Lusk v. Arne

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

CARL D. LUSK,

Plaintiff,

v. Case No. 19-CV-616

MILES S. ARNE, MARY ALSTEEN,

JOHN KIND, ZAKARY KORPITA,

JEAN LUTSEY, CAITLIN SEEKINS,

and JAY VAN LANEN,

Defendants.

DECISION AND ORDER

Plaintiff Carl D. Lusk, who is representing himself and confined at Green Bay

Correctional Institution, brings this lawsuit under 42 U.S.C. § 1983. Lusk was allowed

to proceed on claims under the Eighth Amendment for deliberate indifference to his

medical needs for limiting access to his inhaler and not treating his asthma.

The defendants filed a motion for summary judgment on the merits. (ECF No.

105.) The parties have consented to the jurisdiction of a magistrate judge. (ECF Nos.

4, 18.)

PRELIMINARY MATTERS

Lusk filed a motion to mediate the case, but the print was so faint the court

could not read it. (ECF No. 103.) On November 8, 2021, the court’s deputy clerk sent a

letter to Lusk telling him that he needed to resubmit the motion by November 22,

2021. (ECF No. 104.) Lusk never refiled the motion, so it is denied.

Additionally, the defendants in their reply brief argue that the court should

dismiss the case because Lusk failed to argue that qualified immunity does not apply

to the defendants. (ECF No. 118 at 1.) The defendants also noted that, because Lusk

did not respond to their proposed findings of fact, the court should deem them

undisputed. (Id. at 2.)

In response to the defendants’ reply Lusk filed a motion to amend his summary

judgment response. (ECF No. 120.) Attached to his motion was a revised brief that

addressed qualified immunity (ECF No. 121), a new set of proposed findings of fact,

(ECF No. 122), and responses to the defendants’ proposed findings of fact (ECF No.

123). The defendants did not respond to Lusk’s motion to amend his summary

judgment response. Nor did they file an amended reply brief or respond to Lusk’s

amended proposed findings of fact.

Lusk is proceeding pro se and explains that he was confused with what was

required of him. Because the defendants did not object to Lusk’s motion to amend, the

court will grant the motion as unopposed. Doing so does not unfairly prejudice the

defendants. Lusk’s original proposed findings of fact (ECF No. 116), to which the

defendants responded (ECF No. 119), are substantively identical to Lusk’s new

proposed findings of fact (ECF No. 122). The court will consider Lusk’s original

proposed findings of fact and the defendants’ response when analyzing the defendants’

motion for summary judgment.

The other amended materials Lusk filed—his brief in opposition that addresses

qualified immunity and a response to the defendants’ proposed findings of fact—are

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materials that Lusk should have filed with his original response to the defendants’

summary judgment motion. But district courts are entitled to construe pro se

submissions leniently and may overlook a plaintiff’s faulty filings by construing

evidence in the light most favorable to the plaintiff. See Grady v. Hardy, 826 F.3d

1000, 1005 (7th Cir. 2016). Thus, the court will allow Lusk to cure the defects in his

response and will consider his amended brief and his response to the defendants’

proposed findings of fact.

FACTS

Parties

At all times relevant Lusk was incarcerated at Green Bay Correctional

Institution (GBCI). (ECF No. 107, ¶ 1.) Defendants Miles Arne, Zakary Korpita, and

Caitlin Seekins were correctional officers at GBCI. (Id.) Defendant Mary Alsteen was a

registered nurse at GBCI, and defendant Jean Lutsey was the Health Services

Manager at GBCI. (Id.) John Kind was GBCI’s security director, and Jay Van Lanen

was a Captain at GBCI. (ECF No. 106 at 7.)

Lusk’s Requests for his Inhaler

On July 10, 2018, at approximately 6:30 p.m., Lusk was transferred from

temporary lock up (TLU) to a cell in the restrictive housing unit (RHU). (ECF No. 107,

¶ 2.) Lusk, who is asthmatic, generally had his inhaler on him at all times; however,

when he transferred to RHU he was required to keep his inhaler on a medical cart.

