United States District Court, W.D. Wisconsin
STEVEN L. BALISTRERI, Plaintiff,
KEN KAST, AMY MASTRICOLA, and JEREMY BAILEY, Defendants.
OPINION AND ORDER
STEPHEN L. CROCKER MAGISTRATE JUDGE.
plaintiff Steven Balistreri has filed this civil rights
lawsuit alleging that while he was an inmate at Fox Lake
Correctional Institution, his Eighth Amendment rights were
violated by Correctional Sergeant Jeremy Bailey, Correctional
Officer Amy Mastricola, and Correctional Officer Ken Kast.
Specifically, Balistreri alleges that he was exposed to
unconstitutional conditions of confinement when Mastricola
and Kast did not immediately remove him from his cell after
the in-cell toilet overflowed. Balistreri also alleges that
after he slipped on the wet cell floor, Bailey delayed in
providing him with necessary medical treatment.
three defendants have filed a joint motion for summary
judgment on both claims. Because the undisputed facts show
that defendants did not violate plaintiff's
constitutional rights, I am granting their motion for summary
October 21, 2013, plaintiff Steven Balistreri was an inmate
at Fox Lake Correctional Institution (FLCI). Defendants were
staff of FLCI that were on-duty at the time of the incident:
defendant Jeremey Bailey was a correctional sergeant, and
defendants Amy Mastricola and Ken Kast were correctional
complaint, Balistreri alleges that the toilet in his cell
malfunctioned and overflowed at approximately 12:00 p.m.,
resulting in the cell being flooded with urine and fecal
matter. (Complaint (dkt. 1) ¶ 17.) Balistreri further
alleges that he told Mastricola, and his roommate told Kast,
about the situation, Id. ¶¶ 18, 21,
although neither Kast nor Mastricola recall being notified.
By 12:40 p.m., the problem had not yet been fixed, and
Balistreri says he again told Kast of the situation in the
cell. Id. ¶ 19. Kast does not recall being
notified at this time, but he does note that he was aware
that the maintenance department had been notified of the
12:40 p.m., Bailey made an entry into the log book noting
that Balistreri's cell was flooded and that maintenance
had been notified. Bailey does not recall who told him that
the cell was flooded. Bailey states that typically when a
toilet overflows, a maintenance person is sent to clean out
the trap, and the inmates in the affected cell are
temporarily moved to another cell until the affected cell can
be cleaned by an inmate janitor. However, in this instance,
defendants state there was an inmate harming himself on the
unit at the time of the overflow in Balistreri's cell.
According to defendants, responding to the other inmate
harming himself took priority over moving Balistreri to a new
alleges in his complaint that after the toilet backed up, he
slipped and fell while moving about the cell. (Complaint,
dkt. 1, at¶ 24). From Balistreri's complaint, the
closest I can pinpoint the time of his fall is after 12:40
but before 1:57 p.m. See id. at ¶¶ 19
& 26. Balistreri states that he twice informed Bailey
that he had fallen and had hurt his elbow, neck, back, and
head. Id. ¶ 25. Bailey does not recall
Balistreri telling him that he had fallen or injured himself,
but Bailey states that if Balistreri had told him that he had
fallen, then Bailey would have contacted the Health Services
Unit (HSU) so that a nurse could visit Balistreri's cell
to evaluate him. For the purposes of summary judgment, the
court must accept Balistreri's account as true. These are
Balistreri's verified allegations in his complaint:
24. Balistreri, while moving in the cell slipped and fell
into the fecal and urine water that covered the cell floor.
25. On at least two occasions, Balistreri informed Bailey
that he had fallen and hurt his elbow, neck, back and head.
Bailey stated that he had other things to tend to and would
get to Balistreri later, if he even could.
26. Shortly after speaking to Bailey, at about 1:57 p.m.,
Balistreri informed Schmidt and Butterboardt that he needed
medical attention and what had occurred for him to need the
27. Balistreri was not seen by medical staff until after 2:30
p.m., at which time the severity of his injuries was noted,
which were of a severe enough nature, he was sent to the
local emergency room.
April 20, 2015 Complaint, dkt. 1, at 2-3.
regard to Paragraph 26, Balistreri's medical records show
that Nurse Schueler actually saw Balistreri at 2:22 p.m.,
presumably after Officers Schmidt and Butterboardt (or their
colleagues) walked Balistreri to the HSU. Balistreri told
Nurse Schueler that when he fell, he hit his head on the bed
and fell onto his right elbow, which was bruised, immobile,
numb, tingling, pale, and cold. Nurse Schueler provided
Balistreri with ice and a sling, and he was transported to
the hospital at 3:20 p.m. At the hospital, the doctor took a
CT scan of Balistreri's head and cervical spine, as well
as X-rays of his lumbrosacral spine and right elbow. The
doctor determined that Balistreri had a ...