SOFR.O,~CUL.EiRiEKOILSKY

Plaintiff.

Case No.

v.

MR. ~t"\~t...

"T ·L i.ts.<.htr

. .. p, ~",-r \-(..\

-=--~-~----- Nvrse. Sv.i.

G.··Ber.j~

(fuI N;me Of 0efendari(sJ)

c. k. n 0<:)

02-C-0463
. .~brClef1Q

Oefendant(s}.

to.MPLAtNT UNDER THE CIVIL RIGHTS ACT~ 42 U.S.C. § 1983

.

.

I. PLACE OF PRESENT CONANEMENT (Provide full address)
-S.Je~i"'4..» 0>!'~I·\Q.J'tt.;n91)-POBo1( 'lC(oOj &:sc.::bdJtnt 5"'3.8oS"·

A Is there a grievance procedure in YOUf prison{Jail? YES')( . NO 0

B. Have you filed a grievance conceming the· facts relating to this complaint?

YES}( . NOD ' .

: ..

C. If you have used the grievance process: .

.

.

1. . Describe what you did Sod·the resurt. if any.

:r:~ (~J. t"I)-tQ...~ (~''I1ll~(.,i'-.~' Clll4 : ~ ff~c.J.(& t--<:).

r \'1t C-" JeQiO} (C:M.f(4, <{)r. ((~ ."I(t...

the . 2. Is grieva~ process completed? ·..'i....::e;...;;s=---·_ _--:--_ _--:
1Ft,. . tJ D.: Ifyou did.not use ~ grievance process•.explainwhy not:

NOTE: YOU MUST INCLUDE A COpy OF YOUR INITIAl GRIEVANCE ANP ANY

SUBSEQUENT DECISIONS BY THE PRISON/JAIL OR A COURT ON YOUR

GRJEV~...... ___...

'.

. II. -:. PARTIES
A Your name (Plaintiff) _N_·..¥la~te1v.~V'\...:..-....;;~~'~~\...!.\~~_ _ _ _ _ __
B. Prisoner I.D. Number,_~_,_3_~_'-i_ _~ _ _ _ _ _ _ _ _ __
C. Your Address Pc> ,GDK qqOO; .8z>s(.okt) IAJ 15~ea..s-

(For additiooal plaintiffs provide the same information in the same format on

D.

. ::r: a separate page.)

.

DEFENDANT (name) ___L__l ts_(_h·._<._ .r ______________

. is~mp1oyedas~CVT"''){r~lof Currtitu:)lt~ ~c.:rc.J"tr..rt e-f' (;.jt~-

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gcs~be.\ l v.J \. 5 '38 tS'

III. PREVIOUS LAWSUITS

A HaveYoo begun other lawsuits in state or federal court relating to the same

facts involved in this action?

0 YES

)"( NO

B. Have you.~ other lawsuits in state 0( federal court relating to your

imprisonment? .

0 YES

J(NO

C. Ifyou- answer is.YES to eittlerof the above questiOns, provide the following

requested infonnatiOn.

.

1. Parties to the previous lawsuit

Plaintiff(s):

l-l Ie. ·

Defendant(s): _ _ _ ~+-:~ _ _ _ _ _ _ _ _ _ _ _ __

-2-

-.

~

2.

3.

4.
5.

/rt ·. N Date filed .

Court where case filed lff f¢<ternl court.' name district: if state court.

nam.e the county)

.N f~ .

.

.

.

Case number and citatiOn _tJ-rl_fT.:..-'_ _ _ _ _ _ _ __
.·. Basic claim made ~N~/{1_'__________

Current status (for example: Was thet!se dismissed? Was it

appea~ Is it still penOlOg?)

N {.JJ;' .

7. If resOlved, date of disposition _tJ--+I-,.r~:1_',_ _ _ _ _ __
8: It:resoIved. state whether for _·.;..N-I·~--.lfiu..-...:I;;_ _ _----:_ __
.(Plaintiff or Defenc.tant)

(For additional cases, provide the above infonnatiOn ki the same format on
a separate page.) ;'
IV. STATEMENT OF CLAIM

A State as'bnefly as possible the facts of your case. Describe how each . named defendant is involved. Include the name of other persons involved.
dates, and places. Describe specifically the.injuries incurrect Do not give legal argunents or cite cases or statutes. You may do that in Item "8" below. If you aUege related claims. number and set forth each claim in a· separate paragraph. Use as much ~ as you need to state the facts. Attach extra sheets, if necessary. Unrelated separate claims should be raised in ~ separate civil action.
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- STATEM~NT.QF ClAIM continued
- -i.
B. ,State briefly your legal theory or Cite appropriate authority.
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-4-

v. RELIEF YOU REQUEST

State briefly and exactly what you want the court to do for you. Make no legal arguments. 'Do not use this space to state the facts of your claim. Use it only to request remedies for the injuries you,complain about.

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I declare under penalty of perjury that the foregoing is true and correct.

Jf'f' \ An

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\

Complaint signed this _JJ day of \

.~-z._.0.0 L..

Signature of PJaintiff{s)
YL~~Ch~
(1f there are multiple plaintiffs. each must
sign 1he complaint)
rP- Prisoner 1.0. Number(s) 7 '3'fti:) ,

-5-

 
 ~P2.~DWI
FILED IN GREEN BAY DtV
UNITED STATES DISTRICT CO JRl JAN 173m
EASTERN DISTRICT OF wlscor SII~
------------------------------~~~I~~~~~~M SOFRON B. NEDILSKY
NATHAN GILLIS,

Plaintiff,

v.

Case No. 02-C-463

JON E. UTSCHER, GERALD A. BERGE, MR. HaMPE, P. BARTEL, SUE WATTERS; and K.COON

Defendants.

ORDER
------------------------------------------------------------------
On May 8, 2002, plaintiff Nathan Gillis, a state prisoner currently incarcerated at the Wisconsin Secure Program Facility (WSPF), formerly known as the Supermax Correctional Institution, filed a pro se civil rights complaint under 42 U.S.C. § 1983. United States District Judge J.P. Stadtmueller screened the complaint pursuant to 28 U.S.C. § 1915A and allowed the plaintiff to proceed in forma pauperis on claims that the defendants violated his rights under the Eighth and Fourteenth Amendments of the United States Constitution. This case was reassigned to me on October 9, 2002. The plaintiff has filed numerous motions, all of which will be addressed herein.

J
."A\\6 72A
(Rev. 8/82)

Motion to Amend the Complaint On October 22, 2002, plaintiff filed a motion to amend the complaint (Docket #39) along with a proposed amended complaint. Rule 15(a) of the Federal Rules of Civil Procedure states that leave to file an amended complaint "shall be freely given when justice so requires." The Supreme Court has explained the meaning of "freely given" as used in Rule 15(a) by stating: In the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory motive on the part of a movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. - the leave sought should, as the rules require, be freely given. Farnan v. Davis, 371 U.S. 178, 182 (1962). The proposed amended complaint restates some of the allegations contained in the original complaint. It also sets forth some new allegations and new defendants not included in the original complaint. This will be the plaintiff's first amended complaint and it comes at a relatively early stage of this case. Moreover, granting the motion will not unduly prejudice the defendants. Therefore, the plaintiff's motion to amend the complaint will be granted. The plaintiff's proposed amended complaint is now the operative complaint in this action. See Duda v. Bd. of Ed. of Franklin Park Public Sch. Dist. No. 84, 133 F.3d 1054, 1056 (7th Cir. 1998) (if a motion to file an amended complaint is granted, the amended complaint supersedes the prior complaint). I now proceed to screen the plaintiff's amended complaint. I am required to screen complaints brought by prisoners seeking relief against a governmental entity or
2
AO 72A (Rev. 8/82)

officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). I must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious", that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1) & (2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.
A complaint, or portion thereof, should be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41,45-46 [1957]). In reviewing a complaint under this standard, I must accept as true the allegations of the complaint in question, Hasp. Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
To state a claim for relief under 42 U.S.C. § 1983, plaintiffs must allege: 1) that they were deprived of a right secured by the Constitution or laws of the United States,
3
AO 72A (Rev. 8/82)

and 2) that the deprivation was visited upon them by a person acting under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give the plaintiff's pro se allegations, however inartfully pleaded, a liberal construction. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
There are no special pleading rules for prisoner civil rights cases. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002) (citing Swierkiewicz v. Sorema, 534 U.S. 506, 512-14 [2002]). The Federal Rules of Civil Procedure require (with irrelevant exceptions) only that the complaint state a claim, not that it plead the facts that if true would establish (subject to any defenses) that the claim was valid. Nance v. Vieregge, 147 F.3d 589,590-91 (7th Cir. 1998). All that needs to be specified is the bare minimum facts necessary to put the defendant on notice of the claim so that he can
file an answer. Beanstalk Group, Inc. v. AM General Corp., 283 F.3d 8956, 863 (7th
eir. 2002). In the amended complaint, plaintiff identifies three claims: 1) intentional and
malicious infliction of cruel and unusual punishment, 2) deliberate indifference to serious medical needs, and 3) denial of access to the inmate grievance process and retaliation for seeking redress of grievances. Plaintiff was incarcerated at the WSPF at all times relevant to this case.
In regard to claims one and two, plaintiff alleges that beginning on March 1, 2002, he was subjected to the Behavioral Management Program (BMP). Plaintiff alleges that defendants Hompe and Berge created and implemented the BMP. He did
4
AO 72A (Rev. 8/82)

not receive due process procedures before being sanctioned with the BMP. Plaintiff was apparently sanctioned with the BMP for not sleeping in his bed in the mandatory position - a position plaintiff says was difficult or impossible because of his 6'5" height.
The BMP consisted of placing plaintiff, without any clothing, in a cell that was stripped of a mattress, clothing, linen, toilet paper, and hygiene products. Plaintiff remained there for thirteen days. Plaintiff received twelve squares of toilet paper twice a day. He did not receive a shower for thirteen days. Plaintiff was also not allowed to send or receive mail and he was denied a pen or paper for which to complete an inmate complaint. He was fed only Nutraloaf for the duration of the BIVIP. According to plaintiff, the conditions during theBMP were more severe than control segregation, which plaintiff says is the highest level of segregation permitted by the state administrative code.
For thirteen days, plaintiff slept on bare concrete and thereby received painful sores and rashes that occasionally bled on various parts of his body. Plaintiff paced the cement floor in an effort to stay warm and the constant barefooted pacing resulted in injury to the plaintiff's feet causing painful cracking, peeling, and bleeding of the skin. Plaintiff suffers from chronic high blood pressure that requires blood pressure stabilization medication and monitoring. During the thirteen day BMP, plaintiff's blood pressure reached levels that caused him dizziness and confusion.
5
AO 72A (Rev. 8/82)

Plaintiff alleges that he began to suffer mental decomposition including anxiety attacks, severe depression, helplessness, a sense of despair, suicidal thoughts, and hearing voices. Defendant Nancy Wilmont was contacted to converse with plaintiff pursuant to his mental state of mind. Defendant Wilmont discovered that plaintiff had bitten a hole in his wrist, smeared both blood and feces on the cell walls, and was in a general unstable mental state as a result of the BMP. Defendant Wilmont intervened with the BMP and placed plaintiff on medical observation, where he remained for approximately eight days. However, the medical observation also took place in a stripped cell and the plaintiff did not have any clothes. Following plaintiff's assignment to medical observation he was returned to the BMP.
While he was in the BMP cell, the plaintiff was able to converse with other inrnatfJs through vent ducts. Those inmates filed medical request slips with defendants Nurse Sue and Pam Bartells about plaintiff's high blood pressure, skin sores, rashes, and foot injury. Defendant Bartells ignored the plaintiff's medical condition. Defendant Nurse Sue visited plaintiff but refused to check his blood pressure or treat his injuries. Defendants Litscher, Berge, Hompe, and Coon also ignored medical requests sent to them by the other inmates about plaintiff's blood pressure and injuries.
Plaintiff had the inmates send requests and letters to Dr. Hagan and Dr. Maier pertaining to plaintiff's mental decomposition. Dr. Hagan ignored the requests. Dr. Maier did visit with plaintiff while he was on the BMP but he only stated that plaintiff is now at Supermax (now the WSPF) and that he should follow its rules.
6
AO 72A (Rev. 8/82)

Based on the conditions alleged in the amended complaint and plaintiff's resulting medical needs, I find that plaintiff has adequately stated a claim of cruel and unusual punishment in claim one and a claim of deliberate indifference to serious medical needs in claim two.
As part of claim one, plaintiff also asserts that he was placed in the BMP without due process. To establish a procedural due process violation, a prisoner must demonstrate that the state deprived him of a liberty or property interest created either by state law or the Due Process Clause itself. See Sandin v. Connor,515 U.S. 472, 483-84 (1 995). A liberty interest exists when prison officials restrain the freedom of inrnates in a manner that "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. However, discipline in segregated confinement does not present the type of atypical, significant depr~vation in which a State might conceivably create a liberty interest. Id. at 485; see also TlJOmas 1/. Ramos, 130 F.3d 754,760-62 (7th Cir. 1998) (prison inmate's70-day confinement in disciplinary segregation was not "atypical and significant" deprivation of prisoner's liberty and thus did not implicate liberty interest protectable under due process clause; prisoner has no liberty interest in remaining in the general prison population). In this case, plaintiff has alleged that the conditions in the BMP were atypical and far harsher than those in Control Segregation. I therefore conclude that the complaint is sufficient to state a due process claim.
7
AO 72A (Rev. 8/82)

In what plaintiff has labeled claim three he asserts both a denial of access to the inmate grievance process and retaliation for using that process. Plaintiff alleges that deferdant Coon failed to process many of his inmate grievances when he got out of the BMP. The plaintiff does acknowledge that an ample amount were filed and proceeded through the grievance system to satisfy the herein contentions. But he alleges that defendant Coon intentionally interfered with the exhaustion process by not !ett:ng him file inmate complaints. Plaintiff does not say what he was prevented from cornpiaining about. Plaintiff also complains that the inmate grievance system fails to comport with requirements of federal law and regulations.
Plaintiff must advance througtla five-step level system at the WSPF in order to be returned to the general prison population. Plaintiff alleges that defendant Sharpe rHt~liated against him for filing administrative grievances by keeping plaintiff on Level 2 at VVSPF.
Plaintiff also asserts that he complained to defendants Wilmont and Hagan and filed a grievance about the severe side effects he was suffering from medication prescribed by Maier. In retaliation for the complaints, plaintiff says, Wilmont placed plaintiff in a stripped cell for five days for medical observation and Dr. Maier terminated any medication. They and Hagan now refuse to treat plaintiff's medical condition at all. Plaintiff's allegations concerning Sharpe, Wilmont, Maier, and Hagan state a retaliation claim. See Walker v. Thompson, 288 F.3d U)05, 1009 (7th Cir. 2002); Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002).
8
AO 72A (Rev. 8/82)

Plaintiff has also stated a claim for denial of access to the courts. Prisoners have a Fourteenth Amendment due process' right to adequate, effective, and meaningful access to courts to challenge violations of their constitutional rights. Bouncis v. Smith, 430 U.S. 817, 821-22 (1977). In order to prevail on such a claim,
an inrmlte must demonstrate that the alleged denial of access hindered his efforts to
pursue a legal claim. Lewis Ii. Casey, 518 U.S. 343, 351 (1996). He must prove he was pravented "from litigating a nonfrivolous case." Walters v. Edgar, 163 F.3d 430, 434 Oth Cir. 1998). in his amended complaint, plaintiff alleges that he was prevented from filing some inma-::e grievances during the thirteen-day BMP. Although he fails to '3tate what he would have complained about jf allowed, I conclude that this failure is !lot 'fatal to his claim at this stage of the proceeding.
?laintiff's allegation that the inmate grievance fails to meet federal standards, hOW~!'ier, does not state a claim. Plaintiff contends that the Wisconsin Department of Corrections Inmate Complaint Review System has no employee and prisoner adversary role in formulating and operating the grievance system, has no expedited procedure for emergencies, and has no person performing an independent review who is not. under thE: direct controi an supervision of the institution and the Department, all in violation of "42 U.S.C. § 1997(E)(2)(B)(2)". The problem with this claim is that it is based on an earlier version of the statute. Congress has expressly amended the statute making exhaustion mandatory instead of discretionary, and has expressly eliminated provisions relating to minimum standards of prison grievance systems and requirements for
9
AO 72A (Rev. 8/82)

CerTification of those systems. 42 U.S.C. § 1997e, as amended by Pub.L. '104-134, § "j 01 (a), § 803(d), 1996. Thus, the failure to comply with the former version of 42
u.s.c. § 1997e does not state a claim upon which relief can be granted.
Additional Motions Plaintiff has filed numerous motions. First, he filed two motions that he later requested withdrawn. On October 2, 2002, plaintiff filed a motion to compel assistant I:\ttorney General Jennifer Sloan Lattis to follow Rule 26(f) (Docket #21). On October 31, .2002, piaimiff filf3d a motion to withdraw motion to compel defendants to have () Ruie 26(f) meeting (Docket #43). The court will grant the motion to withdraw and :'!ir;:rI.::fore the motion to 80mpel wiil be denied as moot. likewise, on October 15, 2002, plaintiff filed a motion to take remaining filing feas out of my release account (Docket #34), but he subsequently filed a motion to withc!r2W motion to take remail1ing filing fees out of my release account. (Docket #,1·2). The motion to withdraw will be granted and the filing fees motion wi!lbe denied .as moot. Next, the court notes that on August 13, 2002, plaintiff filed an amended complaint. He did not file a motion to amend. Although plaintiff filed the amended complaint prior to the filing of any responsive pleading, the amended complaint added defendants and therefore leave of the court was required. Rule 15(a) of the Federal Rules of Civil Procedure states that a party may amend a pleading once as a matter of course any time before a responsive pleading is served. However, if a plaintiff seeks
10
AO 72A (Rev. 8182)

((I add additional defendants, he must first obtain leave from the court, regardless of when the amended complaint was filed. Moore v. Indiana, 999 F.2d 1125, 1128 (7th Cir. '1993). No motion was fiied and therefore no further court action is required with respect to that amended complaint. In any event, the court granted plaintiff's October 22, 2002, motion to amend the complaint, which was filed after this August 13, 2002, amended complaint.
On September 4, 2002, plaintiff filed a motion to have defendant served with
mf1el"i·::ed complaint according co Rule 4(c)(2) & (d)(2) (Dockettt15). The motion refers
to th:j August,2()02, amended complaint, discussed in the preceding paragraph. In ik)~f of that discussion, plaintiff's motioh will be denied.
IJn October 8, 2002, plaintiff filed a Rule '15(d) Supplemental Pleadings Motion (DClGket #27). Plaintiff's Octobet 22, 2002, amended complaint, which is now the Ciperative complaint in this action, was filed after the motion to supplement. The court a5;')urnes that plaintiff included all of his claims in the amended complaint. Therefore, plaintiH's motion to file a supplemental complaint wili be denied as moot.
On October 9, 2002, plaintiff filed a Rule 55(a) Default Motion, requesting that the court enter default judgment against the defendants because they did not answer his August 13, 2002, amended complaint (Docket #30). As explained, plaintiff required leave of the court to file that amended complaint because he sought to add new defendants. Leave was not requested nor was it granted. That proposed amended complaint was never the operative complaint in this action. As such, the
11
AO 72A (Rev. 8/82)

dGf.=.ndants were not required to respond to it. Therefore, plaintiff's motion for default
judgment will be denied.
On May 8, 2002, plaintiff filed a motion to stop defendant from using behavior management plan till the court can review this case (Docket #4). The court reviewed ~,:aintiff' s case when it issued the first screening order, based on the original complaint. A.ithoufJh the allegations are serious, they are only allegations at this point.: Moreover, i"[ app<::-ars that tne Behavior Management Plan was discontinued on July 17,2002, and ;:-;j~int:rf is no longer subjected to the cunditions of which he complains.· (See Pl.'s Septf:mber 12, 2007.., motion [Docket #18]; Exhibit A). Therefore, plaintiff's motion to diRcontinue the plan I.-viII be denied.
011 August 13, 2002, plaintiff filed his motion for mental examination according
i:,:-, :+.ll(· 35(a) (Docket #11): Plaintiff states that he has a long history of mental health \ . i~:;::~·...!e~; zlIld currently suffers from depression and has suicidal thoughts. Plaintiff was
f(:Ci.W:;-:y taken off his medication. Rule 35{a) of the i-ederal Rules of Civil Procedure states: ta) Order tor Examination. When the mental or physical condition (including the blood group) of a party or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner. conditions, and scope of the examination and the person or persons by whom it is to be made.
12
AO 72A (Rev. 8/82)

T:) obtain a Rule 35 examination, a party seeking such examination must show that each condition for which the examination is sought is "genuinely in controversy" and th~it "good cause exists for ordering the examination." Schlagenhauf v. Holder, 379 U.S. 104, 118-19 (1964); see also Green v. Branson, 108 F.3d 1296, 1304 (10th Cir. "j 997) (Rule 35 motion is not properly used to obtain medical care or to complain of deiiberate indifference to a prisoner's serious medical needs). Such showings are not
mcri D':'mere conclusory allegations of the pieadings or by mere relevance to the case. ,':J,::ii/s:]9nh&uf, 379 U.S. at 1l8- j 9. Rather, an affirmative showing by the movant ot
th::?~Gtors specified bv Rule 35 is required. Id. "Mental and physical exam~nations ,)r':~ Dr'!y to be ordered upon' a discriminating application . . of the limitations pr~~-~,..r(hed b'{ the Hula." Id.at l21.
?laintitf has failed to make the requisite showing that "each condition for which' Thl~! eX;1mination is sought is genuinely in controversy" and that there is good cause for sudl examinations. Id. at l'l 8-1 9. Accordingly, his motion for a Rule 35 examination wili be denied. I do note, however, that prison officials have a duty to insure that inmates receive adequate medical care. See Farmer v. Brennan, 51'1 U.S. B25, 832 {'l994i. !f plaintiff has a serious need for mental health care and treatment, it must be Qddn'!ssed wholly apart from any allegation plaintiff has made in his lawsuit.
On September 4, 2002, plaintiff filed a motion for mental health evaluation and to be placed back on depression medication Prozac according to Rule 35(a) (Docket
In 6). For the reasons discussed above, piaintiff's motion will be denied.
13
AO 72A (Rev. 8/82)

