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Watts v. Szetela

United States District Court, W.D. Wisconsin

June 25, 2019

WILLIAM M. WATTS, Plaintiff,



         Pro se plaintiff William M. Watts alleges that he was injured after being sprayed in the face with a roof-sealing chemical used by a contractor at the Federal Correctional Institution in Oxford, Wisconsin, where Watts was incarcerated in 2015 and 2016. He is proceeding on claims against prison staff for failing to protect him from the accident and for failing to provide him with adequate medical care afterward. He is also proceeding on negligence claims against Brazos Urethane, Inc., the construction company that used the chemical sealant, and Mark Kidman, a privately employed optometrist who provided eye care to Watts.

         Before the court is a motion to dismiss filed by the prison officials represented by the government.[1] Dkt. 36. They argue that (1) Watts failed to exhaust his administrative remedies for his Federal Tort Claims Act (FTCA) claims; (2) Watts's Bivens claims against defendants Ritter, Laufenberg, and Harvey are barred by absolute immunity; (3) the court lacks personal jurisdiction over defendant Connors; (4) the court should decline to imply a Bivens remedy against defendants Szetela, Williams, Revell, and Connors; (5) Watts's allegations do not state a claim against defendants Szetela, Gupta, Williams, Revell, and Connors; and (6) all of the prison official defendants are entitled to qualified immunity.

         In a letter to the court, Watts concedes that he did not exhaust his FTCA claims and asks that those claims be withdrawn. Dkt. 35 at 2. And in opposing defendants' motion to dismiss, Watts again concedes that he did not exhaust his FTCA claims. Dkt. 42 at 3. Therefore, I will dismiss the FTCA claims. See 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 112 (1993) (“The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.”).[2] Watts also agrees that his claims against defendants Revell and Connors should be dismissed. Id. at 5.[3] This leaves Watts's claims against defendants Szetela, Williams, Ritter, Laufenberg, Gupta, and Harvey to be addressed in this order.

         I will dismiss Watts's claims against Laufenberg, Ritter, and Harvey because their position as officers of the United States Public Health Service immunizes them from Watts's Bivens claims. I will dismiss Watts's claims against Szetela, Williams, and Gupta because Watts's allegations are not sufficient to state constitutional claims against these defendants. The only remaining claims are Watts's claims against Dr. Kidman and Brazos Urethane, Inc.


         On September 14, 2015, while was Watts was outside the education building at FCI-Oxford, he was sprayed in the face with a chemical sealant being applied to a roof by workers for defendant Brazos Urethane, Inc. The next day, Watts was seen by defendant Dr. R. Gupta, who said that he did not see any surface burns or scarring on Watts's eyes. Gupta told Watts that the chemical he was sprayed with was “Green Block Prime 100, ” which Gupta believed was not hazardous.

         On September 16, 2015, Watts sent a message to defendant J. Szetela, a “safety manager” at the prison. Szetela was responsible for making sure proper safety measures were taken for prison projects. Szetela did not immediately respond to Watts's request, but she later told Watts that the chemical was not hazardous and implied that Watts should not be concerned.

         Watts started suffering from headaches and eye aches. Defendant Ritter, a physician's assistant, suggested he keep a “headache log.” At one point, she thought that high blood pressure was causing the headaches, but she ruled that out after she recorded a high blood pressure reading while Watts did not have a headache.

         On May 23, 2016, Watts met with defendant Mark Kidman, an optometrist who worked at the prison on a contract basis. Kidman said that Watts had enlarged optic nerves, which is a warning sign of early-onset glaucoma. Watts asked to meet with an outside eye specialist, but Kidman did not refer him and instead put plaintiff down for a “call-back” for August 2016. Defendants Gupta and Ritter reviewed Kidman's notes and treatment decision.

         On May 27, 2016, Watts told staff he had “ongoing discomfort” after being sprayed with the chemical. Defendant health administrator Melissa Laufenberg responded, but in her response she mentioned only chemicals used by the optometrist. (Laufenberg appears to have misunderstood Watts's complaint.)

         In June 2016, Watts contacted health staff about obtaining tinted eyeglass lenses, because he was experiencing sensitivity to light. Laufenberg denied that request, saying that he needed to “have a diagnosis from an optometrist” to receive tinted lenses. Watts asked for an expedited appointment with an optometrist and then complained to Laufenberg about the delays in treatment.

         On October 25, 2016, Watts spoke with a correctional officer who told him that OSHA had “shut down” Brazos Urethane a couple of times during the ongoing project, and that overspray had damaged employees' vehicles. Later, Watts saw a document showing that the company had not taken proper precautions to protect employees from the sealant being applied to the roof.

         Watts saw an optometrist in October 2016. He was again diagnosed with having enlarged optic nerves. Watts asked Laufenberg if he could see an outside eye specialist. In November 2016, Laufenberg responded that Watts's concerns had been forwarded to the optometrist. But Watts did not receive an outside appointment. In March 2017, Laufenberg told Watts that he could get sunglasses from the commissary.

         In May 2017, Watts met again with Kidman. Despite having his highest eye pressure yet, Kidman did not refer him to an outside specialist. Kidman instead set him for follow-up in six months. Defendant Dr. ...

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