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Pulera v. Sarzant

United States District Court, E.D. Wisconsin

June 12, 2019

VICTORIA SARZANT, et al., Defendants.



         This case arises out of the unsuccessful suicide attempt of Plaintiff Zachary Pulera in the early morning hours of April 23, 2012, while he was an inmate at the Kenosha County Jail. Pulera attempted to hang himself with a bed sheet. Alerted by one of the prisoners on Pulera's cellblock, correctional officers were able to cut him down before he expired, but not before he lost consciousness and became unresponsive. Pulera was transported to the Neuro-Intensive Care Unit at Froedtert Hospital in Milwaukee where he was revived. Claiming that his suicide attempt was caused by the deliberate indifference and/or negligence of the correctional and health care staff of the jail, Pulera commenced this action against the County; the Sheriff; various administrative staff members, supervisors, and correctional officers; and the doctor, nurses, and their respective employers with whom the County contracted to provided health care to inmates, along with their insurers. According to his second amended complaint, Pulera seeks monetary damages for, inter alia, serious emotional and psychological distress; permanent brain damage and memory problems; pain and suffering; loss of wages and earning capacity; cost of medical care; treatment and services; and loss of enjoyment of life. Second Amended Compl., Dkt. No. 59 at ¶ 145.

         After a series of delays caused by difficulties encountered by the plaintiff in identifying the various defendants, the case was transferred to the undersigned in December 2017. Since that time, various claims and some of the defendants have been dismissed on motion or by stipulation. On January 9, 2019, the court granted summary judgment in favor of Dr. Karen Butler, the physician employed by Advanced Correctional HealthCare, Inc. (ACH), who was providing medical care to inmates at the time of Pulera's attempted suicide. Presently before the court are the motions for summary judgment of the remaining defendants. These include Nurses Erica Rea, Denise Gilanyi, Markella Reed, Sylvia Summers-Sgroi, and Lyndsay Hauck (collectively, the Nurse Defendants); their employer Visiting Nurse Community Care, Inc. (VNCC); VNCC's insurer Cincinnati Specialty Underwriters Insurance Company; Correctional Officers Victoria Sarzant, Shane Gerber, Dennis Sawilla, Bruce Clemens, Duane Corso, Darron Newton, Cheryl Slater, Dennis Remus, Robert Pallamolla, Charles Smith, Marck Schlecht, and David Beth (collectively, the County Defendants); Kenosha County and its insurer Wisconsin Municipal Mutual Insurance Company; and ACH. For the reasons that follow, those motions will also be granted.


         In the early morning of April 21, 2012, Pulera was arrested on a charge of felony bail jumping for violating the conditions of his bond by consuming alcohol. Pulera had been released on bail in October of 2011 on a state charge of Battery to a Law Enforcement Officer, in violation of Wis.Stat. § 940.20(2). Pulera arrived at the Kenosha County Jail around 2:00 a.m. following his arrest on April 21. At intake, the transporting officer observation report and a medical/mental screening visual observation report were completed. The report stated that Pulera did not exhibit any risk or harmful behavior during the arrest or transport, that he did not make any suicidal gestures or statements during the arrest or transport, and that he was prescribed Clonazepam and Tramadol. Dkt. No. 186-1 at 1, 3. Pulera was initially placed in a holding cell at the jail to sober up because he was intoxicated. The Zone One Protective Holding Report noted that intoxication and/or drug use was suspected and that Pulera was uncooperative, combative, and seemed to have difficulty or an inability to follow instructions. Pulera later pounded on the door, claiming he was cold, and Correctional Officer (CO) Victoria Sarzant gave him a jacket. Sarzant completed a protective holding report, which stated that Pulera was not suicidal.

         The conclusion that Pulera was not suicidal while in the holding cell is disputed by Pulera's cousin Edward Burke, who was arrested with Pulera for driving under the influence. Burke testified that he was placed in a holding cell across the hallway from Pulera and saw him drag his thumb across his throat, which Burke interpreted as a suicidal gesture. Burke also stated that Pulera made several statements to the effect of “I'm done; it's over, ” Burke Depo. at 14:1-6, 14:23-15:3, Dkt. No. 202-26 at 5, which he also interpreted as meaning he intended to harm himself. Burke claims that he told multiple correctional officers of his concern but was unable to specifically identify any officer to whom he conveyed such information. Once they were removed from the holding area, Burke, who was released from custody that morning, had no further contact with Pulera.

         At 7:00 a.m., Admission & Release Specialist Shane Gerber began the booking process for Pulera. Gerber reviewed the intake documents and confirmed that Pulera did not have an MH-1 Special Instruction, a computer entry that indicates whether the inmate had previously been placed on a Level 1 Suicide Watch. Gerber then conducted a booking interview with Pulera and asked him questions from a medical questionnaire form. Pulera responded “no” to the following questions: “[h]ave you ever attempted or contemplated suicide” and “are you contemplating suicide now.” Dkt. No. 185-1 at 1. Pulera was then placed in a general population cell located in the H-Block section of Zone 5.

         Pulera had answered two of the questions differently when he was booked into the Jail in October 2011. At that time, he stated he had been in a mental institution in Kenosha for “drug problems” three years earlier and that “a long time ago” he had contemplated suicide. Dkt. No. 202-7 at 1. There is also evidence that he had been on Level 1 Suicide Watch during that period of incarceration at the Kenosha County Jail. On October 7, 2011, Pulera was seen by a crisis worker for “depressed mood/anxiety.” Dkt. No. 202-8 at 1. He tearfully reported experiencing depression over the fact that his brother had killed himself a month earlier. The crisis worker reported that Pulera “verbally contract[ed] for his safety, ” was advised of the services her agency provided, and agreed to tell the guards if he started to feel depression. The report further states, “They are going to take him from Level 1 down to Level 2 Watch.” Id. But this was more than six months before the events giving rise to Pulera's current claims.

