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Wells v. Govier

United States District Court, W.D. Wisconsin

December 27, 2019




         Pro se plaintiff Theraron Wells, an inmate at Wisconsin Secure Program Facility (WSPF), brings this lawsuit under 42 U.S.C. § 1983, alleging that defendant WSPF correctional officers Patrick Govier, Jordan Duve, and Ricky Stilwell gave him medication on which he overdosed in attempts to harm himself. Dkt. 1; Dkt. 30. He says that these defendants were aware of the risk that he would attempt to harm himself with the medication because he was restricted by WSPF from keeping medication on his person due to his history of attempted self-harm. He also alleges that defendant Mark Kartman, WSPF security director, and defendant Lebbeus Brown, a WSPF unit supervisor, failed to train WSPF staff to ensure that Wells stopped receiving medication he wasn't allowed to have. Dkt. 30. After screening Wells's complaint and amended complaint under 28 U.S.C. §§ 1915 and 1915A, I granted Wells leave to proceed on claims under the Eighth Amendment to the United States Constitution and Wisconsin negligence law against Govier and Duve and on Eighth Amendment claims against Stilwell, Kartman, and Brown. Dkt. 16; Dkt. 35.

         Both sides have moved for summary judgment. Dkt. 52; Dkt. 70. Defendants also move to strike a document submitted by Wells, Dkt. 90, that he said was a declaration from correctional officer Michael Roth but that Roth says he never signed. Dkt. 98.

         Wells has presented enough evidence to proceed to trial on his Eighth Amendment claims against Govier and Stilwell and his state-law negligence claims against Govier and Duve, so I will deny defendants' motion regarding those claims. But he hasn't shown that he is entitled to summary judgment on those claims, nor has he produced enough evidence to survive summary judgment on his other claims, so I will deny Wells's motion in its entirety and grant the remainder of defendants' motion.


         Defendants submit a declaration from Roth in which he says that he did not sign the declaration submitted by Wells in Roth's name. Dkt. 99, ¶ 6. The fraudulent declaration's handwriting matches the handwriting in other documents submitted by Carlos Lindsey, a fellow inmate of Wells's who has previously interfered with this case by submitting other fraudulent documents. Compare Dkt. 90 with Dkt. 1 and Dkt. 13; see also Dkt. 18; see also Lindsey v. Johnston, No. 18-cv-398, 2018 WL 66062417 (W.D. Wis. Dec. 17, 2018).

         In response to defendants' motion, Wells says that he didn't realize the declaration was fraudulent when he submitted it. Dkt. 100. He admits that Lindsey drafted the declaration but says that he believed Ross had signed it after Lindsey drafted it, as it was signed in red pen in accordance with WSPF staff practice. Id. Defendants don't ask me to dismiss Wells's case, only to strike the declaration and to forbid Wells from seeking legal assistance from Lindsey for the remainder of this lawsuit. Wells doesn't oppose defendants' motion. I will strike the declaration as requested by defendants. But because of Lindsey's history of misconduct, I will forbid Wells from seeking legal assistance from Lindsey in this or any other case before this court. I will address Lindsey's role in this matter in a future order in one of Lindsey's pending cases, Lindsey v. Johnston, No. 18-cv-398 (W.D. Wis.).


         The following facts are undisputed except where noted.

         A. Background

         In 2018, Wells was confined in one of WSPF's restrictive housing units. Wells's unit primarily houses inmates in two categories of confinement: disciplinary separation and administrative confinement. Inmates in Wells's unit are sometimes subject to additional restrictions, one of which, a “keep on person” or “KOP” restriction, prohibits them from keeping any medication in their cells. KOP restrictions are reviewed periodically by a WSPF committee. At all times relevant to his allegations, Wells was on a KOP restriction because of his history of attempts to harm himself by overdosing on medication.

