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Osterman v. Kies

United States District Court, E.D. Wisconsin

May 9, 2018

JOHN KIES, et al., Defendants.


          William C. Griesbach, Chief Judge United States District Court

         Plaintiff Steven Osterman, who is currently representing himself, filed this 42 U.S.C. § 1983 action against defendants John Kies, Andrew Wesner, and Nathan Beier on April 10, 2017. Osterman claims Defendants were deliberately indifferent to his special accommodations for urinalysis testing due to his diagnosis of paruresis, or shy bladder syndrome. Presently before the court is Defendants' motion for summary judgment. For the following reasons, the motion will be granted and the case will be dismissed.


         Osterman was housed at Redgranite Correctional Institution at all times relevant to this action. Defs.' Proposed Findings of Fact (DPFOF) ¶ 1, ECF No. 22. Osterman has suffered from paruresis, or shy bladder syndrome, since the 1970s and was officially diagnosed with paruresis in the early 2000s. Paruresis is a social phobia that causes great difficulty urinating in the presence of others. Osterman's paruresis causes him “great anxiety” when attempting to urinate in front of other individuals. Osterman has also been diagnosed with chronic coronary artery disease and has had five heart surgeries. Physicians determined the “increased emotional stress associated with his long-standing history of ‘bashful bladder'” contributed to his hypertension and anginal symptoms and is likely to contribute to his cardiac risk. ECF No. 33-1 at 5. Osterman takes nitroglycerin to treat his heart condition.

         Based on his paruresis diagnosis, Osterman has received special accommodations during urinalysis testing at the various institutions he has been housed. Once Osterman was transferred to Redgranite in 2012, he requested that the institution provide him with special accommodations during urinalysis testing, which was conducted in the housing unit's public bathroom. Deputy Warden Eckstein granted his request on December 4, 2012 and provided the following accommodation:

I have received a request for special accommodation for the U/A collection process. I have reviewed this request with Mr. Schueler, Security Director. You will be provided additional time to provide a urine sample. Once you have been identified to provide a sample you will be required to sit on the bench near the sergeant's station after the closing of dayrooms. You will be offered fluids consistent with present policy. An officer will accompany you to the bathroom where you will be strip searched. You will be permitted to use the last bathroom stall-with the door closed-in order to produce a urine sample. The officer will stand outside the stall while you produce the urine sample.

         ECF No. 24-1 at 1.

         In 2013, Redgranite began conducting urinalysis testing in the intake area. DPFOF ¶ 14. The intake bathroom is small and private. It is surrounded on all sides by solid, opaque walls and contains a metal door with only a small, narrow window. Id. ¶ 19. When Osterman learned that the testing location had changed, he submitted a psychological service request (PSR) on July 14, 2013, requesting that his special accommodations “be changed in order to alleviate any problems regarding [his] paruresis.” ECF No. 24-1 at 2. Osterman sent a second request on August 5, 2013 because he had “not received any word or paperwork regarding ‘special accommodations' for the paruresis dealing with UAs.” Id. at 3. On August 6, 2013, Dr. Fleck sent Osterman a memo which stated,

I spoke to Lt. Wesner regarding your concerns about providing UA samples. Lt. Wesner confirmed that you will continue to receive accommodations, which will involve you being granted privacy when providing UA samples.
When you are called to provide UA samples, please bring the relevant paperwork that indicates you have been granted accommodations.

Id. at 4. This memo did not define “privacy” or note any accommodations specific to the new urinalysis testing location.

         Osterman was first selected for testing at Redgranite on June 29, 2016. He reported to the testing site with an envelope containing the December 4, 2012 memo from Warden Eckstein; his July 14, 2013 PSR; his August 5, 2013 PSR; and the August 6, 2013 memo from Dr. Fleck. DPFOF ¶ 24. Officer Kies reviewed the accommodation paperwork and observed that the December 2012 accommodations were inapplicable to the testing conditions in intake. Without conferring with Officer Kies, Officer Benbo escorted Osterman to the intake bathroom and closed the door. After Osterman provided a sample, Kies asked for Osterman's accommodation paperwork so he could review it with his supervisor and told Osterman he would be contacted if there was a problem with the accommodations. Kies claims that a supervisor advised him that it was no longer necessary to follow the accommodation paperwork because the testing location had changed and the accommodations paperwork appeared to be outdated. After meeting with this supervisor, Kies returned the paperwork to Osterman. Id. ¶¶ 33-34.

         Osterman was again selected for testing with Officer Kies on August 17, 2016. Osterman arrived at intake with the envelope that contained his accommodation paperwork and said, “I'm Osterman, the one with special accommodations for privacy for urine samples.” Id. ¶ 37. Kies did not take the documents out of the envelope or review them because he believed the envelope contained the same accommodation paperwork he read on June 29, 2016. Osterman does not dispute that the information in the envelope had not changed.

         After setting the envelope on a chair, Kies placed Osterman in the intake area's holding cell and asked if he was ready to provide a sample. Osterman responded that he would try. Id. ΒΆ 43. Kies escorted Osterman to the bathroom and partially closed the door, leaving the door cracked two to three inches. Osterman was unable to provide a sample because he could see Kies watching him through the crack in the door. Kies then placed Osterman back in the holding cell. Approximately ten minutes later, Kies asked if Osterman would like to try again. Osterman told him that he would try to provide a sample but needed privacy. Kies ...

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