United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE
David Thomas (“Thomas”), a prisoner, brings this
action against several prison employees for injuries he
suffered while incarcerated at the Racine County Jail. The
Court permitted two claims to proceed beyond the screening
stage. (Docket #22); see 28 U.S.C. § 1915A.
First, Thomas claims that Defendant Christopher Schmaling
(“Schmaling”), the Racine County sheriff,
negligently failed to maintain the jail in a condition that
was reasonably safe for the inmates, in violation of the
Wisconsin safe place statute, Wis.Stat. § 101.11. In
particular, Thomas claims that Schmaling provided him with a
stool to climb in and out of the top bed bunk to which he was
assigned when Schmaling should have provided a ladder affixed
to the bed. Thomas fell while attempting to climb out of his
bunk and fractured his arm. Second, Thomas claims that
several persons on the medical staff at the jail, including
Defendants Dr. Ortiz, Does 1, 2, 3, and 5, and Correctional
Healthcare Companies, Inc. (“CHC”), showed
deliberate indifference to his serious medical needs, in
violation of the Eighth Amendment, when they denied his
requests for a lower-bunk restriction and provided belated
and inadequate medical treatment for his broken arm.
September 23, 2016, Schmaling filed a motion for summary
judgment. (Docket #59). Three days later, on September 26,
2016, CHC and Dr. Ortiz did the same. (Docket #65). On
October 31, 2016, after the deadline for responding to either
motion had expired, Thomas filed a motion for extension of
time to respond to Defendants' motions. (Docket #70). The
Court granted Thomas' motion and gave him until November
7, 2016, to file his responses. (Docket #71 at 1-2). Thomas
did not file his responses until November 9, 2016, (Docket
#72, #73, #74, and #75), but the Court will overlook the
two-day delay in light of Thomas' pro se status.
Defendants filed their replies on November 17, 2016. (Docket
#76 and #83). The Court will grant both motions.
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).
following facts are drawn from the parties' proposed
statements of fact, viewed in the light most favorable to
Thomas. The Court recounts only those facts necessary to
disposition of the motions.
the period relevant to this lawsuit, Thomas was confined at
the Racine County Jail (the “Jail”). (Docket #75
at 6 ¶ 1). Upon entering the Jail in November 2011, a
medical screening was administered wherein Thomas was asked
questions regarding his physical and mental health.
Id. at 6 ¶ 2. The medical screening report
indicates that Thomas declined to identify any physical
limitations or restricted mobility that would require
immediate accommodation. Id. at 6 ¶ 3. The
report also reflects that Thomas declined to identify any
current medical conditions. Id. at 6 ¶ 4.
However, during the screening, Thomas indicated that he had a
crushed heel and that he had two prior gunshot wounds from
2007, one of which was to his right ankle, and that he had
suffered a slipped disc in 2003. Id. at 6
alleges that a month after his initial medical screening, he
informed two other members of the jail medical staff, Doe
defendants 1 and 2, of his gunshot injuries. (Docket #19
¶ 5). He requested assignment to a lower bunk in light
of these injuries, but Does 1 and 2 denied the request for
reasons not explained in the record. Id.
was assigned to an upper bed bunk in his cell at the Jail. In
April 2012, Thomas filed a written request for assignment to
a lower bunk, arguing that his crushed heel made it difficult
for him to climb in and out of bed. (Docket #75 at 7 ¶
There is no record of the response to the request, though the
Court assumes it was either ignored or denied. See
Id. Schmaling asserts that no record in Thomas'
medical file shows that any medical staff deemed it medically
necessary for him to be placed in a lower bunk. Id.
at 7 ¶ 5. Thomas, on the other hand, believes that his
reported crushed heel, gunshot wounds, and prior slipped
disc, in combination with his April 2012 request for a lower
bunk assignment, sufficed to put Schmaling on notice that
Thomas needed a lower bunk assignment. See id.
September 7, 2012, Thomas fell while attempting to climb down
from his bunk. Id. at 7 ¶ 7. Thomas completed a
medical request form at around 4:00 p.m. that day referencing
the incident and stating that he twisted his wrist and was in
a lot of pain. Id. at 3 ¶ 12. Thomas was
assessed by Doe Defendant 3, a nurse practitioner, at
approximately 6:00 p.m. that same day. Id. at 3
¶ 13; see (Docket #19 ¶¶ 8-10). Doe 3
noted that Thomas had chronic pain in the same arm due to a
2007 gunshot wound, and that he reported falling out of the
bunk and landing on his forearm. (Docket #75 at 3 ¶ 14).
Doe 3 further noted that “[n]o deformity or swelling
noticed. Able to move arm, bend elbow. Wrist movements
painful and restricted.” Id. Finally, Doe 3
observed that Thomas' vital signs were normal.
Id. Doe 3 wrote that Thomas should receive ibuprofen
800 mg bi-daily for fifteen days, and Thomas was provided a
left forearm brace to wear for one month. Id. at 3
¶ 15. Her notes reflect that she offered Thomas to be
moved to a low bunk and that he declined because he was
“alright” and didn't want a different
cellmate. Id. Thomas, however, avers that he orally
requested a lower bunk assignment and merely suggested that
he wanted to stay in his current cell because he liked his
cellmate. Id. For purposes of the present motions,
the Court credits Thomas' version of this exchange.
was assessed again by Doe 3 on September 10, 2012.
