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Lindell v. Jess

United States District Court, W.D. Wisconsin

June 12, 2019

NATE A. LINDELL, Plaintiff
v.
CATHY JESS, GARY BOUGHTON, LEBBEUS BROWN, C.O. SHAWN GALLINGER, MARK KARTMAN, JOHN DOES 1 AND 2, JEAN LUTSEY, A.C.P., SUSAN L. PETERS, R.N. MARY H. ALSTEEN, A.C.P., LESLIE A. MATHEWSON, PSYCHOLOGISTS TODD L. HAMILTON, and L. ADAMS, Defendants.

          OPINION AND ORDER

          Stephen L. Crocker, Magistrate Judge.

         Pro se plaintiff Nate A. Lindell has filed this lawsuit under 42 U.S.C. § 1983, contending that the defendants violated his First, Eighth, and Fourteenth Amendment rights by failing to protect him from being shanked at Wisconsin Secure Program Facility (WSPF), by immediately shunting him to the Green Bay Correctional Institution (GBCI), and by failing adequately to treat his physical and mental health issues at GBCI. The parties have consented to magistrate judge jurisdiction, and on December 27, 2018, Lindell filed a motion requesting to proceed on his proposed amended complaint in this lawsuit. (Dkt. 17.) I am granting that motion.

         I have reviewed Lindell's amended complaint as required by 28 U.S.C. § 1915A. Pursuant to Federal Rule of Civil Procedure 21, I am permitting Lindell to proceed on Eighth and First Amendment claims against some of the named defendants related to the WSPF attack and transfer, but I am severing Lindell's Eighth Amendment claims related to his treatment at GBCI . Finally, Lindell has filed a motion for assistance in recruiting counsel (dkt. 28), which I am denying without prejudice.

         ALLEGATIONS OF FACT[1]

         A. The Parties

         Plaintiff Nate Lindell is currently incarcerated at Columbia Correctional Institution, but the events comprising his claims took place when he was incarcerated at WSPF in October of 2018. He names thirteen defendants. Cathy Jess is the Wisconsin Department of Corrections (DOC) Secretary, and Lindell is suing her in her official and individual capacities. He names five WSPF employees: Warden Gary Boughton; Security Director Mark Kartman; Unit Manager Lebbeus Brown; Correctional Officer (CO) Shawn Gallinger; and Supervisor John Doe 1. And he names six GBCI employees: Health Services Unit (HSU) Manager Jean Lutsey; Advanced Care Practitioner (ACP) Susan Peters; RN Mary H. Alsteen; ACP Leslie A. Mathewson; psychiatric provider L. Adams; and Psychological Services Unit (PSU) supervisor Todd L. Hamilton. Finally, he names John Doe 2, the individual (or individuals) responsible for transferring him to GBCI on October 9, 2018.

         B. The Attack on Lindell at WSPF

         While Lindell's complaint includes various allegations related to his opinion that WSPF staff mishandle prisoner safety, the time line of Lindell's allegations related to his claims in this lawsuit begin in May of 2018. At that time, WSPF implemented a revised program for prisoners on administrative confinement status, called the “PACE” program. (Pl. Ex. 2 (dkt. 18-2).) Administrative confinement at WSPF is highly restrictive. Prisoners in administrative confinement can earn back privileges and re-enter the general population by proceeding through four phases that gradually increase privileges and reduce restrictions. Phase 1 is the most restrictive and Phase 4 is the least.

         When WSPF first implemented the PACE program, Brown explained it to all prisoners who were on administrative confinement status. According to Lindell, one major problem with the program is that in Phase 2, prisoners may attend group recreation with one another- in fact, Lindell alleges they must attend group recreation in order to advance to Phase 3-but they must remain shackled until they reach Phase 4. Lindell alleges that this created an environment that allowed dozens of fights, assaults, and stabbings to occur during group activities, since correctional officers are not physically present in the recreation rooms. Lindell claims that when Brown explained the phases, he acknowledged that there would be more fights as a results of this phasing order, but the decision had been made to allow prisoners to get the fighting “out of their system” before reaching Phase 4.

         At some point after implementation of the PACE program, Lindell wrote a letter to Warden Boughton expressing concern with the recreation provisions of the PACE program. Boughton responded that the dangers Lindell described are typical in “nearly any environment, ” and that developing interpersonal skills is a necessary step toward transition into general population. (Pl. Ex. 3 (dkt. 18-3).) Boughton added that Lindell was not required to participate in leisure time activities, and that if he perceived a threat, he could submit a DOC-1803, Inmate Request for Separation. It does not appear that Lindell submitted such a form.

         Lindell alleges that in June 2018, WSPF staff searched all of the cells in the administrative confinement unit, recovering over thirty hand-crafted shanks. Despite these seizures in June, in July a prisoner on administrative confinement status, known to have previously possessed a shank, stabbed another prisoner with a sharpened toothbrush, while they were in the outdoor recreation area.

