United States District Court, E.D. Wisconsin
TYRONE D. ARDS, Plaintiff,
CHRISTOPHER DE LA VEGA, TRAVIS BRADY, and LORA BLASIUS, Defendants.
STADTMUELLER U.S. DISTRICT JUDGE
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
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). 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.
STANDARD OF REVIEW
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).
currently incarcerated at Columbia Correctional Institution
(“Columbia”). (Defendants' Reply to
Plaintiff's Response to Defendants' Proposed Findings
of Fact (“DFOF”), Docket #60, ¶
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. 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). Defendant Travis
Brady has been employed as a nurse at Racine since November
2007. DFOF ¶ 4.
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.
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.
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.
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.
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.
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, ¶
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, ¶
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.
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
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.
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.
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.
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.
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.
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 ...