On September 12, 2002, plaintiff filed a motion 1) for preliminary injunction to place plaintiff back on depression medication; 2) to either provide plaintiff with copies of piaintiff's mental health file, or pro'vide the court with copies of plaintiff's mental health file; and 3) to transfer plaintiff to another institution because inmates with menta! illness aren't to be housed at SMCI, according to judge Barbara Crabb's order (Doc!<.e't #19). Both the motion for the preliminary injunction and the motion for a t(all;:.:i·:;~ :'elate to plaintiff's claim that he is :n immediate need of treatment for mental ij;v.:::'<;. In addition, Oil October 8, :~(j02. olaintdf filed Plaintiff's motion for temporary r<:!~tr8ining order; notice; hearing; duration, pursuant to Rule 65(b) (Docket #25) . . F!3ij'ltiif re~uests ~hat the court order defendants to place plaintiff back on his dq)lw::;ion medicat'on due'to suicidal "thoughts and hearing voices.
Defendants have not filed a response to these motions. Given the number and hf,quenGY of plaintiff's filings, ·this is not surprising. But before addi"essing these mC1tionsforpreiiminary relief· which relate to the present treatment of plaintiff, ,the court should have the benefit of defendants' response. I therefore direct that a (esponse to plaintiff's motion Jor d preliminary injunction be filed within thirty days of thf..l date of this decision. I \Nili address plaintiff's request for preliminary relief after that time.
The second request in plaintiff's September 12 filing (Docket #19), related to copies of plaintiff's mental health file, is a discovery request. That request has been addressed in Defendant Berge's response to plaintiff's request for production of
14
AO 72A (Rev, 8/82)

documents, which states that the requested records will be made available for plaintiff's inspection upon submission of a request to clinical services. See infra. No further action by the court is needed and that portion of the motion is denied.
On September 12, 2002, plaintiff filed Plaintiff's motion request that defendant Hampe refrain from communicating to plaintiff to dismiss the above case (Docket # 18). A.s long as this case moves forward, defendant Hompe's communications to plaintiff ::Ii::'; not harmful in that they do not interfere with this case. Plaintiff should ignore t!'~·f(-;r,dant Hompe. His motion will be denied.
On October 15, 2002, plaintiff filed Plaintiff's Rule 34, Production of Documents IT',TL'::,n (Docket #32). On October 29, 2002, defendants filed Defendant Berge's F:e:,;.)O:'lses to Plaintiff's Request for Production of Documents (O'ocket· #40). °i-herefore, plaintiff's production of documents motion will be denied as moot.
On Novemher 8, 2002, plaintiff filed Plaintiff's motion to compel defendants to producE' the documents he had requested (Docket #45). Plaintiff states~that the deh:ndants responded to only three of his fifteen requests for production of ,j0cUments, and that the court should compel them to respond to the remaining twelve. ?lain1.iff further states that he has written two letters to the defendants without response. Defendants state that they responded to plaintiff's lengthy discovery request by providing copies of some things on plaintiff's list, denying him access to othel things on a variety of specified grounds, and providing alternative means of access for other items. Defendants point out that plaintiff has not provided reasons
15
AO 72A (Rev. 8/82)

O('.'fc:ndants point out that plaintiff has 110t provided reasons contesting the sufficiency or defendants' objections and that they stand by their objections.
upon my review of the documents produced by the defendants and their ob;ectjons, I conclude, with one exception and based upon the record as it now stands, that defendants have properly responded to plaintiff's discovery request .. Other than p::::ir;'df';'s own health records. which defendants state are available from, alinical ~>3-:·.{:CC:~ upon INritten !"9ques"l:. the documents defendants have refused to provide c~·)n.;i,,;~ of rnedico! a;'1d Jl"l>Jnt::Ji heai,:h records as to other inmates, as well 3S other ir;'YE:~:; complaints. The defendants assert that these records are confidenti.al. The :rw:::i,;<,l and mental health r~cGrds Cf other inmates involve privileged information, and' ~hc::·ther inmate c'omplaints ~re confidentiai pursuant to 'His. Adm. Code § DOC
31 C.·~ e. Defendants ()Iso assert that the confidential records ar8 beyond the s(;ope of
ciL.;(>y·/ory. Plaintiff has nor provided any response or I:::xplained how such records may
ie::ld to the disc,:wery of admissible8v!dene8. Until and unless he does, I wili not consi(:er these requests further.
One of plaintiff's document requests that defendants refused, however, does not SW3n1 unreasonable, Request Number 5 asks for "'All court decisions and consent decrees involving the defendant in the last two years." Defendants objected to this request on the grounds that the request was overly broad and not likely to lead to the production of admissible evidence. (Defendant Berge's Responses to Plaintiff's Request of Production of Documents at 3).
16
AO 72A (Rev. 8/82)

VJhile the Request is somewhat ambiguous and Gould be considered overbroad if i~ were construed to cover all of the institutions operated by the Wisconsin Department of Corrections, a fair reading of the request in the context of this case would include only those court decisions and consent decrees relating to the conditions of conf:nement at the institution (hat is the subject of this action, i.e., WSPF .. If so cOP~3trued, plaintiff's request would seem, at least on the surface, a reasonable one. i '~hfl(~;'fo(e direct that plaintiff's req!Jest be construed in the manner indicated and; ~h<:: \~~fendants respond to this narrowed request for the production of documents \Ni~\-:ir· thirty days of this decision.
:':inaily, : note that after defendants "file a responsive pleading to the amended
GL;-~r-.i~'int. plaintiff may have Clnotheropportunity to conduct discovery.<fherefore, ~~\:;l:r;;~j,'f's motion to compe/will be denied.
THEREFORE, IT IS ORDERED that plrtintiff's motion to stop defendant from using I::ehavior management plan until the court can review the case (Docket #4) is DENIED /-\S MOOT.
IT IS FURTHER ORDERED that plaintiff's motion for a mental examination according to Rule 35(a) (Docket #11) is DENIED.
IT IS FURTHER ORDERED that plaintiff's motion to have the defendants served with amended complaint according to Rule 4(c}(2) & (d)(2) (Docket #15) is DENIED.
AO 72A (Rev. 8/82)

· .
IT IS FURTHER ORDERED that plaintiff's motion for a mental health evaluation and to be placed back on depression medication according to Rule 35(a) (Docket #16) i:', DENiED.
iT IS FURTHER ORDERED that plaintiff's motion request that defendant Hompe re"frElii-l from communicating to plaintiff to dismiss the case (Docket # 18) is DENIED.
iT IS FURTHER ORDERED that plaintiff's motion to either provide plaintiff with ~;cpi'~~~; a"f plaintiff's menta! health file, or provide the court with copies of plaintiff's T(;::;i"rt:.:j health file (Dockec lI12) is DENIED.
!T IS FURTHER ORDERED that defendants shall file a response to plaintiff's rrloc:on for a temporary restralning order: notice; hearing; durat~on, pursuant to Rule ':if.,(b; ~Docket #25) and his rnotion for a preliminary injunction to place plaintiff back on c;:'c:pression medication and to transfer him to a different institution (Docket # 19) \,·..;j1~:i1; the next 30 days.
:T IS FURTHER ORDERED that plaintiff's moti0n to compel Ass!stant Attorney C:ienemi Jennifer Sloan Lattis to follow Rule 2.6(f) (Docket #21) is DENIED AS MOOT.
!T IS FURTHER ORDERED that plaintiff's Rule 15(d) Supplemental Pleading3 Motion (DocKet ;t27) is DENIED.
IT!S FURTHER ORDERED that plaint.iff's Rule 55(a) Default Motion (Docket 1t30) is DENIED.
IT is FURTHER ORDERED that plaintiff's Rule 34 Production of Documents Motion (Docket #32) is DENIED AS MOOT-.
18
AO 72A (Rev. 8/82)

,.
IT IS FURTHER ORDERED that plaintiff's motion to take remaining filing fees out of roiease account (Docket #34) is DENIED AS MOOT.
IT IS FURTHER ORDERED that plaintiff's motion to amend the complaint (Docket #38) is GRANTED. The clerk of court is directed to detach the proposed amended complaint from plaintiff's motion and file and docket it immediately. The defendants in H:is case are: Jon E. Litscher, Gerald A. Berge, Bradley Hompe, John Sharpe, Pam f~<~!~.,:;:n:~, SLie VVatters, Tayler Hagan, Gary !Vlaier, Kellv Coon, and Nancy ·Wilmont.
: r is FURTHER ORDERED tl1at plaintiff's motion to withdraw motion to take
rr'Hn:!ir:ing filing fees OU-:: uf release account (Docket #42) is GRANTED. iT :5 FURTHfR ORDERED that lJiain'~jlTs motion to withdra'N motion to compel
;:(;fh:ndf"'lms to have a Ruin 26(f) meeting \Docket #43) is GRANTED. iT IS FURTHER OHDFRED that the plaintiff's motion to compel defendants to
P;(1(\uce production of docurnents (Docket #45) is DENIED IN PART AND GRANTED IN 1:'AHT. Plaintiff'S Request Number fj i~ Gonstrued to apply only to court decisions and consent decrges relating~o conditions of confinement at 'NSPF, and defendants shall respond to such request within thirty days of the date of this order.
IT IS FURTHER ORDERED that the United States Marshal shall serve a copy of the amended complaint, the summons, and this order upon the newly-added defendants (John Sharpe, Tyler Hagan, Gary Maier, and Nancy Wilmont) pursuant to Federal Rule of Civil Procedure 4. A copy of plaintiff's amended complaint will be
19
AO 72A (Rev. 8/82)

f!'!aiied with a copy of this order to counsel for the defendants who have already appea,ed in the case.
IT IS FURTHER ORDERED that the defendants shall file a responsive pleading to the pla;ntiff's amended complaint.
~)Iaintiff is hereby notified that . from now on, he is required, under Fed. R. Civ. P. 5(2:); to send a copy of every paper or document filed with the Gourt to the opposing parti~~~J or their attorney(s). Plaintiff should also retain a personal copy ·o-f each dC>G11(pent. If plaintiff Joe'.) ~Iot have ascess 11..1 a photocopy machine, pla:ntiff may 88r.::; out identical handwritten or typed copies of any documents. The court may ~!i:~.re:1md any papers or documents 'NhiGh do not indicate that a copy has been sent
tc o,:\cr. defendant or to their aUorney(s).
Pla~ntiH is further advised that failure to make a timely submission may·result i,', t:iC dismissal of this action for failure to prosecute.
in addition, the parties must il0tify the Clerk's Office of any change of address . .FailL:m 1:0 do so Gould result in orders or other information not being timely delivered, thus nfiecting the legal rights of the parties.
Dated this L?ti.day of January, 2003.

,P,

Q .1

'I -" .l"?r!'!(1"c{;-"ll.<::,

William C. Griesbach

United States District Judge

20
AO 72A (Rev. 8/82)

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

NATHAN GILLIS,
Plaintiff,
JON E. LITSCHER, GERALD A. BERGE, BRADLEY HOMPE, PAM BARTELS,1 KELLY COON, GARY MAIER, TWILLA HAGAN, NANCY WILMONT, JOHN SHARPE, and SUE WATTERS,
Defendants.

Case No. 02-C-463

ORDER

Plaintiff Nathan Gillis, a state prisoner incarcerated at the Wisconsin Secure Program Facility (WSPF), formerly known as the Supermax Correctional Institution, filed a pro se civil rights complaint under 42 U.S.C. § 1983. The plaintiff was granted leave to proceed in forma pauperis on claims that the defendants violated his constitutional rights. Defendants Litscher, Berge, Hompe, Coon, Hagan, Wilmont, and Sharpe have filed a motion for summary judgment. Defendants Bartels, Maier, and Watters also filed a motion for summary judgment. In addition, the plaintiff has filed a summary judgment motion and a motion for default judgment. All of these motions will be addressed herein.

1 Based on the defendants’ summary judgment materials, Pam “Bartels” and “Twilla” Hagan are the correct spellings of the defendants’ names. They were previously referred to as Pam Bartells and Tayler Hagan.

BACKGROUND OF THE CASE
On August 5, 2002, United States District Judge J.P. Stadtmueller screened the original
complaint under 28 U.S.C. § 1915A and granted the plaintiff’s petition to proceed in forma
pauperis. This case was reassigned to me on October 9, 2002.
The plaintiff filed an amended complaint (complaint) on October 22, 2002, which is the
operative complaint in this action. The complaint alleges as follows:
In the amended complaint, plaintiff identifies three claims: 1) intentional and malicious infliction of cruel and unusual punishment, 2) deliberate indifference to serious medical needs, and 3) denial of access to the inmate grievance process and retaliation for seeking redress of grievances. Plaintiff was incarcerated at the WSPF at all times relevant to this case.
In regard to claims one and two, plaintiff alleges that beginning on March 1, 2002, he was subjected to the Behavioral Management Program (BMP). Plaintiff alleges that defendants Hompe and Berge created and implemented the BMP. He did not receive due process procedures before being sanctioned with the BMP. Plaintiff was apparently sanctioned with the BMP for not sleeping in his bed in the mandatory position - a position plaintiff says was difficult or impossible because of his 6'5" height.
The BMP consisted of placing plaintiff, without any clothing, in a cell that was stripped of a mattress, clothing, linen, toilet paper, and hygiene products. Plaintiff remained there for thirteen days. Plaintiff received twelve squares of toilet paper twice a day. He did not receive a shower for thirteen days. Plaintiff was also not allowed to send or receive mail and he was denied a pen or paper for which to complete an inmate complaint. He was fed only Nutraloaf for the duration of the BMP. According to plaintiff, the conditions during the BMP were more severe than control segregation, which plaintiff says is the highest level of segregation permitted by the state administrative code.
For thirteen days, plaintiff slept on bare concrete and thereby received painful sores and rashes that occasionally bled on various parts of his body. Plaintiff paced the cement floor in an effort to stay warm and the constant barefooted pacing resulted in injury to the plaintiff’s feet causing painful cracking, peeling, and bleeding of the skin. Plaintiff suffers from chronic high blood pressure that requires blood pressure stabilization medication and monitoring. During the thirteen day BMP, plaintiff’s blood pressure reached levels that caused him dizziness and confusion.
2

Plaintiff alleges that he began to suffer mental decomposition including anxiety attacks, severe depression, helplessness, a sense of despair, suicidal thoughts, and hearing voices. Defendant Nancy Wilmont was contacted to converse with plaintiff pursuant to his mental state of mind. Defendant Wilmont discovered that plaintiff had bitten a hole in his wrist, smeared both blood and feces on the cell walls, and was in a general unstable mental state as a result of the BMP. Defendant Wilmont intervened with the BMP and placed plaintiff on medical observation, where he remained for approximately eight days. However, the medical observation also took place in a stripped cell and the plaintiff did not have any clothes. Following the plaintiff’s assignment to medical observation he was returned to the BMP.
While he was in the BMP cell, the plaintiff was able to converse with other inmates through vent ducts. Those inmates filed medical request slips with defendants Nurse Sue and Pam Bartells [sic] about plaintiff’s high blood pressure, skin sores, rashes, and foot injury. Defendant Bartells [sic] ignored the plaintiff’s medical condition. Defendant Nurse Sue visited plaintiff but refused to check his blood pressure or treat his injuries. Defendants Litscher, Berge, Hompe, and Coon also ignored medical requests sent to them by the other inmates about plaintiff’s blood pressure and injuries.
Plaintiff had the inmates send requests and letters to Dr. Hagan and Dr. Maier pertaining to plaintiff’s mental decomposition. Dr. Hagan ignored the requests. Dr. Maier did visit with plaintiff while he was on the BMP but he only stated that plaintiff is now at Supermax (now the WSPF) and that he should follow its rules.
. . .
In what plaintiff has labeled claim three he asserts both a denial of access to the inmate grievance process and retaliation for using that process. Plaintiff alleges that defendant Coon failed to process many of his inmate grievances when he got out of the BMP. The plaintiff does acknowledge that an ample amount were filed and proceeded through the grievance system to satisfy the herein contentions. But he alleges that defendant Coon intentionally interfered with the exhaustion process by not letting him file inmate complaints. Plaintiff does not say what he was prevented from complaining about. Plaintiff also complains that the inmate grievance system fails to comport with requirements of federal law and regulations.
Plaintiff must advance through a five-step level system at the WSPF in order to be returned to the general prison population. Plaintiff alleges that defendant Sharpe retaliated against him for filing administrative grievances by keeping plaintiff on Level 2 at WSPF.
3

Plaintiff also asserts that he complained to defendants Wilmont and Hagan and filed a grievance about the severe side effects he was suffering from medication prescribed by Maier. In retaliation for the complaints, plaintiff says, Wilmont placed plaintiff in a stripped cell for five days for medical observation and Dr. Maier terminated any medication. They and Hagan now refuse to treat plaintiff’s medical condition at all. Plaintiff’s allegations concerning Sharpe, Wilmont, Maier, and Hagan state a retaliation claim. (Screening Order Jan. 17, 2003, at 4-6, 8.) The court screened the complaint pursuant to 28 U.S.C. § 1915A and allowed the plaintiff to proceed on the following claims: 1) an Eighth Amendment cruel and unusual punishment claim for the conditions of the Behavioral Management Program (BMP), and that the plaintiff was placed on the BMP without due procees of law; 2) an Eighth Amendment claim of deliberate indifference to a serious medical need; 3) a denial of access to the courts claim for interference with the inmate grievance process; and 4) a retaliation claim for using the inmate grievance process. On March 9, 2004, the court denied the plaintiff’s motion for partial summary judgment as to his Eighth and Fourteenth Amendment claims because factual questions remained and the plaintiff failed to establish he was entitled to judgment as a matter of law. The March 9, 2004, Order also denied the plaintiff’s motion for default judgment and motion to compel discovery. The plaintiff filed an interlocutory appeal along with a request to proceed in forma pauperis on appeal, seeking to appeal the court’s denial of his motion for partial summary judgment, default judgment, and motion to compel discovery. On April 24, 2004, the court denied the plaintiff’s request to proceed in forma pauperis on appeal and certified that the appeal had been taken in bad faith. The plaintiff failed to timely pay the appellate filing fee and the Seventh Circuit Court of Appeals dismissed his case on May 21, 2004.
4

On June 7, 2004, defendants Litscher, Berge, Hompe, Sharpe, Hagan, Coon, and Wilmont filed a motion for summary judgment. Represented by separate counsel, defendants Bartels, Watters, and Maier also filed a motion for summary judgment on June 7, 2004. The plaintiff filed responses to both motions, on June 9, 2004 and June 15, 2004, respectively, and he also filed his own motion for summary judgment as part of his response to defendants Litscher, Berge, Hompe, Sharpe, Hagan, Coon, and Wilmont’s summary judgment motion. Defendants Litscher, Berge, Hompe, Sharpe, Hagan, Coon, and Wilmont filed a letter reply on July 13, 2004, and the plaintiff filed a sur-reply on July 15, 2004.
On July 14, 2004, the plaintiff filed a “Motion for Rule 55, Default against all the defendants represented by Attorney Jennifer Sloan Lattis, for refusing to respond to plaintiff summary judgment motion dated 6-7-04.” This motion will be denied. Defendants Litscher, Berge, Hompe, Sharpe, Hagan, Coon, and Wilmont did not file a separate response to the plaintiff’s motion for summary judgment. They did, however, address the plaintiff’s “Motion for Summary Judgment/Response to Defendants’ Motion for Summary Judgment” in a July 13, 2004, reply letter.
Federal Rule of Civil Procedure 55 provides in relevant part: When a party against whom a judgment for affirmative relief is sought has failed to plead or other wise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the default. Fed. R. Civ. P. 55(a). The plaintiff has not shown that default judgment against these defendants is warranted in this case and therefore his motion will be denied.
SUMMARY JUDGMENT STANDARD OF REVIEW Summary judgment is required “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any
5

