, through the window, he observed that De La Vega never bladed himself in relation to the cell door. Pl. Decl. Opp. De La Vega ¶¶ 18-20. Ards appears to contend that his hand was outstretched through the door to receive the medication during the entire encounter with De La Vega, and that De La Vega knew this because he never bladed himself in relation to the door, thereby discrediting De La Vega's assertion that he did not know that his kick to the trap door would catch Ards' hand. See DFOF ¶¶ 27-28; Pl. Decl. Opp. De La Vega ¶¶ 15-22. In short, then, Ards believes that De La Vega purposefully kicked shut the trap door with Ards' hand in the way. (Declaration of Tyrone Ards, Docket #51, ¶ 12).[7]

         Ards further asserts that rather than inquire whether Ards was injured, De La Vega simply walked away from Ards' cell after the trap door shut on his hand. DFOF ¶ 29; (Declaration of Tyrone Ards, Docket #51, ¶ 13). Ards claims that when Sergeant Springtube came out of the bubble, he spoke with Ards and “was able to gain complies [sic] by having Ards place his hand in the trap without further problems.” PFOF ¶ 18. Sergeant Springtube then notified Captain Serrano, who called Defendant Brady. Id. ¶¶ 19-20. Brady arrived, evaluated Ards' injury, and then sent him to Wheaton for further treatment. Id. ¶¶ 21-22.

         De La Vega prepared an incident report relating to the events of December 7, 2014, which was ultimately reviewed by the prison security director, Jason Aldana (“Aldana”). DFOF ¶ 31. Aldana concluded that De La Vega did not intentionally injure Ards and that he properly responded when he saw Ards was injured. Id. ¶ 32. An Inmate Complaint Examiner reviewed De La Vega's report and Aldana's findings. Id. ¶ 33. She also determined that there was no unlawful use of force against Ards. Id.

         3.2Deliberate Indifference Claim

         As noted above, Brady saw Ards in the Health Services Unit on December 7, 2014, after Ards' finger was injured. Id. ¶ 35. Brady consulted with the on-call physician, who determined that Ards should be taken to the emergency room for treatment. Id. Ards was taken to Wheaton on that same day and diagnosed with a laceration to his right hand and an open fracture and nail injury to his right index finger. Id. Ards received sutures at the emergency room for these injuries. Id. ¶ 37.

         3.2.1 Suture Removal

         In Ards' discharge instructions, the emergency room physician noted that the sutures should be removed in seven days. Id. ¶ 38. Ards was also prescribed Vicodin for pain and an antibiotic. Id. Ards received his antibiotic from December 9, 2014, through December 21, 2014. Id. ¶ 39. Ards received follow-up care both on-site at Racine by Health Services Unit staff and off-site by outside medical providers. Id. ¶ 40.

         On December 9, 2014, Dr. Michael Birndorf, an orthopedic hand surgeon associated with Wheaton Franciscan Medical Group, saw Ards for a scheduled follow-up appointment. Id. ¶ 41. Dr. Birndorf scheduled another follow-up appointment for approximately two weeks later and planned to remove Ards' sutures at that time. Id. ¶ 42. The follow-up appointment never occurred. PFOF ¶ 32.

         On December 15, 2014, Ards submitted a Health Service Request indicating that “the top of my finger by the nail part is turning a whitish green.” DFOF ¶ 43. The next day, on December 16, 2014, Ards was seen by a Health Services Unit nurse, Mark Weber (“Weber”). Id. ¶ 44. Weber noted a low-grade fever and high heart rate. Id. ¶ 45. Based on that information, coupled with Ards' report of finger discoloration, Weber sent Ards to the Wheaton emergency room. Id. That same day, after arriving at the hospital, Ards was seen by seen by Jill Wanggaard, an advanced practice nurse prescriber. Id. ¶ 46. She observed the following: “Finger injury appears to be healing. No drainage noted at this visit. Patient was uncooperative and would not let me touch the finger. I do not appreciate any unusual color change other than bruising to the finger. Patient is…moving the finger well.” Id. Additionally, x-rays were taken that showed no signs of infection. Id. Similarly, on December 17, 2014, Ards saw Brady in the prison for a follow-up appointment. Id. ¶ 47. Brady wrote in his notes that Ards' fingertip was a normal color and that he had no discharge from the wound. Id. The injury was wrapped in gauze and the splint was replaced. Id.

         Two days later, on December 19, 2014, Blasius instructed nurse Kim Ewatter that, consistent with Dr. Birndorf's December 9, 2014 order, Ards' sutures could be removed 10-14 days after the injury. Id. As part of the nursing staff, Blasius and Brady must defer to the treatment decisions of Ards' treating physicians, including Dr. Birndorf. Id. ¶ 49. The timing of suture removal varies with the anatomic site. Id. ¶ 50. Sutures in the hands and feet are typically removed in 10-14 days. Id. According to Ards' medical records, Brady removed Ards' sutures on December 22, 2014, fifteen days after the initial injury, without problems. Id. ¶ 51. At the time the sutures were removed, Brady noted “no sign or symptom [of] infection, ” although Ards indicated that his finger was still in pain. Id. ¶ 52.

         Ards attempts to dispute Blasius' decision to follow Dr. Birndorf's order rather than the discharge order of the Wheaton emergency room physician. Id. ¶ 50. Ards claims that Blasius should have deferred to the orders of the doctor who applied the sutures-the emergency room doctor-and not Dr. Birndorf. Id. Ards produced no medical expert testimony or reports, or any other ...

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