United States District Court, E.D. Wisconsin
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 97) AND
GRANTING PLAINTIFF'S MOTIONS TO APPOINT COUNSEL (DKT.
NOS. 131, 133)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
plaintiff, who is representing himself, filed this lawsuit
under 42 U.S.C. §1983. Dkt. No. 1. About four months
later, the court allowed the plaintiff to amend his
complaint. Dkt. No. 27. The court screened the amended
complaint and allowed him to proceed on (1) deliberate
indifference to medical needs claims against defendants
Jeffrey Manlove, Belinda Schrubbe, Kristine DeYoung, Carol
Al-Rahrawy and Tammy Westphal; (2) deliberate indifference to
conditions of confinement claims against defendants Josh
Bleiler, Erik Marwitz, Timothy Price, Brian Schmidt,
Micah Moore and Joseph Beahm; (3) a state law medical
malpractice claim against Manlove, Schrubbe and DeYoung; and
(4) a state law negligence claim against Al-Rahrawy and
Westphal. Dkt. No 27.
defendants filed a motion for summary judgment, which is
the time of the events at issue, the plaintiff was
incarcerated at Waupun Correctional Institution. Dkt. No. 117
at ¶1. Manlove was a physician; Schrubbe was the Health
Services manager; DeYoung was a registered nurse; Al-Rahrawy
and Westphal were licensed practical nurses; and Bleiler,
Marwitz, Moore, Price, Schmidt and Beahm were officers who
worked in the Restricted Housing Unit (RHU). Id. at
The Plaintiff's Elevator Pass Claim
October 1, 2014, the plaintiff received a Special Needs
Restriction for a lower tier and an elevator pass.
Id. at ¶21. The defendants explain that the
Special Needs Committee approved the restrictions to address
the plaintiff's vertigo/dizziness. Id. at
¶22. The plaintiff states his vertigo was only part of
the reason he received the pass; he also received the pass to
address his “debilitating back condition.” Dkt.
No. 113 at ¶22. According to the plaintiff, two months
earlier, an off-site specialist had recommended that the
institution house the plaintiff on a lower tier and that it
allow him to use the elevator. Dkt. No. 117 at ¶29; Dkt.
No. 113 at ¶29. The plaintiff says that the off-site
specialist issued the order on August 1, 2014, stating that
the plaintiff should stay on a lower tier “until
‘FURTHER NOTICE.'” Dkt. No. 113 at ¶29.
In a footnote in their reply brief, the defendants maintain
that the order was to remain in place “until further
workup.” Dkt. No. 118 at 2, n.1. In support of their
version of what the off-site specialist said, the defendants
cited their reply to the plaintiff's response to their
proposed findings of fact, Dkt. No. 117 at ¶¶28-29.
Notably, however, the reply makes no mention of
either the plaintiff's “until further
notice” language or the defendants' “until
further workup” language.
defendants attached certain medical records to defendant
Manlove's declaration. Dkt. No. 100-1. The records
include a report from Dr. Raymond J. Hah, dated August 1,
2014. Dkt. No. 11-1 at 257-258. In the section captioned
“ASSESSMENT, ” the reported stated,
Will continue with anti-inflammatory medications, a course of
physical therapy, and tramadol as well as downgrading his
tier level to assist him with some of his ADL requirements. We
will order an MRI of the lumbar spine and see him back in 2-3
months to review those results. . . . At this point, my plan
is to manage him conservatively, see how his symptoms go, and
see if on his next visit he would benefit from an epidural
steroid injection based on the location of his maximal
Dkt. No. 100-1 at 258. Neither the words “until further
notice” or “until further workup” appear in
the three-page report.
time the Special Needs Committee gave him the pass, the
plaintiff was living in general population, which, according
to the defendants has a lot of stairs. Dkt. No. 117 at
¶¶21, 16. Some areas of the general population
units do not have elevators (there is no elevator to get from
the cell hall to the chapel, for example, or to the
cafeteria). Id. at ¶17. The plaintiff agrees
that there are a lot of stairs in general population, but he
clarifies that the areas without elevator access that he
frequented (the showers and the cafeteria) had only one or
two stairs. Id. at ¶16; Dkt. No. 113 at
¶16. He says he didn't go to chapel or recreation
because of the lack of accommodations. Id.
