United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING SUMMARY JUDGMENT
WILLIAM C. GRIESBACH, CHIEF JUDGE
Christopher Berry, an inmate currently serving a state prison
sentence at Green Bay Correctional Institution (GBCI) and
representing himself, filed this action under 42 U.S.C.
§ 1983, alleging that ten defendants were deliberately
indifferent to his serious medical needs by discontinuing
several medical restrictions that he had received at a
previous institution. The case is before the court on a
motion for summary judgment by Defendants Lisa Allen, Mary
Alsteen Cassandra Baier, Scott Eckstein, James LaBelle, Kathy
Lemens, Jean Lutsey, Mary Sauvey, and Hannah Utter
(collective the “State Defendants”) (ECF No. 95),
as well as a motion for summary judgment by Defendant Susan
Peters, a non-state employee who was working at GBCI under a
contract. (ECF No. 88). Also before the court is Berry's
motion for leave to amend his proposed findings of fact. ECF
No. 111. For the reasons stated below, the defendants'
motions for summary judgment will be granted, and Berry's
motion to amend will be denied.
Peters and the State Defendants submitted proposed findings
of fact in support of their motions for summary judgment, as
required by Civil Local Rule 56(b)(1)(C). ECF Nos. 90, 98.
Berry has submitted his own statement of proposed findings of
fact (ECF No. 105), as well as a motion to amend those
proposed findings (ECF No. 111), his own declaration (ECF No.
112), and additional supplemental material regarding the
treatment he received in spring 2018 (ECF Nos. 115, 116).
However, he has not responded directly to the proposed
findings of fact filed be either Peters or the State
Defendants, both of whom provided him with proper notice and
warning regarding the consequences of failing to respond to
their proposed findings, as required by the local rules.
Civil L.R. 56(a)(1)(A) (E.D. Wis.). The court will thus treat
the defendants' proposed findings of fact as undisputed.
Civil L.R. (b)(4); see also Waldridge v. Am. Hoechst
Corp., 24 F.3d 918, 922 (7th Cir. 1994) (“We have
. . . repeatedly upheld the strict enforcement of [local]
rules, sustaining the entry of summary judgment when the
non-movant has failed to submit a factual statement in the
form called for by the pertinent rule and thereby conceded
the movant's version of the facts.”). Additionally,
Berry's motion to amend his proposed findings of fact
will be denied, as he seeks to introduce evidence regarding
his recent treatment, whereas his claims primarily focus on
the defendants' treatment decisions during 2015 and 2016.
has been housed at GBCI since November 18, 2015. State
Defs.' Proposed Findings of Fact (DPFOF) ¶ 1, ECF
No. 98. Defendant Dr. Mary Sauvey worked as an Advanced Care
Provider (ACP) at GBCI from prior to Berry's arrival
until April 26, 2016. Id. ¶ 7. Defendant Dr.
Lisa Allen was an ACP between June 2016 and January 2017.
Id. ¶ 67. At all times relevant to this matter,
Defendant Susan Peters was an advanced practice nurse
prescriber (APNP) working at GBCI on a locus tenens
assignment pursuant to a contract the Wisconsin Department of
Corrections had with Maxim Physician Resources, LLC. Peters
Proposed Findings of Fact (Peters PFOF) ¶ 4, ECF No. 90.
Defendant Jean Lutsey has been the Health Services Manager at
GBCI since 2015. DPFOF ¶ 15. GBCI also
maintains a Special Needs Committee (SNC), which consists of
Lutsey, a security liaison, and Defendants Mary Alsteen,
Cassandra Baier, Kathy Lemens, and Hannah Utter. Id.
¶ 55. Defendant Scott Eckstein is the warden of GBCI.
See Id. ¶ 72. Finally, Defendant James LaBelle
has worked as a Regional Nursing Coordinator for the Bureau
of Health Services since 2012. Id. ¶ 37.
claims primarily focus on the defendants' decisions
regarding certain medical restrictions that he has had put in
place and removed at various times. At GBCI, medical
restrictions are evaluated on a case-by-case basis, and any
restrictions implemented for an inmate arriving from a
different institution are not necessarily continued.
Id. ¶ 54. When an inmate arrives from another
institution, GBCI keeps his restrictions in place until an
ACP can reevaluate him. Id. ¶ 56. GBCI does not
issue indefinite restrictions, so any restrictions
implemented for an inmate last no longer than a year and are
subject to annual renewal. Id. Inmates often ask
both their ACP and the SNC to consider implementing
restrictions, and the SNC considers its own guidelines and
any input from ACPs when making a decision regarding an
inmate's restriction requests. Id. ¶ 57.
Berry arrived at GBCI in November 2015, he had medical
restrictions requiring that he receive a lower bunk, back
brace, hot and cold treatments, an extra mattress and pillow,
and supportive Velcro shoes. Id. ¶ 5.
Berry's principal claim seems to be that the defendants
violated his constitutional rights by failing to maintain the
same medical restrictions when he was transferred to GBCI.
Berry failed to mention these restrictions or request their
continuation during an initial intake appointment with Dr.