(ECF No. 116, ¶ 3.) Arne and Korpita were working in the RHU, and Lusk asked them

for his inhaler several times that evening and through the next day. (Id., ¶¶ 4-5.) Lusk

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states that Arne and Korpita repeatedly ignored his requests. (Id.) Arne and Korpita

state that Lusk never asked them for his inhaler. (ECF No. 107, ¶ 19.)

At 10:34 p.m. on July 11, 2018, Lusk used the emergency call button to request

his inhaler. (ECF No. 116, ¶ 7.) Seekins answered the call. (Id., ¶ 9; ECF No. 107, ¶

11.) It is undisputed that Seekins informed the acting sergeant and the wing officer

that Lusk had requested his inhaler. (ECF No. 107, ¶ 14; ECF No. 116, ¶ 9.) Seekins

was following policy by informing the acting sergeant and the wing officer of Lusk’s

request because she was staffed as the control officer that night and could not leave

the control room. (ECF No. 107, ¶ 12-14.)

Lusk states that Arne was the acting sergeant at that time, and Seekins states

that she cannot recall who was acting sergeant but admits that “it may have been

Officer Arne.” (ECF No. 107, ¶ 16; ECF No. 116, ¶ 9.) Lusk also contends that Seekins

informed Officer Korpita, the wing officer, that Lusk had requested his inhaler. (ECF

No. 116, ¶ 9.) But Lusk did not receive his inhaler, and at some point shortly

thereafter (it is unclear from the record exactly when) he passed out due to trouble

breathing and hit his head. (ECF No. 116, ¶ 1.)

Once Lusk recovered, he wrote three Health Services Requests (HSR)

requesting to be seen for his head injury and his asthma attack, which Nurse Alsteen

received on July 12, 2018. (ECF No. 107, ¶ 25.) On July 12, in response to the HSRs,

Alsteen called the RHU sergeant on duty (non-defendant Sergeant Friedel) to assess

the situation. (Id, ¶ 26.) Friedel informed her that he had since given Lusk his inhaler

and that Lusk “was in no acute distress and had no further medical complaints.” (Id.)

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As a result of that conversation, Alsteen decided to consider Lusk’s request to be seen

for his head injury and his asthma “a regular, non-emergency priority” because, in her

professional judgment, Lusk’s medical issues were not urgent. (Id., ¶ 27.)

Lusk alleges that his medical issue was an emergency, and Alsteen should have

seen him sooner, but he offers no evidence as to why his medical issue was emergent.

(ECF No. 123, ¶ 26.) Alsteen examined Lusk in the Health Services Unit (HSU) on

July 16, and Lusk did not mention headaches or any lingering symptoms from having

hit his head. (ECF No. 107, ¶ 29.) Lusk admits that he may have forgotten to address

his head injury at the July 16 appointment but contends Alsteen should have known

to address it based on the HSR he submitted. (ECF No. 123, ¶ 31.)

On July 18, 2018, Lusk submitted another HSR regarding his headaches. (ECF

No. 107, ¶ 30). Alsteen examined Lusk two days later, at which point Lusk complained

of two to three headaches per day that would go away with a nap. (Id., ¶ 31.) He also

stated he would get headaches after fast position changes. (Id.) Alsteen examined him

for signs of a concussion and did not detect any. (Id.) She determined that his

headaches were likely due to dehydration and recommended he drink more water. (Id.)

There is no evidence that Lusk had any more visits to the HSU regarding his

headaches.

As to Lutsey, Van Lanen, and Kind, the defendants claim that they were not

involved in the incident with Lusk’s inhaler on July 11 or the resulting medical care.

(ECF No. 107, ¶ 33, 34; ECF No. 106 at 7.) Lusk states that they knew or should have

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known about his issues through inmate complaints and did nothing to intervene. (ECF

No. 123, ¶ 33.)

SUMMARY JUDGMENT STANDARD

The court shall grant summary judgment if the movant shows there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “Material facts” are

those under the applicable substantive law that “might affect the outcome of the suit.”