         With respect to his incarceration that began in the early morning hours of April 21, 2012, Pulera submitted the first of three inmate medical requests (IMR) at 12:15 p.m. It read, “I need my [Clonazepam] and my [Tramadol]. My family is dropping them off. For my pain [illegible word] and [depression].” Dkt. No. 202-18 at 1. Nurse Andrea Rae responded as follows to his request: “While you are here you are under the care of the jail M.D. You will be notified of the medications brought in.” Id. Pulera's prescription medications, Clonazepam and Tramadol, were dropped-off by Pulera's brother at the jail at 2:35 p.m. Nurse Rae counted the pills and determined that 26 of the Clonazepam pills and 39 of the Tramadol pills were missing from the containers even though the prescriptions had been filled the previous day. Rae spoke with Dr. Karen Butler regarding Pulera's medication, and was told by Dr. Butler not to make the prescriptions available to Pulera because of the significant number of missing pills. Although Pulera's brother testified that he called several times and spoke to nursing and correctional staff about Pulera's request for medication, Pulera's depression, and the possibility of Pulera's suicide, he was unable to identify the person or persons to whom he spoke.

         Pulera submitted a second IMR at 8:10 p.m. stating, “My [heart] [hurts]. I can't [breathe]. I need my [meds] or I can die. My heart is pounding they are here. I need you to please bring me my [meds] A.S.A.P. Thank you.” Dkt. No. 202-19 at 1. After receiving this IMR, Nurse Denise Gilanyi spoke with Pulera's zone officer who reported that he was not in any distress, and responded to Pulera's IMR as follows: “The jail MD has not set up any medications at this time.” Id.

         The following day, April 22, 2012, Pulera submitted his third and final IMR at 2:30 p.m. stating, “I can't eat, sleep. I am [throwing] up and I am dizzy. I can't [breathe]. I need my blood [pressure] [taken], please see me. My brother and mother just died. I need my [Clonazepam]. I am sick.” Dkt No. 202-20 at 1. Nurse Markella Reed asked a CO to see how Pulera was doing and was told that Pulera was walking around, making phone calls, and speaking with other inmates. Reed responded “[y]our blood pressure will be checked, ” id., and contacted Dr. Butler at 4:45 p.m. to discuss Pulera's medical condition and IMR. Dr. Butler ordered that Pulera's vitals be taken and any abnormalities be reported back to her. At 8:00 p.m., Nurse Sylvia Summers-Sgroi checked Pulera's temperature, pulse, respiration, blood pressure, and heart rate and did not find them to be abnormal.

         At 1:45 a.m. on April 23, 2012, CO Bruce Clemens and CO Duane Corso heard a commotion in Zone 5, where Pulera was housed, followed by yelling by an inmate in Pulera's block that someone is hanging. Clemens went to the nearby control room to open the H-block door and request assistance over the jail's radio system while Corso went through the now open H-block door to Pulera's cell. During approximately the next 30 seconds, jail supervisor Darron Newton arrived, obtained a 911 knife from Clemens from where it was stored in the control room, went to Pulera's cell along with Clemens, entered Pulera's cell, and cut the bed sheet that Pulera was using to hang himself while Clemens and Corso attempted to take the pressure off the ligature around Pulera's neck. After cutting Pulera down and placing him on the ground, 911 was called at 1:47 a.m., and Nurse Summers-Sgroi arrived at Pulera's cell to provide him emergency medical care.


         Summary judgment should be granted 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). In other words, the time and expense of the parties and the court should not be wasted on a trial when there are no material facts in dispute, one party is entitled to judgment on those facts, and thus there is nothing to try. In deciding a motion for summary judgment, 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. “[A] ‘metaphysical doubt' regarding the existence of a genuine fact issue is not enough to stave off summary judgment, and ‘the nonmovant fails to demonstrate a genuine issue for trial where the record taken as a whole could not lead a rational trier of fact to find for the non moving party.” Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001) (quoting Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir. 1996)). 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 marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).


         A. The Nurse Defendants and VNCC

         Pulera's remaining claims against the Nurse Defendants and VNCC are: 1) deliberate indifference to his mental health needs in violation of his rights under both the United States and Wisconsin constitutions; 2) a Monell claim against VNCC; and 3) state law negligence against VNCC. Pulera's negligence and State constitutional claims will be addressed at the end of the court's order.

         1. U.S. Constitutional Claims Against the Nurse Defendants

         The Fourth Amendment governs the treatment of arrestees during the period of confinement between arrest without a warrant and a probable cause determination. Villanova v. Abrams, 972 F.2d 792, 797 (7th Cir. 1992). The Due Process Clause of the Fourteenth Amendment governs from the probable cause determination until conviction for a crime, at which point the Cruel and Unusual Punishment Clause of the Eighth Amendment applies. Bell v. Wolfish, 441 U.S. 520, 531 (1979). In the court's order granting Dr. Butler's motion for summary judgment, Dkt. No. 169, the court applied the Fourth Amendment's objective unreasonableness standard to Pulera's constitutional claims against her because it appeared that he was not in federal custody and no evidence was offered that either a federal or state judicial officer had determined there was probable cause that authorized Pulera's custody at the time of the events giving rise to the action. Dkt. No. 169 at 11. Neither the defendants nor the plaintiff have ...

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