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Key v. Shannon

United States District Court, W.D. Wisconsin

February 7, 2019

PRINCE D. KEY, Plaintiff,
v.
ROBERT SHANNON, JOSEPH CICHANOWICZ, JOSHUA KOLBO, and GARY BOUGHTON, Defendants.

          OPINION AND ORDER

          James D. Peterson, District Judge.

         Plaintiff Prince D. Key, an inmate at the Wisconsin Secure Program Facility, alleges that defendant prison officials violated his rights by failing to provide him with his medications four times. Key brings claims under the First, Eighth, and Fourteenth Amendments and under a Wisconsin-law negligence theory. Defendants removed the case from state court.

         Only days after the court's preliminary pretrial conference, Key filed a motion for partial summary judgment on his Eighth Amendment claims. Dkt. 12. The court granted defendants extra time to file their response but denied their request to extend their deadline all the way to the March 15, 2019 dispositive-motions deadline. Dkt. 24. Because I conclude that Key fails to show that he is entitled to judgment as a matter of law, I will deny his summary judgment motion.

         UNDISPUTED FACTS

         I draw the following facts from the parties' summary judgment materials.[1]

Plaintiff Prince D. Key is an inmate at Wisconsin Secure Program Facility (WSPF), located in Boscobel, Wisconsin. Key says that he suffers from ulcerative colitis, a disease causing inflammation in the digestive tract. He also suffers from post-traumatic stress disorder, anti-social personality disorder, and depression. During the events of this case, he was prescribed medications, including duloxetine, promethazine, diphenhydramine, trazodone, paroxetine (Paxil), and mirtazapine.

         Defendants contend that Key provides no evidence to show that he suffers from these diseases or that defendants were aware that he suffered from them. But Key has submitted evidence that shows a range of medical problems. Medical records Key attaches to his reply state that he was diagnosed with “focal active colitis, ” see Dkt. 28-1, at 7, so I will assume that he suffers from some type of bowel malady. The fact that he was prescribed medications normally used for treatment of depression or other mental health problems is enough to show that he suffers from some type of mental health problem. It is undisputed that Key was prescribed medication to treat health problems. And he does say in his verified complaint that Correctional Officer Robert Shannon knew about his bowel problems because he called the Health Services Unit several times to alert medical staff about Key passing “a lot” of blood in his stool. See Dkt. 1-2, at 5. I take Key to be saying that he was prescribed promethazine to treat pain from his bowel problem.

         During the time relevant to this lawsuit, defendant Shannon was assigned the second shift, working from approximately 2 p.m. to 10 p.m. This meant that Shannon was responsible for dispensing the medication to the inmates at “bedtime, ” one of four “med pass” times in a day.

         When it is time for med pass to begin, the unit's control center issues a PA announcement. Defendants say that each inmate with a prescription is expected to use the intercom to confirm that he indeed wants his prescribed medication. Staff members in the control center compile a list of inmates who responded to the PA message. The unit sergeant gives the list to an officer who then retrieves the medication cart. Defendants say that at the time of the events in question, an inmate's failure to respond via intercom meant that the inmate would be considered to have refused his medication. Key says that this procedure was not always followed, and facts below appear to show that prison officials would allow an inmate to later ask for medication in person.

         Officers give an inmate medication by putting it in a paper cup and placing it on the ledge of the opened “trap” in the inmate's door. Any time the trap is opened, there is an increased risk to an officer. Particular concerns are that an inmate could attempt to attack an officer with a weapon, or throw urine or feces at the officer. For the safety of staff members conducting the med pass, inmates are required to have their light on and be fully clothed.

         On February 21, 2017, defendant Shannon passed out “bedtime” medication to inmates. When Shannon passed by Key's cell, Key told Shannon that he wanted his medication. Shannon reviewed the list of inmates who had replied by intercom; Key was not on the list. So Shannon did not give Key his medication. Key later asked third-shift officers for his medication and they gave it to them. The unit manager told Shannon that even though the practice had been to mark an inmate's failure to respond as a refusal of medication, staff members should provide the medication if the inmate later requests it.

         Key told defendant Sergeant Joshua Kolbo about the denial. Kolbo thought the denial was appropriate because Key did not answer the medication call. Key wrote to defendant Warden Gary Boughton, complaining about being required to respond with the intercom to receive medication. Key also filed an inmate grievance about the denial.

         The letter and grievance were resolved much later. The institution complaint examiner recommended that Key's grievance be “affirmed”-in the DOC's parlance, that means that Key should win his grievance-and she stated that although Key should use the intercom to request his medication, “failure to do so should not result in medication denial.” Dkt. 1-2, at 18. She said that the unit supervisor spoke to Shannon about the issue. On March 15, 2017, defendant Boughton accepted the recommendation and affirmed the grievance. On March 21, 2017, Boughton responded to Key's February letter, stating, “It is helpful when inmates signal on the intercom they want their medications” and, “when both staff and inmates make an effort to fulfill [medication] service delivery, the outcomes can be much more desirable.” Dkt 17, at 2 ¶ 3.

         In the month that Key's grievance was pending, there were further incidents regarding med passes. On February 24, 2017, Key was wearing a “du-rag” head covering when Shannon came by to pass out medication. Shannon says that he believed at the time that it was a requirement for all inmates to remove their du-rags during med pass, for safety reasons-the concern was than an inmate could be hiding a weapon or other harmful material with which the inmate could harm the officer while the trap was open. Key says that wearing a du-rag was not actually against the rules. Key also says that Shannon told him that “since people want to complain, now we're following all the rules.” Key ...


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