United States District Court, E.D. Wisconsin
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 55)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
plaintiff, Joshua Howard, is a Wisconsin state prisoner. On
June 10, 2016, Judge Rudolph T. Randa screened his second
amended complaint under 28 U.S.C. §1915A, and allowed
the plaintiff to proceed against the defendants on Eighth
Amendment medical care claims related to ongoing errors in
the dispensation of prescription medication at Waupun
Correctional Institution (Waupun). Dkt. No. 38 at 1. Later,
the case was reassigned to this court. This order addresses
the defendants' motion for summary
judgment. Dkt. No. 55.
explained below, the court will deny the defendants'
summary judgment motion to the extent that they argue that
the statute of limitations bars the plaintiff's claims
against defendants Todd Callister and John O'Donovan, as
well as portions of the plaintiff's claim against
defendant Belinda Schrubbe. The court also will deny the
defendants' motion as to the rest of the plaintiff's
claim against defendant Schrubbe. Finally, the court will set
a new dispositve motion deadline by which either party may
file a dispositive motion as to the merits of the
plaintiff sued three defendants: John O'Donovan, former
security captain at Waupun; Todd Callister, psychiatrist at
Waupun; and Belinda Schrubbe, former manager of Waupun's
Health Services Unit. Dkt. No. 39 at 1; Dkt. No. 57 at
¶2-4. He alleges that corrections staff dispenses
medications at Waupun, instead of professional health staff.
Dkt. No. 39 at 2. He states that due to inconsistent and
contradictory medication refill procedures, medication errors
commonly occur at Waupun. Id. The plaintiff alleges
that since 2004, he has been prescribed medication to treat
depression, anxiety and insomnia; that he has experienced
over eighty interruptions in the availability of his
medication; and that he has filed over fifty inmate
complaints. Id. at 2-3. He says that the
“continuous and abrupt unavailability of [his]
medication has caused him many problems in addition to the
migraine headaches and severe nausea he experiences each time
his medication is not tapered off.” Id. at 3.
plaintiff alleges that defendant O'Donovan twice found
him guilty and punished him for conduct that was a direct
result of being abruptly cut off from his medication.
Id. at 5. Specifically, on December 20, 2017,
O'Donovan allegedly found the plaintiff guilty of a
conduct report based on disobeying orders and violating
policy and procedure. Id. at 5; Dkt. No. 57 at
¶8. On January 17, 2018, O'Donovan also allegedly
found the plaintiff guilty of a conduct report based on
disobeying orders, despite the lapse in his sleeping
medications. Dkt. No. 39 at 5; Dkt. No. 57 at ¶8.
respect to defendant Callister, the plaintiff alleges that
when he complained about the interruptions in his medication,
Callister did not intercede so that the plaintiff could start
taking the medication again without interruption. Dkt. No. 39
at 3, 5. This allegedly occurred between September 2006 and
March 2008, see dkt. no 57 at ¶8, and may have
also occurred in 2012, see dkt. no. 80 at
plaintiff alleges that defendant Schrubbe failed to take
remedial action to fix his problems with not receiving timely
medication, beginning in 2004. Dkt. No. 39 at 4-5; Dkt. No.
57 at ¶8. The plaintiff states that Schrubbe maintained
a constitutionally-infirm medication distribution system,
leading to the plaintiff's injuries, including migraine
headaches, severe nausea and disruptions in sleeping
patterns. Dkt. No. 39 at 4-5, Dkt. No. 57 at ¶8. He
alleges that Schrubbe directly supervised the nursing staff
and was responsible for monitoring the distribution and
refilling of medication, and that the institution complaint
examiner contacted her every time the plaintiff filed a
complaint about his medication. Dkt. No. 39 at 4.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Standard of Review
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 also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986); Ames v. Home
Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011).
“Material facts” are those under the applicable
substantive law that “might affect the outcome of the
suit.” See Anderson, 477 U.S. at 248. A
dispute over “material fact” is
“genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
asserting that a fact cannot be, or is, genuinely disputed
must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce ...