UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

KRISTINE FLYNN, LENDA FLOURNOY, VERNESSIA PARKER and DEBBIE ANN RAMOS, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
JIM DOYLE, Governor of Wisconsin; MATTHEW FRANK, Secretary, Wisconsin DepartInent of Corrections (WDOC); JAMES GREER, Director, WDOC Bureau of Health Services (BHS); DAVID BURNETT, M.D., Medical Director, BHS; K.EVIN KALLAS, M.D., Mental Health Director, BHS; DONALD HANDS, Ph.D., Psychology Director, BHS; BARBARA RIPANI, Dental Director, BHS; ANA BOATWRIGHT, Warden, Taycheedah Correctional Institution (TCI); HOLLY MEIER, R.N., Health Services Unit Manager, TCI; STEVEN MERESS, M.D., Supervising Physician, TCI,
Defendants.

Case No.

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

PRELIMINARY STATEMENT 1. This is a class action brought by Plaintiffs on behalf of all women confined at Taycheedah Correctional Institution (TCI) in Fond du Lac, Wisconsin. The largest WOlnen's prison in Wisconsin, TCI currently houses over 700 prisoners in maximum and medium security

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settings, including approximately 100 women who are being evaluated for placement within the Wisconsin prison system. Plaintiffs allege that the Inedical, mental health and dental care provided to prisoners at TCl is grossly deficient, causing them great physical suffering and mental anguish, and constituting cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Plaintiffs also allege that Defendants have knowingly and recklessly failed to provide female prisoners at TCl with access to mental health services comparable to the mental health services available to male prisoners through the Wisconsin Resource Center (WRC), in violation of Plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment.
2. Plaintiffs seek relief from Defendants' knowing and deliberately indifferent failure to provide necessary care for serious medical, mental health and dental needs. Defendants' actions deny basic human needs, inflict unnecessary pain and suffering, and put Plaintiffs at substantial and ongoing risk of physical injury, illness and premature death.
3. Plaintiffs bring this action pursuant to 42 U.S.C. § 1983; the Eighth and Fourteenth An1endments to the United States Constitution; Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12132; and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Plaintiffs seek declaratory and injunctive relief to remedy the gross deprivation of adequate health care at TCL
JURISDICTION 4. This Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. § 1331 because this action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343(a)(3) because this action seeks to redress the deprivation, under
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color of state law, of Plaintiffs' civil rights. 5. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C.
§§ 2201 and 2202, and Rule 57 of the Federal Rules of Civil Procedure. 6. This Court has jurisdiction to grant injunctive relief pursuant to Rule 65 of the
Federal Rules of Civil Procedure. VENUE
7. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) because some Defendants reside in this district and because a substantial part of the events and omissions giving rise to Plaintiffs' claims occurred in this district.
PARTIES I. Plaintiffs
8. All Plaintiffs are women and are currently incarcerated at TCl. Plaintiffs were convicted in Wisconsin courts and sentenced under Chapter 973 of the Wisconsin Statutes.
9. Plaintiffs Flynn, Flournoy and Parker are qualified individuals with disabilities, as defined in the ADA and the Rehabilitation Act.
10. Plaintiff Kristine Flynn is 48 years old and has been at TCl since 2000. Flynn suffers from bipolar mood disorder and social anxiety syndrome. The Wisconsin Department of Corrections (WDOC) classifies Flynn as seriously Inentally ill (SMl).
11. During the course of approximately one year at TCl, Flynn was prescribed eight different psychotropic medications, taking many of them simultaneously, including Valium, lithium, Seroquel, trazadone, Haldol, Klonopin, Paxil and Depakote. Flynn had only one blood draw to test her liver function during this time.
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12. In June 2002, TCI psychiatric staff ordered her abruptly taken off all psychotropic medications. Six days later she attempted suicide and was taken to St. Agnes Hospital in Fond du Lac with a broken knee. At St. Agnes, Flynn took someone hostage and assaulted a security guard. She was severely beaten in the incident and suffered a skull fracture. Criminal charges were filed against Flynn, and four years were ultimately added to her sentence. The court-appointed psychiatrist at her trial testified that the interruption in her medications triggered her self-destructive and aggressive behavior. Flynn was not re-medicated for over a month after the St. Agnes incident.
13. After that incident, Flynn was housed in segregation at TCI for three years, until May 2005. In September 2003, she attempted suicide again. At the time, she was not receiving all her medications because the corrections officers responsible for delivering medications in segregation did not bring them to her.
14. When Flynn was at her most depressed and suicidal while at TCI, she was not eating or sleeping and was unable to take care of her basic needs. In five years at TCI, Flynn has received no group or individual psychotherapy. In 2005, she requested placement in the Monarch Special Management Unit for prisoners with acute mental health needs, but was turned down. Flynn requested and was denied battered WOlnan counseling. She requested and was denied childhood abuse counseling.
15. In June 2005, Flynn noticed a small lump in her upper right thigh. Flynn has a history of uterine cancer, a fact that was in her medical file. For the next eight or nine months, Flynn repeatedly filed sick-call requests and told medical staff at TCI that the lump in her thigh was growing and needed to be checked. She got no response to her requests for many months.
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Eventually, Dr. Steven Meress, the Supervising Physician at Tel, gave her thigh a cursory examination and pronounced the lump "just fatty tissue."
16. In February 2006, a nurse practitioner at Tel decided to send Flynn out to a specialist to have the IUlnp biopsied or removed. On March 6, doctors at St. Agnes Hospital in Fond du Lac removed a golf-ball-sized tumor from Flynn's thigh. The tumor turned out to be benign, but because of its advanced size, doctors were forced to cut into nerves and tendons and to remove a significant aInount of muscle tissue in excising it. If the tumor had been identified and removed sooner, when it was smaller, the procedure would not have been so invasive.
17. Since the surgery, Flynn has little feeling in her right leg and has difficulty walking. At night she experiences muscle spasms and shooting pain that keeps her awake. Doctors at St. Agnes have prescribed physical therapy and ongoing pain medication, none of which she has received at Tel. Medical staff have told Flynn that she will probably have problems with her right leg for the rest of her life.
18. Flynn has been denied necessary individualized mental health care and inpatient treatment, her medications have been frequently interrupted and improperly managed, and she has not received timely and essential medical referrals and post-surgical care, to the detriment of her physical and mental health.
19. Plaintiff Lenda Flournoy is 54 years old and has been at Tel since 2000. Before being incarcerated, Flournoy underwent two hip surgeries, ovarian cyst removal, bi-lateral foot surgery and two sinus surgeries. She suffers from scoliosis, chronic rhinitis and degenerative joint disease. A Vietnam veteran, Flournoy was receiving complete medical care for all these conditions from the VA Hospital in Milwaukee before entering prison. Since coming to Tel she
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has experienced numerous medical and mental health problems stemming from inadequate health care. She suffers from frequent sciatic pain and has difficulty walking, but this disability has never been properly treated or accommodated during her time at Tel.
20. Flournoy underwent painful reconstructive foot surgery in May 2005 to remove a metal wire left protruding from her right big toe. The surgeon in Madison prescribed Percocet for Flournoy's post-surgical pain, but Tel medical staff gave her no pain medication for eight days after the surgery. The surgeon instructed Tel medical staff to keep Flournoy's foot tightly wrapped and to check regularly for proper toe alignment. Flournoy did not receive the prescribed post-surgical care at Tel, and the bones in her foot healed improperly. In February 2006, she underwent yet another foot surgery to correct the same problem. Once again, Tel medical staff are not providing the after-care prescribed by the doctors in Madison. Flournoy's foot is not taped or checked regularly; she has been given only an air-cast to inflate herself, and has received no medication to manage the persistent pain in her foot. She fears that her bones are healing crookedly again, which will lead to further complications and more surgery.
21. Because of her foot problems, Flournoy cannot work and needs crutches to walle She has difficulty performing basic tasks, like showering or cleaning her cell.
22. Until 2003, Flournoy was taking multiple psychotropic medications for anxiety, depression and schizophrenia. Dr. Julia Reschke at Tel abruptly took Flournoy off all psychotropic medications in 2003. Since then Flournoy rarely sees mental health staff. On one occasion, she filled out a request to see a crisis intervention worker and waited one month to see someone. She has felt driven to harm herself on numerous occasions because that seems to be the only way to actually see a psychiatrist or psychologist.
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23. Flournoy's last mammogram was three years ago - only her second breast screening at TCl in over five years, despite her repeated requests for the procedure. Before being incarcerated, her mammograms had revealed some abnormal breast tissue, and she was told to be vigilant about getting her breasts screened every nine to twelve months.
24. Flournoy has been denied necessary post-surgical, inpatient and chronic care, her medications have been frequently interrupted and improperly Inanaged, she has been forced to wait many months for referrals to see outside physicians, and she has not received essential women's health care services, to the detriment of her physical and mental health.
25. Plaintiff Vernessia Parker is 37 years old and has been incarcerated at TCl since 1994, except for one year when she was transferred and housed out-of-state. Parker suffers from a complex of mental health issues, including bipolar mood disorder with psychotic features and major depression. WDOC classifies Parker as SMl.
26. Parker has been housed in the Monarch Unit at TCI for almost four years. In 200 l, she assaulted a correctional officer and was forced into civil commitment proceedings. Parker was committed to 24 months of intensive mental health treatment and thought she would be sent to the Winnebago Mental Health Institute. Parker never left TCl. Instead she was placed in Monarch, where she has been ever since. In all these years, Parker has had only a handful of one-on-one sessions with psychologists, and then only when she is in crisis. Parker has been severely depressed and suicidal on numerous occasions at TCl. At those times she shuts down, cannot communicate, and is unable to care for herself. In 2004, Parker told Dr. Reschke that she was having suicidal thoughts. Reschke told her to see a crisis intervention worker. Parker
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requested a visit according to Tel procedures, but she did not see anyone from crisis intervention for over two weeks.
27. Parker has been placed in segregation for extended periods on several occasions for aggressive behavior exacerbated by her mental health problems. While in segregation, her medication was disrupted and she did not receive the monthly blood pressure checks that had been ordered for her.
28. Parker was diagnosed with systemic lupus erythematosus in early 1999 while at TeL She was not told of her diagnosis, and soon afterward was transferred to Oklahoma. She learned that she had lupus only when she returned to Tel in early 2000. Over the next year she received no treatment for her disease despite numerous medical requests, and her condition worsened; she experienced numbness and fatigue, developed skin lesions, and her hair fell out. Dr. Meress finally saw Parker in December 2000 and said she should be sent off-site to see a rheumatologist. The off-site consultation did not happen until the following May. The rheumatologist at St. Agnes Hospital immediately put her on plaquenil and told her to come back in six months. Parker was not sent off-site again for about a year. In the meantime, her medication was disnlpted several times, and at one point was discontinued by Dr. Meress.
29. Parker continues to experience flare-ups of her lupus symptoms and needs closer monitoring by a rheumatologist. Because of her medical condition, she is unable to work and has difficulty walking and showering.
300 In November 2005, Parker had her first mammogram at TeL Medical staff told Parker that she had two moderate-sized lumps, one in each breast. Parker was supposed to be sent for an immediate biopsy and an ultrasound. The off-site referral did not happen for several
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months, during which time Parker grew stressed and anxious about the possibility of cancer. She was finally sent to St. Agnes Hospital for an ultrasound in March 2006. By that time, however, Tel had lost her original mammogram film, so a new x-ray was taken at the hospital. The new mammogram showed only one very small lump. When Parker returned to Tel, medical staff reported that her x-ray had been mixed up, and the film from her first mammogram, now missing, was not really hers. Tel medical staff could not determine whose mammogram film had actually been lost, or whether that prisoner ever learned she had lumps in her breasts or received follow-up care.
31. Parker has been denied necessary individualized mental health care and inpatient treatment, her medications have been frequently interrupted and improperly managed, and she has not received adequate follow-up care and timely off-site referrals for her lupus and other medical conditions, to the detriment of her physical and Inental health.
32. Plaintiff Debbie Ramos is 43 years old and has been at Tel since 1992. Ramos was diagnosed with endometriosis in 1980. She shared this infonnation on her medical intake fonn when she entered prison and signed a release so that medical staff could obtain her records. Nonetheless, she did not see a gynecologist at Tel for seven years, until 1999. In the meantime, her vaginal bleeding grew worse every year. When she complained to Tel medical staff, she was told that this was just a consequence of getting older. In April 2000, Ramos was forced to have a hysterectomy. After the procedure, she received essentially no follow-up care and has never seen a gynecologist again. Ramos took estrogen pills for about a year and a half after her surgery, but then stopped. She has never been able to speak with a gynecologist about the benefits of estrogen therapy and its impact on her long-term health.
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33. Ramos was diagnosed with asthma in 2002. She was told she needed albuterol, but she was not given any medication or an inhaler for almost two years.
34. TCl medical staff have improperly charged Ramos co-payment fees for follow-up medical care related to hemorrhoids and deep muscle bruising.
35. Until 2003, Ramos was on numerous psychotropic medications, including Klonopin, trazadone and Seroquel. In July 2003, while in segregation, she was abruptly taken off these medications. Ramos recalls being told by medical staff: "DOC doesn't want people on these drugs anymore." Psychiatric staff never returned to see how she was doing after the medications were discontinued.
36. Ramos has been denied essential gynecological care and mental health care, and her medications have been frequently interrupted or improperly n1anaged, to the detriment of her physical and mental health. II. Defendants
37. Defendant Jim Doyle is Governor of the State of Wisconsin. As such, he has the ultimate state authority over the care and treatment of the plaintiff class. Doyle is obligated under state law to supervise the official conduct of all executive and ministerial officers and to appoint and remove the subordinate defendants named herein. Doyle has control over the monies allocated to WDOC by virtue of his authority to present to the legislature WDOC's annual budget and to veto or sign legislation appropriating funds for prison medical care.
38. Defendant Matthew Frank is Secretary of the WDOC. As such, he is the legal custodian of all prisoners sentenced by the courts of Wisconsin for felony offenses, and is responsible for the safe, secure and humane housing of those prisoners. Frank is responsible for
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the administration and operation of WDOC, including the provision of medical, dental and mental health care to Wisconsin prisoners.
39. Defendant James Greer is the Director of the WDOC Bureau of Health Services (BHS). As such, he is responsible for the administration and provision of medical, dental and mental health care services to individuals in WDOC custody, and for developing and ensuring compliance with policies and procedures related to correctional health services in Wisconsin.
40. Defendant David Burnett, M.D., is the Medical Director at BHS. As such, he is responsible for the administration and provision of medical services to individuals in WDOC custody, and for the quality and adequacy of those services. Burnett supervises and has direct authority over all medical doctors and nurse practitioners who work at TCI.
41. Defendant Kevin Kallas, M.D., is the Mental Health Director at BHS. As such, he is responsible for the administration and provision of mental health care services to individuals in WDOC custody, and for the quality and adequacy of those services. Kallas supervises and has direct authority over all psychiatrists who work at TCI, and provides technical assistance to the TCI warden in supervising the prison's psychological services staff.
42. Defendant Donald Hands, Ph.D., is the Psychology Director at BHS. As such, he is responsible for the administration and provision of mental health care services to individuals in WDOC custody, and for the quality and adequacy of those services. Hands assists in the supervision of all psychologists who work at TCI, and provides technical assistance to the TCI warden in supervising the prison's psychological services staff.
43. Defendant Barbara Ripani is the Dental Director at BHS. As such, she is responsible for the administration and provision of dental services to individuals in WDOC
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custody, and for the quality and adequacy of those services. Ripani supervises and has direct authority over all dentists who work at TCl.
44. Defendant Ana Boatwright is the Warden at TCl. As such, she is the legal custodian of all prisoners housed at TCI, and is responsible for the safe, secure and humane housing of those prisoners. In addition to the daily administration and functioning of TCI, Defendant Boatwright also oversees the single operational structure of the WDOC female correctional systelll, reorganized by Secretary Frank in September 2005. Boatwright supervises and has direct authority over the Manager of the TCI Health Services Unit (HSU) and all TCI psychological services staff, including psychologists, crisis intervention workers, social workers and professional counselors.
45. Defendant Holly Meier, R.N., is the HSU Manager at TCl. As such, she is responsible for the daily administration and functioning of the HSU. Meier supervises and has direct authority over all nursing professionals, dental assistants and dental hygienists who work at TCL
46. Defendant Steven Meress, M.D., is the Supervising Physician at TCI and the only medical doctor there. As such, he is responsible for the provision of medical services to individuals incarcerated at Tel, and for the quality and adequacy of those services.
47. All Defendants are sued in their official capacities. At all relevant times, all Defendants were acting under color of state law; pursuant to their authority as officials, agents, contractors or employees of the State of Wisconsin; and within the scope of their employment as representatives of public entities, as defined in 42 U.S.C. § 12131(1).
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FACTS GIVING RISE TO THE CLAIMS FOR RELIEF

I. Wisconsin's Troubled History in Correctional Health Care

A. The NCCHC Report

48. Medical care in the Wisconsin prison system has been in a state of crisis for years.

Numerous reports on correctional health care in Wisconsin since 2000 describe a system plagued

by pervasive problems. In February 2000, a 29-year-old asthmatic prisoner named Michelle Greer

collapsed and died gasping for air on the dining room floor at TCl, after her numerous requests for

medical attention had gone unheeded. Galvanized by this unnecessary death, in 2000-2001 the

Milwaukee Journal Sentinel published a series of articles documenting problems with health

services in Wisconsin prisons.

49. Spurred in part by these articles, the United States Congress authorized the

National Institute of Corrections (NIC) to conduct a comprehensive study ofWDOC health

services. The National Commission on Correctional Health Care (NCCHC) was contracted to

conduct the study and prepare a report for submission to Congress. The NCCHC audit team made

site visits to 14 of the 15 then-existing WDOC adult facilities, including TCI, in the spring of

2002, and a draft report was completed that December ("NCCHC Report"). The NCCHC Report

identified numerous problelTIs with correctional health services, including:

•

the absence of any unified organization and leadership structure for medical or

mental health staff, either at the department or prison level

•

severe understaffing in health services throughout the WDOC system

•

reliance on untrained corrections officers to distribute virtually all controlled

medications

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•

extremely poor mental health services, marked by overuse of psychotropic

medications and a lack of coordination between psychiatric and medical staff

•

a highly inefficient sick-call process and reluctance to refer prisoners for off-site

consul tati on

•

the near total absence of quality improvement activities

•

a substantial backlog of requests for routine and emergency dental care

50. On information and belief, defendants Doyle, Frank, Greer, Burnett, Kallas, Hands,

Ripani, Boatwright, Meier and Meress were made aware of the NCCHC Report and its findings.

B. The LAB Audit

51. The NCCHC Report should have come as no surprise to Defendants. In May 2001,

over a year before the report was completed, the Wisconsin Legislative Audit Bureau ("LAB")

issued an extensive audit of Wisconsin prison health care, also prompted by Greer's untimely

death. The 2001 LAB Audit reached many of the same conclusions as the NCCHC Report. For

example, the audit report cited the poor organizational and leadership structure of WDOC health

services staff, chronic understaffing, and the delivery of controlled medications by corrections

officers as particular areas of concern. On information and belief, defendants Doyle, Frank,

Greer, Burnett, Kallas, Hands, Ripani, Boatwright, Meier and Meress were Inade aware of the

LAB Audit and its findings.

52. In addition, the 2001 LAB Audit report included WDOC's own self-evaluation of

its compliance with NCCHC essential standards for correctional health care, begun in early 2000.

BHS concluded that it met only 14 of the NCCHC's 37 essential standards related to the health,

safety, and welfare of prisoners. Among other comments, BHS noted that it was questionable

whether segregated prisoners had adequate access to health care in Wisconsin prisons.

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53. The LAB Audit singled out health services at TCI as particularly deficient in a number of respects, even as compared to other WDOC adult institutions. The audit summary, for example, noted that there were 132 mentally ill prisoners for every psychological services staff position at TCl; whereas at Jackson Correctional Institution for men in Black River Falls, Wisconsin, the ratio was only 14 nlentally ill prisoners per mental health staff position. The LAB also reported that during a site visit to TCl in October 2000, its auditors found over 100 sick-call request forms dated more than three weeks prior to their visit, while no other WDOC health services unit had a similar backlog of pending requests.
C. Other Evidence ofLong-Standing Problems at TCI 54. Even before the 2002 NCCHC Report and the 2001 LAB Audit, the deficiencies identified in the wake of Greer's death had been long-standing problems at TCI and were well known to defendants Doyle, Frank, Greer, Burnett, Kallas, Hands, Ripani, Boatwright, Meier and Meress. Several months after Greer's death in February 2000, the labor union representing nurses and other health care professionals who work in WDOC facilities called a statewide protest demanding better health care for Wisconsin prisoners. Union officials declared health care at TCl to be in a "state of crisis." 55. The WDOC Inmate Complaint Tracking System (lCTS) identifies and tracks prisoner grievances by various subject codes. An ICTS report compiling prisoner complaint data from 1999 through the first half of 2004 shows that complaints about medical issues constituted approximately 29 percent of all grievances filed by TCl prisoners during this period - by far the largest volume of prisoner complaints filed at TCl on any subject. By comparison, during the
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same period, only 14 percent of all complaints filed by prisoners at all WDOC institutions were related to medical care.
56. Defendants Doyle, Frank, Greer, Burnett, Kallas, Hands, Ripani, Boatwright, Meier and Meress have been aware for many years that shoddy medical care at TCI generates huge numbers of well-founded prisoner complaints. For example, a 2001 consultant's report commissioned by BHS found that among WDOC institutions TCI had the highest rate of health care-related prisoner complaints in 1999 and 2000 that were ultimately affirmed by the grievance process. According to the same report, access to pharmaceuticals was the single largest prisoner concern in health-care-related complaints, and "[t]he medication process at Taycheedah Correctional Institution is the source of the majority of these complaints."
D. Defendants' Failure to Act 57. Despite mounting evidence over many years that the Wisconsin prison health system is understaffed, poorly organized and fails to provide essential medical, mental health and dental care to Wisconsin prisoners, and that TCI in particular is in a critical state, defendants Doyle, Frank, Greer, Burnett, Kallas, Hands, Ripani, Boatwright, Meier and Meress have adopted few of the NCCHC, LAB or other recommendations for addressing these problems. The organizational and reporting stnlcture of WDOC health services staff remains disjointed, and Inany essential health care positions have not been added. In 2005, the staffing ratios for mental health services staff fell significantly short of national recommendations for prison settings. Specifically, the WDOC psychiatry staff/prisoner ratio was 1:396, compared to the American Psychiatric Association recommendation of 1:150; and the WDOC psychology staff/prisoner ratio
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was 1:244, compared to the recomlnendation of 1: 150-160, by the American Association of Correctional Psychologists.
58. In August 2004 the LAB noted, in responding to a legislative request for information about mentally ill prisoners in segregation, that WDOC had not reallocated mental health staff to ensure that prisoners at different institutions receive comparable levels of care, as recommended in the 2001 LAB Audit. Almost five years after the audit, WDOC is still not in compliance with key NCCHC standards related to mental health care in segregation.
59. Defendants Doyle, Frank, Greer, Burnett, Kallas, Hands, Ripani, Boatwright, Meier and Meress know that they are exposing prisoners to unreasonable risks of death and serious injury by their failure to correct the deficiencies in the health care system at TCl.
60. Even though defendants Doyle, Frank, Greer, Burnett, Kallas, Hands, Ripani, Boatwright, Meier and Meress know that TCI lacks a proper system for medical, mental health and dental care, they have failed to take reasonable and effective steps to establish an appropriate system.
61. Defendants' failure to provide an appropriate system of medical, mental health and dental care at TCI results in needless pain and suffering, the overall deterioration of prisoners , health, and avoidable fatalities. II. The Crisis in Medical Care at TCI
A. High Rates of Chronic Disease 62. Defendants' continued failure to reform correctional health care in Wisconsin has had serious consequences for the women at TCl. Correctional populations, in general, tend to have high rates of chronic disease, but even among prison popUlations TCI is exceptional. TCI
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consistently has the highest ratio of prisoners in a WDOC institution with at least one chronic illness. In June 2000, 248 prisoners at TCI, or about 40 percent, had been diagnosed with at least one chronic illness, such as diabetes, hypertension, cardiac disease, seizure disorder or a respiratory condition. In June 2003, this number had risen to 327 prisoners, or about 49 percent.
B. Dysfunctional Organization ofHealth Services 63. A central criticism of the 2001 LAB Audit and the 2002 NCCHC Report was that WDOC health services staff was poorly organized and poorly led, and lacked coherent and sensible lines of authority. Little has changed since then. Since 1998, the WDOC wardens have been responsible for the administration of the health services units in their prisons. The HSU at TCI is typical: it is headed by Holly Meier, a registered nurse, who reports to Warden Ana Boatwright. Nursing staff, dental assistants and dental hygienists report to Meier. Psychological services staff, including crisis intervention workers, report to a supervising psychologist at TCI, who reports to the warden. In contrast, medical doctors and nurse practitioners, psychiatrists, and dentists report to medical, mental health and dental directors in BHS, who are responsible for WDOC's system-wide provision of health care. 64. The 2002 NCCHC Report criticized these diverging lines of authority, and the fact that wardens with no medical background were making personnel decisions affecting professional medical and mental health care staff. The LAB noted in 2001 that because of the organization of health services, WDOC' s "management and oversight efforts have not been adequate to monitor basic information about health care delivery, making it difficult to manage resources in an enviromnent of increasing costs." The NCCHC Report strongly recommended that medical, mental health and dental services at the institution level be reorganized into a unified health
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services unit headed by a professional health care administrator who reports to BHS, and that all health care staff report along program lines to directors in BHS. An external consultant made the same recommendation in 1995. Like so many others, these recommendations have not been implemented by defendants Doyle, Frank, Greer, Burnett, l(allas, Hands, Ripani, Boatwright, Meier and Meress.
65. As a result of the poor organizational structure of health services at TCI, medical treatment is not appropriately coordinated with mental health evaluation and treatment, leading to poor medication management and the failure to diagnose and treat urgent physical problems.
C. Severe Shortage ofHealth Care Staff 66. HSU staffing levels at TCI are wholly inadequate to provide primary health care for over 700 women, while also providing 24-hour on-site medical care. Defendant Meress, the only licensed physician on staff at TCI, works only one partial day each week. Since December 2004, medical staff at TCI also perform medical admissions and evaluations for all women prisoners entering the Wisconsin prison system. The extreme shortage of medical personnel results in a lower quality of care and a huge backlog of requests for medical services. The heavy workload forces nurses to handle diagnostic and other tasks that should be performed by doctors. Nurses at TCl are overworked and set up to fail, and the attrition rate is high. 67. In 2002, the NCCHC Report identified severe understaffing as a major problem with correctional health care in Wisconsin. Union officials representing WDOC's nurses and health care professionals have been complaining vocally for years about understaffing and the burdens it places on health care workers. Despite these criticisms, medical staffing levels at TCI have remained virtually unchanged for several years, even as the institutional population and
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program responsibilities have grown significantly. The FY 2006-07 budget for correctional health care in Wisconsin does not include funding for any additional medical staff at TCl.
68. On information and belief, the number of medical staff in relation to prisoners with chronic illnesses and serious medical needs is lower at TCl than the same ratio at other WDOC adult institutions. WDOC has no formal guidelines to ensure that prisoners at all institutions receive comparable levels of medical care through equivalent staffing.
69. As a result of severe understaffing in health care services at TCl, prisoners receive substantially delayed evaluation and treatment for serious medical conditions, or are denied important follow-up care. Necessary examinations and tests are frequently delayed and follow-up on abnormal test results is unreliable.
D. Delivery of Controlled Medications by Corrections Staff 70. Against the recommendations in the 2002 NCCHC Report, the 2001 LAB Audit, and other industry standards, the medication process at TCl continues to rely on corrections staff rather than professional health staff to deliver controlled medications. As the LAB noted again in an August 2004 report, this practice is problematic for several reasons: (1) corrections staffhave minimal medical training and are less able to identify dangerous side effects; (2) records of medication delivery are invariably less complete and accurate when maintained by corrections staff; and (3) under the terms of their collective bargaining agreement, corrections staff may not be disciplined for unintentional errors when delivering medications. 71. And there are many errors. A medication error report log prepared by WDOC's central pharmacy services in February 2005 shows over fifty medication errors by pharmacy, nursing and corrections staff in administering controlled medications to prisoners at TCl in the
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year 2004 alone and these are only the errors that made it into the log. A 2001 medication incident study commissioned by BHS notes that corrections staff - who deliver most of the controlled medications at TCI - are far less likely to identify and report medication errors than nursing staff.
72. Although training for corrections staffhas improved since 2004, medication errors and interruptions are still disturbingly common. Prisoners must rely on corrections officers to request a refill when their prescriptions run out - and many times the guards neglect to file the request, causing a delay and forcing the prisoner to file a separate request with HSU. Women in segregation are even more dependent on corrections staff because they must wait for their medications to be brought to their cells. On information and belief, corrections officers often fail to deliver medications on schedule.
73. WDOC figures indicate that the number of prisoners in Wisconsin prisons has grown more than twice as fast as the number of corrections officers in the last three fiscal years. During this time the ratio of prisoners to officers rose by 23 percent, and the amount of overtime paid to officers rose by 78 percent. Corrections officers working double shifts and supervising greater and greater numbers of prisoners are increasingly likely to make mistakes in medication distribution or to shirk such responsibilities, which fall outside the scope of their profession.
74. Unlike corrections officers in Minnesota, Michigan, Iowa and Illinois, officers in Wisconsin are not required to have a high school diploma or the equivalent. Starting wages for corrections officers in Wisconsin are among the lowest in these states, and are typically lower than wages at county jails in Wisconsin. With low hiring standards, low pay and increasing demands for overtime, turnover in corrections staff remains high throughout WDOC.
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75. As a result of Defendants , reliance on corrections staff to deliver controlled medications, prisoners at TCl endure frequent medication errors and interruptions and are inadequately protected in the event of dangerous side effects. The common disruption of prescription medications poses an unnecessary and unreasonable risk to prisoners' health.
E. Extremely High Co-payment Fees 76. Since 2002, prisoners at TCl pay a $7.50 co-payment fee for each non-emergency request for medical or dental services. When instituted in 1995, the co-payment fee was $2.50. The 2001 LAB Audit suggested that the fee could be raised to $3.00, to bring it into line with copayment fees in several comparison states, but noted that increasing the fee even that modest amount "could reduce access to health care for some inmates." The LAB also noted that the NCCHC generally opposes co-payment systems that restrict prisoners' access to care. Notwithstanding this advice, the co-payment amount was tripled in 2002, from $2.50 to $7.50. 77. The $7.50 fee that Wisconsin prisoners pay for inmate-initiated medical visits is among the highest co-payment fees in the nation and far outstrips comparison states. For example: Illinois charges $2.00; Michigan charges $5.00; Minnesota charges $3.00. Most prisoners are indigent and have minimal or no earnings. Although there is an indigency exception to the co-payment rule, the high cost nonetheless actively discourages prisoners at TCl from seeking medical care when they need it particularly as they are likely to be assessed a copayment fee for virtually any interaction with HSU, including follow-up care that should not trigger a fee. 78. As a result of the inordinately high co-payment fee at TCl, prisoners are denied reasonable access to routine and follow-up health care.
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F. Deficient Sick-Call Process and Medical Follow-up 79. Seriously ill prisoners who are undeterred by the co-payment fees and seek medical attention are still often denied access to care. Short of a life-threatening emergency, prisoners access medical care by submitting a "blue-slip" to HSU that describes their medical problem. Nurses triage the slips and refer prisoners to see a nurse, a nurse practitioner or a medical doctor, depending on the issue. Even prisoners with complex medical issues are often not seen by a clinician qualified to evaluate them for many months. If they do manage to see a qualified clinician, there is no proper medical follow-up to ensure that they received appropriate treatment. 80. The case of TaInmy Young exemplifies the potentially serious consequences of this kind of delay in treatment and inadequate follow-up. Young was incarcerated at TCI from April 2001 to October 2005. In November 2003, Young developed several painful sores on her head that began to bleed and leak pus. Young repeatedly sought medical attention for her head over a period of eighteen months, as the sores grew progressively worse. Her scalp became so tender that lying down was painful, and she would wake most mornings with her hair encrusted with blood and pus. Young was seen by several nurses at TCI, each of whom offered a different explanation for her condition - including dry scalp, keloids, seborrhea, and some kind of infection - though no culture was done. The nurses gave Young various shampoos and oils, which did nothing to improve her scalp and sOlnetimes made things worse. 81. Young made nUlnerous requests to see a doctor over a period of many months. HSU scheduled and then cancelled an appointment with Dr. Meress in February 2004; it was not rescheduled for six months. When Young finally saw Dr. Meress in August 2004, he gave her a 30-day course of antibiotics but still did not culture her open sores. Her head did not improve and
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continued to bleed and leak pus. HSU scheduled no follow-up and she did not see the doctor again for six months. In the Ineantime, she was continually in pain and became convinced that she was dying. Several officers in her building saw her bleeding scalp and called HSU on her behalf. They were told that she had already been seen by Dr. Meress.
82. On March 9, 2005, Young became lightheaded from pain on her scalp and passed out in a classroom at TeL She saw Dr. Meress two weeks later, but he ejected her from his office. In August 2005, Young still had pus-filled sores on her head and was receiving no treatment.
83. As far as she knows, in almost two years of seeking medical attention, Young was never specifically tested or treated for MRSA - methicillin-resistant staphylococcus aureus. MRSA is a highly contagious bacteria known to spread rapidly in institutional settings. MRSA causes skin infections and boils and can lead to serious complications such as deep abscesses, pneumonia, endocarditis (infection of the heart), meningitis, bone infection, blood infection and death. Based on her symptoms, the need to test Young and obtain an accurate diagnosis, either confirming or ruling out MRSA, was obvious. Failure to do so left her at grave risk and highly contagious for almost two years.
84. In September 2005, just before she was transferred out of Tel, Young was finally tested and told she had MRSA. She was given three consecutive 7-day courses of the same antibiotic drug, though each week her symptoms did not ilnprove. MRSA is resistant to some types of antibiotics. HSU staff did not reculture Young and never successfully treated her infection before she left TeL
85. The incidence of MRSA infection at Tel has soared in the past several years, and scores of women are currently infected.
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G. Excessive Delay in Referring Prisoners for Outside Medical Consultation 86. In her efforts to obtain medical treatment for her scalp, Tammy Young also repeatedly asked Dr. Meress and other health care staff to be sent for an off-site medical consultation, even writing several times to HSU Manager Holly Meier with that request. Meress and Meier did not give Young the referral. 87. Tel health care staff rarely refer prisoners for off-site medical consultation, even when their medical conditions are serious and life-threatening. Defendants' failure to properly diagnose and treat critically ill prisoners through prompt referral to outside specialists has resulted in pain, suffering and increased medical complications for many Tel prisoners, and premature death for some. 88. Sandra Pankow is 56 years old and has been incarcerated at Tel for almost 20 years. Pankow suffers from severe heart problems, hypertension and spondylitis, a chronic form of inflammatory arthritis. Both her parents have heart problems, and her father underwent a quadruple bypass. For 12 years at Tel, Pankow took medication for hypertension, but her blood pressure reading remained around 180/1 00 - at stroke risk level. She often experienced numbness in her hands and feet and shortness of breath. Medical staff at Tel knew of Pankow's family history and her symptoms, but they never sent her to a cardiologist. A walking time bomb, Pankow suffered a heart attack in November 2001 and almost died. She received cardiac stents in a community hospital, and was retun1ed to Tel. 89. By January 2004, Pankow began experiencing the same symptoms as before and informed HSU staff. Over the course of several months, Pankow had several "mini-strokes" and was sent to the emergency room at St. Agnes Hospital multiple times. Each time, the nurses on
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duty at TCI would not permit the doctors at St. Agnes to admit Pankow for treatment; so the doctors would stabilize her and send her back to TCl. Finally, on May 7, Pankow suffered another stroke-like episode and the St. Agnes doctors refused to send her back. They performed an angioplasty and replaced her stents.
90. Pankow remains vulnerable to mini-strokes, or transient ischemic attacks (TIAs), when her blood pressure gets too high. She has experienced so many TIAs while at TCI - the last one in January 2006 - that the terrifying occurrence has become almost routine. She suffers a piercing pain in her brain stem and is immobilized during the attacks, able to communicate only by blinking her eyes. The officers in her building simply give Pankow her emergency medication and watch her. No one bothers to call HSU unless the attack lasts more than 45 minutes. Doctors generally consider TIAs critical harbingers of a more debilitating stroke and urge prompt medical evaluation by a specialist after such an attack. At TCI, a TIA does not even merit a trip to the HSU.
H. Lack ofInfirmary Care or Long-Term Inpatient Capacity 91. The HSU facilities at TCI consist of five examination rooms, a physical therapy room, a treatment room, an on-site X-ray room, and a three-chair dental suite. There is no infirmary at TCl. Women who need hospitalization or long-term inpatient care may be sent to the hospital at Dodge Correctional Institution (DCI) in Waupun, a men's prison. However, there are many women at TCI whose care cannot be safely managed in an outpatient setting, but who do not need to be hospitalized. These women need infirmary care, i. e., daily monitoring, medication, therapy and/or physical assistance by skilled health care professionals - something that is simply not available at TCl.
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92. Denise Kinnsse is an example of a prisoner who has suffered because of the lack of infinnary care at TCl. Kinnsse is 49 years old and came to TCI in January 1998. She began having severe breathing problems and chest pain in December 2001. She infonned HSU, but her complaints were ignored for many months. Finally, in May 2002, after a trip to the emergency room in Fond du Lac, I(innsse was sent to the University of Wisconsin Hospital in Madison, where she was diagnosed with restrictive lung disease and chronic obstructive pulmonary disease. Doctors in Madison immediately put her on oxygen 24-hours a day.
93. From May 2002 to May 2004, Kinnsse was housed at the infinnary at DCI, where she received round-the-clock medical attention and assistance with her oxygen tank. At DCI, she tried several new medications that ilnproved her lung capacity and relieved much of her discomfort. In May 2004, Kinnsse was returned to population at TCI, although her diagnosis and underlying condition remained essentially unchanged. At TCI, she does not have a roommate, nobody checks on her, and she cannot easily summon medical staff. Kinnsse, who is overweight and mobility-impaired, struggles each day with a heavy portable oxygen tank. Dr. Meress, who is not a pulmonary specialist, has encouraged Kinnsse to tum off her oxygen as much as possible, although that makes her breathing more labored. Dr. Meress and Dr. Reschke discontinued the medication that had been helping Kinnsse at DCI, and took her off the drugs she had been taking to manage her bipolar disorder.
94. By early 2005, I(innsse's condition had worsened and she began feeling pain and constriction in her chest and lungs similar to her condition before her diagnosis. She became depressed and suicidal. I(innsse has complained to defendants Boatwright, Meier and Meress about the medical care she is receiving at TCI, but the care has not improved and Kinnsse has not
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been returned to DCI. On information and belief, it is cheaper to house Kirmsse at TCI than at the DCI infirmary. Warden Boatwright told Kirmsse: "HSU can only do for you what they can afford."
95. Because of the cost and difficulty associated with housing women at the DCI hospital, many seriously ill women like Kirmsse are kept at TCI, where they do not receive essential infirmary care.
L Inadequate Dental Care and Women's Health Care 96. Women at TCI do not have access to adequate gynecological care or specialized women's health care services, such as pap smears, mammograms, and appropriate prenatal, obstetrical and postpartum care. 97. Pregnant women at TCI who are about to give birth are taken to St. Agnes Hospital in Fond du Lac to deliver. WDOC security policy has always required the women to remain shackled for most of their labor, and to be re-shackled immediately after childbirth. 98. Prisoners at TCI do not have access to adequate or timely dental care. Only one part-time dentist serves the entire TCI population. Prisoners with painful dental problems sometimes remain on the "urgent wait list" for weeks before they are seen by a dentist. Women in segregation have almost no access to dental care. For example, prisoner Janice Funk waited over a year to see a dentist while in segregation, although she complained of pain. On information and belief, defendants Frank, Greer, Ripani and Meier have been made aware of the backlog in requests for routine and urgent dental care by TCI prisoners, and of the shortage of qualified dental staff at TCl.
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J. Increased Demands on Health Care StaffDue to Adntissions Process 99. In the past 15 months the crisis in medical and mental health care at TCI has deepened due to unprecedented overcrowding at the facility. In December 2004, defendant Frank moved the admission and evaluation process for all women entering the prison system from DCI to TCI. Since then the nUlnber of women undergoing admission and evaluation at TCI has crept steadily upward, and is now regularly in the range of 80 to 120 prisoners at any given time. Because of these additional prisoners, TCl's total incarcerated population is now well over its operating capacity. 100. On top of the swollen prisoner population, the admission process itself places additional demands on medical staff. New prisoners are supposed to receive a health assessment within 14 days of admission to the prison system. Prisoners have to be screened for communicable diseases and evaluated for chronic conditions, mental health problems, disabilities and other medical issues that could affect their placement within the WDOC system. On information and belief, no new medical or mental health staff positions were added at TCI to address the increased burden on health services created by the prison's new admission and evaluation function. III. The Crisis in Mental Health Care at Tel A. High Incidence ofMental Illness 101. TCI has the highest ratio of mentally ill prisoners of all the WDOC adult institutions. Chronic mental illness is defined in § 51.01(3g) of the Wisconsin Statutes as "a mental illness which is severe in degree and persistent in duration, which causes a substantially diminished level of functioning in the primary aspects of daily living and an inability to cope with
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the ordinary demands of life, which may lead to an inability to maintain stable adjustment and independent functioning without long-term treatment and support and which may be of lifelong duration." WDOC considers prisoners with particular diagnoses (e.g., bipolar mood disorder, major depression) or who meet certain functional criteria (e.g., recurrent suicide attempts, severe impairment of functioning) as seriously mentally ill (SMI). At the end of FY 2005, fully 27 percent of TCI prisoners were classified as SMI. In contrast, only about 8 percent of all WDOC prisoners are classified as SMI.
102. "Clinical monitoring status" is a designation within WDOC for prisoners with mental health needs who must be followed by a psychiatrist or psychologist. According to Defendants' own figures, 459 prisoners at TCI, or about 68 percent, were on clinical monitoring status in June 2004, and the rate of prisoners on psychotropic medications at the time of their arrival at TCI was 55 percent. In contrast, only about 24 percent of all WDOC prisoners are on clinical monitoring status.
103. For years, defendants Doyle, Frank, Greer, Burnett, Kallas, Hands, Boatwright, Meier and Meress have been well aware of the enormous demands on the mental health care system at TCI but have repeatedly failed to allocate sufficient staff and resources to address the needs of prisoners there. As a result, TCI prisoners have been denied even minimally adequate mental health care.
B. Inadequate and Poorly Qualified Mental Health Care Staff 104. Mental health care staff levels at TCI fall short of levels recommended by the American Psychiatric Association and the American Association of Correctional Psychologists. On inforn1ation and belief, the number of psychiatrists and psychological services staff at TCI in
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relation to prisoners classified as SMl, or prisoners on clinical monitoring status, is significantly lower than the same ratios at other WDOC adult institutions. Despite these numbers, the FY 2006-07 budget for correctional health care in Wisconsin does not include funding for additional mental health staff at TCl. WDOC has no formal guidelines to ensure that prisoners at all institutions receive comparable levels of mental health care through equivalent staffing.
105. The 2001 LAB Audit noted the imbalance in mental health staffing among WDOC facilities and recommended the reallocation of mental health resources. This staffing disparity was noted again by the LAB in a 2004 follow-up report. In addition, WDOC's Segregation Workgroup, appointed by defendant Frank and chaired by defendant l(allas, acknowledged the mental health care staffing shortage at a number of Wisconsin prisons, including TCl, in its January 2005 report ("Segregation Workgroup Report"). Nonetheless, defendant Doyle's budget recommendations for health care expenditures in FY 2006-07 included 16 new psychologist staff positions in nine WDOC institutions - but not a single new position at TCl.
106. NCCHC standards require chart review by a qualified health care professional immediately upon a prisoner's placement in segregation, and regular (thrice-weekly) rounds by medical and mental health care staff for all segregated prisoners. An external consultant hired by WDOC recomluended a 24-hour clinical response tilue after placement in segregation. Disability Rights Wisconsin, the state's independent protection and advocacy group for people with disabilities, has also pushed for a 24-hour response protocol. Nonetheless, WDOC policy continues to require that psychology staff respond within two business days after placement, which can stretch to five days over the weekend. The Segregation Workgroup Report makes clear
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that insufficient staffing is the primary reason that appropriate standards for clinical response and segregation rounds have not been implemented.
107. The Segregation Workgroup Report also concludes that current psychological services staff are in many cases wholly unqualified to identify and treat prisoners with mental illness. Like many WDOC institutions, TCI relies heavily on "crisis intervention workers" to satisfy prisoners' urgent mental health care needs. Crisis intervention workers engage in difficult and high-risk clinical work, often rotating on-call responsibilities with psychologists; yet WDOC does not require them to have any specific level of education, training or actual clinical expenence.
108. In late 2005, Dr. Reschke, the Chief Psychiatrist at TCI and the medical doctor primarily responsible for monitoring prisoners on psychotropic medications, left TCI or was fired. Since then, the hundreds of women at TCI on psychotropic drugs, or in need of them, have been without a single full-time psychiatrist. PlaintiffVemessia Parker has seen three different temporary or part-time psychiatrists in the last four or five months, each of whom has altered her diagnosis and modified her prescriptions after spending less than ten minutes with her, and without inquiring about other medications she may be taking for her lupus or other conditions. Parker's current combination of prescription drugs gives her headaches and makes her sleep all day.
109. The severe shortage of qualified mental health care staff at TCI and the lack of staffing continuity mean that prisoners on psychotropic medications are not adequately monitored, and many prisoners with moderate to severe n1ental health needs are rarely seen by qualified and properly informed staff.
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c. Overprescription ofPsychotropic Medications
110. A salient feature of mental health care at TCI for many years has been the overprescription of psychotropic medications. The 2002 NCCHC Report noted that virtually all the TCl staff interviewed voiced concerns about the excessive use of psychotropic medications at the facility. Although the use of such medications at Wisconsin prisons has declined since 2003 due to a WDOC cost-saving initiative, on information and belief many women at TCl still take too many psychotropic drugs, or have been unnecessarily and abruptly taken off medications that were helping them.
111. On information and belief, TCI still has not implemented a process of case management and utilization review to monitor the appropriateness of the level of medication and mental health services being offered to specific prisoners, as recommended by the 2002 NCCHC Report.
D. Failures ofthe Monarch Special Management Unit 112. The Monarch Unit opened at TCl in January 2002. Monarch is a 64-bed unit ostensibly intended to serve the needs of prisoners with mental health issues or other special needs who require more attention from health care and correctional staff than can be provided in general population. In actuality, the WOlnen housed in Monarch get no greater attention from medical and mental health care staff despite their greater needs. Monarch is the farthest building from the HSU at TCI, and there are no 24-hour medical or psychological services staff assigned to the unit. Although billed as a Inental health unit, Monarch has become another punishment and segregation unit for prisoners who present management or disciplinary problems.
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113. There are four levels of decreasing privileges at Monarch, denoted by different colors. Women on Levell (no color) are essentially in continuous lockdown, with no out-of-cell privileges - i. e., no recreation, no library, no canteen, no television, no vocational or other classes, no group therapy. Levell prisoners are usually those with the most severe mental health issues, and prisoners on suicide watch. Monarch prisoners on Levels 2 (red), 3 (yellow), and 4 (green) have limited out-of-cell time (between 2 and 5 hours per day) and access to more groups and other privileges, but cannot work or take classes in general population. The extreme isolation and idleness imposed on women in Monarch, especially those in the lower levels, intensifies their preexisting mental health problems and causes many Monarch residents to act disruptively, leading to greater loss of privileges or placement in actual disciplinary segregation.
114. Although placement in Monarch is supposed to be a medical decision, in many cases the security director at TCl assigns prisoners to Monarch for non-medical reasons. Conversely, many women in the Segregation Unit suffer from untreated chronic mental health problems.
115. On information and belief, defendants Doyle, Frank, Greer, Burnett, l(allas, Hands, Boatwright, Meier and Meress are well aware of the connection between segregated settings, such as the Monarch and Segregation Units at TCl, and the increasing cycle of mental illness in prison. The 2005 Segregation Workgroup Report noted, for example, that "inmates with psychological vulnerabilities can deteriorate if placed in settings that have significant social isolation and inactivity."
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E. Lack ofInpatient Capacity to Treat Mental Illness 116. TCl has no long-term inpatient capacity for women with severe mental illness who need round-the-clock care and supervision. Unlike severely mentally ill male prisoners in the Wisconsin system, who may be assigned to the Wisconsin Resource Center for long-term inpatient care, female prisoners who need equivalent treatment must undergo involuntary commitment procedures under § 51.20 of the Wisconsin Statutes, so they can be admitted to the Winnebago Mental Health Institute. On information and belief, because of the additional work entailed in obtaining a court-ordered involuntary commitment, WDOC officials often decline to pursue this avenue for many women who need hospitalization for mental health issues. Instead, such women are assigned to the Monarch Unit, which provides inadequate individualized care and medical attention, or they languish in segregation. 117. Angela Enoch was 18 years old when she killed herself in the Monarch Unit in June 2005. Enoch had been in a segregation cell at Monarch, under observation, for five days before she died. She was suicidal and had been pleading for psychiatric help. A crisis intervention worker visited Enoch, but no one else came to see her during that time. On a Sunday afternoon, Enoch used the ripped seams from her pillow to strangle herself. A corrections officer observed her choking, but corrections staff unaccountably waited until there were five officers on the scene before entering Enoch's cell. By that time, her face was blue; when medical staff arrived shortly after that, they were unable to revive her. 118. Enoch's suicide - while "in observation" in a special management unit supposedly devoted to prisoners with serious psychiatric and emotional needs illustrates the grievous inadequacy of mental health care in the Monarch Unit and at Tel.
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119. According to a recent WDOC report on suicide prevention in Wisconsin prisons, the suicide rate in segregation units is 10 times the rate in general population units, and the average yearly suicide rate since 2001 is about twice the national average.
F. Gender-Based Disparities in the Provision ofMental Health Care 120. Since 1990, the number of women in Wisconsin prisons has more than tripled. Even at TCI, the state's only maximum or medium security prison for women, the great majority of female prisoners there are nonviolent offenders. Most have a history of childhood physical or sexual abuse, or repeated domestic battering. More than 70 percent have problems with drug or alcohol abuse or dependence. WDOC's own classification system identifies over 200 women at TCI as seriously mentally ill. This is a popUlation with unique, pervasive and well-documented mental health problems, and, if anything, a greater need for specialized mental health treatment as compared to similar numbers of male prisoners. 121. Nonetheless, it is an acknowledged fact at WDOC that severely mentally ill women in Wisconsin prisons receive poorer mental health care than their male counterparts. WDOC's FebnIary 2006 Status Report on adult correctional health care, produced at the request of the Joint Committee on Finance, concedes that although a much greater percentage of the female prison population has mental health needs, WOlnen prisoners do not have access to inpatient mental health care that is "comparable" or even "similar" in quality to the care available to incarcerated men at the Wisconsin Resource Center (WRC). 122. WRC is a specialized mental health facility administered jointly by the state's Department of Health and Family Services (DHFS) and WDOC. The facility provides individualized treatment for approximately 350 male prisoners with serious mental health or
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behavioral problems, and for up to 60 men detained or committed as sexually violent predators pursuant to Chapter 980 of the Wisconsin Statutes. Although a secure facility, WRC is staffed primarily by treatment personnel - not correctional officers but patient care technicians, DHFS employees who are hired to provide patient care and trained in dealing with severely mentally ill persons.
123. As noted above, there is no equivalent treatment option for female prisoners who need attentive, individualized long-term mental health or behavioral treatment. In theory, severely mentally ill women at TCI may access inpatient care at the state mental health treatment facility in Winnebago. As a practical matter, WDOC rarely seeks to place women at the Winnebago facility because the judicial commitment process is cumbersome, time-consuming and costly: Wis. Stat. § 51.20 requires the filing of a petition for examination; a probable-cause hearing conforming to due process requirements; a psychiatric examination by two court-appointed physicians; a final hearing or jury trial; and then periodic reevaluation by treatment staff, with written findings to be filed in court. In contrast, prison officials may simply transfer male prisoners who need inpatient mental health care to WRC.
124. In addition, civil commitment entails a second and independent loss of civil liberties that theoretically may extend beyond a prisoner's release date. TCI prisoners desperate for better mental health treatment often willingly undergo civil commitment procedures. Some women may even be driven to self-destructive behaviors because of the perceived need to satisfy judicial commitInent standards and to convince reluctant prison officials to undertake the commitment process. Male prisoners in Wisconsin are not required to risk sacrificing future civil liberties or exhibit dangerous behavior in order to receive essential mental health treatment.
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125. Most TCI prisoners with acute mental health needs remain at TCl. These women have far less access to treatment staff on a daily basis than do the men at WRC. Typically, TCI prisoners may see a psychiatrist for a brief medication check every two to three months, and see psychological services staff on only an emergency basis. Even women in Monarch rarely see psychiatric staff more often than every four to six weeks, and often must wait weeks to see crisis intervention or psychology staff. In contrast, men at WRC, including men in the acute psychiatric and high management security units, have daily contact with psychological services staff and have access to psychiatric care on an as-needed basis. Round-the-clock attention by health care professionals who specialize in psychiatric care is available throughout WRC. At TCI, suicidal prisoners like Angela Enoch remain isolated, observed only by corrections officers.
126. WRC's treatment programs are individualized and inter-disciplinary, emphasizing engagement with staff and continued involvement in a variety of productive activities. At every stage of the treatment process, men at WRC are encouraged to participate in scheduled events, therapeutic services groups, academic and self-improvelnent classes, and work assignments. For severely mentally ill persons, the critical importance of this type of structured therapeutic environment is widely accepted in the field of mental health care. At TCI, and particularly in the Monarch Unit, severely mentally ill women have little access to therapeutic programming, socialization, or out-of-cell activity of any nature.
127. At WRC, the ultimate goal of each individualized treatment plan is to return the prisoner to general population. The average stay at WRC is nine months. At Monarch, there is no organized clinical effort to treat seriously mentally ill women and retunl them to population. Plaintiff Vemessia Parker has been at Monarch for almost four years and there is no clear path to
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leave the special management unit. Indeed, the descending privilege system at Monarch seems ahnost calculated to entrap the most seriously disturbed women in the most restrictive and isolating levels, where they have the least access to therapeutic activities.
128. Defendants' failure to provide adequate or gender-equivalent treatment for female prisoners with extremely serious mental health needs adversely affects the mental health treatment afforded to all women at TCl. Because severely mentally ill women cannot be easily transferred to an appropriate inpatient setting and must be maintained in the prison environment, these women require disproportionate amounts of time and attention from treatment staff. With psychological services staff already stretched thin at TCI, the continued presence of severely mentally ill women in need of specialized inpatient care among the popUlation at TCI exacerbates the staff shortage. As a consequence, female prisoners with significant but perhaps not severe mental health needs - in other words, most of the women at TCI - have insufficient access to psychiatric and psychological services staff. On information and belief, based on their more pervasive mental health needs and the heightened demands on the TCI mental health system, women at TCI have access to fewer treatment staff and less mental health programming than men in WDOC custody.
129. The disparity in treatment for seriously mentally ill women versus men in WDOC adult institutions mirrors a similar disparity at the juvenile correctional level in Wisconsin. Delinquent boys with serious mental health or behavioral problems can receive specialized treatment and inpatient care at the Mendota Iuvenile Treatment Center (MITC), administered by DHFS. There is no similar treatment option for delinquent girls with serious mental health or
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behavioral problems, who are consigned to the mental health unit at the Southern Oaks Girls School (SOGS), operated by juvenile corrections, not DHFS.
130. Defendants Doyle, Frank, Burnett, Kallas, Hands and Boatwright have been aware for a number of years of gender-based disparities in the quality and availability of Inental health care for persons in WDOC custody. In particular, Disability Rights Wisconsin has raised the issue of gender inequity in WDOC's provision of mental health care in correspondence and meetings with these Defendants over the past several years. Despite their long-standing knowledge that TCI prisoners do not have access to substantially equivalent mental health care as compared to male prisoners, and of the adverse effect on the health and welfare of women at TCI, defendants Doyle, Frank, Burnett, Kallas, Hands and Boatwright have repeatedly and recklessly failed to take reasonable steps to remedy this inequality. IV. Exhaustion of Administrative Remedies
131. Plaintiffs have exhausted such administrative remedies as are available to them. CLASS ACTION ALLEGATIONS
A. Constitutional Claims on BehalfofAll TCI Prisoners 132. Plaintiffs Flynn, Flournoy, Parker and Ramos bring claims based on the Eighth and
Fourteenth Amendments to the United States Constitution on behalf of themselves and all others similarly situated, pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure.
133. Plaintiffs seek to represent a class consisting of all prisoners who are now or in the future will be confined at TCI (henceforth, "TCI Class"). As a result of their confinement at TCI, members of the TCI Class including Plaintiffs have been, are, and will be subjected to violations of their constitutional and statutory rights, as described in this Complaint. Plaintiffs represent a
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class of persons seeking declaratory and injunctive relief to eliminate Defendants' actions, policies and practices that deprive them of those rights.
134. There are currently over 700 women confined at TCL The proposed TCl Class is so numerous, and membership in the class so fluid, that joinder of all members is impracticable.
135. All TCl Class members are equally subject to the conditions described in this Complaint, and common questions of law and fact exist as to all TCl Class members. These common questions include, but are not limited to: whether Defendants provide systemically inadequate medical, mental health and dental care to class members; whether Defendants have been deliberately indifferent to the serious medical, mental health and dental needs of class members; whether Defendants have placed class members at unreasonable risk of developing serious medical, mental health and dental problems; whether Defendants have violated class members' rights to be free of cruel and unusual punishment under the Eighth and Fourteenth Amendments; whether Defendants provide mental health care to TCl prisoners that is comparable or substantially equivalent to that provided to WDOC's male prisoners; whether disparities in the provision of mental health care by Defendants arise from an explicit gender-based assignment policy; whether disparities in the provision of mental health care by Defendants are substantially related to the achievement of an important governmental objective; and whether Defendants have violated class members' right to equal protection of the laws under the Fourteenth Amendment.
136. Plaintiffs' claims are typical of the claims of the TCl Class. Plaintiffs are prisoners with a range of serious health care needs typical of the TCl Class as a whole. Plaintiffs and the class they represent have been directly injured by Defendants' unconstitutional and unlawful policies and practices with respect to health care.
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137. Plaintiffs will fairly and adequately represent the interests of the TCl Class. Plaintiffs have no interests separate from those of the TCl Class, and seek no relief other than the relief sought on behalf of the class. Plaintiffs' counsel are experienced in the protection and enforcement of the constitutional and statutory rights of prisoners.
138. Defendants have acted and refused to act on grounds generally applicable to the TCl Class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole. B. ADA/Rehabilitation Act Claims on BehalfofSubclass
139. Plaintiffs Flynn, Flournoy and Parker (henceforth, "Subclass Plaintiffs") bring ADA and Rehabilitation Act claims on behalf of themselves and all others similarly situated, pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure.
140. Subclass Plaintiffs seek to represent a class consisting of all individuals with disabilities who are now or in the future will be confined at TCl (henceforth, "ADA Subclass"). As a result of their confinement at TCl, members of the ADA Subclass including Subclass Plaintiffs have been, are, and will be subjected to violations of their constitutional and statutory rights, as described in this Complaint. Plaintiffs represent a class of persons seeking declaratory and injunctive relief to eliminate Defendants' actions, policies and practices that deprive them of those rights.
141. All women incarcerated at TCl meet the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by Defendants. On information and belief, approximately 30% of the women at TCl suffer from severe mental illnesses or physical impairments that substantially limit one or more major life activity. The
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proposed ADA Subclass is so numerous, and membership in the subclass so fluid, that joinder of all members is impracticable.
142. All subclass members are equally subject to the conditions described in this Complaint, and common questions of law and fact exist as to all subclass members. These common questions include, but are not limited to: whether Defendants have discriminated against subclass members on the basis of disability; whether Defendants have denied or excluded subclass members from the benefits of services, programs or activities on the basis of disability; whether Defendants have failed to nlake reasonable modifications to policies, practices and procedures to avoid discriminating against subclass members on the basis of disability; and whether Defendants have violated Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the ADA, 42 U.S.C. § 12132.
143. Subclass Plaintiffs' claims are typical of the claims of the ADA Subclass. Subclass Plaintiffs are prisoners suffering from serious mental illnesses and/or physical impairments typical of the subclass as a whole. Subclass Plaintiffs and the class they represent have been directly injured by Defendants' unconstitutional and unlawful policies and practices with respect to health care.
144. Subclass Plaintiffs will fairly and adequately represent the interests of the ADA Subclass. Subclass Plaintiffs have no interests separate from those of the subclass, and seek no relief other than the relief sought on behalf of the subclass. Subclass Plaintiffs' counsel are experienced in the protection and enforcement of the constitutional and statutory rights of pnsoners.
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145. Defendants have acted and refused to act on grounds generally applicable to the ADA Subclass, thereby making appropriate final injunctive and declaratory relief with respect to the subclass as a whole.
FIRST CLAIM FOR RELIEF (Eighth and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983)
146. Defendants' deliberate indifference to Plaintiffs' serious medical, mental health and dental needs causes avoidable pain, mental suffering, and deterioration of Plaintiffs' health. In some cases, it has resulted in premature death.
147. Defendants' policies, practices, acts, and omissions evidence and constitute deliberate indifference to the serious health care needs of prisoners and violate the Cruel and Unusual Punishments Clause of the Eighth Amendment, made applicable to the States through the Fourteenth Amendment to the United States Constitution.
148. Defendants' policies, practices, acts, and omissions place Plaintiffs at unreasonable, continuing and foreseeable risk of developing or exacerbating serious medical, mental health and dental problems.
149. As a proximate result of Defendants' unconstitutional policies, practices, acts and omissions, Plaintiffs have suffered and will continue to suffer immediate and irreparable injury, including physical, psychological and emotional injury and the risk of death. Plaintiffs have no plain, adequate or complete remedy at law to address the wrongs described herein. The injunctive relief sought by Plaintiffs is necessary to prevent continued and further injury.
44

SECOND CLAIM FOR RELIEF (Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983) 150. Pursuant to WDOC policy and practice, only female prisoners are housed at TCl and only male prisoners are housed at WRC. 151. For all relevant purposes, male and female prisoners convicted and sentenced in Wisconsin courts and committed to the legal custody of WDOC are similarly situated with respect to their right to constitutionally adequate mental health care, and to treatment for serious mental illnesses that meets accepted professional standards. 152. Defendants' policies, practices, acts, and omissions create, sustain and perpetuate a system of mental health care for female prisoners in WDOC custody that is not comparable, substantially equivalent or in parity with the system of mental health care for male prisoners in WDOC custody. As a consequence of this disparity, female prisoners at TCl do not receive mental health care that is comparable, substantially equivalent or in parity with the mental health care available to WDOC's male prisoners. This disparity in treatment is a direct result of the differences in mental health treatment afforded to prisoners at TCl and WRC, and the gender-based assignment of prisoners to these institutions under WDOC policy. 153. The disparity in mental health treatment for male and female prisoners in WDOC custody, as described in this complaint and particularly in paragraphs 120 to 130, is not substantially related to the achievement of an important, or even legitimate, governmental objective. Silnilarly, there is no compelling need or exceedingly persuasive justification for this disparity in mental health treatment.
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154. Plaintiffs are adversely affected by the Defendants' policies, practices, acts, and omissions in creating, sustaining and perpetuating a disparity in mental health treatment for male and female prisoners, and are placed at unreasonable, continuing and foreseeable risk by this disparity.
155. Defendants' policies, practices, acts, and omissions evidence a reckless disregard for and deliberate indifference to the health and welfare of Plaintiffs and their constitutional right to adequate mental health care, and constitute a denial of equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution.
156. As a proximate result of Defendants' unconstitutional policies, practices, acts and omissions, Plaintiffs have suffered and will continue to suffer immediate and irreparable injury, including physical, psychological and emotional injury and the risk of death. Plaintiffs have no plain, adequate or complete remedy at law to address the wrongs described herein. The injunctive relief sought by Plaintiffs is necessary to prevent continued and further injury.
THIRD CLAIM FOR RELIEF (Americans With Disabilities Act and Section 504 of the Rehabilitation Act) 157. Subclass Plaintiffs are qualified individuals with disabilities as defined in 42 U.S.C. § 12131(2) and § 12102(2), and in 29 U.S.C. § 794(a) and § 705(20). Subclass Plaintiffs have mental and/or physical impairments that substantially limit one or more major life activity; or they have records of having such impairments; or they are regarded as having such impairments. Subclass Plaintiffs meet the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by Defendants.
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158. The Wisconsin state government, WDOC and TCI are public entities as defined in 42 U.S.C. § 12131(1); and operate programs and activities receiving or distributing Federal financial assistance as described in 29 U.S.C. § 794(a) and (b). All Defendants at all relevant times acted in their official capacities as representatives of at least one of these public entities.
159. Defendants discriminate against Subclass Plaintiffs by excluding them from participation in, or denying them the benefits of, services, programs or activities on the basis of their disabilities, or solely on the basis of their disabilities, in violation of 42 U.S.C. § 12132 and 29 U.S.C. § 794.
160. Defendants discriminate against Subclass Plaintiffs by failing to provide alternative disciplinary sanctions as reasonable modifications so that placement in segregation and other punishments that exacerbate mental or physical impairments are not imposed.
161. Defendants deprive Subclass Plaintiffs of their rights under the ADA and the Rehabilitation Act by (1) failing to administer services, programs and activities in the most integrated setting appropriate to needs of the Subclass Plaintiffs; (2) failing to make reasonable modifications in Defendants' policies, practices and procedures to avoid discriminating against Subclass Plaintiffs on the basis of disability; (3) using eligibility criteria or methods of administration that have the effect of discriminating against Subclass Plaintiffs on the basis of disability; and (4) failing to furnish appropriate aids, services, devices or assistance to afford Subclass Plaintiffs an equal opportunity to participate in and benefit from Defendants' services, programs and activities.
162. As a proximate result of Defendants' unlawful policies, practices, acts and omissions, Subclass Plaintiffs have suffered and will continue to suffer immediate and irreparable
47

injury, including physical, psychological and emotional injury and the risk of death. Subclass

Plaintiffs have no plain, adequate or complete remedy at law to address the wrongs described

herein. The injunctive relief sought by Subclass Plaintiffs is necessary to prevent continued and

further injury.

