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Adell v. Hepp

United States District Court, E.D. Wisconsin

December 7, 2017

MARK ANTHONY ADELL, Plaintiff,
v.
RANDALL HEPP, CHRIS KRUEGER, JOHN MAGGIONCALDA, LT. JOHN CONGDON, MARK SCHOMISCH, WISCONSIN DEPARTMENT OF CORRECTIONS, and JON LITSCHER, Defendants.

          ORDER

          J. P. Stadtmueller, U.S. District Court

         Plaintiff Mark Anthony Adell (“Adell”), a prisoner, brings this action against Defendants, prison officials at Fox Lake Correctional Institution (“FLCI”), the Wisconsin Department of Corrections (“DOC”), and the DOC Secretary, Jon Litscher (“Litscher”), for their alleged failure to properly treat and accommodate Adell's needs arising from his chronic ulcerative colitis. Specifically, Adell alleges that he was forced to drink contaminated drinking water while incarcerated in the restricted housing unit (“RHU”) at FLCI between December 12, 2016, and January 24, 2017. The Court allowed Adell to proceed on both constitutional claims under 42 U.S.C. § 1983 and statutory claims under the Americans With Disabilities Act (“ADA”) and Rehabilitation Act. See (Docket #15). Defendants filed a motion for summary judgment that addressed the constitutional claims only. (Docket #34). The motion is fully briefed and, for the reasons stated below, it will be granted.

         1. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 56 provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh the evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). The party opposing summary judgment “need not match the movant witness for witness, nor persuade the court that [his] case is convincing, [he] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).

         2. RELEVANT FACTS

         2.1 Adell's Failure to Dispute the Material Facts

          The relevant facts are undisputed because Adell did not properly dispute them. In the Court's scheduling order, issued on May 10, 2017, Adell was warned about the requirements for opposing a motion for summary judgment. (Docket #18 at 3). Accompanying that order were copies of Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both of which describe in detail the form and contents of a proper summary judgment submission. Most relevant here is Local Rule 56(b)(2), which obligates the non-movant on summary judgment to file “a concise response to the moving party's statement of facts that must contain a reproduction of each numbered paragraph in the moving party's statement of facts followed by a response to each paragraph, including, in the case of any disagreement, specific references to the affidavits, declarations, parts of the record, and other supporting materials relied upon[.]” Civ. L. R. 56(b)(2)(B)(i).

         Next, on November 1, 2017, Defendants filed their motion for summary judgment. (Docket #34). In the motion, Defendants also warned Adell about the requirements for his response as set forth in Federal and Local Rules 56. Id. at 1-2. He was provided with additional copies of those Rules along with Defendants' motion. See Id. at 3-12. In connection with their motion, Defendants filed a supporting statement of material facts that complied with the applicable procedural rules. (Docket #35). It contained short, numbered paragraphs concisely stating those facts which Defendants proposed to be beyond dispute, with supporting citations to the attached evidentiary materials. See id.

         In response, Adell submitted three documents, none of which respond to Defendants' statement of facts in compliance with the Federal and Local Rules. The first is his brief in opposition to Defendants' motion. (Docket #43). It contains a prose recitation of his version of the relevant events, id. at 2-3, but it neglects to specifically address the numbered paragraphs set forth in Defendants' statement of facts. Attached to the brief are nearly 100 pages of exhibits, including medical records and inmate grievances. See (Docket #43-1). Similarly, Adell's other submissions, which include his affidavit and his own proposed findings of fact, provide few citations to actual evidence, and do not address Defendants' statement of facts in any fashion. (Docket #44, #45).

         Despite being twice warned of the strictures of summary judgment procedure, Adell ignored those rules by failing to properly dispute Defendants' proffered facts with citations to relevant, admissible evidence. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Though the Court is required to liberally construe a pro se plaintiff's filings, it cannot act as his lawyer, and it cannot delve through the record to find favorable evidence for him. See Waldridge, 24 F.3d at 922; Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir. 1989) (“A district court need not scour the record to make the case of a party who does nothing.”). Further, while the Court is cognizant that Adell lacks legal training, his utter failure to comply with the rules of procedure is not excusable on that ground alone. Thus, the Court will, unless otherwise stated, deem Defendants' facts undisputed for purposes of deciding their motion for summary judgment. See Fed. R. Civ. P. 56(e); Civ. L. R. 56(b)(4); Hill v. Thalacker, 210 F. App'x 513, 515 (7th Cir. 2006) (noting that district courts have discretion to enforce procedural rules against pro se litigants).

