United States District Court, E.D. Wisconsin
ADELMAN DISTRICT JUDGE
James Pennewell, a Wisconsin state prisoner who is
representing himself, filed a complaint under 42 U.S.C.
§ 1983 alleging that defendants violated his civil
rights. Docket No. 1. I screened the complaint on March 20,
2017 and allowed plaintiff to proceed with an Eighth
Amendment claim that defendants (including a party identified
as “Unknown Eye Technicians”) showed deliberate
indifference towards his eye problems. Docket No. 4 at 4-5. I
instructed plaintiff to identify “Unknown Eye
Technicians, ” on or by August 25, 2017, and warned him
that, if he did not, I would dismiss that party from the
case. Docket No. 15. Plaintiff did not identify
“Unknown Eye Technicians” by the deadline, and
therefore I will dismiss his claims against it. Below, I
consider the parties' pending motions.
DEFENDANTS' MOTIONS TO STRIKE PLAINTIFF'S
filed motions for summary judgment on October 24, 2017.
Docket Nos. 27 and 37. They also filed motions to strike
plaintiff's sur-replies to the motions for summary
judgment. Docket Nos. 46 and 48. Defendants explain that they
did not raise any new issues in their reply brief and that
plaintiff never sought leave from the court to file a
did not file an opposition to defendants motions to strike
nor did he explain in his sur-reply why he needed to file a
sur-reply to properly prosecute this case. See
Docket Nos. 45 and 47. Therefore, I will grant
defendants' motions to strike the sur-replies.
See Civ. L. R. 7(i) (“Any paper, including any
motion, memorandum, or brief, not authorized by the Federal
Rules of Civil Procedure, these Local Rules, or a Court order
must be filed as an attachment to a motion requesting leave
to file it.”).
DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
time relevant to this matter, plaintiff was an inmate at the
Dodge Correctional Institution (“DCI”) who was
transferred to the John Burke Correctional Center
(“JBCC”). Docket No. 29, ¶¶ 6, 15.
Defendants are Department of Corrections (“DOC”)
employees/contractors who work at DCI and JBCC: James Richter
is an Optometrist who provides eye care at DCI; James Parish
is a Physician's Assistant at DCI; Sandra Jackson and
Victoria Bruns are Nurses at JBCC; and Brian Lange and
Heather Bunker are Correctional Sergeants at JBCC.
Id., ¶¶ 4-5. Mark Rice, Scott Hofteizer,
Denise Bonnett, Paula Lampe, Julie Nickel, Patricia Beyer,
Jeffrey Rollins, and Nicholas Redeker are also defendants in
this case but neither party provides specific information on
who these individuals are or what institution they worked at.
See Docket Nos. 29 and 42.
arrived at DCI on February 3, 2015. Docket No. 29, ¶ 6.
Plaintiff talked to an eye technician during his
“intake eye screening” and explained that he was
blind in his left eye and had “shadows, ghosts, and the
vision is decreasing” in his right eye. Docket No. 42
at 3. The eye technician said she would “fast
track” plaintiff for a quicker eye exam. Id.
week later, on February 11, 2015, Richter examined
plaintiff's eyes. Docket No. 40, ¶ 1. Plaintiff told
Richter that he was blind in his left eye and the vision in
his right eye was “decreasing, foggy, floaters, spots,
ghosts, shadows, and flashes but not as bad as 2008 left
detachment.” Docket No. 42 at 3. The “Eyecare
Examination Form” that Richter completed during the
exam indicates that plaintiff reported blindness and no light
perception in his left eye and “floaters foggy”
in his right eye. Docket No. 17-1 at 53; see also
Docket No. 40, ¶ 2-3. Plaintiff also told Dr. Richter he
could not see very well even though his glasses were only a
few months old. Docket No. 42 at 3.