PRAYER FOR RELIEF

163. WHEREFORE, Plaintiffs respectfully request that the Court:

a. Issue an order certifying this action to proceed as a class action pursuant to

Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure;

b. Appoint the undersigned as class counsel pursuant to Rule 23(g) of the

Federal Rules of Civil Procedure;

c. Issue a judgment declaring that Defendants' policies, practices, acts and

omissions described herein are unlawful and violate Plaintiffs' rights under the Constitution and

laws of the United States;

d. Permanently enjoin Defendants, their subordinates, agents, employees, and

all others acting in concert with them from subjecting Plaintiffs to the unconstitutional and

unlawful conditions described herein, and issue injunctive relief sufficient to rectify those

conditions;

e. Grant Plaintiffs their reasonable attorney fees and costs pursuant to

42 U.S.C. § 1988 and § 12205, and 29 U.S.C. § 794a(b), and other applicable law; and

f.

Grant such other and further relief as this Court deems just and proper.

Dated this 1st day of May, 2006.

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National Prison Project of the ACLU Foundation 915 15th Street, N.W., 7th Floor Washington, D.C. 20005 Telephone: (202) 393-4930 Fax: (202) 393-4931 Email: gbhat@npp-aclu.org
*Practice limited to federal courts and admission
pending in this District Laurence J. Dupuis ACLU of Wisconsin Foundation 207 E. Buffalo Street, Suite 325 Milwaukee, WI 53202 Telephone: (414) 272-4032 Fax: (414) 272-0182
49

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

KRISTINE FLYNN, et al., on behalf of themselves and all others similarly situated,
Plaintiffs, v. JIM DOYLE, et al.,
Defendants.

Case No. 06-C-537-RTR

PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Table of Contents
INTRODUCTION .............................................................................................................. 1 I. THE MEDICATION ORDERING PROCESS. ...................................................... 4 A. Why the System Fails: The Convoluted Medication Ordering Process. .......... 6 B. Common Errors and Consequences................................................................ 11 1. Delays in Processing Medication Orders ............................................. 11 2. Errors in Processing Medication Orders .............................................. 20 C. Defendants’ Knowledge of the Danger. ......................................................... 24 D. Defendants’ Failure to Reduce the Risk. ........................................................ 26 II. MEDICATION DISTRIBUTION BY CORRECTIONAL OFFICERS............... 28 A. Correctional Officers Cannot Safely Administer Medications....................... 29 1. A Knowledge Deficit with Potentially Fatal Consequences. ............... 30 2. Correctional Officers’ Failure to Follow Safe Medication Administration Practices. ..................................................................... 37 3. Officers’ Under-Reporting of Medication Errors................................. 47 B. Little Boxes and Big Risks: Dangerous Medication Documentation Practices. ..................................................................................................................... 48 1. Correctional Officers Do Not Properly Document Medication Administration. .................................................................................... 49 2. The Consequences of Poor Medication Administration Documentation. .............................................................................................................. 53 3. Medication Documentation: A Nursing Function in Need of Nurses.. 55 C. Licensed Practical Nurses: A Readily Identifiable and Necessary Remedy. . 57
LEGAL ARGUMENT...................................................................................................... 60 A. Defendants’ Medication Ordering and Administration Systems Create an Objectively Substantial Risk of Serious Harm to TCI Prisoners. ............... 62 B. Defendants Are Subjectively Aware of The Risks But Have Repeatedly Failed to Take Reasonable Steps to Abate Them................................................... 72
II. PLAINTIFFS HAVE A RIGHT TO PRELIMINARY INJUNCTIVE RELIEF. . 75 A. The Requirements of the PLRA Are Met. ...................................................... 76 B. Plaintiffs Meet the Standard for Issuance of a Preliminary Injunction. ......... 79
CONCLUSION................................................................................................................. 80
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INTRODUCTION
Defendants’ medication system poses a “clear and present danger to the health and safety” of the more than 700 women prisoners at the Taycheedah Correctional Institution in Fond du Lac, Wisconsin.1 By this motion, Plaintiffs and a certified class of all women imprisoned at Taycheedah Correctional Institution (“TCI” or “Taycheedah”), seek urgent, preliminary injunctive relief to protect them from serious, ongoing risks to their health and safety posed by Defendants’ dangerously dysfunctional systems of ordering and administering medications to prisoners. Members of the class have already been harmed by pervasive medication errors and delays. Defendants, knowing of the harm and risk of harm posed by their current medication system, have failed to take reasonable steps necessary to abate the risk, in violation of the Eighth Amendment’s prohibition on cruel and unusual punishments. Without prompt relief from this Court, the women at Taycheedah will remain at substantial risk of serious injury and death.
FACTS The Defendants’ system for ordering and administering medications to prisoners at Taycheedah “is in chaos.”2 This chaos results in unacceptable rates of medication delays, errors, and omissions, which impose a substantial and ongoing risk of serious
1 Declaration of Gabriel B. Eber (hereinafter, “Eber Decl.”) ¶ 81, Ex. King-01, Rep’t of Dr. Lambert N. King at 9. 2 Eber Decl. ¶ 11, Ex. 308, Rep’t of Dr. Jerry Walden at 2; Defendant Steven Meress, M.D., Taycheedah’s responsible physician for most of the duration of this litigation, agrees with this characterization of the pharmacy services provided to Taycheedah prisoners. Eber Decl. ¶ 29, Ex. 500, Dep. of Dr. Steven Meress at 258 (“The information on the pharmacy at Taycheedah is in chaos, I do agree with that.”).
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harm to prisoners at Taycheedah. As set forth more fully below, a number of prisoners at TCI have suffered prolonged and unnecessary illness, injury, pain, hospitalization and other complications, and all prisoners receiving medications are at significant risk of harm and even death. For years, Defendants have known of this significant risk, and of ways to reduce it, but have failed to take the actions necessary to do so.
Defendants’ own expert witnesses have characterized the current medication system at TCI as likely to be unconstitutional. Dr. Robert Greifinger, Defendants’ medical expert, told defendant David Burnett, M.D., the medical director of the Wisconsin Department of Corrections (“WDOC”), that “[f]rom a constitutional perspective,” the “medication system” is one of “two areas in particular” that creates a “significant” “risk of harm.”3 In his recent deposition, Dr. Burnett agreed that the medication system is an “area of significant risk.”4 Dr. Robert Rawski, defendant’s psychiatric expert, testified that he couldn’t “envision a scenario” in which defendants continued to have correctional officers distribute psychotropic medications to seriously mentally ill prisoners that would not amount to deliberate indifference to a serious medical need.5
Like many prison systems throughout the United States, WDOC has experienced an enormous population increase, with the number of prisoners growing to over 22,000 offenders, “an increase of over 240% since 1990.”6 TCI, likewise, has seen its population grow dramatically, from approximately 590 prisoners in January 2000 to a
3 Eber Decl. ¶ 74, Ex. Burnett-413, e-mail from David Burnett. 4 Eber Decl. ¶ 30, Ex. 501, Dep. of Dr. David Burnett at 377. 5 Eber Decl. ¶ 31, Ex. 502, Dep. of Dr. Robert Rawski at 241-43. 6 Eber Decl. ¶ 17, Ex. 398, Wisconsin DOC, “Adult Correctional Health Care: Status Report & Plans for the Future” (Feb. 1, 2006) (hereinafter, “WDOC Status Report & Plans 2006”) at 1.
2

census of approximately 708 inmates in October 2008.7 These prisoners have more
medical and psychiatric needs than prisoners of earlier generations, in part because of the
aging of the prison population.8 TCI’s medical system has also had to absorb the
assessment and evaluation (“A & E”) function for all women entering WDOC’s female
adult institutions, a function previously handled at Dodge Correctional Institution.9
Despite this huge expansion in population and medical need, the resources to provide
care at TCI have stagnated. Until this lawsuit was filed, almost no additional resources
were provided to TCI to assess and care for the increased population of women at the
institution.10
WDOC’s central pharmacy, too, has experienced enormous increases in demand
without commensurate increases in resources. The pharmacy has seen a 43% increase in
the number of prescriptions dispensed, from 526,361 in FY 2004 to 752,674 in FY
2007.11 A system designed to handle a smaller, younger and healthier population has
been asked to do more, but without the staff necessary to make the existing system
function safely12 or the technology to transform the system to allow the small staff to do
7 Eber Decl. ¶ 32, Ex. 503, WDOC, “Offenders Under Control on October 3, 2008” & Eber Decl. ¶ 33, Ex. 504, “Offenders Under Control on January 7, 2000”; Eber Decl. ¶ 34, Ex. 505, Dep. of Dr. Kevin Kallas at 202, 204-05 (noting rapid population growth). 8 Eber Decl. ¶ 17, Ex. 398, WDOC Status Report & Plans 2006 at 21-25 (noting increase in proportion of prisoners aged 50 and over from 4.5% to 8.5%; inmates 45 years old and older almost twice as likely as younger inmates to suffer from medical problems). 9 Eber Decl. ¶ 34, Ex. 505, Kallas Dep. at 38-40 (A&E moved to TCI; no additional resources provided). 10 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 45-47, 178 (no additional nurse practitioners after intake moved to TCI until after lawsuit; concern that will lose staff without lawsuit); Eber Decl. ¶ 35, Ex. 506, Dep. of Dawn Atkinson at 51-54 (lack of response to staffing needs until lawsuit). 11 Eber Decl. ¶ 71, Ex. Burnett-400, “Central Pharmacy Recommendations” at DOC-TCI00278423. Page citations to this document, the “Draft Project Recommendations Department of Corrections Central Pharmacy,” are by Bates number, because the original document is a compilation of multiple reports with discontinuous pagination. 12 Id. at DOC-TCI00278381.
3

more with less. This overtaxed and archaic system places Plaintiffs at a constitutionally unacceptable risk of serious harm.
A vast majority of the errors and delays in the current medication system are attributable to two steps in the process: (1) transmitting the medication order from the medical record to the pharmacy for dispensing and to the housing unit for administration; and (2) the administration of that medication to prisoners by correctional officers with no formal education in health care and no accountability for medication errors.13 In fact, the number of medication incidents attributable to these two steps dwarfs the number of incidents attributable to any other step in the process.14
I. THE MEDICATION ORDERING PROCESS.
TCI’s convoluted and archaic medication ordering process frequently causes “unconscionable”15 and “shocking”16 delays in the delivery of medications to prisoners. Because it relies on multiple manual transcriptions of information, the process is “fraught with errors,”17 resulting in patients routinely receiving wrong medications, medications that should have been discontinued, wrong dosages of medications, and medications that cause adverse interactions with other medications.
13 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 330-37; Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 106-08. 14 Eber Decl. ¶ 72, Ex. Burnett-401, Prescriber & Therapeutic Committee minutes for October 19, 2005 and attached medication error graphs at DOC-TCI00276138, DOC-TCI00276142, DOC-TCI00276210; Eber Decl. ¶ 73, Ex. Burnett-402 at DOC-TCI00275996-99. 15 Eber Decl. ¶ 18, Ex. 399, “Review of Mental Health Services, Taycheedah Correctional Institution” (prepared for the United States Dep’t of Justice), at 26-27 (Dec. 27, 2005) (hereinafter, “USDOJ Report”). 16 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 347-48. 17 Eber Decl. ¶ 36, Ex. 507, Dep. of Dr. Robert Greifinger at 56-57.
4

After the filing of this lawsuit and an investigation of TCI’s mental health
services by the U.S. Department of Justice under its authority pursuant to the Civil Rights
of Institutionalized Persons Act, 42 U.S.C. § 1997, et seq., WDOC formed a Pharmacy Transformation Workgroup (“PTW”) to explore deficiencies in the pharmacy system.18
After soliciting and reviewing studies by several consulting groups, the PTW found that
the transmission and receipt of medication orders was “perhaps the most problematic” step in the entire pharmacy process.19 The Workgroup summarized the problem as
follows:
DOC prescribers hand-write medication orders on paper, which are then faxed to the Central Pharmacy. Refills of orders are handled similarly, with tear off bar codes adhered to a page that is later faxed to the CP. Too much time is wasted in the process of prescribers’ handwriting the medication order, HSU [Health Services Unit] staff photocopying the order and then faxing it to the Central Pharmacy. Current faxed orders are frequently difficult to read. There are problems with illegibility of prescribers’ handwriting, confusion over the inmate/patient’s medication record or incompatibility of complex medications that lead to Pharmacist intervention. This type of intervention slows down the medication order process significantly. . . . Medication errors, which carry with them reverberations of liability far into the future, are also a potential.20
Ultimately, the PTW concluded that replacing the current process of faxing
handwritten medication orders to WDOC’s Central Pharmacy Services (“CPS”) with a
computerized medication order entry system “should be DOC’s first priority in improving pharmaceutical services.”21 Such a system would “eliminate the current time
consuming processes of fax receipt and sortation, and manual entry of order information
into [WDOC’s pharmacy management computer] system,” help obviate “further delays
18 Eber Decl. ¶ 71, Ex. Burnett-400 at DOC-TCI00278384. 19 Eber Decl. ¶ 71, Ex. Burnett-400 at DOC-TCI00278382. 20 Eber Decl. ¶ 56, Ex. 555, “Central Pharmacy Project Recommendations” at DOC-TCI00318007-08. 21 Eber Decl. ¶ 71, Ex. Burnett-400 at DOC-TCI00278387.
5

while pharmacists or other CP staff contact institution HSUs to clarify what faxed orders actually say,” and “greatly reduce[]” “[m]edication errors” by, among other things, “flagg[ing] for medication contraindications.”22
Business as usual is unacceptable: “The continued use of paper Doctor’s Orders only foster[s] continued errors anywhere along the long line of order processing in the current setting.”23
A. Why the System Fails: The Convoluted Medication Ordering Process.
When a doctor or other health care provider with authority to prescribe medication decides to order a medication for a prisoner, the decision triggers a long chain of steps.24 The convoluted process includes many manual steps, regularly resulting in a delay of essential medications – including pain medications, antibiotics, anti-seizure medications, heart and blood pressure drugs, and psychiatric medicine – and, all too often, in the patient taking a medication that is not what the prescriber actually ordered. Defendants’ medical expert, Robert Greifinger, M.D., described this procedure as “tediously cumbersome,” and as “a very unusual system with a lot of redundant paperwork and layer upon layer of bureaucratic steps to get from the moment the physician orders a medication until the delivery of the first dose. It is also a medication management system that is fraught with errors and doesn’t provide adequate and timely information to the prescribing clinicians.”25
22 Id. at DOC-TCI00278386. 23 Id. at DOC-TCI00278386. 24 A flow-chart depicting the current system gives an idealized overview of this labyrinthine process. Eber Decl. ¶ 71, Ex. Burnett-400 at DOC-TCI00278434. 25 Eber Decl. ¶ 36, Ex. 507, Greifinger Dep. at 56-57.
6

TCI’s baroque system has too many steps in which error can and does occur. In
general, the chain of events begins when the prescriber handwrites a medication order on a “Physician’s Orders” form in the patient’s medical chart.26 The order should, but does
not always, contain the date and time of the order, the priority code (“STAT,” “Code 1”
or “Code 2”), the name of the drug and strength, the dosage, frequency and time of
administration, the route of administration, the duration of the order and the prescriber’s signature.27
At this first step, a prescriber’s handwriting may be illegible, requiring either the nurse at TCI or staff at CPS to seek clarification, which causes delay.28 The prescriber
may use an incorrect drug name or ambiguous abbreviation or order a medication or form of a medication not available on the WDOC formulary.29 Each of these defects in the
order may require nursing staff at TCI or staff at CPS to seek clarification from the
prescriber, who may or may not be available to respond to queries.
The prescriber then “flags” the order in the patient’s medical chart by manually
raising a plastic flag on the chart divider in front of the order so that the flag protrudes
from the record, and puts the chart on a medical record cart for “processing,” if the order
is “routine,” or hand delivers the chart to a nurse, if the order is “STAT” (meaning the
order is to be filled immediately) or “Code 1” (meaning the order is to be filled the same
26 Eber Decl. ¶ 38, Ex. 509, Dep. of Holly Meier, November 8, 2007, (hereinafter, “Meier Pharmacy Dep.”) at 12; Eber Decl. ¶ 39, Ex. 510, Dep. of Rhonda Holzman at 27. 27 Eber Decl. ¶ 82, Ex. Meier-2-02, Taycheedah Procedure No. 5200, “Medications: Processing Physician/Dental Orders” at DOC-TCI00000804. 28 Eber Decl. ¶ 39, Ex. 510, Holzman Dep. at 31; Eber Decl. ¶ 40, Ex. 511, Dep. of Larry Edwards at 103. 29 Eber Decl. ¶ 71, Ex. Burnett-400 at DOC-TCI00278411 (identifying problems with prescription writing and processing, including, inter alia, “wrong drug, drug name confusion . . . , inconsistent use of abbreviations . . . .”, DOC-TCI00278387 (a direct computer ordering system would “forc[e] prescribers to use only the approved drug formulary.”)
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day).30 Medication orders are sometimes missed entirely when the prescriber forgets to
raise the flag on the chart and may also be missed if the flag inadvertently gets pushed back into the chart.31
The nurse then “processes” or “transcribes” the order by checking that the
required information is contained in the order, signing off on the order, and taking a carbon copy of the order to the TCI medication room.32 Depending on workloads, this step may not occur until the end of the day for routine orders.33
If the order is a “Code 2” (routine) order, the medication room nurse will (1) fax
the carbon copy of the handwritten order, with various annotations, to CPS; (2) write the
prescription information on the prisoner’s “medication profile,” which is kept in the medication room; and (3) wait for CPS to ship the medication to TCI.34 At this step, any errors in the order not previously detected are be passed on to the central pharmacy.35 In
addition, a bad fax transmission or breakdown in the fax machines can result in further
delay. The former director of the Central Pharmacy testified that CPS gets “faxes of carbons, and they’re atrocious to read.”36
If the order is “STAT” or “Code 1,” the nurse transcribing the order or the
medication room nurse will try to fill the order from stock kept in the medication room at
30 Eber Decl. ¶ 82, Ex. Meier-2-02, Taycheedah Procedure No. 5200, “Medications: Processing Physician/Dental Orders” at DOC-TCI00000805; Eber Decl. ¶ 39, Ex. 510, Holzman Dep. at 28-29 (flags); Eber Decl. ¶ 38, Ex. 509, Meier Pharmacy Dep. at 23 (priority codes). 31 Eber Decl. ¶ 38, Ex. 509, Meier Pharmacy Dep. at 21. 32 Eber Decl. ¶ 38, Ex. 509, Meier Pharmacy Dep. at 18, 21-23. 33 Eber Decl. ¶ 38, Ex. 509, Meier Pharmacy Dep. at 16-17. 34 Eber Decl. ¶ 39, Ex. 510, Holzman Dep. at 31-32. 35 See, e.g., Eber Decl. ¶ 40, Ex. 511, Edwards Dep. at 104 (“[I]t might be the doctor is missing some information. Maybe he did not put a stop date or an expiration date on that order.”) 36 Eber Decl. ¶ 40, Ex. 511, Edwards Dep. at 103.
8

TCI or, failing that, order the medication from a local pharmacy so that it can be given to the patient quickly in accordance with the prescriber’s order.37 When medication is given to a patient from stock, the information about the medication order is supposed to be faxed to CPS, either at the end of the day or on the next business day, so that the order can be entered into the computer system and replacement stock can be sent to TCI.38
Unfortunately, when medication is dispensed from stock, no check on whether a prescribed medication may have adverse interactions with the prisoner’s other medications occurs until after the order information is entered into the data system at CPS.39 Thus, the prisoner can take a contraindicated medication with potential for dangerous interactions before the CPS interaction checking system alerts the provider to the danger.40 In fact, when a STAT or Code 1 medication order is written on a Friday, when a prescriber is not on-site to respond to questions about an order, or when the pharmacist at CPS does not promptly enter the order, a patient may take a contraindicated drug with potentially dangerous interactions for as long as a week before CPS has an opportunity to check for contraindications.41 Indeed, it is possible for short-course medication orders that are filled from stock, such as antibiotics prescribed for seven days, never to be checked for interactions at CPS.42 As noted by the WDOC’s Pharmacy
37 Eber Decl. ¶ 39, Ex. 510, Holzman Dep. at 34; Eber Decl. ¶ 38, Ex. 509, Meier Pharmacy Dep. at 13-14. 38 Eber Decl. ¶ 39, Ex. 510, Holzman Dep. at 35-36, 61-62; Eber Decl. ¶ 40, Ex. 511, Edwards Dep. at 9195. 39 Eber Decl. ¶ 40, Ex. 511, Edwards Dep. at 91, 94; Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 130-31. 40 Eber Decl. ¶ 39, Ex. 510, Holzman Dep. at 62; Eber Decl. ¶ 40, Ex. 511, Edwards Dep. at 94-95. 41 Eber Decl. ¶ 40, Ex. 511, Edwards Dep. at 94-95. 42 Eber Decl. ¶ 38, Ex. 509, Meier Pharmacy Dep. at 27.
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Transformation Workgroup, this delay in checking for drug interactions carries
significant risk. 43
At CPS, a pharmacist manually enters information from the faxed order form into
the pharmacy management software.44 Errors may occur at this step of the process as
well: the pharmacist may misread the order or simply make a data entry error. After data
entry, the order is filled from the CPS shelves, packaged, and shipped to the TCI HSU.45
Once an order is filled, either from stock or from a delivery from CPS, a nurse
brings the medication to a “med cart” in the patient’s housing unit.46 The delivering
nurse is supposed to handwrite the orders onto the patient’s Medication Administration
Record (hereinafter, “MAR”), which constitutes the instructions to the correctional
officer who will administer the medication to the prisoner.47 Again, errors may occur in
transcribing information from the order to the MAR.
As TCI psychiatrist Dr. Kathleen Schneider lamented, TCI’s medication system
is:
[a] big, cumbersome system, and that whenever pieces have to go from one hand to the next to the next, there – there can be cracks in it. So the order might have been written and then the nurse took it off, and if the nurse didn’t get it to the hard card,48 that would be – there’s a spot there. But let’s say it gets to the hard card, then it’s supposed to go to the pharmacy, there’s a crack there, and then the pharmacy has to get it back, crack – you see what I'm saying? . . . So when there – those [delays] have happened, I don't know that we see a consistent one place as much as there’s just a lot of – it’s a big system. The hope is that we’re going to
43 Eber Decl. ¶ 71, Ex. Burnett-400 at DOC-TCI00278386. 44 Eber Decl. ¶ 40, Ex. 511, Edwards Dep. at 97-98. 45 Id. 46 Eber Decl. ¶ 38, Ex. 509, Meier Pharmacy Dep. at 60-62. 47 Id. at 24-25, 66. 48 A “hard card,” or “Medication Profile,” lists a prisoner’s current medications and is kept in the TCI medication room.
10

move to computerized ordering. I mean, that’s what's on the horizon, so that I would write the order, and then it goes to the pharmacy and then the – so we’re trying to get at that . . . Originally I think it was supposed to be for – maybe even this year, and I think that’s gotten held up.49
B. Common Errors and Consequences.
1. Delays in Processing Medication Orders
A recent WDOC Central Pharmacy “TCI Fax Tracking” audit quantified the delay from the time a prescriber writes an order until TCI faxes that order to CPS.50 Although the audit does not identify the source of the delay, it illustrates the scope of the problem. During a three-month period beginning in February 2008, the average delay between the writing of the medication order until the faxing of the order to Central Pharmacy was 2.73 days, with a maximum of 24 days.51 Dr. Meress, TCI’s physician at the time, testified that the average time from ordering to faxing of the order was “too long,” and agreed that delays of 21 and 24 days were “shocking.”52 Although TCI’s official policy is that medication orders are to be processed within 24 hours,53 delays in practice are clearly much greater.
Susan Stone, J.D., M.D., and Joel Dvoskin, Ph.D., reviewed mental health services at Taycheedah for the U.S. Department of Justice in the summer and fall of 2005.54 These reviewers noted the importance of “[p]rompt response to medication orders
49 Eber Decl. ¶ 37, Ex. 508, Dep. of Dr. Kathleen Scheider-Braus at 153-54. 50 Eber Decl. ¶ 20, Ex. 439. “TCI – Fax Tracking Feb Thru May 2008” (DOC-TCI00318095-8103. 51 Eber Decl. ¶ 20, Ex. 439, “TCI – Fax Tracking Feb Thru May 2008” at DOC-TCI00318095-8103. 52 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 347-48. 53 Eber Decl. ¶ 38, Ex. 509, Meier Pharmacy Dep. at 20-21; Eber Decl. ¶ 82, Ex. Meier-2-02, Taycheedah Procedure No. 5200, “Medications: Processing Physician/Dental Orders” at DOC-TCI00000803. 54 Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 3.
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. . . to prevent worsening of identified psychiatric symptoms.”55 At Taycheedah,
however, they observed “[s]ignificant delays in providing ordered medications. . . . The
source of these serious delays appears to arise from a number of problems in the process of filling medication orders.”56 Nursing shortages contribute to “unconscionable delays, and somewhat flat omissions, in taking orders off the charts for processing;”57 an
“unwieldy and unnecessarily complicated” process at Central Pharmacy adds further
delay; and the processing after a shipment of medications arrives at TCI can also add to the time between ordering and distribution of medications.58 These delays “have caused
real harm in that inmates with severe psychiatric symptoms go untreated or under-treated
for unreasonably long periods of time. This can lead to severe suffering, as well as the potential for dangerous behavior towards themselves or others.”59
Other evidence revealed through discovery further illustrates the scope of these
delays and the serious harm and risk of harm caused by them. The following represent
examples of such delays. Patient L.L.60 According to Medication Incident Report61 No. 05-4262, Patient L.L. was discharged to TCI from a local hospital on March 4, 2005, with a
55 Id. at 26. 56 Id. 57 “Taking orders off the charts” is the manual process of culling orders for medications, lab work, or other procedures and transmitting the information to pharmacy, scheduler, off-site provider, etc. See Eber Decl. ¶ 30, Burnett Dep. at 311-12. 58 Eber Decl. ¶ 18, Ex. 3999, USDOJ Rep’t at 26-27. 59 Id. at 27. 60 Patients herein are referred to by their initials to protect their privacy. 61 Health care staff are supposed to complete Medication Incident Reports when they learn of medication errors. Eber Decl. ¶ 83, Ex. Meier-2-08, WDOC Policy & Procedure 500:16, “Medication Incident Reporting” (DOC-TCI00001368-71); Eber Decl. ¶ 38 Ex. 509, Meier Pharmacy Dep. at 55.
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diagnosis of, among other things, “MRSA sepsis,”62 a systemic infection of the bloodstream.63 MRSA is a communicable and drug-resistant64 infection endemic to institutional settings, including prisons.65 MRSA sepsis is a life-threatening condition.66 L.L. also suffered from lupus, an immune disorder, which made the sepsis even more dangerous.67 Despite the significant danger of serious complications or death for this “critically ill patient,” the prescriber’s order for an antibiotic, Clindamycin, to treat the MRSA sepsis, went unfilled for three days.68 In addition, an order for pain medication was ignored, and the patient’s lupus medication was interrupted, putting her at risk of significant health consequences – including elevated blood pressure and blood sugars – from the abrupt cessation.69 All the physicians who reviewed this medication incident agree that it was a “critical mistake” that could have resulted in death.70
Delays in initiating antibiotics seem particularly common and particularly
troubling. Recognizing that timely treatment of infections is crucial, especially in an
institutional setting where untreated infections can spread quickly, WDOC policy treats
all antibiotic orders for active infections as “STAT” orders to be given to patients
immediately.71 As Dr. Meress testified, the consequences of delays in antibiotics “could
be anything from acne, for example, . . . to something more serious, like a urinary tract
62 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 438-48; Eber Decl. ¶ 41, Ex. 512, Dep. of Dr. Jerry Walden at 543-47; Eber Decl. ¶ 76, Ex. Burnett-423, Medication Incident Report No. 05-4262; Eber Decl. ¶ 77, Ex. Burnett-424, Medical Record excerpt. 63 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 444; Eber Decl. ¶ 41. Ex. 512, Walden Dep. at 545-47. 64 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 444; Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 262. 65 Eber Decl. ¶ 41, Walden Dep. at 397-99; Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 261-62 (TCI’s Dr. Meress agrees that there is a lot of MRSA at TCI). 66 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 444. 67 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 444; Eber Decl. ¶ 11, Ex. 308, Walden Rep’t at 15. 68 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 439; Eber Decl. ¶ 76, Ex. Burnett-423, Medication Incident Report No. 05-4262 (DOC-TCI00029212-13). 69 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 446-47. 70 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 438; Eber Decl. ¶ 76, Ex. Burnett-423, Medication Incident Report 05-4262; Eber Decl. ¶ 11, Ex. 308, Walden Rep’t at 15. 71 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 238, 247-48, Eber Decl. ¶ 15, Ex. 394, DOC Policy & Proc. 800:02 (“Medication Orders”) at DOC-TCI00001291; Eber Decl. ¶ 39, Ex. 510, Holzman Dep. at 59.
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infection that leads to a sepsis.”72 Despite the potentially serious consequences, antibiotic
orders routinely slip through the cracks of TCI’s convoluted system. In one case in early
2008, an antibiotic order went unfilled for 60 days.73 Dr. Meress testified that “the order
was totally missed, and nobody – nobody discovered it,” possibly because of a failure to
flag it for processing.74
Other examples of antibiotic delays include:
Patient J.J.
In May 2008, an order for the antibiotic Flagyl to treat a bacterial infection for J.J. went unfilled for three days. Although a nurse transcribed the order, at some point the order was not conveyed through the manual system and the medication was “not set up and delivered.” The error was detected only when the patient filed a health services request asking about it. Flagyl is commonly used to treat infections of the female reproductive tract or the colon. Delayed treatment of bowel infections can lead to hospitalization.75
Patient J.L.
In November 2007, an order for the antibiotic tetracycline from two months earlier was found unprocessed. A two month delay in an antibiotic, especially when the error was only discovered by coincidence, is, at a minimum, “disconcerting.”76
In addition to the chronic problems of delays in dispensing antibiotics to treat
bacterial infections, the current medication ordering system appears to be unable to
maintain an uninterrupted supply of anti-retroviral medications for patients with HIV.
72 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 371. 73 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 369-71; Eber Decl. ¶ 25, Ex. 446, Medication Incident Report No. 08-10071 (DOC-TCI00318126). 74 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 371. 75 Declaration of Dr. Jerry S. Walden (hereinafter, “Walden Decl.”) ¶ 9; Walden Decl. ¶ 9, Ex. 515, Medication Incident Report No. 0910287 (DOC-TCI00318109). 76 Walden Decl. ¶ 8; Walden Decl. ¶ 8, Ex. 514, Medication Incident Report No. 089668 (DOCTCI00297393).
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For example, in the spring and summer of 2008, Patient M.R., a woman with full-blown
AIDS, repeatedly ran out of her antiretroviral drugs and experienced a delay in another antiretroviral added to her medication regimen.77 The cause of these medication outages appeared to be CPS’s repeated misinterpretation of the medication orders.78 This resulted
in a “significant” increase in her “viral load” (from 325 on June 5, 2008, to 22,711 on
July 24, 2008), “nausea and vomiting, emesis . . . and general malaise,” the classic
symptoms of “acute viral illness type syndrome,” and increased risk of potentially fatal opportunistic infections.79 Dr. Meress testified that TCI had ongoing problems with
delays and outages of HIV medications, which he attributed to “everything we've been
talking about today from that [TCI Fax] audit sheet, how items get from the order to the patient and all the steps it takes to get there.”80
WDOC policy treats medication orders to control intermediate to severe pain as “STAT” orders to be delivered to the patient immediately.81 In practice, however, such orders often take days to fill, resulting in unnecessarily prolonged pain.82 Examples
include:
Patient J.L.
In September 2008, an order for morphine to control the pain of this terminal cancer patient was not initiated for seven days,83 a delay Dr.
77 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 365-69; Eber Decl. ¶ 24, Ex. 445, e-mails relating to Patient M.R. (DOC-TCI00316933-35, DOC-TCI00320320, DOC-TCI00320541). 78 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 366. 79 Id. at 367-68, 363-64. 80 Id. at 368-69. 81 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 247-48; Eber Decl. ¶ 15, Ex. 394, DOC Policy & Proc. 800:02 (“Medication Orders”) at DOC-TCI00001291; Eber Decl. ¶ 39, Ex. 510, Holzman Dep. at 59. 82 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 447 (agrees it is “fair to say” patient “suffered unnecessary pain as a result of not getting her pain meds for three days”); Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 97 (consequence of not receiving ordered Vicodin is “uncontrolled pain”). 83 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 354-57; Eber Decl. ¶ 22, Ex. 442, e-mails relating to Patient
15