material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The mere existence of some factual dispute does not defeat a summary judgment motion; “the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For a dispute to be genuine, the evidence must be such that a “reasonable jury could return a verdict for the nonmoving party.” Id. For a fact to be material, it must relate to a disputed matter that “might affect the outcome of the suit.” Id.
Although summary judgment is a useful tool for isolating and terminating factually unsupported claims, Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986), courts should act with caution in granting summary judgment, Anderson, 477 U.S. at 255. When the evidence presented shows a dispute over a fact that might affect the outcome of the suit under governing law, summary judgment must be denied. Id. at 248.
The moving party bears the initial burden of demonstrating that he is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 323. Where the moving party seeks summary judgment on the ground that there is an absence of evidence to support the nonmoving party’s case, the moving party may satisfy his initial burden simply by pointing out the absence of evidence. Id. at 325. Once the moving party’s initial burden is met, the nonmoving party must “go beyond the pleadings” and designate specific facts to support each element of the cause of action, showing a genuine issue for trial. Id. at 322-23. Neither party may rest on mere allegations or denials in the pleadings, Anderson, 477 U.S. at 248, or upon conclusory statement in affidavits, Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir. 1989). In considering a motion for summary judgment, I may consider any materials that would be admissible or usable at trial, including properly authenticated and admissible documents. Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000).
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In evaluating a motion for summary judgment, the court must draw all inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, it is “not required to draw every conceivable inference from the record - only those inferences that are reasonable.” Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).
RELEVANT UNDISPUTED FACTS A. The Plaintiff’s Affidavits
The plaintiff submitted two affidavits, one in response to defendants Litscher, Berge, Hompe, Sharpe, Hagan, Coon, and Wilmont’s motion for summary judgment and the other in response to defendants Bartels, Watters, and Maier’s motion. The affidavits purport to dispute the defendants’ proposed findings of fact. However, they do not cite to anything in the record.
For example, in response to defendants Litscher, Berge, Hompe, Sharpe, Hagan, Coon, and Wilmont’s motion, the plaintiff avers:
Defendants’ Proposed finding of fact aren’t true at paragraph numbers #17, #18, #19, #20, #21, #23, #24, #25, #26, #27, #28, #29, #30, #35, #37, #42, #44, #46, #49, #53, #61, #62, #63, #64, #65, #66, #67, #68, #69, #70, #71, #72, #74, #75, #76, #77, #78. (Aff. of Nathan Gillis, Docket #199, at 2.) Likewise, in response to defendants Bartels, Watters, and Maier’s summary judgment motion, the plaintiff avers: The following parts of defendants Watters, Maier’s [sic], Bartels proposed finding of facts and conclusions of law are not true numbers #7, #8, #9, #10, #11, #12, #13, #14, #15, #17, #18, #20, #21. (Nathan Gillis’s Aff. in Opp’n to Defs.’ PFOF and Conclusions of Law, Docket #203, at 2.)
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The Federal Rules of Civil Procedure provide: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). “It is well-settled that conclusory allegations . . . without support in the record, do not create a triable issue of fact.” Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002) (citing Patterson v. Chi. Ass’n for Retarded Citizens, 150 F.3d 719, 724 (7th Cir. 1998)). The defendants’ properly supported proposed findings of fact are not effectively disputed by the plaintiff simply swearing that they are “not true.” The court will not consider the plaintiff’s “disputes” to the defendants’ proposed findings of fact to the extent they do not comport with the Federal Rules and relevant case law. B. Defendants Litscher, Berge, Hompe, Sharpe, Hagan, Coon, and Wilmont’s Motion Defendant Hompe has been employed by the Wisconsin Department of Corrections (DOC) since March 1995. (Hompe Aff. ¶ 3.) He began his employment at WSPF in January 2000, at which time he was a captain until he was promoted to Corrections Unit Supervisor (“unit manager”) of Alpha Unit in September 2000. Id. As the unit manager of the Alpha Unit at WSPF, under the general supervision of the deputy warden, Hompe was responsible for the security, treatment, and general living conditions of all inmates assigned to the unit. (Hompe Aff. ¶ 4.) The unit manager is an administrator responsible for all activities within the unit; the development, implementation, and monitoring of overall
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institution goals, policies, and procedures as part of the institution management team and the direction of an institution-wide program. (Id.)
Defendant John Sharpe has been employed as a Supervising Officer 2 (“captain”) at WSPF since July 21, 2002. (Affidavit of John Sharpe [Sharpe Aff.] ¶ 2.) Prior to that, he was employed at WSPF as a unit manager from December 3, 2000 until July 20, 2002. (Sharpe Aff. ¶¶ 3, 5.)
Defendant Kelly Trumm, formerly known as Kelly Coon, is employed at WSPF as an institution complaint examiner. (Aff. of Kelly Trumm [Trumm Aff.] ¶ 2.) She was previously employed as a Program Assistant II - Confidential at WSPF. (Trumm Aff. ¶ 3.) In that capacity, Trumm coordinated and provided program assistance to the institution complaint examiner. (Id.) Trumm has been employed at WSPF since March 26, 2000, and she has held the position of institution complaint examiner since September 22, 2002. (Trumm Aff. ¶ 4.)
Vincent Escandell is employed by the DOC as a Psychologist Supervisor - Doctorate at WSPF and he has held this position since Febraury 10, 2003. (Aff. of Vincent Escandell [Escandell Aff.] ¶ 2.) In his capacity as psychologist, Escandell is responsible for the overall administration of clinical services and the development, administration, and coordination of all clinical programs within the institution. (Escandell Aff. ¶ 3.)
Ellen Ray has been employed at WSPF as an institution complaint examiner since February 18, 2001. (Aff. of Ellen Ray [Ray Aff.] ¶ 2.) In her capacity as institution complaint examiner, Ray is the custodian of inmate complaints filed by inmates while incarcerated at WSPF. (Ray Aff. ¶ 3.) She also has access to records which are generated and/or maintained at the institution, and which pertain to the inmates who are incarcerated at WSPF. (Id.)
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Defendant Hompe developed the Behavior Management Plan (BMP) and it was approved
by the WSPF Warden, defendant Gerald A. Berge. (Hompe Aff. ¶ 5.)
On February 22 and 23, and March 1, 2002, defendant Hompe and C.O. Nick Furrer
observed that the plaintiff broke WSPF policy by refusing to lay on his bed with his head towards
the back of the cell. (Hompe Aff. ¶ 6, Ex. 1.) The plaintiff would also misuse his property by
obstructing the officers’ view of him by covering his face with his blanket. (Id.) These rules are
in effect for inmates’ safety. (Id.) Normal counseling and discipline did not correct the plaintiff’s
behavior. (Hompe Aff. ¶ 7.)
On March 1, 2002, at 9:00 a.m., the plaintiff was placed on the BMP. (Hompe Aff. ¶ 8.)
At that time, the plaintiff received a copy of the plan outline informing him that he was being placed
on a behavior management plan due to his continuous refusal to follow WSPF policy, directives, and his misuse of property.2 (Id.) Defendant Hompe also stated to the plaintiff, face-to-face, that
2 Defendant Hompe sent the plaintiff a memo which states in relevant part:
Due to your continuous refusal to follow SMCI policy, directives and misuse of property you are being placed on a behavior management plan. Specifically, you refuse to lay on your bed with your head towards the back of your cell and you use your property to obstruct the officers’ view of you. This plan will be reactivated each time you display the mentioned inappropriate behavior.
Stage One: You will be placed on stage one for a period of three days. All property will be removed from your cell during this time and you will receive nutri-loaf for meals.
Stage Two: Upon completion of three days in stage one with appropriate behavior the Unit Manager may initiate stage two. Stage two will be in effect for 7 days. In stage two your in cell property will be limited to a segregation smock. You will receive regular meals. In stage two you will receive hygiene items two times per day and will receive showers on regular shower days. Upon completion of day 7 in stage two with appropriate behavior, the Unit Manager may deactivate the plan.
(Hompe Aff. ¶ 8, Ex. 2.) 10

he would be placed on the BMP and informed him of the policies and procedures of it. (Hompe Aff. ¶ 9.)
Stage one of the BMP lasts for three days. (Hompe Aff. ¶ 10.) During this time an inmate will receive nutri-loaf for meals served on styrofoam trays. (Id.) Mail is restricted to legal mail. (Id.) Staff will show the inmate the mail and place it in storage until the inmate is eligible to receive the items. (Id.) Upon completion of the three days in stage one with appropriate behavior the unit manager may initiate stage two. (Hompe Aff. ¶ 11.)
Stage two of the BMP lasts for seven days. (Hompe Aff. ¶ 12.) Inmates will receive a segregation smock and will receive meals on regular trays. (Id.) Inmates will receive hygiene items two times per day, will receive showers on regular shower days, and will resume regular laundry schedule. (Id.) Inmates will be shown mail but cannot possess the mail in their cells. (Id.) Inmates will have the use of nail clippers, razors and cleaning supplies with appropriate behavior. (Id.) Upon completion of the seven days in stage two with appropriate behavior the unit manager may deactivate the plan. (Hompe Aff. ¶ 13.)
Any inappropriate behavior will result in being placed on day one of stage one. (Hompe Aff. ¶ 14.) Security restrictions may also alter this plan and will continue after deactivation of the plan. (Hompe Aff. ¶ 15.) The plan will be in effect for a period of six months and will be activated when the inmate displays inappropriate behavior. (Hompe Aff. ¶ 16.) At the end of the six month period, with appropriate behavior from the inmate, the BMP will be discontinued. (Id.) The unit manager may modify this plan at any time. (Hompe Aff. ¶ 17.) Since writing materials are not allowed in the cell with an inmate on clinical observation or BMP, the complaint deadline for inmates is extended. (Hompe Aff. ¶ 18.) An inmate may also make complaints to the inmate complaint examiner verbally. (Id.)
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On March 1, 2002, at approximately 9:00 p.m., the plaintiff was placed on clinical observation to run concurrent with the BMP after he made statements regarding his intent to harm himself, smeared feces on security cameras, bit and scratched himself, and smeared blood on the walls. (Hompe Aff. ¶ 19; Escandell Aff. ¶ 4.) Once the plaintiff was placed on clinical observation the rules and procedures of clinical observation took precedence over those of the BMP. (Hompe Aff. ¶ 20.) When an inmate is placed on clinical observation, property is limited by clinical staff for the inmate’s safety and the inmate is observed every fifteen minutes. (Escandell Aff. ¶ 5.) Due to the plaintiff’s threats of self-harm, he was allowed only items that were not deemed hazardous to his safety. (Hompe Aff. ¶ 21; Escandell Aff. ¶ 6.)
A Review of Offender in Observation was completed by Dr. Apple on March 2, 2002. (Escandell Aff. ¶ 7.) The Review of Offender in Observation form states in part:
Staff report to this writer that Mr. Gillis was picking at wounds & writing in wall in blood [ ] words ‘HELP ME.’ He would not verbalize to staff his ideation or intent to self harm. He continued to produce blood w/o verbalizing intent to harm or remain safe. Further/heightened monitoring was necessary to ensure safety. . . . Mr. Gillis reported that he intends to harm himself but wouldn’t elaborate why. He had feces smeared all over the windows but with visible areas to assess the i/m. He wishes to speak [ ] Dr. Maier to assess poss. of Rx mgmt. He is currently on BMP. All previous restrictions apply. Organized, clear & coherent oriented x 3. (Escandell Aff. ¶ 4, Ex. 1; Gillis Aff. Ex. at [unpaginated] 2.) Dr. Apple decided to continue Gillis’ confinement in observation due to his verbalization to harm himself. (Id.) Dr. Apple found the plaintiff lucid but the plaintiff would not elaborate on intent or plan to harm himself. (Id.) Dr. Apple also found that the plaintiff needed to be monitored for safety from self-harm. (Id.)
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Defendant Natalie Wilmont, a crisis intervention worker, completed a Review of Offender in Observation on March 4, 2002. (Escandell Aff. ¶ 8.) The plaintiff reported suicidal ideations and presented a clear danger to himself. (Id.) The plaintiff stated that he wanted “a razor to cut his jugular.” (Id.) He was noticeably agitated. (Id.) Wilmont stated that clinical observation was needed to insure the plaintiff’s level of safety in a safe controlled environment. (Id.)
On March 6, 2002, Wilmont completed a Review of Offender in Observation. (Escandell Aff. ¶ 9.) Wilmont noted that the plaintiff seemed to be improving. (Id.) He was more futureoriented and acknowledged the fact that he reported suicidal ideations. (Id.) Wilmont again continued the plaintiff’s clinical observation due to his recent statements of self-harm and to ensure that his mood was stabilizing so that he had no further intent to harm himself. (Id.)
On March 6, 2002, Wilmont authorized a “seg gown” for the plaintiff and a “styrofoam trayno spoon” for meals. (Hompe Aff. ¶ 23; Escandell Aff. ¶ 10.) On March 7, 2002, Wilmont added toothbrush and toothpaste at 7 a.m. and 9 p.m. hygiene times. (Hompe Aff. ¶ 22; Escandell Aff. ¶ 11.) Hygiene products were not allowed in the cell for the plaintiff’s safety. (Id.)
After a review on March 11, 2002, the plaintiff appeared future-oriented and calm. (Hompe Aff. ¶ 24; Escandell Aff. ¶ 12.) He indicated no suicidal ideation and he was then released from observation. (Id.) The plaintiff’s BMP was placed on inactive status on March 11, 2002. (Hompe Aff. ¶ 25.) On July 17, 2002, the plaintiff’s BMP was discontinued. (Hompe Aff. ¶ 26.)
On March 26, 2002, the plaintiff made statements of self-harm. (Escandell Aff. ¶13.) He was again placed on clinical observation. (Id.) The plaintiff was given a “seg smock” and “styrofoam trays-no spoon” at meals. (Escandell Aff. ¶ 14.) Due to the plaintiff’s threats of selfharm, he was again allowed only items that were not deemed hazardous to his safety. (Id.)
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Wilmont completed a Review of Offender in Observation on March 27, 2002. (Escandell Aff. ¶ 15.) The plaintiff had draped a sheet around his neck and affirmed intent to harm himself. (Id.) The plaintiff was released from clinical observation on March 29, 2002. (Escandell Aff. ¶ 16.)
Pursuant to Wisconsin Administrative Code § DOC 310.09(2), inmates may not file more than two complaints per calendar week, except that the inmate complaint examiner may waive this limit for good cause. (Trumm Aff. ¶ 5.) The inmate complaint examiner shall exclude complaints that raise health and personal safety issues from this limit. (Id.) Since writing materials are not allowed in the cell with an inmate on clinical observation or the BMP, the complaint deadline for inmates is extended. (Trumm Aff. ¶ 6.) An inmate may also make complaints to the inmate complaint examiner verbally. (Id.)
On March 18, 2002, the plaintiff attempted to file an inmate complaint against defendant Hompe. (Trumm Aff. ¶ 7.) On March 20, 2002, defendant Trumm (f/k/a Coon) returned the plaintiff’s complaint to him with a memo stating that pursuant to DOC 310.09(2), only two complaints may be filed in any calendar week. (Trumm Aff. ¶ 8.)
On April 4, 2002, the plaintiff filed inmate complaint SMCI-2002-12001 against defendant Trumm (f/k/a Coon) regarding complaints returned because he had exceeded his limit of complaints allowed per week. (Trumm Aff. ¶ 9.) Diane Merwin recommended dismissal of this complaint on April 8, 2002, citing DOC 310.09(2). (Trumm Aff. ¶ 10.) Ms. Merwin found that during the week in question, the ICE Office accepted four complaints from the plaintiff (SMCI-2002-9911 on March 18, 2002; SMCI-2002-9916 on March 18, 2002; SMCI-2002-9917 on March 18, 2002; and SMCI2002-10410 on March 22, 2002). (Id.) Defendant Warden Berge dismissed SMCI-2002-12001 on April 8, 2002. (Id.) The plaintiff appealed the decision of the inmate complaint examiner on SMCI-
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2002-12001 to the corrections complaint examiner, John Ray. (Trumm Aff. ¶ 11.) John Ray recommended dismissal of this complaint on April 16, 2002, based on Ms. Merwin’s findings. (Trumm Aff. ¶ 12.) Cindy O’Donnell dismissed SMCI-2002-12001 on April 21, 2002. (Id.)
Inmates who have been administratively transferred to WSPF generally progress through several security levels before they are deemed ready to leave WSPF and be reintegrated into the general population of other DOC institutions. (Sharpe Aff. ¶ 7.) This progressive structure provides for inmates to obtain greater privileges and more property in direct relation to demonstrated improvements in attitude and behavior. (Id.) The structure also provides inmates with an incentive for rehabilitation by offering rewards for improved behavior and program completion, as well as demotion for misbehavior. (Id.) Demotion results in less privileges and less property for an inmate. (Id.)
WSPF inmates progress through the level system by a combination of good behavior and, at higher levels, good behavior and successful program participation. (Sharpe Aff. ¶ 8.) The level program process is designed to encourage an inmate’s positive adjustment while at WSPF and to provide an opportunity for the inmate’s successful return to a less restrictive institution. (Sharpe Aff. ¶ 9.) The goal is to provide a controlled increase in privileges and responsibilities in order to promote acceptable conduct. (Sharpe Aff. ¶ 10.) This is accomplished utilizing a process that provides individuals a chance to attain levels while at WSPF and placement in a less restrictive institution. (Id.)
An inmate’s behavior can change his level status at any time. (Sharpe Aff. ¶ 11.) If an inmate engages in negative conduct, it may result in a demotion of his level status. (Id.) An inmate may be demoted at any time due to negative behavior and he will remain there until review by the
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review team. (Id.) An inmate may be promoted to a higher level based on positive behavior. (Sharpe Aff. ¶ 12.) To be promoted an inmate needs to fill out an application for promotion. ( Id.)
Unit managers would generally send out an application to the inmate a week before he was eligible for promotion. (Sharpe Aff. ¶ 13.) The recommendation to demote or promote would be made by the review team and approved by the unit manager. (Sharpe Aff. ¶ 14.) The unit manager and the review team would meet once a week to discuss the general attitude and behavior of the inmates applying for promotion and then vote on whether the inmate has met the standards for promotion. (Sharpe Aff. ¶ 15.) Inmate level demotions are based on conduct reports and warnings in the behavior log. (Sharpe Aff. ¶ 16.) There is no set number of violations for a level demotion. (Id.) Demotions are made on a case-by-case basis, depending on the number and seriousness of violations. (Id.) An inmate would not be promoted if he did not fill out an application for promotion. (Sharpe Aff. ¶ 17.)
The plaintiff was held on Level Two from April 5, 2002 until October 7, 2002, due to his continual negative and disruptive behavior. (Sharpe Aff. ¶ 18.) The plaintiff also failed to complete the application for promotion. (Sharpe Aff. ¶ 19.) He was given applications for promotion on August 23, 2002, and September 20, 2002, but never completed them. (Id.) On October 7, 2002, the plaintiff was demoted to Level One for disruptive and disrespectful behavior. (Sharpe Aff. ¶ 20.)
In order to exhaust administrative remedies, an inmate must comply with the requirements of Wisconsin Administrative Code § DOC 310 and Administrative Directive 11.6 (formerly 11.5). (Ray Aff. ¶ 4.) Ray has diligently searched the regularly conducted business records of her office with respect to inmate complaints filed by the plaintiff during the period surrounding the claims
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made regarding his status on the BMP in March 2002. (Ray Aff. ¶ 5.) As result of her search, Ray found that the only inmate complaint that the plaintiff filed during the period that concerns the claims asserted by the plaintiff were the following: SMCI-2002-9507, 9508, 9911, 9916, 9917, 10410, 10748, 12001, 12828, 14358, and 21005. (Ray Aff. ¶ 6.) Of these eleven complaints, SMCI-2002-9508, 10410, and 14358 did not comply with the requirements of Wis. Admin. Code § DOC 310 and Administrative Directive 11.5. (Ray Aff. ¶ 7.) In the eight complaints that complied with the requirements of Wis. Admin. Code § DOC 310 and Administrative Directive 11.5, the plaintiff did not complain or raise any issues about the conduct of defendant Twilla Hagan. (Ray Aff. ¶ 8.) C. Defendants Bartels, Watters, and Maier’s Motion
Defendant Pam Bartels is a registered nurse who was the Health Services Administrator at WSPF from November 1999 to August 2002. (Aff. of Douglas S. Knott [Knott Aff.] ¶ 4.) Defendant Bartels was an employee of Prison Health Services, Inc., a private company that provided health care services at WSPF pursuant to a contract with the DOC. (Knott Aff. ¶ 3.) Defendant Suzanne Watters was employed as a registered nurse by Prison Health Services, Inc., from 2001 to 2002. (Knott Aff. ¶ 5.) Defendant Dr. Gary Maier was employed by Prison Health Services, Inc., in March of 2002 as a psychiatrist; he is currently employed by the DOC in the same capacity. (Knott Aff. ¶ 6.)
The plaintiff was transferred to WSPF on February 15, 2002. (Knott Aff. ¶ 7, Ex. A.) A medical screening conducted at the time of his transfer indicated that he had a history of hypertension. (Id.)
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On March 1, 2002, WSPF security staff placed the plaintiff on a BMP after repeated violations of institution policy. (Hompe Aff. ¶ 9.) On March 1, 2002, the plaintiff requested to see a nurse, complaining of chest pain. (Knott Aff., Ex. B.) When the nurse responded, the plaintiff informed the staff that he did not have chest pain, but wanted eye drops. (Id.)
The plaintiff made another complaint of chest pain and numbness on March 15, 2002, and was promptly seen and evaluated. (Knott Aff. ¶¶ 10, 20, Exs. D, N.) He was found by the nurse to not be in need of treatment. (Id.)
On March 16, 2002, the plaintiff again complained of “elevated blood pressure” and chest pain, prompting another evaluation by a nurse. (Knott Aff. ¶ 10, Ex. D.) When a staff nurse went to evaluate the plaintiff’s complaints, he refused to come out of his cell to be evaluated. (Id.)
On March 22, 2002, the plaintiff again complained of chest pain and high blood pressure. (Knott Aff. ¶ 11, Ex. E.) When a staff nurse went to assess the plaintiff, his blood pressure was elevated, at which time the nurse administered medication and notified the physician’s assistant. (Id.) Thirty minutes later, the plaintiff’s blood pressure was monitored and had returned to normal levels. (Id.) The plaintiff stated at that time that he felt much better. (Id.)
The plaintiff was evaluated and diagnosed with dry flaky skin on his arms and face on February 18, 2002. (Knott Aff. ¶ 8, Ex. B.) A therapeutic ointment was prescribed and the medication log for March of 2002 indicates that the plaintiff received this treatment daily, as prescribed, unless he refused. (Knott Aff. ¶ 14, Ex. H.) The plaintiff’s medical records indicate that he complained of a rash that developed on his “inner elbows.” (Knott Aff. ¶ 10, Ex. D.) Defendant Watters visited the plaintiff on March 6, 2002 to assess his complaints, and noted in the chart, “no rash or alteration in skin integrity.” (Id.)
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The plaintiff was seen and evaluated by Dr. Maier on March 5, 2002. (Knott Aff. ¶15, Ex.
I; Affidavit of Gary Maier [Maier Aff.] ¶ 3.) Dr. Maier concluded that the plaintiff was having
problems adjusting to the conditions, but did not warrant further treatment at that time. (Knott Aff.
¶ 15, Ex. I.) The March 5, 2002, Psychiatric Report from that evaluation states in part:
I saw Mr. Gillis today in the obs cell on range 3 on A unit today. He was in a room, stripped, no clothes, no mattress and there was clear writing on the wall in his own blood. It said things like help me. There were initials and then there was a creative spray paint type flicking all around the room and you could see where he had taken some of his food and pressed it into one of the vents. He got up from his lying posture and came over to the door and made good eye contact with me. I identified myself to him and asked him how he was doing. He said he wasn’t sure. He says from time to time he believes that he hears voices and he said other times he isn’t sure. He thinks that he has a mental disorder but he doesn’t know what it is. He wasn’t sure exactly why he took his fingernail and created some blood and why he did the spray painting. He said that it seemed to relieve tension. I asked him how all this started and he said that they wanted him to sleep in the bed the other way, that is so they could see his head. I asked him why he didn’t do that. He said he wasn’t sure. I asked him if he understood there was a rule that you sleep with your head at one end of the bed and that the security reason for that is that they can see your head and they can see that you are breathing. He said he did and then he said that he heard voices. I said what if we treated the voices what would happen with the way you sleep. He said he wasn’t sure. I said well then if you can’t follow the basic rules here you are likely to be deprived of some of the comforts of life that this place offers.
. . .
I am hearing more of the history from security and it appears that he is in a power struggle and he will eventually learn that it is better for him to follow the rules here.
(Nathan Gillis’s June 15, 2004, Aff., Ex. I at 1-2.)
Dr. Maier saw the plaintiff again on March 19, 2002, at which time he diagnosed depression
and prescribed Celexa to treat the plaintiff’s symptoms. (Knott Aff. ¶ 16, Ex. J; Maier Aff. ¶ 4.)
Dr. Maier discontinued the medication Celexa when the plaintiff complained of side effects. (Knott
Aff. ¶ 17, Ex. K; Maier Aff. ¶ 5.) Dr. Maier substituted Prozac for Celexa on June 11, 2002. (Id.)
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Dr. Maier discontinued the prescription for Prozac when he learned that the plaintiff was not taking the required doses, thereby eliminating any therapeutic effects of the medication. (Knott Aff. ¶ 18, Ex. L.)
There is no evidence that the plaintiff suffered a heart attack or stroke during March of 2002. (Knott Aff. ¶¶ 7-15, Exs. A-I.) The plaintiff had been prescribed Atenelol for hypertension. (Knott Aff. ¶ 14, Ex. H.) The medical records indicate that the plaintiff received every dose of his hypertension medication during March of 2002. (Id.) On the single occasion that he experienced dizziness, he was promptly treated and reported feeling better within thirty minutes. (Knott Aff. ¶ 11, Ex. E.)
ANALYSIS A. Defendants Litscher, Berge, Hompe, Sharpe, Hagan, Coon, and Wilmont’s Motion
The defendants contend that there are no real disputes of material fact in this case. They state that the plaintiff’s allegations are generally true, but he has left out many details which defeat his motion.
The defendants argue that the conditions that the plaintiff experienced in March 2002 did not violate the Eighth Amendment. Specifically, they contend that: 1) the plaintiff’s placement on clinical observation status was warranted by concern for his safety and did not violate the Eighth Amendment; 2) removal of the plaintiff’s clothing was necessary for his safety and did not violate the Eighth Amendment; 3) the plaintiff was given meals and hygiene products; and 4) removal of the plaintiff’s mattress and bedding did not violate the Eighth Amendment.
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The defendants also contend that the plaintiff’s Fourteenth Amendment due process rights were not violated. In that regard, the defendants assert that: 1) the plaintiff was not entitled to disciplinary process before being placed on clinical observation status; 2) the plaintiff retained his right to file inmate complaints; and 3) the plaintiff was not denied due process when he was not moved up to a higher “level” at WSPF.
The defendants argue that the plaintiff cannot maintain a retaliation claim. They also argue that the plaintiff has failed to exhaust his administrative remedies against defendant Hagan.
The plaintiff contends that summary judgment should be granted in his favor, and against the defendants. He asserts that there are “extremely large holes in the defendants’ arguments concerning their treatment of plaintiff related to his claims before the court.” (Pl.’s Br. at 3.) He also contends that the conditions he suffered while on the BMP did violate the Eighth Amendment and that he “was placed on the BMP for sadistic reason that plaintiff does not fully understand.” (Id.)
The plaintiff asserts that the defendants refuse to explain exactly what the plaintiff was denied while on the BMP, namely “clothing, bedding, shoes, socks, food, medical treatment, the ability to file an inmate complaint, and forced plaintiff to sleep naked on bare concrete for 13 days.” (Id. at 4.) The plaintiff further asserts that these same restrictions applied while he was on observation status. The plaintiff states that he was not given a warning or any other reasons that would justify the treatment he received and that he was placed on the BMP within a week of arriving at WSPF.
The plaintiff contends that his Fourteenth Amendment due process rights were violated because he was not given any due process hearing before being placed on the BMP. He also states
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that the defendants interfered with his right and ability to file an inmate complaint while on the BMP and that the DOC did not authorize any complaints to be filed beyond the fourteen day time limit.
The plaintiff contends that he “was retaliated against by defendants as explained in this complaint” and that the defendants’ arguments about him not being able to maintain a retaliation claim should be rejected. (Id. at 8.) Finally, the plaintiff argues that he did exhaust administrative remedies as to defendant Hagen, in inmate complaint SMCI-2002-20354, and that the inmate grievance was “officially dismissed” on July 26, 2002. (Id. at 9.) 1. Eighth Amendment Conditions of Confinement and Due Process of Law Claim
To establish a prima facie case that prison conditions violate the Eighth Amendment, the plaintiff must demonstrate: (1) a serious deprivation of a basic human need; and (2) prison officials’ deliberate indifference thereto. Wilson v. Seiter, 501 U.S. 294, 298 (1991). The first component, namely, the “sufficiently serious” nature of the acts or practices alleged, is objective. (Id. ) Absent any fixed formula therefor, the court must apply the evolving standard of decency in society at large. Rhodes v. Chapman, 452 U.S. 337, 346 (1981); Caldwell v. Miller, 790 F.2d 589 (7th Cir. 1986). “[E]xtreme deprivations are required to make out a conditions-of-confinement claim.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). Only those deprivations that deny the “minimal civilized measure of life’s necessities” are sufficiently grave to form the basis of an Eighth Amendment violation. Id. (quoting Wilson, 501 U.S. at 298).
To establish the second component of a prima facie case, the plaintiff must show that, in inflicting the allege punishment, “the officials act[ed] with a sufficiently culpable state of mind.” Wilson, 501 U.S. at 298. Deliberate indifference means recklessness in a criminal or subjective
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sense. See Farmer v. Brennan, 511 U.S. 825, 838 (1994). “Under the subjective standard, it is not enough to show that a state actor should have known of the danger his actions created. Rather, a plaintiff must demonstrate that the defendant had actual knowledge of impending harm which he consciously refused to prevent.” Tesch v. County of Green Lake, 157 F.3d 465, 476 (7th Cir. 1998) (quoting Hill v. Shobe, 93 F.3d 418, 421 (7th Cir. 1996)).
It is undisputed that the plaintiff was placed on the BMP on March 1, 2002, at 9:00 a.m. During stage one of the BMP, which lasts for a minimum of three days, all property is removed from an inmate’s cell. The following is considered “property”: socks, underwear, T-shirt, pullover shirt, shorts, pants, “seg. shoes,” shower shoes, wash cloth, towel, bed sheets, blankets, pillowcase, mattress, and pillow. (Sharpe Aff. ¶ 7, Ex. 1 at 13.) Thus, to put in bluntly, on March 1, 2002, at 9:00 a.m., the plaintiff was placed completely naked in a completely bare cell.
It is also undisputed that on March 1, 2002, at 9:00 p.m., the plaintiff was placed on “Clinical Observation to run concurrent with the BMP.” (Hompe Aff. ¶ 19.) The decision to change the plaintiff’s status was made after he was found to be picking at his wounds and writing “help me” on the wall with his blood, smearing feces on security cameras and windows, and making statements that he intended to harm himself. The rules and procedures of clinical observation take precedence over those of the BMP. However, in this case, the facts indicate that while the plaintiff was on clinical observation, “[a]ll previous restrictions” of the BMP applied. (Escandell Aff. ¶ 4, Ex. 1.)
The plaintiff’s 100% no property status continued until March 6, 2002, when defendant Wilmont authorized a “seg gown” for the plaintiff. It is not clear what a “seg gown” is. It is also not clear whether the “seg gown” was merely “authorized” for the plaintiff or whether it was
23

