United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE.
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.
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.
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
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).
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.).
following facts are undisputed except where noted.
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.
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
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.
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
Correctional officer defendants
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.
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
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.
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
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
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 ...