Meress, her treating physician, described as “unacceptable”: “This patient has terminal cancer pain and going four hours is unacceptable, much less one week.”84 Dr. Meress and Susan Koon, a nurse supervisor at DOC, questioned where the system broke down and expressed frustration that patient care remained below standard at TCI.85
Patient S.N.
On October 22, 2007, a physician ordered oxycodone to control a prisoner’s “chronic right shoulder pain.” Her shoulder had been injured in an automobile accident. Although the nurse transcribed the order, it was not filled until October 31, 2007, indicating a breakdown in the medication ordering process. Patient S.N. submitted at least two health service requests while waiting for her pain medication. She suffered needlessly for more than a week.86
Patient D.D.
On December 3, 2007, a nurse discovered that a “code 1” order dated November 29 for the muscle relaxant cyclobenzaprine was never filled. The cause of the error appears to be another breakdown in the “convoluted paper-based system” of ordering medications. Patient D.D. has a history of head injury, chronic back pain and muscle spasms from an automobile accident. Once again, the delay harmed the patient, leaving her in unnecessary pain for several days.87
Seizure medications, too, are frequently delayed, as illustrated below:
Patient S.F. On September 27, 2007, a nurse practitioner ordered Dilantin “STAT” to control Patient S.F.’s seizure disorder. However, because the chart was not flagged as stat, the order was not processed immediately and the first dose was missed. The same patient suffered delays in receiving refills on at least two other occasions in early 2008. In one instance, the error again appeared attributable to a problem with flagging or recognizing a flag.
J.L. (DOC-TCI00321205-06). 84 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 356. 85 Id. at 357. 86 Walden Decl. ¶ 10; Walden Decl. ¶ 10, Ex. 516, Medication Incident Report No. 086588 (DOCTCI00297389); Ex. 569, Medical Records excerpt. 87 Walden Decl. ¶ 11; Walden Decl. ¶ 11, Ex. 517, Medication Incident Report No. 089763 (DOCTCI00297408); Walden Decl. ¶ 11, Ex. 573, Medical Records of D.D.
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S.F. suffered a seizure as a result of the error. Repeated seizures can cause lasting neurological damage or injuries from falls.88
Patient K.O.
The abrupt discontinuation caused by a delay in refills of clonazepam, an anti-anxiety drug sometimes used in the management of seizure disorders, contributed to a preventable seizure that required treatment.89
Breakdowns in the medication ordering system lead to frequent delays in critical
psychiatric medications as well, as the following cases illustrate:
Patient S.M.
In April 2007, an error in dispensing medications from stock resulted in S.M. not receiving four doses of oral Prolixin, a “powerful antipsychotic medication.”90 This error resulted in significant patient harm: “escalating” acute psychosis, which required placement in an observation cell and an emergency injection of intramuscular Prolixin to stabilize the patient.91
Patient T.P.
In May 2008, a psychiatrist discovered that her April order for Vitamin E, to be taken with the patient’s antipsychotic medication, had not been entered into CPS’s computer. Some psychiatrists use Vitamin E to treat tardive dyskinesia, a common side effect of antipsychotic medications. Deficiencies in the vitamin can also affect mood. According to the prescriber, the delay in Vitamin E resulted in T.P. stopping her antipsychotic medications, which harmed her. A lapse in antipsychotic medication for this length of time can lead to a relapse of psychotic symptoms that interfere with daily living or even to hospitalization for a
88 Walden Decl. ¶ 12; Walden Decl. ¶ 12, Ex. 518, Medication Incident Report No. 08-6501 (DOCTCI00297379), Ex. 519, Inmate Complaint Reports. 89 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 68-71; Eber Decl. ¶ 12, Ex. 366. Medication Incident Report No. 02-2916 (DOC-TCI00276910). 90 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 350-51; Eber Decl. ¶ 21, Ex. 440, Medication Incident Report No. 6182 (DOC-TCI00138185-88). 91 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 351-52.
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breakdown.92
Patient M.W.
In January 2008, a “loose order sheet” resulted in a seven-day delay in an order to increase the dosage of M.W.’s antidepressant. M.W.’s psychiatric problems were sufficiently serious that she was housed in the Monarch Unit, which provides more intense programming for the severely mentally ill. A delay of this sort leaves a patient suffering unnecessary symptoms and may actually worsen the depression and exacerbate feelings of hopelessness caused by taking a sub-therapeutic dose that the patient expects to have some positive effect.93
The failures of the ordering system result in delays of other important medicines
prescribed to the women at Taycheedah, as the following examples show.
Patient P.H.
On April 23, 2008, laboratory results showed a low thyroid hormone level for P.H., which led a nurse to review medication orders in the chart. The chart revealed a code 1 order for Synthroid (levothyroxine) on April 9, 2008, which was apparently not processed as a code 1 order, resulting in a significant delay in the P.H.’s thyroid treatment. Synthroid requires careful dosing to avoid over- and under-treatment. The patient’s thyroid level on April 23 suggests she may have been under-treated even before April 9. Poor control of thyroid levels can adversely affect cardiovascular function, bone metabolism, gastrointestinal functioning, glucose and fat metabolism, and emotional stability.94
Patient S.H.
On November 15, 2007, ferrous gluconate was ordered to treat S.H.’s anemia, but the order was not filled until November 27, 2007. S.H. had heavy menstrual periods, which may account for her anemia. A nursing evaluation on November 22 noted that S.H. was “cold, weak, light headed [and] tired.” These are common symptoms of significant anemia, which
92 Walden Decl. ¶ 15; Walden Decl. ¶ 15, Ex. 520, Medication Incident Report No. 0910285 (DOCTCI00318107). 93 Walden Decl. ¶ 17; Walden Decl. ¶ 17, Ex. 521, Medication Incident Report No. 08-9861 (DOCTCI00318140). 94 Walden Decl. ¶ 16; Walden Decl. ¶ 16, Ex. 522, Medication Incident Report No. 08-10075 (DOCTCI00318122).
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can also result in fainting and injury.95
Patient J.L. On April 3, 2008, a provider prescribed Zofran to cancer patient J.L. to control the nausea and vomiting caused by her chemotherapy drugs. However, J.L. did not receive the Zofran until April 29, 2008.96 As a result of this delay, the patient suffered nausea that likely would otherwise have been controlled by the Zofran.97 Delays in receiving ordered medications, including refills, are chronic and
ongoing. From December 2007 through February 2008, a correctional officer in the
Harris unit, which houses many of the older and sicker prisoners at TCI, repeatedly filed
incident reports about multiple prisoners running out of medications that had been reordered at least a week before.98 Dr. Meress, who was not made aware of these refill
delays at the time, testified at his deposition that outages of several of the medications
identified in the incident reports gave him particular concern: stoppage of one patient’s
temazepam could result in seizures; abrupt cessation of another’s metoprolol could result
in cardiac arrhythmias and even sudden death; and a stoppage of a third patient’s quetiapine could also cause arrhythmias.99
95 Walden Decl. ¶ 14; Walden Decl. ¶ 14, Ex. 523, Medication Incident Report No. 089679 (DOCTCI00297404); Walden Decl. ¶ 14, Ex. 524, Health Service Request dated November 22, 2007 (DOCTCI00325125). 96 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 359-61; Eber Decl. ¶ 23, Ex. 443, Medication Incident Report No. 08-10073 (DOC-TCI00318124). 97 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 360-61. 98 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 288-292; Eber Decl. ¶ 19, Ex. 435, Incident Report No. 984174 (DOC-TCI00298176-77), Incident Report No. 1139264 (DOC-TCI00298002-03), Incident Report No. 984190 (DOC-TCI00297956), and Incident Report No. 1139247 (DOC-TCI00297793). 99 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 292-95.
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2. Errors in Processing Medication Orders
In addition to the processing delays illustrated above, TCI’s convoluted, paper-
based system also results in outright errors in the medications prisoners receive. CPS
frequently fails to send the proper quantity of an ordered drug, which can result in
patients running out of necessary medications prematurely.100 Astoundingly, the
medication room nurse at TCI admitted that CPS sends fewer pills than ordered “50
percent of the time.”101 As another, particularly dangerous, example, the existing system
predictably fails to check for drug interactions, which can result in a prisoner receiving
contraindicated medications.102
The ordering system has resulted in patients receiving excessive doses of their
medications:
Patient C.C.
In January 2008, a provider ordered oxycodone, a powerful painkiller with abuse potential, to control C.C.’s pain from end-stage liver disease.103 However, C.C. received 45 milligrams, rather than the 15 milligrams ordered, (i.e., “three times the dose”), which Dr. Meress testified can lead to “excessive sedation” and falls.104 Dr. Meress attributed this error to CPS, because the pill dosage at the unit was not what was ordered, suggesting that either the fax was unclear or the pharmacist manually entered the dosage incorrectly.105
100 Eber Decl. ¶ 39, Ex. 510, Holzman Dep. at 41-47. 101 Eber Decl. ¶ 39, Ex. 510, Holzman Dep. at 42. Between ten and twenty percent of the time, the medication nurse must submit three requests to CPS before receiving the correct quantity of pills. Id. at 4647. 102 See, e.g., Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 130 (knows of instances of patients at TCI taking contraindicated drugs). 103 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 387-390; Eber Decl. ¶ 28, Ex. 452, Medication Incident Report No. 08-9865 (DOC-TCI-00318136). 104 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 388-89. 105 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 389-90.
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Breakdowns in the ordering system can also result in patients receiving lower
doses than required to treat their conditions:
Patient A.F.
On July 31, 2007, Dr. Meress discovered that a May 25, 2007 order to increase A.F.’s dose of metoprolol, a blood pressure medication, was never initiated.106 Dr. Meress detected the error only when he noted an elevated blood pressure reading recorded in A.F’s chart.107 The consequences of receiving a low dose of blood pressure medication include “increased risk of significant hypertension,” which may lead to “[a]nything from headache to chest pain to a variety of symptoms, all the way to an acute neurologic event, including stroke or death.”108
Stop dates on orders for short courses of medication are sometimes missed,
resulting in prisoners taking medications for longer than appropriate. For example:
Patient N.G.
On November 28, 2007, a nurse practitioner ordered a one-week course of Ditropan (oxybutynin) to control N.G.’s urinary incontinence.109 However, N.G. received 120 pills and continued to take them for two months, until January 29, 2008, when the prescriber discovered the error.110 The potential consequences of this error included painful urinary retention and xerostomia.111
The medication ordering system also results in prisoners receiving the
wrong medication to treat an illness or injury:
Patient H.S.
106 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 371-73; Eber Decl. ¶ 26, Ex. 447, Medication Incident Report No. 6370 (DOC-TCI00297321). 107 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 372. 108 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 372-73. 109 Eber Decl. ¶ 35, Ex. 506, Atkinson Dep. at 136-37; Eber Decl. ¶ 10, Ex. 304, Medication Incident Report No. 08-9866 (DOC-TCI00297427). 110 Eber Decl. ¶ 35, Ex. 506, Atkinson Dep. at 137-38. 111 Eber Decl. ¶ 35, Ex. 506, Atkinson Dep. at 137.
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In August 2007, a nurse practitioner ordered Keflex, an antibiotic, for H.S., but the pharmacy sent ciprofloxacin, a different antibiotic. Ciproflaxin is contraindicated for patients taking certain psychiatric medications, including Geodon. It can lead to heart arrhythmias, which can be fatal. H.S. was taking Geodon and took two doses of the contraindicated ciprofloxacin.112
When one of the many manual steps in the medication ordering process goes
awry, patients can even receive medications to treat disorders they do not have:
Patient J.A.
In November 2007, a thyroid medication, thyroxine, was manually written on a medication administration record for J.A., who did not have a thyroid disorder.113 As a result, the prisoner “received a huge dose of Thyroxine, which is used for [hypo]thyroidism, for five days when she didn’t even have the medical condition.”114 Such an error can cause cardiac arrhythmias.115 Although this patient did not suffer heart complications, she did get “very sick” and had to be “closely monitored for about three weeks after.”116
Patient L.C.
In another incident, L.C. was given Metformin, a medicine that lowers blood sugar.117 However, Patient L.C. did not have diabetes, and no order for Metformin appeared in her medical record.118 It appears that a nurse erroneously transcribed the order for this medication from the order sheet onto the patient’s medication administration record.119 Giving Metformin to a person who does not have diabetes could “lower their blood sugar to a
112 Walden Decl. ¶ 18; Walden Decl. ¶ 18, Ex. 525, Medication Incident Report No. 6416 (DOCTCI00297368); Walden Decl. ¶ 18, Ex. 526, Medical Record Excerpt for Patient H.S. (DOCTCI00173443). 113 Eber Decl. ¶ 35, Ex. 506, Atkinson Dep. at 133-36; Eber Decl. ¶ 9, Ex. 303, Medication Incident Report No. 08-9859 (DOC-TCI00297420). 114 Eber Decl. ¶ 35, Ex. 506, Atkinson Dep. at 134. 115 Eber Decl. ¶ 35, Ex. 506, Atkinson Dep. at 135. 116 Eber Decl. ¶ 35, Ex. 506, Atkinson Dep. at 136. 117 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 81-83; Eber Decl. ¶ 13, Ex. 370, Medication Incident Report No. 04-3626 (DOC-TCI00277328-32). 118 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 81-82. 119 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 82-83.
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dangerous level,” “which could cause the person to “go into a coma and they could potentially die.”120
Another common error involves the failure to “hold,” or temporarily stop, a medication:
Patient J.G.
In March 2007, a provider discovered that J.G. had an elevated phenytoin (Dilantin) level.121 The nurse practitioner ordered that the phenytoin, a seizure medication, be put on hold.122 However, the hold order was not implemented, so the prisoner continued to take the medication. She became “toxic,” meaning that she could “go into a stupor or coma state.”123
Orders for changes in medications are also frequently erroneously transmitted or
implemented because of break downs in the system:
Patient S.B.
In May 2008, an order to increase Lamictal, a seizure medication sometimes also prescribed for psychiatric patients, was never carried out, because the system “broke down.” This failure to increase Lamictal was an important error, because, at the same time, another seizure medication was being tapered, so S.B.’s seizure disorder was likely under-medicated. The prisoner ended up being hospitalized, possibly due to the medication error.124
120 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 83. In a similar incident, a patient who did not have diabetes received insulin. (Id. at 88-90; Eber Decl. ¶ 14, Ex. 371, Medication Incident Report No. 05-3865 (DOCTCI00277378-81)). 121 Eber Decl. ¶ 35, Ex. 506, Atkinson Dep. at 121-26; Eber Decl. ¶ 8, Ex. 301, Medication Incident Report No. 5998 (DOC-TCI00029160-73). 122 Eber Decl. ¶ 35, Ex. 506, Atkinson Dep. at 122. 123 Eber Decl. ¶ 35, Ex. 506, Atkinson Dep. at 122-23. 124 Walden Decl. ¶ 19; Walden Decl. ¶ 19, Ex. 527, Medication Incident Report No. 0910288 (DOCTCI00318110).
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C. Defendants’ Knowledge of the Danger.
Defendants have long known of the extensive delays and errors caused by WDOC’s rickety medication ordering process. A 2002 report by the National Commission on Correctional Health Care (NCCHC) noted the delays inherent in WDOC’s manual medication ordering system.125 At least as early as summer 2005, the previous pharmacy director, Larry Edwards, produced quarterly medication error graphs, which were presented to the Pharmacy & Therapeutics Committee, of which Defendants David Burnett, Kevin Kallas and Steven Meress were members.126 These graphs identified the number of medication errors, broken down by the “process step” at which the error occurred.127 Dr. Burnett testified that he understood these graphs to show that the greatest number of medication errors occurred in the “transcription” and “administration” process steps, that transcription errors are those that involve “taking off orders or transcribing them” incorrectly at the HSU or problems with “interpretation or legibility” at Central Pharmacy, and that a direct prescriber ordering system should make such transcription errors “plummet.”128
125 Eber Decl. ¶ 68, Ex. 568, National Commission on Correctional Health Care, “A Comprehensive Assessment of Medical Care in the Wisconsin State Prison System” (Draft) (hereinafter, “NCCHC 2002 Rep’t”) at 74-75, 210-11. 126 Eber Decl. ¶ 72, Ex. Burnett-401, Prescriber & Therapeutic Committee minutes for October 19, 2005 and attached medication error graphs (DOC-TCI00276087, DOC-TCI00276135-42, DOC-TCI0027620810); Eber Decl. ¶ 72, Ex. Burnett-402, Prescriber & Therapeutic Committee minutes for July 26, 2006 and attached medication error graphs (DOC-TCI00275990-6009). 127 Eber Decl. ¶ 72, Ex. Burnett-401 at DOC-TCI00276138, DOC-TCI00276142, DOC-TCI00276210; Eber Decl. ¶ 73, Ex. Burnett-402 at DOC-TCI00275996-99. 128 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 332-33.
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Similarly, a “Pharmacy Turnaround Audit” by Mr. Edwards as far back as late 2005 revealed not only delays in the processing of medications at CPS, but also routine delays of several days between the writing and faxing of orders from TCI.129
Stone and Dvoskin’s report for U.S. D.O.J. in late 2005 alerted Defendants that delays and errors in the medication processing system at TCI caused harm and posed substantial risks to TCI prisoners taking psychiatric medications.130 Consultants to the PTW quickly identified changes to the pharmacy ordering process as a priority.131
Moreover, Defendants’ own clinicians complained to Defendants and others at WDOC about serious delays and errors resulting from the medication ordering process. Nurse Practitioner Dawn Atkinson testified that she thought “the greatest problem with medication errors at TCI . . . was that one nurse took off the order, another one had to write it on the med sheet, and it went to the med nurse.”132 She raised these concerns with Dr. Burnett at her annual performance evaluation, probably by 2006.133 She even suggested alternative approaches that appeared to work at other WDOC institutions.134 NP Atkinson’s frustration with medication problems was a major factor in her leaving a job she had once considered her “calling.”135
129 Eber Decl. ¶ 42, Ex. 528, “Pharmacy Turnaround Audit” at DOC-TCI00278597-98. 130 Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 26-27. 131 See, e.g., Eber Decl. ¶ 71, Ex. Burnett-400 at DOC-TCI00278407, DOC-TCI00278411, DOCTCI00278415 (TMG “Central Pharmacy Facilitation Project Findings” March 2007). 132 Eber Decl. ¶ 35, Ex. 506, Atkinson Dep. at 138. 133 Eber Decl. ¶ 35, Ex. 506, Atkinson Dep. at 138. 134 Eber Decl. ¶ 35, Ex. 506, Atkinson Dep. at 139-140. 135 Eber Decl. ¶ 35, Ex. 506, Atkinson Dep. at 148, 153-55, 162-64.
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Similarly, TCI psychiatrist Kathleen Schneider informed Defendant Kevin Kallas of her concerns over the “many” medication errors she encountered.136 Despite a reduction in certain “dangerous” errors (in which officers gave patients the wrong medications) after nurses began to distribute medications on the Monarch Unit, Dr. Schneider described to Dr. Kallas a frequency of medication errors – particularly outages of medications – that remained at a “nonacceptable level” in early 2008 and expressed her “baffle[ment] . . . that this system cannot get buttoned down.”137 Dr. Kallas testified that “I am aware that the Bureau of Health Services administration and the Health Service Unit managers at Taycheedah are aware that there are ongoing issues with medication orders.”138
Defendant Steven Meress, too, has long been aware that the medication process at TCI (and within WDOC generally) creates unacceptable delay and errors.139 Dr. Meress recalled Lori Alsum, a former assistant manager of the TCI HSU, bringing problems with the medication system to the Defendants’ attention in 2005 or 2006.140
D. Defendants’ Failure to Reduce the Risk.
The medication ordering system requires an immediate overhaul because prisoners remain at an unacceptable risk of serious harm. Defendants know that implementation of a computerized prescriber order entry (CPOE) system should cause
136 Eber Decl. ¶ 78, Ex. Kallas-250, e-mail from Schneider to Kallas; Eber Decl. ¶ 34, Ex. 505, Kallas Dep. at 334-37. 137 Eber Decl. ¶ 34, Ex. 505, Kallas Dep. at 335-36. 138 Eber Decl. ¶ 34, Ex. 505, Kallas Dep. at 337. 139 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 114-115, 124-26. 140 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 131-32.
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delays and errors that result from the current paper ordering system to “plummet.”141
WDOC expects implementation of a CPOE system to be relatively inexpensive and to save money in the long run.142
Despite the known advantages, Defendants have not taken meaningful steps
toward implementation of a CPOE system at TCI, at least in part because it has not been made a high enough priority for the WDOC’s Bureau of Technology Management.143
Moreover, Defendants currently plan to phase in the CPOE system by first having
providers at all WDOC institutions begin using CPOE for refills and reorders, before any
institution would start using CPOE for new orders. Thus, TCI would be left relying on
the present, error-prone manual system for new medications for an indefinite period of time.144 This will leave members of the plaintiff class at an unacceptable and ongoing risk
of harm for the foreseeable future, particularly because TCI has even more problems in the absence of CPOE than other Wisconsin correctional facilities.145 Defendants also
have failed to adopt procedures that appear to have allowed some other WDOC institutions to experience fewer medication problems, even without CPOE.146
CPOE may not be a cure-all147 or even the only means of reducing the dangerous
delays and errors bedeviling TCI’s current medication ordering system, but that archaic
141 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 244-45, 332-33. 142 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 245-46. 143 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 326-28. 144 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 329-30. 145 Eber Decl. ¶ 73, Ex. Burnett-402 at DOC-TCI00276008-09 (graph depicting smaller number of medication errors at most other WDOC institutions). 146 Eber Decl. ¶ 35, Ex. 506, Atkinson Dep. at 138-40 (describing better medication process at Kettle Moraine Correctional Institution). 147 For example, medication orders from off-site providers are frequently delayed under the current system. Such orders would need to be promptly and accurately entered into the CPOE by available TCI staff at the time the patient returns from the off-site medical visit. Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 373-77
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and convoluted system must change and change quickly. The substantial risk of serious harm facing the women at TCI under the current system is intolerable. Because Defendants have been unable or unwilling to act expeditiously to abate the risk, this Court must order them to do so.
II. MEDICATION DISTRIBUTION BY CORRECTIONAL OFFICERS.
Few issues in prison litigation elicit near unanimity of opinion. The danger of having correctional officers administer medications to prisoners is one of those issues. The overwhelming majority of the parties’ medical, psychiatric, and nursing experts agree that current medication administration practices at Taycheedah place prisoners at significant risk. As Dr. Lambert King, one of Plaintiffs’ experts, observed, “[a]ny community-based health facility that relied on its security staff to deliver and document administration of prescription medications would not be accredited or permitted to continue to treat patients.”148 The record is unequivocally clear: Defendants have known about these dangers for several years but have done little to remedy this “atavistic and dangerous departure from acceptable standards of patient care.”149
Currently, officers administer medications to prisoners in five out of TCI’s seven housing units. In August 2006, TCI initiated a “pilot program” whereby Licensed Practical Nurses (LPNs), supervised by a Registered Nurse (RN), administer medications to prisoners in the Segregation and the Monarch Mental Health units.150 In the
(relating incident in which medications ordered by hospital for patient with chronic renal failure, hypertension and chest pain were not promptly processed on her return and noting it was not clear whether nursing staff would have access to CPOE to immediately initiate off-site orders); Eber Decl. ¶ 27, Ex. 448. 148 Eber Decl. ¶ 81, Ex. King-01, King Rep’t at 9. 149 Id. 150 Eber Decl. ¶ 43, Ex. 529, Wisconsin Women’s Correctional System Annual Report 2007 at 17 (DOC-
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remaining housing units, however, officers bear sole responsibility for simultaneously
maintaining order, determining which medications to give to which prisoners, and
managing a cart full of blister-packed pills and paperwork.
Officers routinely administer wrong doses to the wrong prisoners at the wrong
times and improperly memorialize the transaction on a document that will ultimately
become part of the prisoner’s permanent medical record. It is a dangerous practice that
must be stopped immediately. The danger arises in two primary areas: (1) the actual
administration of the medication to the prisoner; and (2) the documentation of the dose on
the prisoner’s Medication Administration Record (MAR).
A. Correctional Officers Cannot Safely Administer Medications.
The administration of medication to patients is a nursing function that should be reserved for trained nursing staff.151 One would not expect hospital security staff, no
matter how professional, to distribute pills to hospital patients. The reasons are myriad.
WDOC’s own 2006 self-assessment provides a succinct statement of the problem:
Risk management is an ongoing concern of the Department with the current practice of correctional officers distributing controlled medications throughout the correctional system. Officers do not have the clinical training to recognize the various medications by name, their uses, potential and actual side effects, and whether or not the medications are effective and being properly taken (such medications include psychotropics, narcotics, and other classifications of drugs).152
Dr. Jeffrey Metzner, who was hired as a consultant pursuant to a settlement agreement
between the United States Department of Justice and WDOC, believes that officers
TCI00301138); Eber Decl. ¶ 38, Ex. 509, Meier Pharmacy at 70. 151 Declaration of Madeleine LaMarre (hereinafter, “LaMarre Decl.”) ¶¶ 8, 15; Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 13; Eber Decl. ¶ 7, Ex. 202, Rep’t of Dr. Robert Greifinger at 8. 152 Eber Decl. ¶ 17, Ex. 398, WDOC Status Report & Plans 2006 at 30.
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should not be distributing medications and that the practice can impair the effectiveness
of medical treatment.153 Even named defendant Dr. Steven Meress, the senior TCI
physician, agrees: “I just feel that a skilled medical professional should be distributing
medications.”154
1. A Knowledge Deficit with Potentially Fatal Consequences.
a. Officers Lack Knowledge of Therapeutic Effects, Side Effects, and Dosing.
Knowledge of the intended therapeutic use, side effects profile, and proper dosing
of a given medication is critical to ensuring patient safety.155 Correctional officers lack
sufficient training and knowledge to understand why a medication is prescribed and the
side effects of that medication. 156 As one Sergeant freely acknowledged, “[i]f an inmate
asks me what this med’s for, I tell them they need to write the person who prescribed it
and ask them what it’s for, because I do not know what their medication is for.” 157
Officers do not understand proper dosing and are unable to determine if the quantity of
pills they dispense represents a toxic dose.158 Similarly, officers receive no training in
153 Eber Decl. ¶ 44, Ex. 530, BHS Strategic Plan (excerpt). 154 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 323. 155 LaMarre Decl. ¶ 8. 156 Eber Decl. ¶ 45, Ex. 531, Dep. of Madeleine LaMarre at 236, 246; Eber Decl. ¶ 46, Ex. 532, Dep. of Sgt. Denise Camp at 68-69; Eber Decl. ¶ 47, Ex. 533, Dep. of Lt. April Albertson at 22, 24 (no training or knowledge of therapeutic effects, contraindications, toxicity, or medication interactions); Eber Decl. ¶ 48, Ex. 534, Dep. of Officer Wendy Peterson at 31-32 (no training provided and little or no knowledge of side effects, toxicity, therapeutic effects or contraindications of medications); Eber Decl. ¶ 68, Ex. 568, NCCHC 2002 Rep’t at 138; Eber Decl. ¶ 49, Ex. 535, Legislative Audit Bureau, “Prison Health Care: An Evaluation” (hereinafter, “LAB Report”) at 46; Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 13. 157 Eber Decl. ¶ 50, Ex. 536, Dep. of Sgt. Elizabeth Vandestreek at 53. 158 Eber Decl. ¶ 48, Ex. 534, Peterson Dep. at 31-32; Eber Decl. ¶ 50, Ex. 536, Vandestreek Dep. at 55; Eber Decl. ¶ 46, Ex. 532, Camp Dep. at 50-51 (no training on how to recognized which doses are toxic); Ex. 531, LaMarre Dep. at 246 (officers cannot recognize “proper dosage ranges”). See also Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 389-90 (Officers unlikely to recognize dosing error involving narcotic pain
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and do not understand tapered dosing.159 Due to their knowledge deficit, officers are
unable to answer basic patient questions about medications. As another Sergeant
observed, “[officers] might be asked by the inmates what are the side effects. We don’t
know that stuff. And they’ll ask me, and I’ll laugh, ‘I can’t even pronounce it, how
would I know a side effect?’” 160
Two of the highest-ranking medical officers in the WDOC system – both named
as defendants in this action – agree that officers are underequipped to address
medication-related problems or side effects.161 Defendants’ psychiatry and psychology
experts echo Plaintiffs’ psychiatry expert in concluding that officers lack the knowledge
to provide basic medication counseling functions such as inquiring after a patient’s
progress or addressing the concerns of “ambivalent” patients.162 Similarly, officers are
unable to clinically observe and assess side effects and reactions.163 Nor can officers
determine whether observed symptoms are due to medication side effects or an
independent illness.164
The consequences of this knowledge deficit can be life-threatening. United States
Department of Justice investigators Drs. Susan Stone and Joel Dvoskin give the example
killer). 159 Eber Decl. ¶ 50, Ex. 536, Vandestreek Dep. at 66; Eber Decl. ¶ 46, Ex. 532, Camp Dep. at 51 (no training on tapered dosing). 160 Eber Decl. ¶ 46, Ex. 532, Camp Dep. at 68-69. 161 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 295-96; Eber Decl. ¶ 34, Ex. 505, Kallas Dep. at 324. 162 Eber Decl. ¶ 6, Ex. 165, Rep’t of Dr. Robert Rawski at 18; Eber Decl. ¶ 51, Ex. 537, Dep. of Dr. Thomas Powell at 242-43 (security staff cannot address medication concerns); Eber Decl. ¶ 5, Ex. 129, Rep’t of Dr. Kenneth Robbins at 5; Eber Decl. ¶ 52, Ex. 538, Dep. of Dr. Kenneth Robbins at 125, 127-28. 163 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 295-96; Eber Decl. ¶ 51, Ex. 537, Powell Dep. at 242-43; Eber Decl. ¶ 5, Ex. 129, Robbins Rep’t at 5; Eber Decl. ¶ 52, Ex. 538, Robbins Dep. at 125. See also Eber Decl. ¶ 53, Ex. 539, Kallas e-mail (DOC-TCI00049526-27) (ability of nurses to triage urgent health issues during a medication pass is an example of the value of having increased nursing presence on the units during med administration.) 164 Eber Decl. ¶ 87, Ex. Ottolini-252, Rep’t of Madeleine L. LaMarre at 17.
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of an “oculogyric crisis,” a side effect of some initial doses of antipsychotic medications
that can cause a patient’s eyes to roll back in her head, paralyze her airway, and result in
suffocation. They similarly note that patients who abruptly discontinue long-term
treatment with tranquilizer medications may suffer seizures and potentially fatal
withdrawals.165 Many patients at TCI take these medications, making the officers’
overall ignorance of side effects particularly dangerous.
The following examples illustrate the risks and consequences of delegating the
administration of medications to officers who lack even a basic understanding of the
medications they dispense:
Patient J.J.
On May 30, 2006, a correctional officer noticed that Patient J.J.’s MAR had two separate entries for Geodon, an antipsychotic medication. The first entry specified a dose of 80mg twice per day; the second entry specified 40mg twice per day. Upon consultation with a nurse, the officer learned that the 2x80mg order should have been discontinued when the 2x40mg order was started on May 24, 2006. Regrettably, this did not happen. From May 24 to May 30, the patient received both orders, equaling a total daily dose of 240mg. The maximum daily dose for this medication is 160mg. 166 This error was life-threatening.167 This six-day overdose put the patient at increased risk of side effects such as bradycardia (slowed heart rate), life-threatening arrhythmia, respiratory disorders, drops in orthostatic blood pressure (which can cause falls), and extrapyramidal side effects such as spasms and tics. A trained nurse would not have taken six days to realize that 240 mg is a potentially toxic dose. Compounding the risk is the fact that J.J. was also taking Haldol, another antipsychotic medication that requires careful monitoring when co-administered with Geodon. 168
Patient K.F.
165 Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 13. 166 Walden Decl. ¶ 23, Ex. Meier-2-11 (DOC-TCI00023485-90). 167 Eber Decl. ¶ 81, Ex. King-01, King Rep’t at 10. 168 Walden Decl. ¶ 23, Ex. Meier-2-11, Incident Report No. 1123238 (DOC-TCI00023485-90).
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In one recent Incident Report, a nurse expressed her frustration with an officer’s knowledge deficit and the resulting clinical consequences. On April 15, 2008, Patient K.F. arrived at the Health Services Unit (HSU) with exacerbated extrapyramidal symptoms (EPS). These symptoms typically include involuntary muscle spasms and jerking movements, uncontrolled muscle contractions, and vocal tics. EPS are common but serious side effects of many antipsychotic medications and are frequently kept in check by co-administering the medication benztropine (Cogentin). According to the report, K.F. recognized that she needed a dose and requested one from an officer. The officer said he could not locate the medication and took no further action to locate the medication or seek medical advice. The nurse wrote that these symptoms can “sometimes lead to severe problems and even death.” The officer’s failure to understand the importance of the benztropine and the consequences of ignoring K.F.’s serious medical needs caused “adverse and extremely uncomfortable symptoms.”169 As this example clearly demonstrates, nurses are able to recognize side effects such as EPS and to understand the importance of seeking prompt medical treatment to prevent their escalation. Correctional Officers are unable to do so.
Patient D.N.
According to an Incident Report dated June 24, 2006, a correctional officer brought Patient D.N. to be medically evaluated for complaints of “burning stomach pain.” While a nurse performed an assessment, the officer observed that D.N. had not received her Protonix for three days. The nurse explained that Protonix is a stomach medication that had been prescribed by an off-site surgeon.170 D.N.’s medical record indicates that she had been hospitalized that month for a perforated gastric ulcer with a fistula.171 Protonix (pantoprazole) is a proton pump inhibitor used to treat gastrointestinal diseases and to prevent further gastric erosion of gastrointestinal tract tissue. The nurse thus recognized that the medication outage was connected to D.N.’s symptoms. A prolonged outage of Protonix could have caused additional damage to D.N.’s gastrointestinal tract, resulting in a need for rehospitalization or possibly surgical treatment. The provider who completed the resulting Medication Incident Report emphatically noted that “These types of errors must be stopped.”172
Patient M.L.
169 Walden Decl. ¶ 20, Ex. 540, Incident Report No. 1029455 (DOC-TCI00315971-72). 170 Walden Decl. ¶ 21, Ex. 541, Incident Report No. 1124027 (DOC-TCI00023912-16). 171 Walden Decl. ¶ 21, Ex. 542, Medical Records of D.N. (DOC-TCI00333851). 172 Walden Decl. ¶ 21, Ex. 541, Medication Incident Report No. 07-5302 (DOC-TCI00028825-27).
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On July 25, 2006, a correctional officer noted that Patient M.L. had been out of three of her four medications since July 21.173 According to the MAR attached to the Incident Report, one of these medications was thiothixene, which is used to treat psychosis. The correctional officer’s delay of four days before noticing and/or taking action to obtain this medication put M.L. at risk of harm. Thiothixene, in particular, must not be discontinued abruptly. A nurse would have had the knowledge and skills to recognize the danger and take appropriate action. Correctional officers are unfamiliar with the therapeutic uses of medications. Thus, officers are unable to recognize the consequences of misadministration or unintended discontinuation.
While some medication-related reference materials are made available to officers,174 such information is no substitute for medical training.175 Even additional
training for officers would fail to alleviate the risks they pose by administering
medications. Within the past nine months, WDOC conducted in-service training for TCI
correctional officers involved in medication administration. The BHS Medical Director believes the training probably lasted approximately half a day.176 Training presentations
such as those given to correctional officers ask attendees to rapidly absorb important but
highly technical pharmacological and toxicological principles, including: (1) akathisia,
dystonia, and tardive dyskinesia are reportable neurological adverse reactions to
antipsychotic medications; (2) side effects and adverse reactions implicating the
autonomic nervous system include dizziness, urinary hesitancy, and blurred vision; (3)
Baclofen and cyclobenzaprine have side effects and adverse reactions that affect the
somatic nervous system; (4) the antiviral medication amantadine may cause dizziness,
lightheadedness, and insomnia but the antiviral medication ritonavir is more likely to
173 Walden Decl. ¶ 22, Ex. 570, Incident Report No. 1124405 (DOC-TCI00024222-24). 174 Eber Decl. ¶ 50, Ex. 536, Vandestreek Dep. at 52-53. 175 Eber Decl. ¶ 87, Ex. Ottolini-252, LaMarre Rep’t at 17. 176 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 280-81.
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cause nausea, weakness, and diarrhea; and (5) the therapeutic effects of methylphenidate and similar medications vary depending on the patient’s psychiatric diagnosis.177 Presenting such advanced information to non-medical personnel is of limited benefit. Even Dr. Burnett, the BHS Medical Director and a named defendant, envisions a full semester of health care training in addition to a hundred hours of specialized medicationrelated training as the minimum level of education desirable for personnel responsible for administering medications.178 Providing officers with additional training of dubious value will do little to improve patient safety. 179
b. Officers Lack Knowledge of Medication Interactions. Officers routinely administer potentially dangerous psychotropic drugs, potent prescription pain killers, benzodiazepine tranquilizers, anticonvulsants, and other medications with the capacity to cause great harm or even death if given incorrectly. Dosing schedules are frequently complex and a significant proportion of prisoners take more than one – and often up to seven or eight – different medications during the four daily medication passes. Many of these medications interact with one another. Even when the correct dose of the correct medication is administered to the correct prisoner, synergistic interactions can place patients at risk of serious adverse consequences. Correctional officers openly admit that they lack the knowledge and training to recognize such dangerous interactions. As one Sergeant remarked, “I don’t know how
177 Eber Decl. ¶ 54, Ex. 543, Medication Training PowerPoint excerpt. 178 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 298. 179 Eber Decl. ¶ 81, Ex. King-01, King Rep’t at 9; Eber Decl. ¶ 45, Ex. 531, LaMarre Dep. at 236; Eber Decl. ¶ 52, Ex. 538, Robbins Dep. at 127-28.
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one medication reacts with the other medication. You know, if there’s some that would react wrong, I wouldn’t know and I’d be giving it to the inmate. If it’s on their sheet, I’d give it to them.”180 Another Sergeant testified that “I can’t pronounce most of them. I don’t know anything about a med.”181 Officers receive little, if any, training on medication interactions and contraindications.182 One Lieutenant e-mailed her superiors directly with the observation that officers lack the training and knowledge to distribute and document medications.183
Nurses, in contrast, are trained to identify drug interactions and take appropriate measures.184 Accordingly, nurses can provide a final safety net for TCI’s unsafe and problem-ridden medication management system.185 For example, there is little chance that a correctional officer would recognize that taking the commonly-prescribed antibiotic Bactrim together with the commonly prescribed anticoagulant Coumadin could have fatal consequences.186 A nurse, however, could spot the potential problem and verify the order with the prescriber. As one officer recognized, “[t]he nurses can look at all the meds one inmate takes and if they clash with each other, she would know that. I wouldn’t know that.”187 In the unlikely event that an officer were aware of the potential interaction described above, he or she would be unlikely to recognize the two
180 Eber Decl. ¶ 50, Ex. 536, Vandestreek Dep. at 47-48. 181 Eber Decl. ¶ 46, Ex. 532, Camp Dep. 90, 93. 182 Eber Decl. ¶ 47, Ex. 533, Albertson Dep. at 22-25; Eber Decl. ¶ 48, Ex. 534, Peterson Dep. at 32; Eber Decl. ¶ 46, Ex. 532, Camp Dep. at 50-51. 183 Eber Decl. ¶ 70, Ex. Albertson-02, e-mail from April Albertson (DOC-TCI00047665-66). 184 LaMarre Decl. ¶ 15; Eber Decl. ¶ 45, Ex. 531, LaMarre Dep. at 246. 185 Id. 186 Walden Decl. ¶ 35. 187 Eber Decl. ¶ 46, Ex. 532, Camp Dep. at 93.
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medications by their generic names (trimethoprim-sulfamethoxazole and warfarin, respectively), which is how they may appear on the prisoner’s medication sheet.188 As
Defendants’ own psychiatric expert observed, “[o]ne would not expect correctional officers to detect errors in administration of medication.” 189
2. Correctional Officers’ Failure to Follow Safe Medication Administration Practices.
a. Priority of Security Tasks.
Nurses who distribute medications have no security-related responsibilities to distract them from the task of ensuring that medications are administered safely.190
Officers, in contrast, must balance their responsibility to maintain security with the performance of a medical task for which they are ill-prepared.191 Unanticipated events,
distractions, and the constant demands of ensuring order are liable to break the
concentration of officers who are already under-trained and ill-equipped to distribute
medications. As one officer observed in an email to her superiors, “Officers are not
taking the appropriate amount of time to distribute medication, and causing excessive human error.”192 Officers are busy with other responsibilities and may rush through medication passes.193 Ultimately, “[t]he alert, critically thinking, questioning person is
188 Eber Decl. ¶ 50, Ex. 536, Vandestreek Dep. at 52 (experienced officer never having been trained to recognize generic drug names); Eber Decl. ¶ 46, Ex. 532, Camp Dep. at 93 (nurses recognize both brand and generic names and are thus better suited for medication administration). 189 Eber Decl. ¶ 6, Ex. 165, Rawski Rep’t at 18. 190 Eber Decl. ¶ 45, Ex. 531, LaMarre Dep. at 236-37 (administering medications is not a priority of correctional officers; they have other priorities). 191 Eber Decl. ¶ 47, Ex. 533, Albertson Dep. at 88-91; Eber Decl. ¶ 86, Ex. Ottolini-251, Rep’t of Patricia A. Ottolini at 7. 192 Eber Decl. ¶ 70, Ex. Albertson-02, e-mail from April Albertson (DOC-TCI00047665-66). 193 Eber Decl. ¶ 47, Ex. 533, Albertson Dep. at 84-85.
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the only reliable defense against medication errors.”194 Officers are unable to fulfill this
function. Only medical staff can provide that “reliable defense.”
The incidents below illustrate the risks and consequences of requiring officers to
simultaneously serve as providers of both security and health care:
Patient J.L.
On December 27, 2006, an officer gave Patient J.L. a 200mg dose of doxepin not prescribed for her.195 J.L. had just had surgery on her feet and came to the front of the “pill line” so she could get her medications and go back to bed. As a result of her arrival at the front of the line, the officer inadvertently gave her the wrong medication.196 The officer also administered the patient’s regular dose of diphenhydramine (Benadryl).197 The patient’s medical records indicate that she was also taking Prozac, an antidepressant, during the period in which this incident occurred.198 This error placed the patient at risk of severe, possibly fatal outcomes.199
First, this J.L.’s MAR and medication profile indicate that she is allergic to amitriptyline, another antidepressant with similar pharmacological properties as the doxepin she mistakenly received.200 The patient’s receipt of doxepin, a medication similar to one to which she is allergic, increased the likelihood of experiencing an allergic reaction.201 A correctional officer lacks the knowledge and training to realize that both doxepin and amitriptyline are both tricyclic antidepressants,202 and to understand the attendant risks of administering doxepin to a patient allergic to amitriptyline.
Further, according to a pharmacy interaction-checking database, coadministering doxepin and Prozac together is a dangerous practice that
194 Eber Decl. ¶ 55, Ex. 544, Amy M. Karch, Lipincott’s Guide to Preventing Medical Errors 325 (2003). 195 Walden Decl. ¶ 49, Ex. 385, Medication Incident Report No. 07-5823. 196 Eber Decl. ¶ 50, Ex. 536, Vandestreek Dep. at 63-64 197 Walden Decl. ¶ 49, Ex. 385. 198 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 101; Walden Decl. ¶ 34, Ex 545, Medication Profile (DOCTCI00284895). 199 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 104-05 (patient placed at “some risk” that would be increased by the co-administration of a tricyclic antidepressant); Eber Decl. ¶ 11, Ex. 308, Walden Rep’t at 12. 200 Walden Decl. ¶ 49, Ex. 385 (DOC-TCI00284895-904). 201 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 100-01. 202 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 101.
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should be avoided due to potentially fatal consequences.203 Similarly, taking doxepin with diphenhydramine causes increased sedation and can lead to anticholinergic intoxication syndrome, which can trigger psychosis, delirium, and seizures.204 Indeed, the following evening, Patient J.L. turned purple and had the first seizure (or seizure-like episode) of her life.205
Patient S.M.
Similarly, while an officer was speaking to multiple prisoners at once, he accidentally administered six times the dose prescribed of the antipsychotic medication Seroquel to Patient S.M.206 It was only after S.M. swallowed the pill that the officer yelled, “‘stop!’ I gave you the wrong dose.”207 Although the Medication Incident Report states that no significant medical problems ensued, the officer’s error put the patient at risk of dizziness, somnolence, heart arrhythmia, neuroleptic malignant syndrome, and adverse interactions with other medications. Nurses are trained to resist distractions when passing medications.208
The State of Wisconsin recognizes the problems inherent in asking security staff
to administer medications to prisoners. The contract between the State and the Wisconsin
State Employees Union (WSEU), which represents correctional officers, clearly
acknowledges that “the knowledge for the performance of this job duty is outside the
scope of their profession.”209 As a result, the contract shields officers from being
203 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 103; Walden Decl. ¶ 49, Ex. 385, Multum doxepin-fluoxetine interaction printout. 204 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 103-04; Walden Decl. ¶ 49, Ex. 385, Multum doxepindiphenhydramine interaction printout. 205 Eber Decl. ¶ 50, Ex. 536, Vandestreek Dep. at 64-65; Eber Decl. ¶ 11, Ex. 308, Walden Rep’t at 12; Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 115. 206 Walden Decl. ¶ 24, Ex. 571, Medication Incident Report No. 05-4284 (DOC-00028329). 207 Walden Decl. ¶ 24, Ex. 571, Incident Report No. 982658 (DOC-TCI00028330-31). 208 Walden Decl. ¶ 24. 209 Eber Decl. ¶ 87, Ex. Vandestreek-01, “Agreement between the State of Wisconsin and AFSCME Council 24 Wisconsin State Employees Union AFL-CIO” (hereinafter, “WSEU Contract”), at 201; Eber Decl. ¶ 46, Ex. 532, Camp Dep. at 89-92.
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disciplined for unintentional medication-related errors. Under their contract, officers cannot be held accountable for errors such as those described in this motion.210
b. Risk to Patients.
The near unanimity of the lay and expert opinions condemning officer-
administered medications is notable. United States Department of Justice investigators
Drs. Stone and Dvoskin proclaimed that continuing to allow officers to distribute medications “raises a significant risk to inmates at TCI….”211 Correctional medicine
expert Dr. Lambert King argues that the practice “constitutes a clear and present danger to the health and safety of inmates at TCI.”212 Defendants’ correctional psychiatry expert
Dr. Robert Rawski is unequivocal: “My opinion about that is clear, that [medications] shouldn’t be administered by correctional officers….”213 Dr. Rawski further holds that
“medication administration by correctional officers violates NCCHC standards of care.” 214 Dr. Rawski’s counterpart, Plaintiffs’ psychiatry expert Dr. Kenneth Robbins, writes that permitting officers to administer medications is “not a safe practice.”215 Plaintiffs’
correctional nursing expert, Madeleine LaMarre, visited TCI and observed the failure of
officers to follow standard nursing procedures for safe medication administration:
In a mental health unit and segregation, I observed nurses administering medications and found that the nurses met standard nursing practices with respect to medication administration. In general population housing units, I also observed
210 In contrast, LPNs and RNs may be disciplined by the Wisconsin Board of Nursing for failing to carry out an appropriate medical order, executing an order that the nurse knew or should have known would present a likelihood of harm, incompetence, and other acts of negligence and misconduct. Wis. Stat. §441.07; Wis. Admin Code N. §§7.03-7.04. 211 Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 13. 212 Eber Decl. ¶ 81, Ex. King-01, King Rep’t at 9. 213 Eber Decl. ¶ 31, Ex. 502, Rawski Dep. at 241. 214 Eber Decl. ¶ 6, Ex. 165, Rawski Rep’t at 18. 215 Eber Decl. ¶ 5, Ex. 129, Robbins Rep’t at 5.
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correctional officers administering medications and noted that they did not follow standard nursing procedures for administering medications. This is not unexpected as correctional officers do not have the requisite education and training to safely administer medications. 216
TCI physician and named defendant Dr. Steven Meress testified that “[i]t’s pretty much a standard that medical people should be passing out medications.”217 Ms. LaMarre, who has monitored conditions at over 40 prisons, jails, and juvenile detention facilities throughout the country, is unaware of any other correctional institution that uses officers to administer medications.218 Plaintiff’s medical expert Dr. Jerry Walden notes that at a women’s facility and intake center, medication errors are of particular concern to pregnant patients, for whom many medications are contraindicated.219 And WDOC Medical Director and named defendant Dr. David Burnett testified that LPNs or those with similar levels of training should be the personnel employed to administer medications.220
The forcefulness and uniformity of these opinions is hardly surprising given the long history of medication-related incidents attributable to officer error. Below is a selection of additional errors due to officer carelessness, refusal or inability to follow established safety protocols, lack of training, or other long-recognized deficiencies for which discipline can never be imposed. These errors caused real, observable harm and illustrate the substantial and foreseeable risk of serious harm from this practice:
Patient T.F.
216 LaMarre Decl. ¶ 10. 217 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 116. 218 LaMarre Decl. ¶ 10. 219 Walden Decl. ¶ 37. 220 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 299-300, 305.
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On December 23, 2006, an officer mistakenly administered a quadruple dose of the muscle relaxant cyclobenzaprine to Patient T.F.221 The health care staff who responded called Poison Control. In addition to the quadrupled cyclobenzaprine dose, the MAR appended to the Medication Incident Report indicates that officers also gave T.F her regular doses of the antihistamine medication cyproheptadine and Paxil, a SSRI antidepressant.222 Both cyproheptadine and cyclobenzaprine produce anticholinergic side effects, which include tachycardia (increased heart rate), sedation, slowing of gastrointestinal processes, confusion, and blurred vision.223 Combining these medications, particularly when one or both medications is at an abnormally high dose, can lead to anticholinergic intoxication syndrome (symptoms of which include hallucinations, psychosis, fever, and seizures).224 Combining the quadrupled dose of cyclobenzaprine and the patient’s regular dose of Paxil put T.F. at risk of central nervous system depression and respiratory depression.
Patient S.N.
On May 20, 2008, an officer gave Patient S.N. two psychotropic medications not prescribed for her: Imipramine, a tricyclic antidepressant, and Xanax (alprazolam), a benzodiazepine anti-anxiety medication with sedative effects. 225 S.N.’s medical records indicate that she had current orders for and/or was currently taking: amitriptyline, a tricyclic antidepressant; Abilify, a medication to treat psychosis; Valium, another benzodiazepine; Remeron, a tetracyclic antidepressant; Celexa, a SSRI antidepressant; and Klonopin, another benzodiazepine anti-anxiety agent.226 Even without the accidental administration of the Xanax and imipramine, S.N. was already prescribed a potent combination of psychotropic medications with significant interactions and side effects. That evening, TCI health staff contacted an on-call physician, who ordered that the S.N.’s dose of Klonopin be held in the morning.227
221 According to the Medication Incident Report, the patient’s cyclobenzaprine should have been discontinued altogether by December 22, 2006. Thus, receiving any dose of the medication represents an error independent of the quadrupled dose. However, it is difficult to determine whether the source of this error is related to officer conduct. Walden Decl. ¶ 25, Ex. 546, Medication Incident Report No. 07-5820 (DOC-TCI00027641-47).
222 Walden Decl. ¶ 25, Ex. 546, Medication Incident Report No. 07-5820 (DOC-TCI-00027641-47), Incident Report No. 1062250 (DOC-TCI00027648-49).
223 Walden Decl. ¶ 25; Eber Decl. ¶ 11, Ex. 308, Walden Rep’t at 13.
224 Walden Decl. ¶ 24; Eber Decl. ¶ 41, Ex. 512, Walden Dep. at 345-47.
225 Walden Decl. ¶ 29; Walden Decl. ¶ 29, Ex. 551, Incident Report No. 1198434 (DOC-TCI00315699700).
226 Walden Decl. ¶ 29; Walden Decl. ¶ 29, Ex. 552, Emergency Room Records at DOC-TCI00335013.
227 Walden Decl. ¶ 29; Walden Decl. ¶ 29, Ex. 552, Physicians Orders at DOC-TCI00334871.
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The following day, S.N. fell down stairs. She had trouble maintaining consciousness, had pupillary abnormalities, did not know what day it was, and began dry heaving.228 TCI sent her the emergency room, where she was diagnosed with shoulder, head, and back injuries.229 On May 22, 2008, a Nurse Practitioner noted that “upon further investigation of events of yesterday, [Patient S.N.] received extra dose of Xanax and became dizzy and presumably fell down the stairs.”230 The Nurse Practitioner’s explanation makes sense given the nature of the medications involved in this error. The officer’s error resulted in significant harm to S.N.
Patient T.P.
On February 6, 2008, an officer gave Patient T.P. a 400 mg dose of Phenytoin ER by mistake.231 Phenytoin ER is an anti-seizure medication, and T.P. is a complex seizure patient. The officer stated that he gave the medication to T.P. but when he subsequently “went to verify the med sheet, [he] noticed that the medication had been highlighted in yellow and crossed off.” TCI policy states that a yellowed-out medication order on a MAR means “discontinued.”232 That same policy requires officers to review the medication sheet before even picking up the medication package containing the pills. This policy is intended to reduce the likelihood that the wrong medication is given to the wrong patient; it is a standard safety procedure. In this case, it appears that the officer looked at the medication sheet after he had already administered the pills to T.P. At that point, it was too late. Nurses are trained not to take such shortcuts. Given that T.P. is a complex seizure patient already on three other seizure medications and an antipsychotic medication, mistakenly administering Phenytoin would have put her at risk of sedation and falls.233
Patients J.D.1 and J.D.2
Correctional officers mistakenly administered four doses of Tylenol-3 to patient Jacqueline Davis (J.D.1) instead of patient Jocelyn Davis (J.D.2) over the course of two consecutive days. Both patients have the same last name, which is a common surname. Tylenol-3 is a strong narcotic painkiller containing the opioid codeine. It is a Schedule III federallycontrolled substance. Apparently, the medication sheet and controlled
228 Walden Decl. ¶ 29; Walden Decl. ¶ 29, Ex. 552, Progress Notes at DOC-TCI00334865-69. 229 Walden Decl. ¶ 29; Walden Decl. ¶ 29, Ex. 552, Emergency Room Records at DOC-TCI00335016. 230 Walden Decl. ¶ 29; Walden Decl. ¶ 29, Ex. 552, Progress Notes at DOC-TCI00334866. 231 Walden Decl. ¶ 26; Walden Decl. ¶ 26, Ex. 547, Incident Report No. 1232851 (DOC-TCI00297815-17). 232 Walden Decl. ¶ 26; Walden Decl. ¶ 26, Ex. 548, TCI Procedure No. 2025 (DOC-TCI00000431-37). 233 Walden Decl. ¶ 26.
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substance inventory tracking sheet listed only the last name common to the two patients, but no first name. It appears that the officers administered the narcotic doses to Patient J.D.1 because she had the last name Davis without checking to see if the medication was actually intended for her. This violates BHS policy and is a breach of the standard of care. That the medication was administered to the wrong patient on four separate occasions before the error was discovered is particularly disturbing, as is the corollary that the Patient J.D.2., for whom the pain medication was prescribed to treat dental pain, went without it. Carelessly administering dangerous medications such as narcotics places prisoners at significant risks of serious harm. Tylenol-3 has side effects such as sedation and constipation and may be problematic in patients with a history of substance abuse. The officer’s carelessness and failure to follow procedures placed two patients at needless risk of pain and other harms.234
Patient P.H.
Patient P.H. has coronary artery disease and cardiomyopathy (deterioration of the heart muscle).235 On April 9, 2008, an officer picked up a blister pack of spironolactone 12.5mg doses in preparation for administering a single dose to P.H. The blister pack he picked up was empty, so he retrieved another blister pack containing spirolactone and administered a pill from that pack. After P.H. had taken the pill, the officer looked at the new blister pack and realized that it contained 50mg pills. Apparently, the 50mg pills had been dispensed under an old, discontinued medication order. The officer violated TCI’s medication administration policy by failing to verify Patient P.H’s dose before giving pills. Nurses are specifically trained on how to avoid such errors. Spironolactone is a “potassium-sparing” diuretic often used in patients with congestive heart failure. Giving incorrect doses of spironolactone has the potential to cause dangerously high blood potassium levels, which can cause abnormal heart rhythms.236 Administering an elevated dose of spironolactone may also cause kidney dysfunction and congestive heart failure, which can be fatal.237
Patient C.M.
234 Walden Decl. ¶ 27; Walden Decl. ¶ 27, Ex. 549, Medication Incident Report No. 05-4316 (DOCTCI00028337-39), Medication Incident Report No. 05-4317 (DOC-TCI00028340-43), Incident Report (DOC-TCI00028344-45).
235 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 380-81.
236 Walden Decl. ¶ 28; Walden Decl. ¶ 28, Ex. 550, Incident Report (DOC-TCI00297492-95); Walden Decl. ¶ 28, Ex. 450, Medication Incident Report No. 08-10099 (DOC-TCI00318118); Walden Decl. ¶ 26, Ex. 548, TCI Procedure No. 2025 (DOC-TCI00000431-37).
237 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 382-83.
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Medication Incident Report No. 05-4318 states that an officer mistakenly gave Patient C.M. a medication not prescribed for her. The medication was chlorpromazine, commonly known as Thorazine. Thorazine is a powerful antipsychotic medication now used infrequently due to its potential for serious side effects. Accidentally administering a dose of Thorazine to the wrong patient puts her at a risk of harm, including serious side effects such as neuroleptic malignant syndrome and interactions with other medications.238
Patient D.B.
On March 22, 2007, officers in the Abrahamson housing unit accidentally administered double doses of two separate psychotropic medications to Patient D.B. The officers mistakenly gave twice the prescribed amount of Xanax (alprazolam) and twice the prescribed amount of Celexa (citalopram), an antidepressant. In addition, the officers administered the patient’s regular dose of Seroquel (quetiapine), an antipsychotic medication.239 When combined, these medications may synergistically increase depression of respiration and central nervous system functioning.240 These adverse effects may have been increased even further due to the accidental doubling of doses.241 The resultant sedation and dizziness could last between 24 and 36 hours.242 Approximately 26 hours after being given the two double doses, D.B. fell outside and required hospitalization. Plaintiffs’ medical expert believes the increased sedation probably led to her instability and resulting injury.243 WDOC’s medical expert (and named defendant, Dr. David Burnett) agrees that even if the drug interactions did not directly cause this particular fall and injury, they may have had the potential to do so and that the error put D.B. at risk of harm.244
Patient K.W.
238 Walden Decl. ¶ 30; Walden Decl. ¶ 30, Ex. 572 at DOC-TCI00028346. 239 Walden Decl. ¶ 32; Walden Decl. ¶ 32, Ex. Burnett-417 (DOC-TCI00281409-11; DOC-TCI0028181011). 240 Walden Decl. ¶ 29; Walden Decl. ¶ 32, Ex. Burnett-419. 241 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 421; Ex. 512, Walden Dep. at 303-04. 242 Eber Decl. ¶ 41, Ex. 512, Walden Dep. at 304. 243 Eber Decl. ¶ 11, Ex. 308, Walden Rep’t at 13. 244 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 421-22.
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On April 16, 2006, officers administered four wrong medications to Patient K.W.245 These medications included Klonopin (clonazepam), an anti-anxiety drug; Benadryl (diphenhydramine), an antihistamine often used for its sedative effects; ziprasidone (Geodon), an antipsychotic drug; and oxybutynin (Ditropan), a medication used to treat urinary urgency or incontinence. Although her MAR indicates that officers withheld the patient’s regular morning dose of hydroxyzine at the direction of health services staff, later that day she received hydroxyzine (Vistaril), an antipsychotic medication; warfarin (Coumadin), an anticoagulant; promethazine (Phenergan), a drug used to treat motion sickness, and Prozac (fluoxetine), an antidepressant.246 Even without the medication errors, K.W. was taking a heavy regimen of medications. The addition of the mistakenly-given medications created a serious risk of multiple interactions and additive effects. Promethazine and ziprasidone are contra-indicated and co-administering them can result in a dangerous and deadly interaction. The officer’s error also placed K.W. at risk for multiple anticholinergic effects such as blurred vision, intestinal blockage, and fever.247
Patient B.J.L.
On January 14, 2008, a correctional officer gave Patient B.J.L. 5mg of trifluoperazine (Stelazine) that had been prescribed for another prisoner. The report indicates that the patient regularly takes 0.5mg of Klonopin (clonazepam), an anti-anxiety medication. The officer stated that each medication is kept in a “baggy” and that he “grabbed the wrong baggy of pills.” A Medication Incident Report completed on January 28, 2008, notes that the patient’s vital signs were checked and no Parkinsonian-like symptoms were observed.248 Trifluoperazine is a potent tranquilizer and antipsychotic medication that causes numerous side effects. It also interacts with B.J.L.’s Klonopin, creating a risk of central nervous system depression. It can cause extrapyramidal symptoms like spasms and tics, as well as lowering blood pressure. B.J.L. was further put at risk of neuroleptic malignancy syndrome, which can occur after only one dose of the drug. It is an error considerably less likely to happen with a trained medical professional such as a LPN.249
245 Walden Decl. ¶ 31; Walden Decl. ¶ 31, Ex. 553, Medication Incident Report 06-5095 (DOCTCI00029073).
246 Walden Decl. ¶ 31; Walden Decl. ¶ 31, Ex. 554, Progress Notes at DOC-TCI00166694-96.
247 Walden Decl. ¶ 31.
248 Walden Decl. ¶ 33; Walden Decl. ¶ 33, Ex. 556, Incident Report No. 1062109 (DOC-TCI00297962-63), Medication Incident Report No. 08-9860 (DOC-TCI00318141).
249 Walden Decl. ¶ 33.
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3. Officers’ Under-Reporting of Medication Errors.
The timely, accurate reporting of medication-related errors is a bedrock principle
of patient safety. Error reporting identifies system failures, prevents repeats of the error,
and alerts practitioners to potentially life-threatening consequences.250 Indeed, without
proper reporting, the medication errors discussed above would never have come to light.
Had these errors gone unreported, practitioners would not have known that Patient
C.M.’s vital signs required monitoring, that poison control should be contacted for
Patient T.F., or that a dose of Patient S.N’s clonazepam should be withheld to avoid
further adverse reactions.
Experts for the parties echo these findings. Quite simply, compared to nurses,
officers are not only more likely to make medication errors, but are also less able to
recognize them when they occur.251 Undetected errors cannot be reported and, most
significantly, cannot be remedied.252 This places patients at an additional measure of
risk. The person standing between pill and patient is the final line of defense against
medication errors. By refusing to employ qualified nursing personnel to administer
250 Eber Decl. ¶ 57, Ex. 557, Smetzer, Cohen & Milazzo, The Role of Risk Management in Medication Error Prevention, in Medication Errors 19.1, 19.2 (Michael R. Cohen ed. 1999). 251 Eber Decl. ¶ 45, Ex. 531, LaMarre Dep. at 241 (officers lack the knowledge to detect pharmacy errors); Eber Decl. ¶ 6, Ex. 165, Rawski Rep’t at 18; Eber Decl. ¶ 5, Ex. 129, Robbins Rep’t at 5-6. 252 Some officers report medication errors – if they can detect them. In the late 1990s, BHS commissioned several studies of medication errors at its facilities. A July 2000 report found that that “facilities with nurse administered medication processes reported 6.6 times as many administration incidents as facilities where non-nursing personnel perform this function.” Eber Decl. ¶ 58, Ex. 558, Medication Incident Study FY1999 Final Report at 2 (FLYNN001567-1607). See also Eber Decl. ¶ 49, Ex. 535, LAB Rep’t at 46. The reporting differential was even greater in a similar draft report prepared in December 2001. Eber Decl. ¶ 85, Ex. Meier-2-12, Medication Incident Study FY2000 and 2001 Draft 3 at 11. As the report noted, a higher rate of medication incident reports “indicates that there is better reporting NOT necessarily more incidents.” Id. at 4 (emphasis in original). The consultant who prepared the report concludes that “correctional officers/youth counselors identify, correct, and report fewer medication errors than nursing staff,” id. at 1, and asserted that “[i]t is assumed that the safety of the inmates is greater with respect to medications where errors are identified and reported with greater frequency.” Id. at 11.
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medication errors, Defendants have not only eliminated that layer of defense against errors but have also increased the underlying likelihood that errors will occur.
B. Little Boxes and Big Risks: Dangerous Medication Documentation Practices.
Unfortunately, the dangers posed by correctional officer involvement in the medication process do not end when the patient swallows her pills. In institutional medicine, administration of all doses of medication must be promptly and properly documented in writing. Medication documentation by correctional officers at TCI is notoriously poor and has been so for years. WDOC has known of the problem and its associated risks but has done nothing to safeguard a population of prisoners that, collectively, takes thousands of medication doses several times each day. Defendants’ expert, Dr. Greifinger, related that the medication delivery system, including poor documentation by correctional staff, represented an “area of significant risk” and “risk of harm” that raised Constitutional concerns.253 Medication documentation is a medical task simply too important to delegate to untrained or undertrained security staff.
Under WDOC policy, each dose of medication administered to a patient must be recorded on a Medication Administration Record (hereinafter, “MAR”) using a set of established abbreviations and protocols.254 The MAR is a monthly grid with hundreds of small squares, each representing a dose of medication to be administered. Medication names and their dosing instructions are listed in the left-most column. The numbers one through thirty-one are listed in the uppermost row, indicating the days of the month. During each medication pass, officers must enter their initials into the appropriate dose
253 Eber Decl. ¶ 75, Ex. Burnett-413, Burnett e-mail (DOC-TCI00320044); Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 374-77. 254 Eber Decl. ¶ 61, Ex. 561, WDOC Policy & Procedure 800:11.
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box if they administer the medication as ordered. If the officer is unable to administer the medication due to patient absence, refusal, or other circumstances, he or she must enter one of several codes into the dose box.255 Under no circumstances should the personnel administering medications leave a dosage box blank.256 An example of a WDOC MAR is attached to the Eber Declaration as Exhibit 559.
1. Correctional Officers Do Not Properly Document Medication Administration.
In June 2008, Defendants’ medical expert, Dr. Robert Greifinger, testified that “[a]lmost every medication administration record was unacceptable.”257 Specifically, he observed that “...where correctional officers are responsible for filling [the MARs] out, they were variable and inconsistent from unit to unit and usually unacceptable in terms of the quality and reliability of the documentation.” 258
On an almost annual basis, both independent and internal audits confirm the shoddy quality of officer-completed medication documentation. Officers consistently fail to document doses at all. Blank dose boxes are never acceptable,259 but even a cursory review of MARs reveals that such blanks occur regularly. Evidence abounds that officers fail to document doses, or document doses in a manner that raises suspicion as to the accuracy of the documentation. In its 2002 draft report evaluating medical care in Wisconsin prisons, The National Commission on Correctional Health Care (NCCHC) noted multiple problems with officer-completed MARs. On some MARs, the auditors
255 Id. 256 Eber Decl. ¶ 38, Ex. 509, Meier Pharmacy Dep. at 77. 257 Eber Decl. ¶ 36, Ex. 507, Greifinger Dep. at 66. 258 Eber Decl. ¶ 36, Ex. 507, Greifinger Dep. at 58. 259 Eber Decl. ¶ 38, Ex. 509, Meier Pharmacy Dep. at 77.
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noted that “it looks like the same person on a given day had filled out all of the
medication administration [record], even though this covered more than one shift.” The
auditors noted significant inconsistencies in the manner in which doses were documented
by officers. The report concluded that “[t]he current medication administration system
clearly creates liability for the officers and for the WDOC.”260 In December 2005, a team
of investigators from the United States Department of Justice followed several
correctional officers as they administered medications. The investigators reported that
“[d]espite the fact that they knew they were being monitored, we noted several errors in
documentation, including failures to note that an inmate had received a dose, failure to
document a refusal to take a dose, etc.”261 The investigators further recognized that
“[n]urses receive extensive and specific training about the importance and requirements
of MARs.262 Correctional officers do not receive such training.”263
In an audit conducted in May 2006, former HSU Manager Holly Meier found that
correctional officers failed to document 12.3% of doses.264 A series of similar audits
conducted in 2008 found that, in some months, housing units in which officers administer
260 Eber Decl. ¶ 68, Ex. 568, NCCHC 2002 Rep’t at 138-39. Evidence also demonstrates that officers fail to complete other medication-related documents, as well. See, e.g., Eber Decl. ¶ 49, Ex. 535, LAB Rep’t at 45. Over five years after the publication of the LAB report, a diligent TCI Lieutenant informed her superiors that officers continued to fail to sign medication tracking sheets. Eber Decl. ¶ 70, Ex. Albertson02, Albertson e-mail; Eber Decl. ¶ 47, Ex 533, Albertson Dep. at 82-83. 261 Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 14. 262 Although “Medication Administration Record” or “MAR” is a term used consistently throughout institutional medicine, during deposition, two sergeants admitted to being unfamiliar with the term. Eber Decl. ¶ 46, Ex. 532, Camp Dep. at 49-50; Eber Decl. ¶ 50, Ex. 536, Vandestreek Dep. at 62-63. Both sergeants referred to the documents as “med sheets,” which should not be confused with “medication hard cards,” another document used in the TCI medication management system, Eber Decl. ¶ 39, Ex. 510, Holzman Dep. at 51, or with “med cards,” which are the actual blister packages of medication. Eber Decl. ¶ 46, Ex. 532, Camp Dep. at 63. 263 Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 14. 264 Eber Decl. ¶ 84, Ex. Meier-2-10, Medication Audits (DOC-TCI00036940-43); Eber Decl. ¶ 38, Ex. 509, Meier Pharmacy Dep. at 76-78.
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medications fail to document 15% or more of all possible doses.265 In June 2008, officers in one housing unit failed to document nearly thirty-one percent of all doses.266 During that same time period, BHS’s internal auditor found that certain officers failed to document any doses for the entire shift.267 Defendants’ medical expert, Dr. Greifinger, was particularly concerned about the poor quality of officer documentation when he observed that MARs completed by correctional officers in two units had “a significant number of blanks” and “so-called refusals.”268 He echoed this observation in a conversation with Dr. David Burnett, the WDOC Medical Director.269 Further, in a June 2008 email to recipients including WDOC Mental Health Director Dr. Kevin Kallas and WDOC Medical Director Dr. David Burnett, WDOC auditor Patricia Voermans wrote that “[t]he number of undocumented signatures on the medication records makes it impossible to determine compliance.”270
When officers do document medication administration, the results are often substandard and dangerously ambiguous. During her visit to TCI in November 2007, Plaintiff’s nursing expert Madeleine LaMarre reported observing inconsistent MAR documentation.271 While observing medication distribution in one unit, she watched as an officer documented the administration of a medication before giving the medication to the patient.272 In 2006, NCCHC auditors returned to Wisconsin prisons and found little
265 Eber Decl. ¶ 62, Ex. 562, Voermans Medication Documentation Audits. 266 Eber Decl. ¶ 62, Ex. 562, Voermans Medication Documentation Audits. 267 Eber Decl. ¶ 63, Ex. 563, Voermans Memo (DOC-TCI00317970) 268 Eber Decl. ¶ 7, Ex. 202, Greifinger Rep’t at 8. 269 Eber Decl. ¶ 75, Ex. Burnett-413, Burnett e-mail (DOC-TCI00320044). 270 Eber Decl. ¶ 74, Ex. Burnett-404, Voermans e-mail and charts (DOC-TCI00317987-92). 271 Eber Decl. ¶ 87, Ex. Ottolini-252, LaMarre Rep’t at 20. 272 Id. at 17.
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improvement in medication documentation. They reported that “[i]n one facility,
consultants observed a CO administer a medication to an inmate and then record an ‘R
within a circle’ on the medication administration record (MAR). When asked what that
represented, the CO reported this meant the inmate received the medication. Later on, in
the same institution, another CO reported an ‘R within a circle’ on an MAR meant that the inmate refused the medication.”273 Despite NCCHC’s unequivocal admonition and
WDOC’s knowledge of the problem, these dangerous ambiguities continue to plague TCI MARs well into 2008.274
Similarly, in an April 2006 email, a TCI Nursing Supervisor reported that some
officers insisted on documenting doses with only one initial, violating WDOC policy and creating dangerously ambiguous MARs.275 For example, an officer whose first initial
was “R” would document doses with the same letter reserved to indicate that a patient
had refused her medication. And an officer whose first initial was “W” would mark a
dose as given with the same letter reserved for indicating medications that had been
withheld. The officers further proposed using red ink to complete MARs. The BHS
director responded that both the use of single initials and red ink is “not acceptable” and that “NCCHC will not accept this type of charting.”276 As recently as this past summer, correctional officers continued to document doses with single initials on TCI MARs.277
273 Eber Decl. ¶ 16, Ex. 397, National Commission on Correctional Health Care, “Pre-Accreditation Technical Assistance: Wisconsin Dep’t of Corrections” (2006), at 11 (emphasis added). 274 E.g., Eber Decl. ¶ 69, Ex. 574, Medication Administration Record (DOC-TCI00319628). 275 Eber Decl. ¶ 64, Ex. 564, Greer/Alsum e-mail (DOC-TCI00036596-97). 276 Eber Decl. ¶ 64, Ex. 564, Greer/Alsum e-mail (DOC-TCI00036596-97). 277 E.g., Eber Decl. ¶ 65, Ex. 565, DOC-TCI00325088. At deposition, one officer testified that she marked an “O” to indicate that no medication was available to administer. Eber Decl. ¶ 48, Ex. 534, Peterson Dep. at 48. This practice leads to significant confusion as to whether the “O” represents “out of medication” or a dose administered by someone whose name begins with “O.” See Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at
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Perhaps most telling is a comment made by Defendant Dr. Kallas in a peer mortality review of a TCI patient. Dr. Kallas believed the patient died of an overdose of psychotropic medication. Accordingly, the patient’s medication intake in the days prior to her death was a salient issue. Dr. Kallas noted that the decedent may have refused her medications since doses were not documented in her MAR. However, he also recognized the reality that “this may also have been due to officers not recording an administered dose.”278
2. The Consequences of Poor Medication Administration Documentation.
Accurate documentation of medication administration is a critical component of any safe institutional medication management system. Like administration of the dose itself, medication documentation is a nursing function.279 Without a written record of the disposition of every dose of medication, pharmacotherapy unravels. Medication Administration Records are a critical component of a patient’s medical chart and the importance of their proper completion flows from the medical axiom that without documentation, there is no way to demonstrate that care was given.280 Correct documentation of doses is vital to determining patient compliance with medication regimens, assessing clinical effectiveness, assessing the need to modify treatment plans, and preventing accidental overdoses and similar errors.281
122. 278 Eber Decl. ¶ 66, Ex. 566, Peer Mortality Review of V.W., at DOC-TCI00328545-48. 279 Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 13. 280 Eber Decl. ¶ 41, Ex. 512, Walden Dep. at 72-73. 281 Eber Decl. ¶ 36, Ex. 507, Greifinger Dep. at 59-60, 62-63; Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 123 (unclear MARs make it difficult to determine the frequency with which patients receive their medications); Eber Decl. ¶ 49, Ex. 535, LAB Rep’t at 45; Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 13, 15; Eber Decl. ¶ 74, Ex. Burnett-404, Voermans e-mail at DOC-TCI00317987; Eber Decl. ¶ 60, Ex. 560, “TCI
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Although the act of recording doses on a chart may seem ministerial, the failure to do so puts patients at risk of harm, including death.282 For example, health care providers rely on MARs to determine whether a patient’s persistent symptoms are the result of noncompliance or the consequence of an improper dose that needs adjustment.283 In the case of a hypothetical seizure patient, proper documentation of medication administration is a prerequisite to determining the proper clinical intervention.284 If a patient continues to have seizures notwithstanding the fact that her MAR indicates that she has taken all of her medication doses, then a provider may justifiably raise the dose to seek a better therapeutic response. If, in fact, the patient refused to take her medication but the doses were nevertheless documented as taken, then the provider’s decision to raise the dosage may very well lead to a toxic overdose. Conversely, if staff administers a dose but leaves the dosage box on the MAR blank and the patient has a seizure, the responding physician may be inclined to administer another pill, resulting in a possible overdose.285 Defendants’ medical expert testified that such hypothetical poor documentation would place the seizure patient at a risk of harm.286 Similar dangers are posed by ambiguous or messy documentation. Indeed, in an October 2008 deposition, WDOC Medical Director Dr. David Burnett reviewed the MAR of one patient and identified four possible
HSU Summary June 2008” at DOC-TCI00317013; Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 338 (undocumented doses on MARs make it impossible to determine patient compliance). 282 Eber Decl. ¶ 36, Ex. 507, Greifinger Dep. at 59-63; Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 14-15. 283 See Eber Decl. ¶ 49, Ex. 535, LAB Rep’t at 45. 284 Eber Decl. ¶ 36, Ex. 507, Greifinger Dep. at 62. 285 Eber Decl. ¶ 36, Ex. 507, Greifinger Dep. at 63. 286 Eber Decl. ¶ 36, Ex. 507, Greifinger Dep. at 62.
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interpretations for a single ambiguous notation on a MAR.287 The risks posed by poor
medication documentation should be well known to Defendants.288
3. Medication Documentation: A Nursing Function in Need of Nurses.
Patient safety requires that trained medical personnel replace the correctional
officers currently responsible for medication administration documentation. Both expert
testimony and empirical studies support the necessity of this change.
As early as 2001, the Legislative Audit Bureau (LAB) identified the use of
officers rather than health care staff to administer medications as a cause of
documentation errors.289 More than six years later, Defendants’ medical expert, Dr.
Greifinger, bolstered the Bureau’s conclusion. During his visits to TCI, Dr. Greifinger
287 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 122. 288 In addition to posing a risk clinically, because MARs serve as written proof of the delivery of health care, sloppy medication documentation can have significant legal consequences. The Wisconsin Department of Health and Family Services sets forth specific requirements for the MARs kept in treatment centers. See Wis. Admin. Code HFS § 52.46(4) (specific requirements for MARs used in residential care centers for children and youth); Wis. Admin. Code HFS § 52.45(4)(e) (requiring MAR to be maintained as part of patient health records); Wis. Admin. Code HFS § 36.18(3)(f)(8) (specific requirements for MARs used in comprehensive community services for persons with mental and substance-use disorders). MARs routinely appear as evidence that care was or was not rendered. See, e.g., Frentzel v. Moore, No. 06-214, 2008 WL 2373119, at *2 (E.D. Mo. June 6, 2008) (MARs cited as evidence that patient received medication during confinement); Pardue v. Norris, No. 06-184, 2008 WL 2001817, at *4-5 (E.D. Ark. May 6, 2008) (MARs introduced at post-conviction hearing to show incompetency to enter a guilty plea); Pittman v. County of Union, No. 06-1617, 2008 WL 906235, at *2, *4 (D.N.J. April 1, 2008) (in wrongful death action, MARs used to show prisoner received medications as ordered); Lindell v. Daley, No. 02-459, 2003 WL 23277280, at *7 (W.D. Wis. Nov. 21, 2003) (court relies on MARs in deliberate indifference claim brought by a Wisconsin prisoner). In one Delaware action brought by a prisoner under 42 U.S.C. § 1983, the court expressed its frustration with poorly documented MARs, many of which shared the same faults as those routinely seen at TCI:
The MARs present numerous interpretive difficulties: many of the markings on the charts are illegible; the exact meaning of initialing is unclear-presumably, initialing indicates that a medication was dispensed; initials are potentially indistinguishable from other abbreviations, which may have been used to indicate that a medication was not dispensed or was unavailable;
Cardone v. Dep’t of Corr., No. 3370-VCN, 2008 WL 2447440, at *5 n.67 (Del. Ch. June 4, 2008). Ultimately, the court refused to give the flawed MARs “any conclusive interpretation.” Id. at *10. 289 Eber Decl. ¶ 49, Ex. 535, LAB Rep’t at 45.
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compared MARs completed by officers with those completed by nursing staff. The latter he found to be “very well documented” and “quite good.”290 In contrast, he found the officers’ MARs to be “usually unacceptable in terms of the quality and reliability of the documentation.”291 In his Rule 26 expert report, Dr. Greifinger states succinctly the remedy for this quality gap: nurses should distribute medications.292
In a 2006 audit comparing MAR documentation between nurses and officers, TCI found that nurses documented 10% more doses than officers.293 Former Health Services Unit manager Holly Meier explained the discrepancy as being a result of the considerable differential in standards to which nurse and officers are held. Nurses, Ms. Meier testified, are held to a higher standard because they have their licenses on the line. Correctional officers, however, have less to lose if they fail to properly document the doses they administer.294 More recent audits show that the Monarch and Segregation Units, in which nurses administer medications, are not subject to the same fluctuations in documentation compliance rates as the Dorms, Adams, and MC Units, in which officer administer medications.295 However, even a few hours or a day’s worth of training is insufficient to impart the proper methods of medication administration documentation and the significant medical-legal importance of doing so. By continuing to delegate
290 Eber Decl. ¶ 36, Ex. 507, Greifinger Dep. at 57-59. See also Eber Decl. ¶ 7, Ex. 202, Greifinger Rep’t at 8. 291 Eber Decl. ¶ 36, Ex. 507, Greifinger Dep. at 58. 292 Eber Decl. ¶ 7, Ex. 202, Greifinger Rep’t at 8. 293 Eber Decl. ¶ 38, Ex. 509, Meier Pharmacy Dep. at 80-81; Eber Decl. ¶ 84, Ex. Meier-2-10, Medication Audits, at DOC-TCI00036940-43. 294 Eber Decl. ¶ 38, Ex. 509, Meier Pharmacy Dep. at 81. 295 Eber Decl. ¶ 64, Ex. 562, Voermans Medication Documentation Audits.
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medication documentation to prison guards, Defendants continue to turn their backs on a substantial risk of serious harm to the prisoners in their care.
C. Licensed Practical Nurses: A Readily Identifiable and Necessary Remedy.
Only the substitution of licensed health care personnel, such as nurses, for correctional officers will remedy the dangers outlined above.296 Nearly eight years have passed since the Legislative Audit Bureau identified serious risks associated with officeradministered medications.297 Defendants have long recognized the dangers posed by Correctional Officer distribution of medications but have failed to end the practice.298 Year after year, Defendants’ recalcitrance places TCI patients at serious risk. In 2002, NCCHC auditors concluded that the current system is a source of liability for the Department and that “[n]urses should be responsible for passing out medications to inmates....”299 In December 2005, the United States Department of Justice issued a stinging indictment of officer-controlled medication administration, noting that it poses “significant risk to inmates at TCI.”300 A 2006 self-evaluation revisited the longstanding problems, catalogued the concerned parties who opposed the continued use of officers, and recognized that using health care staff to deliver medications would “improve risk management.”301 Yet the litany of expert reports, independent audits, and an evergrowing list of harmed prisoners have been insufficient to motivate Defendants to act. Defendants even ignored the concerns of TCI’s senior physician, Dr. Steven Meress, who
296 LaMarre Decl. ¶ 15; Walden Decl. ¶ 36. 297 Eber Decl. ¶ 49, Ex. 535, LAB Rep’t at 45-46 298 Eber Decl. ¶ 81, Ex. King-01, King Rep’t at 9. 299 Eber Decl. ¶ 68, Ex. 568, NCCHC 2002 Rep’t at 138, 211. 300 Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 13. 301 Eber Decl. ¶ 17, Ex. 398, WDOC Status Report & Plans 2006 at 30, 35.
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consistently voiced his opposition to the practice to WDOC officials over the course of several years.302
This longstanding knowledge of the dangers combined with a long history of obstinacy demonstrates a collective, system-wide indifference to the serious medical needs of TCI prisoners.303 Defendants’ own psychiatry expert agrees. A system that is aware of such dangers but chooses to balk at taking remedial action is deliberately indifferent.304
In 2006, WDOC proclaimed that “[t]he Department is committed to developing a long-term, viable alternative to the practice of correctional officers distributing medications.”305 Regrettably, the Department’s actions have yet to match its rhetoric. An internal budget issue paper recalls a decade of bureaucratic indifference by various WDOC officials and the Governor himself. In every biennial budget cycle since 1997, requests were made to replace correctional officers with health care staff for the purpose of medication distribution. Each one of those requests was denied or otherwise unfulfilled.306 Telling is the justification for refusing to include the staffing request in WDOC’s final budget request: “[a]lthough high error rates by officers had been noted by HS, no documentation could be provided, and it was believed that additional training could address error rate issues.”307
302 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 123-24. 303 Eber Decl. ¶ 45, Ex. 531, LaMarre Dep. at 154-55. 304 Eber Decl. ¶ 31, Ex. 502, Rawski Dep. at 242-44. 305 Eber Decl. ¶ 17, Ex. 398, WDOC Status Report & Plans 2006 at 35. 306 Eber Decl ¶ 80, Ex. Kallas-252, “Medication Administration Issue Paper” and cover e-mail (DOCTCI00050668-78); Eber Decl. ¶ 34, Ex. 505, Kallas Dep. at 369-70. 307 Eber Decl. ¶ 80, Ex. Kallas-252, “Medication Administration Issue Paper,” at DOC-TCI00050669-70.
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Should this Court grant this Motion for Preliminary Injunction, Defendants will
have ample opportunity to comply with the Order in a manner that recognizes the value
of cost-effectiveness, flexibility, and the circumstances attendant to correctional settings.
WDOC already employs LPNs308 to administer all or some medications at the Milwaukee
Secure Detention Facility (MSDF), Green Bay Correctional Institution (GBCI), the John
Burke Correctional Center, and in the Segregation and Monarch Mental Health Units at
TCI.309 In some institutions, narcotics are distributed by nursing staff in an attempt to
limit diversion of medications for illicit purposes.310 WDOC may choose to use either
LPNs or RNs to administer medications at TCI.311 The nurses hired to distribute
medications could, should Defendants choose, perform other nursing functions in
308 Wisconsin’s Board of Nursing recognizes several different nursing credentials. Licensed Practical Nurses (LPNs) hold the lowest level of credential recognized by the Board. LPNs must be 18 years old, completed at least two years of high school or high school equivalency, graduate from a one-year training program, and pass an examination. Wis. Stat. §441.10; Eber Decl. ¶ 67, Ex. 567, Dep. of Holly Meier, November 6, 2008 (hereinafter, “Meier Staffing Dep.”) at 56. Registered Nurses (RNs) must have a high school diploma or equivalent, complete a minimum of two years of training, and pass an examination. Wis. Stat. § 441.04; Eber Decl. ¶ 67, Ex. 567, Meier Staffing Dep. at 55-56. Advanced Practice Nurses (APNs) and Advanced Practice Nurse Prescribers (APNPs) must hold masters-level degrees, and the latter have the authority to prescribe medications. Wis. Stat. § 441.16; Wis. Admin. Code N. §8.02. In institutional settings, depending on the level of care required, medications may be administered by LPNs or RNs. Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 304. 309 Eber Decl. ¶ 17, Ex. 398, WDOC Status Report & Plans 2006 at 30; Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 306. 310 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 306-07. 311 In the 2007-2009 budget request, WDOC abandoned its request for LPNs and sought to justify using Certified Nursing Assistants (CNAs) to distribute medications. Under the proposal, WDOC would hire CNAs with at least 2 years prior experience and an additional 100 hours of medication-related training. Eber Decl. ¶ 79, Ex. Kallas-251, “2007-09 Biennial Requests Issue Paper” at DOC-TCI00050730. CNAs are typically employed in nursing homes to change linens, transfer patients in and out of bed, provide hygiene services, and to help patients get dressed. Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 324; LaMarre Decl. ¶ 14. Ostensibly, the CNAs would be required to complete the 75-hour Nursing Assistant training described in Wis. Admin. Code HFS § 129.07. This training culminates in a 25-question written or oral exam and a practical exam that includes topics such as oral hygiene, shampooing, range of motion exercises, and how to take a patient’s temperature and measure his pulse rate. Wis. Admin. Code HFS § 129.08. The use of CNAs to administer medications is unacceptable. LaMarre Decl. ¶ 15. See also Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 298-300 (if CNA certification required only two weeks of training, then they would lack sufficient training to safely administer medications).
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between medication passes.312 WDOC may decide to hire nurses from one of several nursing agencies with whom the Department already does business, as was done when the pilot program was initiated at TCI.313 Alternatively, WDOC has the option of hiring less-expensive and more accountable limited term employees (LTEs).314
Regardless of how Defendants choose to implement the proposed Order, the ongoing, unabated use of correctional officers to administer medications continues to place TCI prisoners at substantial risk of serious harm. Defendants have demonstrated a longstanding inability or refusal to act. As set forth below, only this Court’s intervention can adequately protect the class from additional danger and suffering.
LEGAL ARGUMENT
With this motion, Plaintiffs seek preliminary injunctive relief to protect them from the serious, ongoing risks to their health posed by a chaotic medication ordering and administration system. A preliminary injunction is a particularly appropriate vehicle for the relief sought given the urgency created by the ongoing dangers at which Plaintiffs and the class are placed. See Donovan v. Robbins, 752 F.2d 1170, 1173 (7th Cir. 1984) (noting the emergent character of a preliminary injunction). As set forth below, Plaintiffs are entitled to a preliminary injunction, because the evidence demonstrates that: (1) they have some likelihood of success on the merits; (2) they have no adequate remedy at law; and (3) they will suffer irreparable harm if the injunction is not granted.315 Plaintiffs need
312 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 301. 313 Eber Decl. ¶ 67, Ex. 567, Meier Staffing Dep. at 21, 27. 314 Eber Decl. ¶ 67, Ex. 567, Meier Staffing Dep. at 27, 71-73. 315 AM Gen. Corp. v. DaimlerChrysler Corp., 311 F.3d 796, 803 (7th Cir. 2002); see also Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001); Builder’s World, 482 F. Supp. 2d at 1070-71 (E.D. Wis.
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only show “that [their] chances of prevailing are better than negligible.” Builder’s World, Inc. v. Marvin Lumber & Cedar, Inc., 482 F. Supp. 2d 1065, 1071 (E.D. Wis. 2007). Additionally, the requisite likelihood of success decreases as the irreparable harm to the movant increases. Id. Thus, if a plaintiff makes a particularly strong showing of irreparable harm, her showing of a likelihood of success need not be as compelling.
I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIMS THAT TCI’S SYSTEMS OF MEDICATION ORDERING AND ADMINISTRATION VIOLATE THE EIGHTH AMENDMENT. Prison officials have an affirmative obligation under the Eighth Amendment to
provide prisoners with the necessities of life, including medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994); Helling v. McKinney, 509 U.S. 25, 31-32 (1993); Estelle v. Gamble, 429 U.S. 97, 104 (1976); see also Reed v. McBride, 178 F.3d 849, 852 (7th Cir. 1999) (when a state “so restrains an individual's liberty that it renders him unable to care for himself,” government must provide basic human needs such as medical care) (quoting Helling, 509 U.S. at 834). As the Seventh Circuit has consistently held, the Eighth Amendment “imposes a duty upon states to provide adequate medical care to incarcerated individuals.” Boyce v. Moore, 314 F.3d 884, 888-89 (7th Cir. 2002).
The facts of this case present a classic example of an Eighth Amendment violation under Estelle, Farmer, and their progeny. In Farmer, the Supreme Court held that “[a] prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” 511 U.S. at 828 (emphasis added). In order to prevail in an Eighth Amendment challenge to inadequate medical care, a prisoner must
2007); Manpower, Inc. v. Mason, 405 F. Supp. 2d 959, 969 (E.D. Wis. 2005).
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show both that the risk of harm to the prisoner is objectively “serious” and that the defendant was subjectively “deliberately indifferent” to the risk of harm. Farmer, 511 U.S. at 834 (noting the objective and subjective components of standard for “deliberate indifference” claims); Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005); Vance v. Peters, 97 F.3d 987, 991-92 (7th Cir. 1996) (explaining subjective and objective components in Eighth Amendment medical claim). However, a prisoner “does not have to await the consummation of a threatened injury” or “await a tragic event” to obtain injunctive relief. Farmer, 511 U.S. at 845 (citations and internal quotation marks omitted). Moreover, a successful plaintiff “need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842 (emphasis added).
The Defendants in this case have, for years, been subjectively aware of the substantial risks of serious harm to the health and safety of TCI class members posed by the systems of medication ordering and administration, but have failed to act to prevent such harm. The facts set forth above establish that the risk of serious harm to TCI prisoners (the “objective” element) is significant and ongoing, resulting in both present and future dangers. The facts further establish Defendants’ actual knowledge of the risk and failure to take the urgent action necessary to abate it (the “subjective” element).
A. Defendants’ Medication Ordering and Administration Systems Create an Objectively Substantial Risk of Serious Harm to TCI Prisoners. For the purpose of Eighth Amendment analysis, a risk is sufficiently serious when
“it is one that society considers so grave that it violates contemporary standards of
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decency to expose anyone unwillingly to that risk.” Helling, 509 U.S. at 36. It is a risk that “today’s society chooses not to tolerate.” Id.; see also Christopher v. Buss, 384 F.3d 879, 882 (7th Cir. 2004) (summarizing “excessive risk cases”). The substantial risk need not pose an immediate, present threat to health and safety; threats to future wellbeing are equally actionable. Helling, 509 U.S. at 33-34.
In the context of correctional health care claims, prisoners may satisfy the objective element by demonstrating that they have a “serious medical condition,” or by proving either: (1) “‘proving that there are such systemic and gross deficiencies in staffing, facilities, equipment, or procedures that the inmate population is effectively denied access to adequate medical care;’” or (2) “‘repeated examples of negligent acts which disclose a pattern of conduct by the prison medical staff’” evincing an excessive risk of serious harm. Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983) (quoting Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980)). A pattern of such acts “presumptively indicates that prison administrators have, through their programs and procedures, created an environment in which negligence is unacceptably likely.” Robert E. v. Lane, 530 F. Supp. 930, 940 (N.D. Ill. 1981). The pattern of negligent acts can become so pronounced that it poses a degree of risk that meets Farmer’s objective element. Sellers v. Henman, 41 F.3d 1100, 1102-03 (7th Cir. 1994).
As illustrated by the evidence submitted with this motion, members of the plaintiff class have suffered, currently suffer or are likely to suffer from serious medical conditions. The Seventh Circuit has adopted multiple verbal formulations for defining a “serious medical condition.” A condition is objectively serious if “a reasonable doctor or patient would find [it] important and worthy of comment or treatment…[or if it]
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significantly affects an individual’s daily activities…[or if it causes] chronic and substantial pain.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997) (citation and internal quotation marks omitted). Similarly, a medical need is serious if failing to treat it “could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’” Id. (citation omitted). The seriousness of a condition may also be evidenced by the fact that it was “diagnosed by a physician as mandating treatment or… is so obvious that even a layperson would easily recognize the necessity for a doctor’s attention.” Id. (quoting Laaman v. Helgemoc, 437 F. Supp. 269, 311 (D.N.H. 1977)). By these definitions, then, all of class members described in this motion have an objectively serious medical need, since they were diagnosed with an illness or injury that necessitated medical attention – prescription medication – to treat it. See Casey v. Cooper, 97 F.3d 914, 917 (7th Cir. 1996) (considering fact that doctor prescribed pain medication for prisoner in determining whether pain was sufficiently serious).
As noted, sometimes entire components of health care systems are so deficient that they pose a substantial risk of serious harm to the entire prisoner population. Proof of systemic deficiencies in staffing, facilities, or procedures and protocols may be sufficient to demonstrate a substantial risk of serious harm, such that “the inmate population is effectively denied access to adequate medical care.” Wellman, 715 F.2d at 272.316
As Wellman and similar cases demonstrate, faulty systems predictably cause needless suffering. For example, a medical record keeping system that fails to function can create “an objectively intolerable risk of serious injury.” Ginest v. Bd. of County
316 See also Cleveland-Pierce v. Brutsche, 881 F.2d 427, 430-31 (7th Cir. 1989) (distinguishing between individual and systemic deliberate indifference cases); Bass v. Lewis, 769 F.2d 1173. 1186 (7th Cir. 1985) (systemic deficiencies may effectively deny prisoners access to medical care in violation of the Eighth Amendment); Robert E., 530 F.Supp. at 939 (recognizing a “structural suit” that “challenges the very ‘bureaucratic dynamics at work… and not simply a collection of past, discrete, Estelle-like incidents.”).
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Commissioners of Carbon County, 333 F. Supp. 2d 1190, 1207 (D. Wyo. 2004).
Accordingly, courts will assign Eighth Amendment liability for unsafe medication
systems, as well as deficiencies in staffing, medical record keeping, sick call policies,
inadequate suicide prevention protocols, failure to supervise and train staff, failure to
provide timely acute and emergency care, under-qualified medical personnel, lack of
medical supplies, improper triage systems, insufficient resources to transport prisoners to
offsite medical visits, lack of a chief medical officer, poor organization of health care
services, and a host of other systemic conditions that create substantial risks of serious
harm to patient health and safety. Hoptowit v. Ray, 682 F.2d 1237, 1252-54 (9th Cir.
1982) (staffing, organization of health care system, access to care, medication distribution
system, medical records, facilities); Lightfoot v. Walker, 486 F. Supp. 504, 509 (S.D. Ill.
1980) (intake screening, medication distributed by unqualified persons, lack of a chief medical officer).317
In this case, TCI’s convoluted and error prone medication ordering process and its
reliance on correctional officers to administer medications to prisoners are precisely the
kind of objectively dangerous systems that give rise to Eighth Amendment liability.
317 See, also, e.g., Holmes v. Sheahan, 930 F.2d 1196, 1200 (7th Cir. 1991) (failure to adequately train staff); Bass v. Wallenstein, 769 F.2d 1173, 1186 (7th Cir. 1985) (deficiencies in sick call procedures); Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (lack of physician coverage, improper use of nonphysician staff, lack of transport to offsite care, under-qualified mental health care staff); Todaro v. Ward, 565 F.2d 48, 52 (2d. Cir. 1977) (procedures to request care, triage of complaints, follow-up on orders, observation of infirmary patients); United States v. Terrell County, 457 F. Supp. 2d 1359, 1362-64 (M.D. Ga. 2006) (inadequate staffing, record-keeping, delayed emergency care, suicide prevention, etc.); Ginest, 333 F. Supp. 2d at 1198 (medical record keeping, inadequate sick call policies, insufficient suicide prevention procedures, failure to train and supervise staff, timeliness of care); Morales Feliciano v. Rosello Gonzalez, 13 F. Supp. 2d 151, 206-11 (D.P.R. 1998) (poor organization of health care services, inadequate facilities and equipment, sick call procedures, intake screenings, etc.) Madrid v. Gomez, 889 F. Supp. 1146, 1256-59 (N.D. Cal. 1995) (inadequate staffing, training and supervision, record-keeping, intake screening, access to acute care, lack of quality control systems); Robert E., 530 F. Supp. at 939-40 (absence of meaningful mental health services).
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1. TCI’s Medication Ordering System Places Prisoners at a Substantial Risk of Serious Harm.
TCI’s convoluted medication ordering system illustrates the “agony engendered by haphazard and ill-conceived procedures” that characterize unconstitutional correctional health care systems. Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977). A system that fails to “carry out medical orders by neglecting to provide prescribed medications” will support a finding of deliberate indifference, Morales Feliciano v. Rosello Gonzalez, 13 F. Supp. 2d 151, 209 (D.P.R. 1998), as will delays and outages in delivery of prescribed medications. Aswegan v. Bruhl, 965 F.2d 676, 677-78 (8th Cir. 1992); see also Graves v. Arpaio, No. 77-0479, 2008 WL 4699770, at *32 (D. Ariz. Oct. 22, 2008) (“providing detainees’ prescription medications without interruption is essential to constitutionally adequate medical care”); Washington v. Dugger, 860 F.2d 1018, 1021 (11th Cir. 1988) (reversing summary judgment against prisoner who alleged medication outages); King v. Frank, 328 F. Supp. 2d 940, 948 (W.D. Wis. 2004) (allegation of denied medication and later treatment for symptoms caused by missed dose states independent Eighth Amendment claim).
Defendants’ own medical expert, Dr. Greifinger, told defendant David Burnett that “[f]rom a constitutional perspective,” the medication system poses a “significant risk.”318 Dr. Greifinger characterized TCI’s medication-related procedures as “tediously cumbersome” and “a very unusual system with a lot of redundant paperwork and layer upon layer of bureaucratic steps to get from the moment the physician orders a medication until the delivery of the first dose… [it] is fraught with errors….”319
318 Eber Decl. ¶ 75, Ex. Burnett-413, Burnett e-mail; Eber Dec. ¶ 30, Ex. 501, Burnett Dep. 374-377. 319 Eber Decl. ¶ 36, Ex. 507, Greifinger Dep. at 56-57
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The Defendants’ medication ordering system places prisoners at a substantial risk of serious harm. New and refill medication orders are frequently overlooked or delayed for days or weeks. (See Facts, Section I.B.1. “Delays in Processing Medication Orders,” supra at 11-19). Errors in any one of the needlessly complex steps in the ordering process may result in the wrong medication being issued, wrong doses being dispensed, or patients taking medications that are contraindicated for them. (See Facts, Section I.B.2. “Errors in Processing Medication Orders,” supra at 19-23).
Untreated pain without additional physical manifestations can be a serious medical need that satisfies the objective component of a deliberate indifference claim. See, e.g., Cooper, 97 F.3d at 916-17; see also Gutierrez, 111 F.3d at 1371 (recognizing deliberate indifference claims involving failure to treat “pain and suffering which no one suggests would serve any penological purpose”) (citation omitted). The record shows that TCI’s medication ordering system has chronic breakdowns resulting in delayed pain medications and consequently prolonged pain from, among other ailments, terminal cancer320 and shoulder separation.321 (See also Facts, Section I.B.2., supra at 15-16).
An infection, which threatens not only the health of the infected prisoner but also those to whom the infection may spread, also may constitute a serious medical need. Gil v. Reed, 381 F.3d 649, 662 (7th Cir. 2004) (“A delay in providing antibiotics will necessarily delay the curing of the infection or possibly lead to its spread”). Despite a DOC policy directing that all medications to treat active infections be initiated immediately, delays in and outright omissions of such medications are common at TCI.
320 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 354-57; Eber Decl. ¶ 22, Ex. 442, e-mail relating to Patient J.L. 321 Walden Decl. ¶ 9, Ex. 516, Medication Incident Report No. 086588.
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For example, a TCI prisoner with blood-borne MRSA, a bacterial infection that is potentially fatal if not treated promptly, did not receive a prescribed antibiotic for three days, in what the DOC’s medical director acknowledged was a “critical mistake.”322 Similarly, delays in refills of antiretroviral drugs for prisoners with HIV or even fullblown AIDS appear to be alarmingly common, leading to an increased risk of viral syndrome and even death from opportunistic infections.323 (See also Facts, Section I.B.1., supra at 12-15).
Psychiatric or psychological conditions, too, “may present a ‘serious medical need’” for treatment “under the Estelle formulation.” Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987). The “unconscionable delays” in these medications at TCI “have caused real harm in that inmates with severe psychiatric symptoms go untreated or under-treated for unreasonably long periods of time.” 324 In one of many examples, a patient did not receive four prescribed doses of oral Prolixin, a “powerful antipsychotic medication,” resulting in “escalating” acute psychosis, placement in an observation cell and an emergency injection to stabilize her. 325 (See also Facts, Section I.B.1., supra at 17-18).
As the Seventh Circuit recognized in another Eighth Amendment correctional health care case, courts “need not check [their] common sense at the door.” Gil, 381 F.3d
322 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 438-448; Eber Decl. ¶ 41, Ex. 512, Walden Dep. at 543-547; Eber Decl. ¶ 76, Ex. Burnett-423, Medication Incident Report No. 05-4262; Eber Decl. ¶ 77, Ex. Burnett424, medical record excerpts relating to Patient L.L. 323 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 363-69; Eber Decl. ¶ 24, Ex. 445, e-mails relating to Patient M.R. 324 Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 26-27. 325 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 350-52; Eber Decl. ¶ 21, Ex. 440, Medication Incident Report No. 6182.
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at 662. The pervasive risks of needless pain and suffering caused by the medication ordering system at TCI are obvious.
2. Medication Administration by Correctional Officers Places TCI Prisoners at a Substantial Risk of Serious Harm.
The use of Correctional Officers to administer medications is precisely the kind of systemic deficiency that places prisoners at a substantial risk of serious – often lethal – harm. Four times per day, Defendants place thousands of pills in the hands of unqualified officers with the knowledge that a dangerously high proportion of those pills will be given to the wrong patient in the wrong dose at the wrong time. Many of the errors will place unsuspecting prisoners at risk for life-threatening medication interactions, overdoses, allergic reactions, and other forms of pain and suffering. As the Seventh Circuit observed, “[u]nwitting ingestion of prescription drugs that are not medically indicated is not a risk inherent in prison life, nor one that the general population would willingly accept.” Bowers v. Milwaukee County Jail Med. Staff, No. 02-1259, 52 Fed. Appx. 295, 298 (7th Cir. Oct. 25, 2002) (citing Helling, 509 U.S. at 36).
TCI’s current system of medication administration poses an objectively serious risk to health and safety more than sufficient to support a finding of deliberate indifference. Hoptowit, 682 F.2d at 1252-53 (the use of under-qualified personnel to distribute medication will support a finding of deliberate indifference); Lightfoot, 486 F. Supp. at 517 (failure to properly administer medications can create “haphazard system of distribution” supporting a finding of deliberate indifference).
As the record amply demonstrates, correctional officers lack medical training and cannot reasonably be trained to understand the purpose or therapeutic effects of a medication or the significance of an outage, overdose, or failure to follow a prescribed
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dosing schedule.326 For example, patients K.F. and D.N. suffered preventable pain
because correctional officers failed to recognize the importance of their medications, and
M.L was put at risk when officers failed to realize the seriousness of being without her
antipsychotic medications.327 (See also Facts, Section II.A.1.a., supra at 32-33).
Prisoners are similarly put at substantial risk by officers’ lack of sufficient
knowledge of side effects, contraindications, and toxicity.328 In one instance, patient J.J.
received a toxic dose of the antipsychotic medication for six days.329 As one officer
noted, “We don’t know that stuff. And they’ll ask me, and I’ll laugh, ‘I can’t even
pronounce it, how would I know a side effect?’”330 (See also Facts, Sections II.A.1.a. &
b., supra at 30-32, 35-36).
Because their first priority is to maintain order and ensure security, housing unit
officers cannot devote the attention and care necessary to distribute hundreds of doses to
hundreds of prisoners each shift.331 To make matters worse, officers have little incentive
to take care: they are contractually immune from discipline for negligent medication
326 See, e.g., Eber Decl. ¶ 81, Ex. King-01, King Rep’t at 9 (“The reality is that, even if correctional officers received more training in medication side effects, their continued participation in medication dispensing and documentation constitutes a clear and present danger to the health and safety of inmates at TCI.”); Eber Decl. ¶ 45, Ex. 531, LaMarre Dep. at 236. 327 Walden Decl. ¶¶ 20-22. 328 See, e.g., Eber Decl. ¶ 68, Ex. 568, NCCHC 2002 Rep’t at 138; Eber Decl. ¶ 50, Ex. 536, Vandestreek Dep. at 53; Eber Decl. ¶ 45, Ex. 531, LaMarre Dep. at 236, 246; Eber Decl. ¶ 46, Ex. 532, Camp Dep. 5051; Eber Decl. ¶ 47, Ex. 533, Albertson Dep. at 22, 24; Eber Decl. ¶ 48, Ex. 534, Peterson Dep. 31:2132:16; Eber Decl. ¶ 49, Ex. 535, LAB Report at 46; Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 13; Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 389-90. 329 Walden Decl. ¶ 23. 330 Eber Decl. ¶ 46, Ex. 532, Camp Dep. at 68-69. 331 See Eber Decl. ¶ 45, Ex. 531, LaMarre Dep. at 236-37; Eber Decl. ¶ 47, Ex. 533, Albertson Dep. 88-91; Eber Decl. ¶ 86, Ex. Ottolini-251, Ottolini Rep’t at 7. Nor are officers capable of recognizing errors when they occur. Eber Decl. ¶ 6, Ex. 165, Rawski Rep’t at 18; Eber Decl. ¶ 45, Ex. 531, LaMarre Dep. at 241; Eber Decl. ¶ 5, Ex. 129, Robbins Rep’t at 5-6.
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errors.332 The inevitable errors that ensue cause real, observable pain and suffering as
well as substantial risks of pain and suffering in the future. For example, officer errors
placed patient T.F. at risk for anticholinergic intoxication syndrome (symptoms of which
include hallucinations, psychosis, and fever) and heart patient P.H. at risk of serious renal and cardiac complications.333 (See also Facts, Section II.A.2., supra at 40-46).
When errors do occur, the evidence suggests that officers are less likely than medical personnel to file reports.334 Even when guards correctly administer a medication
as prescribed, there is an unacceptable likelihood that the officer will improperly
document the dose on the patient’s Medication Administration Record, or not document the dose at all, placing patients at additional grave risks.335 (See also Facts, Section
II.B.1., supra at 49-53, and Section II.B.2, supra at 53 -56).
The high degree of risk posed by the use of security staff to administer
medications was apparent to a range of experts who looked at TCI’s system. Dr. Lambert
King, for example, concluded that the practice “constitutes a clear and present danger to the health and safety of inmates at TCI.”336 Even Defendants’ medical expert, Dr.
Greifinger, bemoaned the poor quality of medication documentation by officers and
332 Eber Decl. ¶ 88, Ex. Vandestreek-01, WSEU Contract, at 201; Eber Decl. ¶ 46, Ex. 532, Camp Dep. at 89-92. 333 Walden Decl. ¶¶ 25, 28; Eber Decl. ¶ 29, Ex. 500, Meress Dep. 380-83. 334 Eber Decl. ¶ 58, Ex. 558, Medication Incident Study FY1999 Final Report at 2. See also Eber Decl. ¶ 49, Ex. 535, LAB Rep’t at 46; Eber Decl. ¶ 85, Ex. Meier-2-12, Medication Incident Study FY2000 and 2001 Draft 3 at 11. 335 See, e.g., Eber Decl. ¶ 36, Ex. 507, Greifinger Dep. at 58; Eber Decl. ¶ 68, Ex. 568, NCCHC 2002 Rep’t at 138-39; Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 14; Eber Decl. ¶ 7, Ex. 202, Greifinger Rep’t at 8; Eber Decl. ¶ 38, Ex. 509, Meier Pharmacy Dep. at 80-81; Eber Decl. ¶ 84, Ex. Meier-2-10, Medication Audits. 336 Eber Decl. ¶ 81, Ex. King-01, King Rep’t at 9; see also Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 13 (medication distribution by officers “raises a significant risk to inmates at TCI…”).
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explained how shoddy documentation can place patients at risk of overdoses or other adverse health outcomes.337 (See also Facts, Section II.B., supra at 49, 53-54).
The numerous medication errors made by corrections officers, and the cumulative risk those errors reflect, prove that there is an objectively substantial risk of serious harm inherent in the continued use of corrections officers to distribute prescription medications.
B. Defendants Are Subjectively Aware of The Risks But Have Repeatedly Failed to Take Reasonable Steps to Abate Them. Defendants have long known of the risks posed by the medication ordering and
administration systems, thus satisfying the subjective element of deliberate indifference. Farmer, 511 U.S. at 842 (plaintiffs may satisfy subjective element of deliberate indifference claim by showing prison “official acted or failed to act despite his knowledge of a substantial risk of serious harm.”). Eighth Amendment plaintiffs can prove subjective deliberate indifference indirectly, through circumstantial evidence or by showing that the risk of harm was so obvious that the defendants must have known of it. See Mayoral v. Sheahan, 245 F.3d 934, 938-39 (7th Cir. 2001) (describing methods of proving knowledge for Farmer analysis). However, in this case, such indirect proof is unnecessary. Defendants have actual knowledge of the substantial risks of serious harm inherent in both the medication ordering system and their insistence on using correctional officers to administer medications.
337 Eber Decl. ¶ 36, Ex. 507, Greifinger Dep. 59-63.
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1. Defendants Know the Medication Ordering System Poses Substantial Risks.
Defendants have long known of the extensive delays and errors caused by DOC’s
malfunctioning medication ordering process.338 Indeed, they have freely admitted as
much.339
Defendants Dr. David Burnett, Dr. Kevin Kallas and Dr. Steven Meress, as
members of the Pharmacy and Therapeutics Committee, received graphs showing
numerous medication errors caused by the manual process of taking medication orders
from the chart and transmitting them to pharmacy or to the housing units.340 Similarly,
pharmacy “Turnaround Audits” revealed routine delays of several days in the processing
of medications at CPS as well as between the writing and faxing of orders from TCI.341
Reports by the USDOJ and DOC consultants alerted Defendants that delays and errors in
the medication processing system at TCI caused harm and posed substantial risks to TCI
prisoners taking psychiatric medications.342
Moreover, Defendants’ own clinicians repeatedly complained to Defendants
about serious delays and errors resulting from the medication ordering process.343
338 As early as 2002, a report by the National Commission on Correctional Health Care (NCCHC) identified serious problems with WDOC’s manual medication ordering system. Eber Decl. ¶ 68, Ex. 568, NCCHC 2002 Report at 74-75, 210-11.
339 Eber Decl. ¶ 34, Ex. 505, Kallas Dep. at 334-37; Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 114-115,
124-26, 131-32. 340 Eber Decl. ¶ 72, Ex. Burnett-401, Prescriber & Therapeutic Committee minutes for October 19, 2005 and attached medication error graphs; Eber Decl. ¶ 73, Ex. Burnett-402, Prescriber & Therapeutic Committee minutes for July 26, 2006 and attached medication error graphs; Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 332-33. 341 Eber Decl. ¶ 20, Ex. 439; Eber Decl. ¶ 42, Ex. 528, “Pharmacy Turnaround Audit” at DOCTCI00278597-98. 342 Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 26-27; Eber Decl. ¶ 71, Ex. Burnett-400 at DOCTCI00278407, 8411, 8415 (TMG “Central Pharmacy Facilitation Project Findings” March 2007). 343 Eber Decl. ¶ 35, Ex. 506, Atkinson Dep. at 138; Eber Decl. ¶ 78, Ex. Kallas-250, e-mail from Schneider
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Despite this actual knowledge of the risk of harm, Defendants have failed to take reasonable steps that they know would reduce the risk. For example, Defendants know that implementation of a computerized prescriber order entry (CPOE) system should cause delays and errors to “plummet.”344 DOC expects implementation of a CPOE system to be relatively inexpensive and to save the DOC money in the long run.345 Despite the known advantages, Defendants have failed to take meaningful steps toward implementation at TCI, at least in part because DOC has not made CPOE a high enough priority.346 To the extent that CPOE may be implemented at TCI in the future, it is likely at first to be used only for refills and only at some unspecified, possibly distant, time will new orders be included.347 Similarly, Defendants have failed to adopt measures that appear to have allowed some other DOC institutions to experience substantially fewer medication problems, even without CPOE.348
2. Defendants Know Using Correctional Officers to Distribute Medications Poses Substantial Risks.
Defendants’ knowledge of the risks of harm posed by the continued use of correctional officers to distribute medication is best evidenced by the fact that two of the named defendants believe the practice falls short of the standard of care in correctional
to Kallas; Eber Decl. ¶ 34, Ex. 505, Kallas Dep. at 334-37. 344 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 244-45, 332-33. 345 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 245-46. 346 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 326-328. 347 Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 329-30. 348 Eber Decl. ¶ 35, Ex. 506, Atkinson Dep. at 138-40 (describing better medication process at Kettle Moraine Correctional Institution); Eber Decl. ¶ 73, Ex. Burnett-402, Prescriber & Therapeutic Committee minutes for October 19, 2005 and attached medication error graphs (graph depicting smaller number of medication errors at most other DOC institutions).
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medicine.349 Further, various internal and external reports as well as the findings of their own expert witnesses remind Defendants on an almost annual basis that their stubborn refusal to switch to using trained medical personnel places prisoners in grave danger.350 Moreover, the fact that the union representing correctional officers negotiated a contract term immunizing officers from liability for negligence in distributing medications put the Defendants on notice of the risk of using officers.351
II. PLAINTIFFS HAVE A RIGHT TO PRELIMINARY INJUNCTIVE RELIEF.
Plaintiffs seek a preliminary injunction requiring Defendants to prepare and implement a plan (i) to ensure that all controlled medications at TCI be distributed by trained medical personnel with credentials equal to or greater than those of LPNs; and to prepare and implement a plan (ii) to ensure that Defendants timely, accurately, and reliably process medication orders and dispense and administer prescribed medications, complying with Wisconsin Department of Corrections Policy and Procedure 800:02 Corrections Policy and Procedure 800:02 as modified by the terms of the proposed Order. Plaintiffs ask that a preliminary plan be due seven days after the date that the Court issues its injunction; that a final plan be due thirty-seven days after the date that the Court issues
349 Eber Decl. ¶ 29, Ex. 500, Meress Dep. at 123-24, 323; Eber Decl. ¶ 30, Ex. 501, Burnett Dep. at 305 (“I think that licensed practical nurses is the level of health professional that you should have delivering medications there, I would agree with that, or at least someone trained along a similar level.”). 350 See, e.g., Eber Decl. ¶ 17, Ex. 398, WDOC Status Report & Plans 2006 at 30; Eber Decl. ¶ 7, Ex. 202, Greifinger Rep’t at 8; Eber Decl. ¶ 18, Ex. 399, USDOJ Rep’t at 13; Eber Decl. ¶ 31, Ex. 502, Rawski Dep. at 241; Eber Decl. ¶ 6, Ex. 165, Rawski Rep’t at 18; Eber Decl. ¶ 49, Ex. 535, LAB Rep’t at 45-46; Eber Decl. ¶ 68, Ex. 568, NCCHC 2002 Rep’t at 138, 211. 351 See Eber Decl. ¶ 88, Ex. Vandestreek-01, WSEU Contract.
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its injunction; and that Defendants comply with the terms of the order by instituting the
plans within sixty days.
A. The Requirements of the PLRA Are Met.
For the reasons set forth below, the requested relief is consistent with the
requirements of the Prison Litigation Reform Act of 1995, 18 U.S.C. § 3626(a)(2)
(“PLRA”). Moreover, Plaintiffs have established a right to injunctive relief.
The relevant provisions of the PLRA require the following with regard to
preliminary injunctions:
Preliminary injunctive relief.–In any civil action with respect to prison conditions, to the extent otherwise authorized by law, the court may enter a temporary restraining order or an order for preliminary injunctive relief. Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means to correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity set out in paragraph (1)(B) in tailoring any preliminary relief. 18 U.S.C. § 3626(a)(2).352
All courts to address the issue have held that, with regard to litigated decrees, the
PLRA does not change the standards for issuance of an injunction. Armstrong v. Davis,
275 F.3d 849, 872 (9th Cir. 2001); Smith v. Arkansas Dep’t of Corr., 103 F.3d 637, 647
(8th Cir. 1996) (“The Act merely codifies existing law and does not change the standards
of whether to grant an injunction.”); Williams v. Edwards, 87 F.3d 126, 133 n.21 (5th Cir.
1996) (same). This principle specifically applies to preliminary injunctions. Jones’El v.
352 18 U.S.C. § 3626(a)(1)(B) involves injunctive relief that violates state law. Essentially, that provision provides that relief that violates state law can be imposed only if such a remedy is the sole relief that will correct the violation of federal law.
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Berge, 164 F. Supp. 2d 1096, 1116 (W.D. Wis. 2001). Further, the ninety-day time limitation imposed on the length of preliminary injunctions imposed by the PLRA does not affect the ability of a court to enter a series of preliminary injunctions, as long as relief is specifically re-entered at the appropriate times. Mayweathers v. Newland, 258 F.3d 930, 936 (9th Cir. 2001).
The general remedy requested by Plaintiffs is an order that Defendants prepare plans, so the proposed order intrinsically provides guarantees that it meets the PLRA requirements that such relief be narrowly drawn and no broader than necessary. Thus in Armstrong, the court of appeals rejected the defendants’ argument that an order was insufficiently narrowly tailored or overly intrusive when the order allowed the defendants to develop the policies and practices that would eliminate conditions that violate the rights of disabled prisoners, even though the resulting injunction included a number of quite detailed provisions. 275 F.3d at 872-73; cf. Cason v. Secksinger, 231 F.3d 777, 785 n.8 (11th Cir. 2000) (a court may accept a defendant’s concession that PLRA’s requirements for factual findings are met).
For the same reasons that were persuasive in Armstrong and Cason, the order proposed by Plaintiffs will result in relief that is no broader than necessary to correct the violation and that is minimally intrusive. The order requires Defendants to focus on critical constitutional violations and take concrete steps to address them. By requiring that the plans be developed by Defendants, but that Defendants obtain court approval for those plans, the proposed order is carefully designed not to infringe on Defendants’ discretion unnecessarily:
By her injunction, the thorough and extremely patient district judge did not attempt to “micro manage” the Board’s activities, but rather to set
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clear objectives for it to attempt to attain, and, in most circumstances, general methods whereby it would attain them. Armstrong at 873. Similarly, Plaintiffs’ proposal that the requested injunction require that medications be distributed by properly trained medical personnel is the narrowest relief that is likely to address the constitutional violation. See Armstrong at 873 (affirming district court PLRA findings regarding necessity of injunction requiring hiring staff and providing additional training to other staff); cf. Morales Feliciano v. Rullan, 378 F.3d 42, 55 (1st Cir. 2004) (remedy requiring that prison health care system be privatized was appropriate under PLRA in light of specific record showing constitutional failures). Further, Plaintiffs’ proposed remedy, to the extent that it requires modifications to Defendants’ current medication prescription practices, is also narrowly tailored and no more intrusive than necessary. The proposal deviates from Defendants’ current policy as little as possible, consistent with the need to cure the constitutional violation shown by the record in this case. By establishing general standards for Defendants’ staff to follow, the proposed remedy actually avoids micro-management by the Court. See Benjamin v. Fraser, 343 F.3d 35, 53-54 (2d Cir. 2003) (rejecting jail defendants’ argument that the district court should have examined every window in jail to determine whether each needed to be fixed to assure constitutional conditions; a comprehensive repair program under the circumstances was in fact less intrusive than an individual review of each window in the jail). Finally, the proposed order, by serving to promote constitutional levels of health care, will promote the public safety by removing a source of prisoner unrest. In Johnson v. California, 543 U.S. 499 (2005), the Supreme Court noted, in connection with a
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challenge to prison racial segregation, that racial segregation may exacerbate hostility and violence among prisoners. Id. at 507-508. Fixing the medication system here will actually promote safety, by removing a source of unrest.
B. Plaintiffs Meet the Standard for Issuance of a Preliminary Injunction. As set forth above, a party seeking a preliminary injunction must demonstrate (1)
that it has some likelihood of success on the merits, (2) that there is no adequate remedy at law, and (3) that it will suffer irreparable harm if the injunction is not granted. AM Gen. Corp., 311 F.3d at 803. If the party meets this burden, the court must consider “the irreparable harm that the nonmoving party will suffer if preliminary relief is granted, balancing such harm against the irreparable harm the moving party will suffer if relief is denied,” and consider the public interest. Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001). Plaintiffs satisfy each of these elements.
As explained in Section I of the Argument, Plaintiffs have demonstrated a substantial likelihood of success on the merits of their claim that the medication ordering and distributions systems at TCI violate the Eighth Amendment.
With respect to irreparable harm, the Seventh Circuit has recognized that receiving inadequate – or even substandard – medical care is an irreparable injury sufficient to support injunctive relief. Am. Med. Ass’n v. Weinberger, 522 F.2d 921 (7th Cir. 1975); see also Graham v. Med. Mut. of Ohio, 130 F.3d 293, 296 (7th Cir. 1997) (plaintiff would suffer irreparable harm if treatment sought but denied would be “more effective”). Putting a patient’s life in danger is, by definition, an irreparable injury. The Defendants’ own employees and agents, reports and experts recognize the inherent dangers in the current medication ordering system and in medication distribution by
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correctional officers, both in the abstract and light of the history of specific incidents. In addition, as described in detail above, several incidents that endangered the health and lives of Plaintiffs on a number of occasions (and left many in severe pain) could have been avoided if the requested relief were in place.
Finally, Defendants will not suffer irreparable harm if the preliminary injunction is granted, nor will the public interest be harmed. Simply incurring expenses is not irreparable harm. See, e.g., Classic Components Supply, Inc. v. Mitsubishi Elec. Am., Inc., 841 F.2d 163, 164-65 (7th Cir. 1988).
Moreover, the public interest is actually promoted by granting Plaintiffs’ motion, because it will save lives and avoid unnecessary suffering. Indeed, as argued above, the public safety generally will be promoted by requiring Defendants to comply with their affirmative obligation to provide necessary health care, as such compliance will remove a potentially explosive source of for unrest among prisoners.
CONCLUSION For the reasons set forth above, this Court should grant Plaintiffs’ motion and order Defendants to prepare and implement a plan (i) to ensure that all controlled medications at TCI be distributed by trained medical personnel with credentials equal to or greater than those of LPNs; and to prepare and implement a plan (ii) to ensure that Defendants timely, accurately, and reliably process medication orders and dispense and administer prescribed medications in accordance with Wisconsin Department of Corrections Policy and Procedure 800:02 as modified by the terms of the proposed Order.
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Dated this 23rd day of January, 2009.

