United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR
PARTIAL SUMMARY JUDGMENT (DKT. NO. 52), GRANTING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 64) AND
PAMELA PEPPER United States District Judge.
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.
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
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.
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.
The Plaintiff's Injury and Prescribed Treatment
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.
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.
Medical Ice Procedures at Waupun
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.
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.
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
The Plaintiff's Medical Ice in November and December
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
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.
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
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.
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
¶¶58-59. From December 4 through December 13, 2014,
the sergeants on duty, including ...