actually given to him. The plaintiff was also allowed a “styrofoam tray - no spoon” for meals. No other property was allowed in the plaintiff’s cell.
On March 11, 2002, the plaintiff was released from observation, and his BMP was placed on inactive status.
However, on March 26, 2002, the plaintiff was again placed on clinical observation. He was placed on observation with “no items,” except a “seg smock.” (Escandell Aff. ¶ 14, Ex. 6.) The plaintiff was additionally allowed “styrofoam trays - no spoon” at meals. (Id.) He was released from clinical observation on March 29, 2002.
The defendants concede that clothing is a life necessity and that the Eighth Amendment requires that prison officials furnish adequate quantities to inmates. See also Maxwell v. Mason, 668 F.2d 361 (8th Cir. 1981) (court affirmed finding of cruel and unusual punishment where inmate had been held for fourteen days in solitary confinement in his undershorts and with no bedding except a mattress); Kimbrough v. O’Neil, 523 F.2d 1057 (7th Cir. 1975) (reversing dismissal of complaint where plaintiff placed in solitary confinement for three days without mattress, bedding, or blankets and without articles of personal hygiene); Del Raine v. Williford, 32 F.3d 1024, 1033 (7th Cir. 1994) (where a plaintiff is provided with adequate food, clothing, and sanitation, the conditions of solitary confinement do not on their face violate the Eighth Amendment).
According to the defendants, however, this case does not involve the plaintiff’s placement on the BMP, “[f]or no sooner was Gillis placed on the BMP than he began exhibiting frightening acts of self-mutilation and threatening suicide. The removal of property from that point forward was not punitive, but necessary to protect Gillis from himself.” (Defs.’ Br. at 4.) The defendants further assert:
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Plainly, the motivation of prison officials in removing Gillis’s clothing from March 1 to March 6 was to prevent him from harming himself not for the purpose of inflicting harm on him. Clothing can be ripped apart or otherwise used in a variety of creative ways for self-mutilation or even suicide. Moreover, Gillis has not complained of being cold or growing ill. The deprivation of clothing is a serious matter, but here it was justified and so did not violate the eighth amendment. (Id. at 6.) It is undisputed that once placed on the BMP, the plaintiff starting harming himself. The defendants aver that once this happened, they put the plaintiff on “clinical monitoring” for his protection. However, the conditions of his confinement on clinical monitoring were apparently identical to the conditions on the BMP. There is a dispute over the injuries that the plaintiff suffered while on the BMP or clinical observation. In his sworn complaint, the plaintiff avers that he received bed sores from sleeping on bare concrete for thirteen days and that he injured his feet at night by pacing in his cell to keep warm. Although the defendants do not deny this outright, they contend that there is not evidence to support it. On this record, the court cannot grant summary judgment to either party. It is settled that the conditions of confinement that the plaintiff endured while on the BMP/clinical observation implicate the Eighth Amendment right to be free from cruel and unusual punishment. However, there are factual disputes over the extent of the deprivations. Was the plaintiff naked pacing in his cell to keep warm for several days, with only a concrete slab to sleep on? Exactly what hygiene items did the plaintiff receive during this time and when did he receive them? Additionally, the state of mind of the defendants is at issue. The defendants’ contention that clinical observation trumped the BMP after March 1, 2002, at 9:00 p.m. does not jibe with the
25

undisputed facts that conditions did not change. In any event, the resolution of factual disputes on the exact conditions of the plaintiff’s confinement as well as the extent his injuries may shed light on the defendants’ state of mind. These are disputes that cannot be resolved on summary judgment.
The plaintiff also claims that he was placed on the BMP without due process of law, in violation of the Fourteenth Amendment. The Fourteenth Amendment does not “protect every change in the conditions of confinement having substantial adverse impact on the prisoner.” Sandin v. Conner, 515 U.S. 472, 478 (1995). Rather, process is due only before changes that inflict an “atypical and significant hardship on the inmate in relation to the ordinary incident of prison life.” Id. at 484.
Discipline in segregated confinement does not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest. Id. at 485; see also Thomas v. Ramos, 130 F.3d 754, 760-62 (7th Cir. 1997) (prison inmate’s 70-day confinement in disciplinary segregation was not “atypical and significant” deprivation of prisoner’s liberty and thus did not implicate liberty interest protectable under due process clause; prisoner has no liberty interest in remaining in the general prison population); Thielman v. Leean, 282 F.3d 478, 484 (7th Cir. 2002) (use of waist belts and leg chains during transport not atypical and significant deprivation); Higgason v. Farley, 83 F.3d 807 (7th Cir. 1996) (frequent placement in “lockdown” status, denial of educational programs).
Deprivations must be very serious to qualify as “atypical and significant.” Despite this, courts have found atypical and significant deprivations. See, e.g., Hanrahan v. Doling, 331 F.3d 93, 98-99 (2d Cir. 2003) (per curiam) (under Sandin test, sentence of 120-month solitary confinement in special housing unit triggered due process protection); Colon v. Howard, 215 F.3d
26

227, 231-32 (2d Cir. 2000) (confinement for 305 days in standard administrative segregation conditions is atypical and significant hardship); Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) (prisoner’s transfer to prison where conditions violate Eighth Amendment would impose atypical and significant hardship), amended by 135 F.3d 1318 (9th Cir. 1998).
It is undisputed that the plaintiff was placed on the BMP without any due process hearing. (Defs.’ Resp. to Pl.’s Req. for Admis., No. 3.) However, the defendants do not really address this issue. Instead, they argue that the plaintiff was not entitled to disciplinary process before being placed on clinical observation status:
If this were a case involving a true BMP, defendants would have presented facts demonstrating that the BMP was not intended to be punitive, and also demonstrated that traditional disciplinary methods had failed to bring plaintiff in compliance with the rules. However, as we have discussed, the restrictions associated with the BMP effectively ended immediately after they started when plaintiff displayed selfdestructive and suicidal behavior. This case is about the conditions associated with clinical observation, not with stage one of a BMP. (Defs.’ Br. at 7-8.) The defendants’ contention that this case does not really involve the plaintiff’s placement on the BMP is baffling. The defendants do not dispute that the plaintiff was initially placed on the BMP only. Subsequently, the plaintiff was placed on clinical observation to run concurrent to the BMP. Although clinical observation took precedence over the BMP, the restrictions of the two were the same. A different name was given to the same conditions. Whatever the defendants want to call it, the issue is whether the plaintiff was entitled to due process protections before the conditions of his confinement changed. The ultimate issue of whether a hardship is atypical is one of law; however, if the factual circumstances creating the alleged denial of due process are reasonably in dispute, the jury must
27

resolve those facts before the law can be applied. See Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999). The factual disputes described above preclude summary judgment for either party on this claim. 2. Access to the Courts Claim
Prisoners have a due process right of access to the courts and must be given a reasonably adequate opportunity to present their claims. Bounds v. Smith, 430 U.S. 817, 825 (1977). Such access must be effective and meaningful. Id. at 822. To succeed on a claim of denial of access to the courts, a plaintiff must show that any alleged interference caused actual injury and hindered efforts to pursue a legal claim respecting a basic constitutional right. Lewis v. Casey, 518 U.S. 343, 351 (1996).
The actual-injury requirement applies even in cases “involving substantial systematic deprivation of access to court,” including the “total denial of access to a library,” or “an absolute deprivation of access to all legal materials.” Id. at 353 n.4. Failure to identify some detriment that is linked to an adverse decision in, or inability to litigate, a case “is fatal . . . under any standard of sufficiency.” Martin v. Davies, 917 F.2d 336, 340 (7th Cir. 1990) (giving as examples of prejudice “court dates missed” and “inability to make timely filings”). A long delay and inconvenience do not rise to a constitutional deficiency. Campbell v. Miller, 787 F.2d 217, 229 (7th Cir. 1986).
“Prisoners have a constitutional right of access to the courts that, by necessity, includes the right to pursue the administrative remedies that must be exhausted before a prisoner can seek relief in court.” DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000); see also Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995) (holding that prisoners’ constitutional right of access to the courts “extends to established prison grievance procedures”). Since exhaustion under the PLRA is a
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prerequisite to the filing of a § 1983 action concerning prison conditions, if prison officials prevent an inmate from exhausting they impede his access to the courts just a surely as if they prevent him from later filing his complaint. Davis v. Milwaukee County, 225 F. Supp. 2d 967, 975-76 (E.D. Wis. 2002) (citation omitted).
It is undisputed that on March 18, 2002, the plaintiff attempted to file an inmate complaint against defendant Hompe “for refusing to allow me to file a inmate complaint while on a behavior management plan for 13-days.” (Trumm Aff. ¶ 7, Ex. 2.) The inmate complaint was returned to the plaintiff unfiled with a memo stating that pursuant to Wis. Admin. Code § DOC 310.09(2), only two complaints may be filed in any calendar week. On April 4, 2002, the plaintiff filed SMCI-200212001 against defendant Trumm regarding complaints returned because he had exceeded his limit of complaints allowed per week.
It is also undisputed that since writing materials are not allowed in the cell with an inmate on clinical observation or the BMP, the complaint deadline for inmates is extended. The ICE Office accepted four complaints from the plaintiff between March 18, 2002 and March 22, 2002. Although the plaintiff claims that the inability to file inmate complaints while on the BMP or clinical observation denied him access to the courts, he has failed to identify any specific grievance he was prevented from filing for that reason. He has also not indicated that his ability to litigate a legal claim was impeded. This omission is fatal to the plaintiff’s claim. See Ortloff v. United States, 335 F.3d 652, 656 (7th Cir. 2003) (to state a right to access-to-courts claim, a prisoner must make specific allegations as to the prejudice suffered because of the defendants’ alleged conduct). Therefore, the defendants’ motion for summary judgment on this claim will be granted and the plaintiff’s motion for summary judgment will be denied.
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3. Retaliation Claim An act taken in retaliation for the exercise of a constitutionally protected right violates the
Constitution. DeWalt, 224 F.3d at 618 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84 (1977)). Prisoners have a Fourteenth Amendment due process right to adequate, effective, and meaningful access to the courts to challenge violations of their constitutional rights. Bounds, 430 U.S. at 821-22. Therefore, prison officials cannot hinder prisoners from this access or retaliate against prisoners who attempt to exercise that right. Williams v. Lane, 851 F.2d 867, 878 (7th Cir. 1988). Retaliation against a prisoner for his use of the courts or of the administrative complaint system may give rise to a valid cause of action under 42 U.S.C. § 1983. See Black v. Lane, 22 F.3d 1395, 1401 (7th Cir. 1994).
The retaliation inquiry should be undertaken “in light of the ‘general tenor’ of Sandin, which ‘specifically expressed its disapproval of excessive judicial involvement in day-to-day prison management.’” Babcock v. White, 102 F.3d 267, 275 (7th Cir. 1996) (quoting Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995)). Thus, courts should “afford appropriate deference and flexibility” to prison officials in the evaluation of proffered legitimate penological reasons for conduct alleged to be retaliatory. Babcock, 102 F.3d at 275.
To establish retaliation at the summary judgment stage, the plaintiff must demonstrate: 1) a chronology of events from which retaliation could be inferred; and 2) that retaliation was a substantial or motivating factor behind the defendants’ conduct. Babcock, 102 F.3d at 276. Retaliatory motive may be inferred from the chronology of events. Cain v. Lane, 857 F.2d 1139, 1143 n.6 (7th Cir. 1988); Murphy v. Lane, 833 F.2d 106, 108-09 (7th Cir. 1987). The plaintiff’s burden at the summary judgment stage is high. Babcock, 102 F.3d at 275. He “of course must
30

establish that his protected conduct was a motivating factor behind” the defendants’ conduct, “but that should not end the inquiry.” Id. The “ultimate question is whether events would have transpired differently absent the retaliatory motive.” Id. Thus, unless the plaintiff can prove that he would not have been kept on Level 2 absent defendant Sharpe’s retaliatory motive, there is no claim. Id.
The plaintiff claims that defendant Sharpe retaliated against him for filing administrative grievances by keeping the plaintiff on Level Two at WSPF. The defendants contend that the plaintiff cannot maintain a retaliation claim because defendant Sharpe followed procedures with regard to the plaintiff’s appropriate level within WSPF, and as such, the plaintiff cannot demonstrate that defendant Sharpe held him at a lower level solely to retaliate against him.
It is undisputed that the plaintiff was held on Level Two from April 5, 2002 until October 7, 2002, due to his continual negative and disruptive behavior. It is also undisputed that on October 7, 2002, the plaintiff was demoted to Level One for disruptive and disrespectful behavior. Although the plaintiff alleged that defendant Sharpe retaliated against him for filing inmate complaints, the plaintiff has not shown that he would not have been held on Level Two absent a retaliatory motive. Therefore, the defendants’ motion for summary judgment as to the plaintiff’s retaliation claim against defendant Sharpe will be granted. The plaintiff’s motion for summary judgment will be denied.
The plaintiff is also proceeding on a retaliation claim against defendant Hagan. He claims that defendant Hagan, along with Wilmot and Maier, refused to treat the plaintiff’s medical condition in retaliation for filing grievances regarding severe side effects of a medication prescribed by Maier. The defendants contend that the plaintiff’s retaliation claim against Hagan should be
31

dismissed because the plaintiff failed to exhaust administrative remedies against him. The plaintiff argues that he did exhaust administrative remedies against defendant Hagan, in inmate complaint SMCI-2002-20354.
The Prison Litigation Reform Act of 1995 (PLRA), Pub.L. 104-134, 110 Stat. 1321 (1996), provides in pertinent part that
[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies is a condition precedent to suit. Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002) (citing Perez v. Wis. Dep’t of Corrections, 182 F.3d 532, 535 (7th Cir. 1999)). Section 1997e applies to “all inmate suits, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The Inmate Complaint Review System within the Wisconsin prisons is the administrative remedy available to inmates with complaints about prison conditions or the actions of prison officials. Wis. Admin. Code § DOC 310.01(2)(a). The Wisconsin Administrative Code specifically provides that, before an inmate may commence a civil action, the inmate shall exhaust all administrative remedies that the DOC has promulgated by rule. Wis. Admin. Code § DOC 310.05. The Inmate Complaint Review System is available for inmates to “raise significant issues regarding rules, living conditions, staff actions affecting institution environment, and civil rights complaints.” Wis. Admin. Code § DOC 310.08(1).
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In order to use the Inmate Complaint Review System, an inmate must file a complaint with the inmate complaint examiner within fourteen days after the occurrence giving rise to the complaint. Wis. Admin. Code §§ DOC 310.07(1) & 310.09(6). Complaints submitted later than fourteen days after the event may be accepted for good cause. Wis. Admin. Code § DOC 310.09(6). After reviewing and acknowledging each complaint in writing, the inmate complaint examiner either rejects the complaint or sends a recommendation to the “appropriate reviewing authority.” Wis. Admin. Code §§ DOC 310.11(2) & 310.11(11). The appropriate reviewing authority makes a decision within ten days following receipt of the recommendation. Wis. Admin. Code § DOC 310.12. Within ten days after the date of the decision, a complainant dissatisfied with a reviewing authority decision may appeal that decision by filing a written request for review with the corrections complaint examiner. Wis. Admin. Code § DOC 310.13(1). The corrections complaint examiner reviews the appeal and makes a recommendation to the secretary of the DOC. Wis. Admin. Code § DOC 310.13(6). The secretary may accept, adopt, or reject the corrections complaint examiner’s recommendation, or return the appeal to the corrections complaint examiner for further investigation. Wis. Admin. Code § DOC 310.14(2).
The defendants aver that the plaintiff filed eleven inmate complaint during the period surrounding the claims made regarding his status on the BMP in March 2002: SMCI-2002-9507, 9508, 9911, 9916, 9917, 10410, 10748, 12001, 12828, 14358, and 21005. Of those eleven, eight complied with the requirements of the Wis. Admin. Code § DOC 310 and Administrative Directive 11.5. Three did not comply: SMCI-2002-9508, 10410, and 14358. The defendants aver that of the eight that did comply, the plaintiff did not complain or raise any issues about the conduct of defendant Hagan.
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The plaintiff asserts that he exhausted administrative remedies as to defendant Hagan. (Pl.’s Br. at 9.) He has submitted a Corrections Complaint Examiner’s Report dated July 23, 2002, regarding complaint SMCI-2002-20354. (Pl.’s Aff., unnumbered Ex. 1.) Although the actual inmate complaint has not been provided, the Report indicates that the “Nature of Complaint” is: “kc alleges Dr. Hagan is not treating him properly.” (Id.) The Report recommends dismissal of the inmate complaint:
The complainant states on appeal that he has been retaliated against by his “psychic” medication being discontinued and that he should not be housed at SMCI because he never received a court-ordered evaluation. Those issues were not part of the original complaint and are therefore not properly raised on appeal. The original complaint alleged lack of treatment for hearing voices and having thoughts of self-harm. As noted by the ICE, if the complainant is in need of treatment, he needs to convey his concerns to clinical services staff. Accordingly, it is recommended this complaint be dismissed. (Id.) It appears that the plaintiff has exhausted administrative remedies as to a retaliation claim against defendant Hagan. In any event, it certainly has not been established that he has not. Therefore, the defendants’ motion to dismiss defendant Hagan based on failure to exhaust administrative remedies will be denied. B. Defendants Bartels, Watters, and Maier’s Motion The defendants contend that the plaintiff fails to demonstrate that Bartels, Watters, and Maier violated his constitutional rights by being deliberately indifferent to his serious medical needs. According to the defendants, there is not evidence that the plaintiff suffered from a serious medical need with respect to his blood pressure, alleged rashes and foot sores, and any mental
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illness. The defendants also contend that there is not evidence that Bartels, Watters, and Maier were deliberately indifferent to the plaintiff’s needs.
The plaintiff contends that discovery is not yet completed and that there are “numerous issues relating to these defendants that have not been answered.” (Pl.’s Mot. in Opp’n at 1.) He requests that the court reject the defendants’ arguments concerning no evidence of a serious medical need, blood pressure, rashes and foot sores, and mental illness.
To establish liability under the Eighth Amendment, a prisoner must show: (1) that his medical need was objectively serious; and (2) that the official acted with deliberate indifference to the prisoner’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001); see also Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Zentmyer v. Kendall County, Ill., 220 F.3d 805, 810 (7th Cir. 2000).
A serious medical need is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001) (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)). Factors that indicate a serious medical need include “the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.” Gutierrez, 111 F.3d at 1373 (citations omitted). A medical condition need not be life-threatening to qualify as serious and to support a §1983 claim, providing the denial of medical care could result in further significant injury or in the unnecessary infliction of pain. See Reed v. McBride, 178 F.3d 849, 852-53 (7th Cir. 1999); Gutierrez, 111 F.3d at 1371.
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A prison official acts with deliberate indifference when “the official knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. Prison officials act with deliberate indifference when they act “intentionally or in a criminally reckless manner.” Tesch v. County of Green Lake, 157 F.3d 465, 474 (7th Cir. 1998). Neither negligence nor even gross negligence is a sufficient basis for liability. See Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991). A finding of deliberate indifference requires evidence “that the official was aware of the risk and consciously disregarded it nonetheless.” Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001) (citing Farmer, 511 U.S. at 840-42).
In determining whether an official’s conduct rises to the deliberate indifference standard, a court may not look at the alleged acts of denial in isolation; it “must examine the totality of an inmate’s medical care.” Gutierrez, 111 F.3d at 1375. In Gutierrez, isolated incidents of delay, during ten months of prompt, extensive treatment did not amount to deliberate indifference. Id. Similarly, in Dunigan v. Winnebago County, 165 F.3d 587, 591 (7th Cir. 1999), “factual highlights” of neglect over a month and a half of otherwise unobjectionable treatment were insufficient to avoid summary judgment.
The court will first address the plaintiff’s argument that discovery is not yet completed and that there are numerous issues that have not yet been answered. On June 17, 2004, the court denied the plaintiff’s May 7, 2004 and June 2, 2004, motions to compel discovery. In his motions, the plaintiff requested that defendants Maier, Watters, and Bartels be ordered to provide him with certain interrogatories, documents, and admissions. These defendants responded to the plaintiff’s discovery requests. They objected to some of the requests as vague, overly broad, indefinite, and unduly burdensome and, with respect to other requests, they advised the plaintiff that the
36