Respectfully submitted,
/s Gabriel B. Eber
Gabriel B. Eber D.C. Bar No. 483021 Elizabeth Alexander National Prison Project of the ACLU Foundation 915 15th Street, N.W., 7th Floor Washington, D.C. 20005 Tel: (202) 393-4930 Fax: (202) 393-4931 Email: geber@npp-aclu.org
Laurence J. Dupuis State Bar No. 1029261 American Civil Liberties Union of Wisconsin Foundation 207 E. Buffalo St., # 325 Milwaukee WI 53202 Tel: (414) 272-4032 Fax: (414) 272-0182 Email: ldupuis@aclu-wi.org
Robert L. Graham Keri L. Holleb Hotaling Michael R. Strong Jenner & Block LLP 330 N. Wabash Ave. Chicago, IL 60611-7603 Telephone: (312) 222-9350 Email: mstrong@jenner.com
Attorneys for Plaintiffs

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

KRISTIN FLYNN, et al., on behalf of themselves and all others similarly situated,
Plaintiffs, -vsJIM DOYLE, et al.,
Defendants.

Case No. 06-C-537

DECISION AND ORDER

This action, filed May 1, 2006, alleges inter alia that the medical and mental
health care provided to prisoners at the Taycheedah Correctional Institution (TCI) in Fond
du Lac, Wisconsin, violates the Eighth Amendment to the United States Constitution and
Title II of the Americans with Disabilities Act. On March 14, 2007, this Court certified this
case as a class action for injunctive and declaratory relief pursuant to Fed. R. Civ. P.
23(b)(2). The Court defined the class as follows:
(1) the TCI Class, on whose behalf representative plaintiffs bring constitutional claims in this action is defined as: “all prisoners who are now or in the future will be confined at TCI;” and
(2) the ADA Subclass, on whose behalf representative plaintiffs bring statutory claims in this action, is defined as: “all individuals with disabilities who are now or in the future will be confined at TCI.”

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(Decision and Order, March 14, 2007, at 29.) The plaintiffs filed a motion for a preliminary

injunction, which will be addressed herein.

The plaintiffs seek preliminary injunctive relief “to protect them from the

serious, ongoing risks to their health posed by a chaotic medication ordering and

administration system.” (Pls.’ Br. in Support of Mot. for Prel. Inj. [Pls.’ Br.] at 60.) The

plaintiffs contend that they are likely to succeed on the merits of their claims that TCI’s

systems of medication ordering and administration violate the Eighth Amendment.

Specifically, they assert that the defendants’ medication ordering and administration systems

create an objectively substantial risk of serious harm to TCI prisoners because, 1) TCI’s

medication ordering system places prisoners at a substantial risk of serious harm, and

2) medication administration by correctional officers places TCI prisoners at a substantial

risk of serious harm. The plaintiffs further assert that the defendants are subjectively aware

that the medication ordering system poses substantial risks and that using correctional

officers to distribute medications poses substantial risks but have repeatedly failed to take

reasonable steps to abate such risks. For the reasons that follow, the Court agrees and finds

that injunctive relief is necessary to bring these ongoing constitutional violations to a halt.

I.

TCI’s Medication Ordering System

According to the plaintiffs, TCI’s “convoluted and archaic” medication

ordering process frequently causes “unconscionable” and “shocking” delays in the delivery

of medications to prisoners. (Pls.’ Br. at 4.) Due to its reliance on multiple manual

2

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transcriptions of information, the process is “fraught with errors,” which results in patients
routinely receiving wrong medications, medications that should have been discontinued,
wrong dosages of medications, and medications that cause adverse interactions with other
medications. Id.
After the filing of this lawsuit and an investigation of TCI’s mental health
services by the U.S. Department of Justice, the Wisconsin Department of Corrections (DOC)
formed a Pharmacy Transformation Workgroup (PTW) to explore deficiencies in the
pharmacy system. The PTW summarized the problem as follows:
DOC prescribers hand-write medication orders on paper, which are then faxed to the Central Pharmacy. Refills of orders are handled similarly, with tear off bar codes adhered to a page that is later faxed to the CP. Too much time is wasted in the process of prescribers’ handwriting the medication order, HSU [Health Services Unit] staff photocopying the order and then faxing it to the Central Pharmacy. Current faxed orders are frequently difficult to read. There are problems with illegibility of prescribers’ handwriting, confusion over the inmate/patient’s medication record or incompatibility of complex medications that lead to Pharmacist intervention. This type of intervention slows down the medication order process significantly. . . . Medication errors, which carry with them reverberations of liability far into the future, are also a potential.
(Pls.’ Br. at 5.) The PTW concluded that replacing the current process of faxing handwritten
medication to the DOC’s Central Pharmacy Services with a computerized prescriber order
entry system (CPOE) “should be DOC’s first priority in improving pharmaceutical services.”
Id. A CPOE system would “eliminate the current time consuming processes of fax receipt
and sortation, and manual entry of order information into [WDOC’s pharmacy management
3
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computer] system,” help obviate “further delays while pharmacists or other CP staff contact

institution HSUs to clarify what faxed orders actually say,” and “greatly reduce[]”

“[m]edication errors” by, among other things, “flagg[ing] for medication contraindications.”

(Id. at 5-6.)

The defendants are aware that TCI’s current medication ordering process

causes delays and errors and that implementation of a CPOE system should cause the delays

and errors resulting from the current system to “plummet.” (See Pls.’ Br. at 24-27.) The

plaintiffs conclude that the substantial risk of serious harm facing the women at TCI under

the current system is intolerable and that because the defendants have been unable or

unwilling to act expeditiously to abate the risk, this Court must order them to do so.

II.

TCI’s Medication Administration System

Currently, correctional officers administer medications to prisoners in five out

of TCI’s seven housing units. Thus, in those five units officers bear sole responsibility for

simultaneously maintaining order, determining which medications to give to which prisoners,

and managing a cart full of blister-packed pills and paperwork. Correctional officers

“routinely administer wrong doses to the wrong prisoners at the wrong times and improperly

memorialize the transaction on a document that will ultimately become part of the prisoner’s

permanent medical record.” (Pls.’ Br. at 29.) This “is a dangerous practice that must be

stopped immediately.” Id. The danger arises in two primary areas: (1) the actual

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administration of the medication to the prisoner; and (2) the documentation of the dose on
the prisoner’s Medication Administration Record.
First, correctional officers cannot safely administer medications. Rather, the
plaintiffs assert that the administration of medication to patients is a nursing function that
should be reserved for trained nursing staff, namely licensed practical nurses (LPNs). The
DOC’s 2006 self-assessment provides a statement of the problem:
Risk management is an ongoing concern of the Department with the current practice of correctional officers distributing controlled medications throughout the correctional system. Officers do not have the clinical training to recognize the various medications by name, their uses, potential and actual side effects, and whether or not the medications are effective and being properly taken (such medications include psychotropics, narcotics, and other classifications of drugs).
(Id.)
Second, medication documentation is a medical task “simply too important to
delegate to untrained or undertrained security staff.” (Pls.’ Br. at 48.) Correctional officers
do not properly document medication administration. Medication documentation is a nursing
function.
Without a written record of the disposition of every dose of medication, pharmacotherapy unravels. Medication Administration Records are a critical component of a patient’s medical chart and the importance of their proper completion flows from the medical axiom that without documentation, there is no way to demonstrate that care was given. Correct documentation of doses is vital to determining patient compliance with medication regimens, assessing clinical
5
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effectiveness, assessing the need to modify treatment plans, and preventing accidental overdoses and similar errors.
(Id. at 53.)
The plaintiffs contend that LPNs should be substituted for correctional officers
to administer medication to TCI prisoners. Their substitution is a readily identifiable and
necessary remedy to the serious risks associated with officer-administered medications.
Moreover, the defendants have been aware of the remedy for nearly eight years. According
to the plaintiffs, this longstanding knowledge of the dangers combined with a long history
of obstinacy demonstrates a collective, system-wide indifference to the serious medical needs
of TCI prisoners.
In 2006, WDOC proclaimed that “[t]he Department is committed to developing a long-term, viable alternative to the practice of correctional officers distributing medications.” Regrettably, the Department’s actions have yet to match its rhetoric. An internal budget issue paper recalls a decade of bureaucratic indifference by various WDOC officials and the Governor himself. In every biennial budget cycle since 1997, requests were made to replace correctional officers with health care staff for the purpose of medication distribution. Each one of those requests was denied or otherwise unfulfilled. Telling is the justification for refusing to include the staffing request in WDOC’s final budget request: “[a]lthough high error rates by officers had been noted by HS, no documentation could be provided, and it was believed that additional training could address error rate issues.”
(Id. at 58.)
The defendants do not dispute the plaintiffs’ factual findings. Rather, they
contend that the plaintiffs are not entitled to a preliminary injunction on the medication
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ordering issue because the DOC plans to implement a CPOE system at TCI and because the time frame proposed by the plaintiffs is unreasonable. The defendants further contend that the plaintiffs are not entitled to a preliminary injunction on the medication distribution issue because the DOC has initiated a plan to hire appropriately trained health care staff, certified nursing assistants (CNAs), to distribute medications at TCI and because the time frame proposed by the plaintiffs is unreasonable.
In reply, the plaintiffs request that, at a minimum, this Court should order the defendants to implement a CPOE system according to the time frame set forth in their pleadings and to put in place interim measures to reduce dangerous errors during the transition. The plaintiffs contend that the defendants’ proposed plan to administer medication will not remedy the dangers posed by the current medication distribution system. Specifically, they argue that the use of CNAs to administer medication is unacceptable because they lack essential training in general pharmacology, psychopharmacology and physiology, and even with the additional, approximately twelve and a half eight-hour days of training proposed by the defendants, would still lack essential knowledge and skill necessary to distribute medication at TCI. In addition, defendant Burnett believes that LPNs, or personnel with the same level of training, should deliver medications at TCI, given the acuity level of the patients. LPNs have a year of training while the CNAs envisioned by the defendants would have approximately 175 hours.
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III.

Injunctive relief

A party seeking a preliminary injunction must demonstrate that she is

reasonably likely to succeed on the merits, that she is experiencing irreparable harm that

exceeds any harm her opponent will suffer if the injunction issues, that she lacks an adequate

remedy at law, and that the injunction would not harm the public interest. Christian Legal

Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006). “If the moving party meets this threshold

burden, the district court weighs the factors against one another in a sliding scale analysis .

. . which is to say the district court must exercise its discretion to determine whether the

balance of harms weighs in favor of the moving party or whether the nonmoving party or

public interest will be harmed sufficiently that the injunction should be denied.” Id.; see

Joelner v. Vill. of Wash. Park, 378 F.3d 613, 619 (7th Cir. 2004).

