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Earl v. Foster

United States District Court, E.D. Wisconsin

May 26, 2017

DARYISE L. EARL, Plaintiff,
BRIAN FOSTER, et al., Defendants.



         Plaintiff Daryise L. Earl, a Wisconsin state prisoner who is representing himself, filed a civil rights action under 42 U.S.C. § 1983, alleging that defendants violated his First and Eighth Amendment rights at the Green Bay Correctional Institution (“GBCI”). (ECF No. 15). On August 4, 2015, Judge Rudolph T. Randa, who was assigned to the case at the time, screened the complaint and allowed plaintiff to proceed on the following claims: (1) First Amendment retaliation against defendants Dave Brooks, Stephanie Faltyski, and John/Jane Does; (2) Eighth Amendment deliberate indifference against defendants Michael Helmeid, Richard Karl, and John/Jane Does; and (3) failure to intervene against defendant Brian Foster. (ECF No. 22). Through discovery, plaintiff identified Mary Alsteen as one of the Jane Does in the Eighth Amendment claim and he added her as a defendant on June 3, 2016. (ECF No. 83).

         This matter is before me on defendants' motion for summary judgment. (ECF No. 109). For the reasons below, I will grant defendants' motion and will dismiss the case.


         At the time relevant to this matter, plaintiff was an inmate at GBCI. (ECF No. 111, ¶ 1). Defendants were Department of Corrections employees who worked at GBCI: Brian Foster was Warden (id., ¶ 4); Dave Brooks was Food Service Manager (id., ¶ 3); Michael Helmeid was Lieutenant (id., ¶ 5); Stephanie Faltyski was Lieutenant (id., ¶ 2); Richard Karl was Kitchen Supervisor (id., ¶ 6); and Mary Alsteen was a nurse (id., ¶ 124). The material facts are not in dispute.

         Plaintiff served as a “bowl cook”at GBCI between October 13, 2013 and October 16, 2014.[2](Id., ¶ 50). On September 25, 2014, plaintiff injured his knee when he slipped and fell while working in the main kitchen. (ECF No. 124, ¶ 1). He went to the Health Services Unit (“HSU”) and a nurse examined his knee. (ECF No. 111, ¶ 12). The nurse issued a Special Needs/Medical Restriction form (“medical restriction”) and allowed plaintiff to have medical ice four times a day, an extra pillow, and “no work” between September 25, 2014 and September 29, 2014.[3] (Id., ¶ 13). The nurse also prescribed ibuprofen and crutches, which plaintiff declined. (Id., ¶ 12).

         Two days later, on September 27, 2014, plaintiff told Lieutenant Michael Helmeid that prison staff failed to give him medical ice four times a day (he only received regular ice twice a day) and he did not receive an extra pillow. (ECF No. 15, ¶ 10). Helmeid does not specifically recall plaintiff voicing a complaint about the failure to receive prescribed medical treatment but both parties agree that Helmeid listened to his problem, engaged him in conversation, and plaintiff believed that Helmeid would solve the problem after he left. (Helmeid Dec., ECF No. 71, ¶¶ 12-13; see also Earl Depo., ECF No. 113 at 44:8-46:6).

         Two days later, on September 29, 2014, plaintiff's medical restriction ended and plaintiff went to HSU for a follow-up appointment. (ECF No. 111, ¶ 16). A nurse noted that plaintiff's knee was improving but was still swollen, and she ordered a medical restriction for “no work, ” “meals on unit, ” and an ace wrap from September 29, 2014 to October 2, 2014. (Id.) Plaintiff also told the nurse that he didn't like taking pills and was not taking ibuprofen. (ECF No. 124, ¶ 3).

         Plaintiff's second medical restriction ended on October 2, 2014, and plaintiff went to HSU for another follow-up appointment with nurse Katie Brueker. (ECF No. 124, ¶ 4). Brueker diagnosed plaintiff's knee injury as a “sprain” and she stressed the need for plaintiff to take medication to reduce swelling; she prescribed Naproxen. (ECF No. 111, ¶ 17). Brueker also referred plaintiff to physical therapy and extended plaintiff's medical restriction for “no work” until October 13, 2014. (Id.)

         On October 7, 2014, plaintiff wrote to the Inmate Complaint Examiner (“ICE”) regarding the condition of inmate work boots (they lacked traction), which according to plaintiff, had caused him to slip and fall on September 25, 2014. (ECF No. 15, ¶ 13). ICE Alan DeGroot wrote back the next day stating that plaintiff would have to discuss the problem with Captain Gavin before he could accept plaintiff's inmate complaint. (Id.)