See Anderson, 477 U.S. at 248. A dispute over a “material fact” is “genuine” if “the

evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Id.

In evaluating a motion for summary judgment, the court must view all

inferences drawn from the underlying facts in the light most favorable to the

nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). However, when the nonmovant is the party with the ultimate burden of proof

at trial, that party retains its burden of producing evidence which would support a

reasonable jury verdict. Celotex Corp., 477 U.S. at 324. Evidence relied upon must be

of a type that would be admissible at trial. See Gunville v. Walker, 583 F.3d 979, 985

(7th Cir. 2009). To survive summary judgment a party cannot just rely on his

pleadings but “must set forth specific facts showing that there is a genuine issue for

trial.” Anderson, 477 U.S. at 248. “In short, ‘summary judgment is appropriate if, on

the record as a whole, a rational trier of fact could not find for the non-moving party.’”

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Durkin v. Equifax Check Servs., Inc., 406 F.3d 410, 414 (7th Cir. 2005) (citing Turner

v. J.V.D.B. & Assoc., Inc., 330 F.3d 991, 994 (7th Cir. 2003)).

ANALYSIS

Eighth Amendment Deliberate Indifference to Medical Needs

Lusk claims defendants Arne, Korpita, and Seekins violated his Eighth

Amendment rights when they failed to provide him with his inhaler when he was

having trouble breathing. He claims Alsteen violated his Eighth Amendment rights

when she failed to timely provide medical care for his asthma attack and head injury.

And he claims Kind, Lutsey, and VanLanen violated his Eighth Amendment rights

when they failed to ensure the other defendants were properly addressing his medical

needs.

“[T]he Eighth Amendment safeguards the prisoner against a lack of medical

care that ‘may result in pain and suffering which no one suggests would serve any

penological purpose.’” Petties v. Carter, 836 F.3d 722, 727 (7th Cir. 2016) (quoting

Estelle v. Gamble, 429 U.S. 97, 105 (1994)). A prison official violates the Eighth

Amendment when he is deliberately indifferent “to serious medical needs of prisoners.”

Estelle, 429 U.S. at 104. “To state a cause of action, a plaintiff must show (1) an

objectively serious medical condition to which (2) a state official was deliberately, that

is subjectively, indifferent.” Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008).

“A medical need is sufficiently serious if the plaintiff’s condition ‘has been diagnosed

by a physician as mandating treatment or . . . is so obvious that even a lay person

would perceive the need for a doctor’s attention.’” Roe v. Elyea, 631 F.3d 843 857 (7th

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Cir. 2011) (quoting Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)). The condition

does not need to be life-threatening to be serious; it needs only to be “a condition that

would result in further significant injury or unnecessary and wanton infliction of pain”

if not addressed. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).

The parties do not address the question of whether Lusk’s asthma attack on

July 11, 2018, was an objectively serious medical need. For purposes of summary

judgment, the court finds that Lusk’s asthma attack was objectively serious.

Turning to whether the defendants were deliberately indifferent, a plaintiff

must demonstrate “that an official actually knew of and disregarded a substantial risk

of harm.” Petties 836 F.3d at 728 (emphasis in original). The plaintiff also “must show

more than mere evidence of malpractice.” Id. The plaintiff must show that the prison

official’s choices “were so ‘significant a departure from accepted professional standards

or practices’ that it is questionable whether they actually exercised professional

judgment.” Stallings v. Liping Zhang, 607 Fed. Appx. 591, 593 (7th Cir. 2015) (quoting

Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014)). This includes situations where a

prison official fails to act or do anything to address the serious medical need. See

Gayton, 593 F.3d at 623-624 (reversing summary judgment in favor of a nurse who

refused to examine or treat a vomiting inmate). It also includes situations where an

official delays necessary treatment, aggravating a condition or needlessly prolonging a

plaintiff’s pain. Gomez v. Randle, 680 F.3d 859, 865-66 (7th Cir. 2012).