         A whiteboard near the sergeant's station in the unit lists all inmates housed in the unit and any restrictions they have. During the period at issue, most restrictions, but not KOP restrictions, were also magnetically posted on inmates' cell doors. Unit Supervisor Brown directed WSPF staff to post KOP restrictions out of sight of other inmates, not on cell doors, to avoid violating the privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA).[2]

         Inmates in Wells's unit can receive medications in two ways: by ordering certain over-the-counter medications from the WSPF canteen or by obtaining a prescription from the Health Services Unit (HSU). In both cases, the medications are delivered by correctional officers. The parties don't describe how an inmate requests medication from the HSU. But to order over-the-counter medication from the canteen, the inmate copies order numbers from a canteen menu onto a Scantron order form. Two menus are available: one for inmates in administrative confinement, and one for inmates in disciplinary separation. The disciplinary separation menu, known as the “Step Canteen Menu, ” has fewer items available than the administrative confinement menu or “AC Canteen Menu.” Dkt. 72-1. In particular, the AC Canteen Menu includes a package of acetaminophen containing 24 325-milligram pills, whereas the Step Canteen Menu includes acetaminophen only in two-count packages. Id.

         After the inmate has completed the order form, he gives the form to a sergeant for review to ensure that the inmate used the correct menu and is allowed to have the requested items. If the sergeant approves the order, he sends it to the business office, whose staff check the order numbers against its list of restricted supplies and inmate restrictions. If the business office staff don't find any restricted items, they process the form electronically. The inmate's items are then placed into a bag along with an itemized receipt to be delivered to the inmate by a correctional officer. Correctional officers aren't required to look at the whiteboard every day or before delivering canteen orders.[3]

         B. Correctional officer defendants

         On three occasions, Wells received medication from correctional officers that he should not have received under his KOP restriction and that he later took in attempts to harm himself through overdose. The parties agree that defendant Govier gave medication to Wells on the first occasion and that defendant Duve did so on the second. Wells says that defendant Stilwell brought him medication on the third occasion, which defendants deny.

         1. Defendant Govier

         On May 2, 2018, defendant Govier brought Wells a container of medication from the HSU. Wells told Govier that he was on a KOP restriction and wasn't allowed to have such medication in his cell, after which Govier did not give Wells the medication.

         On May 8, 2018, Wells ordered a bottle of 24 acetaminophen pills from the canteen along with several other food and hygiene items. Govier delivered Wells's items, including the pills, on May 10. Wells didn't tell Govier that he had any suicidal intentions or that he intended to use the pills to harm himself. But Wells does say that he told Govier that he was still on a KOP restriction. He supports this with an affidavit from Eric Conner, a fellow WSPF inmate, who says that he heard Wells tell Govier about the KOP restriction. Dkt. 56, ¶ 6. Conner says that Govier replied, “Man, if canteen let you order then I don't care. Just don't do anything stupid on my shift.” Id. Govier disputes this, saying in a declaration that Wells didn't tell him about his KOP restriction on this date. Dkt. 71, ¶¶ 10, 21.

         Wells didn't report any thoughts of self-harm or intent to harm himself in visits with WSPF psychological staff just before he received the pills from Govier. But on May 20, Wells took the pills in an attempt to harm himself. He was taken to a local hospital, after which he was returned to WSPF for clinical observation.

         Wells filed a grievance on May 23 regarding Govier's delivery of acetaminophen. The grievance was processed by an institution complaint examiner, who learned that Wells had obtained the pills by copying the item code from the AC Canteen Menu even though he should have been allowed to order only from the Step Canteen Menu. The examiner affirmed Wells's grievance and sent it to defendant Kartman around June 4.

         2. Defendant Duve

         On May 29, 2018, nine days after his overdose, Wells again ordered a bottle of 24 acetaminophen pills and several food items from the canteen. Defendant Duve brought Wells's items on May 31. Wells didn't tell Duve about his KOP restriction or say that he had any intention of harming himself. Duve says that he didn't check the whiteboard before ...

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