United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
a prisoner incarcerated at Green Bay Correctional Institution
(“GBCI”), was allowed to proceed on claims of
deliberate indifference to his serious medical needs, in
violation of the Eighth Amendment, against nurse Susan Peters
(“Peters”) and health services manager Jean
Lutsey (“Lutsey”), both employed at GBCI. (Docket
#7). Defendants filed motions for summary judgment on April
22, 2019. (Docket #30) (Lutsey's motion); (Docket #38)
(Peters' motion). Along with their motions, Defendants
filed supporting statements of fact. (Docket #32)
(Lutsey's statement); (Docket #41) (Peters'
to those statements, the material facts are as follows.
Plaintiff has complained of back pain for some years. In May
2017, while Plaintiff was incarcerated at Fox Lake
Correctional Institution (“Fox Lake”), a Dr. Mann
determined that Plaintiff did not need back surgery, but
recommended that he see a physiatrist (something like a
doctor of physical therapy). A physiatry appointment was
scheduled, but then cancelled because of Plaintiff's
transfer to GBCI.
was transferred to GBCI in June 2017, and that is when his
contact with Defendants began. Peters became Plaintiff's
primary care provider at GBCI. This included managing his
medications and other avenues to relieve his back pain. This
was quite a laborious task with Plaintiff, as he constantly
wanted to start and stop different medications and increase
or decrease their dosages. Plaintiff also repeatedly
requested narcotic pain medication, but this was refused.
Still, Peters engaged with Plaintiff extensively, adjusting
his care when appropriate and referring him to a pain
of her role to develop a treatment plan for Plaintiff's
back pain, Peters reviewed Dr. Mann's recommendation for
a physiatry consult. Because Plaintiff's medical tests
were somewhat aged at this point, Peters also ordered new
testing. In late October 2017, Dr. Chyatte, the neurosurgeon
who reviewed the tests, agreed that Plaintiff did not need
surgery, but suggested “[c]onsider referral to Pain and
Spine.” (Docket #34-1 at 34). Dr. Chyatte never
specifically recommended that Plaintiff see a physiatrist.
Peters also considered that Plaintiff had undergone physical
therapy less than a year before, and he had told Peters that
the therapy did not work.
determined that a conservative treatment plan was appropriate
in light of the doctors' recommendations and
Plaintiff's history of noncompliance with treatment.
Plaintiff was upset by this and complained vociferously of
pain, the need for surgery, and a physiatry appointment. He
filed many health services requests to this effect.
health services manager, Lutsey only manages the provision of
healthcare at GBCI. She does not prescribe medicine or make
referrals, and only rarely provides direct care to inmates.
She never treated Plaintiff directly. Her only interaction
with Plaintiff was to respond to one of his health services
requests and to approve one of his requests for additional
pillows, as part of one of her separate committee
these facts, neither Defendant violated Plaintiff's
constitutional rights. Prisoners are entitled to a minimal
level of healthcare while in custody. Petties v.
Carter, 836 F.3d 722, 727-28 (7th Cir. 2016). The Eighth
Amendment is violated when the prisoner shows that they
“suffered from an objectively serious medical
condition, ” and that “the individual defendant
was deliberately indifferent to that condition.”
Id. at 728. The Gayton case neatly
summarizes a deliberate indifference claim:
[T]he plaintiff must show that: (1) [he] had an objectively
serious medical condition; (2) the defendants knew of the
condition and were deliberately indifferent to treating
h[im]; and (3) this indifference caused h[im] some injury. An
objectively serious medical condition is one that has been
diagnosed by a physician as mandating treatment or one that
is so obvious that even a lay person would perceive the need
for a doctor's attention. A medical condition need not be
life-threatening to be serious; rather, it could be a
condition that would result in further significant injury or
unnecessary and wanton infliction of pain if not treated.
With regard to the deliberate indifference prong, the
plaintiff must show that the official acted with the
requisite culpable state of mind. This inquiry has two
components. The official must have subjective knowledge of
the risk to the inmate's health, and the official also
must disregard that risk. Evidence that the official acted
negligently is insufficient to prove deliberate indifference.
Rather, deliberate indifference is simply a synonym for
intentional or reckless conduct, and that reckless describes
conduct so dangerous that the deliberate nature of the
defendant's actions can be inferred. Simply put, an
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference. Even if a
defendant recognizes the substantial risk, he is free from
liability if he responded reasonably to the risk, even if the
harm ultimately was not averted.
Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010)
(citations and quotations omitted). In sum, “deliberate
indifference means actual, personal knowledge of a serious
risk, coupled with the lack of any reasonable response to
it.” Ayoubi v. Dart, 724 Fed.Appx. 470, 474
(7th Cir. 2018).
arguendo that Plaintiff's pain qualified as a
serious medical condition, Peters comes nowhere close to
displaying deliberate indifference to his treatment needs.
Deliberate indifference claims against medical personnel
cannot be sustained on “negligence or even
malpractice.” Pyles v. Fahim, 771 F.3d 403,
409 (7th Cir. 2014). Rather, “[t]he federal courts will
not interfere with a [provider's] decision to pursue a
particular course of treatment unless that decision
represents so significant a departure from accepted
professional standards or practices that it calls into
question whether the [provider] actually was exercising [her]
professional judgment.” Peters clearly exercised her
professional judgment again and again when dealing with
Plaintiff. She engaged in a constant, varied, and determined
campaign of treatment in an attempt to address his pain,
though she would not prescribe the narcotics he desired.
Lutsey, she lacks the required personal involvement to even
implicate Plaintiff's Eighth Amendment rights. Burks
v. Raemisch, 555 F.3d 592, 593-94 (7th Cir. 2009)
(“Section 1983 does not establish a system of vicarious
responsibility. Liability depends on each defendant's
knowledge and actions, not on the knowledge or actions of
persons they supervise.”) (citation omitted). She did
not treat Plaintiff directly and, as relevant to this case,
merely responded to one of his written complaints about his
responded to each of Defendants' motions separately. Both
sets of responsive materials include a brief, a collection of
exhibits, and a set of “findings of fact.” These
“findings of fact” are affirmative statements of
fact, comprising either citations to Plaintiff's
deposition in this case, or a listing of exhibits with some
explanatory parentheticals. Se ...