In order to prevail in an Eighth Amendment challenge to inadequate medical

care, a prisoner must show both that the risk of harm to the prisoner is objectively “serious”

and that the defendant was subjectively “deliberately indifferent” to the risk of harm. Farmer

v. Brennan, 511 U.S. 825, 834 (1994). Plaintiffs have more than a negligible chance of

demonstrating at trial that (1) the continued use of correctional officers to distribute

medications at TCI poses a substantial risk of serious harm to members of the class and that

the defendants know of this risk but failed to take reasonable steps to abate it; and (2) the

current system of filling medication orders at TCI poses a substantial risk of serious harm to

members of the class and that the defendants know of this risk but have failed to take

8

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reasonable steps to abate. See, e.g., Ginest v. Board of County Com’rs of Carbon County, 333 F. Supp. 2d 1190, 1207 (D. Wyo. 2004) (inmates face “an objectively intolerable risk of serious injury due to deficiencies in the jail’s medical record keeping system”); Hoptowit v. Ray, 682 F.2d 1237, 1252-54 (9th Cir. 1984) (Eighth Amendment violation because of inadequate staffing, organization of health care system, access to care, medication distribution system, medical records, and facilities).
In addition, the plaintiffs have no adequate remedy at law in that only injunctive relief will alleviate the risks at which they are placed by the defendants’ acts and omissions. Furthermore, if the motion for preliminary injunction is denied, the plaintiffs will suffer irreparable harm in the form of continued medication errors and delays, which will result in life-threatening risks, the exacerbation of chronic and acute serious medical conditions, and unnecessary pain and suffering. Given the plaintiffs’ likelihood of success on the merits, the irreparable harm caused by denying the plaintiffs’ motion for preliminary injunction outweighs any irreparable harm experienced by the defendants as a result of complying with the terms of this Order. The public has a strong interest in the provision of constitutionally-adequate health care to prisoners and this public interest argues in favor of granting the motion for preliminary injunction.
Finally, the Court recognizes its duty to defer to prison officials in matters of prison safety and administration. For example, defendants note that their implementation of CPOE is being delayed because of the installation of a digital video camera enhancement
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meant to enhance security at a different facility. Defendants also cite budgetary concerns in response to plaintiffs’ request for injunctive relief. However, matters of administrative convenience must ultimately give way when constitutional rights are in jeopardy. “[V]indication of conceded constitutional rights cannot be made dependent upon any theory that it is less expensive to deny than to afford them.” Watson v. City of Memphis, 373 U.S. 526, 537 (1963); see also Ancara v. Prison Health Servs., Inc., 769 F.2d 700, 705 (11th Cir. 1985) (“Lack of funds for facilities cannot justify an unconstitutional lack of competent medical care and treatment for inmates”). In recognition of the state’s substantial interest in the efficient and safe operation of their prison system, the Court will ensure that the injunction in this case is “narrowly drawn, extend[s] no further than necessary to correct the harm . . . , and [is] the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2) (Appropriate remedies with respect to prison conditions under the Prison Litigation Reform Act).
ORDER IT IS THEREFORE ORDERED that the plaintiffs’ motion for preliminary injunction (Docket #123) is GRANTED as to their petition that all controlled medications at Taycheedah Correctional Institution (TCI) be distributed by trained medical personnel with credentials equal to or greater than those of Licensed Practical Nurses (LPNs) as defined by Wis. Stat. § 441.10. The defendants shall ensure that LPNs distributing medications are
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trained in institution-specific and department-specific medication administration and documentation practices and protocols.
a. The defendants or their authorized agents are directed to submit to the Court and to the plaintiffs a preliminary plan for implementing this provision within seven (7) days of the entry of this Order.
b. The defendants or their authorized agents are directed to submit to the Court and to the plaintiffs a final plan for implementing this provision within thirty-seven (37) days of the entry of this Order.
c. The defendants shall commence full compliance with the terms of this provision no later than sixty (60) days from the entry of this Order. The defendants shall submit to the Court and to the plaintiffs attesting to their compliance and appending the names and proof of licensing for all employees administering controlled medications at TCI.
d. Upon reasonable notice to the defendants, the plaintiffs shall have the right to enter TCI and observe medication administration and documentation.
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IT IS FURTHER ORDERED that the plaintiffs’ motion for preliminary injunction (Docket #123) is GRANTED as to their petition that the defendants timely, accurately, and reliably process medication orders and dispense and administer prescribed medications.
a. The defendants shall implement the computerized prescriber order entry (CPOE) system according to (and no later than) the timetable set forth in their pleadings.
b. The defendants shall propose an implement a plan within sixty (60) days to take such interim steps as necessary to ensure timely and accurate medication order processing until CPOE is implemented and shown to be effective.
IT IS FURTHER ORDERED that the parties submit brief position statements on the necessity of an injunction bond pursuant to Fed. R. Civ. P. 65(c) within seven (7) days of the date of this Order.
Dated at Milwaukee, Wisconsin, this 24th day of April, 2009. SO ORDERED, s/ Rudolph T. Randa HON. RUDOLPH T. RANDA Chief Judge
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

KRISTINE FLYNN, LENDA FLOURNOY, VERNESSIA PARKER and DEBBIE ANN RAMOS, on behalf of themselves and all others similarly situated,

Plaintiffs, -vs-

Case No. 06-C-537

JIM DOYLE, Governor of Wisconsin; MATTHEW FRANK, Secretary, Wisconsin Department of Corrections (WDOC); JAMES GREER, Director, WDOC Bureau of Health Services (BHS); DAVID BURNETT, M.D., Medical Director, BHS; KEVIN KALLAS, M.D., Mental Health Director, BHS; DONALD HANDS, Ph.D., Psychology Director, BHS; BARBARA RIPANI, Dental Director, BHS; ANA BOATWRIGHT, Warden, Taycheedah Correctional Institution (TCI); HOLLY MEIER, R.N., Health Services Unit Manager, TCI; STEVEN MERESS, M.D., Supervising Physician, TCI,

Defendants.

DECISION AND ORDER

Taycheedah Correctional Institution (TCI) is a maximum and medium security facility that houses Wisconsin’s female prisoners. This class action alleges that the medical, dental and mental health care provided to prisoners at TCI violates the Eighth Amendment, the Equal Protection Clause of the Fourteenth Amendment, Title II of the Americans with Disabilities Act, and § 504 of the Rehabilitation Act.

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On March 14, 2007, the Court granted plaintiffs’ motion for class certification. The TCI Class is defined as “all prisoners who are now or in the future will be confined at TCI.” The ADA Subclass is defined as “all individuals with disabilities who are now or in the future will be confined at TCI.” Plaintiffs, on behalf of the TCI Class and ADA Subclass, request declaratory and injunctive relief to rectify the ongoing violations of federal and constitutional law at TCI.
On April 24, 2009, the Court granted plaintiffs’ motion for a preliminary injunction with respect to medication processing and distribution. The Court’s injunction, which remains in effect, provides that all controlled medications must be distributed to TCI inmates by trained medical personnel. The Court’s injunction also provides that medication orders must be processed and dispensed in a timely, accurate, and reliable manner.
Now before the Court is the defendants’ motion for partial summary judgment. This motion is directed at all claims except those related to medication delivery. For the reasons that follow, defendants’ motion is granted, but only to the extent that it seeks dismissal of claims related to dental care. In all other respects, defendants’ motion is denied.
BACKGROUND Overview of TCI
The Taycheedah Correctional Institution was originally opened in 1921 as the Wisconsin Industrial Home for Women, housing women between the ages of 18 and 30 incarcerated for “moral” crimes. Women committing major crimes were sent to the Waupun Correctional Institution (“WCI”). In 1933, the two populations were combined at TCI. In
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1975, the institution officially became known as the Taycheedah Correctional Institution.

TCI is the only medium/maximum security institution in the State of Wisconsin for female

inmates. TCI maintains an approximate population of 700 inmates. TCI has approximately

325 staff members, 167 of which are security staff.

In December 2004, as part of the process for creating a new Wisconsin Women’s

Correctional System (“WWCS”), DOC moved intake, or Assessment and Evaluation

(“A&E”), for all newly incarcerated female inmates from the Dodge Correctional Institution

to TCI. Upon intake, inmates go through a 6-8 week assessment and evaluation process to

determine custody and programming needs. On August 21, 2005, TCI officially became part

of the new WWCS. The WWCS brings all DOC female adult correctional facilities, TCI and

female correctional centers, under one appointing authority.

TCI has seven (7) individual housing units:

•

Addams Hall: Opened in 1933, Addams Hall houses offenders involved in

AODA Treatment. The 1st floor is occupied with staff offices, the 2nd floor

is a modified residential treatment unit for 3 fulltime programs, and the 3rd

floor houses inmates with an identified AODA treatment need, when open due

to bed needs.

•

Harris Hall: Opened in 1921, Harris Hall is a medium security unit for mature

inmates. Harris Hall has two floors of rooms with 1 to 4 offenders per room.

Inmates living in Harris Hall must be at least 40 years old and have good

behavior.

•

Abrahamson Unit (“AB”): This unit was originally opened in 1995 and

housed the maximum security inmates. In 2004, this unit was named the

Abrahamson Unit and the medium security inmates were moved to this unit.

It is a 96-cell unit with a maximum capacity of 184 offenders. Offenders are

housed two per cell with the exception of eight handicap single cells.

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•

McCauley Unit (“MC”): The McCauley Unit is a maximum security unit.

It was opened in 2002 as medium security and switched to maximum security

in November 2004 due to TCI’s assumption of A&E. The unit has capacity

of 240 inmates. The north wing of the building houses all A&E inmates. The

west wing of the building houses maximum general population inmates.

•

Dorms/Barracks: Opened in 1997, this is a medium security, open-bay unit

with bunk beds lined up against the walls in 4 quads. This unit has a capacity

of 146 medium-security offenders.

•

Monarch Special Management Unit (“MSMU”): The Monarch Special

Management Unit opened in January 2002, as a specialized housing unit for

female offenders with behavioral or mental health needs. MSMU has a

capacity of 61, and all rooms are singles cells.

•

Segregation Unit: The Segregation Unit, which opened in 2002, is utilized as

a means of providing security separation of inmates whose behavior

substantially affects the safe and secure operation of the Institution.

TCI has several other buildings:

•

Gower: Gower was opened in 1983 as the Social Services building. This

building has the main Control center, security offices, visiting room, Records

Department and Health Services Unit.

•

Simpson Hall: Simpson was opened in 1966 as the Administration and

Education Building. Maintenance, canteen and laundry occupy the basement

level.

•

Chapel: The chapel is used for smaller religious services and groups as a staff

training area.

•

Homestead: Built in the early 1800's, the Homestead is now used for

Extended Visits. Inmates who have completed the Parenting Program may

have their children visit on Saturday from 8 am - 3 pm in this home. These

visits are family-oriented and are supervised by Social Workers and Teachers.

•

Prescott: Opened in 1992, Prescott is the main dining room for inmates. It

also includes a kitchen facility for food preparation and bakery and storage in

the lower level.

Access to Care: Triage

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TCI written policy requires that health care staff collect and triage all Health Service Requests (HSRs) within 24 hours of submission by the prisoner. TCI written policy requires that triage nurses review each HSR and make triage decisions based upon “patient health care needs according to approved protocols and shall not be limited by facility resources.” Once a patient’s HSR has been triaged, TCI written policy requires that patients needing to see a provider be seen within seven days. The triage function is critical as it serves as the entry point into the health care system. Triage nurses serve as gatekeepers. Without proper triage, diagnoses may be missed and it becomes “very difficult” for the rest of the health care system to function.
Triage of HSRs at TCI does not routinely occur within 24 hours as required by written policy. TCI’s nursing system places patients at risk of harm by its failure to properly triage and respond to prisoner health concerns as submitted in HSRs. The expert witnesses for both parties identify numerous examples of improper, and even cynical, nursing triage that placed patients at risk of harm, including unnecessary pain, possible exacerbation of infections, risk of additional morbidity, and possibly urgent medical conditions being ignored. Defendant Dr. David Burnett, the Medical Director at the Bureau of Health Services (“BHS”), wrote that “[defendants’ expert Dr. Robert Greifinger, M.D.] found sick call slip review by nursing staff to be ‘awful.’ Responses written on many requests are cynical and [nurses] are finding reasons not to see [patients]. The inmates are making reasonable requests and they get responses back such as ‘you just saw someone last week’ when [the prisoner’s health concern] is not even related to that visit.”
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Access to Care: Sick Call Delays Once a patient’s request for non-emergency care has been triaged, TCI policy requires
that patients needing to see a provider be seen within seven days. Even when followed, this policy does not comply with the applicable National Commission on Correctional Health Care standard. Dr. Greifinger concluded that the policy is unacceptably vague because the “request for care should be assessed for clinical urgency, and an acute condition should be seen much sooner than 7 days.” Patients with serious or potentially serious health issues such as chest pain, heavy vaginal bleedings and blood clots, and elevated blood sugars often wait longer than seven days before seeing a provider. Access to Care: Nursing Assessments
Assuming that a patient’s HSR is timely and appropriately triaged and an appointment is timely scheduled, the patient will generally be evaluated by a registered nurse. Nurses function as gatekeepers and are expected to assess patient symptoms and medical history and proceed according to established algorithms, or “nursing protocols.” Failing to follow established nursing protocols places patients at risk of harm. Nurses at TCI fail to conduct adequate nursing assessments according to nursing protocols. Plaintiffs’ nursing expert Madeline LaMarre found that the failure to perform adequate nursing assessments, coupled with delays in clinician referrals, creates “a serious obstacle for access to care.” Access to Care: Failure to Refer Patients to Clinicians and Provide Follow-up Care
Ms. LaMarre cited “known delays in access to a clinician once a referral is made.” There are multiple examples of patients failing to receive timely follow-up care as ordered
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and patients needing care beyond what a single visit with a registered nurse can provide. These patients, as a result, endure long delays without necessary care. In one example, Patient B.J., an HIV patient, submitted an HSR complaining of abdominal pain, dizziness, nausea and fever with chills. Patient B.J. wrote that she cried every night, that the medications were not working, and that her abdomen was swollen. The nurse who evaluated her referred Patient B.J. to [Defendant] Dr. Meress for the “first available [appointment].” Dr. Meress, the Supervising Physician at TCI, did not see Patient B.J. until approximately two months after she submitted the HSR and approximately six weeks after the nurse referred her for the “first available” appointment with Dr. Meress.
Defendants’ medical expert, Dr. Greifinger, cited another example of a patient failing to timely see a clinician: a seizure patient waited eleven days before being evaluated following a seizure. Dr. Greifinger testified that this patient should have seen a nurse practitioner or physician the same day, or no later than one or two days following the seizure. In another example, Dr. Greifinger noted a patient who had been prescribed an antibiotic for a possible MSRA infection that had been incised and drained received no wound care or follow-up.
Similarly, patient K.D. was seen by a nurse practitioner for an apparent diagnosis of pelvic inflammatory disease (PID). The nurse practitioner ordered that she receive follow-up care with the women’s health provider. More than two weeks later, the patient had yet to be scheduled for follow-up and submitted an HSR complaining of worsening symptoms and vaginal discharge. An RN evaluated the patient and once again referred the patient to a nurse
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practitioner. TCI staff scheduled Patient K.D. to see a nurse practitioner, but the appointment was canceled and, almost four weeks after the patient’s initial assessment, no new appointment had been made. The triage nurse wrote that the patient “is now begging to see a provider. . . . We’re losing our credibility with these inmates. I keep telling them that I am referring them for an appt to be seen. . . . Should I tell them differently when I write them back?”
Dr. Greifinger testified that the nursing system at TCI that governs access to care “is designed to be cumbersome and designed to have people fall through the cracks.” Dr. Greifinger also testified that TCI’s health care system creates risks that: (1) patients will suffer unnecessary pain; (2) patients with undiagnosed infections will pose a risk to the public’s health; (3) patients with undiagnosed acute or chronic conditions will be more likely to have their symptoms worsen; and (4) opportunities for early diagnosis and prevention will be missed. Dr. Greifinger further testified that this system “poses a risk of harm.” Summarizing his conclusions regarding sick call and acute care at TCI, Dr. Greifinger wrote that the cases he reviewed “describe a system that was unable to provide timely care.” Medications
TCI written policy considers orders for antibiotics to be “stat” orders that must be initiated immediately. TCI’s medication system fails to reliably provide antibiotics to patients. TCI written policy considers orders for medications to treat intermediate to severe pain to be “stat” orders that must be initiated immediately. TCI’s medication system is unable to reliably provide medications to treat patients in pain. TCI’s medication ordering
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system is unable to maintain an uninterrupted supply of anti-retroviral medications for patients with HIV. The deficiencies in the medication system jeopardize the health and safety of patients taking medications to treat psychiatric disorders. Systemic errors in the medication system result in patients receiving dangerously high or low doses of medications. Systemic errors in the medication system also result in patients receiving the wrong medications.
Correctional officers administer medications to prisoners in five of TCI’s seven housing units. Correctional officers lack sufficient training and knowledge to understand why a medication is prescribed, or to know the side effects of that medication, proper dosing, or potential medication interactions. Correctional officers’ lack of medication-related knowledge places patients at risk of harm. TCI correctional officers fail to follow standard medication administration practices. In one example, on May 20, 2008, a correctional officer gave Patient S.N. two psychotropic medications not prescribed for her: Imipramine, an antidepressant, and Xanax (alprazolam), an anti-anxiety medication with sedative effects. At the same time, Patient S.N. was also taking amitriptyline, an antidepressant; Ability, an anti-psychotic medication; Valium, an anti-anxiety agent, Remeron, an antidepressant; Celexa, an antidepressant; and Klonopin, another anti-anxiety agent. Even without the accidental administration of Xanax and imipramine, S.N. was already prescribed a potent combination of psychotropic medications with significant interactions and side effects. That evening, TCI health staff contacted an on-call physician, who ordered that the dose of Klonopin for S.N. be held for the following morning. The following day, S.N. fell down
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stairs. She had trouble maintaining consciousness, had pupillary abnormalities, did not know what day it was, and began dry heaving. TCI sent her to the emergency room, where she was diagnosed with shoulder, head, and back injuries. On May 22, 2008, a nurse practitioner noted that “upon further investigation of events of yesterday, [Patient S.N.] received extra dose of Xanax and became dizzy and presumably fell down the stairs.”
As codified in their contract with the state, correctional officers are immune from discipline for negligent medication errors. If licensed nurses rather than correctional officers were to distribute medications, as recommended by the experts in this case, the risk of professional discipline would lead to greater accountability and safety.
In medical practice, including at TCI, administration of all doses of medication must be promptly and properly documented in writing. The quality of medication documentation by correctional officers at TCI is poor and has been poor for years. Accurate documentation of medication administration is a critical component of any safe institutional medication management system. Medication Administration Records are a key component of a patient’s medical chart and the importance of their proper completion flows from the medical axiom that without documentation, there is no way to demonstrate that care was given. Correct documentation of doses is vital to determining patient compliance with medication regimens, assessing clinical effectiveness, assessing the need to modify treatment plans, and preventing accidental overdoses and similar errors. Failing to properly document medication administration places patients at risk of harm, and possibly even death.
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Prior to the Court’s entry of a preliminary injunction, DOC had no plans to hire licensed practical nurses to administer medications to the prisoner population at TCI. Given the acuity level of patients at TCI, defendant Dr. Burnett testified that licensed practical nurses or personnel “trained along a similar level” should administer medications to patients at TCI. Care for Patients with Acute Needs: Lack of Infirmary
In the correctional context, infirmaries are used to care for patients requiring observation, supportive care after surgery or an invasive test or procedure, and monitoring of symptoms. Infirmaries may temporarily house patients too ill to stay in their cells but not needing a hospital level of care. TCI lacks an on-site infirmary facility. It also lacks the health care and security staff to provide care for patients needing infirmary-level care. TCI patients needing infirmary care are sent to Dodge Correctional Institution, approximately 26 miles from TCI. Placing TCI patients in the DCI Infirmary (“DCI-I”) is difficult because the DCI-I is a male institution and allocates only a few beds for female prisoners. At times, the DCI-I kept female prisoners in locked negative pressure rooms notwithstanding that medical personnel needed access to these patients. The DCI-I is not required to honor requests from TCI providers that patients be transferred and, at times, the DCI-I denies requests to accept TCI patients. At other times, the DCI-I inappropriately discharges patients back to TCI. DCI-I officials have suggested that TCI keep “‘infirmary type female patients’ thereby creating more bed space for male offenders.” Gender-based considerations such as the lack
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of programming and resources available for women at the DCI-I may affect the decision to keep a patient at the infirmary.
Both parties’ medical and nursing experts agree that a facility such as TCI should have an on-site infirmary. The nurse practitioner responsible for providing women’s health care services at TCI believes that TCI needs an infirmary for women. Care for Patients with Acute Needs: Failures to Follow-Up from Off-site Care
In general, patients returning from the hospital should be examined by a practitioner and/or assessed by a nurse. Physicians have a responsibility to follow-up with their patients after hospital discharge. Hospital discharge orders are considered “stat” and must be filled immediately. When patients return from off-site visits, their recommendations from consultants must be processed in a timely manner. However, this does not routinely happen at TCI.
For example, a terminally ill cancer patient returned from the hospital on a Wednesday and, as of the following Sunday, she had not been seen by a provider except for someone who took her vital signs. In another example, a patient with lupus returned from the hospital with an order for the medication prednisone, but did not receive it for three days. Because this patient had been on prednisone for an extended period of time, this abrupt cessation put her at risk of blood pressure and blood sugar problems. In two other examples, a July 2008 email from a TCI nurse discusses two incidents within a three week period when a TCI clinician failed to follow-up with seriously ill patients returning from the hospital. One patient was discharged back to TCI following a kidney transplant. The second patient was
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returned to TCI after being treated for lacerating her wrists with a razor blade that she subsequently swallowed. With regard to the latter patient, the nurse wrote, “Quite frankly I’d like to say I’m surprised she wasn’t seen – but I’m not. This seems to happen way too frequently.” Leadership
Multiple witnesses, including experts for both parties, testified that TCI should have an on-site medical director. Having an on-site medical director at TCI would improve patient care, address some of the systemic problems with health care at TCI, and help remedy the lack of “direction and accountability” in the system. Although DOC has two associate medical directors with oversight responsibilities for multiple institutions, neither oversees care at TCI. There is no indication that BHS will add a third associate medical director any time soon.
The experts for both parties concluded that physicians at TCI are insufficiently involved in the care of patients. Plaintiffs’ nursing expert, Madeleine LeMarre, concluded that “there are relatively few clinical evaluations by physicians even among medically complicated patients. Although nurse practitioners are quite capable of managing many primary care conditions, it is important that physicians are available for consultation, and that physicians take an active role in managing the more medically complicated patients to ensure that appropriate care is being provided.” While nurse practitioners are qualified to see chronic care patients, physicians need to take the lead in caring for patients with complicated conditions. Senior TCI physician, defendant Dr. Stephen Meress, is unaware of any formal
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protocols at TCI that govern when nurse practitioners should refer patients to physicians. Although HIV patients receive consultations from outside providers, their care is not coordinated by TCI physicians. Cumulative Impact of Defendants’ Systemic Failures
Defendants’ nursing expert (Patricia Ottolini) testified that the entire medical system needs to be overhauled. Plaintiffs’ medical expert (Dr. Jerry S. Walden) found “serious, sometimes life-threatening failures to provide adequate health care to TCI prisoners.” Plaintiffs’ nursing expert (Ms. LeMarre) testified that there are global systemic issues that have resulted in lack of adequate access to care and failure to deliver ordered care. Mental Health Care System
In December 2004, TCI was forced to absorb the assessment and evaluation (A & E) function for all women entering DOC’s female adult institutions – a function previously handled at Dodge Correctional Institution – without any additional resources to perform that function. From 2004 through 2006, initial interviews with psychologists frequently did not occur for two or three weeks after intake, creating a significant risk of harm. Psychology staff do not regularly request past treatment records for new prisoners with mental illnesses. Without prior treatment records, diagnoses made during the psychology intake process must depend on patient self-report. Prior treatment records improve the quality of diagnosis, and thus treatment. Failure to obtain past treatment records creates a greater risk of emotional pain resulting from ineffective treatment.
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Post-traumatic stress disorder is extremely common among female prisoners. Mental health assessments conducted in correctional facilities should include a thorough trauma assessment, including specific questions regarding sexual abuse, physical abuse, neglect, and psychological abuse. TCI does not conduct a trauma assessment with such specific questions, despite the fact it could be beneficial in providing effective treatment. The only questions on the Mental Health interview form that pertain directly to traumatic experiences that could cause PTSD are “Have you ever been the victim of violence or assault?” and “Have you ever seriously injured your head?” Traumas other than personally experiencing physical violence can cause PTSD, and the questions on the form would not pick up such traumas. Conducting a thorough trauma assessment would be beneficial in providing effective treatment in some cases.
As of October 2008, psychiatrists were not assessing newly arriving prisoners on psychotropic medications for three to four weeks, significantly longer than TCI’s purported policy of completing such assessments within 10 days. There have been no reviews of records to determine whether “bridge orders” to maintain new prisoners on psychotropic medications until they are seen by a psychiatrist are actually being written and followed. Bridge orders are either not written or not “transcribed” on the day of intake, resulting in delays in receiving critical medications. Plaintiffs’ nursing expert, Madeline LaMarre, identified instances in which bridge orders for medications (including the psychotropic medications Seroquel, Amitriptyline, Geodon, Abilify and Celexa) were either not written or not transcribed on the day of admission.
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Delays in psychiatric assessments of new prisoners create a risk that patients will suffer unnecessarily, either because their medications are discontinued without psychiatrist review (resulting in uncontrolled symptoms) or because a clinician fails to detect that drugs continued without such review are ineffective or producing side effects. In 64% of mental health records reviewed by Defendants’ psychiatry expert, mental health providers treating the same patient were working from different diagnoses. In 24% of the records reviewed, defendants’ expert found “substantial” diagnostic disparities. In general, agreement on a basic diagnosis is “fundamental” to determining the appropriate treatment of a mentally ill person. Diagnostic differences among treatment providers increase the risk of harm to mentally ill inmates. They may lead to inappropriate treatment, conflicting treatment or poorly informed interventions.
The pervasive problem of diagnostic disparity suggests a system that does not consistently process diagnostically relevant information into accurate diagnoses. Without accurate diagnosis, prisoners are at risk of improper treatment and severe emotional symptoms. A mental health treatment plan is essentially “a series of statements specifying a course of therapy and the roles of clinicians in carrying it out.” Such treatment planning is an important component of delivering adequate mental health care to prisoners with serious mental illnesses. At TCI, treatment planning, even in the Monarch Special Management Unit, where the most seriously mentally ill prisoners at TCI reside, is left largely in the hands of the least qualified member of the treatment team and fails to ensure input from the treating psychiatrist or even from the patient.
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In TCI’s general population housing units, there are many prisoners with serious mental illnesses, some of whom would benefit from Monarch-level services. With approximately 258 women at TCI with serious mental illnesses and 61 beds available in Monarch, there are nearly 200 women with serious mental illnesses in general population. More formal and detailed treatment plans are necessary for some of these general population prisoners, so that providers are not working from “different documents.” TCI mental health care providers work in isolation, without regular review of one another’s treatment notes. Within DOC generally and at TCI specifically, psychiatrists have one chain of command, psychologists another, and social workers and educators yet another. Psychiatrists report to Defendant Dr. Kevin Kallas, DOC’s Mental Health Director, psychologists to Rose Kleman, who reports to the deputy warden, and social workers to the “Corrections Program Supervisor.” These diverging lines of mental health authority cause problems because they result in non-clinical supervision of clinicians and confusion over priorities and authority. Dr. Kallas does not even have information about or authority over key resources for providing care.
TCI has too few psychologists and social workers to provide adequate mental health services. TCI offers insufficient therapy groups to meet the needs of mentally ill women at TCI. TCI offers insufficient individual psychological treatment to meet the needs of mentally ill women at TCI. The inability to provide individual treatment to prisoners who need it is pervasive: “a regular, daily thing.” At most, only two hours per week of group therapy are available to even the most mentally ill prisoners at TCI – those housed in the
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Monarch Special Management Unit. Nearly all one-on-one mental health contacts at TCI are responses to crises, not provision of planned treatment. Even if TCI had sufficient staff, defendants would be unable to provide additional group therapy and other needed programming without additional space. Efforts to add space remain in a preliminary “planning phase” and may not come to fruition for several years, if at all.
Psychiatrists are on-site at Taycheedah only four days per week. The lack of psychiatrist coverage is problematic, especially in MSMU and observation, where prisoners may need to be evaluated by a psychiatrist on an urgent basis. All psychiatrists at TCI are limited-term employees who work only 16-20 hours per week. The reliance on part-time psychiatrists renders the continuity of care provided to prisoners at TCI “inadequate.”
No female prisoners are allowed at the Wisconsin Resource Center because the WRC is only for males. Defendants lack an inpatient treatment option equivalent to WRC for those women who need it. Although Monarch was originally intended to provide “parity in mental health services that are available to male offenders via WRC,” the resources were never allocated to make Monarch anything more than a “minimally staffed special management unit” unable to provide the “intensive crisis management” an inpatient facility could provide. The use of Monarch and civil commitment to the Winnebago Mental Health Institute as substitutes for inpatient mental health beds is “a protocol that’s in its entirety unsatisfactory.” The absence of an inpatient mental health option for women strains current resources at TCI, forcing providers to devote resources to patients that would be better managed in a hospital setting. The lack of treatment resources – staff and physical plant – leaves seriously mentally
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ill women “experiencing unnecessary mental suffering that could be ameliorated” if adequate treatment programs were available.
Prisoners who express suicidal thoughts are subjected to extremely harsh conditions in “observation” cells. The cells are cold and dark, the prisoners have their clothes and underwear taken away and are left with only a gown to wear. The only furniture is a mat on a concrete slab. TCI has the largest number of observation placements of any DOC institution. Prisoners at TCI are subjected to confinement in observation as long as three or four weeks. Prisoners confined to observation are treated as though they are serving a segregation sentence for misconduct. An unlicensed counselor, rather than a psychologist or psychiatrist, is the primary professional providing crisis care in the observation unit, and psychiatrists often do not review people placed in observation for days. Clinicians’ contacts with prisoners in observation are undermined by lack of confidential communications. Mentally ill prisoners are afraid to report symptoms because they fear being confined in an observation cell. Conditions typical of segregation can exacerbate mental illness. For this reason, prisoners in observation cells should not be treated from a custody perspective as segregation inmates.
Psychologists involved in the treatment of a prisoner give input on the culpability of their patients for alleged misconduct in defendants’ disciplinary process. Providing input on culpability creates a conflict of interest, or “dual agency problem.” In disciplinary proceedings, psychology staff should only provide evidence that mitigates punishment or that bears on competency to participate in disciplinary proceedings, not on culpability or
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responsibility. By DOC policy, any segregation sentence given to a prisoner for misconduct, regardless of the psychological condition of the prisoner, must be no less than 30 days. It is potentially harmful to mentally ill prisoners to place them in segregation for 30 days. Correctional officers, even those in the Monarch unit, belittle prisoners with mental illnesses and view treatment as “babying” them. TCI correctional officers sometimes interfere with PSU staff access to prisoners in the segregation units. A “chasm” between correctional and psychology staff has resulted in a climate in which the interests of security staff “presumptively overrule psychological and psychiatric concerns.” Security’s assertion of primacy is the “single structural defect” that most interferes with access to mental health care at TCI.
In 2002, an NCCHC Report identified and criticized diverging lines of mental health authority, insufficient mental health staffing, lack of quality assurance monitoring, lack of integration of medical records and communication problems. Similarly, a 2005 US DOJ Report identified and criticized “woefully inadequate” mental health resources, psychologists being “relegated to only performing initial diagnostic assessments and managing crises” without “time and resources to provide active treatment . . . such as individual or group programming,” deficiencies in intake assessments, use of segregation and observation to punish mentally ill prisoners, failures to review previous notes and lack of integration of psychiatric and psychological notes, lack of quality assurance, and the lack of an accessible inpatient care option for women. Segregated Dining Hall
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TCI maintains a segregated dining hall. Prisoners who use wheelchairs, canes, or walkers are not allowed to eat in the dining hall in the Prescott building, where the other prisoners eat together. Instead, prisoners who have mobility-related disabilities are forced to eat their meals alone in their cells, and they miss out on interacting with other prisoners. Because the cells are small, requiring prisoners to eat in their cells forces them to eat close to the toilets, which can smell foul. Even on holidays, prisoners with disabilities are forced to eat alone in their cells, while the other prisoners eat together. Prisoners with disabilities come out of their cells, are given trays of food on the unit, and then have to return to their cells. This is extremely difficult for prisoners who use walkers because they have to struggle to hold onto the walker with one hand while balancing a tray in the other. Other prisoners hand out the trays to prisoners with mobility disabilities. The prisoners who hand out the trays are often careless, resulting in the food being dumped out or smeared around. The prisoners who hand out trays also steal food intended for prisoners with disabilities. Food often gets cold while prisoners with disabilities wait for their trays, some prisoners with disabilities go hungry because they are given less food than the prisoners who eat in the dining hall, and prisoners with disabilities are given fewer options at meals than prisoners without disabilities. Numerous prisoners with disabilities have complained about their exclusion from the dining hall and the inequalities that result. Treacherous Paths
Numerous paths at TCI that prisoners use are steep, uneven, filled with cracks, and in a state of disrepair. As a result of these unsafe conditions, prisoners have been thrown out
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of wheelchairs, tipped out of wheelchairs, and flung onto the grass. In some cases, such prisoners are mocked by TCI staff. As early as 2002, the US DOJ found the paths at TCI to be excessively steep. Logan Hopper, plaintiffs’ expert on disability access, found that “each separate building [at TCI] generally houses a specific program that is unique to that particular building.” Therefore, “at least one accessible path of travel from all locations must be provided to at least one accessible entrance at each building,” or prisoners with mobility disabilities will be unable to access the activities held in the buildings. The lack of accessible paths therefore results in a denial of access to programs and activities: “As the site is currently laid out, persons with disabilities would have extreme difficulty moving about the site, to such an extent it would be difficult, if not impossible, for many persons with disabilities to take part in the facility’s programs independently, as afforded to non-disabled inmates.”
TCI has prisoners without disabilities act as mobility assistants or wheelchair “pushers” for prisoners who use wheelchairs. Unfortunately, the pushers are no substitute for safe paths. While pushing prisoners who use wheelchairs, many of the pushers are careless or gossip with each other rather than paying attention. One pusher ran a prisoner in a wheelchair down a hill in the rain, almost throwing the prisoner out of her wheelchair. The same wheelchair pusher ran the prisoner with a disability into a door. Hopper found that “[w]hile [TCI] has a program utilizing ‘wheelchair pushers’ (prisoners who are assigned to push disabled, ill, or elderly inmates), the hazards and non-complying conditions still make movement around the site very difficult.” Wheelchair pushers frequently arrive late and
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cause prisoners who use wheelchairs to miss out on major portions of activities (including religious services and classes in reading, writing, and math) and to be late for time-sensitive medical treatments (such as insulin injections for people with diabetes).
Catholic mass is an example of an activity that is held in only one location that can be reached only through inaccessible paths. Catholic Mass is held in the chapel, and a single ramp is the only means of entering the chapel. Hopper found that the path to the chapel violates the Americans with Disabilities Act Accessibility Guidelines (ADAAG) because the path is too steep, lacks handrails and landings, and is too narrow. These features constitute a “major barrier” and “would preclude access to the many programs and services located in [the Chapel] for many persons with disabilities.” The ramp is so steep that it is difficult for prisoners who use wheelchairs to get to the chapel, and its grade even makes it difficult for the prisoners who work as wheelchair pushers to transport disabled prisoners to the chapel. That has led at least one prisoner to stop attending Catholic Mass, even though she wants to do so. Similarly, both pathways leading down to the main entrance to the Simpson building (where educational programs are held) violate ADAAG guidelines due to excessive slope, lack of handrails, and lack of landings.
The path to the Gower building, which contains the Health Services Unit, is steep and uneven, with cracks and portions that are heaved up. This path creates “potential trip and fall conditions” and violates ADAAG guidelines in several respects, including excessive slope, excessive roughness, and excessive bumps and depressions. In addition to the inaccessible path leading to the Gower building, doors in the Gower building are heavy and difficult for
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wheelchair users to enter, are too narrow for wheelchairs to fit through, require excessive pressure to open, and violate ADAAG standards.
Prisoners’ visits with their young children often occur in a building called Doty House, yet there is no continuous path leading to Doty House, just a series of uneven stones with spaces between them. Wheelchair users like Amy Prelwitz who visit with their children in Doty House cannot get there on their own. Hopper found that Doty House “was totally inaccessible, with no accessible path of travel, entrance or bathroom, and with narrow doorways. The existing conditions would make it virtually unusable for most prisoners (or children) with disabilities, and these persons would be excluded from the many uses available to prisoners without disabilities.”
Numerous other paths are dangerous and inaccessible: (1) the path to the Barracks, which is used for dormitory-style housing, violates the ADAAG due to excessive slope and lack of handrails and landings; (2) the path leading to Addams Hall, which houses mediumsecurity prisoners, violates ADAAG because of features including excessive slope; (3) the path to the Harris building, where elderly prisoners are housed, has three large bumps and depressions that violate ADAAG standards and cause “potential slip and fall conditions. As early as 2002, the US DOJ found that Harris Hall had numerous inaccessible features; and (4) the path to the library is filled with cracks, and at least one prisoner who uses a wheelchair stopped going to the library because she considered the ramp to the library too steep and dangerous.
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Prisoners with disabilities have repeatedly complained about the unsafe condition of the paths, but the dangerous conditions are not repaired, and the same cracks and bumps remain for long periods of time. Rather than repairing paths, TCI simply paints some of the uneven portions with bright paint, but Charles Axelsen, who has served as TCI’s backup ADA coordinator, admitted that painting the uneven portions does not make the paths compliant with the ADA. Paint is also insufficient because it generally cannot be seen in winter and because the prisoners who serve as wheelchair pushers are often oblivious. The unsafe condition of the paths is exacerbated by the fact that TCI fails to fix broken wheelchairs. Unstable wheelchairs both cause discomfort for prisoners and increase the risk that the wheelchairs will topple over on the steep and uneven paths. Prisoners with hearing disabilities
TCI fails to provide sign language interpreters for important programs and activities. For example, prisoners at TCI who have hearing disabilities have made requests for sign language interpreters at Catholic Mass and Protestant religious services, but TCI has denied such requests, and prisoners with hearing disabilities miss much of what is said. Similarly, one prisoner had to withdraw from a typing class because of TCI’s failure to provide sign language interpreters, and Hopper found that a deaf prisoner “was not appropriately provided with an interpreter at most required events and activities, to such an extent that the deaf inmate could not participate in required activities and other optional activities frequented by other inmates.”
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A TTY machine is a device that allows individuals with hearing disabilities to communicate on the telephone by displaying what the other party is saying and allowing the individual with a hearing disability to type what he or she wants to communicate. Sarah Johnson made requests to use a TTY machine, and she would have liked the opportunity to use a TTY machine to communicate with her children, her brother, her nieces and nephews, and her mother. Because her requests to use a TTY machine were denied, Ms. Johnson has to try to find a phone with a “volume up” button, and she and her family have to communicate by screaming back and forth into the telephone. This is how Ms. Johnson had to communicate with her mother, and her mother now has died. One of Ms. Johnson’s nephews is deaf, and Ms. Johnson’s lack of access to a TTY machine means she cannot communicate with him at all, not even by screaming back and forth on a phone with a “volume up” button.
Kelly Kujawa has requested that she be allowed to use a videophone, which would enable her to communicate with her family members using sign language, but her requests have been denied. Communicating with family members in sign language would help Ms. Kujawa maintain her proficiency. She is afraid of forgetting signs while in prison.
Prisoners with hearing disabilities often cannot hear orders given by correctional officers, including announcements over the intercom system to stand and be counted. These prisoners are then disciplined for not “obeying” orders. Prisoners with hearing disabilities are also disciplined for asking other prisoners to repeat orders. In short, prisoners with hearing disabilities have a choice between being disciplined for not understanding orders and
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being disciplined for trying to understand the orders. Prisoners are supposed to stand at their door with their lights on to receive certain medications from the medication cart, but Ms. Johnson cannot hear the announcements saying that it is time to stand. Ms. Johnson therefore has to request medications by pressing the intercom button to speak with correctional officers, but they sometimes respond by hanging up or threatening to file conduct reports against her. Requesting medications in this manner became so difficult and intimidating that Ms. Johnson stopped taking medications from the medication cart, including psychiatric medications, heart medications, and blood pressure medications.
TCI officials have forced prisoners who communicate through sign language to wear handcuffs during off-site medical appointments, even though it is virtually impossible to communicate symptoms through sign language while handcuffed. When Kelly Kujawa was taken to St. Agnes hospital for a medical appointment, she requested that the TCI correctional officer remove her handcuffs during the appointment, but the officer refused. Prisoners with Vision-Related Disabilities
Tammy Griffith, who is legally blind, wanted to be able to read the books her son reads so she could discuss the books with him. Because Ms. Griffith cannot read Braille, she asked for permission to listen to books on tape. She met with TCI’s education director, who told her a tape player would be a security threat because it would enable prisoners to record conversations. When she pointed out that all she needed was a tape player without a record feature, her request was still denied. The education director also refused Ms. Griffith’s request for instruction in Braille. The education director asked her, “What would a blind
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lady do to get into prison?” When Ms. Griffith asked TCI staff to arrange for someone to read to her, they told her to ask her roommate, who refused. TCI staff then told Ms. Griffith to ask prisoners other than her roommate to read books to her, but they also refused. Officers made comments about this such as “don’t you have any friends.” TCI also refused Ms. Griffith’s requests to arrange for someone to read letters from her family. Her roommate was reluctant to help with this, and there were also private letters that she did not want her roommate to read, such as letters from her husband and privileged materials about the appeal in her criminal case.
Without any accommodations that would enable her to read, Ms. Griffith had to sit in her cell virtually all the time with nothing to do. She went to the library when she was allowed to do so just to get out of her cell, even though she could not read the books in the library. She brought a pen and paper into the library. Ms. Griffith then stopped going to the library because there was nothing for her to do there, and she spent even more time in her cell without any activity. Ms. Griffith was repeatedly called out from her cell to take a written skills test at TCI. She could not take the test due to her disability and requested several times that someone read the test to her. These requests were denied, and TCI ultimately gave up on trying to administer the test to her at all. She believes the test may be used for placement in programs. Ms. Griffith’s requests for a key lock to protect her personal belongings were denied, even though her disability prevents her from seeing the numbers on the combination locks issued to other prisoners. When Ms. Griffith filed a prisoner complaint, which she believes was related to TCI’s failure to treat her pain, the complaint
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was rejected as illegible because her disability prevented her from writing clearly. She could not even read the portion of the rejection telling her how long she had to appeal. No coherent procedure for requesting accommodations
Charles Axelsen testified that he serves as the ADA coordinator when the primary ADA coordinator position is vacant. The primary coordinator position was vacant at least from November 2006 through July 17, 2007, making Mr. Axelsen the only ADA coordinator for this period. Mr. Axelsen did not know whether any document informed prisoners of their rights under the ADA, whether any document informed prisoners of programs available for persons with disabilities, whether any document informed prisoners of the name of the ADA coordinator or backup ADA coordinator, or whether any document informed prisoners of how to file disability-related complaints. The Inmate Handbook states that prisoners can contact the ADA Coordinator directly to request accommodations – but it does not state the name, office address, and telephone number of the employee or employees designated as the ADA Coordinator.
Hopper found the Inmate Handbook’s references to the ADA and the ADA Coordinator totally inadequate:
Only the latest (July, 2007) edition of the inmates’ handbook appeared to have any reference at all to the ADA, procedures for requesting reasonable accommodations, policies for filing grievances related to the ADA, and any other significant programmatic requirements. And these references were quite cursory and rudimentary at best. There appeared to be no previous effort to inform inmates of the rights under the ADA or to describe appropriate policies and procedures.
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. . . While it was verbally reported by TCI that Charles Axelson was the back-up ADA coordinator at the facility (this could not be confirmed through any document provided by the facility), only one of the inmates interviewed was familiar with that name. Inmates who reported that they had attempted to contact the ADA coordinator had been given various other names, none of whom had responded to the inmates’ inquiries. Axelsen’s understanding of the procedures for requesting accommodations contradicts the instructions in the Inmate Handbook stating that prisoners may contact the ADA Coordinator directly to request accommodations. Mr. Axelsen believed that a prisoner’s request for a particular accommodation, such as a wheelchair or an accessible cell, would be decided by the Health Services Department without consulting the ADA Coordinator or the backup ADA Coordinator. Thus, if a prisoner needed a sign language interpreter or Braille material, Mr. Axelsen claimed the request would be handled by the Health Services Unit, and when Mr. Axelsen received a request for a hearing aid, he “just kicked it back, because there’s really nothing that I’m authorized to do with something like that.” Mr. Axelsen also testified that it was not part of his job while serving as backup ADA coordinator to address prisoner grievances involving disabilities, except grievances related to the physical condition of TCI, and that a prisoner with a hearing disability who needed a sign language interpreter or other aid or service would have to file an inmate complaint, rather than contacting the ADA coordinator. Defendants claim that TCI has operated under a document entitled Executive Directive 17, which discusses accommodations for disabilities, since 1991. In fact, Defendants do not follow the policy. Mr. Axelsen testified that he was not sure if he had
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ever seen Executive Directive 17. Executive Directive 17 states that when a prisoner makes a request for accommodation related to a job, education, or treatment program to a supervisor, the supervisor should contact the coordinator for disability-related issues. Executive Directive 17 uses the term “504 Coordinator,” which refers to Section 504 of the Rehabilitation Act, a predecessor statute which the ADA mirrors. Executive Directive 17 states that the coordinator for disability-related issues may then contact an Affirmative Action Officer. Asked about the provision referring to the functions of the 504 Coordinator, Mr. Axelsen stated, “I’ve never seen a request of this nature.”
Executive Directive 17 states: “All inmates should be notified of their right to reasonable accommodations upon entry to the institution. This would ordinarily be handled as part of intake/orientation. Institution superintendents are responsible for ensuring that inmates already within the system are informed of this policy.” Nonetheless, TCI’s Assessment and Evaluation Handbook, which is a guide for prisoners for their first four to eight weeks at TCI, contains no mention of accommodations for disabilities or the ADA. One prisoner recounts that when she first arrived at TCI, “there was some orientation and general discussion of the rules of the institution. But I was not told of any procedure for requesting accommodations for a disability or told whom I should contact about disabilityrelated issues. During over a decade of incarceration at TCI, no staff member ever gave me information like this.” Another prisoner who is legally blind was not able to take notes at the orientation because staff members would not give her a marker – it took three weeks and numerous requests before she could get a marker. The same prisoner did not learn about
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Charles Brown, the ADA Coordinator, until an eye doctor mentioned Mr. Brown offhand, during an appointment.
The lack of clarity about procedures for seeking accommodations resulted in Sarah Johnson not being given a hearing aid for over a year. Ms. Johnson lost her hearing aid in April of 2007. Ms. Johnson spoke to a nurse at HSU about getting a replacement, but the nurse told her it would take six to eight months because TCI did not have enough money for a hearing aid. Ms. Johnson then wrote to the head of HSU, offering to buy her own hearing aid, but the head of HSU did not respond to the letter. Because the Inmate Handbook does not say who the ADA Coordinator is, on the advice of a TCI staff member, Ms. Johnson contacted Charles Axelsen about obtaining a replacement hearing aid. Mr. Axelsen never responded to Ms. Johnson’s request. Ms. Johnson then filed an inmate grievance requesting a hearing aid. The request was denied as “untimely.” Despite her diligent efforts to obtain a replacement, Ms. Johnson had no hearing aid from April 2007 through the fall of 2008.
The Wisconsin Department of Corrections receives federal financial assistance and is a department, agency, or other instrumentality of a state government. US DOJ Agreement
In September 2008, the State of Wisconsin entered into a settlement agreement with the United States Department of Justice in United States v. Doyle, et al., Case No. 08-C-753 (E.D. Wis.), a case relating to the inadequacy of mental health care at TCI. On September 15, 2008, the Court granted the parties’ joint motion to place the case on its inactive docket
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for four years while retaining jurisdiction or until an earlier final dismissal with prejudice is entered.
Pursuant to the memorandum of agreement (“MOA”), the parties jointly selected Dr. Jeffrey L. Metzner (“Metzner”) to serve as a consultant and issue a series of status reports. In each report, the consultant will evaluate the status of compliance for each provision of the Standards and Action plan, using the following standards: (1) substantial compliance; (2) partial compliance; (3) beginning compliance; and (4) non-compliance. Each report will describe the steps taken to analyze conditions and assess compliance, including documents reviewed and individuals interviewed, and the factual basis for each of the consultant’s findings. Each report will also include specific recommendations for actions needed to bring the State into compliance with the Standards and Action plan. In consultation with Dr. Metzner, the State will revise or develop policies, procedures, protocols, training curricula, and practices to ensure that they are consistent with, incorporate, address, and implement the provisions of the MOA. The State will provide and document initial and ongoing training to all TCI staff with respect to newly implemented or revised policies and procedures. The State will develop and implement a Quality Assurance Program for TCI’s provision of mental health care services for inmates with a serious mental illness. Pursuant to the MOA, the USDOJ has full and complete access to TCI, inmates, DOC staff, and all documents relating to topics addressed in the MOA. The State will maintain sufficient records to document its compliance with the MOA, and every 6 months the State will provide the
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consultant and the USDOJ with status reports detailing the State’s compliance with the MOA.
The Agreement will terminate 4 years from the date of execution. If the USDOJ believes that the State has not substantially complied with the terms of the MOA after a period of 3 years and 9 months, the USDOJ’s sole remedy is reinstatement of the complaint.
ANALYSIS Under Rule 56(c), summary judgment is proper “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 material fact and the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must accept as true the evidence of the nonmovant and draw all justifiable inferences in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Ultimately, the “plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. I. Eighth Amendment – Cruel and Unusual Punishment The Eighth Amendment’s cruel and unusual punishment provision “imposes a duty upon states to provide adequate medical care to incarcerated individuals.” Boyce v. Moore, 314 F.3d 884, 888-89 (7th Cir. 2002). A prison official’s “‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer v.
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Brennan, 511 U.S. 825, 828 (1994). In order to prevail on an Eighth Amendment, inadequate medical care claim, a prisoner must show both that the risk of harm to the prisoner is objectively serious and that the defendant was deliberately indifferent to the risk of harm as a subjective matter. Id. at 834; see also Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000) (“plaintiff must show both an objective risk of danger and actual knowledge of that risk on the part of the custodial staff”). 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.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
Importantly, this case challenges the delivery of health care services to the inmate population at TCI on a systemic, institutional level. See, e.g., Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983); Cleveland-Perdue v. Brutsche, 881 F.2d 427, 430-31 (7th Cir. 1989) (distinguishing a systemic claim from one based on “isolated instances of indifference to a particular inmate’s medical needs”). Plaintiffs may succeed on a “systems” claim by showing either (1) that “‘there are such systemic and gross deficiencies in staffing, facilities, equipment, or procedures that the inmate population is effectively denied access to adequate medical care;’” or (2) “‘repeated examples of negligent acts which disclose a pattern of conduct by the prison medical staff’” evincing an excessive risk of serious harm. Wellman at 272. “[S]ystemic and longstanding inadequacies create such a high risk of future injury that deliberate indifference must be inferred.” Ginest v. Bd. of County Comm’rs. of Carbon County, 333 F. Supp. 2d 1190, 1198 (D. Wyo. 2004).
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In response to the defendants’ motion for summary judgment, the plaintiffs come forward with a mountain of evidence which is relevant to both prongs of the “systems” inquiry. There is a great deal of evidence demonstrating that there are “systemic and gross deficiencies” in staffing, facilities and procedures at TCI. There are also plenty of examples of negligent acts which suggest a pattern of conduct by the medical staff at TCI. Moreover, the evidence tends to establish that the defendants are and have been subjectively aware of the risks that are posed by the administration of medical and mental health care at TCI.
The defendants simply cannot overcome the presence of genuine issues of material fact with respect to the plaintiffs’ Eighth Amendment claims. Essentially, the defendants argue that they follow their internal procedures, which are adequate to ensure that constitutional minimums are satisfied. The evidence in the record belies this assertion. Procedures might be followed in many instances, but the plaintiffs provided evidence demonstrating that these procedures are inadequate or frequently ignored to the detriment of the TCI inmate population. It is true that errors often occur in any system, but a system that is overwhelmingly error-prone can violate the Eighth Amendment. Ultimately, the Court finds it curious that the defendants would even bother moving for summary judgment when their own expert describes the system as one designed to let people “fall through the cracks.”1 II. Equal Protection – Mental Health Care for Women
The equal protection clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.
1
The Court grants the defendants’ motion on the issue of dental care, but not to the extent that dental issues overlap with broader medical issues.
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amend. XIV, 1. To state a prima facie claim under the Equal Protection Clause, plaintiffs must show (1) they are similarly situated to members of the unprotected class; (2) they are treated differently from members of the unprotected class; and (3) the defendants act with discriminatory intent. See Greer v. Amesqua, 212 F.3d 358, 370 (7th Cir. 2000); Trautvetter v. Quick, 916 F.2d 1140, 1149 (7th Cir. 1990). Discriminatory intent can be shown by direct or circumstantial evidence. Direct evidence is evidence which, if believed by the trier of fact, will prove discrimination without inference or presumption. See Nichols v. So. Ill. Univ.Edwardsville, 510 F.3d 772, 781 (7th Cir. 2007). Circumstantial evidence is evidence which allows the trier of fact to infer intentional discrimination. Id. “All that is required is that the action [or lack of action] taken be motivated by the gender of the plaintiff. No hatred, no animus, and no dislike is required.” King v. Bd. of Regents of Univ. of Wis. Sys., 898 F.2d 533, 539 (7th Cir. 1990).
Plaintiffs argue that the State’s failure to provide an inpatient mental health facility for women that is equal to the one provided for men (the Wisconsin Resource Center) violates equal protection. Defendants essentially concede that men are treated more favorably than women in this context. Defendants claim that this was not discriminatory, but rather a natural outgrowth of the historically small number of female prisoners in Wisconsin. This still doesn’t explain differential treatment for similarly situated female prisoners. The defendants’ ongoing knowledge of the disparity in treatment is circumstantial evidence of discriminatory animus. It raises the inference that the defendants deemed female prisoners
-37Case 2:06-cv-00537-RTR Filed 11/24/09 Page 37 of 44 Document 234

less important than male prisoners. Plaintiffs have established a prima facie case on their equal protection claim.
Defendants also argue that the Court must defer to its future plans to build a female inpatient health treatment facility. The Wisconsin State Legislature approved funding for an inpatient health treatment facility for female prisoners that is slated to open in early 2011. If this plan actually comes to fruition in a manner that satisfies the equal protection clause, this claim will be mooted. In the meantime, plaintiffs’ equal protection claim is still viable. III. ADA (Title II) and Rehabilitation Act Claims
The ADA was enacted to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Title II of the ADA prohibits discrimination in connection with access to public services, requiring that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
The ADA and the Rehabilitation Act both apply to prisoners. See Pennsylvania Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998). Title II of the ADA was modeled after Section 504 of the Rehabilitation Act. The elements of the two claims are nearly identical, and precedent under one statute typically applies to the other. See Washington v. Indiana
-38Case 2:06-cv-00537-RTR Filed 11/24/09 Page 38 of 44 Document 234

High Sch. Athletic Ass’n, Inc., 181 F.3d 840, 845 n.6 (7th Cir. 1999).2 For purposes of this motion, the minor differences between the ADA and the Rehabilitation Act are not relevant, so the Court will confine its analysis to the ADA. See, e.g., Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
The elements of a Title II claim are: (1) plaintiffs are qualified individuals with disabilities; (2) plaintiffs were either excluded from participating in, or denied the benefits of, a public entity’s services, programs, or activities, or were otherwise discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of disability. See Kiman v. New Hampshire Dep’t of Corrs., 451 F.3d 274, 283 (1st Cir. 2006); 42 U.S.C. § 12132. Intentional discrimination, or discrimination “by reason of disability,” can be established by evidence that the defendant intentionally acted on the basis of the disability, the defendant refused to provide a reasonable modification, or that the defendant’s rule disproportionately impacts disabled people. See Washington, 181 F.3d at 847. If needed, a plaintiff must demonstrate “the existence of a reasonable accommodation” that would enable her to participate in the program, service, or activity at issue. See, e.g., Zukle v. Regents of Univ. of Calif., 166 F.3d 1041, 1046 (9th Cir. 1999) (when a plaintiff alleges a failure to accommodate, part of the plaintiff’s initial burden includes showing the existence of a reasonable accommodation).
2
One difference between the two statutes is that the Rehabilitation Act only applies to entities receiving federal funds. “It is undisputed that DOC receives and uses federal funds in its state prison facilities.” Smith v. Frank, No. 07-C83, 2009 WL 750272, *6 n.1 (E.D. Wis. March 20, 2009).
-39Case 2:06-cv-00537-RTR Filed 11/24/09 Page 39 of 44 Document 234

If the plaintiff meets these prima facie requirements, the burden shifts to the defendants to show that the accommodation provided was either effective, or that the accommodation sought and not provided would have resulted in a fundamental alteration of the procedures or an undue financial or administrative burden. See Tucker v. State of Tennessee, 539 F.3d 526, 532-33 (6th Cir. 2008) (citing Tennessee v. Lane, 541 U.S. 509, 532 (2004)). This determination is a fact-specific, context-specific inquiry. See Pierce v. County of Orange, 526 F.3d 1190, 1217 (9th Cir. 2008). Courts may consider, “with deference to the expert views of facility administrators, a detention or correctional facility’s legitimate interests (namely in ‘maintaining security and order’ and ‘operating [an] institution in a manageable fashion’) when determining whether a given accommodation is reasonable.” Id. (citing Crawford v. Indiana Dep’t of Corr., 115 F.3d 481, 487 (7th Cir. 1997)).
The plaintiff provides evidence of a variety of potential ADA violations, including the maintenance of a segregated dining hall, a lack of program access to prisoners with mobility disabilities, and the failure to provide auxiliary aids to prisoners with hearing and vision disabilities. By way of example, programs like church services and medical appointments are rendered inaccessible by treacherous paths connecting the various buildings on TCI’s campus. Instead of repairing these unsafe conditions, TCI uses other prisoners as wheelchair “pushers.” One inmate declares that she “would like to attend Catholic religious services. However, there is a steep path leading up to the chapel, and it is difficult for the wheelchair
-40Case 2:06-cv-00537-RTR Filed 11/24/09 Page 40 of 44 Document 234

‘pushers’ who help me to push me up the ramp. Because I feel it wouldn’t be fair for me to make them do so, I have stopped going to religious services.”
Defendants argue that this prisoner is not being excluded from participation because she consciously chooses not to use the proposed accommodation. However, a reasonable inference from the facts is that the prisoner feels she cannot go to church unless she embarrasses herself by putting herself and her fellow inmates in the awkward and dangerous position of trying to push and lift her in her wheelchair. If the proposed accommodation is too difficult, awkward or dangerous for a disabled individual to utilize, the plaintiff is being denied the benefits of TCI’s services because of her disability. Going one step further, if the plaintiff actually accepts the risky accommodation so she can go to church, she still could state an ADA claim. Title II “proscribes discrimination on the basis of disability without requiring exclusion per se.” Chisolm v. McManimon, 275 F.3d 315, 330 (3d Cir. 2001) (emphasis in original). This is not to say that the plaintiffs are entitled to whatever form of accommodation they prefer. However, there is an issue of fact pertaining to the effectiveness of the accommodations offered at TCI. See, e.g., Pierce, 526 F.3d at 1219 (evidence that fellow detainees struggled to lift a wheelchair-bound detainee established an issue of fact regarding the effectiveness of “curative methods”).
The defendants also argue that Title II does not “[n]ecessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities.” 28 C.F.R. § 35.150(a)(1). The reference to “existing facilities” means facilities and grounds constructed prior to the ADA’s implementation date of January 26, 1992. A
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higher standard is applied to facilities that are substantially altered after the ADA’s implementation date: “each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such a manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities if the alteration was commenced after January 26, 1992.” 28 C.F.R. § 35.151(b). The “accessibility” standards are governed by reference to the Uniform Federal Accessibility Standards (UFAS) or the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG). See 28 C.F.R. § 35.151(c).
Defendants argue that because most (if not all) of their facilities were built prior to January 26, 1992, they do not have to meet the UFAS/ADAAG accessibility standards. “Public entities are not required to modify each facility to provide access by individuals with disabilities, but must operate all programs, services and activities in a manner such that, when viewed in its entirety, each service or program is ‘readily accessible to and usable by individuals with disabilities.’” Kinney v. Yerusalim, 812 F. Supp. 547, 548 (E.D. Pa. 1993) (quoting 28 C.F.R. § 35.150(a)). Even so, evidence regarding the alleged failure to meet the UFAS/ADAAG standards could still be relevant in the context of a “program accessibility” case. A program could be rendered inaccessible if it is held in an inaccessible facility. See, e.g., The Americans with Disabilities Act: Title II Technical Assistance Manual 5.2000 (“Unlike private entities under Title III, public entities are not required to remove barriers from each facility, even if removal is readily achievable. A public entity must make its
-42Case 2:06-cv-00537-RTR Filed 11/24/09 Page 42 of 44 Document 234

‘programs’ accessible. Physical changes to a building are required only when there is no other feasible way to make the program accessible”).
Finally, defendants argue that the ADA subclass lacks standing to obtain injunctive relief because they failed to show that they are facing a real or immediate threat of irreparable injury. The only relief sought by the ADA subclass is prospective, injunctive relief. See Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 606 (7th Cir. 2004) (private plaintiff may assert an ADA claim for injunctive relief against a state official in federal court) (citing Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001)). Defendants’ continuing failure to provide effective accommodations for its prisoners easily establishes the threat of future injury. TCI’s disabled inmates are under a continuing threat of harm under the ADA if they hope to partake in TCI’s programs and services going forward. The “imminent harm” standard is satisfied where “the potential harm was not ‘uncertain or speculative,’ but might be expected to occur before the threat could otherwise be averted. In determining standing, the courts have framed their inquiry into the ‘immediate threat’ as one encompassing consideration of the likelihood of an ongoing danger, as evidenced by past events.” Abdul-Akbar v. McKelvie, 239 F.3d 307, 322 (3d Cir. 2001) (citing O’Shea v. Littleton, 414 U.S. 488, 496 (1974)).
The Court concludes that the plaintiffs satisfied their prima facie burden with respect to numerous potential and ongoing ADA violations. The defendants’ claim that they consistently follow TCI’s “policy” to provide reasonable accommodations for disabled inmates is contradicted by extensive evidence in the record. In addition, defendants fail to
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provide any evidence showing that the proposed accommodations – e.g., repairing uneven pathways, removing access barriers, providing sign language interpreters for educational and religious programs – impose an undue burden or require any fundamental alterations. Accordingly, there are genuine issues of material fact, and defendants are not entitled to judgment as a matter of law.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT:
1. Defendants’ motion for partial summary judgment is DENIED-IN-PART and GRANTED-IN-PART, consistent with the foregoing opinion;
2. The Court will conduct a telephonic status conference on December 9, 2009 at 10:30 a.m (CST). The purpose of this call will be to set the case for trial on the Court’s calendar. All parties must dial number 1-866-360-7333 and provide the Sprint Telephone Operator with Conference ID # 42016407 to participate.
Dated at Milwaukee, Wisconsin, this 24th day of November, 2009. SO ORDERED,
s/ Rudolph T. Randa HON. RUDOLPH T. RANDA U.S. District Judge
-44Case 2:06-cv-00537-RTR Filed 11/24/09 Page 44 of 44 Document 234

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

KRISTINE FLYNN, et al., on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
JIM DOYLE, et al.,
Defendants.