information was available for review upon request pursuant to institution policy. The defendants’ answers and objections to the plaintiff’s discovery requests were reasonable. (Order of June 17, 2004, at 2.) The court will now address the merits of the plaintiff’s claims.
The undisputed facts indicate that the plaintiff complained about several medical conditions between February 15, 2002, the date he was transferred to WSPF, and June 11, 2002. The facts also indicate that the plaintiff’s complaints were answered. On February 18, 2002, the plaintiff was evaluated and diagnosed with dry flaky skin. A therapeutic ointment was prescribed and the plaintiff received this treatment daily, as prescribed, unless he refused. Defendant Watters visited the plaintiff on March 6, 2002, to assess the plaintiff’s complaints and noted in the medical chart, “no rash or alteration in skin integrity.” (Knott Aff. ¶ 10, Ex. D.)
On March 1, 2002, the day he was placed on the BMP, the plaintiff requested to see a nurse, complaining of chest pain and when she responded he requested eye drops. On March 15, 2002, the plaintiff made another complaint of chest pain and numbness. He was promptly seen and evaluated and the nurse found him not to be in need of treatment. On March 16, 2002, the plaintiff complained of elevated blood pressure but refused to come out of his cell to be evaluated when a staff nurse went to see him. On March 22, 2002, the plaintiff again complained of chest pain and high blood pressure. The staff nurse who went to assess the plaintiff found his blood pressure to be elevated, administered medication, and notified the physician’s assistant. Thirty minutes later, the plaintiff’s blood pressure had returned to normal levels.
Concerning the plaintiff’s mental health, it is undisputed that he was seen and evaluated by Dr. Maier on March 5, 2002. Dr. Maier concluded that the plaintiff was having problems adjusting to the conditions but did not warrant further treatment at that time. Dr. Maier saw the plaintiff again
37

on March 19, 2002, diagnosed depression, and prescribed Celexa to treat the plaintiff’s symptoms. Dr. Maier saw the plaintiff again on April 2, April 9, and June 11, 2002. On the June 11 visit, Dr. Maier substituted Prozac for Celexa because the plaintiff complained of side effects with Celexa. Dr. Maier discontinued the prescription for Prozac on July 2, 2002, upon learning that the plaintiff was not taking the required doses, thereby eliminating any therapeutic effects of the medication.
The record reveals that the plaintiff received medical treatment in response to his complaints. There is no indication that the defendants were deliberately indifferent to his medical needs. Disagreement with medical professionals about treatment needs does not state a cognizable Eighth Amendment claim under the deliberate indifference standard of Estelle v. Gamble, 429 U.S. 97 (1976). Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003). Accordingly, the defendants’ motion for summary judgment on the plaintiff’s Eighth Amendment medical care claim will be granted.
The plaintiff is also proceeding on a retaliation claim against defendants Wilmont and Maier for refusing to treat the plaintiff’s medical condition in retaliation for filing grievances regarding severe side effects of a medication prescribed by Maier. As described above, on March 19, 2002, Maier prescribed Celexa for the plaintiff’s depression. Defendant Maier saw the plaintiff on April 2, April 9, and June 11, 2002. On the last visit, Maier substituted Prozac for Celexa because of side effects with the Celexa. On July 2, 2002, Maier discontinued the Prozac because he learned that the plaintiff was not taking the required doses.
On these undisputed facts, a retaliation claim against defendants Wilmont and Maier cannot be sustained. Therefore, the defendants are entitled to summary judgment regarding the plaintiff’s retaliation claim.
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CONCLUSION Defendants Bartels, Watters, and Maier’s motion for summary judgment will be granted and the plaintiff’s motion for summary judgment will be denied. Also, the plaintiff’s motion for default judgment will be denied. Defendants Litscher, Berge, Hompe, Sharpe, Hagan, Coon, and Wilmont’s motion for summary judgment will be granted in part and denied in part. The motion will granted as to the plaintiff’s access to the courts claim and, in part, his retaliation claim. The defendants’ motion to dismiss defendant Hagan for failure to exhaust will be denied and therefore an unaddressed retaliation claim remains against defendant Hagan. The defendants’ motion for summary judgment will be denied as to the plaintiff’s Eighth Amendment claim regarding the conditions of confinement of the BMP/clinical observation and that the plaintiff was subjected to those conditions without due process of law. THEREFORE, IT IS ORDERED that the defendants Litscher, Berge, Hompe, Sharpe, Hagan, Coon, and Wilmont’s motion for summary judgment (Docket #185) is GRANTED IN PART AND DENIED IN PART as described herein. IT IS FURTHER ORDERED that the defendants Bartels, Watters, and Maier’s motion for summary judgment (Docket #193) is GRANTED. IT IS FURTHER ORDERED that the plaintiff’s motion for summary judgment (Docket #197) is DENIED. IT IS FURTHER ORDERED that the plaintiff’s motion for default judgment (Docket #207) is DENIED.
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IT IS FURTHER ORDERED that defendants Bartels, Watters, and Maier are dismissed from this action.
In light of the fact that plaintiff’s Eighth Amendment and Due Process claims have survived defendants’ motion for summary judgment, the court will consider anew whether counsel should be appointed to represent plaintiff in this matter. If counsel is appointed, the court will promptly notify the parties. In any event, the clerk shall set this matter on the court’s calendar for further scheduling after 30 days.
Dated this 31st day of March, 2005. s/ William C. Griesbach William C. Griesbach United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

NATHAN GILLIS,
Plaintiff,
v.
JON E. LITSCHER, GERALD A. BERGE, MATTHEW FRANK, RICHARD SCHNEITER, PETER HUIBREGSTE, BRADLEY HOMPE, and DOES 1-5,
Defendants.

Case No. 02-C-0463

ORDER

Based on the stipulation of counsel, this suit is dismissed in its entirety and with prejudice. No costs or fees awarded to either party.
SO ORDERED this 31st day of January, 2007.
s/ William C. Griesbach William C. Griesbach United States District Judge

1

 
 In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 06-2099 NATHAN GILLIS,

Plaintiff-Appellant, v.

JON E. LITSCHER, GERALD A. BERGE, Warden, BRADLEY HOMPE, et al.,
Defendants-Appellees. ____________
Appeal from the United States District Court for the Eastern District of Wisconsin.
No. 02-C-463—William C. Griesbach, Judge.
____________
ARGUED SEPTEMBER 28, 2006—DECIDED NOVEMBER 14, 2006
____________

Before FLAUM, Chief Judge, and RIPPLE and EVANS, Circuit Judges.
EVANS, Circuit Judge. Stripped naked in a small prison cell with nothing except a toilet; forced to sleep on a concrete floor or slab; denied any human contact; fed nothing but “nutri-loaf”; and given just a modicum of toilet paper—four squares—only a few times. Although this might sound like a stay at a Soviet gulag in the 1930s, it is, according to the claims in this case, Wisconsin in 2002. Whether these conditions are, as a matter of law, only “uncomfortable, but not unconstitutional” as the State contends, is the issue we consider in this case.

2

No. 06-2099

Nathan Gillis alleges in this case, brought under 42 U.S.C. § 1983, that his rights under the Eighth and Fourteenth Amendments to the United States Constitution were violated while he was a prisoner at the Wisconsin Secure Program Facility at Boscobel.
The district court granted summary judgment for the defendants and Gillis appeals, raising two important issues. He contends there is a genuine issue of material fact precluding summary judgment both as to whether a Behavioral Modification Program (BMP) imposed on him for an infraction of the rules constituted cruel and unusual punishment in violation of the Eighth Amendment and whether the deprivation he suffered under the BMP was an atypical and significant hardship, thus implicating his due process rights.
The proposed findings of fact the parties filed with the district court tell the following story. The prison in Boscobel, dubbed the “Supermax,” is Wisconsin’s highest security prison. It is an all-segregation facility, designed to house recalcitrant inmates. At the relevant time, Supermax used a five-level system of inmate classification, with level one being the most restrictive. Inmates, including Gillis, were placed in level one upon their arrival at the prison. In this most restrictive level, inmates are allowed canteen items, hygiene products such as toothpaste, combs, and denture cleaners, legal materials, personal mail, religious items, clothing, and bedding. They are allowed three showers a week.
Gillis arrived at Supermax on February 15, 2002. Within 2 weeks of his arrival he was placed in the BMP for an infraction of what he sees as a relatively minor rule. The rule requires that inmates sleep with their heads toward the back of the cell (and the toilet). Gillis slept with his head toward the front of the cell and on occasion covered his head. He says that the rule was not being uniformly

No. 06-2099

3

enforced and that some inmates did not follow the rule because it forced them to lie with their heads next to the toilet. The defendants, various prison officers and agents, see it differently. They argue that compliance with the rule is necessary so guards can see an inmate’s head through a small window on the cell door. If the guards cannot see the head of the inmate, they cannot determine his condition. Defendants also say that they began to enforce the rule on February 22, 2002, which is about a week before the BMP was imposed on Gillis. The toilets, they say, are “perfectly clean,” so that cannot be the reason inmates sleep with their heads in the wrong direction. The security director did not classify this violation as a “major offense,” but defendant Bradley Hompe, a unit supervisor, who was the moving force behind Gillis’s placement, considered the violation to be major.
Whether “major” or “minor,” it was for this infraction that Gillis was placed in the BMP. The BMP is a program designed to force difficult inmates to conform to the rules. The memo Gillis received upon being placed in the program is as follows:
Stage One: You will be placed on stage one for a period of three days. All property will be removed from your cell during this time and you will receive nutri-loaf for meals.
Stage Two: Upon completion of three days in stage one with appropriate behavior the Unit Manager may initiate stage two. Stage two will be in effect for 7 days. In stage two your in cell property will be limited to a segregation smock. You will receive regular meals. In stage two you will receive hygiene items two times per day and will receive showers on regular shower days. Upon completion of day 7 in stage two with appropriate behavior, the Unit Manager may deactivate the plan.
** Any inappropriate behavior, as described above, will

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result in being placed on day one of stage one.
** Security restrictions may also alter this plan and will continue after deactivation of plan.
** This plan will be in effect for a period of six months and will be activated when you display inappropriate behavior as explained above.
** The Unit Manager may modify this plan at any time.
The warden’s office received a copy of the memo, and Gillis’s placement in the BMP was approved by Deputy Warden Peter Huibregtse.
After successful completion of the 3 days at stage one, Gillis would have been eligible to move to stage two, but he was continued in stage one for 2 more days because of his inappropriate behavior. He claims that appropriate behavior would simply have been lying on his bed in compliance with the rules. In his case, it appears that stage one was continued because of very bad, but possibly unrelated behavior—smearing blood and feces around his cell. The defendants say such behavior is related to the rule because guards cannot see through a feces-covered window. After 5 days, Gillis moved on to stage two, where he stayed for 7 more days.
In stage one, Gillis was deprived of nearly all human contact and sensory stimuli. He had no property in his cell and no privileges. He was stark naked and had no mattress or other bedding. He slept naked on the concrete floor or on the concrete slab that is the bed. He tried to sleep next to a heat vent, but the air from the vent was cool. He says he was so cold that he had to walk around his small cell some 14 hours a day trying to stay warm. He claims he developed sores on his feet from pacing and on his body from sleeping on the concrete and that his request for soap to clean his sores was denied. Defendants dispute that Gillis had to walk to keep warm. They say the temperature

No. 06-2099

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in the cell was always 70 degrees or above, apparently in their view a temperature at which people sleep comfortably without pajamas or bedding.
Gillis was fed nutri-loaf—basically a ground-up block of food. He was denied mail, visitors, phone privileges, canteen items, writing materials, and use of the law library. There is a dispute of fact over the amount of toilet paper he received. He says he received it on only five occasions during the entire time he was in the BMP, and then it was four squares at a time. The defendants say he received toilet paper on request.
When he was placed in stage two, he was given what is called a sleeveless “seg smock,” which is a one-piece item of clothing much like a poncho which covers a person from chest to below the groin. It is worn without underwear. Gillis also began to receive regular meals in styrofoam containers and a toothbrush and toothpaste, but no soap. He was finally allowed to shower 9 days into his ordeal. He was not given bedding or a mattress.
The program had an adverse effect on Gillis’s mental stability. He heard voices telling him that “these people were trying to kill” him. He suffered panic attacks, with palpitations, shortness of breath, and a feeling that he was going to die. He became suicidal. He inflicted wounds on his body and wrote the words “help me” in blood on the walls of his cell. When a guard noticed the wounds and called the health services unit, Gillis was transferred to a different cell, where he further injured himself and began smearing feces on his cell walls and on the window. He was placed on clinical observation, but the conditions of his confinement did not change.
Gillis defines the BMP as a punitive measure unrelated to the conduct the officials were trying to correct. In his affidavit, Steve J. Martin, an independent consultant in corrections, says that the “BMP provided officials carte

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blanche to circumvent, in a wholesale fashion, the provisions of Chapter DOC 303 [of the Wisconsin Administrative Code] . . . .” The defendants, on the other hand, say the BMP was not punitive; it was merely an attempt to convince Gillis to conform his behavior to the rules.
The Eighth Amendment prohibits cruel and unusual punishment and applies to the states through the Due Process Clause of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660 (1962). To prevail on his Eighth Amendment claim, Gillis must show that the BMP imposed conditions which denied him “the minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); see also Wilson v. Seiter, 501 U.S. 294 (1991). He must also show that the defendants acted with a culpable state of mind:
[A] prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.
Farmer v. Brennan, 511 U.S. 825, 847 (1994).
To succeed on his Fourteenth Amendment Due Process claim, Gillis must establish that he has a liberty interest in not being placed in the BMP—as it was administered to him—without procedural protections. It is undisputed that he received no procedural due process, so the claim turns on whether he can establish a liberty interest.
Sandin v. Conner, 515 U.S. 472 (1995), established that in evaluating whether a liberty interest exists, we must ask whether the conditions impose an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” At 484. Prior to Sandin, we had assumed that some conditions—while not constituting Eighth Amendment violations—would nevertheless establish a liberty interest. After Sandin, given the proliferation of

No. 06-2099

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supermax, 23-hour lockdown prisons, it appeared that inmates would be hard-pressed to establish a liberty interest if the conditions in the most restrictive prison in a state, or perhaps in the nation, were to form the baseline and were considered the “ordinary incidents of prison life.” We contemplated this issue in Wagner v. Hanks, 128 F.3d 1173, 1174 (7th Cir. 1997). We thought it would be
difficult (we do not say impossible) to make disciplinary segregation sufficiently more restrictive than the conditions of the general population of such a prison to count as an atypical and significant deprivation of liberty—that is, to count as a substantial incremental deprivation—without scraping up against the Eighth Amendment’s prohibition against cruel and unusual punishments.
In other words, how do prison officials make conditions in a supermax prison worse than usual without violating the Eighth Amendment?
After Wagner was decided, the Supreme Court determined in Wilkinson v. Austin, 545 U.S. 209, 125 S. Ct. 2384 (2005), that there can, in fact, be a liberty interest—short of an Eighth Amendment violation—triggering procedural requirements. The Court required the State of Ohio to provide limited due process protections before inmates could be transferred to its most restrictive prison. The Court noted the difficulty in identifying the proper baseline against which to measure conditions but said that assignment to the prison “imposes an atypical and significant hardship under any plausible baseline.” At 2394. Wilkinson turns, however, not on denial of basic life necessities so much as on the extension of incarceration. The determining factors were that placement at the prison is of indefinite duration and it disqualifies an otherwise eligible inmate from consideration for parole. Wilkinson does not answer the question as to when the denial of life’s necessities alone

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could give rise to a liberty interest but still fall short of violating the Eighth Amendment. There is, as we said in Wagner, a “small space” between the two. In our case, we must determine whether we are standing in that small space or on either side of it. As we said, the district court answered the question by granting summary judgment for the defendants.
Our review of a grant of summary judgment is de novo. Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003). Summary judgment can be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56. We must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
Determining whether Gillis’s constitutional rights have been violated requires a “fact-intensive inquiry under constitutional standards,” as in Chandler v. Baird, 926 F.2d 1057, 1064 (11th Cir. 1991), an Eighth Amendment case we have discussed with approval. See Del Raine v. Williford, 32 F.3d 1024 (7th Cir. 1994). In Chandler, the inmate was confined in a cell with no clothing except undershorts and with a plastic-covered mattress without bedding. The temperature in the cell was alleged to be as low as 60 degrees. The inmate contended that he sometimes slept huddled with a roommate, sleeping between two mattresses. The prison officials disagreed, saying that the cell was controlled by the same thermostat that controlled areas of the prison occupied by nurses and no one else complained about the temperature. They acknowledged, however, that the other people in these areas were fully clothed. The inmate also received no toilet paper for 3 days. The Chandler court vacated a grant of summary judgment for the prison officials and sent the case back to the district court for trial.

No. 06-2099

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We now turn specifically to Gillis’s Eighth Amendment claim. Under the amendment, life’s necessities include shelter and heat, Dixon v. Godinez, 114 F.3d 640 (7th Cir. 1997), as well as hygiene items. See Del Raine. A lack of heat, clothing, or sanitation can violate the Eighth Amendment. See Lewis v. Lane, 816 F.2d 1165 (7th Cir. 1987) (an allegation of inadequate heating may state an Eighth Amendment violation); Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir. 1980) (“[A] state must provide . . . reasonably adequate ventilation, sanitation, bedding, hygienic materials, and utilities (i.e., hot and cold water, light, heat, plumbing).”); Maxwell v. Mason, 668 F.2d 361, 365 (8th Cir. 1981) (confinement in isolation without adequate clothing or bedding supports an Eighth Amendment claim: “clothing is a ‘basic necessity of human existence’ ”). In McCray v. Burrell, 516 F.2d 357 (4th Cir. 1975), an inmate was confined 2 days in a cell where for part of the first night a concrete slab was his bed. A mattress was furnished later during that night, but no blankets were supplied. The inmate was so cold he tore open the mattress and slept inside it. He also was denied articles of personal hygiene. The court found a violation of the Eighth Amendment. Some conditions of confinement may establish an Eighth Amendment violation in combination when each alone would not do so. This is true when the deprivations have a mutually enforcing effect which produces the deprivation of a single, identifiable human need, such as food or warmth, for example “a low cell temperature at night combined with a failure to issue blankets.” Wilson v. Seiter, 501 U.S. 294, 304 (1991).
When we asked the defendants’ attorney at oral argument what case provides the strongest support for the proposition that the conditions of Gillis’s confinement did not violate the Eighth Amendment, we were directed to Trammell v. Keane, 338 F.3d 155 (2nd Cir. 2003). The case fails to carry the day. In that case the issue was not whether the condi-

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tions to which Trammell was subjected were sufficiently serious to deny him life’s necessities, but rather his failure to show that the authorities acted with deliberate indifference. In addition, certain significant distinctions exist between that case and Gillis’s. Trammell’s behavior was significantly more uncontrollable. In a 5-week period he was cited for 16 disciplinary violations. Gillis had only been at Supermax for 2 weeks, and the rule he violated had only been uniformly enforced for about one week, before he was placed in the BMP. He had only one conduct report, and that grew out of the same behavior giving rise to his BMP—sleeping the wrong way on his bed. Furthermore, Trammell was able to receive a blanket and mattress after 48 hours if he stopped his misbehavior. Gillis could not regain his bedding while he was in the program, nor could he make the BMP stop once it was activated. Trammell never was denied all of his clothing. He was allowed one pair of undershorts—which, while probably not significant as to warmth, is significant as to dignity.
What the cases show is that the principle on which Gillis relies is well-established, and the inquiry as to whether there is a violation is fact-specific. Because of competing facts and inferences in this case, whether Gillis was denied the “minimal civilized measure of life’s necessities” cannot be determined on summary judgment.
Summary judgment on the Eighth Amendment claim might still be proper, however, if Gillis cannot show that the defendants acted with disregard of the substantial risk of serious harm to him. Our review, though, convinces us that, on this issue as well, he must be allowed to proceed to trial. Defendants contend that placing Gillis on clinical observation shows that they did not disregard his safety. But nothing much changed for Gillis during clinical observation. Also, there is some indication in the record that the defendants saw the BMP in general as a way to deal with inmates without regard to the requirements of Chapter

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DOC 303 of the Wisconsin Administrative Code. The Code outlines procedures to be used in placing inmates in adjustment status and does not, as far as we can see, have provisions for the sort of deprivation Gillis suffered. The BMP was imposed basically on Hompe’s say-so, with the knowledge of the warden and deputy warden.
Gillis’s case is one in which the
plaintiff is entitled to have the trier of fact determine whether the conditions of his administrative confinement, principally with regard to the cell temperature and the provision of hygiene items, violated the minimal standards required by the Eighth Amendment.
Del Raine, at 1034.
We also note for the record that Gillis’s case is not a situation analogous to civil contempt in that he holds the keys to his own fate. In contrast to cases such as Rodriguez v. Briley, 403 F.3d 952 (7th Cir. 2005), Freeman v. Berge, 441 F.3d 543 (7th Cir. 2006), or even, as we discussed above, Trammell, Gillis did not hold the keys to his own release. He may have held the keys to the final 2 days at stage one of his BMP, but not to the entire period. In contrast, Rodriguez could have corrected his situation immediately. He missed many meals because he refused to put his belongings in a storage box before leaving his cell to go to the cafeteria. He could have gone to meals immediately had he complied. We said:
[W]e think that deliberate noncompliance with a valid rule does not convert the consequences that flow automatically from that noncompliance into punishment. Rodriguez punished himself.
403 F.3d at 952-53. Freeman refused to comply with a rule which required that inmates—who were in solitary confinement and fed in their cells—must be standing in the middle of their cells, with the lights on, wearing trousers or gym

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shorts in order to get their food delivered. Freeman would not put his pants on and so was denied food. We said, “[T]here is a difference between using food deprivation as a punishment and establishing a reasonable condition to the receipt of food.” 441 F.3d at 545.
The BMP is different. It is not simply a natural consequence “automatically” growing out of a rule infraction. It is much more elaborate. An inmate who refuses to put on his trousers can correct his situation immediately by putting them on. In contrast, defendants did not simply take Gillis’s blanket away until he conformed with the rule. Once he received notice that he was to be put in the BMP, he had to complete the whole program; he couldn’t make it stop. To say he could have avoided the program altogether by not breaking the rules in the first place would be to severely limit valid Eighth Amendment claims. One could say that most punishments could be avoided by simply following the rules. In a broader sense, no one would be in prison if everyone simply followed the rules. Freeman and Rodriguez are inapposite.
The inevitable conclusion that Gillis’s due process claim also survives summary judgment follows from our discussion of his treatment under the BMP. Gillis may well be able to convince a jury that the program imposes an atypical and significant hardship even measured against the ordinary incidents of life at Supermax, thus establishing a liberty interest.
Also, defendants have not shown that they are entitled to qualified immunity. They cannot show that in 2002, when these events occurred, it was not well-established that denial of shelter, heat, and hygiene items implicated an inmate’s constitutional rights.
As always in conditions of confinement cases, we are reluctant to interfere with the administration of the prisons. See Mathews v. Eldridge, 424 U.S. 319 (1976);

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Westefer v. Snyder, 422 F.3d 570 (7th Cir. 2005). But our reluctance does not mean we can avoid our obligation to carefully evaluate constitutional claims, such as this one. In addition, we question how much this particular case will affect the administration of the prisons. It is unclear what exactly the status of the BMP program is at Supermax. Gillis contends that the policy “is currently in effect. . . . Inmates continue to be denied a hearing prior to placement on BMP.” Defendants, with notable ambiguity, say that “[a]lthough the policy may still be in effect, the BMP program is no longer used” at Supermax.
The judgment of the district court is VACATED and this case is REMANDED for further proceedings consistent with this opinion.

