United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE
case, pro se plaintiff Fredrick Andrew Morris is proceeding
on a claim that defendant Jason T. Zeimer, a correctional
officer at the Columbia Correctional Institution, violated
plaintiff's Eighth Amendment rights by failing to prevent
his attempted suicide. On June 1, 2018, I denied the
parties' cross motions for summary judgment, concluding
that there were disputed issues of material fact that must be
resolved by a jury. Dkt. #75.
before the court is defendant's motion for
reconsideration, in which he argues that I erred in declining
to consider the Declaration of Dr. Ryan Holzmacher, the
former medical director for the Department of Corrections
Bureau of Health Services, as an undisclosed expert opinion.
Dkt. #79. Specifically, defendant argues that although he did
not file his expert disclosures with the court, he disclosed
Dr. Holzmacher as an expert to plaintiff directly on March
19, 2018, just three days after defendant's expert
disclosure deadline. Additionally, defendant says that
because Dr. Holzmacher's opinions were fully disclosed in
the declaration he submitted in support of defendant's
summary judgment motion prior to the expert disclosure
deadline, dkt. #58, plaintiff suffered no surprise or undue
prejudice from defendant's reliance on Dr.
reviewing defendant's counsel's declaration and the
expert disclosure, I am persuaded that plaintiff has suffered
no prejudice by defendant's reliance on Dr.
Holzmacher's opinions, despite defendant's untimely
disclosure and apparent failure to provide with the
disclosure a “summary of the facts and opinions to
which [Holzmacher] is expected to testify, ” as
required by Fed.R.Civ.P. 26(a)(2)(C). Because defendant
submitted Holzmacher's declaration before the expert
disclosure deadline, plaintiff received sufficient notice as
to the expert opinions Holzmacher would be providing.
Therefore, I will consider Dr. Holzmacher's opinions and
will not preclude defendant from relying on Holzmacher's
opinions at trial in this case.
being said, Dr. Holzmacher's opinions do not change the
outcome of defendant's summary judgment motion. Defendant
argued that plaintiff could not satisfy the objective element
of his Eighth Amendment claim because he could not prove that
he actually faced a substantial risk of serious harm to his
health or safety from the assortment of pills he ingested.
Defendant relied on Dr. Holzmacher's analysis of
plaintiff's medical records to argue that plaintiff
suffered no serious signs, symptoms or medical complaints
from ingesting the pills. In particular, Dr. Holzmacher gave
the opinion that, “to a reasonable degree of medical
certainty, based on my review of [plaintiff's] medical
records [plaintiff's] ingestion of apparent pills on
March 8, 2016, did not cause him any serious medical
problems.” Holzmacher Decl., dkt. #58, ¶ 20.
Defendant argued that because plaintiff did not present
expert opinion to contradict Holzmacher's declaration,
plaintiff could not prove he actually faced a substantial
risk of serious harm from the pills he ingested.
plaintiff does not need to prove that he suffered a serious
physical injury to succeed on his Eighth Amendment claim:
psychological harm, extreme indignities or even
“heightened risk of future injury” can all
satisfy the objective prong of an Eighth Amendment claim.
See e.g., Budd v. Motley, 711 F.3d 840, 843
(7th Cir. 2013) (“[H]eightened risk of future injury
from living in an infested jail is itself
actionable.”); Thomas v. Illinois, 697 F.3d
612, 614-16 (7th Cir. 2012) (explaining that “hazard,
or probabilistic harm” could allow recovery);
Wright v. Miller, 561 Fed.Appx. 551, 555 (7th Cir.
2014) (“Even without an actual injury, the mere
probability of the harm to which [an inmate is exposed] can
be sufficient to create liability.”); Mathews v.
Raemisch, 513 Fed.Appx. 605, 607 (7th Cir. 2013)
(“[T]he district court was wrong to suggest that the
plaintiffs needed to show something beyond psychological
harm.”). See also Ards v. Anderson, No.
16-CV-341-JDP, 2017 WL 6734189, at *7 (W.D. Wis. Dec. 29,
2017) (“[T]he Seventh Circuit has not held, as far as I
am aware, that a prisoner exposed to suicide risk cannot
assert a deliberate indifference claim just because he did
not succeed in his suicide attempt.”) Additionally,
although plaintiff would not be able to recover compensatory
damages without proof of physical injury, he would still be
eligible for nominal or punitive damages if he can prove
serious psychological harm or “probabilistic”
harm. Thomas, 697 F.3d at 614-15 (explaining that
nominal and punitive damages are available as a result of
“hazard, or probabilistic harm” even in absence
of physical or psychological harm).
the facts in the light most favorable to plaintiff, I
conclude that a reasonable jury could find that plaintiff
faced an objectively serious harm when he attempted suicide.
According to plaintiff, he showed defendant a cup of
approximately 25 assorted pills, including Lisinopril,
Amlodipine, Metformin, Benztropine, Trazodone and
Venlafaxine, and told defendant hat he was going to commit
suicide by swallowing them. Defendant told plaintiff to
submit a green slip and did not return until more than an
hour later, at which time defendant did not provide help.
Instead, he gave plaintiff even more pills, which plaintiff
then swallowed in an attempt to kill himself. Plaintiff was
transported to the hospital and given charcoal, and
reportedly suffered from a headache, fatigue, low potassium
and a rapid heart rate. These facts, if proven true, could
persuade a jury that plaintiff suffered considerable
psychological harm, as well as facing a substantial risk of
serious physical harm that may have been counteracted by the
charcoal plaintiff ingested. Therefore, even considering Dr.
Holzmacher's opinions, there are disputed issues of fact
that preclude summary judgment on plaintiff's claim.
ORDERED that defendant Jason T. Zeimer's motion for
reconsideration, dkt. #79, is GRANTED IN PART and DENIED IN
PART. The motion is GRANTED with respect to defendant's
request that the court consider Dr. Ryan ...