Sauvey on January 11, 2016, and several apparently lapsed on
February 18, 2016. Id. ¶¶ 10-11, 13. At a
subsequent appointment on March 7, 2016, Dr. Sauvey found no
medical reason to continue restrictions for Velcro shoes and
extra toilet paper, but she did continue his back brace
restriction and a medication; she also ordered that he be
reexamined in 6 months. Id. ¶ 14. Berry
demanded permanent reinstatement of all previously ordered
restrictions during a September 2, 2016 examination by Dr.
Allen, who ordered extra pillow, low bunk, and gel insert
restrictions and indicated that they should be reevaluated
annually. Id. ¶¶ 67-68. APNP Peters began
her assignment at Green Bay in September 2016, and first
entered an order related to Berry's treatment in January
2017. Dr. Peters continued treating him throughout the year.
Peters PFOF ¶¶ 24, 25, 39, 53, 66-69, 79, 82, 106.
also believed that Lutsey, Alsteen, Baier, Utter, and
Lemens-in their capacities as members of the SNC-should have
overriden his ACPs' decisions and implemented the
restrictions he sought. DPFOF ¶ 70. After Berry's
transfer to GBCI, Alsteen, Baier, Utter, and Lemens reviewed
numerous Health Service Request (HSR) forms filed by him, and
they examined him on several occasions. Id.
¶¶ 59-66. Between November 2015 and January 2018,
Berry's patient request file at GBCI accumulated 499
pages, and his medical records accumulated 350 pages.
Id. ¶¶ 77-78. Berry also filed written
communications and complaints reviewed on different occasions
by Warden Eckstein and LaBelle. Id. ¶¶
40-43, 72-73. Additional factual information will be set
forth as necessary in the analysis that follows.
judgment is appropriate when the moving party shows that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). All reasonable inferences are construed
in favor of the nonmoving party. Foley v. City of
Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party
opposing the motion for summary judgment must “submit
evidentiary materials that set forth specific facts showing
that there is a genuine issue for trial.” Siegel v.
Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (quoted
source and internal quotation marks omitted). “The
nonmoving party must do more than simply show that there is
some metaphysical doubt as to the material facts.”
Id. Summary judgment is properly entered against a
party “who fails to make a showing sufficient to
establish the existence of an element essential to the
party's case, and on which that party will bear the
burden of proof at trial.” Parent v. Home Depot
U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012)
(internal quotation mark omitted) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986)).
plaintiff may prevail on a claim for relief under 42 U.S.C.
§ 1983 by showing that he was (1) deprived of a federal
right (2) by a person acting under color of state law.
Gomez v. Toledo, 446 U.S. 635, 640 (1980).
“[D]eliberate indifference to serious medical needs of
prisoners constitutes the ‘unnecessary and wanton
infliction of pain' proscribed by the Eighth
Amendment.” Chatham v. Davis, 839 F.3d 679,
684 (2016) (alterations in original) (quoting Estelle v.
Gamble, 429 U.S. 97, 104 (1976)). “A prison
official may be liable for deliberate indifference only if he
‘knows of and disregards an excessive risk to inmate
health or safety.'” Id. (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)). To
succeed on a deliberate indifference claim, a prisoner must
prove that he “suffered from ‘(1) an objectively
serious medical condition to which (2) a state official was
deliberately, that is subjectively, indifferent.'”
Id. (quoting Duckworth v. Ahmad, 532 F.3d
675, 679 (7th Cir. 2008)). Considering the record in the
light most favorable to Berry, he cannot satisfy either prong
of the deliberate indifference standard.
Berry Cannot Show That He Suffers From An Objectively Serious
essential element of a claim for deliberate indifference to a
serous medical condition is the existence of a serious
medical condition. “A medical condition is deemed to be
objectively serious if it is ‘one that has been
diagnosed by a physician as mandating treatment or one that
is so obvious that even a lay person would easily recognize
the necessity for a doctor's attention.”
Williams v. Rodriguez, 509 F.3d 392, 401 (7th Cir.
2007) (quoting Henderson v. Sheahan, 196 F.3d 839,
846 (7th Cir. 1999)). Yet Berry's medical records
indicate that he consistently ambulates easily and does not
appear to be in pain. DPFOF ¶ 44 (citing ECF No. 97-1 at
8, 10-11, 16, 27, 30, 33, 35, 39, 45-46, 49, 51, 54, 56-57,
62, 67, 69, 85, 134). In fact, a video dated July 12, 2017,
depicting Berry effortlessly running down two flights of
stairs at GBCI, approaching a supervisor, and then walking
through several of the institution's corridors with his
hands cuffed behind his back has been submitted by the
defendants. ECF No. 51-1. In the video, there is no
indication that Berry is in pain or otherwise limited in his
ability to ambulate. Id.; DPFOF ¶¶ 45-46.
The court has previously noted that “at the very time
[this video was recorded, ] Berry had pending before the
court no less than five separate motions for preliminary
injunctions based on complaints that his severe back
impairments prevented him from leaving his cell even for
meals, walking up any ...