A true Copy: Teste:

________________________________
Clerk of the United States Court of Appeals for the Seventh Circuit

USCA-02-C-0072—11-14-06

 
 USCA7 Docket Sheet for 06-2099

http://pacer.ca7.uscourts.gov/cgi-bin/dktrpt.pl?CASENUM=06-2099&p...

General Docket
US Court of Appeals for the Seventh Circuit

Court of Appeals Docket #: 06-2099 Nsuit: 3555 Prison Condition - State Gillis, Nathan v. Litscher, Jon, et al Appeal from: United States District Court

Filed: 4/17/06

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Lower court information:

District: 0757-1 : 02 C 463 Ordering Judge: William C. Griesbach, Judge Date Filed: 5/8/02 Date order/judgment: 3/14/06 Date NOA filed: 4/11/06 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Fee status: paid

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Prior cases:
None Current cases:
None

Docket as of November 14, 2006 11:02 pm

Page 1

06-2099 Gillis, Nathan v. Litscher, Jon, et al

NATHAN GILLIS Plaintiff - Appellant

Pamela R. McGillivray FAX 608/256-0933 608/256-1003 Suite 101 [COR LD NTC apt] GARVEY, MCNEIL & MCGILLIVRAY 634 W. Main Street Madison, WI 53703 USA

v.

JON E. LITSCHER Defendant - Appellee

Adrian Dresel-Velasquez FAX 608/267-8906 608/266-3056 [COR LD NTC ret] OFFICE OF THE ATTORNEY GENERAL Wisconsin Department of Justice 17 W. Main Street P.O. Box 7857 Madison, WI 53707-7857 USA

GERALD A. BERGE, Warden Defendant - Appellee

Adrian Dresel-Velasquez (See above) [COR LD NTC ret]

BRADLEY HOMPE Defendant - Appellee

Adrian Dresel-Velasquez (See above) [COR LD NTC ret]

KELLY COON

Adrian Dresel-Velasquez

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Defendant - Appellee

(See above) [COR LD NTC ret]

TAYLOR HAGAN Defendant - Appellee

Adrian Dresel-Velasquez (See above) [COR LD NTC ret]

Docket as of November 14, 2006 11:02 pm

Page 2

06-2099 Gillis, Nathan v. Litscher, Jon, et al
NATHAN GILLIS, Plaintiff - Appellant
v.
JON E. LITSCHER, GERALD A. BERGE, Warden, BRADLEY HOMPE, et al., Defendants - Appellees

Docket as of November 14, 2006 11:02 pm

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06-2099 Gillis, Nathan v. Litscher, Jon, et al

4/17/06

State prisoner's civil rights case docketed. [06-2099] [1977413-1] Transcript information sheet due 4/27/06. Appellant's brief due 5/30/06 for Nathan Gillis. (hudk)

4/17/06

Filed Appellant Nathan Gillis docketing statement. [06-2099] [1977433-1] (hudk)

4/17/06

THIS CAUSE CONSISTS OF MORE THAN 5 PARTIES FOR EITHER SIDE. The following are those parties to this cause as reflected on the District Court docket, yet are not reflected on the Appellate docket/caption for administrative purposes: APPELLEES: Nancy Wilmont, John Sharpe, Matthew Frank, Peter Huibregtse, and Richard Schneiter. [06-2099] [1977413-1] (hudk)

4/27/06

Disclosure Statement filed by Pamela R. McGillivray for Appellant Nathan Gillis. [06-2099] [1977413-1] (hudk)

5/30/06

Filed 15c appellant's brief by Nathan Gillis. Electronically Transmitted. [06-2099] [0-0] Appellee's brief due 6/29/06 for Taylor Hagan, for Kelly Coon, for Bradley Hompe, for Gerald A. Berge, for Jon E. Litscher. (josh)

5/30/06

Filed 10c appendix by Appellant Nathan Gillis. [06-2099] [1990554-1] (josh)

6/29/06

Filed 15c appellee's brief by Jon E. Litscher, Gerald A. Berge, Bradley Hompe, Kelly Coon, Taylor Hagan. Electronically Transmitted. [06-2099] [0-0] Appellant's reply brief due 7/13/06 for Nathan Gillis. (scze)

6/29/06

Appearance entered per filing of brief for Appellee Jon E. Litscher, Appellee Gerald A. Berge, Appellee Bradley Hompe, Appellee Kelly Coon, Appellee Taylor Hagan by attorney Adrian Dresel-Velasquez. Involvement of attorney Peggy A. Lautenschlager for Taylor Hagan, attorney Peggy A. Lautenschlager for Kelly Coon, attorney Peggy A. Lautenschlager for Bradley Hompe, attorney Peggy A. Lautenschlager for Gerald A. Berge, attorney Peggy A. Lautenschlager for Jon E. Litscher terminated. [06-2099] [1977413-1] (scze)

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7/12/06

Filed 15c appellant's reply brief by Nathan Gillis. Electronically Transmitted. [06-2099] [0-0] (josh)

7/25/06

ORDER: Argument set for Thursday, September 28, 2006 at 9:30 a.m. Each side limited to 15 minutes. [06-2099] [2008699-1] (linj)

8/1/06

Original record on appeal filed. Contents of record: 3 vol. pleadings; 8 vol. loose pleadings. [06-2099] [2010892-1] (kuzi)

Docket as of November 14, 2006 11:02 pm

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06-2099 Gillis, Nathan v. Litscher, Jon, et al

8/2/06

Oral argument confirmation card filed by attorney Pamela R. McGillivray for Appellant Nathan Gillis. [06-2099] [1977413-1] (kare)

9/25/06

Added attorney David C. Bender per appearance form. Appearance form filed for Appellant Nathan Gillis by attorney David C. Bender. [06-2099] [1977413-1] (juli)

9/28/06

Case heard and taken under advisement by panel: Chief Judge Joel M. Flaum, Circuit Judge Kenneth F. Ripple, Circuit Judge Terence T. Evans. [06-2099] [2030231-1] (kare)

9/28/06

Case argued by Pamela R. McGillivray for Appellant Nathan Gillis, Adrian Dresel-Velasquez for Appellee Taylor Hagan, Appellee Kelly Coon, Appellee Bradley Hompe, Appellee Gerald A. Berge, Appellee Jon E. Litscher. [06-2099] [1977413-1] (kare)

10/23/06

Disclosure Statement filed by David C. Bender for Appellant Nathan Gillis. [06-2099] [1977413-1] (juli)

10/25/06

Filed motion by Appellant Nathan Gillis to appoint counsel for appeal. [2040992-1] [06-2099] (hudk)

10/31/06

ORDER issued GRANTING motion to appoint counsel for appeal. Attorney Pamela McGillivray is appointed counsel of record for the appellant. [2040992-1] MJO [06-2099] (hudk)

11/14/06

Filed opinion of the court by Judge Evans. The judgment of the district court is VACATED and this case is REMANDED for further proceedings consistent with this opinion. Chief Judge Joel M. Flaum, Circuit Judge Kenneth Ripple, Circuit Judge Terence T. Evans. [06-2099] [1977413-1] (mank)

11/14/06

ORDER: Final judgment filed per opinion. With costs: n. [06-2099] [2045347-1] (mank)

Docket as of November 14, 2006 11:02 pm

Page 5

PACER Service Center

Transaction Receipt

PACER Login: Description:

11/17/2006 20:31:51

hs0328

Client Code:

dkt report Case Number: 06-2099

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USCA7 Docket Sheet for 06-2099 Billable Pages: 5

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 Eastern District of Wisconsin - Live - Docket Report

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CLOSED, PRISONER
United States District Court Eastern District of Wisconsin (Green Bay) CIVIL DOCKET FOR CASE #: 1:02-cv-00463-WCG

Gillis v. Litscher, et al Assigned to: Judge William C Griesbach Demand: $0 Case in other court: Seventh Circuit, 06-2099
USCA Gillis 03/15/04, 04-1647 USCA Gillis 04/11/06, 06-2099 Cause: 42:1983 Prisoner Civil Rights

Date Filed: 05/08/2002 Date Terminated: 01/31/2007 Jury Demand: Both Nature of Suit: 555 Prisoner: Conditions of Confinement Jurisdiction: Federal Question

Plaintiff Nathan Gillis

represented by Carlos A Pabellon Garvey McNeil & McGillivray SC 634 W Main St - Ste 101 Madison, WI 53703 608-256-1003 Fax: 608-256-0933 Email: pabellon@gmmattorneys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christa O Westerberg Garvey McNeil & McGillivray SC 634 W Main St - Ste 101 Madison, WI 53703 608-256-1003 Fax: 608-256-0933 Email: westerberg@gmmattorneys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pamela R McGillivray Garvey McNeil & McGillivray SC 634 W Main St - Ste 101 Madison, WI 53703 608-256-1003 Fax: 608-256-0933 Email: mcgillivray@gmmattorneys.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Jon E Litscher

represented by Adrian Dresel-Velasquez Wisconsin Department of Justice Office of the Attorney General 17 W Main St

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Eastern District of Wisconsin - Live - Docket Report

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Defendant Warden Gerald A Berge
Defendant Bradley Hompe

PO Box 7857 Madison, WI 53707-7857 608-266-3056 Fax: 608-267-8906 Email: dreselvelasqueza@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
John R Sweeney Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707-7857 608-264-9457 Fax: 608-267-8906 Email: sweeneyjr@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sloan Lattis Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707-7857 608-266-3004 Fax: 608-267-8906 Email: lattisjs@doj.state.wi.us TERMINATED: 04/25/2005
represented by Adrian Dresel-Velasquez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John R Sweeney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sloan Lattis (See above for address) TERMINATED: 04/25/2005
represented by Adrian Dresel-Velasquez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John R Sweeney (See above for address)

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Eastern District of Wisconsin - Live - Docket Report

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Pam Bartells TERMINATED: 03/31/2005

Jennifer Sloan Lattis (See above for address) TERMINATED: 04/25/2005
represented by Douglas S Knott Leib & Katt LLC 740 N Plankinton Ave - Ste 600 Milwaukee, WI 53203-2412 414-276-8816 Fax: 414-276-8819 Email: dsk@leibkatt.com TERMINATED: 08/10/2005 LEAD ATTORNEY

Defendant Jane Doe Sued as Nurse Sue TERMINATED: 01/17/2003
Defendant Kelly Coon

Jennifer Sloan Lattis (See above for address) TERMINATED: 04/25/2005
represented by Adrian Dresel-Velasquez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John R Sweeney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Gary Maier TERMINATED: 03/31/2005

Jennifer Sloan Lattis (See above for address) TERMINATED: 04/25/2005
represented by Douglas S Knott (See above for address) TERMINATED: 08/10/2005 LEAD ATTORNEY

Defendant Tayler Hagan

Jennifer Sloan Lattis (See above for address) TERMINATED: 04/25/2005
represented by Adrian Dresel-Velasquez

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Defendant Nancy Wilmont
Defendant John Sharpe
Defendant Sue Watters TERMINATED: 03/31/2005
Defendant

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John R Sweeney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sloan Lattis (See above for address) TERMINATED: 04/25/2005
represented by Adrian Dresel-Velasquez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John R Sweeney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sloan Lattis (See above for address) TERMINATED: 04/25/2005
represented by Adrian Dresel-Velasquez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John R Sweeney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sloan Lattis (See above for address) TERMINATED: 04/25/2005
represented by Douglas S Knott (See above for address) TERMINATED: 08/10/2005 LEAD ATTORNEY
Jennifer Sloan Lattis (See above for address) TERMINATED: 04/25/2005

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John Doe sued as: John Does 1 - 5 Defendant Matthew J Frank
Defendant Deputy Warden Peter A Huibregtse
Defendant Warden Richard Schneiter

represented by Adrian Dresel-Velasquez (See above for address) ATTORNEY TO BE NOTICED
represented by John R Sweeney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrian Dresel-Velasquez (See above for address) ATTORNEY TO BE NOTICED
represented by John R Sweeney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrian Dresel-Velasquez (See above for address) ATTORNEY TO BE NOTICED
represented by John R Sweeney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adrian Dresel-Velasquez (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/08/2002 05/08/2002 05/08/2002 05/08/2002 05/29/2002 06/04/2002 06/11/2002

#

Docket Text

1 COMPLAINT - Consent Forms Distributed for Magistrate Judge Goodstein (djd, ) (Entered: 05/09/2002)

2 PETITION by plntf Nathan Gillis for leave to proceed in forma pauperis (djd, ) (Entered: 05/09/2002)

3 MOTION by plntf Nathan Gillis for order to have filing fees taken out of plntf's release account (djd, ) (Entered: 05/09/2002)

4 MOTION by plntf Nathan Gillis for order to stop deft from using behavior management plan until the court can review the case (djd, ) (Entered: 05/09/2002)

5 Letter REQUEST by plntf Nathan Gillis for verification of receipt of trust account statement (djd, ) (Entered: 05/30/2002)

6 Letter REQUEST by plntf Nathan Gillis for deft name change of Jane Doe to Nurse Sue (djd, )

7 ORDER by Chief Judge J P Stadtmueller that w/in 20 days of the date of this order,

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06/25/2002 08/05/2002
08/06/2002 08/07/2002 08/12/2002 08/13/2002 08/13/2002 08/21/2002
08/26/2002 09/04/2002
09/04/2002 09/04/2002
09/10/2002
09/12/2002 09/12/2002
09/19/2002 10/02/2002

Mr Gillis shall forward to the clerk of this court, the sum of $6.58 as an initial partial filing fee (cc: all counsel) (djd, )
INITIAL PARTIAL FILING FEE PAID: on 6/25/02 in the amount of $6.58, receipt 101-110741. (djd, )
8 ORDER by Chief Judge J P Stadtmueller denying Gillis' motion for order to have filing fees taken out of plntf's release account [3-1] granting Gillis' petition to proceed in forma pauperis [2-1] FURTHER ORDERED that the US Marshals Service shall issue & serve all process in this case upon the defts (cc: all counsel) (djd, )
TRANSMIT Complaint, Notice, and Waiver to US Marshal for service upon defts (djd, )
PARTIAL FILING FEE PAID: on 8/7/02 in the amount of $20.00, receipt 101111261. (djd, ) (Entered: 08/08/2002)
9 CONSENT to Proceed before Magistrate Judge by plaintiff Nathan Gillis (kah, )
10 AMENDED COMPLAINT Re: [1-1] by plntf Nathan Gillis; adding Dr Maier, Dr Hagan, Ms Wilmont, J Sharpe; jury demand (djd, )
11 MOTION by plntf Nathan Gillis for order for mental examination (djd, )
12 LETTER from plaintiff Nathan Gillis advising the court that he hasn't received any acknowledgement that certain documents were filed in this case by the defendants. (eeb, )
13 REFUSAL to Consent to Proceed before Magistrate Judge by defts Jon E Litscher, Gerald A Berge, Mr Hompe, K Coon (djd, )
14 Letter REQUEST by plntf Nathan Gillis for court to send copy of amended complaint to AAG Jennifer Sloan Littis; Gillis states he sent one to AAG Charles Hoornstra (djd, ) (Entered: 09/05/2002)
15 MOTION by plntf Nathan Gillis for order to have deft served w/ amended complaint (djd, ) (Entered: 09/05/2002)
16 MOTION by plntf Nathan Gillis for order for mental health evaluation & to be placed back on depression medication according to Rule 35(a) (djd, ) (Entered: 09/05/2002)
17 LETTER from defts stating they found plntf's amended complaint in their file but will not accept service of the amended complaint (djd, ) Additional attachment(s) added on 9/26/2003 (cav, ). (Entered: 09/11/2002)
18 MOTION by plntf Nathan Gillis for order that deft Hompe refrain from communicating to plntf to dismiss case (djd, )
19 MOTION by plntf for preliminary injunction to put plntf back on depression medication , and for order to provide plntf w/ copy of mental health file , and for order to transfer plntf out of SMCI due to mental illness (djd, )
20 LETTER from plntf Nathan Gillis to court re deft not accepting amended complaint (djd, )
21 MOTION by plntf Nathan Gillis to compel Jennifer Sloan Lattis to follow Rule 26(f) (djd, ) (Entered: 10/03/2002)

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10/02/2002 10/07/2002 10/07/2002 10/08/2002 10/08/2002 10/08/2002 10/08/2002 10/09/2002
10/09/2002
10/09/2002 10/15/2002 10/15/2002 10/15/2002 10/15/2002 10/17/2002
10/17/2002 10/21/2002 10/22/2002
10/22/2002 10/29/2002 10/29/2002

22 CERTIFICATE of Service by plntf Nathan Gillis (djd, ) (Entered: 10/03/2002)
23 ANSWER by defts Jon E Litscher, Gerald A Berge, Mr Hompe, K Coon to Complaint [10-1] (djd, ) (Entered: 10/08/2002)
24 CERTIFICATE of Service by defts (djd, ) (Entered: 10/08/2002)
25 MOTION by plntf Nathan Gillis for temporary restraining order (djd, ) (Entered: 10/09/2002)
26 CERTIFICATE of Service by plntf Nathan Gillis (djd, ) (Entered: 10/09/2002)
27 MOTION by plntf Nathan Gillis for order re supplemental pleadings (djd, ) (Entered: 10/09/2002)
28 CERTIFICATE of Service by plntf Nathan Gillis (djd, ) (Entered: 10/09/2002)
29 LETTER from deputy clerk to the parties advising that action has been reassigned to Hon. William C. Griesbach. All previously scheduled deadlines, hearings & trial dates remain in effect. (vlh, ) (Entered: 10/10/2002)
30 MOTION by plaintiff for entry of default as to Jon E Litscher, Gerald A Berge, Mr Hompe, P Bartel, Nurse Sue, K Coon, Dr Maier, Dr Hagan, Ms Wilmont, J Sharpe (vlh, ) (Entered: 10/10/2002)
31 ORDER by Judge William C. Griesbach setting procedure for payment of $123.43 balance of filing fee (cc: all counsel) (vlh, ) (Entered: 10/11/2002)
32 REQUEST by plaintiff Nathan Gillis for production of documents (cms, ) (Entered: 10/16/2002)
33 CERTIFICATE of Service by plaintiff Nathan Gillis (cms, ) (Entered: 10/16/2002)
34 MOTION by plaintiff Nathan Gillis for order to take the remaining filing fees out of account (cms, ) (Entered: 10/16/2002)
35 CERTIFICATE of Service by plaintiff Nathan Gillis (cms, ) (Entered: 10/16/2002)
36 BRIEF by defendants Litscher, Berge, Hompe & Coon in opposition to motion for entry of default as to Jon E Litscher, Gerald A Berge, Mr Hompe, P Bartel, Nurse Sue, K Coon, Dr Maier, Dr Hagan, Ms Wilmont, J Sharpe [30-1] (bdr, )
37 CERTIFICATE of service by defendant Jon E Litscher, defendant Gerald A Berge, defendant Mr Hompe, defendant K Coon (bdr, )
PARTIAL FILING FEE PAID on 10/21/02 in the amount of $123.42, receipt 101 112015 (vlh, ) Filing fee paid in full (klp). (Entered: 10/22/2002)
38 REPLY BRIEF by plaintiff in support of motion for entry of default as to Jon E Litscher, Gerald A Berge, Mr Hompe, P Bartel, Nurse Sue, K Coon, Dr Maier, Dr Hagan, Ms Wilmont, J Sharpe [30-1]; certificate of service attached (vlh, ) (Entered: 10/23/2002)
39 NOTICE OF MOTION & MOTION by plaintiff to amend complaint ; proposed amended complaint & certificate of service attached (vlh, ) (Entered: 10/23/2002)
40 RESPONSES by Gerald A Berge to plaintiff's request for production of documents [32-1] (vlh, )
41 CERTIFICATE of service by defendant (vlh, )

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10/31/2002 10/31/2002 10/31/2002 11/08/2002 11/12/2002 11/29/2002
11/29/2002 12/23/2002 12/23/2002 12/24/2002 12/24/2002 12/24/2002 12/24/2002 12/24/2002 12/24/2002 01/17/2003