month after receiving the elevator pass, on November 7, 2014,
the plaintiff had another appointment with the off-site
specialist. Dkt. No. 117 at ¶27. Prior to the
appointment, the specialist ordered the plaintiff to undergo
an MRI, which he did. Id. at ¶28. At the
appointment, the specialist noted that the plaintiff's
left leg symptoms had improved somewhat, but that the
plaintiff was complaining of a significant spasm in his low
back, particularly at night. Id. He also noted that
the plaintiff appeared to be in no acute distress, that he
arose easily from the chair, and that he walked freely into
the room. Id. The specialist acknowledged that the
plaintiff had difficulty with heel and toe walking due to
pain, but that he had “5 out of 5” for strength
in his legs. Id.
specialist recommended a trial of epidural steroid
injections, increasing the plaintiff's gabapentin dosage
at bedtime, a muscle relaxer at bedtime, and to follow up in
three to four months. Id. at ¶29. According to
the defendants, the specialist did not recommend a lower tier
restriction as he had in August, did not recommend that the
plaintiff take the elevator instead of the stairs and did not
say that the plaintiff was “physically incapable of
taking the stairs.” Id. The plaintiff disputes
the defendants' interpretation of the specialist's
order. He asserts that the November order should have been
read as a supplement to the August order because the
specialist did not redact or specifically revise the August
order and because the August order was to continue
“until further notice.” Dkt. No. 113 at ¶29.
week after his November appointment with the specialist, the
plaintiff was placed in the RHU. Dkt. No. 117 at ¶30.
The RHU has far fewer stairs than general population; there
are only about eight stairs that inmates must navigate.
Id. at ¶31. A staff member always escorts
inmates in the RHU. Id. at ¶32. Within a few
days, security officers contacted HSU manager Schrubbe and
asked her if the plaintiff had a medical need for an elevator
pass. Id. at ¶33. The defendants say that,
while there are elevators in the RHU, they typically are used
to deliver meals and supplies and transport wheelchair bound
inmates. Id. at ¶34. The plaintiff disagrees,
asserting that the RHU elevators were used to transport
inmates with disabilities. Id.; Dkt. No. 113 at
reviewed the plaintiff's file and discontinued his
elevator pass, effective November 17, 2014. Id. at
¶36. According to the defendants, she made this decision
for four reasons: 1) nothing in the specialist's November
2014 recommendation indicated that the plaintiff was
physically incapable of using the stairs, dkt. no. 117 at
¶37; 2) the advanced care providers at the health
services unit believed that the plaintiff was physically
capable of using the stairs, dkt. no. 117 at ¶38, and,
in October 2014, someone (the defendants do not identify who)
observed the plaintiff carrying his mattress and sheets on
his back down the stairs to a lower-tier cell, dkt. no. 117
at ¶39; 3) the number of stairs in the RHU was limited,
especially compared to the stairs in general population, dkt.
no. 117 at ¶40; and 4) in RHU, the plaintiff would be
transported with a hands-on-escort, so there would always be
at least one officer to assist the plaintiff gain his
balance, dkt. no. 117 at ¶41.
plaintiff disagrees with Schrubbe's interpretation of the
specialist's order. Dkt. No. 113 at ¶37. As noted
above, he argues that the November order supplemented the
August order; it did not replace it. Id. He further
asserts that the only advanced care provider in health
services who had an informed opinion of his capacity to take
the stairs was Manlove, and Manlove told him that he would
have approved an elevator pass. Id. at ¶38. The
plaintiff also denies that that he carried his mattress down
the stairs. Id. at ¶39. He explains that he had
been housed in a lower-tier cell for two months by that date,
so it wouldn't make sense that he'd be transporting
his mattress down the stairs, and he says he wasn't moved
near that time. Id. Next, he asserts that there were
about five to six feet of stairs he had to navigate to get to
medical appointments, visits and the showers. Id. at
¶40. Finally, the plaintiff asserts that he had no
reason to think the correctional officers would catch him if
he fell, because in June 2014 he was being transported from
one location to another and a correctional officer allowed
him to fall face-first down some fifteen stairs. Id.
the plaintiff rejoined general population, he was again
permitted to use an elevator pass. Dkt. No. 117 at ¶42.