         At around this time, prisoner Jesse Keith was on administrative confinement status in Phase 2. Lindell alleges that Boughton, Brown, and Kartman knew that Keith was extremely dangerous: he had transferred into WSPF from another state's institutional system, he had founded a white supremacist gang, and he was believed to have committed at least one murder while in prison. Even so, Keith was treated like any other prisoner on administrative confinement status and thus presumably proceeded through the PACE program. On or around October 6, 2018, Keith told another prisoner, Terrance Prude, that he wanted to kill Lindell; according to Lindell, CO Gallinger heard their conversation. At around this time, Gallinger also heard Keith carving a knife from a piece of steel, but he did nothing to protect Lindell. Lindell claims that he and Gallinger have a history of animosity: in 2013 Lindell allegedly threw body waste at Gallinger, and in 2018 Gallinger hampered Lindell's progress through the PACE program by describing his conduct as “picky.”

         On October 8, 2018, Gallinger was training another CO on how to do pat searches, and they escorted Keith to a group indoor recreation room, where Lindell was located. Apparently Gallinger failed to detect a 15-inch blade inside Keith's waste band. After Gallinger and his trainee left Keith and Lindell alone together, Keith stabbed Lindell three times in the head, twice in the upper left arm, in his right eye socket, in his lip, and left middle finger. As a result, Lindell had 31 staples and internal sutures placed in his scalp, undergoing significant blood loss in the process. Due to the attack, Lindell alleges that his already-existing mental health problems worsened.

         C. Transfer to GBCI and Subsequent Treatment

         On October 9, 2018, while Lindell was at the hospital, a sergeant told Lindell that he was being sent to GBCI because WSPF's administration knew that Lindell was going to file a lawsuit related to the attack and they didn't want to deal with it. Lindell was taken directly to GBCI from the hospital. Lindell claims that there was no reason to transfer him because Keith had been taken out of physical contact with all prisoners.

         When Lindell arrived at GBCI, Captain Van Lanen met with Lindell and mentioned that he knew that Lindell filed a lot of lawsuits. Within days of Lindell's arrival at GBCI, an inmate committed suicide in GBCI's restrictive housing unit. Lindell claims that suicide attempts and self-mutilation are so common at GBCI that Van Lanen told Lindell that prisoners were not allowed access to pens. Lindell believes that John Doe 2, the individual responsible for his transfer, was aware that GBCI had been experiencing an increase in instances of self-harm and suicide attempts when deciding to transfer him.

         Upon his arrival at GBCI, Lindell did not receive adequate medical or mental health care. He was suffering from severe pain in his scalp, right shoulder, and wrist, along with headaches, migraines, dizziness and nausea. Even though the hospital had prescribed Toradol for Lindell's pain, RN Alsteen refused to provide it to him on October 9, and ACP Peters withheld it from Lindell on October 10. Neither of these defendants provided Lindell with an effective substitute to alleviate his pain. On October 10, ACP Peters cancelled Lindell's prescriptions for Excedrin-migraine, and Vitamin D, which Lindell had been taking for over three years. Peters also failed to order x-rays of Lindell's left wrist and shoulder for over a month, and Peters refused to examine Lindell's left wrist, right shoulder, and scalp during an examination that took place on October 23, 2018.

         According to Lindell, these treatment failures persisted, but Lutsey refused to address them. Specifically, Lindell submitted a Health Services Request (HSR) on November 7, 2018, to Lutsey directly, complaining that he had met with a nurse who refused to examine his injuries. (Pl. Ex. 5 (dkt. 18-5, at 1).) The next day, Lutsey responded that she should schedule an appointment for him to be seen. (Id.) On November 22, 2018, Lindell submitted another HSR to Lutsey, this time complaining that his liquid medication restriction prevented him from receiving Excedrin and Vitamin D. RN Alsteen responded that Lindell's history of medical misuse warranted the restriction, and he was receiving all medication deemed necessary. On November 30, Lutsey signed off on Alsteen's response. (Pl. Ex. 6 (dkt. 18-5, at 2).)

         Finally, Lindell claims that staff at GBCI did not address his mental health needs. On October 10, 2018, ACP Mathewson cancelled Lindell's anti-depressant (bupropion) and sleep aid (hydroxizine), both of which Lindell had been taking by prescription for three years. The combination of Lindell's recent assault and the cessation of his medications caused him to feel depressed. Lindell submitted two Psychological Service Requests (PSRs), requesting to be evaluated. (Pl. Ex. 7, 8 (dkt. 18-6).) Specifically, on October 18, 2018, Lindell wrote that he had been crying, felt like he “could break, ” and was “desperate” from sadness and hopelessness. Hamilton responded on October 22 that PSU staff had visited him at his cell. In an October 22, 2018, PSR, Lindell requested to be evaluated and expressed concern about the isolating conditions he was enduring, and on October 25, 2018, Adams responded that staff were ...


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