42 MOTION by plaintiff to withdraw motion for order allowing withdrawal of filing fee from release account (vlh, )
43 MOTION by plaintiff to withdraw motion to compel Rule 26(f) meeting (vlh, )
44 CERTIFICATE of service by plaintiff (vlh, )
45 MOTION by plaintiff Nathan Gillis to compel production of documents. (kmm, ) (Entered: 11/12/2002)
SUMMONS issued as to Nurse Sue (vlh, )
46 BRIEF in Opposition re 45 Motion to Compel production of documents filed by Defendants Gerald A Berge, K Coon, Mr Hompe, Jon E Litscher. (kah, ) (Entered: 12/02/2002)
47 CERTIFICATE OF SERVICE BY MAIL by Defendants Gerald A Berge, K Coon, Mr Hompe, Jon E Litscher (kah, ) (Entered: 12/02/2002)
54 LETTER from plaintiff Nathan Gillis inquiring as to status of case. (tlf, ) (Entered: 01/14/2003)
55 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis. (tlf, ) (Entered: 01/14/2003)
48 RETURN OF SERVICE of notice, waiver & complaint. Waiver sent 8/7/02 & executed 8/22/02 by Jennifer Sloan Lattis, Asst. A.G. (vlh, )
49 RETURN OF SERVICE of notice, waiver & complaint. Waiver sent 8/7/02 & executed 8/22/02 by Asst. A.G. Jennifer Sloan Lattis (vlh, )
50 RETURN OF SERVICE of notice, waiver & complaint. Waiver sent 8/7/02 & executed 8/22/02 by Asst. A.G. Jennifer Sloan Lattis. (vlh, )
51 RETURN OF SERVICE unexecuted. Pamela Bartels no longer employed at Supermax. (vlh, )
52 RETURN OF SERVICE of notice, waiver & complaint. Waiver sent 8/7/02 & executed 8/22/02 by Asst. A.G. Jennifer Sloan Lattis. (vlh, )
53 SUMMONS returned executed; Sue Watters, believed to be "Nurse Sue," served on 12/10/2002. (vlh, )
56 ORDER signed by Judge William C Griesbach on 1/17/03granting 42 Motion to Withdraw Motion to take remaining filing fees out of realse account, granting 43 Motion to Withdraw Motion to compel defendants to produce documents, denying 4 Motion for order stopping defendant from using behavior management plan until court reviews case, denying 11 Motion for Order for a mental examination, denying 15 Motion for Order to have defendants served with amended complaint, denying 16 Motion for Order for mental health evaluation and for plaintiff to be placed back on depression medication, denying 18 Motion for Order directing defendant Hompe refrain from communicating to plaintiff to dismiss the case, deferring ruling on 19 Motion for Preliminary Injunction to place plaintiff back on depression medication and to transfer him to a different institution until defendants have filed a response (defendants to file response within 30 days), denying 19 Motion for Order for defendant to provide plaintiff and the court with copies of plaintiff's mental health file, denying 21 Motion to Compel Assistant Attorney General to follow Rule 26(f), deferring ruling on 25 Motion for TRO until defendants have filed a response (defendants to file response within 30 days), denying 27 Motion for Order on Rule

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01/17/2003 01/17/2003 01/17/2003 01/28/2003
01/28/2003 01/30/2003 01/30/2003 01/30/2003 02/04/2003 02/04/2003
02/04/2003
02/06/2003 02/06/2003 02/06/2003 02/06/2003 02/10/2003 02/10/2003
02/12/2003

15(d) Supplemental Pleadings, denying 30 Motion for Default, denying motion for order requiring production of documents (Docket #32), denying 34 Motion to take remaining filing fees out of release account, granting 39 Motion to Amend the complaint, and directing clerk of court to detach the proposed amended complaint and file it, granting in part and denying in part 45 Motion to Compel such that plaintiff's request number 5 is narrowed to decisions and decrees relating to confinement at WSPF. Defendants are ordered to respond to such request within 30 days. The defendants in this case are: Jon Litscher, Gerald Berge, Bradley Hompe, John Sharpe, Pam Bartells, Sue Watters, Tayler Hagan, Gary Maier, Kelly Coon and Nancy Wilmont. (cc: all counsel) (bsh, )
57 AMENDED COMPLAINT against all defendants Jury Demand filed by Nathan Gillis.(bsh, )
TRANSMIT Amended Complaint to attorney for defendants by regular mail (bsh, ).
TRANSMIT Complaint, Notice, Waiver to US Marshall for service. (bsh, )
58 Request for Partial Reconsideration and Response to Discovery by Defendants Gerald A Berge, Kelly Coon, Tayler Hagan, Bradley Hompe, Jon E Litscher, John Sharpe, Nancy Wilmont. (bsh, )
59 CERTIFICATE OF SERVICE by Defendants Gerald A Berge, Kelly Coon, Tayler Hagan, Bradley Hompe, Jon E Litscher, John Sharpe, Nancy Wilmont (bsh, )
60 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis (bsh, )
61 MOTION to Appoint Counsel by Plaintiff Nathan Gillis. (bsh, )
62 BRIEF in Opposition re 58 MOTION for Partial Reconsideration of Order and Response to Discovery filed by Plaintiff Nathan Gillis. (bsh, )
63 CERTIFICATE OF SERVICE by Defendants Gerald A Berge, Kelly Coon, Tayler Hagan, Bradley Hompe, Jon E Litscher, John Sharpe, Nancy Wilmont (bsh, )
64 ANSWER and Affirmative Defenses to Amended Complaint by Gerald A Berge, Kelly Coon, Tayler Hagan, Bradley Hompe, Jon E Litscher, John Sharpe, Nancy Wilmont.(bsh, )
65 ORDER signed by Judge William C Griesbach on 02/04/03granting 58 Motion for Reconsideration, and vacating that portion of the order of January 17, 2003 relating to plaintiff's document request number 5, and denying 61 Motion to Appoint Counsel . (cc: all counsel) (bsh, ) (Entered: 02/05/2003)
66 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis (bsh, )
67 First Set of INTERROGATORIES by Nathan Gillis to all defendants(bsh, )
68 REQUEST for Production of Documents by Nathan Gillis (bsh, )
69 REQUEST for Admissions by Nathan Gillis (bsh, )
70 CERTIFICATE OF SERVICE by Defendants Gerald A Berge, Kelly Coon, Tayler Hagan, Bradley Hompe, Jon E Litscher, John Sharpe, Nancy Wilmont (bsh, )
71 BRIEF in Opposition re 19 Motion for Preliminary Injunction filed by Defendants Pam Bartells, Gerald A Berge, Kelly Coon, Tayler Hagan, Bradley Hompe, Jon E Litscher, John Sharpe, Nancy Wilmont. (bsh, )
72 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis (bsh, )

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02/12/2003 02/12/2003 02/12/2003 02/26/2003
03/07/2003 03/07/2003 03/11/2003
03/11/2003 03/11/2003 03/11/2003 03/12/2003 03/12/2003 03/14/2003
03/18/2003 03/18/2003 03/18/2003 03/18/2003 03/18/2003 03/19/2003 03/19/2003 03/19/2003 03/25/2003 03/25/2003

73 REPLY BRIEF in Support re 19 Motion for Preliminary Injunction filed by Plaintiff Nathan Gillis. (bsh, )
74 REQUEST by Plaintiff Nathan Gillis for a copy of the summons and complaint to be reserved on Dr Maier. (bsh, )
US Marshals Service contacted, and summons and complaint will be reserved on Dr Maier (bsh, )
75 AFFIDAVIT of Dr. Gary Maier, with attached psychiatric report and curriculum vitae (bsh, ) Document unavailable in electronic format. Original can be viewed in the court's file. (cav, ). (Entered: 02/27/2003)
76 MOTION to Compel Defendants to Produce Documents and Answers to Interrogatories by Plaintiff Nathan Gillis. (bsh, )
77 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis (bsh, )
78 Letter RESPONSE to Plaintiff's 76 MOTION to Compel Defendants to Produce Documents and Answers to Interrogatories filed by Defendants Gerald A Berge, Kelly Coon, Tayler Hagan, Bradley Hompe, Jon E Litscher, John Sharpe, Nancy Wilmont. (bsh, )
79 MOTION for Default Judgment as to Dr. Maier, Nurse Bartel, and Nurse Sue Watters by Plaintiff Nathan Gillis. (bsh, )
80 PRETRIAL Report by Nathan Gillis (bsh, )
81 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis (bsh, )
82 MOTION to Appoint Counsel by Plaintiff Nathan Gillis. (bsh, )
83 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis (bsh, )
84 LETTER from Douglas S Knott regarding service on Prison Health Services Inc employees (bsh, ) Additional attachment(s) added on 9/26/2003 (cav, ). (Entered: 03/17/2003)
85 MOTION for Partial Summary Judgment by Plaintiff Nathan Gillis. (bsh, )
86 BRIEF in Support re 85 MOTION for Partial Summary Judgment filed by Plaintiff Nathan Gillis. (bsh, )
87 REPLY in Support re 76 MOTION to Compel filed by Plaintiff Nathan Gillis. (bsh, )
88 Second REQUEST for Admissions by Nathan Gillis (bsh, )
89 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis (bsh, )
90 MOTION to Amend/Correct Plaintiff's Motion to Compel by Plaintiff Nathan Gillis. (bsh, )
91 Second Set of INTERROGATORIES by Nathan Gillis to defendants(bsh, )
92 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis (bsh, )
93 MOTION for Order granting leave to take depositions of Wisconsin Secure Program Facility prisoners by Plaintiff Nathan Gillis. (bsh, )
94 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis (bsh, )

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04/09/2003
04/14/2003 04/14/2003 04/14/2003 04/15/2003 04/15/2003 04/16/2003 04/18/2003 04/21/2003 04/21/2003 04/21/2003 04/22/2003 04/22/2003 05/05/2003 05/05/2003 05/07/2003

95 ORDER signed by Judge William C Griesbach on 4/9/03denying 19 MOTION by plntf for preliminary injunction to put plntf back on depression medication, and for order to provide plntf w/ copy of mental health file, and for order to transfer plntf out of SMCI due to mental illness, denying 25 Motion for TRO, denying 82 Motion to Appoint Counsel, denying 93 MOTION for Order granting leave to take depositions of Wisconsin Secure Program Facility prisoners. (cc: all counsel) (bsh, ) Additional attachment(s) added on 9/26/2003 (cav, ).
96 Plaintiff's handwritten comments on Defendant's Response to plaintiff's request for admission, filed by Plaintiff Nathan Gillis. (cav, ) Modified on 4/15/2003 (tlf, ). Additional attachment(s) added on 9/26/2003 (cav, ).
97 Plaintiff's handwritten comments on Defendant's Response to plaintiff's request for interrogatories, filed by Plaintiff Nathan Gillis. (cav, ) Modified on 4/15/2003 (tlf, ). Additional attachment(s) added on 9/26/2003 (cav, ).
98 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ).
99 MOTION for Reconsideration and Clarification of the Court's order dated 4/9/03 with attached certificate of service by Plaintiff Nathan Gillis. (cav, ) Additional attachment(s) added on 3/22/2006 (mec, ).
100 MOTION to Strike from the record US District Judge Shabaz's order dated 1/22/03 with attached certificate of service by Plaintiff Nathan Gillis. (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ).
101 ORDER signed by Judge William C Griesbach on 04/16/03denying 99 Motion for Reconsideration . (cc: all counsel) (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ).
102 CERTIFICATE OF SERVICE by Defendants (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ).
103 MOTION for Default Judgment as to Gerald Berge and Bradley Hompe by Plaintiff Nathan Gillis. (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ). (Entered: 04/22/2003)
104 MOTION to Compel defendants to answer plaintiff's second set of interrogatories dated 3/17/03 by Plaintiff Nathan Gillis. (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ). (Entered: 04/22/2003)
105 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ). (Entered: 04/22/2003)
106 Plaintiff's third set of Admissions by Nathan Gillis (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ). (Entered: 04/24/2003)
107 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ). (Entered: 04/24/2003)
108 RESPONSE to plaintiff's Motion for Default Judgment filed by Defendants (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ). (Entered: 05/06/2003)
109 CERTIFICATE OF SERVICE by Defendants (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ). (Entered: 05/06/2003)
110 MOTION to Strike defendant's response to plaintiff's motion for default judgment dated 5/2/03 by Plaintiff Nathan Gillis. (cav, ) Additional attachment(s) added on

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05/07/2003 05/20/2003 05/20/2003 05/23/2003 05/23/2003 05/23/2003 05/23/2003 05/23/2003 06/23/2003 07/01/2003
07/09/2003 07/09/2003 07/09/2003 08/01/2003 08/01/2003 08/01/2003

9/26/2003 (cav, ).
111 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ).
112 MOTION to Stay Discovery by Defendants.(cav, ) Additional attachment(s) added on 9/26/2003 (cav, ).
113 CERTIFICATE OF SERVICE by Defendants (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ).
114 BRIEF in Opposition re 112 MOTION to Stay filed by Plaintiff Nathan Gillis. (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ).
115 MOTION for Sanctions for refusing to answer admissions by Plaintiff Nathan Gillis. (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ).
116 BRIEF in Support re 115 MOTION for Sanctions filed by Plaintiff Nathan Gillis. (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ).
117 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ).
118 ORDER signed by Judge William C Griesbach on 5/23/03granting 112 Motion to Stay Discovery. (cc: all counsel) (cav, ) Additional attachment(s) added on 9/26/2003 (cav, ).
119 WAIVER OF SERVICE Returned Executed by Tayler Hagan waiver sent on 6/20/2003. (cav, ) Additional attachment(s) added on 6/24/2003 (cav, ). (Entered: 06/24/2003)
120 ORDER signed by Judge William C Griesbach on 7/1/03finding as moot 76 Motion to Compel, denying 79 Motion for Default Judgment, denying 90 Motion to Amend/Correct, denying 100 Motion to Strike, denying 103 Motion for Default Judgment, denying 104 Motion to Compel, denying 110 Motion to Strike, denying 115 Motion for Sanctions . The state defendants shall respond to the plaintiff's motion for partial summary judgment no later than 8/1/03. The US Marshals Service shall effect srevice upon defendants Maier, Bartels, and Watters. The Marshall is instructed to contact Attorney Douglas Knott to obtain addresses in order to effect service. (cc: all counsel) (cav, ) . (Entered: 07/02/2003)
121 MOTION for Reconsideration of court's order dated 7/1/03 by Plaintiff Nathan Gillis. (tlf, ) (Entered: 07/10/2003)
122 BRIEF in Support re 121 MOTION for Reconsideration of court's order dated 7/1/03 filed by Plaintiff Nathan Gillis. (tlf, ) (Entered: 07/10/2003)
123 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis. (tlf, ) (Entered: 07/10/2003)
124 BRIEF in Opposition re 85 MOTION for Partial Summary Judgment filed by Defendants Gerald A Berge, Kelly Coon, Tayler Hagan, Bradley Hompe, Jon E Litscher, John Sharpe, Nancy Wilmont. (tlf, ) (Entered: 08/06/2003)
125 RESPONSE to plaintiff's proposed facts filed by Defendants Gerald A Berge, Kelly Coon, Tayler Hagan, Bradley Hompe, Jon E Litscher, John Sharpe, Nancy Wilmont. (tlf, ) (Entered: 08/06/2003)
126 Proposed Findings of Fact by Defendants Gerald A Berge, Kelly Coon, Tayler

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08/01/2003 08/01/2003
08/06/2003 08/06/2003 08/06/2003 08/06/2003 08/07/2003 08/07/2003 08/07/2003 08/08/2003 08/11/2003 08/11/2003 08/12/2003 08/12/2003 08/18/2003
09/03/2003 09/03/2003 09/03/2003 09/03/2003 09/03/2003

Hagan, Bradley Hompe, Jon E Litscher, John Sharpe, Nancy Wilmont. (tlf, ) (Entered: 08/06/2003)
127 AFFIDAVIT of Brad Hompe. (tlf, ) (Entered: 08/06/2003)
128 CERTIFICATE OF SERVICE by Defendants Gerald A Berge, Kelly Coon, Tayler Hagan, Bradley Hompe, Jon E Litscher, John Sharpe, Nancy Wilmont. (tlf, ) (Entered: 08/06/2003)
129 REPLY BRIEF in Support re 85 MOTION for Partial Summary Judgment filed by Plaintiff Nathan Gillis. (cav, ) (Entered: 08/08/2003)
130 PROPOSED Findings of Fact filed by Plaintiff Nathan Gillis (cav, ) (Entered: 08/08/2003)
131 AFFIDAVIT of Nathan Gillis (cav, ) (Entered: 08/08/2003)
132 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis (cav, ) (Entered: 08/08/2003)
133 WAIVER OF SERVICE Returned Executed by Nancy Wilmont waiver sent on 1/22/2003. (cav, ) (Entered: 08/12/2003)
134 WAIVER OF SERVICE Returned Executed by John Sharpe waiver sent on 8/7/2003. (cav, ) (Entered: 08/12/2003)
135 WAIVER OF SERVICE Returned Executed by Gary Maier waiver sent on 1/22/2003. (cav, ) (Entered: 08/12/2003)
136 ORIGINAL DOCUMENT AFFIDAVIT OF BRAD HOMPE. (cav, ) Additional attachment(s) added on 8/12/2003 (cav, ). (Entered: 08/12/2003)
137 REQUEST by Plaintiff Nathan Gillis for default as to G Maier and Nurse Sue (cav, ) Additional attachment(s) added on 8/14/2003 (cav, ). (Entered: 08/14/2003)
138 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis (cav, ) (Entered: 08/14/2003)
139 REQUEST by Plaintiff Nathan Gillis to attach 2nd set of admissions to plantiff's motion for partial summary judgment. (cav, ) (Entered: 08/14/2003)
140 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis (cav, ) (Entered: 08/14/2003)
141 ORDER re 121 MOTION for Reconsideration for entry of default judgment as to Sue Watters and Gary Maier, filed by Nathan Gillis signed by Judge William C Griesbach on 8/18/03. The defendants Gary Maier and Sue Watters shall show cause within 30 days of this order as to why a default judgment against them and in favor of the plaintiff should not be entered. (cc: all counsel)(cav, ) (Entered: 08/20/2003)
142 MOTION for Injunction by Plaintiff Nathan Gillis. (mec, )
143 BRIEF in Support re 142 MOTION for Injunction filed by Plaintiff Nathan Gillis. (mec, )
144 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis. (mec, )
145 AFFIDAVIT of Nathan Gillis in support of Motion for Injunction. (mec, )
146 CERTIFICATE OF SERVICE for affidavit by Plaintiff Nathan Gillis. (mec, )

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09/05/2003 09/05/2003
09/05/2003 09/09/2003 09/09/2003 09/15/2003
09/17/2003 09/17/2003 09/17/2003 09/24/2003 12/16/2003 12/16/2003 12/16/2003 01/27/2004 02/18/2004 02/19/2004 03/09/2004
03/09/2004 03/15/2004 03/15/2004 03/15/2004

147 RESPONSE re 141 Order to show cause why default should not be entered, filed by Defendants Gary Maier, Sue Watters. (cav, )
148 LETTER from Attorney Douglas Knott stating defendants Watters and Maier have authorized him to accept service on their behalf. Request for clerk to send a copy of the most recent version of the complaint. (cav, )
A copy of the amended complaint (docket #57) sent to Attorney Knotts. (cav, )
149 RESPONSE re 147 Response to Order to Show Cause filed by Plaintiff Nathan Gillis. (mec, ) (Entered: 09/11/2003)
150 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis. (mec, ) (Entered: 09/11/2003)
151 LETTER RESPONSE IN OPPOSITION from Attorney Jennifer Sloan Lattis regarding plaintiff's Motion for Injunction. (mec, ) Modified on 9/24/2003 (mec, ). (Entered: 09/16/2003)
152 RESPONSE re 151 Letter filed by Plaintiff Nathan Gillis. (mec, ) (Entered: 09/18/2003)
153 MOTION to take deposition by phone in support of motion for injunction by Plaintiff Nathan Gillis. (mec, ) (Entered: 09/18/2003)
154 CERTIFICATE OF SERVICE by Plaintiff Nathan Gillis. (mec, ) (Entered: 09/18/2003)
155 ANSWER to Amended Complaint by Pam Bartells, Gary Maier, Sue Watters.(cav, )
156 MOTION to Substitute Party by Nathan Gillis. (cav, )
157 MOTION for Joinder by Nathan Gillis. (cav, )
158 CERTIFICATE OF SERVICE by Nathan Gillis (cav, )
159 MOTION for Preliminary Injunction by Nathan Gillis. Certificate of Service attached. (mec, )
161 AFFIDAVIT of Nathan Gillis (Attachments: # 1 certificate of service)(cav, ) (Entered: 02/20/2004)
160 LETTER from Asst. Atty. General Jennifer Sloan Lattis. Response to plaintiff's Motions for Preliminary Injunction. (mec, )
162 ORDER signed by Judge William C Griesbach on March 9, 2004 denying 85 Motion for Partial Summary Judgment, denying 121 Motion for Reconsideration, denying 142 Motion for Preliminary Injunction, denying 153 Motion for Consideration, denying 156 Motion to Substitute Party., denying 157 Motion for Joinder, denying 159 Motion for Preliminary Injunction . (cc: all counsel) (mec, )
163 SCHEDULING ORDER: signed by Judge William C Griesbach on March 9, 2004. Motions due by 6/7/2004. (cc: all counsel)(mec, )
164 NOTICE of Interlocutory Appeal by Nathan Gillis. (mec, )
165 INTERLOCUTORY APPEAL as to 162 Order by Nathan Gillis. (cc: all counsel) (mec, )
166 Docketing Statement by Nathan Gillis re 165 Notice of Appeal. (cc: all counsel) (mec, )

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03/15/2004 03/15/2004 03/15/2004 03/15/2004 03/16/2004 03/18/2004
03/19/2004 03/22/2004
03/24/2004
03/31/2004 04/01/2004 04/01/2004 05/07/2004 05/07/2004 05/13/2004
05/17/2004
05/26/2004
05/28/2004
06/02/2004