The Plaintiff's Special Needs Claim
September 5, 2014, Manlove signed a medical
restrictions/special needs form that allowed the plaintiff to
have an extra bath towel, extra washcloth, briefs (also
referred to as adult underwear) and clean bedding as needed
for his urinary incontinence issues. Id. at
¶43. The restriction was to be in effect until December
5, 2014. Id. at ¶44. A little less than a month
later, on October 1, 2014, Schrubbe, who was a member of the
Special Needs Committee, updated the medical
restriction/special needs form and approved Manlove's
recommendation. Id. at ¶45. According to the
defendants, Department of Corrections policy requires inmates
ask the Special Needs Committee to update special needs
restrictions at least thirty days prior to the restriction
expiring. Id. at ¶46. The plaintiff explains
that he did not know this was the policy; he also notes that
he notified Manlove in person on November 21, 2014, that his
restrictions were set to expire in about two weeks. Dkt. No.
113 at ¶47.
received a call from RHU security staff on December 5, 2014
(the day the restrictions expired), informing her that the
plaintiff was claiming to have a linen exchange restriction,
but that it had either expired or was not in the system. Dkt.
No. 117 at ¶48. The plaintiff asserts that he also spoke
to DeYoung in person that day about his restrictions
expiring. Dkt. No. 113 at ¶48. According to the
defendants, DeYoung entered a temporary order extending the
plaintiff's linen exchange to March 2015, until the
Special Needs Committee could review and approve the order.
Dkt. No. 117 at ¶49. The defendants indicate that
DeYoung sent the updated restriction to RHU, but that the
restriction did not make it into the binder or WICS (the
electronic log). Id. at ¶¶50, 69. The
plaintiff disputes that DeYoung placed the order; he
questions why the order is not in WICS and argues that she
created the document after-the-fact. Dkt. No. 113 at
December 5, 2014, the plaintiff filled out a health services
request asking for his pillow, extra linen, cane, ice bag and
briefs to be extended; he noted that these items expired on
that day. Dkt. No. 117 at ¶51. According to the
defendants, health services received the request three days
later. Id. The defendants highlight that the request
did not state that officers were refusing to provide the
plaintiff with these items (though elsewhere they assert that
policy compelled refusal of such requests), nor did his
request inform health services that he was sleeping in
urine-soiled sheets, blankets and clothing. Id. at
¶51. The plaintiff explains that he did not need to
inform health services that he was wetting himself because
his condition was well known. Dkt. No. 113 at ¶51.
December 10, 2014-two days after the date on which the
defendants indicate they got the plaintiff's first HSU
request-health services received another request from the
plaintiff explaining that his restrictions had not been
updated. Dkt. No. 117 at ¶52. Health services (the
defendants do not specify who) forwarded the request to the
Special Needs Committee. Id. According to the
defendants, the plaintiff did not notify Manlove, Schrubbe,
DeYoung or the Special Needs Committee that he was sleeping
on urine-soiled bedding until December 17, 2014. Id.
at ¶53. The plaintiff doesn't dispute that he
didn't specifically notify them that he was sleeping on
urine-soiled bedding and clothes, but he clarifies that he
told Manlove his restrictions were about to expire on
November 21, 2014, and on December 5 he told DeYoung his
restrictions had expired. Dkt. No. 113 at ¶53, 48, 47.
states that, as soon as she learned on December 17, 2014,
that the plaintiff was sleeping on urine-soiled linen, she
updated the special needs restrictions that same day, and the
plaintiff received clean linens. Dkt. No. 117 at ¶54.
Manlove, Schrubbe and DeYoung state that they did not know
prior to December 17, 2014, that the December 5, 2014 order
was not being followed, or that the plaintiff claimed that he
wasn't getting clean linens. Id. at ¶55.
the plaintiff's complaints about not receiving new briefs
(adult diapers), the defendants indicate that he asked for a
refill on November 3, 2014, and that this request was filled
the next day, id. at ¶56; he asked again on
December 25, 2014, and that request was filled three days
later, id. at ¶58. The defendants assert that
the package the plaintiff received on November 4, 2014
contained eighteen briefs, id. at ¶56, and they
state that inmates are told to request refills five to seven
business days before running out; that information is also in
the inmate handbook. Id. at ¶57. The plaintiff
explains that, if he did not soil a brief, he would wear it
for multiple days, so sometimes a package of eighteen could
last a month or two. Dkt. No. 113 at ¶56.
