United States District Court, E.D. Wisconsin
DARYISE L. EARL, Plaintiff,
BRIAN FOSTER, et al., Defendants.
DECISION AND ORDER GRANTING DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT
WILLIAM C. GRIESBACH, CHIEF JUDGE.
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).
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.
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
served as a “bowl cook”at GBCI between October
13, 2013 and October 16, 2014.(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. (Id., ¶ 13). The
nurse also prescribed ibuprofen and crutches, which plaintiff
declined. (Id., ¶ 12).
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).
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).
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.)
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.)
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).
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, ¶
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).
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.
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).
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,
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., ¶ 74). Lieutenant Stephanie
Faltyski, the Institution ...