performed a “dilated fundus evaluation” on
plaintiff's eyes and concluded that plaintiff had the
wrong prescription. Docket No. 40, ¶ 4. Richter ordered
new glasses with a proper prescription. Id., ¶
5. Richter also referred plaintiff to the University of
Wisconsin Eye Clinic (“UWEC”) for evaluation and
possible extraction of a right eye cataract. Id.,
¶ 6. Richter did not communicate with or examine
plaintiff again until seven months later, on September 22,
2015. Id., ¶¶ 35-36.
Richter's evaluation, Parish performed an “intake
physical exam” of plaintiff later that same day. Docket
No. 29, ¶¶ 7-8. Parish reviewed Richter's notes
on plaintiff's eye problems and recorded the issues on
plaintiff's “problem list.” Docket No. 29,
¶¶ 9-11. Plaintiff told Parish that he had a
“blind left eye and right eye decrease vision
problems.” Docket No. 42 at 3. Plaintiff had already
been seen by an eye specialist earlier in the day; therefore,
Parish did not order anything for plaintiff's eyes.
Docket No. 29, ¶¶ 11-13. He did, however, order
treatment for plaintiff's other medical issues.
Id. Parish continued to provide plaintiff with
medical care for his other medical issues while at DCI, but
he never communicated with plaintiff regarding his eye
problems after the intake screening on February 11, 2015.
Id., ¶ 14.
one month later, on March 17, 2015, the DOC transferred
plaintiff to JBCC. Id., ¶ 15. Bruns performed a
transfer screening similar to the intake screening Parish
performed at DCI. Id., ¶¶ 16-19. Plaintiff
reported “blind left eye, right eye vision was
decreasing with foggy, floaters, ghosts, and spots in
vision.” Docket No. 42 at 4. The “Progress
Notes” that Burns completed that day shows that
plaintiff reported left eye blindness and poor vision in his
right eye with cataract. Docket No. 29, ¶ 18; Docket No.
31-1 at 20. Bruns noted that plaintiff had an appointment
with UWEC scheduled for April 14, 2015. Id., ¶
week later, on March 30, 2015, plaintiff submitted a Health
Services Unit (“HSU”) request. Id.,
¶ 24. The requested stated:
I am scheduled for an eye appointment in Madison. My right
eye is painful the Tylenol is not working for pain. It feels
like there is a tear in my eye. I am very red it drains then
dries up. I have to put warm water on a washcloth to get it
open. When can it be looked at, soon I'm hoping.
No. 42 at 4; see Docket No. 31-1 at 93. Jackson saw
plaintiff's HSU request and scheduled him for an
appointment that same day at 4:15 p.m. Docket No. 29, ¶
26. Plaintiff told Jackson that the symptoms in his right eye
“was getting worse.” Docket No. 42 at 4. Jackson
states that plaintiff complained about pain but did not
report floaters, shadows, or a loss of vision, nor did he
state that he needed to be seen more quickly or that his eye
condition was an emergency. Docket No. 29, ¶¶ 18,
32. Jackson told plaintiff to wash his hands regularly and
not touch his eyes. Docket No. 29, ¶¶ 29, 34;
see also Docket No. 31-1 at 20. According to
Jackson, plaintiff's primary focus at the appointment was
to find out when his appointment with UWEC was scheduled.
Docket No. 29, ¶ 30. Jackson told plaintiff that he was
scheduled for an appointment in April but she couldn't
tell him the exact date. Id. ¶ 31; see
also Docket No. 42 at 4. Plaintiff allegedly responded
“OK, that's good. I am glad its scheduled.”
Docket No. 31-1 at 20.
week later, on April 6, 2015, plaintiff submitted another HSU
request. Docket No. 29, ¶ 36. The request stated:
“The pain in my left eye is getting bad and the vision
in my right eye is deteriorating, it's as if there is a
retinal detachment. The vision in my right eye has a shadow
in the lower right limiting my vision, some flashes of light,
No. 42 at 4; see Docket No. 31-1 at 94. Bruns
scheduled plaintiff for an appointment the next morning, on
April 7, 2015. Docket No. 29, ¶ 37. Plaintiff states
that he told Bruns “half [his] vision was gone”
and “I had a right eye retinal detachment and I will
lost all my vision if I did not get medical attention.”
Docket No. 42 at 4. Bruns contacted Denise Bonnett and Scott
Hoftiezer regarding plaintiff's complaints; by 9:30 a.m.
that morning, Bonnett and Hoftiezer approved plaintiff's
transfer to the Waupun Memorial Hospital Emergency Room.
Docket No. 29, ¶¶ 39-40. Bunker transported