Case No. 06-C-537-RTR

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT
For the reasons set forth in Plaintiffs’ Motion for Final Approval of Class Action Settlement, THE COURT MAKES THE FOLLOWING FINDINGS:
1. The form and content of the Notice to the Class and the manner by which the Notice to the Class was disseminated constituted “a reasonable manner” of providing notice and satisfied the requirements of Fed. R. Civ. P. 23(e)(1), Fed. R. Civ. P. 23(h)(1), and due process.
2. The Court, having considered all relevant legal factors and evidence, finds the Proposed Settlement Agreement (PSA) to be fair, reasonable, and adequate pursuant to Federal Rule of Civil Procedure 23(e)(2).
3. Defendants’ conduct toward Plaintiffs constitutes a “violation of [] Federal right[s]” pursuant to 18 U.S.C. § 3626(a)(1)(A) with regard to the rights guaranteed by the Eighth Amendment, Equal Protection Clause of the Fourteenth Amendment, and the Americans with Disabilities Act.

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4. The prospective relief provided by the PSA is narrowly drawn and extends no further than necessary to correct deficiencies in the medical and mental health care provided to Plaintiffs by Defendants and to provide access to prisoners with disabilities in accordance with the Americans with Disabilities Act.
5. The prospective relief provided by the PSA is the least intrusive means of remedying Defendants’ violations of Federal rights.
6. The Court makes these findings having given substantial weight to and consideration of any adverse impact on public safety or the operation of a criminal justice system caused by the relief.
7. The prospective relief provided by the PSA complies with the requirements of 18 U.S.C. § 3626(a)(1)(A).
8. The Court approves $208.50 per hour as the currently hourly rate allowed by 42 U.S.C. § 1997e(d)(3).
9. The Court approves Plaintiffs’ counsel’s hourly rates as reasonable for the purpose of determining fees recoverable under 42 U.S.C. § 12205.
10. The Court finds that the attorneys’ fees and costs provided for in the PSA were directly and reasonably incurred in proving an actual violation of Plaintiff's rights or directly and reasonably incurred in enforcing the relief ordered for a violation. The Court further finds that the agreed-upon amount of attorneys’ fees and costs is proportionately related to the court ordered relief for the violations of Federal rights.
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THESE FINDINGS HAVING BEEN MADE, IT IS HEREBY ORDERED: 1. Plaintiffs’ Motion for Final Approval of Class Action Settlement is GRANTED. 2. The Court will retain jurisdiction over this action until all claims have been dismissed.
IT IS SO ORDERED.

Dated: December 2, 2010

s/ Rudolph T. Randa Hon. Rudolph Randa United States District Judge

Case 2:06-cv-00537-RTR Filed 12/02/10 Page 3 of 3 Document 274

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN
_________________________________________________________________________
KRISTINE FLYNN, et al.,

Plaintiffs,

v.

Case No. 06-C-0537

JAMES DOYLE, et al.,

Defendants. _________________________________________________________________________

JOINT MOTION TO INCORPORATE SETTLEMENT TERMS ___________________________________________________________________________

Pursuant to Federal Rule of Civil Procedure 23(d), the Parties jointly ask the Court to enter an Order incorporating “Appendix C to Settlement Agreement,” into the Settlement Agreement (Doc. No. 272-1) approved by the Court on December 2, 2010 (Doc. No. 274).
Paragraph I(A)(2)(a) of the Settlement Agreement requires the Consultant and the Parties to develop Compliance Indicators and Compliance Thresholds for each of the 12 TCI Medical Care Standards. Paragraph I(A)(2)(a)(i)(2) states that these “Compliance Indicators and their corresponding Compliance Thresholds will be incorporated into the agreement as enforceable terms with the understanding that Compliance Indicators may be modified by the Consultant and TCI health care staff, with input from Plaintiffs’ counsel, to reflect operations needs of the institution.”
The Parties and the Consultant have developed and agreed upon the Compliance Indicators and Compliance Thresholds for the TCI Medical Care Standard “Nonemergency
1 Case 2:06-cv-00537-RTR Filed 05/23/11 Page 1 of 10 Document 280

Health Care Requests and Services” and have set them forth in “Appendix C to Settlement
Agreement,” attached hereto. The Parties respectfully ask the Court to enter an Order
incorporating Appendix C into the Settlement Agreement previously approved.
Pursuant to Civ. L.R. 7.1(a), undersigned counsel certifies that no separate supporting
brief will be filed with this motion.
Dated May 23, 2011
Respectfully submitted,
/s Gabriel B. Eber Gabriel B. Eber D.C. Bar No. 483021 National Prison Project of the ACLU Foundation 915 15th Street, N.W., 7th Floor Washington, D.C. 20005 Tel: (202) 393-4930 E-mail: geber@npp-aclu.org
Laurence J. Dupuis State Bar No. 1029261 American Civil Liberties Union of Wisconsin Foundation 207 E. Buffalo St., # 325 Milwaukee WI 53202 Tel: (414) 272-4032 Fax: (414) 272-0182 Email: ldupuis@aclu-wi.org
Robert L. Graham Keri L. Holleb Hotaling Jenner & Block LLP 353 N. Clark Street Chicago, IL 60654 Telephone: (312) 222-9350 Email: graham@jenner.com
2
Case 2:06-cv-00537-RTR Filed 05/23/11 Page 2 of 10 Document 280

Attorney for Plaintiffs /s Karla Z. Keckhaver Karla Z. Keckhaver Assistant Attorney General State Bar #1028242 Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 Telephone: (608) 267-2222 Fax: (608) 267-8906 E-Mail: keckhaverkz@doj.state.wi.us Attorney for Defendants
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Case 2:06-cv-00537-RTR Filed 05/23/11 Page 4 of 10 Document 280

Case 2:06-cv-00537-RTR Filed 05/23/11 Page 5 of 10 Document 280

Case 2:06-cv-00537-RTR Filed 05/23/11 Page 6 of 10 Document 280

Case 2:06-cv-00537-RTR Filed 05/23/11 Page 7 of 10 Document 280

Case 2:06-cv-00537-RTR Filed 05/23/11 Page 8 of 10 Document 280

Case 2:06-cv-00537-RTR Filed 05/23/11 Page 9 of 10 Document 280

Case 2:06-cv-00537-RTR Filed 05/23/11 Page 10 of 10 Document 280

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN
_________________________________________________________________________
KRISTINE FLYNN, et al.,

Plaintiffs,

v.

Case No. 06-C-0537

SCOTT WALKER, et al.,

Defendants. _________________________________________________________________________

JOINT MOTION TO INCORPORATE SETTLEMENT TERMS ___________________________________________________________________________

Pursuant to Federal Rule of Civil Procedure 23(d), the Parties jointly ask the Court to enter an Order incorporating “Appendix C-2 to Settlement Agreement (June 4, 2012),” into the Settlement Agreement (Doc. No. 272-1) approved by the Court on December 2, 2010 (Doc. No. 274).
Paragraph I(A)(2)(a) of the Settlement Agreement requires the Consultant and the Parties to develop Compliance Indicators and Compliance Thresholds for each of the twelve TCI Medical Care Standards. Paragraph I(A)(2)(a)(i)(2) states that these “Compliance Indicators and their corresponding Compliance Thresholds will be incorporated into the agreement as enforceable terms with the understanding that Compliance Indicators may be modified by the Consultant and TCI health care staff, with input from Plaintiffs’ counsel, to reflect operational needs of the institution.”

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In further compliance with paragraph I(A)(2)(a) of the Settlement Agreement, the Consultant and the Parties have created additional Compliance Indicators and Compliance Thresholds and have modified existing ones. The new and/or modified Compliance Indicators and Compliance Thresholds are set forth in “Appendix C-2 to Settlement Agreement (June 4, 2012),” submitted with this Motion.
The Parties respectively ask the Court to enter an Order incorporating “Appendix C-2 to Settlement Agreement (June 4, 2012)” into the Settlement Agreement, superseding in its entirety “Appendix C to Settlement Agreement” previously incorporated into the Settlement Agreement by Order of May 24, 2011.
Pursuant to Civ. L.R. 7.1(a), undersigned counsel certify that no separate supporting brief will be filed with this motion.

Dated June 6, 2012.

Respectfully submitted,
/s Gabriel B. Eber Gabriel B. Eber D.C. Bar No. 483021 National Prison Project of the ACLU Foundation 915 15th Street, N.W., 7th Floor Washington, D.C. 20005 Tel: (202) 393-4930 E-mail: geber@npp-aclu.org
/s Laurence J. Dupuis Laurence J. Dupuis State Bar No. 1029261 American Civil Liberties Union of Wisconsin Foundation 207 E. Buffalo St., # 325 Milwaukee WI 53202 Tel: (414) 272-4032 Fax: (414) 272-0182 Email: ldupuis@aclu-wi.org

2 Case 2:06-cv-00537-RTR Filed 06/06/12 Page 2 of 3 Document 283

/s Karla Z. Keckhaver Karla Z. Keckhaver Assistant Attorney General State Bar #1028242 Wisconsin Department of Justice Post Office Box 7857 Madison, Wisconsin 53707-7857 Telephone: (608) 267-2222 Fax: (608) 267-8906 E-Mail: keckhaverkz@doj.state.wi.us /s Kathryn R. Anderson Chief Legal Counsel Wisconsin Department of Corrections 3099 East Washington Avenue P.O. Box 7925 Madison, WI 53707-7925 Telephone: (608) 240-5049 Fax (608) 240-3306
Attorneys for Defendants
3 Case 2:06-cv-00537-RTR Filed 06/06/12 Page 3 of 3 Document 283

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN __________________________________________________________________________

KRISTINE FLYNN, et al.,

Plaintiffs, v.
SCOTT WALKER, et al.,

Case No. 06-C-0537

Defendants. __________________________________________________________________________

APPENDIX C-2 to SETTLEMENT AGREEMENT (JUNE 4, 2012) ___________________________________________________________________________

The Parties to the Settlement Agreement [Document No. 272-1] in the above-captioned matter, by their counsel, state as follows:
1. The attached Compliance Indicators and Compliance Thresholds were created by the Parties and the Consultant pursuant to Section I(A)(2)(a)(i) of the Settlement Agreement in the above-captioned action.
2. The attached Compliance Indicators and Compliance Thresholds are hereby submitted for incorporation into the Settlement Agreement pursuant to Section I(A)(2)(a)(i)(2) of that agreement. The Compliance Indicators and Compliance Thresholds set forth in the attached document are enforceable as part of the Settlement Agreement.
3. By agreement of the Parties, the “Performance Goal” for each Compliance Indicator represents a target level of performance that TCI will seek to achieve in accordance with principles of patient safety and quality improvement. Performance Goals are not enforceable as part of the Settlement Agreement.

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4. This document, APPENDIX C-2 to SETTLEMENT AGREEMENT (JUNE 4, 2012) and the Compliance Indicators and Compliance Thresholds contained herein, supersedes in its entirety APPENDIX C to SETTLEMENT AGREEMENT, previously incorporated into the settlement by Order dated May 24, 2011, and the Compliance Indicators and Compliance Thresholds contained therein.
5. The Parties and Consultant agree that the Compliance Thresholds set forth herein are for the sole purpose of determining compliance with terms of the Settlement Agreement in the above-captioned matter.
6. The Compliance Indicators and Compliance Thresholds have been created to reflect specific circumstances at the Taycheedah Correctional Institution. Neither Party represents that attainment of the Compliance Thresholds for any given Compliance Indicator has any legal or Constitutional significance beyond determining compliance with the Settlement Agreement in the above-captioned matter. They are not admissible for any reason in any action other than the above-captioned matter.
7. All terms used herein shall have the same meaning given them in the Settlement Agreement.
8. This Appendix may be signed in counterpart originals.

Dated: June 6, 2012

NATIONAL PRISON PROJECT OF THE ACLU FOUNDATION /s Gabriel B. Eber Gabriel B. Eber Staff Counsel

2 Case 2:06-cv-00537-RTR Filed 06/06/12 Page 2 of 15 Document 283-1

ACLU OF WISCONSIN FOUNDATION /s Laurence J. Dupuis Laurence J. Dupuis Legal Director WISCONSIN DEPT. OF JUSTICE /s Karla Z. Keckhaver Karla Z. Keckhaver Assistant Attorney General WISCONSIN DEPT. OF CORRECTIONS /s Kathryn R. Anderson Kathryn R. Anderson Chief Legal Counsel
3 Case 2:06-cv-00537-RTR Filed 06/06/12 Page 3 of 15 Document 283-1

Modality *

Measure #

TCI Medical Standard †

Compliance Indicator

Denominator

P-E-07.001 P-E-07.002 P-E-07.005
P-E-07.006 P-E-07.007

IN Patients in GP have opportunity daily to Inspect policy, training

1

request HC.

curricula, examine

practice.

IN Patients in Seg have opportunity daily Inspect policy, training

1

to request HC.

curricula, examine

practice.

CA COs pass verbal requests for health # verbal requests for

care to nurse w/o filter.

healthcare during the

timeframe reviewed

1

(n=max# regardless if

source from CO log or

HSU log).

CA Patient verbal requests for healthcare 1000

1

are responded to in a timely and appropriate manner without filter from

custody staff.

PI COs pass urgent oral requests to nurse

w/o filter; nurses assess patient timely.

1

P-E-07.010 P-E-07.011
P-E-07.012

IN Verbal request for health care are

1

triaged/acted on by an RN.

CA Verbal request for health care are

# verbal requests for

triaged/acted on in a clinically

healthcare during the

1

appropriate timeframe.

timeframe reviewed (n= max # regardless of

source).

CA The disposition (triage decision) related # verbal requests for

to the patient's verbal request for

healthcare during the

1

healthcare is documented in the

timeframe reviewed (n=

patient's chart.

max # regardless of

source)

Numerator

Compliance Threshold

Performance Goal

Complies

Complies

Complies

Complies

# denominator entries with ≥ 90% documentation in both the HSU log and custody log for verbal request (timeframe within 30 minutes).

100%

(# grievances for this issue x - y**

in month) * 1000/ADP this grievances/1000

month*12

population/year

All specific complaints f/u'd; consistent with chart review data. Complies

Complies

# denominator entries where the timeframe for triage is determined to be clinically appropriate.

≥95%

# denominator entries that ≥ 90% have a corresponding note in the chart indicating the triage disposition.

100% 100%

Case 2:06-cv-00537-RTR Filed 06/06/12 Page 4 of 15 Document 283-1
Flynn Compliance Indicators vers. 2012.04.16

Page 1 of 11

Modality *

Measure #

TCI Medical Standard †

Compliance Indicator

Denominator

Numerator

Compliance Threshold

P-E-07.015
P-E-07.020
P-E-07.030 P-E-07.033 P-E-07.034 P-E-07.035 P-E-07.040

CA The clinical care during sick call related to the patient's verbal/written

# written/verbal requests # denominator entries for healthcare during the where the disposition is

≥95%

1

request for healthcare is clinically

timeframe reviewed (n= determined to be clinically

appropriate.

max # regardless of

appropriate by the

source).

reviewer.

CA The clinical care during sick call related # written/verbal requests # denominator entries

≥95%

to the patient's written/verbal requests for healthcare during the where the disposition

occurs in a timely manner that is within timeframe reviewed (n= results in a sick call visit,

NCCHC timeframe or less based on max # regardless of

and where the sick call

1

patients clinical symptoms and

source) that resulted in a occurred in a clinically

condition.

disposition of sick call. appropriate timeframe or

within 24 hrs (48 hrs on

weekends), whichever is

shorter.

CA HSRs are date stamped when received # HSRs reviewed

# denominator entries that ≥ 90%

1

in HSU.

have a date stamp

indicating receipt in HSU.

1

IN HSRs are paper-triaged by RN.

Inspect policy, examine practice

Complies

1

IN RNs who paper-triage are credentialed Inspect training files of

to do so.

triagers.

Complies

CA HSRs are paper-triaged within 1 day # HSRs reviewed

# denominator entries for ≥95%

1

(24 hours)

which date of triage is

within 1 day of request.

CA HSRs paper-triage is clinically

# HSRs reviewed

# denominator entries for ≥95%

1

appropriate, including respectful.

which paper triage plan was clinically appropriate.

P-E-07.052 P-E-07.055

CA If triage of the HSR indicates the need # HSRs containing direct # of denominator which ≥95%

for a sick call appointment directly with triage referral to ACP

take place w/i time frame

1

ACP, was conducted in a timely

reviewed

planned

manner

CA If the sick call visit with the RN

# HSRs in which the sick # denominator entries for ≥95%

1

indicates the need for follow up

call RN recommended f/u which visit with ACP was

appointment with practitioner, was seen with an ACP reviewed

timely

in a timely manner.

Performance Goal 100%
100%
100% Complies Complies 100% 100% 100%
100%

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Flynn Compliance Indicators vers. 2012.04.16

Page 2 of 11

Modality *

Measure #

TCI Medical Standard †

Compliance Indicator

Denominator

Numerator

Compliance Threshold

Performance Goal

P-E-07.060
P-E-07.063 P-E-07.065 P-E-07.066 P-E-07.080

IN Sick call conducted by credentialed Inspect policy, examine

Complies

Complies

1

RNs

practice, review training

files of SC nurses

1

IN Sick call occurs in a clinical setting

Examine practice

Complies

Complies

1

PI Satisfied with care during sick call

all specific complaints f/u'd

1

PI Satisfied with care during practitioner f/u to sick call

all specific complaints f/u'd

CA If an HSR results in a visit with an ACP # HSRs containing ACP # of denominator entries ≥ 95%

100%

(either directly through paper-triage or visits reviewed

for which care is

1

by sick call RN referral), the visit with

the ACP was clinically appropriate.

appropriate

Items above were previously submitted to the Court as final. They have undergone some minor revisions as dictated by analysis of patient data.

P-E-07.100 P-E-11.002
P-E-11.005 P-E-11.010 P-E-12.001

CA Preventable ER visits are avoided.

# ER trips

# of ER trips that were

≤5%

1

potentially avoidable by

preventive care

CA Vital signs are taken per policy.

# of charts reviewed

# charts where all vitals ≥ 95%

2

(generated as a result of are documented during the

sick call visits or chart

visit.

reviews).

IN There is documentation of training of review of curricula and

Complies

2

nursing staff related to the use of

education/training records.

nursing protocols.

IN There is a policy related to the use of Inspect policy, training

Complies

2

nursing protocols.

curricula, examine practice

CA There is documentation in the chart # of off site visits, trips to # of charts in which there ≥ 95%

that on return (and before return to

ER, etc reviewed.

is documentation of

3

housing unit) from ER, hospitalization, Infirmary stay or procedure, the patient

assessment by the RN

was seen/assessed by the RN.

0% 100%
Complies Complies 100%

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Modality *

Measure #

TCI Medical Standard †

Compliance Indicator

Denominator

Numerator

Compliance Threshold

P-E-12.004

CA There is documentation in the chart # of off site visits, trips to # of charts in which orders ≥ 95%

that upon return (and before return to ER, etc reviewed

are reviewed in a timely

housing unit) from ER, hospitalization,

and clinically appropriate

3

Infirmary stay or procedure, consultant recommendations are reviewed in a

manner

timely and clinically appropriate

manner.

P-E-12.005 P-E-12.006 P-E-12.007 P-E-12.008

CA The RN assessment is clinically

# of off site visits, trips to # of charts in which the RN ≥ 95%

3

appropriate for the patient

ER, etc reviewed

complaint/symptom upon return from

assessment upon return is clinically appropriate

any off-site trip.

CA There is documentation in the chart # of off site visits, trips to # of charts in which

≥ 95%

3

that upon return from any off site trip ER, etc reviewed medication reconciliation occurs in a

medication reconciliation occurred upon return

timely manner.

CA The patient is seen by an ACP within a # of off site visits, trips to # of charts in which follow ≥ 95%

clinically appropriate time frame

ER, etc reviewed.

up visit with ACP occurs

3

following return from ER,

within a clinically

hospitalization, infirmary stay or

appropriate time frame.

procedure.

CA There is documentation in the chart of # of off site visits with

# of charts in which there ≥ 95%

a complete set of vitals signs (blood procedure, trips to ER, etc is a complete set of vital

pressure, pulse, respiratory rate,

reviewed.

signs upon return (blood

3

temperature, oxygen saturation) upon

pressure, pulse, respiratory

return from ER, hospitalization,

rate, temperature, oxygen

infirmary stay or procedure.

saturation).

P-E-12.009

CA There is documentation in the chart # of off site visits, trips to # of charts in which patient ≥ 95%

that upon return from ER,

ER, hospitalization,

there is documentation

3

hospitalization, infirmary stay, or

infirmary stay reviewed

procedure, the patient was informed of

patient informed of follow up instructions as

follow up instructions as appropriate.

appropriate

Performance Goal 100%
100% 100% 100% 100%
100%

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Modality *

Measure #

TCI Medical Standard †

Compliance Indicator

Denominator

Numerator

Compliance Threshold

P-E-12.014 P-E-12.015

CA If consultant or ER orders were

# of off site visits, trips to # charts with clinical

≥ 95%

modified by the provider, there is a

ER, where the

justification for change in

3

clinical justification noted in the patient consultant/ER orders were consultant/ER orders

record

modified.

noted in the progress

CA If consultant or ER orders were

notes. # of off site visits, trips to # charts where the clinical ≥ 95%

modified by the provider in a significant ER, where the

justification for change in

3

manner - the clinical justification is

consultant/ER orders were consultant/ER orders was

reasonable/appropriate.

modified.

appropriate.

P-E-12.020 P-E-12.022 P-E-12.024

CA Provider orders (non medication) are # non medication orders # of orders in which the ≥ 95%

3

processed in a timely manner.

reviewed

provider order was processed in a timely

manner

CA Results from Provider orders (non

# non medication orders # of orders in which the ≥ 95%

3

medication) are completed as

reviewed

results of the order are

evidenced by results in the chart.

evident in the chart

CA Results in the chart related to non

# non medication orders # of results evident in the ≥ 95%

medication orders are noted by a

that have results available medical record that are

3

provider.

in the chart.

noted by the provider

(documentation is evident).

P-E-12.026

CA Providers response to results is clinically appropriate
3

# of results evident in the # medical records where chart that are noted by the the response is clinically provider (documentation is appropriate. evident)

≥ 95%

P-E-12.028 P-G-01.001

CA There is documentation in the chart # of charts reviewed where # medical records where ≥ 95%

that the results of diagnostic studies the patient received a

the response is clinically

3

and/or specialty visits was communicated to the patient.

diagnostic study and/or specialty care visit

appropriate. There is evidence that the results

were communicated to the

patient

IN An accurate list is maintained for the examine process

Complies

4

identification and tracking of patients

with chronic diseases.

Performance Goal 100% 100%
100% 100% 100%
100%
100%
Complies

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Modality *

Measure #

TCI Medical Standard †

Compliance Indicator

Denominator

Numerator

Compliance Threshold

P-G-01.003 P-G-01.005 P-G-01.008 P-G-01.009

CA Chronic conditions are indicated on the # of charts reviewed with a # charts with chronic

≥ 95%

4

Problem List.

chronic disease process disease diagnosis on

problem list

CA Follow up visits (chronic care) are

# of charts reviewed with a # charts where follow up ≥ 95%

4

scheduled at a clinically appropriate chronic disease process visits scheduled at an

interval.

appropriate time interval.

IN There is a policy related to the care of Inspect policy, training

Complies

4

the patient with chronic disease

curricula, examine practice

diagnosis.

IN Up to date clinical guidelines are

Inspect policy, training

Complies

4

available.

curricula, examine practice

P-G-01.010 P-G-01.013
P-E-08.001 P-E-08.006 P-E-08.005 P-D-05.001

CA The level of disease control is

# of charts reviewed with a # charts where the level of ≥ 90%

documented at each Chronic Care visit. chronic disease process the chronic disease

4

diagnosis/process is

documented at the visit.

CA Providers conduct chronic care clinics # of charts reviewed with a # charts where provider ≥ 95%

in accordance with the standard of care chronic disease process care was in accordance

including adherence to state and/or

with the standard of care

4

national guidelines when applicable.

including adherence to

state and/or national

guidelines when

applicable.

IN Security staff receive training in

Inspect policy, training

Complies

5

recognizing and responding to

curricula, examine practice

emergencies.

CA Patients are sent to the ER within a # of charts reviewed with # charts where patient was ≥ 95%

5

clinically reasonable timeframe after the an ER trip chronic disease sent to ER within a

need for ER care was, or should have process

clinically reasonable

been identified.

timeframe.

IN There is a policy related to the handling Inspect policy, training

Complies

5

of clinical care of the inmate in an

curricula, examine practice

emergency.

CA Specialty care appointments

# specialty care

# ordered within a clinically ≥ 95%

(scheduled off site care, diagnostic

appointments (referred to appropriate timeframe

6

tests and follow up appointments) are as "off-site")

ordered within a clinically appropriate

timeframe.

Performance Goal 100% 100% Complies Complies 100%
100%
Complies 100% Complies 100%

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Modality *

Measure #

TCI Medical Standard †

Compliance Indicator

Denominator

Numerator

Compliance Threshold

P-D-05.003

CA The test/procedure/visit related to the # specialty care

# completed off site

≥ 95%

specialty visit is kept within the

appointments (referred to appointments within the

6

specified time.

as "off-site")

specified timeframe indicated by the provider.

P-D-05.005 P-E-02.001 P-E-02.002 P-E-02.003 P-E-02.004
P-E-02.005 P-E-02.006

CA Dictated reports from specialty

# specialty care

# signed off in a clinically ≥ 95%

6

providers are signed off by provider appointments (frequently appropriate timeframe within a clinically appropriate timeframe. referred to as "off-site")

IN Medical Clearance is carried out on Examine practice

7

arrival (RN goes over to bus if needed).

Complies

IN Receiving screening occurs for all

Examine practice

Complies

7

inmates by qualified health

professionals.

CA Receiving screening occurs for all

# intakes reviewed.

# of charts in which

≥ 95%

inmates within an appropriate

Includes all female

screening occurred in a

7

timeframe within 4 hours of arrival.

inmates entering DOC timely manner or within 4

through TCI (not just those hours, whichever is shorter

staying at TCI).

CA Disposition (need for medical referrals) # intakes reviewed.

# of charts in which intake ≥ 90%

documented on the screening form is Includes all female

screening results in

7

appropriate for the patient's condition inmates entering DOC referrals appropriate for

and history.

through TCI (not just those patient's history and these

staying at TCI).

are completed in a timely

manner.

CA Prescribed medications are reviewed # intakes reviewed.

# of charts in which

≥ 95%

by a provider and are clinically

Includes all female

prescribed medications are

7

appropriate.

inmates entering DOC reviewed and are clinically

through TCI (not just those appropriate

staying at TCI).

CA The patient's prescribed medication # intakes reviewed.

# of charts in which

≥ 95%

regimen is maintained appropriately Includes all female

prescribed medication

7

(there are no unreasonable gaps in inmates entering DOC regimen is maintained

medication regime).

through TCI (not just those appropriately

staying at TCI).

Performance Goal 100%
100% Complies Complies 100%
100%
100%
100%

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Modality *

Measure #

TCI Medical Standard †

Compliance Indicator

Denominator

Numerator

Compliance Threshold

P-E-04.001 P-E-04.002 P-E-04.003
P-E-04.004 P-E-04.005 P-E-04.008 P-E-04.009

CA Patients receive an Initial Health

# intakes reviewed.

# of charts in which an ≥ 95%

Assessment within a clinically

Includes all female

Initial Health Assessment

8

appropriate timeframe not to exceed 7 inmates entering DOC is conducted within a

days.

through TCI (not just those clinically appropriate

staying at TCI).

timeframe not to exceed 7

days.

8

IN Initial Health Assessments are done by Examine practice qualified health professionals.

Complies

CA Documentation of Initial Health

# intakes reviewed. Intake # of charts in which the ≥ 95%

Assessment includes Vital Signs

includes all female patients Initial Health Assessment

(height, weight, BMI, pulse,

entering DOC through TCI includes Vital Signs

8

temperature, blood pressure, oxygen (not just those staying at (height, weight, BMI, pulse,

saturation).

TCI).

temperature, blood

pressure, oxygen

saturation).

CA The problem list is current, legible and # intakes reviewed.

# of charts in which the ≥ 90%

clinically appropriate.

Includes all female

problem list is current,

8

patients entering DOC legible and clinically

through TCI (not just those appropriate.

staying at TCI).

CA There is a diagnostic and therapeutic # Intake reviewed.

# of charts in which there ≥ 90%

plan for each current problem.

Includes all female

is a therapeutic plan for

8

patients entering DOC each current problem

through TCI (not just those

staying at TCI).

CA The scope of the Initial Health

# intakes reviewed.

# of charts in which the ≥ 95%

Assessment related to medical issues Includes all female

scope of the Initial Health

8

is clinically appropriate.

patients entering DOC Assessment related to

through TCI (not just those medical issues is clinically

staying at TCI).

appropriate.

CA The scope of the Initial Health

# intakes reviewed.

# of charts in which the ≥ 90%

Assessment related to dental issues is Includes all female

scope of the Initial Health

8

clinically appropriate.

patients entering DOC Assessment related to through TCI (not just those dental issues is clinically

staying at TCI).

appropriate.

Performance Goal 100%
Complies 100%
100% 100% 100% 100%

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Modality *

Measure #

TCI Medical Standard †

Compliance Indicator

Denominator

Numerator

Compliance Threshold

P-E-04.010 P-E-04.013 P-E-04.014 P-D-01.001

8 8 8 9, 10

CA The scope of the Initial Health

# Intake reviewed.

# of charts in which the ≥ 95%

Assessment related to mental health Includes all female

scope of the Initial Health

issues is clinically appropriate.

patients entering DOC Assessment related to

through TCI (not just those mental health issues is

staying at TCI).

clinically appropriate

CA The patient is seen by a dentist within a # Intakes reviewed.

# of charts in which the ≥ 95%

clinically appropriate timeframe.

Includes all female

patient is seen by a dentist

patients entering DOC within a clinically

through TCI (not just those reasonable timeframe

staying at TCI).

CA The patient is seen by PSU/psych

# Intake includes all

# of charts in which the ≥ 95%

within a clinically appropriate timeframe. female patients entering patient is seen by

DOC through TCI (not just PSU/psych within a

those staying at TCI).

clinically reasonable

timeframe.

§ Stat medication orders are

# of stat medication orders # of stat medication orders ≥ 95%

administered in a clinically appropriate reviewed.

that were administered to

timeframe not to exceed 1 hour.

the patient within 1 hour.

P-D-01.002 P-D-01.003

IN There is a policy related to nurse

Inspect policy, training

Complies

administered medications that

curricula

10

articulates the process for review and

assessment by clinical staff when

medications are missed or refused.

§ #1 medication orders are administered # of #1 medication orders # of #1 medication orders ≥ 95%

9, 10

in a clinically appropriate timeframe not reviewed. to exceed 8 hours

that were administered to the inmate within 8 hours

P-D-01.004

CA Nurses document the administration of # of active boxes/cells on # of active boxes/cells on ≥ 95%

medications according to policy.

the patient's Medication the patient's

10

Treatment Record that Medication/Treatment correlate to the regime of Record that are completed

current prescribed

according to policy.

medications.

Performance Goal 100%
100%
100%
100% Complies
100% 100%

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Modality *

Measure #

TCI Medical Standard †

P-D-01.005

§

9, 10

P-D-01.006

§

9, 10

P-D-01.007

§

9, 10

Compliance Indicator

Denominator

Numerator

Compliance Threshold

New KOP medication orders (orders for # of new medication medication not currently prescribed for orders reviewed. the patient) are delivered in a clinically appropriate timeframe, not to exceed 48 hours on weekdays (Monday through Friday) or 72 hours on weekends (Saturday and Sunday).

# of new KOP medication ≥ 95% orders (orders for medications not currently prescribed for the patient) that were delivered in a clinically appropriate timeframe, not to exceed 48 hours on weekdays (Monday through Friday) and 72 hours on weekends (Saturday and Sunday).

KOP medication refill orders (orders for # of medication refill orders # of KOP refill medication ≥ 95%

medications that are currently

reviewed.

orders (orders for

prescribed for the patient) are delivered

medications not currently

in a clinically appropriate timeframe, not

prescribed for the patient)

to exceed 48 hours on weekdays

that were

(Monday through Friday) or 72 hours

administered/delivered in a

on weekends (Saturday and Sunday).

clinically appropriate

timeframe, not to exceed

48 hours on weekdays

(Monday through Friday)

and 72 hours on weekends

(Saturday and Sunday).

New "pill line" medication orders (orders # of new medication for medication not currently prescribed orders reviewed. for the patient) are administered in a clinically appropriate timeframe, not to exceed 48 hours on weekdays (Monday through Friday) or 72 hours on weekends (Saturday and Sunday).

# of new "pill line"

≥ 95%

medication orders (orders

for medications not

currently prescribed for the

patient) that were

administered in a clinically

appropriate timeframe, not

to exceed 48 hours on

weekdays (Monday

through Friday) and 72

hours on weekends

(Saturday and Sunday).

Performance Goal 100%
100%
100%

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Modality *

Measure #

TCI Medical Standard †

Compliance Indicator

Denominator

Numerator

Compliance Threshold

P-D-01.008

§ 9, 10

"Pill line" medication refill orders (orders # of medication refill orders # of "pill line" refill

≥ 95%

for medications that are currently

reviewed.

medication orders (orders

prescribed for the patient) are

for medications not

administered in a clinically appropriate

currently prescribed for the

timeframe, not to exceed 48 hours on

patient) that were

weekdays (Monday through Friday) or

administered in a clinically

72 hours on weekends (Saturday and

appropriate timeframe, not

Sunday).

to exceed 48 hours on

weekdays (Monday

through Friday) and 72

hours on weekends

(Saturday and Sunday).

P-G-03.001 P-E-12.010
P-G-03.004 P-G-03.006
P-A-06.003 P-A-06.002 P-A-06.001

IN There is a policy defining patient types Inspect policy, examine

Complies

11

and conditions appropriate to receive practice

care at TCI versus Infirmary.

CA Upon return from ER, hospitalization, # of off site visits, trips to # charts in which patient ≥ 95%

11

infirmary stay or procedure, patient is ER, etc reviewed placed in a clinically appropriate bed.

placed in a clinically appropriate bed after the

trip

IN The physical environment at TCI

Inspect policy, examine

Complies

11

Observation beds supports the level of practice

care provided.

CA Admission/Discharge from TCI

# admissions and

# of admissions and

≥ 85%

11

Observation beds occurs as defined in discharges from TCI

the policy.

Observation beds

discharges in which the movement complied with

reviewed

policy

IN TCI CQI Committee performs at least 2 Inspect CQI Committee

Complies

12

process quality improvement studies Minutes

and appropriate follow up

IN TCI CQI Committee performs at least 2 Inspect CQI Committee

Complies

12

outcome quality improvement studies Minutes

and appropriate follow up

IN There is evidence of a multidisciplinary Inspect CQI Committee

Complies

12

quality improvement committee with Minutes active participation of HSU leadership.

Performance Goal 100%
Complies 100% Complies 100% Complies Complies Complies

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Legend and Abbreviations
* Modality IN Inspection by Consultant CA Chart Audit PI Patient Interviews
** There is not yet sufficient experience with this measure at TCI to assign appropriate values to x and y. TCI will begin measuring this metric. The consultant will work with WDOC to establish appropriate values after more data is collected.
*** (1) The Consultant will be able to review all underlying documents and data used to generate the averages; (2) the Consultant will review a sample of such data and documents to estimate the frequency with which administration or delivery is delayed beyond the timeframes specified in DOC policy for stat, #1 and other medications; and (3) if the consultant deems it appropriate, the measure will be modified so that compliance is determined by a percentage of records showing compliance, rather than an average time.
§ Review of medication time study data related to stat, #1, new and refill orders
† TCI Medical Standards 1. Non emergency health care requests and services 2. Nursing assessments 3. Continuity of care 4. Chronic disease 5. Emergency services 6. Hospital and specialty care 7. Receiving screening. 8. Initial health assessments 9. Pharmaceutical operations 10. Medication services 11. Infirmary care 12. Continuous quality improvement program
Abbreviations ACP advanced care practitioner ADP average daily population CO Corrections Officer CQI Continuous Quality Improvement GP general population HC health care HSR Health Service Request HSU Health Services Unit I/M inmate w/i within w/o without
Case 2:06-cv-00537-RTR Filed 06/06/12 Page 15 of 15 Document 283-1

 
 Flynn v. Doyle, Not Reported in F.Supp.2d (2007)
2007 WL 805788 Only the Westlaw citation is currently available.
United States District Court, E.D. Wisconsin.
Kristine FLYNN, Lenda Flournoy, Vernessia L. Parker, and Debbie Ann Ramos, Plaintiffs, v.
Jim DOYLE, Matthew J. Frank, James Greer, David Burnett, Kevin Kallas, Donald Hands, Barbara Ripani, Ana Boatwright, Holly Meier, and
Steven Meress, Defendants.
No. 06-C-537. | March 14, 2007.
Attorneys and Law Firms
David C. Fathi, Gouri N. Bhat, Washington, DC, Laurence J. Dupuis, American Civil Liberties Union of Wi Foundation, Milwaukee, WI, for Plaintiffs.
Corey F. Finkelmeyer, Francis X. Sullivan, Wisconsin Department of Justice Office of the Attorney General, Madison, WI, for Defendants.
Opinion
DECISION AND ORDER
Hon. RUDOLPH T. RANDA, Chief Judge.
*1 Plaintiffs Kristine Flynn, Lenda Flournoy, Vernessia L. Parker, and Debbie Ann Ramos, on behalf of themselves and all others similarly situated, filed this pro se civil right action pursuant to 42 U.S.C. § 1983. The plaintiffs, who are incarcerated at Taycheedah Correctional Institution (TCI) in Fond du Lac, Wisconsin, claim that the defendants have violated their rights under the Eighth and Fourteenth Amendments to the United States Constitution; Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132; and Section 504 of the Rehabilitation Act, 29 U.S .C. § 794. This Decision and Order addresses, inter alia, the plaintiffs’ motion for class certification and the defendants’ motion for summary judgment.
PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
The plaintiffs move for the certification of two classes,

defined as follows: 1) The TCI Class, defined as “all prisoners who are now or in the future will be confined at TCI;” and 2) The ADA Subclass, defined as “all individuals with disabilities who are now or in the future will be confined at TCI.” The defendants oppose the plaintiffs’ motion.
TCI is the largest women’s prison in Wisconsin and currently houses over 700 prisoners. The four named plaintiffs seek to represent the proposed TCI Class. The TCI Class plaintiffs set forth the following claims: 1) deliberate indifference to the plaintiffs’ serious medical, mental health, and dental needs causing avoidable pain, mental suffering, and deterioration of the plaintiffs’ health and, in some cases, resulting in premature death, in violation of the Eighth Amendment; and 2) disparity in mental health treatment for male and female prisoners in Wisconsin Department of Corrections (DOC) custody constituting a denial of equal protection of the laws, in violation of the Fourteenth Amendment.
Plaintiffs Flynn, Flournoy, and Parker seek to represent the ADA Subclass. The ADA Subclass plaintiffs claim that the defendants deprive them of their rights under the ADA and the Rehabilitation Act by, 1) failing to administer services, programs, and activities in the most integrated setting appropriate to needs of the subclass plaintiffs; 2) failing to make reasonable modifications in the defendants’ policies, practices, and procedures to avoid discriminating against the subclass plaintiffs on the basis of disability; 3) using eligibility criteria or methods of administration that have the effect of discriminating against the subclass plaintiffs on the basis of disability; and 4) failing to furnish appropriate aids, services, devices, or assistance to afford the subclass plaintiffs an equal opportunity to participate in and benefit from the defendants’ services, programs, and activities. The plaintiffs seeks declaratory and injunctive relief on their own behalf and on behalf of those similarly situated, pursuant to Federal Rules of Civil Procedure 23(a) and (b)(2).
Under Federal Rule of Civil Procedure 23(a), “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” In addition, to prosecute a class action, the plaintiffs must show that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief ... with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2).
1

Flynn v. Doyle, Not Reported in F.Supp.2d (2007)
*2 The plaintiffs contend that with respect to both proposed classes, all of the requirements of Rules 23(a) and (b)(2) are met, and that the classes should be certified. Specifically, the plaintiffs assert that, 1) the classes are so numerous that joinder of all members is impracticable; 2) for both classes, there are questions of law and fact common to the class; 3) the claims of the representative plaintiffs are typical of the claims of the classes; 4) the named plaintiffs will fairly and adequately protect the interests of the classes and; 5) the requirements of Rule 23(b)(2) are satisfied for both classes.
The defendants oppose the plaintiffs’ motion for class certification. According to the defendants, class certification must fail because the proposed classes are not sufficiently defined so that the class is identifiable. The defendants also contend that the plaintiffs have failed to meet their burden of establishing the Rule 23(a) requirements. In that regard, the defendants assert that the proposed classes lack requisite commonality and typicality of the asserted facts and claims, and that the named plaintiffs will not adequately represent the proposed classes.
1. Definition of Proposed Classes The defendants contend that class certification must fail because the proposed classes are not sufficiently defined so that the class is identifiable. According to the defendants, the proposed TCI Class (all prisoners who are now or in the future will be confined at TCI) is not properly defined because the class would encompass inmates that have no medical or mental health needs or have never had serious medical or mental health needs. Furthermore, the defendants contend that the proposed ADA Subclass (all individuals with disabilities who are now or in the future will be confined at TCI) is too broadly defined and not sufficiently identifiable. The defendants assert that it is too broadly defined because a class member with a disability could have received proper medical and/or mental health treatment. They maintain that the proposed ADA subclass is not sufficiently identifiable because the Court would necessarily have to address the issue of whether each potential member is a “qualified individual with a disability” to determine class membership.
Whether a class is properly defined or identifiable is not one of the requirements listed in Rule 23(a). However, “[i]t is axiomatic that for a class action to be certified a ‘class’ must exist.” Simer v. Rios, 661 F.2d 655, 669 (7th Cir.1981). The class must be sufficiently describable so that the Court can identify with some confidence who is, and who is not, a member of the class. See, e.g., Tefel v. Reno, 180 F.3d 1286, 1304 (11th Cir.1999) (class that includes both aliens who had unsuccessfully applied for

suspension of deportation and aliens who have never applied is “overly broad”); Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 n. 1 (5th Cir.1999) (class of employees alleging illness caused be defective ventilation system is not deficient because allegation of defective system or injury from it has yet to be proven on merits). If the general outlines of the class are identifiable at the outset of the litigation, a class will be deemed to exist. 7A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1760 (3d ed.2005); see, e.g., Carter v. Johnson, 174 F.R.D. 452, 459-61 (D.Neb.1996) (proposed class of female patients bringing an action against officials and psychiatrists of a state-supported mental health institution alleging failure to protect plaintiffs from assaults by male patients, which class included, in addition to women who were actually assaulted, women who were currently patients or would be patients and had not been assaulted, was adequately defined and ascertainable for purposes of class certification; residential treatment at the institution provided a definite boundary for determining class members, and those not assaulted alleged that they feared for their safety as a result of defendants’ policies and practices).
*3 In this case, the proposed class members for both classes are easily defined: 1) current and future TCI prisoners, and 2) current and future TCI prisoners who have a disability. Moreover, as noted by the plaintiffs, the defendants’ own records will identify which inmates have a disability. (Pls.’ Reply Br. at 5 n. 2.) Finally, courts routinely certify class actions involving prisoners, including cases challenging prison health care, mental health care, and dental care. See, e.g., Ramos v. Lamm, 639 F.2d 559, 562, 577 (10th Cir.1980) (certifying class of “all persons who are now or in the future may be incarcerated in the maximum security unit” to challenge constitutionally inadequate mental health care); Penland v. Warren Co. Jail, 797 F.2d 332, 333-35 (6th Cir.1986) (certifying (b)(2) class of “present and future prisoners” to challenge conditions of confinement, including health care); Bradley v. Harrelson, 151 F.R.D. 422, 425-27 (M.D.Ala.1993) (certifying (b)(2) class of seriously mentally ill prisoners to challenge adequacy of mental health services); Robert E. v. Lane, 530 F.Supp. 930, 941-44 (N.D.Ill.1981) (certifying (b)(2) class of “all persons who are or will be incarcerated at Stateville and who need or will need mental health services”); Dean v. Coughlin, 107 F.R.D. 331, 332-35 (S.D.N.Y.1985) (certifying (b)(2) class of “all persons who are or will be inmates” to challenge inadequate dental care); Jones ‘El v. Berge, 2001 WL 34379611, at *12-13 W.D. Wis.2001) (certifying 23(b)(2) class of prisoners subject to “systemic” unconstitutional conditions of confinement, including inadequate medical, mental health, and dental care); see also Hassine v. Jeffes, 846 F.2d 169, 175-80 (3d Cir.1988) (certifying 23(b)(2) class of prisoners challenging conditions of confinement).
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Flynn v. Doyle, Not Reported in F.Supp.2d (2007)
Based on the foregoing, the Court finds that the proposed classes are sufficiently defined.
2. Commonality and Typicality The Court’s analysis of the commonality and typicality requirements are closely related. To satisfy the commonality requirement, a plaintiff need only show that there is a “common nucleus of operative fact.” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir.1992). Similarly, to satisfy the typicality requirement, a plaintiff must show that his claim arose “from the same event or practice or course of conduct that gives rise to the claims of other class members and his ... claims are based on the same legal theory.” De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.1983).
In the instant action, the defendants argue that the plaintiffs’ claims about inadequate medical care are different from those of the entire class, and thus, do not satisfy the commonality and typicality requirements. For instance, the complaint alleges that TCI inmates suffer from inadequate medical follow up and are not promptly referred for outside medical consultation. The individual plaintiffs, however, do not claim that they suffered from these alleged deficiencies. Thus, the defendants argue, the various class members’ claims of an Eighth Amendment violation stem from different factual circumstances.
*4 The Court would be persuaded by the defendants’ argument if the plaintiffs were alleging deliberate medical indifference at the individual level, or if they were seeking monetary damages. However, deliberate indifference to serious medical needs of prisoners “may occur on an individual level, such as when a doctor intentionally mistreats an inmate ... or on an institutional level, when the prison’s system of medical care is so seriously inadequate as to cause unwarranted suffering.” Cruz v. Ward, 558 F.2d 658, 662 (2d Cir.1977), cert. denied, 434 U.S. 1018 (1978). Where a prisoner class seeks to challenge an entire health care system, the class must show that repeated acts of misconduct created a pattern of deliberate indifference to the inmates’ serious medical needs. See Dunigan ex rel. Nyman v. Winnebago County, 165 F.3d 587, 591 (7th Cir.1999) (“showing of deliberate indifference through pattern of alleged neglect entails a heavy burden.”). Accordingly, when alleging a pattern of misconduct, the claims of each class member need not be identical to raise common factual and legal questions about the adequacy of the entire system. See Dean v. Coughlin, 107 F.R.D. 331, 333 (S.D.N.Y.1985).
The commonality and typicality requirements are also more easily met when the class members only seek injunctive relief, rather than monetary damages. In class actions where the relief sought is chiefly monetary,

resolution of the class claims will depend “on the intangible, subjective differences of each class member’s circumstances,” and “entail complex individualized determinations.” Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir.1998). Those varying determinations would potentially undermine the requirement that each class member’s claim be typical and common to each other. However, when, as is the case here, the plaintiffs only seek injunctive relief, the possibility of individualized determinations is removed. See Robert E. v. Lane, 530 F.Supp. 930, 943 n. 17 (N.D.Ill.1981) (“differences might be relevant in computing the actual amount of compensable damage suffered by each class member. Plaintiffs, however, seek class certification only on their declaratory and injunctive demands .”)
In the circumstances of this case, where the class is alleging a pattern of deliberate indifference to inmates’ serious medical needs, and the class only seeks injunctive relief, the commonality and typicality requirements are satisfied.
3. Adequate Representation of Proposed Class Although they do not dispute the ability of plaintiffs’ counsel to adequately represent the proposed classes in this case, the defendants do contend that the named plaintiffs would not be adequate representatives of the class for two reasons. First, the defendants argue that the named plaintiffs’ failure to advance certain claims found in the complaint demonstrates that they lack the same interest as other class members in establishing the claims alleged against the defendants. Second, the defendants maintain that the named plaintiffs have failed to ensure zealous advocacy on behalf of the classes and cannot proceed as class representatives because the named plaintiffs have failed to exhaust available administrative remedies on several of the outlined claims.
*5 The prerequisite of adequate class representation consists of the following factors: 1) whether the plaintiffs’ attorney is qualified, experienced, and generally able to conduct the proposed litigation; 2) whether the class representatives have interests that are antagonistic to the class; and 3) whether the class representatives have a sufficient interest in the case to assure vigorous advocacy. Retired Chi. Police Ass’n v. City of Chi., 7 F.3d 584, 598 (7th Cir.1993).
In this case, there is no indication that the class representatives have interests that are antagonistic to the classes. Rather, with regard to both classes, all class members are TCI inmates challenging a pattern of institutional conduct. Moreover, as explained supra., factual variances as to how the conduct affected the class members do not defeat the plaintiffs’ motion. Finally, as
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Flynn v. Doyle, Not Reported in F.Supp.2d (2007)
explained infra., the Court finds that the plaintiffs have exhausted administrative remedies and therefore, the defendants’ arguments with respect to exhaustion are without merit.
Based on the foregoing, the plaintiffs’ motion for class certification will be granted.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
On August 14, 2006, the defendants filed a motion for summary judgment. The defendants contend, 1) the complaint must be dismissed without prejudice because the plaintiffs have failed to exhaust all administrative remedies available in the Inmate Complaint Review System; 2) those claims where the plaintiffs failed to exhaust administrative remedies must be dismissed; 3) those claims where the plaintiffs have failed to state a claim upon which relief can be granted must be dismissed; and 4) the Court should stay discovery while the summary judgment motion is pending.
In response, the plaintiffs contend that, 1) the plaintiffs have properly exhausted all substantive claims raised in this action; 2) the defendants have failed to satisfy their burden to prove non-exhaustion; 3) if the Court finds there are unexhausted claims, only those claims should be dismissed, or plaintiffs should be given leave to amend their complaint; and 4) they have properly stated a claim upon which relief can be granted as to all substantive claims raised in this action.1
Standard of Review
Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); McNeal v. Macht, 763 F.Supp. 1458, 1460-61 (E.D.Wis.1991). “Material facts” are those facts that, under the applicable substantive law, “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A dispute over “material facts” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
*6 The burden of showing the needlessness of trial-(1) the absence of a genuine issue of material fact and (2) an

entitlement to judgment as a matter of law-is upon the movant. However, when the nonmovant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would support a reasonable jury verdict. Anderson, 477 U.S. at 267; see also Celotex Corp., 477 U.S. at 324 (“proper” summary judgment motion may be “opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves ...”); Fed.R.Civ.P. 56(e) (“When a summary judgment motion is made and supported as provided in [Rule 56(c) ], an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavit or otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial”). “Rule 56(c) mandates the entry of summary judgment, ... upon motion, against a party who fails to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.
In evaluating a motion for summary judgment, the Court must draw all inferences in a light most favorable to the nonmoving party. Johnson v. Pelker, 891 F.2d 136, 138 (7th Cir.1989). “However, we are 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) (citation omitted).
Exhaustion of Administrative Remedies
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 Corrs., 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 PLRA exhaustion requirement requires “proper exhaustion,” meaning that a prisoner must complete the
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Flynn v. Doyle, Not Reported in F.Supp.2d (2007)
administrative review process in accordance with the applicable procedural rules, including deadlines. Woodford v. Ngo, 126 S.Ct. 2378, 2384, 2387 (2006); see also Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir.2002) (“To exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison’s administrative rules require”). Exhaustion is an affirmative defense, and the burden of proof is on the defendants. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.2006) (citing Dale v. Lappin, 376 F.3d 652, 655 (7th Cir.2004)).
*7 The Inmate Complaint Review System (ICRS) 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 ICRS 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).
In order to use the ICRS, 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 correction complaint examiner’s recommendation, or return the appeal to the corrections complaint examiner for further investigation. Wis. Admin. Code § DOC 310.14(2).
In class action prisoner litigation certified under Rule 23(b)(2), the PLRA’s exhaustion requirement is satisfied through “vicarious exhaustion” when “one or more class members ha[s] exhausted [her] administrative remedies with respect to each claim raised by the class.” Chandler v. Crosby, 379 F.3d 1278, 1287 (11th Cir.2004) (quoting

Jones ‘El v. Berge, 172 F.Supp.2d 1128, 1133 (W.D.Wis.2001)); see also Gates v. Cook, 376 F.3d 323, 329-30 (5th Cir.2004); Jackson v. District of Columbia, 254 F.3d 262, 268-69 (D.C.Cir.2001); Lewis v. Washington, 265 F.Supp.2d 939, 941-43 (N.D.Ill.2003). Support for this rule is found in employment discrimination class action cases as well as the purpose of the PLRA itself:
The purpose behind enactment of the PLRA exhaustion requirement was “to reduce the quantity and improve the quality of prisoner suits. Porter, 534 U.S. at 524, 122 S.Ct. 983. To this end, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. Id. at 524-25; 122 S.Ct. 983. The Porter Court noted that in some cases, prison officials may take corrective action to address an inmate’s concerns, thus obviating the need for litigation. Id. at 525, 122 S.Ct. 983. This rationale for the PLRA exhaustion requirement is similar to the purpose behind the Title VII exhaustion requirement, which is to allow the EEOC “an opportunity to settle disputes ... before the aggrieved party [is] permitted to file a lawsuit.” Zuckerstein v. Argonne Nat’l Lab., 663 F.Supp. 569, 572 (N.D.Ill.1987) (Moran, J.) (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974)). In the Title VII context, this purpose behind administrative exhaustion is satisfied in class action suits where there is one complying plaintiff because
*8 [i]t would be wasteful, if not vain, for numerous employees, all with the same grievance, to have to process many identical complaints with the EEOC. If it is impossible to reach a settlement with one discriminatee, what reason could there be to assume that the next one would be successful.
Id. (quoting Oatis v. Crown Zellerbach Corp, 398 F.2d 496, 498 (5th Cir.1968)). Similarly, in the PLRA context, the purpose of affording prison officials an opportunity to address complaints internally is met when one plaintiff in a class action has exhausted his administrative remedies. To require each inmate with the same grievance to exhaust their administrative remedies would be wasteful, and “[a]s long as prison officials have received a single complaint addressing each claim in a class action, they have the opportunity to resolve disputes internally and to limit judicial intervention in the management of prisons.” Jones, 172 F.Supp.2d at 1133. The analogy to the Title VII exhaustion requirement is apt. The purpose behind the PLRA requirement is met when a single plaintiff in a class action has exhausted his administrative remedies, and a rule of vicarious exhaustion in PLRA cases is therefore appropriate.
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Flynn v. Doyle, Not Reported in F.Supp.2d (2007)
Lewis, 265 F.Supp. at 942-43.
The parties dispute many facts. In part, the disputes are based on disagreement over what the claims are in this case. According to the defendants, the “claims” in this case consist of each instance in which the defendants’ conduct affected the plaintiffs. For example, the defendants contend that the plaintiffs have failed to exhaust the following “claims”:
(1) alleged failure of the defendants to take reasonable and effective steps to establish an appropriate health care system at TCI following NCCHC and LAB reports (DFOF, ¶¶ 19-20); (2) alleged high rate of chronic disease at TCI (DFOF, ¶¶ 21-22); (3) alleged dysfunctional organization of Health Services at TCI (DFOF, ¶¶ 23-24); (4) alleged need for infirmary or long-term care at TCI (DFOF, ¶¶ 35-36); (5) alleged inadequate prenatal, obstetric and post-partum care, alleged shackling during childbirth, and alleged inadequate dental care (DFOF, ¶¶ 37-40); (6) alleged increased demands on the health care staff due to the change in the admissions process (DFOF, ¶¶ 41-42); (7) alleged high rate of mental illness and the lack of resources allocated to address this alleged problem (DFOF, ¶¶ 43-44); (8) alleged inadequate or poorly trained mental health care staff (DFOF, ¶¶ 45-46); (9) alleged over-prescription of psychotropic medications and TCI’s case management of psychotropic medications (DFOF, ¶¶ 47-48); (10) alleged failures of Monarch Unit (DFOF, ¶¶ 49-50); (11) alleged lack of TCI’s inpatient capacity to treat mental illness (DFOF, ¶¶ 51-52); (12) alleged gender-based disparities in the provision of mental health care (DFOF, ¶¶ 53-54); (13) alleged gender-based disparities in the provision of mental health care at the juvenile level (DFOF, ¶¶ 55-56); and (14) alleged discrimination on the basis of alleged disabilities of plaintiffs Flynn, Flournoy and Parker (DFOF, ¶¶ 57-58).

