United States District Court, E.D. Wisconsin
ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL
SUMMARY JUDGMENT (DKT. NO. 28), GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT (DOC. 32), AND DISMISSING
PAMELA PEPPER, United States District Judge
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.
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.
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
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.
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.
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.
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.
Plaintiff's History of Headaches
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.
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.
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.
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
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.
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
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.
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.
Restrictive Housing Unit
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.
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.
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.
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