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Peace v. Larson

United States District Court, E.D. Wisconsin

August 31, 2017



          HON. PAMELA PEPPER, United States District Judge

         The court allowed plaintiff Daniel Anthony Peace, a state prisoner, to proceed on claims under 42 U.S.C. §1983 that the defendants were deliberately indifferent to his chronic headaches when they did not allow him to keep his medication in his cell while he was on temporary lock up (TLU) status at Waupun Correctional Institution (Waupun) in October 2014. Dkt. No. 17.

         On June 15, 2016, the plaintiff filed a motion for partial summary judgment. Dkt. Nos. 28-31. About two weeks later-on June 27, 2016-the defendants filed a combined motion for summary judgment and response to the plaintiff's motion for partial summary judgment. Dkt. Nos. 32-38. The court received the plaintiff's reply materials and his response to the defendants' motion for summary judgment on August 1, 2016. Dkt. Nos. 43-48. Two weeks later, the defendants filed reply materials, which included additional proposed findings of fact. Dkt. Nos. 51-56. The plaintiff responded to those newly raised issues. Dkt. Nos. 57-59. For the reasons stated below, the court will deny the plaintiff's motion, grant the defendants' motion, and dismiss the case.


         The court takes the facts from the parties' submissions regarding their proposed findings of fact, including “Plaintiff's Proposed Findings of Fact” dkt. no. 30; “Defendants' Proposed Findings of Fact, ” dkt. no. 34; “Plaintiff's and Defendants' Undisputed Facts, ” dkt. no. 44; “Plaintiff's Additional Proposed Findings of Facts, ” dkt. no. 45; and “Defendants' Additional Proposed Findings of Fact, ” dkt. no. 54. The court also has considered the parties' responses and replies regarding these findings of fact. Dkts. Nos. 35, 46, 52, 53 and 59.

         A. Parties

         Plaintiff Daniel Anthony Peace is a state prisoner who was housed at Waupun in September and October of 2014. Dkt. No. 34 at ¶11. Waupun is a maximum security prison; it houses inmates who have committed serious crimes or have a history of violent behavior. Dkt. No. 34 at ¶2.

         Defendant Amy Radcliffe is a licensed registered nurse, who from 2011 until December 2014 was employed by the Wisconsin Department of Corrections (DOC) as a Nurse Clinician 2 at Waupun. Dkt. No. 34 at ¶¶7-9.

         At all times relevant to the plaintiff's claims, defendant Donna Larson was the Acting Health Services Unit (HSU) Manager at Waupun. Id. at ¶10. Her duties included management and supervision of health care services, monitoring care plans, and monitoring nursing practice documentation in medical records. Id. She did not provide direct patient care to inmates at Waupun. Id. at ¶23.

         From 2012 until 2016, defendant Brian Greff was employed at Waupun as a Corrections Program Supervisor. Id. at ¶4. In that capacity, he coordinated and supervised programs for specialized housing units. Id. at ¶3.

         B. Plaintiff's History of Headaches

         When the plaintiff was a child, he was struck by an automobile, and ended up as a patient at Froedtert Memorial Lutheran Hospital. Dkt. No. 30 at ¶1. He had an abrasion-contusion with significant soft tissue swelling to the mid-forehead. Id. He had operations on his right frontal skull; the medical team sutured his chin, lower lip and nose; and he had rehab at Children's Hospital. Id.

         At a later age, the plaintiff was struck by a car while riding his bike home from work. Id. at ¶2. He lost consciousness, and his pelvis bone was broken. Id. For this accident, he was a patient at St. Joseph Hospital in Milwaukee for a while, then received outpatient rehab from St. Joseph Clinic. Id.

         Several years later, the plaintiff was shot in the head while driving his car. Id. at ¶3. He had two wounds in his front mid-forehead, and he injured his left hip and thigh. Id. He was treated at Froedtert, and began suffering from chronic migraines. Id. at ¶¶3-4. The plaintiff used marijuana and over-the- counter pain medication to treat the migraines and chronic headaches. Id. at ¶¶4, 7.

         On March 1, 2005, the plaintiff was taken into custody for an unrelated body warrant. Id. at ¶5. Three ten-dollar bags of marijuana were found on him, which he was using to control his chronic migraines. Id. The plaintiff was charged with possession of a controlled substance; he pled to a misdemeanor. Id. Between 2007 and 2009, the plaintiff was incarcerated; he was released to probation on March 3, 2009. Id. at ¶6. The plaintiff was taken back into custody in Milwaukee County for parole violations on October 31, 2009, and has been incarcerated ever since. Id. at ¶¶7-8. When he was taken into custody, the Milwaukee County Sheriff's Department and the Department of Community Corrections recovered thirty-three bags of marijuana, and the plaintiff was charged with possession with intent to deliver a controlled substance. Id. at ¶7.

         On March 29, 2014, while he was incarcerated at the Sturtevant Transitional Facility, the plaintiff was taken to Wheaton Franciscan Hospital in Racine when he suffered a migraine headache after his forehead hit a wall. Id. at ¶9; Dkt. No. 34 at ¶25. In his discharge instructions, the physician's assistant at the hospital suggested that the plaintiff take a combination of Acetaminophen, Benadryl and Naproxen for migraines, and that he take Acetaminophen alone for headaches, as needed. Dkt. No. 30 at ¶9.

         When patients are sent to outside providers, recommendations from those providers are considered recommendations to the DOC providers. Id. at ¶26. The DOC providers need to fit those recommendations to DOC and Bureau of Health Services (BHS) policies and procedures, formulary and guidelines. Id.

         Between March and October 2014, the plaintiff was prescribed various medications to treat his headaches, asthma and other ailments. Id. at ¶27. His primary care providers ordered, changed and renewed his medications throughout this time. Id. This included treatment the plaintiff received at Sturtevant Transitional Facility, Racine Correctional Institution, the Milwaukee County Jail and Waupun. Dkt. No. 30 at ¶¶10-12.

         At Waupun, the plaintiff wrote to HSU about his migraines, and Dr. Jeffry Manlove, M.D. prescribed Metoprolol 25 mg. twice a day. Id. at ¶13.

         C. Restrictive Housing Unit

         On September 30, 2014, the plaintiff was placed on Temporary Lock Up (TLU) status while being investigated for sexual misconduct. Dkt. No. 34 at ¶11. While on TLU status, he was housed in the Restrictive Housing Unit (RHU) at Waupun, formerly known as “segregation.” Id. He remained in the RHU until October 22, 2014. Id.

         TLU status is a non-punitive status that allows an inmate to be separated from the general population pending further investigation or administrative action. Id. at ¶12. TLU is not considered a punitive housing status, despite the location of TLU housing in the RHU. Id.

         The RHU at Waupun is separated into three wings, or “ranges:” A, B and C. Id. ¶13. The inmates in the RHU are subject to additional rules and policies. Id. While on TLU status in the RHU, the plaintiff was housed on B range in cell B-208. Id. at ¶14.

         The RHU handbook, which became effective August 31, 2010, contains a policy on page 11 regarding the delivery of medication. Id. at ¶15. A and B wings in the RHU were “Control All Medication Wings, ” which means staff members distributed all oral medications to the individual inmate's cell. Id. at ¶16. Inmates were not allowed to possess non-control medications in their cells. Id. The rule restricting access to non-control medications was in place to eliminate the possibility of medication transfer or abuse, particularly by ...

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