*9 (Defs.’ Br. in Supp. of Mot. for Summ. J. at 5-6.)
According to the plaintiffs, the “claims” listed above are not claims at all but rather are examples of conduct that make up the claims in this case.
Defendants argue that plaintiffs have failed to exhaust administrative remedies as required under 42 U.S.C. § 1997e(a). But defendants’ entire exhaustion argument rests on their pervasive confusion of plaintiffs’ substantive claims for relief with myriad facts and evidence alleged in support, or as examples, of those claims. For example, defendants argue that no plaintiff has specifically exhausted the “claim” that defendants failed to take corrective action after the Legislative Audit Bureau (LAB) and the National Commission on Correctional Health Care (NCCHC) reports were issued documenting extremely poor health care at TCI (see Defs.’ Br. at 5), and that named plaintiff Kristine Flynn has not specifically exhausted the “claim” that she was improperly taken off psychotropic medications in June 2002 (see Defs.’ Br. at 13). But in a case such as this one, which seeks only prospective injunctive relief and no monetary damages, neither of those past occurrences are claims for relief that need to be exhausted-they are examples and evidence of defendants’ ongoing deliberate indifference to plaintiffs’ serious medical needs.
(Pls.’ Br. in Resp. to Defs.’ Mot. for Summ. J. at 2.)
The June 15, 2006, Screening Order in this case allowed the plaintiffs to proceed on claims under the Eighth Amendment, Fourteenth Amendment, the ADA, and the Rehabilitation Act, as set out in the complaint. (The Screening Order also directed to the defendants to respond to the plaintiffs’ motion for class certification.) According to the complaint, the “claims,” as identified by the defendants, are actually “Facts Giving Rise to the Claims for Relief.” (See Compl. at 13-40.) The discussion concerning the plaintiffs’ motion for class certification, supra., also makes this clear. With this in mind, the Court will now turn to the merits of the defendants’ motion for summary judgment.
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Flynn v. Doyle, Not Reported in F.Supp.2d (2007)
Claims
The TCI Class plaintiffs are proceeding on the following claims: 1) deliberate indifference to the plaintiff’s serious medical, mental health, and dental needs in violation of the Eighth Amendment; and 2) disparity in mental health treatment for male and female prisoners in DOC custody constituting a denial of equal protection of the laws, in violation of the Fourteenth Amendment. The ADA Subclass plaintiffs claim that the defendants deprive them of their rights under the ADA and the Rehabilitation Act by, 1) failing to administer services, programs, and activities in the most integrated setting appropriate to needs of the subclass plaintiffs; 2) failing to make reasonable modifications in the defendants’ policies, practices, and procedures to avoid discriminating against the subclass plaintiffs on the basis of disability; 3) using eligibility criteria or methods of administration that have the effect of discriminating against the subclass plaintiffs on the basis of disability; and 4) failing to furnish appropriate aids, services, devices, or assistance to afford subclass plaintiff an equal opportunity to participate in and benefit from the defendants’ services, programs, and activities.
Facts
*10 It is undisputed that the named plaintiffs have properly filed and appealed at least thirty-five inmate complaints related to health care issues. (PFOF ¶ 2.) ICRS tracking reports indicate that in a five and one-half year period from 1999 to mid-2004, out of 1889 inmate complaints filed related to medical care at TCI, 394 were affirmed or affirmed with modification. (PFOF ¶ 5.)
It is undisputed that plaintiff Flynn has exhausted administrative remedies with respect to the following issues: 1) that she did not receive all of her medications due to improper medication delivery by corrections officers; 2) that she did not receive adequate mental health care counseling; and 3) that she has not received prescribed pain medications. (DFOF ¶ 9; PFOF ¶ 14.) In addition, Flynn has exhausted on the following inmate complaints, as summarized by the ICRS system: “Needs medication for digestion that doctor stopped” (10/26/04); “Wants a high fiber diet” (10/26/04); “Inhaler and peak meter are not being kept in her room in segregation” (12/01/04); “Needs to see a specialist for female medical problems” (3/18/05); “Has not received a refill for her stool softener” (3/21/05); “Has not received copy of test result from HSU” (3/21/05); “Wants to be tested for

Parkinson’s disease” (3/21/05); “Has not received new order of Synthroid medication that was changed” (3/25/05); “Asking for a medication change and has not heard back from HSU” (3/25/05); “Multiple psychiatric concerns” (3/28/05); “needs to be re-evaluated by HSU” (4/1/05); “medical concerns” (4/1/05); “welbutrin has not been refilled” (4/7/05); “out of ibuprofin [sic]” (4/7/05); “needs appointment with GI specialist” (4/28/05); “has not been seen to be evaluated for egg crate mattress” (7/8/05); “wants results of x-rays” (7/8/05); and “out of medication” (7/19/05). (PFOF ¶ 15.) Plaintiff Flynn has also exhausted her administrative remedies with respect to the shortage of health care staff. (PFOF ¶ 16.)
It is undisputed that plaintiff Flournoy has exhausted administrative remedies with respect to the following three issues: 1) that she suffers from frequent sciatic pain and difficulty walking, but that this disability has never been properly treated; 2) that following foot surgery, her foot surgeon instructed TCI to keep her foot tightly wrapped, and to check regularly for proper alignment, but that she did not receive this prescribed post-surgical care; and 3) that she has been forced to wait several months for referrals to see outside physicians. (DFOF ¶ 12; PFOF ¶ 26.) In addition, Flournoy has exhausted on the following inmate complaints, as summarized by the ICRS system: “responce [sic] from security and hsu for her medical concerns” (5/27/03); “Complains about Doctor” (7/16/03); “Wants to see medical specialists for menopause, headache, nose problems, legs and feet problems, allergies, back and neck problems and skin problems. Rang her emergency bell on third shift with her request to see a Nurse for he [sic] medical problems” (1/20/04); “Needs to see Doctor for multiple medical issues (groin pain, joint disease, sciatic pain, infected toe, and a swollen heel” (7/20/04); “Medical treatment after staff called the Nurse about her leg” (1/14/05); “Was given another inmate’s medication” (3/25/05); “Wants to see a Dermatologist” (4/25/05); “Was denied Resource” (4/25/05); “dr. changed medication order” (5/12/05); “dr has not referred her to see an offsight [sic] dr.” (5/12/05); “Complains of medical care at appointment with Nurse on 8/26/05” (9/1/05). (PFOF ¶ 27.) Plaintiff Flournoy has also exhausted with respect to improper medication delivery by corrections officers; the deficient sick-call process and medical follow-up system; improper or excessive medical co-payment fees; and inadequate women’s health care. (PFOF ¶ 28.)
*11 It is undisputed that plaintiff Parker has exhausted administrative remedies on the following offender complaint, as summarized by the ICRS: “Inmate complains she was denied medical attention and that she has a fractured rib” (4/10/96). (PFOF ¶ 33 .) In addition, Parker’s ICRS complaint, summarized as “Weekly weight and blood pressure checks are not being done in seg,” was affirmed by the inmate complaint examiner, obviating Parker’s need to appeal. (PFOF ¶ 34.)
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Flynn v. Doyle, Not Reported in F.Supp.2d (2007)
It is undisputed that plaintiff Ramos has exhausted administrative remedies with respect to the issue that she had improperly been charged co-payment fees. (DFPF ¶ 18.) Also, Ramos exhausted on the following inmate complaints, as summarized by the ICRS system: “medical co-pay” (1/10/03); and “Feels that it is not safe to wash her clothing in the same washers as people who have been diagnosed with staph infection due to TCI not having hot water in the housing units for washing clothes” (11/18/04). (PFOF ¶ 38 .)
In addition to the undisputed facts set forth above, taken from the defendants’ and the plaintiffs’ proposed facts, the plaintiffs filed supplemental proposed findings of facts that identify exhausted inmate complaints not previously submitted. Affirmed grievances by plaintiff Flynn exhaust her administrative remedies on the following inmate complaints, as summarized by the ICRS system: “Was not prepped for surgery” (2/22/01); “Out of Trazadone and other carriable meds” (12/5/01); “out of medication” (10/17/02); “medication is out” (12/3/02); “out of medications” (2/3/03); “Out of medication” (3/9/04); “Did not receive meds.” (6/28/04); “out of ibuprofin” (4/7/05); “welbutrin has not been refilled” (4/7/05); “out of medication” (7/19/05); “needs medical follow-up” (8/24/05); “Needs to be seen by HSU for catheterization” (4/20/06); “Delay in catherization” (4/24/06). (PSFOF ¶ 3.) Affirmed grievances filed by plaintiff Flournoy exhaust her administrative remedies on the following inmate complaints, as summarized by the ICRS system: “Was not given correct dose of meds” (4/7/04); “Not being given her foot cream and hydrocortisone cream” (4/27/04); “Medication concerns” (2/2/05); “needs medical attention for her foot” (8/22/05); “Pain medication missing-oxycodone with aceteminophen” (2/24/06). (PSFOF ¶ 5.) Affirmed grievances filed by plaintiff Parker exhaust her administrative remedies on the following inmate complaints, as summarized by the ICRS system: “Medical issues after carpal tunnel surgery” (6/8/04); “Did not receive pain medication, ice or pillow after surgery” (7/19/04); “Weekly weight and blood pressure checks are not being done in seg” (1/27/05). (PSFOF ¶ 6.)
In addition, the plaintiffs’ supplemental evidentiary materials identify inmate complaints that were not coded as “Medical” by the ICRS system and therefore were not previously included, but that do in fact relate to medical or mental health care. Plaintiff Flynn has fully exhausted two inmate complaints related to her prolonged confinement in punitive segregation in lieu of appropriate and intensive psychiatric care. These grievances-coded as “Rules” and “Other,” respectively-were summarized as follows by the ICRS system: “is being treated as punitive when she should not be” (7/14/04); “Questions why she is still in administrative confinement” (8/17/04). (PSFOF ¶ 10.) Plaintiff Flynn also fully exhausted two inmate

complaints on medical and mental health issues that were coded as “Staff.” These grievances exhaust her administrative remedies on the following issues, as summarized by the ICRS system: “Took 33 minutes for meds to be handed out” (9/21/04); and “has not heard back from PSU staff about therapy” (4/4/05). (PSFOF ¶ 12.)
*12 Plaintiff Parker fully exhausted an inmate complaint related to the destruction or discarding of her correspondence to psychological services and Monarch Unit staff. The grievance, coded as “Other,” raises the issue of the competency and responsiveness of mental health care staff at TCI. Parker’s original grievance states:
I have resided in Monarch 22 months. I have written the Monarch Treatment team several letters concerning treatment needs, mental health issues, medical issues, and problems I was having on the unit with staff ... This was all correspondence done within Taycheedah Corr. Inst. that should have been kept in my psychological and/or social services file for documentation of my contacting necessary staff about my issues.... Many issues I wrote about were never addressed by them. For Monarch treatment team to discard letters I have written is against policy.... There have been 3 Unit Managers in the 22 months I have resided in Monarch how did 1 Unit Manager know what was going on with me from the next Unit Manager. I believe the discarding of my letters was deliberate because the team didn’t want the documentation of the issues in my file at all to keep others who view my file from seeing it....
(PSFOF ¶ 14.)
Parker also filed two grievances, both coded as “Classification,” related to the denial of adequate inpatient mental health care and mental health programming opportunities at TCI. One raises the issue of why she was left in segregation on the Monarch Unit and was never transferred to a mental health institution like Winnebago, as mandated by the court in her civil commitment hearings. (PSFOF ¶ 16.) The other raises the issue of why she was never afforded the opportunity to attend a drug treatment group, as required by the parole board, despite having resided in the Monarch Unit for
8

Flynn v. Doyle, Not Reported in F.Supp.2d (2007)
several years with a diagnosis of special needs. Id. Both of these grievances were deemed beyond the scope of the ICRS system and rejected pursuant to Wis. Admin. Code § 310.08(2)(b) because “decisions made by the program review committee are not appealable through the inmate complaint review system.” Id.
Analysis
A purpose of the exhaustion requirement is to allow prison officials time and opportunity to respond to complaints internally before an inmate initiates litigation. Porter v. Nussle, 534 U.S. 516, 524-25 (2002); see Smith v. Zachary, 255 F.3d 446, 450-51 (7th Cir.2001). To provide officials with sufficient notice, inmates must file grievances at the place and time and with the information required by the prison’s administrative rules. Strong v. David, 297 F.3d 646, 649 (7th Cir.2002). Where the rules are silent, “a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.” Id. at 650; see Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir.2004).
Drawing on principles of notice pleading, the Court of Appeals for the Seventh Circuit has held that, absent more stringent administrative requirements, an inmate need not state “facts, legal theories, or demand relief,” so long as the grievance objects “intelligibly to some asserted shortcoming.” Strong, 297 F.3d at 650; see Riccardo, 375 F.3d at 524. With respect to the level of detail in an offender complaint, the DOC administrative rules require that inmate complaints “[c]ontain only one issue per complaint, and shall clearly identify the issue.” Wis. Admin. Code § DOC 310.09(1)(e). Thus, the standard is whether the inmate complaint would put an official on notice of the plaintiff’s claim.
*13 The undisputed facts reveal that the plaintiffs have filed, and fully exhausted, a multitude of inmate complaints regarding deficient medical and mental health care at TCI over the last several years. On this record, the defendants have not satisfied their burden of demonstrating that the plaintiffs failed to exhaust. To the contrary, ICRS records indicate that the plaintiffs have exhausted their administrative remedies for the purposes of this class action lawsuit. Accordingly, the defendants’ motion for summary judgment for failure to exhaust administrative remedies will be denied.
Defendants’ Motion for Dismiss for Failure to State a Claim

In their motion for summary judgment, the defendants also contend that the Court should dismiss the plaintiffs’ equal protection claim for failure to state a claim. They assert that the plaintiffs fail to state an equal protection claim because they do not allege that the defendants purposefully treat women differently just because they are women.
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). Dismissal of an action under such a motion is warranted if the plaintiffs can prove no set of facts in support of its claims that would entitle them to relief. Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir.1997); see Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The essence of a Rule 12(b)(6) motion is not that the plaintiffs have pleaded insufficient facts, it is that even assuming all of their facts are accurate, they have no legal claim. Payton v. Rush-Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623, 627 (7th Cir.1999). The facts alleged in the complaint are assumed to be true, and all facts, and all reasonable inferences flowing from those facts, are read in the light most favorable to the plaintiffs. Bethlehem Steel Corp. v. Bush, 918 F.2d 1323, 1326 (7th Cir.1990).
To establish a prima facie case of discrimination under the equal protection clause, the plaintiffs are required to show that they are members of a protected class, that they are otherwise similarly situated to members of the unprotected class, and that they were treated differently from members of the unprotected class. Brown v. Budz, 398 F.3d 904, 916 (7th Cir.2005) (quoting McNabola v. Chi. Transit Auth., 10 F.3d 501, 513 (7th Cir.1993)). The complaint alleges that the defendants have knowingly and recklessly failed to provide female prisoners at TCI with access to mental health services comparable to the mental health services available to male prisoners through the Wisconsin Resource Center, in violation of the plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment. (Compl. ¶ 1; see also Compl. ¶¶ 120-30, 150-56.)
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 856, 863 (7th Cir.2002).
9

Flynn v. Doyle, Not Reported in F.Supp.2d (2007)

*14 The plaintiffs need not “show” or “establish” anything to survive a motion under Rule 12(b)(6); they need only allege. Brown, 398 F.3d at 916 (noting the “liberal requirement of notice pleading under Rule 8, particularly with regard to Equal Protection claims”). The plaintiffs have sufficiently alleged an equal protection claim.
Based on the foregoing, the defendants’ motion for summary judgment will be denied.

(1) the TCI Class, on whose behalf representative plaintiffs bring constitutional claims in this action is defined as: “all prisoners who are now or in the future will be confined at TCI;” and
(2) the ADA Subclass, on whose behalf representative plaintiffs bring statutory claims in this action, is defined as: “all individuals with disabilities who are now or in the future will be confined at TCI.”

IT IS FURTHER ORDERED that the defendants’ motion for summary judgment (Docket # 20) is DENIED.

DEFENDANTS’ MOTION TO STAY DISCOVERY
On August 14, 2006, the defendants filed a motion to stay discovery until such time as the Court has decided their motion for summary judgment. The defendants’ motion will be denied as moot.

IT IS FURTHER ORDERED that the defendants’ motion to stay discovery (Docket # 22) is DENIED AS MOOT.
IT IS FURTHER ORDERED that the plaintiffs’ motion for leave to file brief exceeding page limit (Docket # 38) is GRANTED.

ORDER
IT IS THEREFORE ORDERED that the plaintiffs’ motion to certify class (Docket # 2) is GRANTED.
IT IS FURTHER ORDERED that this case is certified as a class for injunctive and declaratory relief pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure concerning the legal issues described herein.
IT IS FURTHER ORDERED that the class is defined as follows:

IT IS FURTHER ORDERED that the plaintiffs’ motion to continue (Docket # 39) is DENIED AS MOOT.
IT IS FURTHER ORDERED that the plaintiffs’ motion for leave to file (Docket # 50) is GRANTED.
IT IS FURTHER ORDERED that the plaintiffs’ motion for leave to file (Docket # 51) is GRANTED.
SO ORDERED.
	  

Footnotes

1

On December 8, 2006, the plaintiffs filed a motion for leave to file supplemental evidentiary materials opposing the defendants’

motion for summary judgment. Specifically, they seek to file proposed supplemental proposed findings and related supplemental

evidence based on grievance materials in the defendants’ possession that were only recently obtained by plaintiffs’ counsel. When

the plaintiffs filed their response to the defendants’ motion for summary judgment, along with it they filed a motion for

continuance pursuant to Federal Rule of Civil Procedure 56(f). The plaintiffs sought the continuance to allow them to conduct

discovery necessary to oppose the defendants’ motion for summary judgment, in the event that the motion was not denied outright.

The Court will consider the plaintiffs’ supplemental evidentiary materials and, therefore, that motion will be granted. Hence, the

plaintiff’s motion for a continuance will be denied as moot. Finally, the plaintiffs’ unopposed motion for leave to exceed the page

limit of Civil L.R.7.1(f) will be granted.

	  

10

 
 CLOSED,PRISONER
United States District Court Eastern District of Wisconsin (Milwaukee) CIVIL DOCKET FOR CASE #: 2:06−cv−00537−RTR

Flynn et al v. Doyle et al Assigned to: Judge Rudolph T Randa related Case: 2:10−cv−00887−RTR Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Kristine Flynn

Date Filed: 05/01/2006 Date Terminated: 12/14/2010 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by David C Fathi National Prison Project of the ACLU Foundation 915 15th St NW − 7th Fl Washington, DC 20005 202−393−4930 Fax: 202−393−4931 Email: dfathi@npp−aclu.org TERMINATED: 09/12/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth R Alexander National Prison Project of the ACLU Foundation 915 15th St NW − 7th Fl Washington, DC 20005 202−393−4930 Fax: 202−393−4931 Email: ealexander@npp−aclu.org TERMINATED: 02/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri N Bhat 4408 Camacho St Austin, TX 78723 512−785−5144 Email: gouri.bhat@gmail.com TERMINATED: 07/08/2008 LEAD ATTORNEY

Jason A Selvey Jackson Lewis LLP 150 N Michigan Ave − Ste 2500 Chicago, IL 60601 312−803−2513 Fax: 312−787−4995 Email: selveyj@jacksonlewis.com TERMINATED: 06/30/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J Dupuis American Civil Liberties Union of WI Foundation Inc 207 E Buffalo St − Ste 325 Milwaukee, WI 53202 414−272−4032 Fax: 414−272−0182 Email: ldupuis@aclu−wi.org
Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 1 of 30

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert L Graham Jenner &Block LLP 353 N Clark St Chicago, IL 60654 312−923−2785 Fax: 312−840−7785 Email: rgraham@jenner.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie L Reinhart Jenner &Block LLP 353 N Clark St Chicago, IL 60654 312−840−7427 Fax: 312−840−7527 Email: sreinhart@jenner.com TERMINATED: 07/01/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gabriel B Eber American Civil Liberties Union Foundation Inc National Prison Project 915 15th St NW − 7th Fl Washington, DC 20005 202−393−4930 Fax: 202−393−4931 Email: geber@npp−aclu.org ATTORNEY TO BE NOTICED
Genevieve J Essig Jenner &Block LLP 353 N Clark St Chicago, IL 60654 312−840−7655 Fax: 312−840−7755 Email: gessig@jenner.com ATTORNEY TO BE NOTICED
Grace S Ho Jenner &Block LLP 353 N Clark St Chicago, IL 60654 312−923−2869 Fax: 312−923−2969 Email: gho@jenner.com TERMINATED: 02/23/2010 ATTORNEY TO BE NOTICED
Keri L Holleb Hotaling Jenner &Block LLP 353 N Clark St Chicago, IL 60654 312−222−9350 Fax: 312−527−0484 Email: khotaling@jenner.com ATTORNEY TO BE NOTICED
Michael R Strong Jenner &Block LLP
Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 2 of 30

353 N Clark St Chicago, IL 60654 312−923−2841 Fax: 312−923−2941 Email: mstrong@jenner.com TERMINATED: 02/23/2010 ATTORNEY TO BE NOTICED

Plaintiff Lenda Flournoy

represented by David C Fathi (See above for address) TERMINATED: 09/12/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth R Alexander (See above for address) TERMINATED: 02/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri N Bhat (See above for address) TERMINATED: 07/08/2008 LEAD ATTORNEY

Jason A Selvey (See above for address) TERMINATED: 06/30/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert L Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephanie L Reinhart (See above for address) TERMINATED: 07/01/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED

Genevieve J Essig (See above for address) ATTORNEY TO BE NOTICED

Grace S Ho (See above for address) TERMINATED: 02/23/2010 ATTORNEY TO BE NOTICED

Keri L Holleb Hotaling (See above for address) ATTORNEY TO BE NOTICED
Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 3 of 30

Michael R Strong (See above for address) TERMINATED: 02/23/2010 ATTORNEY TO BE NOTICED

Plaintiff Vernessia L Parker

represented by David C Fathi (See above for address) TERMINATED: 09/12/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth R Alexander (See above for address) TERMINATED: 02/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri N Bhat (See above for address) TERMINATED: 07/08/2008 LEAD ATTORNEY

Laurence J Dupuis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED

Genevieve J Essig (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Debbie Ann Ramos

represented by David C Fathi (See above for address) TERMINATED: 09/12/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth R Alexander (See above for address) TERMINATED: 02/08/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gouri N Bhat (See above for address) TERMINATED: 07/08/2008 LEAD ATTORNEY

Jason A Selvey (See above for address) TERMINATED: 06/30/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurence J Dupuis (See above for address) LEAD ATTORNEY
Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 4 of 30

ATTORNEY TO BE NOTICED
Robert L Graham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie L Reinhart (See above for address) TERMINATED: 07/01/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED
Genevieve J Essig (See above for address) ATTORNEY TO BE NOTICED
Grace S Ho (See above for address) TERMINATED: 02/23/2010 ATTORNEY TO BE NOTICED
Keri L Holleb Hotaling (See above for address) ATTORNEY TO BE NOTICED
Michael R Strong (See above for address) TERMINATED: 02/23/2010 ATTORNEY TO BE NOTICED

V.
Defendant
Jim Doyle Governor of Wisconsin TERMINATED: 07/06/2011

represented by Corey F Finkelmeyer Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−266−7342 Fax: 608−267−8906 Email: finkelmeyercf@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

David E Hoel Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−266−1221 Fax: 608−267−8906 Email: hoelde@doj.state.wi.us TERMINATED: 03/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 5 of 30

Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−267−2222 Fax: 608−267−2223 Email: sullivanfx@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Duane Harlow Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−266−2950 Fax: 608−267−8906 Email: harlowrd@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED

Karla Z Keckhaver Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−264−6365 Fax: 608−267−8906 Email: keckhaverkz@doj.state.wi.us ATTORNEY TO BE NOTICED

Michael R Bauer Bauer &Bach LLC 123 E Main St − Ste 300 Madison, WI 53703 608− 260−0295 Fax: 608− 260−0002 Email: bauer@bauer−bach.com TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Defendant
Matthew J Frank Secretary WDOC TERMINATED: 06/10/2008

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED

Karla Z Keckhaver Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 6 of 30

(See above for address) ATTORNEY TO BE NOTICED

Michael R Bauer (See above for address) TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Defendant
James Greer Director WDOC Bureau of Health Services

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David E Hoel (See above for address) TERMINATED: 03/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Duane Harlow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED

Karla Z Keckhaver (See above for address) ATTORNEY TO BE NOTICED

Michael R Bauer (See above for address) TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Defendant
Dr David Burnett Medical Director BHS

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David E Hoel (See above for address) TERMINATED: 03/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-537

Richard Duane Harlow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
As of: 12/05/2013 11:52 PM CST 7 of 30

Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED

Karla Z Keckhaver (See above for address) ATTORNEY TO BE NOTICED

Michael R Bauer (See above for address) TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Defendant
Kevin Kallas, MD Mental Health Director BHS

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David E Hoel (See above for address) TERMINATED: 03/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Duane Harlow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED

Karla Z Keckhaver (See above for address) ATTORNEY TO BE NOTICED

Michael R Bauer (See above for address) TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Defendant
Donald Hands, PhD Psychology Director BHS TERMINATED: 07/06/2011

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David E Hoel (See above for address) TERMINATED: 03/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY
Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 8 of 30

ATTORNEY TO BE NOTICED

Richard Duane Harlow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED

Karla Z Keckhaver (See above for address) ATTORNEY TO BE NOTICED

Michael R Bauer (See above for address) TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Defendant
Barbara Ripani Dental Director BHS

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David E Hoel (See above for address) TERMINATED: 03/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Duane Harlow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED

Karla Z Keckhaver (See above for address) ATTORNEY TO BE NOTICED

Michael R Bauer (See above for address) TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Defendant
Ana Boatwright Warden Taycheedah Correctional Institution TERMINATED: 06/10/2008

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY
Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 9 of 30

ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED

Karla Z Keckhaver (See above for address) ATTORNEY TO BE NOTICED

Michael R Bauer (See above for address) TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Defendant
Holly Meier Health Services Unit Manager TCI TERMINATED: 06/10/2008

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED

Karla Z Keckhaver (See above for address) ATTORNEY TO BE NOTICED

Michael R Bauer (See above for address) TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Defendant
Steven Meress, MD Supervising Physcician TCI

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David E Hoel (See above for address) TERMINATED: 03/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Duane Harlow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED
Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 10 of 30

Karla Z Keckhaver (See above for address) ATTORNEY TO BE NOTICED

Michael R Bauer (See above for address) TERMINATED: 08/15/2008 ATTORNEY TO BE NOTICED

Defendant
Rick Raemisch TERMINATED: 07/06/2011

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David E Hoel (See above for address) TERMINATED: 03/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karla Z Keckhaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael R Bauer (See above for address) TERMINATED: 08/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Duane Harlow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED

Defendant
Cathy Jess TERMINATED: 07/06/2011

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David E Hoel (See above for address) TERMINATED: 03/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 11 of 30

Karla Z Keckhaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael R Bauer (See above for address) TERMINATED: 08/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Duane Harlow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED

Defendant Robert Ahlborg

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David E Hoel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karla Z Keckhaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael R Bauer (See above for address) TERMINATED: 08/15/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Duane Harlow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED

Defendant Scott Walker

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address)
Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 12 of 30

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karla Z Keckhaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Duane Harlow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED

Defendant Gary H Hamblin

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karla Z Keckhaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Duane Harlow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED

Defendant Deanne Schaub

represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karla Z Keckhaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Duane Harlow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gabriel B Eber Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 13 of 30

Defendant Gary Ankarlo

(See above for address) ATTORNEY TO BE NOTICED
represented by Corey F Finkelmeyer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis X Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karla Z Keckhaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Duane Harlow (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gabriel B Eber (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/01/2006
05/01/2006 05/01/2006 05/02/2006 05/02/2006 05/19/2006 05/19/2006 05/19/2006 05/19/2006 05/19/2006 05/22/2006 05/22/2006 06/01/2006

# Docket Text
1 CLASS ACTION COMPLAINT for Declaratory and Injunctive Relief filed (Summons(es) issued); Consent Forms Distributed for Magistrate Judge Goodstein; E−File Notification Distributed (Filing fee $ 350) (vkb) Modified on 5/3/2006 (kmm, ). (Entered: 05/02/2006)
2 MOTION for Class Certification by plaintiffs (vkb) (Entered: 05/02/2006)
3 BRIEF in Support re 2 MOTION for Class Certification filed by plaintiffs (vkb) (Entered: 05/02/2006)
4 Docket Annotation; email sent to Atty. Dupuis re: PDF version of complaint is too large and should be broken into segments smaller than 2MB and resubmitted (vkb)
5 CERTIFICATE of Interest by all plaintiffs. (Dupuis, Laurence)
6 Consent to Jurisdiction by US Magistrate Judge by all plaintiffs (Dupuis, Laurence)
7 Refusal to Jurisdiction by US Magistrate Judge by all defendants (Sullivan, Francis)
8 CERTIFICATE OF SERVICE by all defendants (Sullivan, Francis)
9 CERTIFICATE OF SERVICE by all plaintiffs of Consent to Magistrate (Dupuis, Laurence)
Case Reassigned to Judge Rudolph T Randa. Judge Aaron E Goodstein no longer assigned to the case due to non−consent. (kah, ) (Entered: 05/22/2006)
10 Docket Annotation to Atty Dupuis re: doc. 9. (kah, )
11 AMENDED DOCUMENT by all plaintiffs. Certificate of Service with Corrected Caption (Dupuis, Laurence)
12 MOTION for Order (re: 28 U.S.C. 1915A Screening Order) by all defendants. (Sullivan, Francis)

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06/01/2006 06/01/2006 06/05/2006
06/05/2006 06/12/2006 06/15/2006
06/23/2006 08/14/2006 08/14/2006 08/14/2006 08/14/2006 08/14/2006 08/14/2006 08/14/2006 08/14/2006 08/14/2006
08/16/2006 08/24/2006 08/24/2006

13 MOTION for Extension of Time to File Answer by all defendants. (Sullivan, Francis)
14 CERTIFICATE OF SERVICE by all defendants Re: Motion for Extension of Time to Answer Complaint, and Motion for 28 U.S.C. 1915A Screening Order (Sullivan, Francis)
15 WAIVER OF SERVICE Returned Executed by Jim Doyle waiver sent on 5/5/2006, answer due 7/5/2006; Matthew Frank waiver sent on 5/5/2006, answer due 7/5/2006; James Greer waiver sent on 5/5/2006, answer due 7/5/2006; David Burnett waiver sent on 5/5/2006, answer due 7/5/2006; Kevin Kallas waiver sent on 5/5/2006, answer due 7/5/2006; Donald Hands waiver sent on 5/5/2006, answer due 7/5/2006; Barbara Ripani waiver sent on 5/5/2006, answer due 7/5/2006; Ana Boatwright waiver sent on 5/5/2006, answer due 7/5/2006; Holly Meier waiver sent on 5/5/2006, answer due 7/5/2006; Steven Meress waiver sent on 5/5/2006, answer due 7/5/2006. (Sullivan, Francis)
16 CERTIFICATE OF SERVICE by all defendants Re: Waiver of Service of Summons (Sullivan, Francis)
17 RESPONSE to Motion re 13 MOTION for Extension of Time to File Answer, 12 MOTION for Order (re: 28 U.S.C. 1915A Screening Order) filed by all plaintiffs. (Attachments: # 1 U.S. Dept. of Justice May 1, 2006 Findings Letter)(Bhat, Gouri)
18 ORDER signed by Judge Rudolph T Randa on June 15, 2006 granting 12 Motion for 28 U.S.C. Sec. 1915A Screening Order, granting 13 Motion for Extension of Time to Answer. The defendants are directed to file an answer and a response to the motion for class certification no later than August 14, 2006. (cc: all counsel) (Randa, Rudolph) (Entered: 06/16/2006)
19 Duplicate − See Entry 15 − WAIVER OF SERVICE Returned Executed by all defendants; certificate of service. (jld, )
20 MOTION for Summary Judgment Pursuant to Rule 56, Fed. R. Civ. P. by all defendants. (Sullivan, Francis)
21 BRIEF in Support re 20 MOTION for Summary Judgment Pursuant to Rule 56, Fed. R. Civ. P. and Motion for Stay of Discovery filed by all defendants. (Sullivan, Francis)
22 MOTION to Stay Discovery by all defendants. (Sullivan, Francis)
23 CERTIFICATE OF SERVICE by all defendants of Summary Judgment Motion, Brief in Support, and Motion for Stay of Discovery (Sullivan, Francis)
24 ANSWER to Complaint and Affirmative Defenses by all defendants.(Sullivan, Francis)
25 Proposed Findings of Fact by all defendants (Sullivan, Francis)
26 RESPONSE to Motion re 2 MOTION to Certify Class filed by all defendants. (Sullivan, Francis) Document added on 8/16/2006 (bet)
27 AFFIDAVIT of John Ray (Attachments: # 1 # 2 # 3 # 4)(Sullivan, Francis)
28 CERTIFICATE OF SERVICE by all defendants of Answer and Affirmative Defenses, Proposed Findings of Fact, Response in Opposition to Motion for Class Certification, and Affidavit of John Ray, complete with Exhibits 1000−1003 (Sullivan, Francis)
29 Docket Annotation; Document #26 is blank notification sent to Attorney F. Sullivan. (jld)
30 Joint MOTION for Extension of Time to Modify Briefing Schedules by all parties. (Attachments: # 1 Text of Proposed Order Proposed Order Modifying Briefing Schedules)(Dupuis, Laurence)
31 STIPULATION to Modify Briefing Schedules by all parties. (Dupuis, Laurence)

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08/24/2006 08/29/2006

32 CERTIFICATE OF SERVICE by all plaintiffs of Motion to Modify Briefing Schedules, Stipulation to Modify Briefing Schedules &Proposed Order (Dupuis, Laurence)
MARGIN ORDER, approving 30 Joint MOTION for Extension of Time to Modify Briefing Schedules. Signed by Judge Rudolph T Randa on August 29, 2006. (cc: all counsel)(Randa, Rudolph)

09/27/2006

33 BRIEF in Opposition filed by all plaintiffs re 20 MOTION for Summary Judgment Pursuant to Rule 56, Fed. R. Civ. P.. (Bhat, Gouri)

09/27/2006

34 Proposed Findings of Fact by all plaintiffs (Bhat, Gouri)

09/27/2006 09/27/2006 09/27/2006
09/27/2006

35 REPLY BRIEF in Support filed by all plaintiffs re 2 MOTION to Certify Class. (Dupuis, Laurence)
36 BRIEF in Opposition filed by all plaintiffs re 22 MOTION to Stay Discovery. (Dupuis, Laurence)
37 CERTIFICATE OF SERVICE by all plaintiffs service of Reply Brief in Support of Class Certification &Opposition to Motion for Stay of Discovery (Dupuis, Laurence)
38 MOTION for Leave to File Brief Exceeding Page Limit by all plaintiffs. (Bhat, Gouri)

09/27/2006

39 MOTION to Continue Pursuant to Rule 56(f) (Motion in the Alternative) by all plaintiffs. (Bhat, Gouri)

09/27/2006
09/27/2006 09/27/2006 09/27/2006 09/27/2006

40 CERTIFICATE OF SERVICE by all plaintiffs for Plaintiffs' Brief in Response to Defendants' Motion for Summary Judgment; Plaintiffs' Proposed Findings of Fact and Response to Defendants' Proposed Findings of Fact; Declaration of Gouri Bhat and attached Exhibits A−J; Plaintiffs' Unopposed Motion for Leave to Exceed Page Limit; and Plaintiffs' Motion in the Alternative for a Continuance Pursuant to Rule 56(f) (Bhat, Gouri)
41 DECLARATION of Gouri Bhat with attached Exhibits A and D−J. (Attachments: # 1 Exhibit A# 2 Exhibit D# 3 Exhibit E# 4 Exhibit F# 5 Exhibit G# 6 Exhibit H# 7 Exhibit I# 8 Exhibit J)(Bhat, Gouri)
42 ATTACHMENTS Exhibit B, Parts 1−4, attached to Declaration of Gouri Bhat by all plaintiffs re 41 Declaration. (Attachments: # 1 Exhibit B, Part 2# 2 Exhibit B, Part 3# 3 Exhibit B, Part 4)(Bhat, Gouri)
43 ATTACHMENTS Exhibit B, Parts 5−8, attached to Declaration of Gouri Bhat by all plaintiffs re 41 Declaration. (Attachments: # 1 Exhibit B, Part 6# 2 Exhibit B, Part 7# 3 Exhibit B, Part 8)(Bhat, Gouri)
44 ATTACHMENTS Exhibit C, Parts 1−3, attached to Declaration of Gouri Bhat by all plaintiffs re 41 Declaration. (Attachments: # 1 Exhibit C, Part 2# 2 Exhibit C, Part 3)(Bhat, Gouri)

10/27/2006

45 STIPULATION For Extension of Time to File Reply Brief by all defendants. (Sullivan, Francis)

10/27/2006 11/10/2006 11/10/2006 11/10/2006 12/08/2006

46 CERTIFICATE OF SERVICE by all defendants of Stipulation for Extension of Time to File Reply Brief (Sullivan, Francis)
47 REPLY BRIEF in Support filed by all defendants re 20 MOTION for Summary Judgment Pursuant to Rule 56, Fed. R. Civ. P.. (Sullivan, Francis)
48 RESPONSE filed by all defendants re 34 Proposed Findings of Fact.. (Sullivan, Francis)
49 CERTIFICATE OF SERVICE by all defendants of Reply Brief and Response to Plaintiffs' Proposed Findings of Fact (Sullivan, Francis)
50 MOTION for Leave to File Supplemental Evidentiary Materials by all plaintiffs. (Attachments: # 1 Supplemental Proposed Findings# 2 Supplemental Declaration of Counsel# 3 Exhibit K, Part 1# 4 Exhibit K, Part 2# 5 Exhibit K, Part 3# 6

Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 16 of 30

12/08/2006 12/18/2006 12/18/2006 12/20/2006 01/31/2007 03/02/2007 03/14/2007
04/05/2007 04/12/2007 04/16/2007
05/25/2007 06/01/2007 06/01/2007 07/10/2007 07/16/2007 07/16/2007 07/16/2007

Exhibit K, Part 4# 7 Exhibit K, Part 5# 8 Exhibit K, Part 6# 9 Certificate of Service)(Bhat, Gouri)
51 MOTION for Leave to File Attachment L, Part 1 to Supplemental Declaration of Counsel by all plaintiffs. (Attachments: # 1 Exhibit L, Part 2# 2 Exhibit L, Part 3# 3 Exhibit L, Part 4# 4 Exhibit M# 5 Exhibit N)(Bhat, Gouri)
52 RESPONSE to Motion filed by all defendants re 50 MOTION for Leave to File Supplemental Evidentiary Materials. (Finkelmeyer, Corey)
53 CERTIFICATE OF SERVICE by all defendants re Defendants' Response to Plaintiffs' Motion for Leave to File Supplemental Evidentiary Materials (Finkelmeyer, Corey)
54 REPLY BRIEF in Support filed by all plaintiffs re 50 MOTION for Leave to File Supplemental Evidentiary Materials. (Attachments: # 1 Certificate of Service)(Bhat, Gouri)
55 NOTICE by all plaintiffs of Supplemental Authority (Attachments: # 1 Certificate of Service)(Bhat, Gouri)
56 NOTICE of Appearance by Keri L Holleb Hotaling on behalf of Debbie Ann Ramos, Kristine Flynn, Lenda Flournoy. Attorney(s) appearing: Robert L. Graham, Keri L. Holleb Hotaling, Jason A. Selvey (Holleb Hotaling, Keri)
57 ORDER signed by Judge Rudolph T Randa on March 14, 2007 granting 38 Motion for Leave to File; finding as moot 39 Motion to Continue; granting 50 Motion for Leave to File; granting 51 Motion for Leave to File; granting 2 Motion to Certify Class; denying 20 Motion for Summary Judgment; finding as moot 22 Motion to Stay. (cc: all counsel) (Randa, Rudolph) (Entered: 03/15/2007)
58 SCHEDULING ORDER: signed by Judge Rudolph T Randa on April 5, 2007. Discovery due by 7/6/2007, Dispositive Motions due by 8/6/2007. (cc: all counsel)(Randa, Rudolph) (Entered: 04/06/2007)
59 Joint MOTION to Modify Scheduling Order by all parties. (Attachments: # 1 Text of Proposed Order)(Bhat, Gouri)
60 ORDER granting 59 Joint MOTION to Modify Scheduling Order. Signed by Judge Rudolph T Randa on April 16, 2007. Amended Pleadings due by 6/15/2007, Discovery due by 11/21/2007, Plaintiffs Expert Witness List due by 9/7/2007, Defendants Expert Witness List due by 10/9/2007, Rebuttal Experts due by 11/09/2007, Dispositive Motions due by 12/21/2007. (cc: all counsel)(Randa, Rudolph) (Entered: 04/17/2007)
61 Joint MOTION for Protective Order Stipulated by all parties. (Attachments: # 1 Text of Proposed Order Stipulated Protective Order)(Dupuis, Laurence)
62 STIPULATED PROTECTIVE ORDER signed by Judge Rudolph T Randa on May 31, 2007 granting 61 Motion for Protective Order. (cc: all counsel) (Randa, Rudolph)
63 NOTICE of Appearance by Michael R Bauer on behalf of all defendants. Attorney(s) appearing: Michael R. Bauer (Bauer, Michael)
64 MOTION to Take Deposition from Kristine Flynn, Lenda Flournoy, Vernessia Parker, and Debbie Ann Ramos by all defendants. (Attachments: # 1 Certificate of Service)(Sullivan, Francis)
65 Joint MOTION to Modify Scheduling Order by all plaintiffs. (Bhat, Gouri)
66 Joint MOTION for Protective Order Authorizing Disclosure of Alcohol &Drug Abuse Patient Records by all plaintiffs. (Attachments: # 1 Text of Proposed Order)(Bhat, Gouri)
67 NOTICE of Appearance by Gabriel B Eber on behalf of all plaintiffs. Attorney(s) appearing: Gabriel B. Eber (Eber, Gabriel)

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07/17/2007 07/17/2007
07/17/2007 07/17/2007
07/19/2007 09/12/2007 09/12/2007 09/25/2007
09/25/2007 09/26/2007
09/26/2007
11/14/2007 11/14/2007 12/10/2007 12/10/2007 12/17/2007 12/17/2007 12/19/2007
12/28/2007 12/28/2007 01/11/2008 01/11/2008 01/18/2008 01/18/2008

68 Docket Annotation ; motion and proposed order e−filed as one documnent sent to Attorney G. Bhat re entry #65. (jld)
69 ORDER signed by Judge Rudolph T Randa on July 17, 2007 granting 64 Motion to Take Deposition from Kristine Flynn, Leanda Flournoy, Vernessia Parker and Debbie Ann Ramos. (cc: all counsel) (Randa, Rudolph) (Entered: 07/18/2007)
70 ORDER signed by Judge Rudolph T Randa on July 17, 2007 granting 65 Motion to Modify. (cc: all counsel) (Randa, Rudolph) (Entered: 07/18/2007)
Set/Reset Scheduling Order: Plaintiffs Expert Witness List due by 10/15/2007,Defendants Expert Witness List due by 11/16/2007, Dispositive Motions due by 2/15/2008, Discovery completed by 1/11/2008 (Koll, Jacki) (Entered: 07/18/2007)
71 ORDER signed by Judge Rudolph T Randa on July 19, 2007 granting 66 Motion for Protective Order. (cc: all counsel) (Randa, Rudolph)
72 NOTICE by all plaintiffs of Withdrawal of Counsel (Fathi, David)
73 CERTIFICATE OF SERVICE by all plaintiffs (Fathi, David)
74 Joint MOTION for Extension of Time to Revise Scheduling Order by all parties. (Attachments: # 1 Stipulation to Revise Scheduling Order# 2 Text of Proposed Order Proposed Revised Scheduling Order)(Dupuis, Laurence)
75 CERTIFICATE OF SERVICE by all plaintiffs Joint Motion to Revise Scheduling Order (Dupuis, Laurence)
76 ORDER signed by Judge Rudolph T Randa on September 26, 2007 granting 74 Motion for Extension of Time. (cc: all counsel) (Randa, Rudolph) (Entered: 09/27/2007)
REVISED SCHEDULING ORDER signed by Judge Rudolph T Randa on September 26, 2007. Discovery due by 4/15/2008, Plaintiffs Expert Witness List due by 12/14/2007, Defendants Expert Witness List due by 2/1/2008, Dispositive Motions due by 5/15/2008. (cc: all counsel)(Koll, Jacki) (Entered: 09/27/2007)
77 MOTION to Take Deposition from Lenda Flournoy, Debbie Ramos, and Kristine Flynn by all defendants. (Sullivan, Francis)
78 CERTIFICATE OF SERVICE by all defendants (Sullivan, Francis)
79 MOTION to Take Deposition from prisoners by all defendants. (Bauer, Michael)
80 CERTIFICATE OF SERVICE by all defendants (Bauer, Michael)
81 RESPONSE to Motion filed by all plaintiffs re 79 MOTION to Take Deposition from prisoners. (Eber, Gabriel)
82 CERTIFICATE OF SERVICE by all plaintiffs (Eber, Gabriel)
83 NOTICE of Appearance by Michael R Strong on behalf of Debbie Ann Ramos, Kristine Flynn, Lenda Flournoy. Attorney(s) appearing: Michael R. Strong and Stephanie L. Reinhart (Strong, Michael)
84 MOTION for Discovery Leave to Conduct Physical Examination by all defendants. (Sullivan, Francis)
85 CERTIFICATE OF SERVICE by all defendants (Sullivan, Francis)
86 BRIEF in Opposition filed by all plaintiffs re 84 MOTION for Discovery Leave to Conduct Physical Examination. (Eber, Gabriel)
87 CERTIFICATE OF SERVICE by all plaintiffs (Eber, Gabriel)
88 STIPULATION Parties' Joint Stipulation Regarding Absent Class Member Depositions by all defendants. (Bauer, Michael)
89 PROPOSED Order filed by all defendants. (Bauer, Michael)

Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 18 of 30

01/18/2008 01/22/2008 01/24/2008 01/31/2008 02/01/2008 02/01/2008 02/01/2008 02/22/2008
03/13/2008 03/14/2008 05/16/2008 06/10/2008
06/19/2008 06/19/2008 06/26/2008 06/26/2008 06/26/2008 06/27/2008 06/30/2008

90 CERTIFICATE OF SERVICE by all defendants for Parties' Joint Stipulation Regarding Absent Class Member Depositions and [Proposed] Order (Bauer, Michael)
91 ORDER signed by Judge Rudolph T Randa on January 22, 2008 granting 79 Motion to Take Deposition from plaintiffs confined in prison. (cc: all counsel) (Randa, Rudolph) (Entered: 01/23/2008)
92 ORDER signed by Judge Rudolph T Randa on January 24, 2008 granting 77 Motion to Take Deposition from prisoners; denying 84 Motion for Discovery. (cc: all counsel) (Koll, J)
93 NOTICE of Appearance by Karla Z Keckhaver on behalf of all defendants. Attorney(s) appearing: Karla Z. Keckhaver (Attachments: # 1 Certificate of Service)(Keckhaver, Karla)
94 STIPULATION Parties' Joint Stipulation Regarding Expert Reports of Martie Taylor and Elbert Whorton by all defendants. (Bauer, Michael)
95 PROPOSED Order regarding Expert Reports of Martie Taylor and Elbert Whorton filed by all defendants. (Bauer, Michael)
96 CERTIFICATE OF SERVICE by all defendants (Bauer, Michael)
97 Joint MOTION to Modify Scheduling Order by Vernessia L Parker, Debbie Ann Ramos, Jim Doyle, Matthew J Frank, James Greer, David Burnett, MD, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Ana Boatwright, Holly Meier, Steven Meress, MD, Kristine Flynn, Lenda Flournoy. (Attachments: # 1 Proposed Revised Scheduling Order, # 2 Certificate of Service)(Bhat, Gouri)
98 ORDER signed by Chief Judge Rudolph T Randa on March 13, 2008 granting 97 Motion to Modify Scheduling Order. (cc: all counsel) (Koll, J) (Entered: 03/14/2008)
Set/Reset Scheduling Order: Defendants Remaining Expert Witness List due by 2/29/2008; Discovery due by 6/30/2008; Dispositive Motions due by 7/31/2008. (Koll, J)
99 MOTION to Substitute Party by all defendants. (Attachments: # 1 Certificate of Service for Defendants' Motion for Substitution of Parties)(Keckhaver, Karla)
100 ORDER signed by Chief Judge Rudolph T Randa on June 10, 2008 granting 99 Motion to Substitute Party. Rick Raemisch, Cathy Jess, and Robert Ahlborg added. Holly Meier; Ana Boatwright and Matthew J Frank terminated. (cc: all counsel) (Koll, J)
101 MOTION to Withdraw as Attorney Jason A. Selvey by all plaintiffs. (Selvey, Jason)
102 CERTIFICATE OF SERVICE by all plaintiffs Motion For Leave To Withdraw As Counsel For Plaintiffs (Selvey, Jason)
103 MOTION for Order Joint Motion and Stipulation to Revise Scheduling Order by all defendants. (Keckhaver, Karla)
104 PROPOSED [Proposed] Revised Scheduling Order filed by all defendants. (Keckhaver, Karla)
105 CERTIFICATE OF SERVICE by all defendants for Joint Motion and Stipulation to Revise Scheduling Order and [Proposed] Revised Scheduling Order (Keckhaver, Karla)
106 MOTION to Withdraw as Attorney by Debbie Ann Ramos, Kristine Flynn, Lenda Flournoy. (Reinhart, Stephanie)
107 ORDER signed by Chief Judge Rudolph T Randa on June 30, 2008 granting 101 Motion to Withdraw as Attorney. Attorney Jason A Selvey terminated. (cc: all counsel) (Koll, J) (Entered: 07/01/2008)

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06/30/2008 06/30/2008 07/01/2008
07/08/2008 08/14/2008 08/27/2008 09/23/2008 09/23/2008 09/23/2008 09/24/2008 09/24/2008
10/09/2008
10/09/2008 10/10/2008 12/19/2008 12/19/2008 12/29/2008 12/29/2008 01/23/2009

108 ORDER signed by Chief Judge Rudolph T Randa on June 30, 2008 granting 103 Motion for Order Revising Scheduling. (cc: all counsel) (Koll, J) (Entered: 07/01/2008)
Set Deadlines/Hearings: Discovery due by 9/30/2008 Defendants Additional Expert Witness List due by 7/31/2008; Dispositive Motions due by 11/15/2008 (Koll, J) (Entered: 07/01/2008)
MARGIN ORDER approving 106 MOTION to Withdraw as Attorney filed by Kristine Flynn, Debbie Ann Ramos, Lenda Flournoy. Attorney Stephanie L Reinhart terminated. Signed by Chief Judge Rudolph T Randa on July 1, 2008. (cc: all counsel)(Koll, J) (Entered: 07/02/2008)
109 NOTICE by all plaintiffs of Withdrawal of Counsel (Attachments: # 1 Certificate of Service)(Bhat, Gouri)
110 MOTION to Withdraw as Attorney Michael R. Bauer's Notice of Withdrawal as Counsel by all defendants. (Attachments: # 1 Certificate of Service for Michael R. Bauer's Notice of Withdrawal as Counsel)(Keckhaver, Karla)
111 NOTICE of Appearance by Gabriel B Eber on behalf of all plaintiffs. Attorney(s) appearing: Elizabeth Alexander (Attachments: # 1 Certificate of Service)(Eber, Gabriel)
112 Joint MOTION to Modify Scheduling Order, Joint MOTION for Extension of Time for Close of Discovery, Dispositive Motions by all parties. (Attachments: # 1 Text of Proposed Order Proposed Revised Scheduling Order)(Dupuis, Laurence)
113 Joint MOTION for Discovery , to Produce Mortality Reviews by all parties. (Attachments: # 1 Text of Proposed Order Proposed Order to Produce Mortality Reviews)(Dupuis, Laurence)
114 CERTIFICATE OF SERVICE by all plaintiffs , Joint Motions to Modify Scheduling Order, Produce Mortality Reviews (Dupuis, Laurence)
115 ORDER signed by Chief Judge Rudolph T Randa on 09/24/2008 granting 113 Joint Motion to Produce Mortality Reviews. (cc: all counsel) (Koll, J)
116 REVISED SCHEDULING ORDER. Discovery due by 10/31/2008, Dispositive Motions due by 1/16/2009, granting 112 Joint MOTION to Revise Scheduling Order. Signed by Chief Judge Rudolph T Randa on 09/24/2008. (cc: all counsel)(Koll, J)
117 Joint MOTION for [Order Authorizing Disclosure of Alcohol and Drug Abuse Patient Records] Protective Order AODA Protective Order by all parties. (Attachments: # 1 Exhibit Notice of Disclosure of AODA Information, # 2 Text of Proposed Order Proposed AODA Protective Order)(Dupuis, Laurence) Modified on 10/9/2008 (vlh).
118 CERTIFICATE OF SERVICE by all plaintiffs Service of AODA Disclosure Order (Dupuis, Laurence)
119 ORDER Authorizing Disclosure of Alcohol and Drug Abuse Patient Records signed by Chief Judge Rudolph T Randa on 10/10/2008. (cc: all counsel) (Koll, J)
120 Joint MOTION to Modify Scheduling Order by all parties. (Attachments: # 1 Text of Proposed Order Proposed Revised Scheduling Order)(Dupuis, Laurence)
121 CERTIFICATE OF SERVICE by all plaintiffs Joint Motion to Revise Scheduling Order (Dupuis, Laurence)
122 ORDER signed by Chief Judge Rudolph T Randa on 12/29/2008 granting 120 Motion to Modify. (cc: all counsel) (Koll, J)
Set/Reset Scheduling Order: Discovery due by 12/22/2008; Dispositive Motions due by 2/1/2009. (Koll, J)
123 MOTION for Preliminary Injunction by all plaintiffs. (Eber, Gabriel)

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01/23/2009 01/23/2009
01/23/2009 01/23/2009 01/23/2009 01/23/2009 02/02/2009 02/02/2009 02/02/2009
02/02/2009 02/02/2009 02/02/2009 02/02/2009 02/02/2009 02/02/2009 02/02/2009 02/02/2009 02/02/2009 02/02/2009

