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Berry v. Lutsey

United States District Court, E.D. Wisconsin

July 18, 2018

JEAN LUTSEY, et al., Defendants.



         Plaintiff 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.


         Both 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.

         Berry 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)[1] 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.

         Berry's 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.

         When 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.

         Berry 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.


         Summary 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)).


         A 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.

         A. Berry Cannot Show That He Suffers From An Objectively Serious Medical Condition.

         An 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 ...

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