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Almond v. Pollard

United States District Court, E.D. Wisconsin

August 30, 2017

DWAYNE ALMOND, Plaintiff,
v.
WILLIAM POLLARD, DR. BAIRD, DR. ENDRES, DR. JOHNSON, DR. LUDVEGSON, N. KAMPHUIS, MR. NESBIT, WELCOME ROSE, CHARLES FACKTOR, MATTHEW FRANK, and KAREN GOURLIE, Defendants.

          DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 25) AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 73)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The plaintiff, Dwayne Almond, is a prisoner representing himself. He filed this lawsuit alleging that the defendants deprived him of mental health care for his serious mental health needs since November or December 2013, in violation of his constitutional rights. Dkt. No. 1. The plaintiff has filed a motion for summary judgment, Dkt. No. 25, as have the defendants, Dkt. No. 73. For the reasons explained in this order, the court will deny the plaintiff’s motion, grant the defendants’ motion, and dismiss the case.

         I. FACTS [1]

         A. The Parties

         The plaintiff was incarcerated at Waupun Correctional Institution (Waupun) at all times relevant to this case. Dkt. No. 76 at ¶1. He began his incarceration at Waupun on December 2, 2011. Dkt. No. 26 at ¶2.

         Defendants Paul Ludvigson, Courtney Endres, Lesley Baird and Sandra Johnston were members of the Psychological Services Unit at Waupun at all times relevant. Dkt. No. 76 at ¶¶10, 12, 14, 16. Defendant Nicole Kamphuis is the Americans with Disabilities Act (ADA) coordinator at Waupun, and defendant Greg Nesbit was the backup ADA coordinator at the relevant time. Id. at ¶¶4-5. Defendants Welcome Rose, Charles Facktor and Karen Gourlie served as corrections complaint examiners, who investigate and respond to inmate complaints. Id. at ¶¶7, 9. Defendant William Pollard is the former warden at Waupun, and defendant Matthew Frank is the former secretary of the Department of Corrections. Id. at ¶¶2, 8.

         B. Psychological Services at Waupun

         Waupun staff assign all Waupun inmates a primary clinician from the Psychological Services Unit (PSU). Id. at ¶31. At intake, staff members assess inmates and assign them one of the following mental health codes:

MH-0: No mental health needs;
MH-1: Acute or minor mental health need;
MH-2: Presence of a serious mental illness;
MH-2A: Serious mental illness such as schizophrenia or bipolar disorder; or
MH-2B: Inmate has a personality disorder that seriously impairs his functioning such that he is in need of clinical monitoring.

Id. at ¶¶20-21.

         PSU staff members see MH-0 inmates if those inmates request services or if they are imminently suicidal (in which case the clinician assigned to crisis duties for that day would see the inmate immediately). Id. at ¶24. Generally, clinicians do not see general population inmates with an MH-0 mental health rating unless such inmates submit a Psychological Services Request (PSR). Id. at ¶55. In that case, the clinician typically sees the inmate within three to six weeks, depending on that clinician’s caseload, which could vary from 100-300 inmates. Id.

         PSU staff members routinely see MH-1 and MH-2 inmates for wellness checks, and to assess their symptomatology and treatment needs. Id. at ¶26. Staff members monitor MH-1 inmates every six months while in general population, and MH-2 inmates every three months while housed in general population. Id. at ¶27.

         In the segregation unit, PSU staff conduct routine rounds every one to two weeks, during which they approach inmates’ cell fronts and speak with them to provide wellness checks and determine if the inmates need further treatment. Id. at ¶¶41, 43-44. Staff members see all inmates, regardless of mental health code, upon their arrival in segregation to assess their mental status and adjustment to segregation. Id. at ¶42.

         C. Psychological Care of the Plaintiff

         Dr. Endres was the plaintiff’s primary clinician from May 2013 to May 2014. Id. at ¶38. The plaintiff’s mental health code was MH-0 during that time. Id. at ¶39.

         Dr. Endres’ initial contact with the plaintiff occurred on May 6, 2013, when the plaintiff was in the segregation unit. Id. at ¶40. That day, the plaintiff asked Dr. Endres to transfer him to the Behavioral Health Unit, a special unit at Waupun for chronically and severely mentally ill inmates. Id. at ¶47. The plaintiff insisted that he was schizophrenic, despite any overt manifestation of psychosis or any indication of such a diagnosis in recent records. Id. at ¶48. Dr. Endres informed the plaintiff that the plaintiff did not have a mental health diagnosis and that he lacked any signs of psychosis, and that transfer to the Behavioral Health Unit would be inappropriate. Id. at ¶49.

         A week later, on May 13, 2013, Dr. Endres arrived at the plaintiff’s cell door for a brief check of mental status. Id. at ¶50. The plaintiff shouted a somewhat unintelligible statement about not wanting to speak with any “DOC people because [we] are all the same!” Id.