A genuine question of material fact exists as to whether Arne and Korpita knew

that Lusk was having trouble breathing, knew that he needed his inhaler, and failed

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to provide it to him. Arne and Korpita state that Lusk never asked them for his

inhaler. Lusk asserts that he notified Seekins using the emergency call button that he

was having a hard time breathing and needed his inhaler. Seekins states that,

pursuant to the applicable policy, she told the acting sergeant on duty, and that acting

sergeant “may have been Officer Arne,” but she could not remember. (ECF No. 107, ¶

16.) Lusk contends it was Arne. (ECF No. 116, ¶ 9.) Seekins also states that, pursuant

to policy, she notified the wing officer, which Lusk asserts was Korpita that night.

Taking the facts in a light most favorable to Lusk, a reasonable fact finder could

conclude that Seekins notified Arne and Korpita that Lusk was experiencing trouble

breathing and needed his inhaler. Despite this, Arne and Korpita failed to provide it,

resulting in Lusk passing out and hitting his head. If true, this would amount to

deliberate indifference. See Williams v. Wissing, Case No. 8-C-1017, 2011 WL 854346

at * 4 (E.D. Wis. Mar. 8, 2011) (allowing claim to survive summary judgment because

a reasonable factfinder could conclude that a prison official’s failure to provide an

inmate with his inhaler to prevent an asthma attack amounted to deliberate

indifference).

However, no reasonable factfinder could conclude that Seekins was deliberately

indifferent to Lusk’s medical needs. It is undisputed that Seekins was staffing the

control room that night, and, according to protocol, instead of leaving the control room

to address the situation she was required to inform the acting sergeant and wing

officer of Lusk’s condition. It is undisputed that Seekins did just that. It is irrelevant

that Seekins cannot remember the identity of the acting sergeant or wing officer that

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night; what matters is that she alerted the appropriate officers. Lusk argues that

Seekins should have ensured the acting sergeant and wing officer appropriately

followed up with his request, but “no prisoner is entitled to insist that one employee do

another’s job.” Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). Thus, summary

judgment is granted in favor of Seekins, and she is dismissed.

Regarding Alsteen, she called the sergeant on duty, Friedel, to assess the

situation as soon as she received Lusk’s HSRs on July 12. When Friedel told her that

Lusk was not experiencing any medical issues at that time, Alsteen, exercising her

professional judgment, booked Lusk for the next available HSU appointment, which

was July 16, five days later. Lusk claims that this delay violated his rights.

However, “[t]o show that a delay in providing treatment is actionable under the

Eighth Amendment, a plaintiff must also provide independent evidence that the delay

exacerbated the injury or unnecessarily prolonged the pain.” Petties, 836 F.3d at 730-

31. Lusk has not presented any evidence demonstrating that the delay between his fall

and his HSU appointment made his condition worse. Lusk also presented no evidence

that the treatment Alsteen prescribed on July 20 failed to address his headaches or

that he suffered from the effects of a head injury after that appointment. Summary

judgment is granted in Alsteen’s favor, and she is also dismissed from the case.

Lusk claims that Lutsey (the HSU Manager), Kind (the security director), and

VanLanen (GBCI’s Captain) violated his rights by failing to properly supervise those

correctional officers under their supervision. For supervisors to be held liable for

constitutional violations caused by their employees, the violation must happen at the

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supervisor’s direction or with the supervisor’s knowledge and consent. Hildebrant v.

Ill. Dep’t of Nat. Res., 347 F.3d 1014, 1039 (7th Cir. 2003). In other words, the

supervisor “must know about the conduct and facilitate it, approve it, condone it, or

turn a blind eye.” Id.

Lusk has not demonstrated that any of these three defendants knew that Lusk

had asked for his inhaler. At most he shows that they knew through inmate

grievances that he had fallen and hit his head, but that is an insufficient basis upon

which to hold them liable. Prison officials operating supervisors, or as inmate

complaint examiners, cannot be held liable for conduct that they did not personally

participate in. See Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). Summary

judgment is granted in Lutsey’s, VanLanen’s, and Kind’s1 favor, and they, too, are

dismissed.