167 BRIEF in Support re 165 Notice of Appeal filed by Nathan Gillis. (mec, )
168 CERTIFICATE OF SERVICE by Nathan Gillis. (mec, )
169 MOTION for Leave to Proceed in forma pauperis by Nathan Gillis. (mec, )
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 165 Notice of Appeal. (mec, ) (Entered: 03/16/2004)
170 Prisoner Trust Fund Account Statement by Nathan Gillis. (mec, ) Modified on 5/24/2005 (klp, ).
172 DESIGNATION of Record on Appeal with attached certificate of service by Nathan Gillis re 165 Notice of Appeal to include docket numbers : 162,121,142,153,156,157, & 159. (cav, ) (Entered: 03/19/2004)
171 REQUEST by Nathan Gillis for correction of docket number on docket. Certificate of Service attached. (mec, )
173 NOTICE OF DOCKETING USCA Case Number 04-1647 7th Circuit re: 165 Notice of Appeal filed by Nathan Gillis. (cav, ) Additional attachment(s) added on 3/23/2004 (cav, ). (Entered: 03/23/2004)
174 ORDER signed by Judge William C Griesbach on 03/24/04 denying 169 Motion for Leave to Proceed in forma pauperis on appeal. Plaintiff shall pay $255.00 appeal fee within 14 days of the date of this order. (cc: all counsel) (cav, )
175 Appeal Record Request received from 7th Cir. Re: USCA Case Number 04-1647. (cav, ) (Entered: 04/01/2004)
Appeal Record Prepared consisting of 2 volumes of pleadings re 165 Notice of Appeal (cav, ).
Certified Record on Appeal Transmitted to US Court of Appeals consisting of 2 volumes of pleadings re 165 Notice of Appeal (cc: all counsel) (cav, )
176 MOTION to Compel by Nathan Gillis. (mec, )
177 CERTIFICATE OF SERVICE by Nathan Gillis. (mec, )
178 RESPONSE to Motion (attached exhibits not available in electronic format see the file for hard copy) re 176 MOTION to Compel filed by Pam Bartells, Gary Maier, Sue Watters. (mec, )
179 ORDER of USCA re 165 Notice of Appeal filed by Nathan Gillis. Appellant to pay fee within 14 days or else the appeal shall be dismissed for failure to prosecute. (cav, )
180 USCA Mandate as to 165 Notice of Appeal filed by Nathan Gillis USCA Number 02-463 The appeal is dismissed pursuant to FRAP 42(b). The clerk shall collect the appellate fee from the prisoner's trust fund account.(cav, ) (Entered: 05/28/2004)
181 ORDER directing the WI DOC to collect the $255.00 balance of the appellate filing fee from the plaintiff's prison trust account in accordance with 28:1915(b)(2) signed by Judge William C Griesbach on 5/28/2004. (cc: all counsel, AAG Hoornstra, PLRA Attorney)(tlf, )
Appeal Record Returned consisting of 2 Volumes of Pleadings regarding 165 Notice of Appeal. (mec, )

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06/02/2004
06/02/2004 06/03/2004 06/07/2004 06/07/2004 06/07/2004 06/07/2004 06/07/2004 06/07/2004 06/07/2004
06/07/2004
06/07/2004 06/07/2004 06/07/2004 06/07/2004 06/09/2004 06/09/2004 06/09/2004 06/09/2004 06/10/2004 06/15/2004 06/15/2004

182 MOTION to Compel defendants Maier, Nurse Sue, and Bartells to produce second set of interrogatories, productions of document and admissions by Nathan Gillis. (cav, )
183 CERTIFICATE OF SERVICE by Nathan Gillis (cav, )
184 COPY OF LETTER from AAG Jennifer Sloan Lattis to Nathan Gillis regarding authorization for disclosure of medical information (cav, ) (Entered: 06/04/2004)
185 MOTION for Summary Judgment by all defendants. (cav, )
186 BRIEF in Support re 185 MOTION for Summary Judgment filed by all defendants. (cav, )
187 Proposed Findings of Fact by all defendants. (cav, )
188 AFFIDAVIT of Brad Hompe with attached exhibits 1-4. Document unavailable in electronic format. The original may be viewed in the court's file. (cav, )
189 AFFIDAVIT of John Sharpe with attached exhibits 1-2. Document unavailable in electronic format. The original may be viewed in the court's file. (cav, )
190 AFFIDAVIT of Kelly Trumm with attached exhibits 1-4.Document unavailable in electronic format. The original can be viewed in the court's file. (cav, )
191 AFFIDAVIT of Vincent Escandell with attached exhibits 1-7. Document unavailable in electronic format. The original can be viewed in the court's file. (cav, )
192 AFFIDAVIT of Ellen Ray with attached exhibits 1-2 and exhibits A-K. Document unavailable in electronic format. The original can be viewed in the court's file. (cav, ) Modified on 6/7/2004 (cav, ).
193 MOTION for Summary Judgment by Pam Bartells, Gary Maier, Sue Watters. (Knott, Douglas)
194 BRIEF in Support re 193 MOTION for Summary Judgment filed by Pam Bartells, Gary Maier, Sue Watters. (Knott, Douglas)
195 PROPOSED Proposed Findings of Fact and Conclusions of Law filed by Pam Bartells, Gary Maier, Sue Watters (Knott, Douglas)
196 AFFIDAVIT of Douglas S. Knott in Support of Motion for Summary Judgment (Knott, Douglas)
197 MOTION for Summary Judgment by Nathan Gillis. (cav, )
198 BRIEF in Support re 197 MOTION for Summary Judgment filed by Nathan Gillis. (cav, )
199 AFFIDAVIT of Nathan Gillis (cav, )
200 CERTIFICATE OF SERVICE by Nathan Gillis (cav, )
201 RESPONSE to Motion re 182 MOTION to Compel filed by Pam Bartells, Gary Maier, Sue Watters. (mec, )
202 BRIEF in Opposition re 193 MOTION for Summary Judgment filed by Nathan Gillis. (mec, ) (Entered: 06/16/2004)
203 RESPONSE in Opposition to re 195 Proposed Findings of Fact filed by Nathan

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06/15/2004 06/17/2004 07/13/2004 07/14/2004 07/15/2004 07/20/2004 03/31/2005
03/31/2005 03/31/2005 04/25/2005 05/04/2005 05/04/2005 05/18/2005 05/20/2005
05/26/2005

Gillis. (mec, ) (Entered: 06/16/2004)
204 CERTIFICATE OF SERVICE by Nathan Gillis. (mec, ) (Entered: 06/16/2004)
205 ORDER signed by Judge William C Griesbach on 06/17/04 denying 176 Motion to Compel, denying 182 Motion to Compel . (cc: all counsel) (cav, )
206 LETTER Reply Brief to 185 Motion for Summary Judgment filed by AAG Jennifer Sloan Lattis. (mec, )
207 MOTION for Default Judgment as to Jon Litscher, Gerald Berge, Bradley Hompe, Kelly Coon, Taylor Hagan, Nancy Wilmont and John Sharpe by Nathan Gillis. Certificate of Service attached. (mec, ) (Entered: 07/19/2004)
208 RESPONSE in opposition to reply re 185 MOTION for Summary Judgment filed by Nathan Gillis. Certificate of Service attached. (mec, ) (Entered: 07/19/2004)
TRANSMIT File to pro se law clerk. (tlf, )
209 ORDER signed by Judge William C Griesbach on 03/31/05 granting in part and denying in part 185 defendants Litscher, Berge, Hompe, Sharpe, Hagan, Coon, and Wilmont's Motion for Summary Judgment. The motion will be granted as to the plaintiff's access to the courts claim and, in part, his retaliation claim. The defendants' motion to dismiss defendant Hagan for failure to exhaust will be denied and therefore an unaddressed retalation claim remains against defendant Hagan. The defendants' motion for summary judgment will be denied as to the plaintiffs's Eighth Amendment claim regarding the conditions of confinement of the BMP/clinical observation and that the plaintiff was subjected to those conditions without due process of law. Granting Bartels, Watters, and Maier's 193 Motion for Summary Judgment. Denying 197 Plaintiff's Motion for Summary Judgment. Denying 207 Plaintiff's Motion for Default Judgment . (cc: all counsel) (Griesbach, William)
210 NOTICE of Hearing: (cc: all counsel) Scheduling Conference set for 5/4/2005 01:30 PM before Judge William C Griesbach. (cav, )
Copy of Notice of Hearing210 and Order 209 sent via U.S. Mail to Nathan Gillis and Jennifer Sloan Lattis. Order 209 sent via U.S. Mail to Douglas s. Knott. (cav, )
211 NOTICE of Amended Appearance by John R Sweeney, Adrian Dresel-Velasquez on behalf of Nancy Wilmont, John Sharpe, Jon E Litscher, Gerald A Berge, Bradley Hompe, Kelly Coon, Tayler Hagan. (mec, ) (Entered: 04/26/2005)
212 NOTICE of Rescheduled Hearing: Telephone Scheduling Conference set for 5/26/2005 10:00 AM before Judge William C Griesbach. (cc: all counsel)(mec )
Copy of Notice of Rescheduled Hearing 212 sent via U.S. Mail to Nathan Gillis and Attorney Adrian Velasquez. (mec, )
213 LETTER from John Sweeney regarding 05/26/05 telephone conference. (cav, )
214 ORDER appointing counsel as Attorney Pamela R McGillivray and Christa O Westerberg for Nathan Gillis signed by Judge William C Griesbach on May 20, 2005. The clerk is instructed to include Attorneys McGillivray and Westerberg in the telephone status conference scheduled for May 26, 2005 at 10:00 a.m. (cc: all counsel)(Griesbach, William)
215 Minute Entry for proceedings held before Judge William C Griesbach : Telephone Conference held on 5/26/2005 . Court sets new deadlines and will issue a scheduling order. Court will bifurcate liability from damages at trial. (tlf, ) (Entered:

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07/08/2005 07/12/2005
07/12/2005 07/14/2005 07/29/2005 07/29/2005 08/01/2005
08/12/2005 08/12/2005 01/17/2006 01/17/2006
01/17/2006 01/17/2006 01/17/2006 01/17/2006 01/17/2006 01/17/2006

05/27/2005)
217 LETTER from Nathan Gillis requesting transcript and docket sheet. Certificate of Service attached. (mec, ) (Entered: 07/12/2005)
216 SCHEDULING ORDER: signed by Judge William C Griesbach on 7/12/2005. Amended Pleadings due by 8/1/2005. Plaintiffs Expert Witness List due by 9/15/2005. Defendants Expert Witness List due by 11/15/2005. Final Pretrial Conference set for 3/22/2006 01:30 PM before Judge William C Griesbach. Jury Trial set for 4/10/2006 08:30 AM before Judge William C Griesbach. Motions due by 12/15/2005. (cc: all counsel)(Griesbach, William)
218 LETTER from the Court to Nathan Gillis (sent via U.S. Mail) regarding his 217 request. (cc: All Counsel) (mec, )
219 LETTER from Nathan Gillis requesting a telephone conference. Certificate of Service attached. (mec, )
220 STIPULATION To Amend The Scheduling Order by Nathan Gillis (Westerberg, Christa)
221 AMENDED COMPLAINT Second against all defendants Plaintiff demands a jury of twelve persons. filed by Nathan Gillis.(Westerberg, Christa)
MARGIN ORDER approving 220 Stipulation filed by all parties signed by Judge William C Griesbach on August 1, 2005. Plaintiffs Expert Witness List due by 12/1/2005. Defendants Expert Witness List due by 2/1/2006. Motions due by 1/15/2006. (cc: all counsel)(Griesbach, William)
222 Defendants' ANSWER to 221 Amended Complaint Second by Jon E Litscher, Gerald A Berge, Bradley Hompe, John Doe, Matthew J Frank, Peter A Huibregtse, Richard Schneiter.(Dresel-Velasquez, Adrian)
223 CERTIFICATE OF SERVICE by Jon E Litscher, Gerald A Berge, Bradley Hompe, John Doe, Matthew J Frank, Peter A Huibregtse, Richard Schneiter (DreselVelasquez, Adrian)
224 MOTION for Summary Judgment by all defendants. (Sweeney, John)
225 DUPLICATE ENTRY - SEE DOCKET ENTRY 224 MOTION for Summary Judgment by Jon E Litscher, Gerald A Berge, Bradley Hompe, John Doe, Matthew J Frank, Peter A Huibregtse, Richard Schneiter. (Sweeney, John) Modified on 1/18/2006 (cav, ).
226 BRIEF in Support re 225 MOTION for Summary Judgment filed by Jon E Litscher, Gerald A Berge, Bradley Hompe, John Doe, Matthew J Frank, Peter A Huibregtse, Richard Schneiter. (Sweeney, John)
227 Proposed Findings of Fact by Jon E Litscher, Gerald A Berge, Bradley Hompe, Matthew J Frank, Peter A Huibregtse, Richard Schneiter (Sweeney, John)
228 AFFIDAVIT of Peter Huibregtse (Sweeney, John)
229 MOTION for Summary Judgment by all plaintiffs. (McGillivray, Pamela)
230 AFFIDAVIT of Jon Litscher (Sweeney, John)
231 BRIEF in Support re 229 MOTION for Summary Judgment filed by all plaintiffs. (McGillivray, Pamela)

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01/17/2006 01/17/2006 01/17/2006 01/17/2006 01/17/2006 01/17/2006
01/17/2006 01/17/2006 01/17/2006 01/17/2006 01/17/2006 01/17/2006
01/17/2006 01/17/2006 01/17/2006 01/17/2006 01/17/2006
01/18/2006 01/18/2006 02/16/2006 02/16/2006 02/16/2006

232 AFFIDAVIT of Richard Schneiter (Sweeney, John)
233 AFFIDAVIT of Gerald Berge (Sweeney, John)
234 AFFIDAVIT of Matthew J. Frank (Sweeney, John)
235 AFFIDAVIT of Gary Maier (unsigned) Original signature page to follow upon receipt (Attachments: # 1 Affidavit # 2 Exhibit)(Sweeney, John)
236 AFFIDAVIT of Rickie Govier (Sweeney, John)
237 AFFIDAVIT of Pamela R. McGillivray (Attachments: # 1 Exhibit Exhibit 1 to McGillivray Affidavit# 2 Exhibit Exhibit 2 to McGillivray Affidavit# 3 Exhibit Exhibits to Exhibit 2-McGillivray Aff# 4 Exhibit Exhibits 3-4 to McGillivray Affidavit# 5 Exhibit Exhibits 5-9 to McGillivray Affidavit)(McGillivray, Pamela)
238 Proposed Findings of Fact by Nathan Gillis (McGillivray, Pamela)
239 AFFIDAVIT of Cindy Sawinski (Attachments: # 1 Affidavit # 2 Exhibit)(Sweeney, John)
240 AFFIDAVIT of Ken Robbins (McGillivray, Pamela)
241 AFFIDAVIT of Steve Martin (Attachments: # 1 Exhibit 1)(McGillivray, Pamela)
242 AFFIDAVIT of Christine M. Apple (Attachments: # 1 Affidavit # 2 Exhibit) (Sweeney, John)
243 CERTIFICATE OF SERVICE - DOCKETED AS - NOTICE by Nathan Gillis of Service of Documents (McGillivray, Pamela) Modified on 1/18/2006 to reflect correct entry (cav, ).
244 AFFIDAVIT of Rickie Govier (Attachments: # 1 Affidavit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit)(Sweeney, John)
245 AFFIDAVIT of Brad Hompe (Attachments: # 1 Affidavit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit)(Sweeney, John)
246 AFFIDAVIT of Gary Maier (signed) (Attachments: # 1 Affidavit # 2 Exhibit) (Sweeney, John)
247 CERTIFICATE OF SERVICE by Jon E Litscher, Gerald A Berge, Bradley Hompe, John Doe, Matthew J Frank, Peter A Huibregtse, Richard Schneiter (Sweeney, John)
248 Signature Pages of defendants, Matthew J. Frank, Jon E. Litscher, Gerald Berge, Richard Schneiter, Peter Huibregtse, Brad Hompe, Cindy Sawinski, Rickie Govier, Christine M. Apple and Gary Maier AFFIDAVIT of Signature Pages (Sweeney, John)
249 Docket Annotation: E-mail to John Sweeney regarding signature on entry 228, duplicate entries for 224 and 225 and courtesy copies. (cav, )
250 Docket Annotation: E-mail to Pam McGillivray regarding courtesy copies. (cav, )
251 RESPONSE to Motion re 229 MOTION for Summary Judgment (Partial) filed by all defendants. (Dresel-Velasquez, Adrian)
252 AFFIDAVIT of Eugene E. Atherton With Expert Witness Report Attached (Attachments: # 1 # 2)(Dresel-Velasquez, Adrian)
253 RESPONSE TO 38 PLAINTIFF'S PROPOSED FINDINGS OF FACT filed by all

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02/16/2006 02/16/2006 02/16/2006 02/16/2006 02/16/2006 02/16/2006 02/16/2006 02/16/2006 02/24/2006 02/24/2006 03/01/2006
03/01/2006 03/03/2006
03/03/2006
03/03/2006 03/03/2006 03/03/2006 03/03/2006 03/03/2006
03/09/2006 03/09/2006

defendants. (Dresel-Velasquez, Adrian) Modified on 2/17/2006 to create docket relationship (cav, ).
254 AFFIDAVIT of ADRIAN DRESEL-VELASQUEZ (Attachments: # 1 Affidavit # 2 # 3 # 4 Affidavit)(Dresel-Velasquez, Adrian)
255 CERTIFICATE OF SERVICE by all defendants (Dresel-Velasquez, Adrian)
256 RESPONSE to Motion re 224 MOTION for Summary Judgment filed by Nathan Gillis. (McGillivray, Pamela)
257 RESPONSE to 227 Defendant's Proposed Findings of Fact by Nathan Gillis (McGillivray, Pamela) Modified on 2/17/2006 to reflect correct entry(cav, ).
258 AFFIDAVIT of Ken Robbins (McGillivray, Pamela)
259 AFFIDAVIT of Steve Martin (McGillivray, Pamela)
260 AFFIDAVIT of Pamela McGillivray (Attachments: # 1 Exhibit 1 & 2# 2 Exhibit 3 to 7)(McGillivray, Pamela)
261 CERTIFICATE OF SERVICE by Nathan Gillis (McGillivray, Pamela)
262 AFFIDAVIT of Pamela McGillivray (Attachments: # 1)(McGillivray, Pamela)
263 CERTIFICATE OF SERVICE by Nathan Gillis (McGillivray, Pamela)
264 ATTACHMENTS Exh 2 to 262 Aff of Pam McGillivray by Nathan Gillis re 256 Response to Motion (McGillivray, Pamela) Modified on 3/2/2006 to create docket entry relationship(cav, ).
265 CERTIFICATE OF SERVICE by Nathan Gillis Exh 2 to Aff of Pam McGillivray (McGillivray, Pamela)
266 REPLY To Plaintiff's Response to Defendants' Proposed Findings of Fact and Plaintiff's Supplemental Proposed Findings of Fact filed by all defendants. (DreselVelasquez, Adrian)
267 CERTIFICATE OF SERVICE by all defendants regarding Reply to Plaintiff's Response to Defendants' Proposed Findings of Fact and Plaintiff's Supplemental Proposed Findings of Fact (Dresel-Velasquez, Adrian)
268 REPLY BRIEF in Support re 229 MOTION for Summary Judgment filed by Nathan Gillis. (McGillivray, Pamela)
269 Proposed Findings of Fact by Nathan Gillis (McGillivray, Pamela)
270 CERTIFICATE OF SERVICE by Nathan Gillis (McGillivray, Pamela)
271 REPLY BRIEF in Support re 224 MOTION for Summary Judgment filed by all defendants. (Dresel-Velasquez, Adrian)
272 CERTIFICATE OF SERVICE by all defendants regarding Defendants' Reply to Plaintiff's Response to Defendants' Brief in Support of Summary Judgment (DreselVelasquez, Adrian)
273 NOTICE of Appearance by Pamela R McGillivray on behalf of Nathan Gillis. Attorney(s) appearing: Carlos A. Pabellon (McGillivray, Pamela)
274 CERTIFICATE OF SERVICE by Nathan Gillis of Notice of Appearance of Carlos A. Pabellon (McGillivray, Pamela)

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03/13/2006
03/14/2006
04/11/2006 04/11/2006 04/11/2006 04/11/2006 04/11/2006 04/24/2006 04/26/2006 07/25/2006 07/25/2006 12/08/2006
12/12/2006 01/05/2007
01/05/2007 01/25/2007

275 DECISION AND ORDER GRANTING 224 Motion for Summary Judgment, DENYING 229 Motion for Summary Judgment signed by Judge William C Griesbach on March 13, 2006. The case is dismissed. (cc: all counsel) (Griesbach, William) (Entered: 03/14/2006)
276 JUDGMENT entered by Deputy Clerk approved by Judge William C Griesbach on March 14, 2006. IT IS HEREBY ORDERED AND ADJUDGED that plaintiff's motion for summary judgment is DENIED, and the defendants' motion for summary judgment is GRANTED. The case is DISMISSED. JUDGMENT VACATED BY USCA ORDER - SEE ENTRY 283(cc: all counsel)(mec, ) Modified on 12/12/2006 (Veazie, Cheryl).
277 NOTICE OF APPEAL (facsimile) as to 276 Judgment by Nathan Gillis. Filing fee $ 455. (cc: all counsel) (mec, )
278 Docketing Statement (facsimilie) by Nathan Gillis re 277 Notice of Appeal. (cc: all counsel) (mec, )
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 277 Notice of Appeal. (mec, )
279 ORIGINAL DOCUMENT re 277 Notice of Appeal. (mec, ) (Entered: 04/13/2006)
280 ORIGINAL DOCUMENT re 278 Docketing Statement. (mec, ) (Entered: 04/13/2006)
281 NOTICE OF DOCKETING in re: USCA Case Number 06-2099 Seventh Circuit re: 277 Notice of Appeal filed by Nathan Gillis. (mec, ) (Entered: 04/25/2006)
Appeal Record Prepared consisting of 3 Volumes of Pleadings, 8 Loose Pleadings re 277 Notice of Appeal. (mec, )
282 Appeal Record Request received from 7th Cir. Re: USCA Case Number 06-2099. (mec, )
Certified Record on Appeal Transmitted to US Court of Appeals consisting of 3 Volumes of Pleadings, 8 Loose Pleadings (Docket Nos. #192, #209,#237, #245, #257, #260, #266, #269 re 277 Notice of Appeal. (cc: all counsel) (mec, )
283 USCA Mandate (certified copy) as to 277 Notice of Appeal filed by Nathan Gillis USCA Number 06-2099. The judgment of the District Court is vacated and this case is remanded for further proceedings with this opinion. (Attachments: # 1 Slip Opinion)(mec)
284 NOTICE of Hearing: (cc: all counsel)Telephone Scheduling Conference set for 1/5/2007 10:00 AM before Judge William C Griesbach. (cav)
285 Minute Entry for proceedings held before Judge William C Griesbach : Scheduling Conference held on 1/5/2007. Final Pretrial Conference set for 3/23/2007 01:00 PM before Judge William C Griesbach. Jury Trial set for five days starting on 4/16/2007 08:30 AM before Judge William C Griesbach. Motions in Limine to be filed on or before 3/9/2007; responses due 3/16/2007. (mec)
286 SCHEDULING ORDER: signed by Judge William C Griesbach on January 5, 2007. (cc: all counsel)(Griesbach, William)
287 LETTER from Pamela R. McGillivray. (Attachments: # 1 Text of Proposed Order with Stipulation)(McGillivray, Pamela)

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288 Docket Annotation: E-mail regarding 287 stip and order. Proposed order should be sent to proposed order mailbox. (cav)
289 ORDER DISMISSING CASE signed by Judge William C. Griesbach on 01-312007. Based on the stipulation of counsel, this suit is dismissed in its entirety and withprejudice. No costs or fees awarded to either party. (cc: all counsel)(Griesbach, William)
Appeal Record Returned consisting of 3 Volumes of Pleadings, 8 Loose Pleadings. re 277 Notice of Appeal. (mec)

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