The Plaintiff's Conditions of Confinement Claim
institution gives inmates two sheets, one hand towel, one
face cloth and one pillowcase, which the inmates can exchange
every Sunday. Dkt. No. 117 at ¶59. Inmates can exchange
their blankets twice per year-a “one-for-one”
exchange where the inmate can receive up to two blankets.
Id. at ¶60. The institution allows inmates to
exchange their linens or blankets more frequently if they
have a restriction from the Special Needs Committee and/or
health services. Id. at ¶61. Security staff are
authorized to do more frequent linen or blanket exchanges
only if there is a medical restriction. Id.
restrictions are stored in a binder that is in the
sergeant's office. Id. at ¶63. The
information is also in the WICS computer program.
Id. The binder and WICS contain the medical
restrictions for all inmates in RHU. Id.
inmate with a medical restriction needs a linen or blanket
exchange, it is the inmate's responsibility to contact
security staff, who check the binder to confirm the inmate
has a restriction. Id. at ¶64. If there is no
restriction noted in the binder, security staff instruct the
inmate to contact the Special Needs Committee or health
services. Id. at ¶65. Under those
circumstances, policy does not permit security staff to
exchange an inmate's linen. Id. Nevertheless,
according to the defendants, if an inmate shows them that his
linen or blankets are soiled, they given him fresh linen and
blankets “as needed.” Id. at ¶66.
The defendants explain that, if an inmate has soiled linens
or blankets, it jeopardizes the health and safety of everyone
on the unit-inmates and staff. Id. at ¶67.
plaintiff asserts that on December 9, 2014, while at the
showers, he asked Bleiler for clean linen. Dkt. No. 117 at
¶¶73-74; Dkt. No. 113 at ¶¶73, 74. The
defendants don't appear to dispute this, but argue that
because this conversation took place at the showers, Bleiler
could not see the plaintiff's linens. Dkt. No. 117 at
¶74. The plaintiff alleged in his amended complaint that
two days later, on December 11, 2014, he again awoke to
soiled sheets, underwear and blanket. Dkt. No. 28 at
¶41. He told Marwitz, id. at ¶42; Dkt. No.
60 at ¶5 (identifying Marwitz as the officer involved in
this incident). The plaintiff asserts that Marwitz told him
that because there was no longer an approved special needs
slip, Marwitz could not replace the soiled linens. Dkt. No.
113 at ¶76.
same date-December 11, 2014-Price and Schmidt were working in
the control center. Dkt. No. 117 at ¶¶77. The
plaintiff alleged in the amended complaint that he pushed his
emergency button and “asked the . . . officer working
in the segregation bubble on first shift to please call
H.S.U. because the PLAINTIFF was being forced to eat, sleep
and sit in urine.” Dkt. No. 28 at ¶42. He later
identified Price and Schmidt as the officers involved in this
incident. Dkt. No. 60 at ¶6. The defendants assert that
there is no record of the plaintiff calling the control
center to complain about his linens that day, and that making
such a request would have been inappropriate because soiled
linens are not a medical emergency. Id. at
amended complaint indicated that the plaintiff finally
received clean linen from Moore on December 14, 2014, because
it was linen exchange day, but that Moore would not exchange
his soiled blanket because only linen was being exchanged
that day. Dkt. No. 28 at ¶43; Dkt. No. 60 at ¶7.
The plaintiff had another incident between December 14 and
December 17; he says that on the 17th, he asked Beahm for
clean linen and a diaper, but was told that there were no
diapers on the medical cart for the plaintiff and that
“he no longer had a medical need for such diapers, or
linen.” Dkt. No. 28 at ¶44; Dkt. No. 60 at
¶8. The defendants argued that there were no diapers on
the cart because the plaintiff failed to properly reorder
them. Dkt. No. 117 at ¶85.
the plaintiff alleges that he notified health services
several times that he did not have his special needs items,
the defendants allege that the first time he specified that
he was sleeping on urine-soiled linens was December 17, 2014.
