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Harris v. Manlove

United States District Court, W.D. Wisconsin

September 11, 2019

LARRY DONNELL HARRIS JR., Plaintiff,
v.
JEFFREY C. MANLOVE and AMY GUNDERSON, Defendants.

          ORDER

          JAMES D. PETERSON, DISTRICT JUDGE

         Plaintiff Larry Donnell Harris Jr., appearing pro se, is a prisoner currently housed at Waupun Correctional Institution. Harris was convinced to undergo a blood draw testing him for certain blood-borne pathogens after he assaulted a correctional officer. He alleges that defendant prison officials violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution when they misled him about the scope of a blood draw and the intended use of the results.

         Defendants have filed a motion for summary judgment, Dkt. 52, which I will grant. As applied to blood draws from inmates, the limits of the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment are not clearly established. Accordingly, I conclude that defendants are entitled to qualified immunity.

         PRELIMINARY MATTERS

         This case is about the steps taken by DOC officials to test Harris's blood for pathogens after he was involved in an altercation with non-defendant Correctional Officer Jason Rhode.

         Under DOC policy, testing can be performed only after a non-DOC “advanced care provider”- a medical professional with authority to prescribe, such as a doctor or nurse practitioner- concludes that a DOC staff member was “significantly exposed” to another person's potentially infectious bodily fluids. See Dkt. 25-1 (the version of the policy in place at the time of the events). Defendant Jeffrey Manlove ordered the blood draw after someone informed him that Rhode had been significantly exposed to Harris's bodily fluids.

         Harris filed a motion to compel discovery of the form completed by the outside advanced care provider concluding that Rhode was significantly exposed. Dkt. 30. Harris also sought to compel more detailed answers from defendant Manlove in response to interrogatories about who filled out the exposure form, who told Manlove that there was indeed a significant exposure warranting blood testing from Harris, and who gave the test results to Rhode's medical provider.[1] Manlove's responses to these questions were that he didn't know or didn't remember.

         Harris calls these answers evasive; defendants call them Manlove's good-faith responses to the questions. I have no reason to doubt Manlove's assertion. The ordinary way to get around holes in a party's memory is to recover the contemporaneous documents from the events in question. Defendants say that they searched for records and cannot locate the “significant exposure” form completed by an outside provider. Nor does there appear to be any documentation of who communicated the test results to Harris's medical provider. Defendants cannot be compelled to turn over materials they do not have. They have provided Harris with the information they do have from the events in question: incident reports completed after the altercation and Harris's medical records. At summary judgment they have also produced a declaration from Rhode in which he explains that one of his providers told him the test results. Because defendants have provided the information they have, I will deny Harris's motion to compel.

         I note that Harris's desire to discover more information about the DOC's response to the altercation is understandable; if defendants had that information it would be discoverable. But as my analysis below shows, the case ultimately does not hinge on the identity of the provider who concluded that there was a significant exposure event, or even whether that conclusion was correct. And although there is no record of how the test results were transmitted to Rhode's provider, Rhode himself says that he did receive the information.

         Before defendants filed their summary judgment motion, both parties sought extension of the dispositive-motions deadline. Harris filed a motion asking to extend that deadline to 60 days after a ruling on his motion to compel. Defendants filed a four-day-late brief in response stating that only a short extension was appropriate. Harris filed a motion to strike the late response, Dkt. 46, which I will deny as moot, because defendants later filed their own motion for further extension of the dispositive-motions deadline, Dkt. 51, along with their summary judgment motion. I'll grant in part both parties' motions for an extension and I will allow defendants' motion for summary judgment. There is no need to give Harris more time to file his own summary judgment motion; he has already provided his arguments in favor of his claims. But as explained below, I conclude that his claims must be dismissed under the doctrine of qualified immunity.

         UNDISPUTED FACTS

         Plaintiff, Larry Donnell Harris, Jr., is incarcerated at Waupun Correctional Institution (WCI). Defendant Jeffrey Manlove is a physician at WCI and defendant Amy Gunderson is a registered nurse who worked at WCI during the events at issue here.

         Harris was previously incarcerated at Columbia Correctional Institution (CCI), in Portage, Wisconsin. On February 18, 2016, while Harris was at CCI, he assaulted Correctional Officer Jason Rhode. Rhode said that he does not remember much of the incident. Officers responding to the assault reported that Rhode was bloodied and perhaps suffered a concussion, and they reported seeing “a lot” or “copious amounts” of blood on the floor. Dkt. 55-3, at 3, 7. Harris says that he did not sustain any injuries himself or expose Rhode to any of his bodily fluids.

         The DOC's Division of Adult Institutions has a policy about the medical response to employee exposure to blood-borne pathogens such as human immunodeficiency virus (HIV) and hepatitis B and C. See Dkt. 25-1, at 11-13 (Division of Adult Institutions Policy DAI Policy No. 500.20.03, “Management of Employee Exposure to Blood Borne Pathogens”).[2]Under that policy, a person who ...


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