November 7, 2016
from the United States District Court for the Eastern
District of Wisconsin No. 13-cv-1318 - Pamela Pepper,
Easterbrook and Williams, Circuit Judges and Feinerman,
District Court Judge.[*]
Williams, Circuit Judge.
Orlowski died of a methadone overdose while in custody at the
Milwaukee County House of Correction. Before his death,
correctional officer Irby Alexander observed Orlowski
sleeping and was concerned that he was having a difficult
time breathing. Alexander tried to wake Orlowski up, but was
unable to do so, so he called to inform his supervisor,
Sergeant Anthony Manns, about the situation. They decided not
to call for medical attention. Three hours later, Orlowski
estate (the "Estate") and his father, Gary Orlowski
("Gary"), filed this lawsuit pursuant to 42 U.S.C.
§ 1983 claiming that Alexander and Manns violated
Orlowski and Gary's constitutional rights. The district
court rejected all claims and granted summary judgment in
favor of Alexander and Manns, and determined that evidence
was insufficient to sustain the Estate's Eighth Amendment
claim. The court also concluded that there was no evidence
Alexander or Manns intended to deprive Gary of his
relationship with his son, so his Fourteenth Amendment
substantive due process claim failed. This appeal followed.
affirm in part and reverse in part. The record demonstrates
that there is a material dispute of fact as to whether
Alexander and Manns were deliberately indifferent to
Orlowski's severe medical condition. It is up to the jury
to determine the credibility of witnesses and weigh the
evidence, and there is sufficient evidence to go to trial
here. So we reverse the district court's judgment on the
Estate's Eighth Amendment claim. However, we agree with
the district court that the law of this circuit forecloses
Gary Orlowski's Fourteenth Amendment substantive due
process claim. Because there is no evidence that Alexander or
Manns intentionally interfered in Gary's familial
relationship with his adult son, summary judgment was
the facts and evidence in the light most favorable to the
non-moving party, the following occurred on November 22,
Orlowski was an inmate at the Milwaukee House of Correction
("HOC") where he resided in the Zebra-2 dorm. Just
past midnight, he was asleep in his bunk when dorm supervisor
Irby Alexander began his shift. Alexander had no prior
experience with Orlowski, and had not observed Orlowski
sleeping (or awake) before. At approximately 12:28 a.m., as
was his routine duty for the night, Alexander conducted a
security check of the dorm, and did not notice anything
unusual. He conducted another security check at 1:36 a.m.,
and again saw nothing unusual. Another HOC official, Sergeant
Anthony Manns, also toured the dorm around the same time, and
did not note anything unusual.
approximately 3:45 a.m., Alexander received a call from the
HOC kitchen to request workers for the morning's
breakfast, so he began awakening inmates for kitchen duty.
Orlowski was one of the kitchen workers, but when Alexander
got to Orlowski's bunk, he was troubled by what he saw.
Orlowski was breathing abnormally, making noises from hard
and loud to very soft, and "at times his body would make
sudden moves and he would again start breathing loudly."
Larry Green, another inmate residing in a nearby bunk, tried
to wake Orlowski up, but Orlowski would not wake up. Green,
who was a chef for HOC's breakfast, was concerned because
Orlowski had always gotten up for work in the kitchen, so he
told Alexander that something was wrong with Orlowski.
Because Green persisted in voicing his concern for Orlowski,
Alexander (or another HOC official) disciplined him by
putting him in the "hole."
was concerned. He thought that Orlowski might have a sleep
disorder such as sleep apnea because of his
"intermittent-type breathing" and because he
stopped breathing at times. Alexander tried to wake him by
shaking his bunk and calling his name. How forcefully
Alexander was trying to wake Orlowski is unclear, but
Orlowski responded, at most, with changed breathing patterns
and slight movement. Despite Alexander's efforts to wake
him up, Orlowski remained unconscious and unresponsive.
Alexander left him in his troubled state. However, when he
returned to his desk, Alexander noted in the Zebra-2 dorm
Z2 Orlowski #719775403 appears to [have] a severe sleeping
disorder. Inmate appears not to be breathing at times. Inmate
makes a lot of noise while trying to breath [sic] and[/]or
when he is breathing. Inmate appears to have a lot of
then called his supervisor, Sergeant Manns. Alexander told
him everything written in the log book, including
Orlowski's trouble breathing. However, Manns denies that
Alexander told him this information, asserting that if
Alexander had told him Orlowski appeared to have a severe
sleeping disorder and was not breathing, he would have called
for a medical emergency. But, either way, no medical
emergency was called. Instead, Mann told Alexander that if
Orlowski woke up for breakfast or later in the morning, they
would talk to him.
a.m., Alexander announced that it was breakfast time in
Zebra-2, and at 4:20 a.m., the inmates went to breakfast.
Orlowski, who had missed his kitchen duty, did not ...