         The plaintiff did not request any further mental health care until November 2013, when he submitted a psychological services request (PSR) from his cell in general population. Id. at ¶51. In the PSR, the plaintiff asked “to see the (Mental – Expert – Doctor), do[sic] to hearing-voices, and seeing unknowed [sic]– people – before – me?” Id. at ¶52. Waupun staff forwarded the PSR to Dr. Endres, who responded in writing, informing the plaintiff that the plaintiff would be “put on my schedule; it will be in 4-5 weeks.” Id. at ¶¶53-54.

         In December 2013, the plaintiff transferred into segregation status. Id. at ¶56. Dr. Endres checked on him during rounds on December 16, 2013, noting that the plaintiff appeared to be sleeping. Id. at ¶57. Ten days later, on December 26, 2013, Dr. Endres checked on the plaintiff again. Id. at ¶58. The plaintiff was awake and appeared to be writing something, but he would not respond when Dr. Endres called his name and knocked on his door. Id. On January 6, 2014, Dr. Endres tried again, and the plaintiff ignored her attempts to speak with him. Id. at ¶59.

         In March 2014, the plaintiff was back in segregation, and Dr. Endres again attempted to speak with him. Id. at ¶61. When Dr. Endres approached his cell, the plaintiff shouted, “I’m busy!” and would not further acknowledge her presence. Id. On April 14, 2014, Dr. Endres tried again. Id. at ¶62. The plaintiff was awake and appeared to be doing paperwork, but would not respond to her attempts to speak with him. Id. On April 28, 2014, Dr. Endres approached the plaintiff’s cell door and the plaintiff yelled, “Get the f-k away from my door!” Id. at ¶63.

         On May 5, 2014, Dr. Endres attempted to speak to the plaintiff at his cell and received the same result. Id. That same day, the plaintiff sent a PSR to the “Supervisor of PSU,” asking for a transfer to the Wisconsin Resource Center, a facility for severely mentally ill patients, so that he could participate in a prerelease program. Id. at ¶¶64-65. Primary clinicians initiate transfers to this program, and a series of officials approves the transfers. Id. at ¶65. Officials typically permit transfers where the inmate has made efforts to participate in group or individual treatment at Waupun, and where the inmate requires additional, more intensive mental health treatment. Id. at ¶66. Officials require inmates who do not meet these specialized needs to use the pre-release services that Waupun’s social work department offers. Id. At ¶67. Consequently, Dr. Endres denied the plaintiff’s request, and suggested that he contact the social work department regarding pre-release programming. Id. at ¶68.

         On May 12, 2014, Dr. Endres tried to speak with the plaintiff, who responded by yelling obscenities at her. Id. at ¶69. When Dr. Endres explained her presence at his cell, the plaintiff began screaming at her again. Id. The following week, the plaintiff posted a sign on his door indicating that he did not wish to speak with PSU staff. Id. at ¶70. At some point after May 19, 2014, the plaintiff transferred to another PSU staff member, and Dr. Endres had no further involvement with him. Id.

         Defendant Ludvigson was not the plaintiff’s primary clinician, but he did provide the plaintiff care on an as-needed basis, and saw him during clinical rounds when his primary clinician was not available. Id. at ¶74. Ludvigson attempted to meet with the plaintiff during rounds on June 2, 2014. Id. ¶75. He noted that the plaintiff was upset because the psychiatrist had not seen him for medications. Id. During rounds on June 9, 2014, Ludvigson stopped to speak with the plaintiff at his cell front, and noted that the plaintiff wanted an appointment with the psychiatrist. Id. at ¶78. The plaintiff informed Ludvigson that he had stopped taking medication “years ago” and that he had previously taken Haldol. Id. Ludvigson advised the plaintiff to write to the psychiatrist if he wanted an appointment. Id. On June 23, 2014, during rounds, Ludvigson spoke with the plaintiff for clinical monitoring at his cell front. Id. at ¶79. The plaintiff asked Ludvigson if Ludvigson had told psychiatry that the plaintiff wanted medications, and Ludvigson told the plaintiff that Ludvigson had notified his clinician of his request for medications. Id. Ludvigson also informed the plaintiff that the plaintiff could write to Health Services Unit (HSU) for an appointment with the psychiatrist. Id.

         In mid-May of 2014, Bonnie Halper (who is not a defendant in this case) became the plaintiff’s primary clinician after Dr. Endres. Id. at ¶74. Halper saw the plaintiff on clinical rounds nine times during the remainder of 2014. Id. at ¶81.