Id. at 3 ¶ 16. She noted that Thomas
“continues to have pain and the forearm is slightly
swollen now.” Id. She ordered an x-ray of
Thomas's left forearm. Id. The x-ray was taken
the next day. Id. at 3 ¶ 17. The x-ray was
interpreted by Doe 5, a radiologist, whom Defendants identify
as Dr. Elliot Wagner. Id.; see (Docket #19
¶ 11). Doe 5 observed that Thomas had an “acute
fracture of the mid-radius with no displacement. No
displacement [was] seen. The visualized elbow and wrist
[were] normal.” (Docket #75 at 3 ¶ 17).
Ortiz was employed by CHC to provide on-site healthcare to
inmates at the Jail. Id. at 2 ¶ 9. He avers
that a non-displaced fracture is a fracture in which the bone
breaks fully or partially, but still moves, maintains the
correct alignment, and does not protrude from the skin.
Id. at 4 ¶ 18. Thomas disagrees, stating that
“[j]ust because the radius was not displaced at the
time of the x-ray does not mean the radius maintained the
correct alignment at all times.” Id. He
further avers that he “felt pain when he moved his
wrist even the slightest amount because the radius was
Ortiz was consulted by telephone approximately forty minutes
after the x-ray results were received and he gave a verbal
order for Thomas to be referred to an orthopaedic specialist
for treatment. Id. at 4 ¶ 19. Thomas was taken
to an orthopaedic doctor at Wheaton Franciscan Hospital on
September 14, 2012, where his arm was placed in a cast.
Id. at 4 ¶ 20. Thomas underwent a follow-up
appointment at the hospital on October 1, 2012. Id.
at 4 ¶ 21. The findings and orders from that follow-up
appointment are not indicated in the record.
Ortiz opined that he is not responsible for making outside
medical appointments for inmates. Id. at 4 ¶
22. Instead, that duty is shared by healthcare and
correctional staff. Id. Thomas, by contrast,
contends that Dr. Ortiz “had a professional
responsibility to insure that Thomas received immediate
medical treatment for the radius being fractured and the
x-rays” and that Dr. Ortiz “should have ordered
Thomas to be taken to the hospital immediately to have the
arm put in a cast.” Id. In Thomas' view,
“[a]llowing 3 more days to elapse before treatment of
Thomas' fractured radius was improper, ”
particularly considering that there was a total of seven
days' time from fracture to hospital treatment.
Id. Thomas avers that CHC has a policy or custom
that nurse practitioners or doctors are not required to order
immediate treatment of broken bones and instead allow a
three-day delay between diagnosis and treatment and a
seven-day delay between actual injury and treatment. (Docket
#74 ¶ 48).
weeks after his fall, on September 20, 2012, Thomas filed an
inmate complaint relating to his injury. (Docket #75 at 8
¶ 13). He stated, in relevant part, that he “[has]
a crushed heel bone, ” that he “was denied a low
bunk, ” that he fell getting out of bed when
“[t]he stool moved and my hand slipped, ” and
that he broke his wrist when he fell. Id. He
received no response to this complaint. Id. He filed
a second complaint, which he calls his “appeal”
of the first complaint, on October 8, 2012. Id.
There, he argues for the first time that he should have been
provided a ladder to get in and out of bed rather than a
filed a request for medical attention on November 25, 2012,
asking that he be assigned a lower bunk because of his
crushed heel and his recently broken wrist. Id. at
10 ¶ 17. The request was denied for unspecified reasons.
Id. at 10 ¶ 18. Thomas made a similar request
on December 10, 2012, and this time the request was granted.
Id. at 10 ¶¶ 19-20. In this request,
Thomas attributed his September 7, 2012 fall to the fact that
his crushed heel caused his foot to fall asleep during the
night and that, in turn, caused him to slip as he was
climbing down from bed that day. See id.
than Thomas' claims asserted in this case, there are no
known reports of inmates housed at the Jail who claimed,
prior to September 7, 2012, that they fell while climbing to
or dismounting from the top bunk and that the fall was
attributable to the negligent or defective design of the
jail. Id. at 11 ¶ 22. The Jail undergoes yearly
inspections by the Wisconsin Department of Corrections.
Id. at 11 ¶ 23. There is no known record from
the Wisconsin Department of Corrections or any other
authority indicating that the configuration and design of the
housing unit in which Thomas was housed on September 7, 2012,
was unsafe before or after that date, nor is there a record
indicating that it was necessary-before or after September 7,
2012-to provide an affixed or designated ladder to alleviate
risks associated with an inmate's climb to the top bunk.
Id. at 11 ¶¶ 24-25. Despite this, Thomas
claims that Schmaling knew of the problem inmates faced in
climbing in and out of their bunks with unstable stools as
opposed to fixed ladders. (Docket #74 ¶ 28). Thomas
believes that “just because [records] do not exist does
not necessarily mean that falls did not occur.” (Docket
#75 at 11 ¶ 22).
judgment is appropriate in favor of Schmaling, Dr. Ortiz, and
CHC. Schmaling is immune from Thomas' claim of
negligence, while Thomas fails to marshal any competent
evidence that Dr. Ortiz and CHC provided constitutionally
inadequate medical care. As to the Doe defendants, however,
the Court will give Thomas one final chance to identify these
individuals before it will dismiss Thomas' claims without
prejudice for failure to ...