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Peace v. Pollard

United States District Court, E.D. Wisconsin

January 29, 2018

WILLIAM J. POLLARD, et al., Defendants.


          HON. PAMELA PEPPER United States District Judge.

         The plaintiff, who is representing himself, filed this lawsuit under 42 U.S.C. §1983, alleging that the defendants violated his constitutional rights when they were deliberately indifferent to his serious medical needs. Dkt. No. 1. Specifically, he is suing Sergeants Bradley Tanner and Bonnie Lind because they allegedly denied him medical ice in December 2014. He also is suing Officers Lajuan Lewis and Alyssa Eake, Captain James Olson and Security Director Tony Meli, because they alleged failed to intervene to stop Tanner and Lind from denying the plaintiff medical ice. Finally, he is suing Inmate Complaint Examiner Tonia Moon, Warden William Pollard, Policy Advisor Cindy O'Donnell and Corrections Complaint Examiner Welcome Rose, because they allegedly failed to investigate his inmate complaints.

         On September 21, 2016, the plaintiff filed a motion for partial summary judgment. Dkt. No. 52. A month later, the defendants filed a motion for summary judgment. Dkt. No. 64. The motions are fully briefed. The court denies the plaintiff's motion, grants the defendants' motion and dismisses the case.

         I. RELEVANT FACTS[1]

         A. Parties

         The plaintiff currently is an inmate at Redgranite Correctional Institution. Dkt. No. 95 at ¶1. During the period relevant to this case, he was incarcerated at Waupun Correctional Institution. Id.

         All of the defendants are employed by the Wisconsin Department of Corrections. Id. at ¶2-11. At the relevant time, the following defendants worked at Waupun in the following capacities: Tanner and Lind were correctional sergeants, Eake and Lewis were correctional officers, Meli was the Security Director, Olson was a captain, Moon was an inmate complaint examiner (ICE), and Pollard was the warden. Id. at ¶2-9. Rose, who was a corrections complaint examiner, and O'Donnell, who was a policy advisor, worked for the DOC at its main office in Madison (not at Waupun). Id. at ¶10-11.

         B. The Plaintiff's Injury and Prescribed Treatment

         On November 12, 2014, inmate Carl Grant ran over the plaintiff's left foot (specifically, his little toe) with a metal garbage cart. Id. at ¶12. Nurse Schaefer (who is not a defendant) examined the plaintiff's foot and gave him Tylenol for the pain. Id. at ¶13-14. Two days later, Nurse Schaeffer examined the plaintiff again. Id. at ¶15. She noted that the plaintiff's little toe was bruised, but not fractured. Id. at ¶16. Nurse Schaeffer recommended Tylenol for the pain, and she gave him some ice. Id. at ¶17.

         A little more than a week later, the plaintiff had a follow-up appointment with Nurse Rudak (who is not a defendant). Id. at ¶19. At that time, the plaintiff still had pain in the left little toe, but also was having pain in his left big toe when he walked. Id. at ¶20. Nurse Rudak opined that the pain in the plaintiff's left big toe likely was because of a bunion, and noted that his little toe “had good circulation, motion, sensation and movement.” Id. at ¶21. X-rays confirmed that the plaintiff's foot was not fractured. Id. at ¶22. Nurse Rudak prescribed the plaintiff an anti-fungal and recommended that for the next six weeks, he soak his left foot in Epsom salt for in the evenings, and ice in the morning. Id. at ¶23. She also “filled out a ‘Special Needs' request form, which stated that [the plaintiff] should use a hot/cold bag four times per day, which included ‘Hot soak in PM, ' ‘ice in the AM and afternoon and hot/warm in evenings or after work.'” Id. at ¶24. Her order was in effect from November 24, 2014 through January 1, 2015. Id.

         C. Medical Ice Procedures at Waupun

         Typically, inmates receive medical ice at medication pass times: “morning at approximately 6:00 a.m. to 7:30 a.m.; noon (12:00 p.m.), night at approximately 3:30 p.m. to 5:00 p.m., and/or bedtime around 8:00 p.m.” to 9:00 p.m., depending on unit activities. Id. at ¶26. Inmates may get their own medical ice “during dinner time hours because they are already out of their cells.” Id. at ¶28. Unless an inmate has a medical restriction that specifically states different times, these are the times medical ice is distributed. Id. at ¶26.