         Halper saw the plaintiff in the group room in the segregation unit on November 5, 2014, for an individual session. Id. at ¶85. Halper noted that the plaintiff arrived calm, and was cooperative throughout their discussion about his mental health concerns. Id. The plaintiff indicated to Halper that he was sad/depressed at ¶ 7/8 on a scale of 1 to 10, and that he had experienced depression since childhood. Id. Halper noted that the plaintiff stated that he had little energy and could focus his attention for only a few moments at a time. Id. The plaintiff also felt very stressed, and could tolerate the voices (in his head) for so long, but they become unbearable and his cellmates become irritated with him because he sometimes answered the voices, making the inmates think the plaintiff was talking with them, and at times took offense. Id. The plaintiff reported that he had been treated with Thorazine and Seroquel in the community and would get daily Haldol, but there were times he was given Haldol shots. Id. The plaintiff stated that he, his father and a cousin all were diagnosed with schizophrenia (paranoid type), and asked for a referral for psychiatry for the purpose of medication consideration. Id. Halper agreed to prepare a referral. Id.

         Based on her examination, Halper found that although the plaintiff reported hearing voices, it actually might be intrusive thoughts, and she decided to conduct further assessment. Id. at ¶87. Halper diagnosed the plaintiff with Unspecified Depressive Disorder, Dysthymic Disorder, and a Hx (history) of Schizophrenia. Id. at ¶88. She made a plan to change the plaintiff’s level of mental health monitoring due to the referral for psychiatric care, and changed his mental health code to MH-1. Id. Defendant Baird reviewed and signed Halper’s Psychological Services Clinical Contact note on December 1, 2014. Id.

         On November 24, 2014, the plaintiff saw psychiatrist Todd Callister (who is not a defendant in this case). Id. at ¶90. Dr. Callister noted that the plaintiff did not present with a psychotic illness, and he did not prescribe any medication at that time. Id.

         On December 18, 2014, Halper saw the plaintiff in response to his request to be seen. Id. at ¶91. Halper noted that the plaintiff reported that he felt “more than” depressed, yet she found that his affect appeared to express anger and agitation. Id. Halper further noted that the plaintiff indicated that he felt fearful and felt afraid of the voices that told him things like “he should kill himself, drink water out of the toilet, they’ll kill you, or they’re setting you up.” Id. The plaintiff informed Halper that the hallucinations he saw involved “scary faces.” Id. The plaintiff indicated that he had some concerns about transitioning to regular GP (general population), and said that he would like to participate in pre-release treatment. Id. The plaintiff spoke about not being seen by Dr. Callister and still not having medications; Halper encouraged him to send another PSR to HSU. Id.

         Based on her exam, Halper maintained the plaintiff’s MH-1 mental health code and diagnosis of Unspecified Depressive Disorder, Dysthymic Disorder, and a history of Schizophrenia per PSU Records. Id. at ¶93. Halper noted that the plaintiff indicated that he wanted to participate in a pre-release and coping skills group, and that he agreed to complete a screen form for that group and return it to PSU. Id. Defendant Baird reviewed and signed Halper’s Psychological Services Clinical Contact note on January 5, 2015. Id.

         On January 15, 2015, Dr. Callister saw the plaintiff for a follow-up appointment, and observed that he did not believe any psychiatric treatment, including medication, was necessary. Id. at ¶94. Dr. Callister instead diagnosed the plaintiff as “malingering,” with a history of personality disorder with narcissistic and antisocial features. Id.

         The January 15, 2015 psychiatric report on the plaintiff indicated that “a review of his chart and numerous providers have come to the conclusion that the patient is malingering symptoms . . .,” and further that “he has been incarcerated since 2005 and reports from psychology staff have consistently noted an absence of any evidence of psychotic symptoms.” Id. at ¶95. The psychiatrist concluded with the diagnoses of malingering and a “history of personality disorder with narcissistic and antisocial features.” Id.

         On January 22, 2015, defendant Ludvigson attempted to meet with the plaintiff, who glared at him and said, “All you honkeys keep your honkey asses away from my door.” Id. at ¶97. Ludvigson performed a limited mental health status evaluation, and observed that the plaintiff’s mental health status was within normal limits. Id. Ludvigson then made a treatment plan, which specified that the plaintiff would be seen routinely during clinical rounds in segregation based on the clinical monitoring schedule, and as he requested. Id. at ¶98. Baird reviewed and signed Ludvigson’s plan. Id.

         Ludvigson attempted to speak with the plaintiff for clinical monitoring on April 13, 2015, after the plaintiff was placed in temporary lockup for assault. Id. at ¶99. The plaintiff refused the visit, stating, "Get the fuck away from my door with that hoe-ass shit! Sick ass fags!” Id. Ludvigson maintained the plaintiff’s MH-1 mental health code and made a plan to have him seen routinely by his clinician during clinical rounds, and as requested. Id. Ludvigson had no further involvement in the mental health care of the plaintiff after April 13, 2015. Id. at ¶100.

         PSU staff continued to try to engage the plaintiff for treatment during clinical rounds, but he refused to cooperate with staff efforts. Id. at ΒΆ101. Specifically, PSU staff members attempted to speak with the plaintiff, and were rebuffed, during clinical rounds on: January 26, 2015; February 5, 2015; February 10, 2015; February 17, 2015; February 23, 2015; April 20, 2015; April 27, 2015; May 5, 2015; May 18, 2015; May 26, 2015; June 1, 2015; June 8, ...


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