         2.2 Facts Material to Defendants' Motion

         2.2.1 FLCI Water System and Compliance Efforts

         FLCI has a municipal water system, but is unique in that the owner of the water system-the State of Wisconsin-also owns all of the buildings that the water system services. The Wisconsin Department of Natural Resources (“DNR”) requires regular sampling and testing of drinking water as part of maintaining any municipal water system. The DNR entered into a consent order with the DOC to address the water quality at FLCI in May 2014 after test results showed that despite FLCI's efforts (and following remediation recommended by the DNR), water test samples continued to show elevated levels of certain elements in the prison's water supply.

         Drinking water regulations are promulgated by the Environmental Protection Agency. One such regulation is pertinent here. It is known as the “Lead and Copper Rule, ” and it addresses the transfer of lead and copper from piping materials into water. The Rule prescribes “action” levels, or maximum contaminant level limits, for metals including lead, copper, and arsenic. An “action” level of contaminants does not reflect that the water is unsafe to consume but rather is the point at which consumer education, continued investigation, and development of a plan to resolve the issue become necessary. The action level for lead in the Lead and Copper Rule is 15 parts per billion. Ninety percent of the samples collected must be under 15 parts per billion for compliance. The action level for copper is 1, 300 parts per billion.

         Aesthetic issues, such as discolored water or odors, are not dangerous to human health, and discolored water often results from iron and manganese. Iron often gives water a rusty hue, and manganese can give water a brownish or black hue. Discolored water is a very common issue in all water systems, and all water systems can suffer “events” that may lead to discolored water. Secondary drinking water regulations address aesthetic issues with water, which do not pose health concerns, but may cause staining in sinks and laundry, for example.

         In the consent order, FLCI agreed to provide required public education regarding lead and copper action level exceedances, submit rehabilitation plans for portions of the water system, and obtain compliance with Safe Drinking Water Act lead and copper standards. FLCI was also required to establish a routine monitoring schedule for lead and copper. FLCI's warden, Defendant Randall Hepp (“Hepp”) signed the consent order on behalf of FLCI. Nothing in the consent order indicated that the water at FLCI was unsafe for human consumption or that FLCI should provide water from another source for drinking by FLCI inmates and staff.

         To comply with the consent order's requirement that a comprehensive water study be completed, the State hired expert engineer Abigail Cantor (“Cantor”). Cantor was first contacted by the Wisconsin Department of Administration after FLCI experienced Lead and Copper Rule compliance issues in 2013. Cantor consults on water quality issues in water distribution systems stemming from the Lead and Copper Rule nationwide. Cantor's approach to water quality analysis “promote[s] the use of many measurements of water quality in order to make decisions about the system. [Cantor] has a technique to determine the mechanisms that are causing the lead and copper to transfer to the water and then [suggests] remedies for inhibiting the transfer.” (Docket #35 ¶ 20). Cantor is typically hired to investigate an existing problem within water distribution systems. In addition to discovering the origin of the problem and advising what needs to be done to remedy it, she also recommends a proactive approach to solving future problems, including continued data collection and routine water evaluation.

         Cantor was hired by the State to analyze FLCI's municipal water system, the distribution system, and the water quality within the buildings. Cantor's initial work at FLCI included the installation of a monitoring system in June 2013. The State also hired an independent laboratory to take weekly water samples at FLCI. Further, because Cantor is not a well expert, she recommended, and the State hired, Dr. Andrew Jacques to investigate the wells that are connected to the system.

         Cantor continues to be involved with water quality monitoring at FLCI, continues to receive these weekly water quality sample reports, and advises FLCI regarding the water quality. Cantor works directly with William Weisensel, a non-defendant, who is the utility plant operator at FLCI. Cantor worked on water quality issues with FLCI for at least three years before the time that is relevant to Adell's claims.

         2.2.2 Adell's Complaints ...


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