         After dinner is over, inmates can obtain medical ice in two ways. Id. at ¶29. They can ask their “inmate tier tenders”-“other inmate workers that are responsible for various tasks such as delivering ice (medical and non-medical), distributing and collecting meal trays and supplies such as toilet paper, etc.” Id. “Tier tenders make an announcement on the unit that they are going to hand out ice, in order to notify inmates to get their ice bags ready if they would like to receive medical ice.” Id. at ¶32. It then is the inmates' responsibility to put their ice bags through the hole in their cell doors, so the tier tenders can fill them with ice. Id. Tier tenders pass out ice just before 8:00 p.m., because all inmates are locked in their cells for the night at 8:00 p.m. Id. at ¶33. The plaintiff asserts that he did not know he could get ice from a tier tender until Lind told him so on December 14, 2014, and that no tier tender ever made an announcement that he was about to hand out ice. Id. at ¶29-33.

         The second way inmates may get ice after dinnertime is by asking “the officer working on the unit to have the on duty sergeant allow [the inmate] out of [his] cell to get [his] medical ice.” Id. at ¶34. The defendants indicate that this is not the preferred approach because some evenings are very busy, and it is not always possible to allow an inmate out of cell for the sole purpose of getting ice. Id. at ¶35-36. The decision on whether to let an inmate out of his cell to get medical ice is left to the discretion of the sergeant, and depends on the activities going on in the unit and whether there is staff available to accommodate the inmate's request. Id. at ¶37.

         D. The Plaintiff's Medical Ice in November and December 2014

         The plaintiff concedes that, from November 24, 2014 through December 1, 2014, he was allowed to get medical ice once or twice per day, at dinner time and/or during the medication pass time at about 8:00 p.m. Id. at ¶40. During that time, Tanner was one of the sergeants working on the plaintiff's unit, and he allowed the plaintiff to “receive his medical ice.” Id. at ¶41.

         On December 2, 2014, the plaintiff got back to his cell around 7:00 p.m. and discovered that his toilet wasn't working. Id. at ¶42. The plaintiff notified Lewis. Id. at ¶44. Lewis told the plaintiff that he would reset the toilet, then went on about his regular duties. Id. About thirty minutes passed; at around 7:30 p.m., the plaintiff began to yell out of his cell. Id. at ¶45. Eake responded, told the plaintiff to stop yelling and reset the plaintiff's toilet. Id. at ¶45-46.

         At about 8:00 p.m., Eake was passing out medication to the plaintiff, when the plaintiff told Eake he that he “needed to be let out of cell to get his medical ice.” Id. at ¶47. Tanner was the regular sergeant on the unit; he decided whether to allow inmates to get ice after 8:00 p.m., based on staff work load and availability. Id. at ¶48. On that night, no one returned to let the plaintiff out of his cell. Id. at ¶50. The defendants do not know why no one came back; they speculate that no staff was available, or that whatever was going on in the unit prevented Tanner from coming to let the plaintiff out, or that Tanner simply forgot about the plaintiff's request. Id. The plaintiff asserts that Tanner did not let him out that night because the plaintiff had been yelling out of his cell earlier. Id. at ¶51. (The plaintiff did not get a conduct report for yelling out of the cell. Id. at ¶52.)

         The next night, on December 3, 2014, “Tanner gave [the plaintiff] permission get ice after dinner.” Id. at ¶53. The plaintiff “also asked Tanner at that time to let him out of his cell after 8:00 p.m. to get ice.” Id. at ¶54. The plaintiff “iced his foot after dinner” that night. Id. at ¶55. But no one showed up to let the plaintiff out to get ice a second time. Id. at ¶56. Again, the defendants do not know why; they speculate that either Tanner was busy with unit activity, or forgot. Id. at ¶56. The plaintiff asserts that he was “told” that he wasn't let out because he had been yelling out of his cell the day before. Id.

         The plaintiff did get his medical ice the next day (December 4); at that time, he told Tanner that, while his restrictions allowed him to ice four times per day, he had found that icing worked best if done at night. Id. at ΒΆΒΆ58-59. From December 4 through December 13, 2014, the sergeants on duty, including ...

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