Qualified Immunity

The defendants state that, even if the court concludes that a genuine dispute of

material fact exists as to one or more of the defendants, the court should nevertheless

grant summary judgment in their favor because they are entitled to qualified

immunity. To determine whether qualified immunity applies, the court must consider

“(1) whether the defendants violated a constitutional right, and (2) whether the

1 The court notes that the defendants’ response materials barely mention VanLanen

and Kind. There is no proposed finding of fact addressing what they did or did not do

or know. The most substantive mention is a parenthetical in their brief in support—

“HSM Lutsey (much less Captain Jay VanLanen or Security Director John Kind)

cannot be held liable for what another person did or did not do.” While ultimately the

court agrees with this conclusion because in this instance Lusk clearly failed to

present evidence demonstrating they should be liable, the court advises against simply

declining to present a meaningful defense on behalf of a named defendant.

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constitutional right was clearly established.” Broadfield v. McGrath, 737 Fed. Appx.

773, 775 (7th Cir. 2018).

As discussed above, it has already been determined that a reasonable factfinder

could conclude that Arne and Korpita were deliberately indifferent to Lusk’s

objectively serious medical needs. The only question remaining is whether, operating

under the law as it existed in July 2018, a reasonable prison official would have known

that failing to give an inmate his inhaler when he was experiencing breathing troubles

constituted deliberate indifference.

The defendants present no argument as to why they are entitled to qualified

immunity. Instead, they state that “[i]t is the plaintiff’s burden to show the clarity in

the law, not the defendant’s burden to show lack of clarity. The defendant need only

raise the issue; it is the plaintiff’s burden to identify controlling precedent putting it

beyond debate that the defendant was violating a reasonably specific right.” (ECF No.

106 at 9.) However, it was well established in 2018 that it is deliberate indifference for

a prison official to fail to give an inmate his inhaler, resulting in an asthma attack,.

See Board v. Farnham, 394 F.3d 496, 485 (7th Cir. 2005) (rejecting qualified immunity

defense because it is clearly established that refusing to provide an inmate with his

inhaler while he was experiencing breathing problems was a constitutional violation);

Williams v. Wissing, Case No. 8-C-1017, 2011 WL 854346 at * 4 (E.D. Wis. Mar. 8,

2011).

Because it is clear that denying an inmate who was experiencing breathing

problems an inhaler constitutes deliberate indifference to an objectively serious

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medical need, Arne and Korpita are not entitled to qualified immunity. The claims

against them survive summary judgment.

CONCLUSION

For the foregoing reasons, the defendants’ motion for summary judgment is

granted in part and denied in part. Summary judgment is granted in favor of Seekins,

Alsteen, Lutsey, Kind, and VanLanen. Summary judgment is denied as to the claims

against Arne and Korpita. Because some of Lusk’s claims survived summary

judgment, the court will recruit counsel to represent him. Once the court has found an

attorney willing to represent Lusk, the court will provide him with an agreement,

which he may sign if he agrees to accept representation under the conditions the court

provides. Once counsel is on board, the court will set up a scheduling conference with

the lawyers to discuss next steps.

ORDER

NOW, THEREFORE, IT IS HEREBY ORDERED that Lusk’s motion to

mediate the case (ECF No. 103) is DENIED.

IT IS FURTHER ORDERED that Lusk’s motion to amend his summary

judgment response (ECF No. 120) is GRANTED.

IT IS FURTHER ORDERED that the defendants’ motion for summary

judgment (ECF No. 105) is GRANTED in part and DENIED in part. Mary Alsteen,

John Kind, Jean Lutsey, Caitlin Seekins, and Jay VanLanen are DISMISSED.

IT IS FURTHER ORDERED that counsel will be recruited to represent Lusk.

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Dated at Milwaukee, Wisconsin this 2nd day of May, 2022.

BY THE COURT

e a GE. ea

WILLIAM E. a

United States Magistrate Judge

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