Id. at ¶87. The plaintiff responds that he
should not have had to specifically state that he was soiling
himself. Id. The plaintiff received clean bedding
and briefs that same day. Id. at ¶86.
The Plaintiff's Migraine Claim
plaintiff had an appointment with DeYoung on January 21,
2015, to seek treatment for his headaches. Id. at
¶92. The plaintiff requested Excedrin Migraine, but that
prescription had lapsed because he had not refilled it since
July. Id. at ¶93. DeYoung noted that the
plaintiff already was taking gabapentin, so she ordered
acetaminophen, thinking that the plaintiff could treat his
headaches by adding another medication that he could take
with the gabapentin or in between doses of gabapentin.
Id. at ¶94. (The plaintiff says he never got
the acetaminophen. Id.) The plaintiff states that
DeYoung told him that she would consult with Manlove about
what other medications would be needed. Dkt. No. 113 at
little more than two weeks later, on February 6, 2015,
DeYoung saw the plaintiff again to follow up on his
headaches. Dkt. No. 117 at ¶96. The defendants assert
that the plaintiff told DeYoung that the acetaminophen was
not helping. Id. at ¶97. According to the
plaintiff, DeYoung told him that she had forgotten to talk to
Manlove about prescribing other medications to treat his
migraines, dkt. no. 113 at ¶96, and he never got the
acetaminophen, dkt. no. 113 at ¶97.
same day, DeYoung spoke with Manlove, who orally prescribed
Nortriptyline, which can be used to treat and prevent
headaches. Dkt. No. 117 at ¶98. Although DeYoung put the
order in the Prescriber's Orders, the order “did
not make it” onto the plaintiff's Medication
Profile. Id. at ¶99. As a result, the
medication room never received the order, id. at
¶100, which meant that Nortriptyline was never ordered
from the pharmacy or delivered to the plaintiff, id.
week later, on February 12, 2015, and again on March 17,
2015, DeYoung had appointments with the plaintiff.
Id. at ¶108. The defendants assert that the
plaintiff did not complaint about not receiving the
Nortriptyline at either appointment, dkt. no. 117 at
¶108; according to the plaintiff, he did not know that
Manlove had ordered Nortriptyline, so he asked DeYoung if
anything was being done about getting him medication for his
migraines, dkt. no. 113 at ¶108. The plaintiff asserts
that DeYoung told him that he had another surgery coming up
that would hopefully cure the migraines. Id. The
plaintiff also asserts that, on February 15, 2015, he asked
Schrubbe if DeYoung had talked to the doctor about medication
for his migraines. Id. at ¶106.
plaintiff concedes that he saw other health care providers
between February and May 2015, but he asserts that he did not
know that Manlove had prescribed Nortriptyline. Id.
at ¶109. The plaintiff further concedes that he was
taking other pain medications during that time for his back
condition, but he explains that they did not prevent his
migraines from occurring nor did they help with the pain from
his migraines. Id. at ¶¶110-111.
to the defendants, inmates are told that, if their
medications do not arrive within seven to ten days, they
should contact health services to notify them of the delay.
Dkt. No. 117 at ¶103. The plaintiff explains that he did
not know that Manlove had prescribed Nortriptyline, so he did
not know there was a delay in it being delivered. Dkt. No.
113 at ¶103.
9, 2015, more than three months after Manlove orally
prescribed Nortriptyline, the plaintiff received a response
to an inmate complaint he had filed. Id. at
¶105. The response indicated that Manlove had prescribed
medication to address his migraines, but no one had ordered
the medication. Id. That same day, the plaintiff
sent a health services request to HSU, complaining that he
had not received the medication. Dkt. No. 117 at ¶105.
Health services received the request the next day and sent an
order to the medication room on May 11, 2014. Id. at
¶¶105-106. The defendants assert that May 11, 2015
was the first time the medication room became aware that an
order for Nortriptyline existed for the plaintiff.
Id. at ¶105. The plaintiff received his first
dosage of Nortriptyline on May 15, 2015. Id. at