         On October 8, 2014, plaintiff filed offender complaint GBCI-2014-19771 alleging that prison staff only gave him ice twice a day and did not give him an extra pillow. (ECF No. 111, ¶ 97). ICE Jodene Perttu contacted North Cell Hall and spoke to an individual who stated that a memo had recently gone out instructing staff that ice could only be delivered twice a day, per prison policy. (Id., ¶ 98). This individual also stated that there was a shortage of pillows in the unit. (Id., ¶¶ 46-48, 98). Each bed required one pillow, and there were only enough pillows for one pillow per bed. (Id.) Thus, it was possible that plaintiff had not received an additional pillow. (Id., ¶ 98).

         Based on the conversation above, Perttu concluded that there was a misunderstanding on the prison policy regarding ice. (ECF No. 69-2). Perttu wrote “if there was a need for ice more than twice/day, a medical restriction is written, and the inmate should receive ice as scheduled twice a day and two more times in addition to that.” (Id.) Perttu recommended affirming plaintiff's complaint with instructions to prison staff to fix the problem; Warden Brian Foster affirmed the recommendation. (ECF No. 111, ¶ 100).

         On October 9, 2014, plaintiff wrote to Foster explaining that nurses were not qualified to diagnose his injury as a “sprain.” (ECF No. 124, ¶ 20.) The next day, on October 10, 2014, plaintiff saw a physical therapist. (ECF No. 15, ¶ 15). According to plaintiff, the therapist believed that plaintiff may have torn a ligament in his knee. (Id.) The therapist ordered an MRI, which was approved on October 14, 2014. (ECF No. 111, ¶ 19).

         On October 13, 2014, the plaintiff's third medical restriction ended, and plaintiff received a kitchen schedule with instructions to report to work the following day. (ECF No. 124, ¶ 5). Plaintiff spoke with Correctional Officer Ritchie and told him that he was still in pain and could not work the following day. (Id. ¶ 7; ECF No. 111, ¶ 124). Ritchie called HSU and spoke with Nurse Mary Alsteen, who confirmed that there were no pending work restrictions on plaintiff. (ECF No. 111, ¶ 124). Ritchie told plaintiff to report to work the next day and to put in a “blue slip” if he wanted medical attention. (ECF No. 15, ¶ 17). Plaintiff wrote to Foster that same day stating HSU had allowed his “no work” restriction to expire, which would force him to work the next day with an injured knee. (ECF No. 124, ¶ 21). Plaintiff sent a similar letter to HSU that same day. (ECF No. 111, ¶ 20). Foster and HSU responded to plaintiff's letters in the following weeks.[4]

         The following day, October 14, 2014, plaintiff reported to work. (ECF No. 124, ¶¶ 13-15). According to Food Services Manager Dave Brooks, plaintiff appeared fit to work. (ECF No. 111, ¶ 59). Plaintiff concedes that he was walking without crutches or the assistance of other inmates. (Id., ¶ 122). Plaintiff spoke with Kitchen Supervisor Richard Karl and showed Karl his “enlarged and deformed knee.” (ECF No. 124, ¶ 13). Karl called HSU and confirmed that there were no pending work restrictions on plaintiff. (ECF No. 111, ¶¶ 54-55). Karl then ordered plaintiff to work and threatened to issue a conduct report if he did not. (ECF No. 15, ¶ 20; ECF No. 124, ¶¶ 7-8, 13). Inmates Kraig Carter and Demetrius McGee offered to cover plaintiff's shift, but Karl said “no” because plaintiff was “faking.” (ECF No. 121-1 at 11 and 33). After an “extremely hostile confrontation, ” Karl allowed plaintiff to take “sick-cell” after completing the three-hour breakfast shift. (ECF No. 15, ¶ 21).

         Later that day, on October 14, 2014, plaintiff received a medical pass to see the physical therapist. (Id., ¶ 22). The therapist “reiterated the previous conclusion” that plaintiff had torn a ligament in his knee, and he spoke with a doctor who ordered a “no work” medical restriction for six weeks, until November 25, 2014. (ECF No. 15, ¶¶ 22-23; ECF No. 111, ¶ 33).[5]

         After plaintiff received the six-week “no work” medical restriction, Brooks recommended removing plaintiff from his job as a bowl cook so that the kitchen could fill the position to meet its institutional and operational needs. (ECF No. 111, ¶ 73). Plaintiff had already been out of work for three weeks, and other bowl cooks who had been covering his position were not getting their scheduled days off. (Id., ΒΆ 74). Lieutenant Stephanie Faltyski, the Institution ...

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