124 BRIEF in Support filed by all plaintiffs re 123 MOTION for Preliminary Injunction. (Eber, Gabriel)
125 DECLARATION of Gabriel B. Eber in Support of Plaintiffs' Motion for Preliminary Injunction. (Attachments: # 1 Exhibit Part 1 of 11, # 2 Exhibit Part 2 of 11, # 3 Exhibit Part 3 of 11, # 4 Exhibit Part 4 of 11, # 5 Exhibit Part 5 of 11, # 6 Exhibit Part 6 of 11, # 7 Exhibit Part 7 of 11, # 8 Exhibit Part 8 of 11, # 9 Exhibit Part 9 of 11, # 10 Exhibit Part 10 of 11, # 11 Exhibit Part 11 of 11)(Eber, Gabriel)
126 DECLARATION of Dr. Jerry S. Walden in Support of Plaintiffs' Motion for Preliminary Injunction. (Attachments: # 1 Exhibit Part 1 of 3, # 2 Exhibit Part 2 of 3, # 3 Exhibit Part 3 of 3)(Eber, Gabriel)
127 DECLARATION of Madeleine L. LaMarre in Support of Plaintiffs' Motion for Preliminary Injunction. (Eber, Gabriel)
128 CERTIFICATE OF SERVICE by all plaintiffs (Eber, Gabriel)
129 PROPOSED Proposed Order for Preliminary Injunction filed by all plaintiffs. (Eber, Gabriel)
130 MOTION for Partial Summary Judgment by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg. (Finkelmeyer, Corey)
131 MOTION for Leave to File Excess Pages by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg. (Finkelmeyer, Corey)
132 BRIEF in Support filed by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg re 130 MOTION for Partial Summary Judgment. (Finkelmeyer, Corey)
133 Proposed Findings of Fact by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg (Finkelmeyer, Corey)
134 AFFIDAVIT of Barbara De Lap (f/k/a Barbara Ripani). (Attachments: # 1 Exhibit 1011A, # 2 Exhibit 1019, # 3 Exhibit 1020, # 4 Exhibit 1021, # 5 Exhibit 1022)(Finkelmeyer, Corey)
135 AFFIDAVIT of Gloria Marquardt. (Attachments: # 1 Exhibit 1012, # 2 Exhibit 1013, # 3 Exhibit 1014, # 4 Exhibit 1015, # 5 Exhibit 1016, # 6 Exhibit 1017, # 7 Exhibit 1018)(Finkelmeyer, Corey)
136 AFFIDAVIT of Tracy Thompson. (Attachments: # 1 Exhibit 1005, # 2 Exhibit 1006, # 3 Exhibit 1007, # 4 Exhibit 1008, # 5 Exhibit 1009, # 6 Exhibit 1010, # 7 Exhibit 1011, # 8 Exhibit 1011A)(Finkelmeyer, Corey)
137 AFFIDAVIT of Rosemary Kleman. (Attachments: # 1 Exhibit 1001, # 2 Exhibit 1002, # 3 Exhibit 1003, # 4 Exhibit 1004)(Finkelmeyer, Corey)
138 AFFIDAVIT of David Tarr. (Attachments: # 1 Exhibit 1036, # 2 Exhibit 1037, # 3 Exhibit 1038, # 4 Exhibit 1039)(Finkelmeyer, Corey)
139 AFFIDAVIT of Steven Meress. (Attachments: # 1 Exhibit 1023)(Finkelmeyer, Corey)
140 AFFIDAVIT of David Burnett. (Attachments: # 1 Exhibit 1023, # 2 Exhibit 1024, # 3 Exhibit 1025, # 4 Exhibit 1033)(Finkelmeyer, Corey)
141 AFFIDAVIT of Kevin Kallas. (Attachments: # 1 Exhibit 1002, # 2 Exhibit 1003, # 3 Exhibit 1040, # 4 Exhibit 1041, # 5 Exhibit 1042, # 6 Exhibit 1043)(Finkelmeyer, Corey)
142 AFFIDAVIT of Charles M. Brown. (Attachments: # 1 Exhibit Brown A, # 2 Exhibit Brown B)(Finkelmeyer, Corey)

Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 21 of 30

02/02/2009

143 AFFIDAVIT of Karla Z. Keckhaver. (Attachments: # 1 Exhibit 1044, # 2 Exhibit 1045, # 3 Exhibit 1046, # 4 Exhbit 1047 Part 1 of 3, # 5 Exhibit 1047 Part 2 of 3, # 6 Exhibit 1047 Part 3 of 3, # 7 Exhibit 1048, # 8 Exhibit 1049 Part 1 of 2, # 9 Exhibit 1049 Part 2 of 2, # 10 Exhibit 1050, # 11 Exhibit 1051, # 12 Exhibit 1052 Part 1 of 2, # 13 Exhibit 1052 Part 2 of 2, # 14 Exhibit 1053, # 15 Exhibit 1054, # 16 Exhibit 1055, # 17 Exhibit 1056, # 18 Exhibit 1057, # 19 Exhibit 1058, # 20 Exhibit 1059, # 21 Exhibit 1060, # 22 Exhibit 1061)(Finkelmeyer, Corey)

02/02/2009

144 AFFIDAVIT of R. Duane Harlow. (Attachments: # 1 Exhibits Harlow A and Harlow B)(Finkelmeyer, Corey)

02/02/2009

145 Second AFFIDAVIT of Gloria Marquardt. (Attachments: # 1 Exhibit 1007, # 2 Exhibit 1008, # 3 Exhibit 1010, # 4 Exhibit 1011, # 5 Exhibit 1011A, # 6 Exhibit 1012, # 7 Exhibit 1013, # 8 Exhibit 1014, # 9 Exhibit 1015, # 10 Exhibit 1016, # 11 Exhibit 1017, # 12 Exhibit 1018, # 13 Exhibit 1019, # 14 Exhibit 1020, # 15 Exhibit 1021, # 16 Exhibit 1022, # 17 Exhibit 1023, # 18 Exhibit 1024, # 19 Exhibit 1025)(Finkelmeyer, Corey)

02/02/2009

146 AFFIDAVIT of Christine A. Zuraff. (Finkelmeyer, Corey)

02/02/2009

147 AFFIDAVIT of Roland Couey. (Finkelmeyer, Corey)

02/02/2009 148 AFFIDAVIT of Daniel A. Westfield. (Finkelmeyer, Corey)

02/02/2009 149 AFFIDAVIT of Kathleen J. Berkley. (Finkelmeyer, Corey)

02/02/2009

150 CERTIFICATE OF SERVICE by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg Defendants' Motion for Partial Summary Judgment; Defendants' Motion for Leave to Submit Brief Which Exceeds Page Limit; Defendants' Brief in Support of Motion for Partial Summary Judgment; Defendants' Proposed Findings of Fact; Affidavits of Barbara De Lap (f/k/a Barbara Ripani), Gloria Marquardt, Tracy Thompson, Rosemary Kleman, David Tarr, Deanne Schaub, Steven Meress, David Burnett, Kevin Kallas, Charles M. Brown, Karla Z. Keckhaver, R. Duane Harlow, Christine A. Zuraff, Roland Couey, Daniel A. Westfield, Kathleen J. Berkley and Second Affidavit of Gloria Marquardt (Finkelmeyer, Corey)

02/04/2009

151 MOTION for Extension of Time to Respond to Plaintiffs' Motion for Preliminary Injunction by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg. (Sullivan, Francis)

02/04/2009

152 AFFIDAVIT of Francis X Sullivan in Support of Motion for Extension of Time to Respond to Plaintiffs' Motion for Preliminary Injunction. (Sullivan, Francis)

02/04/2009

153 CERTIFICATE OF SERVICE by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg Documents 151 &152 (Attachments: # 1 Certificate of Service)(Sullivan, Francis)

02/10/2009

154 BRIEF in Opposition filed by all plaintiffs re 151 MOTION for Extension of Time to Respond to Plaintiffs' Motion for Preliminary Injunction. (Attachments: # 1 Affidavit Declaration of Laurence J. Dupuis)(Dupuis, Laurence)

02/10/2009

155 CERTIFICATE OF SERVICE by all plaintiffs Opposition to Motion for Extension of Time (Dupuis, Laurence)

02/12/2009

156 REPLY BRIEF in Support filed by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg re 151 MOTION for Extension of Time to Respond to Plaintiffs' Motion for Preliminary Injunction. (Sullivan, Francis)

02/12/2009 157 AFFIDAVIT of Francis X. Sullivan. (Sullivan, Francis)

02/12/2009

158 CERTIFICATE OF SERVICE by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg for Reply Brief in Support of Defendants' Motion for Extension of Time to Respond to Plaintiffs' Motion for Preliminary

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02/13/2009
02/13/2009 02/13/2009 02/13/2009 02/13/2009
02/13/2009
02/16/2009 02/17/2009 03/06/2009 03/06/2009 03/11/2009 03/13/2009
03/13/2009 03/13/2009 03/13/2009 03/13/2009
03/27/2009

Injunction and Affidavit of Francis X. Sullivan (Sullivan, Francis)
159 MOTION to Amend/Correct Defendants' Summary Judgment Submissions including Affidavit of Deanne Schaub dated December 30, 2008; Affidavit of Charles M. Brown dated January 27, 2009 with attached exhibits Brown A and Brown B; Affidavit of R. Duane Harlow dated January 27, 2009 with attached exhibits Harlow A and Harlow B; and Defendants' Proposed Findings of Fact by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg. (Finkelmeyer, Corey)
160 AFFIDAVIT of Deanne Schaub. (Finkelmeyer, Corey)
161 Amended AFFIDAVIT of R. Duane Harlow. (Attachments: # 1 Exhibit 1062, # 2 Exhibit 1063)(Finkelmeyer, Corey)
162 Amended AFFIDAVIT of Charles M. Brown. (Attachments: # 1 Exhibit 1062, # 2 Exhibit 1064)(Finkelmeyer, Corey)
163 AMENDED DOCUMENT by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg. Defendants' Amended Proposed Findings of Fact (Finkelmeyer, Corey)
164 CERTIFICATE OF SERVICE by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg for Defendants' Motion to Amend Summary Judgment Submissions; Affidavit of Deanne Schaub; Amended Affidavit of R. Duane Harlow; Amended Affidavit of Charles M. Brown; and Defendants' Amended Proposed Findings of Fact (Finkelmeyer, Corey)
165 RESPONSE to Motion filed by all plaintiffs re 151 MOTION for Extension of Time to Respond to Plaintiffs' Motion for Preliminary Injunction Letter response to Reply Brief. (Attachments: # 1 Certificate of Service)(Dupuis, Laurence)
166 ORDER signed by Chief Judge Rudolph T Randa on 02/17/2009 granting 151 Motion for Extension of Time; granting 159 Motion to Amend/Correct. (cc: all counsel) (Koll, J)
167 Joint MOTION to Modify Summary Judgment Briefing Schedule by all parties. (Attachments: # 1 Text of Proposed Order)(Eber, Gabriel)
168 CERTIFICATE OF SERVICE by all plaintiffs (Eber, Gabriel)
169 ORDER signed by Chief Judge Rudolph T Randa on 03/10/2009 granting 167 Motion to Modify Summary Judgment Briefing Schedule. (cc: all counsel) (Koll, J)
170 RESPONSE to Motion filed by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg re 123 MOTION for Preliminary Injunction. (Finkelmeyer, Corey)
171 Second AFFIDAVIT of David Burnett. (Attachments: # 1 Exhibits 1065−1067)(Finkelmeyer, Corey)
172 AFFIDAVIT of Denise Symdon. (Finkelmeyer, Corey)
173 AFFIDAVIT of James Greer. (Attachments: # 1 Exhibit 1043, # 2 Exhibit 1068)(Finkelmeyer, Corey)
174 CERTIFICATE OF SERVICE by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg for Defendants' Response to Plaintiffs' Motion for Preliminary Injunction, Second Affidavit of David Burnett, Affidavit of Denise Symdon and Affidavit of James Greer (Finkelmeyer, Corey)
175 REPLY BRIEF in Support filed by all plaintiffs re 123 MOTION for Preliminary Injunction. (Eber, Gabriel)

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03/27/2009 03/27/2009 04/24/2009 04/27/2009 04/28/2009 04/28/2009 04/29/2009
05/01/2009
05/01/2009
05/01/2009 05/01/2009 05/05/2009 05/05/2009 05/05/2009 05/05/2009 05/05/2009 05/05/2009
05/05/2009 05/05/2009

176 DECLARATION of Gabriel B. Eber. (Eber, Gabriel)
177 CERTIFICATE OF SERVICE by all plaintiffs (Eber, Gabriel)
178 ORDER signed by Chief Judge Rudolph T Randa on 04/24/2009 granting 123 Motion for Preliminary Injunction. [See order for filing deadlines.] (cc: all counsel) (Koll, J)
179 NOTICE of Appearance by Grace S Ho on behalf of Debbie Ann Ramos, Kristine Flynn, Lenda Flournoy. Attorney(s) appearing: Grace S. Ho (Attachments: # 1 Certificate of Service)(Ho, Grace)
180 MOTION for Extension of Time by all plaintiffs. (Attachments: # 1 Text of Proposed Order)(Eber, Gabriel)
181 CERTIFICATE OF SERVICE by all plaintiffs (Eber, Gabriel)
182 ORDER signed by Chief Judge Rudolph T Randa on 04/29/2009 granting 180 Motion for Extension of Time. The Plaintiffs shall file their opposition to Defendants' Motion for Partial Summary Judgment no later than 05/05/2009. (cc: all counsel) (Koll, J)
183 RESPONSE filed by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg re 178 Order on Motion for Preliminary Injunction. Defendants' Preliminary Medication Distribution Plan and Injunction Bond Position Statement. (Attachments: # 1 Defendants' Preliminary Medication Distribution Plan)(Finkelmeyer, Corey)
184 CERTIFICATE OF SERVICE by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg for Defendants' Preliminary Medication Distribution Plan and Injunction Bond Position Statement Pursuant to Court Order Dated April 24, 2009 (Finkelmeyer, Corey)
185 STATEMENT by all plaintiffs Regarding Necessity of Injunction Bond. (Eber, Gabriel)
186 CERTIFICATE OF SERVICE by all plaintiffs (Eber, Gabriel)
187 MOTION for Leave to File Excess Pages by all plaintiffs. (Attachments: # 1 Text of Proposed Order)(Eber, Gabriel)
188 CERTIFICATE OF SERVICE by all plaintiffs (Eber, Gabriel)
189 BRIEF in Opposition filed by all plaintiffs re 130 MOTION for Partial Summary Judgment. (Dupuis, Laurence)
190 Proposed Findings of Fact by all plaintiffs (Dupuis, Laurence)
191 RESPONSE to Motion filed by all plaintiffs re 130 MOTION for Partial Summary Judgment Plaintiffs Responses to 133 Defendants' Proposed Findings of Fact (Dupuis, Laurence) Modified on 5/5/2009 (vlh).
192 DECLARATION of Gabriel B. Eber in Support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment. (Attachments: # 1 Exhibit Part 1 of 21, # 2 Exhibit Part 2 of 21, # 3 Exhibit Part 3 of 21, # 4 Exhibit Part 4 of 21, # 5 Exhibit Part 5 of 21, # 6 Exhibit Part 6 of 21, # 7 Exhibit Part 7 of 21, # 8 Exhibit Part 8 of 21, # 9 Exhibit Part 9 of 21, # 10 Exhibit Part 10 of 21, # 11 Exhibit Part 11 of 21, # 12 Exhibit Part 12 of 21, # 13 Exhibit Part 13 of 21, # 14 Exhibit Part 14 of 21, # 15 Exhibit Part 15 of 21, # 16 Exhibit Part 16 of 21, # 17 Exhibit Part 17 of 21, # 18 Exhibit Part 18 of 21, # 19 Exhibit Part 19 of 21, # 20 Exhibit Part 20 of 21, # 21 Exhibit Part 21 of 21)(Eber, Gabriel)
193 DECLARATION of Dr. Jerry S. Walden. (Attachments: # 1 Exhibit Part 1 of 3, # 2 Exhibit Part 2 of 3, # 3 Exhibit Part 3 of 3)(Eber, Gabriel)
194 DECLARATION of Madeleine L. LaMarre. (Eber, Gabriel)

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05/05/2009 05/05/2009 05/05/2009 05/05/2009 05/05/2009 05/05/2009 05/05/2009 05/05/2009
05/05/2009 05/05/2009 05/05/2009 05/05/2009 05/05/2009 05/05/2009 05/05/2009 05/14/2009 05/14/2009 05/14/2009

195 DECLARATION of Debra Chambers in Support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment. (Eber, Gabriel)
196 DECLARATION of Linda Dancer in Support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment. (Eber, Gabriel)
197 DECLARATION of Laura DeCarlo in Support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment. (Eber, Gabriel)
198 DECLARATION of Tammy Griffith in Support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment. (Eber, Gabriel)
199 DECLARATION of Sarah Johnson in Support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment. (Attachments: # 1 Exhibit 700, # 2 Exhibit Axelsen−14)(Eber, Gabriel)
200 DECLARATION of Kelly Kujawa in Support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment. (Eber, Gabriel)
201 DECLARATION of Sandra Pankow in Support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment. (Eber, Gabriel)
202 DECLARATION of Laurence J. Dupuis in Support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment. (Attachments: # 1 Exhibit 111, # 2 Exhibit 114, # 3 Exhibit 115, # 4 Exhibit 129, # 5 Exhibit 130, # 6 Exhibit 164, # 7 Exhibit 244, # 8 Exhibit 245, # 9 Exhibit 261, # 10 Exhibit 555, # 11 Exhibit 636, # 12 Exhibit 637, # 13 Exhibit 638, # 14 Exhibit 642, # 15 Exhibit 657, # 16 Exhibit 659, # 17 Exhibit 660, # 18 Exhibit 663, # 19 Exhibit 664, # 20 Exhibit 670, # 21 Exhibit 677, # 22 Exhibit 733, # 23 Exhibit 740, # 24 Exhibit 741, # 25 Exhibit 742, # 26 Exhibit 743, # 27 Exhibit 744, # 28 Exhibit 745, # 29 Exhibit 746, # 30 Exhibit 747, # 31 Exhibit 748, # 32 Exhibit 749, # 33 Exhibit 750, # 34 Exhibit 751, # 35 Exhibit 752, # 36 Exhibit 753, # 37 Exhibit 754, # 38 Exhibit 756, # 39 Exhibit 757, # 40 Exhibit 758, # 41 Exhibit 759, # 42 Exhibit 760, # 43 Exhibit 761, # 44 Exhibit 762, # 45 Exhibit 763, # 46 Exhibit 764, # 47 Exhibit 765, # 48 Exhibit 766, # 49 Exhibit 767, # 50 Exhibit 768, # 51 Exhibit 769, # 52 Exhibit 770, # 53 Exhibit 771, # 54 Exhibit 772, # 55 Exhibit 773, # 56 Exhibit 774, # 57 Exhibit 775, # 58 Exhibit 778, # 59 Exhibit 780, # 60 Exhibit 781, # 61 Exhibit 782, # 62 Exhibit 783, # 63 Exhibit Axelsen−5, # 64 Exhibit Axelsen−12, # 65 Exhibit Axelsen−16, # 66 Exhibit Hopper−2, # 67 Exhibit Meier−2−10)(Dupuis, Laurence)
203 DECLARATION of Amy Prelwitz in Support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment. (Eber, Gabriel)
204 DECLARATION of Gail Riley in Support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment. (Eber, Gabriel)
205 DECLARATION of Lynda Thillemann in Support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment. (Eber, Gabriel)
206 CERTIFICATE OF SERVICE by all plaintiffs (Eber, Gabriel)
207 DECLARATION of Laurence J. Dupuis (Supplemental) in Support of Plaintiffs' Opposition to Defendants' Motion for Partial Summary Judgment. (Dupuis, Laurence)
208 CERTIFICATE OF SERVICE by all plaintiffs (Dupuis, Laurence)
209 Docket Annotation − E−mail regarding incorrect event used at entry 191 (vlh)
210 Consent MOTION to Amend/Correct Plaintiffs' Brief in Opposition to Defendants' Motion for Partial Summary Judgment by all plaintiffs. (Attachments: # 1 Text of Proposed Order)(Dupuis, Laurence)
211 BRIEF in Opposition filed by all plaintiffs re 130 MOTION for Partial Summary Judgment Amended. (Dupuis, Laurence)
212 CERTIFICATE OF SERVICE by all plaintiffs (Dupuis, Laurence)

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05/15/2009

213 ORDER signed by Chief Judge Rudolph T Randa on 5/15/09 GRANTING 210 plaintiffs' unopposed motion for leave to file an amended brief in response to defendants' motion for partial summary judgment. (cc: all counsel) (dm) (Entered: 05/18/2009)

05/29/2009

214 LETTER from plaintiff regarding harrassment by staff at TCI (vlh) (Entered: 06/01/2009)

06/01/2009

215 RESPONSE filed by all defendants re 178 Order on Motion for Preliminary Injunction. Defendants' Final Medication Distribution Plan Pursuant to Court Order Dated April 24, 2009. (Attachments: # 1 Final Medication Distribution Plan)(Finkelmeyer, Corey)

06/01/2009

216 CERTIFICATE OF SERVICE by all defendants for Defendants' Final Medication Distribution Plan Pursuant to Court Order Dated April 24, 2009 (Finkelmeyer, Corey)

06/23/2009

217 RESPONSE filed by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg re 178 Order on Motion for Preliminary Injunction.. (Attachments: # 1 Controlled Med Pass License, # 2 CPOE Interim Plan, # 3 Certificate of Service)(Finkelmeyer, Corey)

07/09/2009

218 MOTION to Enlarge Briefing Schedule by all parties. (Attachments: # 1 proposed order, # 2 Certificate of Service)(Keckhaver, Karla)

07/10/2009

219 ORDER signed by Chief Judge Rudolph T Randa on 07/10/2009 granting 218 Motion to revise summary judgment briefing schedule. (cc: all counsel) (Koll, J)

08/31/2009

220 MOTION for Leave to File Excess Pages by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg. (Finkelmeyer, Corey)

08/31/2009

221 REPLY BRIEF in Support filed by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg re 130 MOTION for Partial Summary Judgment. (Finkelmeyer, Corey)

08/31/2009

222 REPLY filed by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg re 133 Proposed Findings of Fact, 191 Response to Motion [Defendants' Proposed Findings of Fact In Reply]. (Finkelmeyer, Corey)

08/31/2009

223 RESPONSE filed by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg re 190 Proposed Findings of Fact (Finkelmeyer, Corey)

08/31/2009

224 Second AFFIDAVIT of Karla Z. Keckhaver. (Attachments: # 1 Exhibit 1069, # 2 Exhibit 1070 − part 1, # 3 Exhibit 1070 − part 2, # 4 Exhibit 1071)(Finkelmeyer, Corey)

08/31/2009

225 Second AFFIDAVIT of TRACY THOMPSON. (Attachments: # 1 Exhibit 1072, # 2 Exhibit 1073, # 3 Exhibit 1074)(Finkelmeyer, Corey)

08/31/2009 226 AFFIDAVIT of CHARLES BROWN. (Finkelmeyer, Corey)

08/31/2009

227 AFFIDAVIT of R. DUANE HARLOW. (Attachments: # 1 Exhibit 1075)(Finkelmeyer, Corey)

08/31/2009

228 CERTIFICATE OF SERVICE by Jim Doyle, James Greer, David Burnett, Kevin Kallas, MD, Donald Hands, PhD, Barbara Ripani, Steven Meress, MD, Rick Raemisch, Cathy Jess, Robert Ahlborg (Finkelmeyer, Corey)

09/14/2009

229 ORDER signed by Judge Rudolph T Randa on 09/14/2009 granting 131 Motion for Leave to File Excess Pages; granting 187 Motion for Leave to File Excess Pages; granting 220 Motion for Leave to File Excess Pages. (cc: all counsel) (Koll, J)

09/15/2009

230 SUPPLEMENT by Robert Ahlborg, David Burnett, Jim Doyle, James Greer, Donald Hands, PhD, Cathy Jess, Kevin Kallas, MD, Steven Meress, MD, Rick Raemisch, Barbara Ripani Defendants' Supplement to Interim Medication Ordering

Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 26 of 30

Plan Pursuant to Court Order Dated April 24, 2009. (Attachments: # 1 Additional Information regarding TCI Medication Orders Study)(Keckhaver, Karla)

09/15/2009

231 CERTIFICATE OF SERVICE by Robert Ahlborg, David Burnett, Jim Doyle, James Greer, Donald Hands, PhD, Cathy Jess, Kevin Kallas, MD, Steven Meress, MD, Rick Raemisch, Barbara Ripani for Defendants' Supplement to Interim Medication Ordering Plan Pursuant to Court Order Dated April 24, 2009 (Keckhaver, Karla)

09/29/2009

232 EXHIBITS [IN PAPER FORMAT ONLY] submitted by Kristine Flynn, pro se(vlh)

09/29/2009

Docket Annotation − Exhibits filed as docket no. 232 in this action were apparently meant to be filed in conjunction with new case no. 09−C−942. (vlh)

10/06/2009

233 7.4 MOTION for Leave to File Surreply Brief by Lenda Flournoy, Kristine Flynn, Vernessia L Parker, Debbie Ann Ramos. (Attachments: # 1 Exhibit Proposed Surreply Brief, # 2 Certificate of Service)(Dupuis, Laurence)

10/16/2009

MARGIN ORDER approving Plaintiff's Rule 7.4 Expedited Non−Dispositive Motion for Leave to File a Surreply Brief 233 signed by Judge Rudolph T Randa on 10/15/2009. (cc: all counsel)(Koll, J)

11/24/2009

234 DECISION AND ORDER signed by Judge Rudolph T Randa on 11/24/2009 granting in part and denying in part 130 Defendants' Motion for Partial Summary Judgment.Telephonic Scheduling Conference set for 12/9/2009 10:30 AM before Judge Rudolph T Randa. All parties shall dial the Sprint Telephone Operator to participate. See Order for details. (cc: all counsel) (Randa, Rudolph)

12/08/2009

Reset Hearings: The Telephonic Status Conference set for 12/9/2009 at 10:30 am (CT) to set the case for trial has been re−set to 12/16/2009 10:30 AM (CT) before Judge Rudolph T Randa. The call−in number and the Sprint Conference ID number remain the same. (Zik, Linda)

12/16/2009

235 Minute Entry for proceedings held before Judge Rudolph T Randa: Telephonic Scheduling Conference held on 12/16/2009. Case referred to Magistrate Magistrate Judge Aaron E Goodstein for mediation. Telephonic Final Pretrial Conference set for 9/3/2010 10:00 AM before Judge Rudolph T Randa. 5−week Court Trial set. First 2−weeks to commence 9/27/2010 09:00 AM in Courtroom 320, 517 E Wisconsin Ave., Milwaukee, WI 53202 before Judge Rudolph T Randa. Second 2−weeks to commence 11/22/2010. Last week to commence 1/24/2011.(Randa, Rudolph)

12/17/2009

236 SCHEDULING ORDER: signed by Judge Rudolph T Randa on 12/17/2009. See Hearing Minutes above. (cc: all counsel) (Randa, Rudolph)

12/18/2009

237 ORDER REGARDING MEDIATION, signed by Magistrate Judge Aaron E Goodstein on 12/18/2009. Telephone Conference with participating counsel set for 1/8/2010 at 9:00 AM before Magistrate Judge Aaron E Goodstein. Counsel shall initiate call−in. See order. (cc: all counsel)(Goodstein, A.)

12/30/2009

238 MOTION to Withdraw as Attorney of Elizabeth Alexander by Kristine Flynn. (Eber, Gabriel)

01/08/2010

239 ORDER REGARDING SETTLEMENT PROCEEDINGS signed by Magistrate Judge Aaron E Goodstein on 1/8/10. This court will conduct a settlement conference on January 27, 2010 at 9:00 a.m. It will continue through January 29, 2010, if necessary. Primary counsel who will try the case must be present. Counsel for the class and for the defendants must have full settlement authority. Written settlement demands/offers together with separate ex parte letters, are due must be exchanged on or before January 20, 2010 with copies to the court. These letters are NOT to be electronically filed. See Order for details. (cc: all counsel)(Goodstein, A.)(dm) Modified on 1/8/2010 (dm).

01/08/2010

240 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Telephone Conference held on 1/8/2010; Settlement Conference set for 1/27/2010 at 9:00 AM before Magistrate Judge Aaron E Goodstein (vkb) (Entered: 01/11/2010)

Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 27 of 30

01/27/2010

241 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Settlement Conference held on 1/27/2010; continued to 1/28/10 at 9:00am (vkb) (Entered: 01/29/2010)

01/28/2010

242 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Settlement Conference held on 1/28/2010; settlement discussion continues (vkb) (Entered: 01/29/2010)

01/29/2010

243 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Settlement Conference held on 1/29/2010; settlement discussions continue; parties will resume discussions in February (vkb) (Entered: 02/01/2010)

02/01/2010

244 Joint MOTION to Modify Preliminary Injunction by Robert Ahlborg, Ana Boatwright, David Burnett, Jim Doyle, Lenda Flournoy, Kristine Flynn, Matthew J Frank, James Greer, Donald Hands, PhD, Cathy Jess, Kevin Kallas, MD, Holly Meier, Steven Meress, MD, Vernessia L Parker, Rick Raemisch, Debbie Ann Ramos, Barbara Ripani. (Dupuis, Laurence)

02/01/2010

245 CERTIFICATE OF SERVICE by Lenda Flournoy, Kristine Flynn, Vernessia L Parker, Debbie Ann Ramos of Motion on Stipulation and Proposed Order (Dupuis, Laurence)

02/02/2010

NOTICE of Electronic Filing Error re 244 Joint MOTION to Modify Preliminary Injunction filed by Robert Ahlborg, Vernessia L Parker, Jim Doyle, Holly Meier, Debbie Ann Ramos, Lenda Flournoy, Cathy Jess, Rick Raemisch, Kristine Flynn, Steven Meress, MD, Matthew J Frank, James Greer, Kevin Kallas, MD, Barbara Ripani, Donald Hands, PhD, David Burnett, Ana Boatwright ; The proposed order should be filed as an attachment. Please ensure that the proposed order has been emailed to the proposed email box for the assigned judge in Word or WordPerfect format. This document does not need to be re−filed; Please refer to the user manuals on electronic case filing found at www.wied.uscourts.gov (vkb)

02/04/2010

246 ORDER signed by Judge Rudolph T Randa on 02/04/2010 granting 244 Motion to Modify. (cc: all counsel) (Koll, J) (Entered: 02/05/2010)

02/08/2010

247 ORDER signed by Judge Rudolph T Randa on 02/08/2010 granting 238 Motion to Withdraw as Attorney. Attorney Elizabeth R Alexander terminated. (cc: all counsel) (Koll, J)

02/15/2010

248 MOTION to Withdraw as Attorney by Lenda Flournoy, Kristine Flynn, Debbie Ann Ramos. (Strong, Michael)

02/16/2010

NOTICE of Electronic Filing Error re 248 MOTION to Withdraw as Attorney filed by Kristine Flynn, Debbie Ann Ramos, Lenda Flournoy. The proposed order should be filed as an attachment. Please ensure that the proposed order has been emailed to the email box for the assigned judge in Word or Word Perfect format. This document does not need to be re−filed; Please refer to the user manuals on electronic case filing found at www.wied.uscourts.gov (mlm)

02/17/2010

250 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Settlement Conference held on 2/17/2010 (vkb) (Entered: 02/19/2010)

02/18/2010

249 Amended MOTION to Withdraw as Attorney Michael Strong and Grace Ho by Lenda Flournoy, Kristine Flynn, Debbie Ann Ramos. (Attachments: # 1 Text of Proposed Order)(Strong, Michael)

02/18/2010

251 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Settlement Conference held on 2/18/2010 (vkb) (Entered: 02/19/2010)

02/22/2010

252 ORDER RETURNING CASE, signed by Magistrate Judge Aaron E Goodstein on 2/22/2010. The parties continue to work toward resolution of this matter. Accordingly, at this time the case is returned to the Honorable Rudolph T. Randa for further proceedings in accordance with the schedule currently in place. Case no longer referred. (cc: all counsel)(Goodstein, A.)

02/23/2010

253 ORDER signed by Judge Rudolph T Randa on 02/23/2010 granting 248 Motion to Withdraw as Attorney. Attorney Grace S Ho and Michael R Strong terminated; granting 249 Motion to Withdraw as Attorney. Attorney Grace S Ho and Michael R Strong terminated. (cc: all counsel) (Koll, J)

Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 28 of 30

03/01/2010
03/22/2010 03/31/2010 04/13/2010
04/28/2010 06/04/2010 08/12/2010 08/12/2010 08/12/2010
08/23/2010 08/23/2010 08/23/2010 08/23/2010 08/23/2010 08/24/2010
09/02/2010 09/02/2010 10/04/2010

254 STIPULATION FOR EXTENSION OF TIME TO IMPLEMENT COMPUTERIZED PRESCRIBER ORDER ENTRY SYSTEM FOR NEW MEDICATION ORDERS by Robert Ahlborg, David Burnett, Jim Doyle, James Greer, Donald Hands, PhD, Cathy Jess, Kevin Kallas, MD, Steven Meress, MD, Rick Raemisch, Barbara Ripani. (Attachments: # 1 Certificate of Service)(Sullivan, Francis)
255 LETTER from Kathy Willis re: question about this case. Ms Willis indicates that she is a party to the class action. (sent to Ms. Willis: copy of the court's order dated 3/14/07 and the 1983 prisoner complaint form) (mlm) (Entered: 03/25/2010)
256 NOTICE of Appearance by David C Fathi on behalf of All Plaintiffs. Attorney(s) appearing: David C. Fathi (Attachments: # 1 Certificate of Service)(Fathi, David)
NOTICE OF HEARING: (cc: all counsel) Settlement Conference (Continuation) set for 4/28/2010 at 9:30 AM in Courtroom 254, U.S. Courthouse, 517 E. Wisconsin Ave., Milwaukee, before Magistrate Judge Aaron E Goodstein. Plaintiffs' counsel shall submit a statement to the court regarding the current status of the negotiations scheduled for mediation by 4/23/2010 (Fax No. 414−297−1129. ) (Quinn, C., Deputy Clerk)
257 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Settlement Conference held on 4/28/2010; settlement discussions continue (vkb) (Entered: 04/29/2010)
258 NOTICE of Appearance by Genevieve J Essig on behalf of Lenda Flournoy, Kristine Flynn, Debbie Ann Ramos. Attorney(s) appearing: Genevieve J. Essig (Essig, Genevieve)
259 STATUS REPORT by All Parties. (Eber, Gabriel)
260 CERTIFICATE OF SERVICE by All Plaintiffs (Eber, Gabriel)
NOTICE of Electronic Filing Error re 260 Certificate of Service filed by Kristine Flynn, Vernessia L Parker, Debbie Ann Ramos, Lenda Flournoy ; All documents must be properly captioned and contain a case number. This document does not need to be re−filed; Please refer to the user manuals on electronic case filing found at www.wied.uscourts.gov (mlm)
261 MOTION for Miscellaneous Relief by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Eber, Gabriel)
262 MOTION Preliminary Approval of Class Action Settlement by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Eber, Gabriel)
263 BRIEF in Support filed by All Plaintiffs re 262 MOTION Preliminary Approval of Class Action Settlement. (Eber, Gabriel)
264 DECLARATION of Gabriel B. Eber. (Attachments: # 1 Exhibit 786, # 2 Exhibit 787, # 3 Exhibit 788)(Eber, Gabriel)
265 ORDER signed by Judge Rudolph T Randa on 08/23/2010 granting 261 Motion To Withdraw Class Representative. (cc: all counsel) (Koll, J) (Entered: 08/24/2010)
266 ORDER signed by Judge Rudolph T Randa on 08/24/2010 granting 262 Motion for Preliminary Approval of the Settlement Agreement, Ordering Notice to the Class, and Scheduling a Fairness Hearing. Fairness Hearing set for 12/2/2010 10:30 AM in Courtroom 320, 517 E Wisconsin Ave., Milwaukee, WI 53202 before Judge Rudolph T Randa. (cc: all counsel) (Koll, J)
267 DECLARATION of Karla Z. Keckhaver. (Attachments: # 1 Exhibit 1076 − Notice of Proposed Settlement with dates inserted, # 2 Exhibit 1077 − Bulletin Board Posting)(Keckhaver, Karla)
268 CERTIFICATE OF SERVICE by All Defendants for Declaration of Karla Z. Keckhaver (Keckhaver, Karla)
269 LETTER from Jennifer Connelly re: proposed settlement agreement. (mlm) (Entered: 10/05/2010)

Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 29 of 30

10/18/2010 10/18/2010 10/18/2010 12/02/2010
12/02/2010 12/13/2010 12/13/2010 12/13/2010 12/13/2010 12/14/2010
05/23/2011 05/24/2011 06/23/2011
07/06/2011 06/06/2012 06/08/2012

270 MOTION for Settlement Final Approval of Class Action Settlement by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Eber, Gabriel)
271 BRIEF in Support filed by All Plaintiffs re 270 MOTION for Settlement Final Approval of Class Action Settlement. (Eber, Gabriel)
272 DECLARATION of Gabriel B. Eber. (Attachments: # 1 Exhibit Exhibits Part 1 of 2, # 2 Exhibit Exhibits Part 2 of 2)(Eber, Gabriel)
273 Minute Entry for proceedings held before Judge Rudolph T Randa: Fairness Hearing held on 12/2/2010. Court approves the Class Action Settlement and request for fees and costs. Order to be entered. (Court Reporter Heidi Trapp) (Zik, Linda)
274 ORDER Granting Final Approval of Class Action Settlement signed by Judge Rudolph T Randa on 12/02/2010. (cc: all counsel) (Koll, J)
275 MOTION for Attorney Fees and Costs by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Dupuis, Laurence)
276 DECLARATION of Gabriel B. Eber in Support of Motion for Fees &Costs. (Attachments: # 1 Exhibit Fee &Cost Documentation)(Dupuis, Laurence)
277 DECLARATION of Laurence J. Dupuis in Support of Motion for Fees &Costs. (Attachments: # 1 Exhibit 798 Documentation of Fees &Costs)(Dupuis, Laurence)
278 DECLARATION of Robert Graham in Support of Motion for Fees &Costs. (Attachments: # 1 Exhibit 799− Documentation of Fees &Costs)(Dupuis, Laurence)
279 ORDER signed by Judge Rudolph T Randa on 12/14/2010 granting 275 Motion for Attorney Fees. Defendants shall pay $950,000 to Plaintiffs' counsel within two (2) weeks of the date of this Order; the Clerk of Court is directed to CLOSE this matter for administrative purposes. The Court retains jurisdiction until the Settlement Agreement ends and all claims have been dismissed. (cc: all counsel) (Koll, J)
280 Joint MOTION to Incorporate Settlement Terms by All Parties. (Attachments: # 1 Text of Proposed Order)(Eber, Gabriel)
281 ORDER signed by Judge Rudolph T Randa on 05/24/2011 granting 280 Motion to Incorporate Settlement Terms. (cc: all counsel) (Koll, J)
282 MOTION to Substitute Party by Robert Ahlborg, David Burnett, Jim Doyle, James Greer, Donald Hands, PhD, Cathy Jess, Kevin Kallas, MD, Steven Meress, MD, Rick Raemisch, Barbara Ripani. (Attachments: # 1 Certificate of Service)(Keckhaver, Karla)
TEXT ONLY ORDER approving 282 MOTION to Substitute Party. Signed by Judge Rudolph T Randa on 07/05/2011. (cc: all counsel)(Koll, J)
283 Joint MOTION To Incorporate Settlement Terms by All Parties. (Attachments: # 1 Appendix Appendix C−2 to Settlement Agreement (June 4, 2012), # 2 Text of Proposed Order)(Eber, Gabriel)
284 ORDER signed by Judge Rudolph T. Randa on 6/8/2012 GRANTING 283 Joint Motion to Incorporate Settlement Terms. (cc: all counsel) (cb)

Case: 2:06-cv-537 As of: 12/05/2013 11:52 PM CST 30 of 30

 
 CLOSED,PROTO
United States District Court Eastern District of Wisconsin (Milwaukee) CIVIL DOCKET FOR CASE #: 2:07−cv−00376−LA

The Estate of Angela Enoch et al v. Tienor et al Assigned to: Judge Lynn Adelman Case in other court: 08−4103
USCA The Estate of Angela Enoch 12/02/08, 08−4103 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/23/2007 Date Terminated: 08/12/2008 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

The Estate of Angela Enoch by Roxanne Enoch, Special Administrator

represented by Christopher P Katers Gende Law Offices SC N28 W23000 Roundy Dr − Ste 200 Pewaukee, WI 53072 262−970−8500 Fax: 262−970−7100 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ian T Matyjewicz 81 Pine Brae Ln Clifton, NJ 07012 Email: ianmaty@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James J Gende , II Gende Law Offices SC N28 W23000 Roundy Dr − Ste 200 Pewaukee, WI 53072 262−970−8500 Fax: 262−970−7100 Email: jgende@jamesgendelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Ashley Enoch a minor by her Guardian ad Litem Nathaniel Cade Jr.

represented by Christopher P Katers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ian T Matyjewicz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James J Gende , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathaniel Cade , Jr Gonzalez Saggio &Harlan LLP 111 E Wisconsin Ave − Ste 1000 Milwaukee, WI 53202 414−255−3802 Fax: 414−255−3804 Email: nate@cade−law.com
Case: 2:07-cv-376 As of: 12/06/2013 12:06 AM CST 1 of 23

Plaintiff
Amber Enoch a minor by her Guardian ad Litem Nathaniel Cade Jr.

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher P Katers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ian T Matyjewicz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James J Gende , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathaniel Cade , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Patrick A Tienor, RN Taycheedah Correctional Institution

represented by Jody J Schmelzer Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−266−3094 Fax: 608−267−8906 Email: schmelzerjj@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Monica A Burkert Brist Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−266−1795 Fax: 608−267−8906 Email: burkert−bristm@doj.state.wi.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis X Sullivan Wisconsin Department of Justice Office of the Attorney General 17 W Main St PO Box 7857 Madison, WI 53707−7857 608−267−2222 Fax: 608−267−2223 Email: sullivanfx@doj.state.wi.us TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Case: 2:07-cv-376 As of: 12/06/2013 12:06 AM CST 2 of 23

Mark A Neuser Wisconsin Supreme Court Court Commissioners Office 110E Main St − Ste 440 Madison, WI 53703−3328 608−266−7442 Fax: 608−267−0911 Email: mark.neuser@wicourts.gov ATTORNEY TO BE NOTICED

Defendant
Judith Stemper, RN Taycheedah Correctional Institution

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jess M Gonzalez Lieutenant

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Lori A Amend Sergeant

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address)
Case: 2:07-cv-376 As of: 12/06/2013 12:06 AM CST 3 of 23

Defendant Tonya R Alexander−Krings Correctional Officer
Defendant Kevin L Batterman Sergeant
Defendant Kevin D Jones Correctional Office

TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED
Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED
represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED
Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED
represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED
Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED
represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Case: 2:07-cv-376 As of: 12/06/2013 12:06 AM CST 4 of 23

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Barbara E Sweeney Correctional Officer

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Anne Boyle Captain

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Lynda Schwandt Security Director

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED
Case: 2:07-cv-376 As of: 12/06/2013 12:06 AM CST 5 of 23

Defendant
Deanne Schaub Deputy Warden

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Ana Boatwright Warden

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Holly Meier Health Services Unit Manager

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Defendant represented by
Case: 2:07-cv-376 As of: 12/06/2013 12:06 AM CST 6 of 23

Rose Kleman Psychologist Supervisor

Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Steven Meress, MD Supervising Physician

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Julia Reschke, MD Consulting Psychiatrist

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Defendant

James Doyle Governor of Wisconsin TERMINATED: 07/01/2008

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY

Case: 2:07-cv-376 As of: 12/06/2013 12:06 AM CST 7 of 23

ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Matthew Frank Secretary Wisconsin Department of Corrections TERMINATED: 07/01/2008

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Defendant
James Greer Director WDOC Bureau of Health Services

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Dr David Burnett Medical Director

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist Case: 2:07-cv-376 As of: 12/06/2013 12:06 AM CST 8 of 23

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kevin Kallas, MD Mental Health Director

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Donald Hands, PhD Psychology Director

represented by Jody J Schmelzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francis X Sullivan (See above for address) TERMINATED: 09/11/2007 ATTORNEY TO BE NOTICED

Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Defendant
Helene Nelson TERMINATED: 07/01/2008

represented by Mark A Neuser (See above for address) ATTORNEY TO BE NOTICED

Monica A Burkert Brist (See above for address) ATTORNEY TO BE NOTICED

Guardian ad litem Case: 2:07-cv-376 As of: 12/06/2013 12:06 AM CST 9 of 23

Nathaniel Cade, Jr

represented by Nathaniel Cade , Jr (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/23/2007
05/01/2007 05/01/2007 05/01/2007 05/02/2007 06/25/2007
07/25/2007 07/27/2007 08/08/2007 08/08/2007 08/15/2007 08/16/2007 09/11/2007 09/11/2007 10/01/2007 10/11/2007
10/12/2007

# Docket Text
1 COMPLAINT (Summons(es) issued) against all defendants filed by The Estate of Angela Enoch, Ashley Enoch, Amber Enoch. Consent Forms Distributed for Magistrate Judge A.E. Goodstein. Jury Demand; (Filing Fee Paid $350 receipt#102130483).(jv) Document added on 5/1/2007 (bet) (Entered: 04/24/2007)
2 PDF Document Requirement form sent to James J. Gende, II regarding Complaint with attachments filed on 4/23/07 (Second Notice). (jld)
3 Docket Annotation ; Second reminder to file the certificate of interest sent to Attorney James J. Gende, II. (jld)
4 Consent to Jurisdiction by US Magistrate Judge by all plaintiffs. (Gende, James)
5 Amended Consent to Jurisdiction by US Magistrate Judge by all plaintiffs. (Gende, James)
6 Defendants' ANSWER to Complaint with Jury Demand by Jess M Gonzalez, Lori A Amend, Kevin L Batterman, Kevin D Jones, Barbara E Sweeney, Anne Boyle, Lynda Schwandt, Deanne Schaub, Ana Boatwright, Holly Meier, Rose Kleman, Steven Meress, Julia Reschke, MD, James Doyle, Matthew Frank, James Greer, David Burnett, Kevin Kallas, Donald Hands, Patrick A Tienor, RN, Judith Stemper, RN. (Attachments: # 1)(Sullivan, Francis)
7 LETTER from deputy clerk to Asst. A.G. Francis X. Sullivan regarding magistrate judge consent/refusal form (vlh)
8 Refusal to Jurisdiction by US Magistrate Judge by all defendants. (Attachments: # 1 Certificate of Service)(Sullivan, Francis)
9 CERTIFICATE of Interest by all plaintiffs. (Gende, James)
10 NOTICE of Hearing: Federal Rule of Civil Procedure 16(b) Telephonic Scheduling Conference set for 10/11/2007 09:30 AM before Chief Judge Rudolph T Randa. (cc: all counsel) (Zik, Linda)
11 SUMMONS Returned Executed by all plaintiffs. Tonya R Alexander−Krings served on 7/27/2007, answer due 8/16/2007. (Gende, James)
12 ANSWER to Complaint with Jury Demand by Tonya R Alexander−Krings. (Attachments: # 1 Certificate of Service)(Sullivan, Francis)
13 LETTER from Monica Burkert−Brist requesting removal of Frank X. Sullivan's name and replacing with my name. (Attachments: # 1 Certificate of Service)(Burkert Brist, Monica)
14 LETTER from Monica Burkert−Brist to request that Jody J. Schmelzer's name be added to this case. (Attachments: # 1 Certificate of Service)(Burkert Brist, Monica)
15 PROPOSED Proposed Scheduling Order filed by all plaintiffs. (Gende, James)
16 Minute Entry for proceedings held before Judge Rudolph T Randa: Telehponic Scheduling Conference held on 10/11/2007. Amended Pleadings due by 1/31/2008. Plaintiffs Expert Witness List due by 1/31/2008. Defendants Expert Witness List due by 3/31/2008. Lay Discovery due by 5/31/2008. Expert Discovery due 6/15/2008. Dispositive Motions due by 7/1/2008. Telephonic Final Pretrial Conference set for 1/23/2009 10:00 AM before Chief Judge Rudolph T Randa. 2−week Jury Trial set for 2/17/2009 09:00 AM in Courtroom 320 before Chief Judge Rudolph T Randa. (Randa, Rudolph) (Entered: 10/12/2007)
17 SCHEDULING ORDER: signed by Judge Rudolph T Randa on 10/12/2007. See Hearing Minutes above. (cc: all counsel) (Randa, Rudolph)

Case: 2:07-cv-376 As of: 12/06/2013 12:06 AM CST 10 of 23

12/10/2007 12/10/2007 12/10/2007 12/28/2007 12/28/2007 12/28/2007 12/28/2007
12/28/2007 12/28/2007 01/07/2008 01/07/2008 01/07/2008 01/07/2008
01/09/2008
01/15/2008 01/15/2008 01/15/2008
01/17/2008

18 MOTION for Protective Order Stipulated by all parties. (Attachments: # 1 Certificate of Service)(Burkert Brist, Monica)
19 Docket Annotation − E−mail sent to Asst. A.G. Monica Burkert−Brist regarding entry at no. 18. (vlh)
20 STIPULATED PROTECTIVE ORDER signed by Judge Rudolph T Randa on December 10, 2007. (cc: all counsel)(Randa, Rudolph) (Entered: 12/12/2007)
21 MOTION for Protective Order Disallowing Certain Discovery by all defendants. (Burkert Brist, Monica)
22 BRIEF in Support filed by all defendants re 21 MOTION for Protective Order Disallowing Certain Discovery Regarding Production of Mortality Review Report. (Burkert Brist, Monica)
23 AFFIDAVIT of Kevin Kallas. (Attachments: # 1 Exhibit)(Burkert Brist, Monica)
24 CERTIFICATE OF SERVICE by all defendants for the Defendants' Motion for a Protective Order Disallowing Certain Discovery, Defendants' Brief in Support of Their Motion for a Protective Order Regarding Production of Mortality Review Report, and the Affidavit of Kevin Kallas (Burkert Brist, Monica)
25 AMENDED COMPLAINT against all defendants filed by The Estate of Angela Enoch, Ashley Enoch, Amber Enoch. Jury Demand.(Gende, James)
26 CERTIFICATE OF SERVICE by all plaintiffs for Amended Complaint (Gende, James)
27 MOTION for More Definite Statement As To Amended Complaint by all defendants. (Burkert Brist, Monica)
28 AFFIDAVIT of Monica Burkert−Brist. (Burkert Brist, Monica)
29 CERTIFICATE OF SERVICE by all defendants for Defendants' Motion For A More Definite Statement As To Amended Complaint and the Affidavit of Monica Burkert−Brist (Burkert Brist, Monica)
30 AMENDED COMPLAINT against all defendants filed by The Estate of Angela Enoch, Ashley Enoch, Amber Enoch. Jury Demand. (Attachments: # 1 Exhibit Exhibit to Amended Complaint# 2 Letter Cover Letter to Amended Complaint# 3 Certificate of Service Certificate of Service)(Gende, James)
31 BRIEF in Opposition filed by all plaintiffs re 21 MOTION for Protective Order Disallowing Certain Discovery. (Attachments: # 1 Affidavit of James J. Gende II in Opposition to Defendants' Motion for a Protective Order# 2 Exhibit A to Affidavit of James J. Gende II in Opposition to Defendants' Motion for a Protective Order# 3 Certificate of Service Brief in Opposition and Affidavit with Exhibit)(Gende, James)
32 REPLY BRIEF in Support filed by all defendants re 21 MOTION for Protective Order Disallowing Certain Discovery Regarding Production of Mortality Review Report. (Burkert Brist, Monica)
33 Reply AFFIDAVIT of Monica Burkert−Brist Regarding Mortality Review Documents. (Attachments: # 1 Exhibit A)(Burkert Brist, Monica)
34 CERTIFICATE OF SERVICE by all defendants for Defendants' Reply Brief in Support of Their Motion for a Protective Order Regarding Production of Mortality Review Report and the Reply Affidavit of Monica Burkert−Brist Regarding Mortality Review Documents (Burkert Brist, Monica)
35 Defendants' ANSWER to Amended Complaint with Jury Demand by Jess M Gonzalez, Lori A Amend, Tonya R Alexander−Krings, Kevin L Batterman, Kevin D Jones, Barbara E Sweeney, Anne Boyle, Lynda Schwandt, Deanne Schaub, Ana Boatwright, Holly Meier, Rose Kleman, Steven Meress, MD, Julia Reschke, MD, James Greer, David Burnett, MD, Kevin Kallas, MD, Donald Hands, PhD, Patrick A Tienor, RN, Judith Stemper, RN. (Attachments: # 1 Attachment)(Burkert Brist, Monica)

Case: 2:07-cv-376 As of: 12/06/2013 12:06 AM CST 11 of 23

01/17/2008

36 MOTION to Dismiss Counts Six and Nine of Plaintiffs' Amended Complaint and for Dismissal of All Counts as to Defendants Doyle, Nelson and Frank by all defendants. (Burkert Brist, Monica)

01/17/2008

37 BRIEF in Support filed by all defendants re 36 MOTION to Dismiss Counts Six and Nine of Plaintiffs' Amended Complaint and for Dismissal of All Counts as to Defendants Doyle, Nelson and Frank. (Burkert Brist, Monica)

01/17/2008

38 CERTIFICATE OF SERVICE by all defendants for Defendants' Answer to Plaintiffs' Amended Complaint, (Frank, Nelson and Doyle not filers in this document) Defendants' Motion for Dismissal of Counts Six and Nine of Plaintiffs' Amended Complaint and for Dismissal of All Counts as to Defendants Doyle, Nelson and Frank, and Defendants' Brief in Support of Motion to Dismiss Portions of Amended Complaint (Burkert Brist, Monica)

01/18/2008

39 MOTION to Stay Discovery by all defendants. (Burkert Brist, Monica)

01/18/2008

40 AFFIDAVIT of Monica Burkert−Brist in Support of Motion to Stay Discovery. (Burkert Brist, Monica)

01/18/2008

41 AFFIDAVIT of Nanette R. Scheel in Support of Motion to Stay Discovery. (Burkert Brist, Monica)

01/18/2008

42 CERTIFICATE OF SERVICE by all defendants (Burkert Brist, Monica)

01/25/2008

43 WAIVER OF SERVICE Returned Executed by Helene Nelson waiver sent on 1/7/2008, answer due 3/7/2008. (Attachments: # 1 Certificate of Service)(Burkert Brist, Monica)

01/25/2008

44 BRIEF in Opposition filed by all plaintiffs re 39 MOTION to Stay Discovery. (Gende, James)

01/25/2008

45 BRIEF [in support of plaintiffs' request for protective order] filed by all plaintiffs re 44 Brief in Opposition to Motion to Stay Discovery. (Attachments: # 1 Affidavit Affidavit of James J. Gende, II In Support of Plaintiffs Brief in Opposition to Defendants Motion to Stay Discovery and Plaintiffs Brief in Support of its Request for a Protective Order# 2 Exhibit to Affidavit of James J. Gende II# 3 Certificate of Service)(Gende, James) Modified on 1/28/2008 (vlh).

02/07/2008

46 BRIEF in Opposition filed by all plaintiffs re 36 MOTION to Dismiss Counts Six and Nine of Plaintiffs' Amended Complaint and for Dismissal of All Counts as to Defendants Doyle, Nelson and Frank. (Gende, James)

02/07/2008

47 AFFIDAVIT of James J. Gende, II in Support of Plaintiffs' Brief in Opposition to Defendants Motion to Dismiss portions of the Amended Complaint. (Attachments: # 1 Exhibit Exhibit to Affidavit of James Gende)(Gende, James)

02/07/2008

48 CERTIFICATE OF SERVICE by all plaintiffs (Gende, James)

02/07/2008

49 REPLY BRIEF in Support filed by Helene Nelson, James Doyle, Matthew Frank re 39 MOTION to Stay Discovery. (Burkert Brist, Monica)

02/07/2008

50 REPLY BRIEF in Support filed by all defendants re 39 MOTION to Stay Discovery for the Purpose of Investigating Conduct of Plaintiffs' Counsel. (Burkert Brist, Monica)

02/07/2008

51 Reply AFFIDAVIT of Monica Burkert−Brist in Support of Defendants' Motion to Stay Discovery. (Attachments: # 1)(Burkert Brist, Monica)

02/07/2008

52 AFFIDAVIT of Tonya R. Alexander−Krings. (Burkert Brist, Monica)

02/07/2008

53 CERTIFICATE OF SERVICE by all defendants for the Reply Brief in Support of Motion to Stay Discovery on Behalf of James Doyle, Matthew Frank and Helene Nelson, and Defendants' Reply Brief in Support of Motion to Stay Discovery for the Purpose of Investigating Conduct of Plaintiffs' Counsel and the Reply Affidavit of Monica Burkert−Brist in Support of Defendants' Motion to Stay Discovery, and the Affidavit of Tonya R. Alexander−Krings (Burkert Brist, Monica)

02/08/2008

54 MOTION to Strike Defendants' Second Reply Brief by all plaintiffs. (Gende, James)

Case: 2:07-cv-376 As of: 12/06/2013 12:06 AM CST 12 of 23

02/08/2008

55 BRIEF in Support filed by all plaintiffs re 54 MOTION to Strike Defendants' Second Reply Brief. (Gende, James)

02/08/2008

56 CERTIFICATE OF SERVICE by all plaintiffs (Gende, James)

02/11/2008

57 ORDER signed by Judge Rudolph T Randa on February 11, 2008 finding as moot 27 Motion for More Definite Statement; granting 39 Motion to Stay all discovery directed against Doyle, Frank and Nelson. Further briefing on pending motions as stated in the decision should be filed on or before February 19, 2008. (cc: all counsel) (Koll, J) (Entered: 02/12/2008)

02/18/2008

58 STIPULATION of Counsel Concerning Defendants' Motion to Stay Discovery Dated January 18, 2008 by Jess M Gonzalez, Lori A Amend, Tonya R Alexander−Krings, Kevin L Batterman, Kevin D Jones, Barbara E Sweeney, Helene Nelson, Anne Boyle, Lynda Schwandt, Deanne Schaub, Ana Boatwright, Holly Meier, Rose Kleman, Steven Meress, MD, Julia Reschke, MD, James Doyle, Matthew Frank, James Greer, David Burnett, MD, Kevin Kallas, MD, Donald Hands, PhD, Patrick A Tienor, RN, Judith Stemper, RN. (Burkert Brist, Monica)

02/18/2008

59 CERTIFICATE OF SERVICE by Jess M Gonzalez, Lori A Amend, Tonya R Alexander−Krings, Kevin L Batterman, Kevin D Jones, Barbara E Sweeney, Helene Nelson, Anne Boyle, Lynda Schwandt, Deanne Schaub, Ana Boatwright, Holly Meier, Rose Kleman, Steven Meress, MD, Julia Reschke, MD, James Doyle, Matthew Frank, James Greer, David Burnett, MD, Kevin Kallas, MD, Donald Hands, PhD, Patrick A Tienor, RN, Judith Stemper, RN (Burkert Brist, Monica)

02/20/2008

MARGIN ORDER approving stipulation of counsel concerning defendants' motion to stay discovery dated January 18, 2008. Motions terminated: 54 MOTION to Strike Defendants' Second Reply Brief 21 MOTION for Protective Order Disallowing Certain Discovery. Signed by Chief Judge Rudolph T Randa on February 19, 2008. (cc: all counsel)(Koll, J)

02/20/2008

60 MOTION to Withdraw Motion for a Protective Order Disallowing Certain Discovery Related to Inmate Mortality Review Records by Jess M Gonzalez, Lori A Amend, Tonya R Alexander−Krings, Kevin L Batterman, Kevin D Jones, Barbara E Sweeney, Anne Boyle, Lynda Schwandt, Deanne Schaub, Ana Boatwright, Holly Meier, Rose Kleman, Steven Meress, MD, Julia Reschke, MD, James Doyle, Matthew Frank, James Greer, David Burnett, MD, Kevin Kallas, MD, Donald Hands, PhD, Patrick A Tienor, RN, Judith Stemper, RN. (Attachments: # 1 Attachment)(Burkert Brist, Monica)

02/20/2008

61 CERTIFICATE OF SERVICE by Jess M Gonzalez, Lori A Amend, Tonya R Alexander−Krings, Kevin L Batterman, Kevin D Jones, Barbara E Sweeney, Anne Boyle, Lynda Schwandt, Deanne Schaub, Ana Boatwright, Holly Meier, Rose Kleman, Steven Meress, MD, Julia Reschke, MD, James Doyle, Matthew Frank, James Greer, David Burnett, MD, Kevin Kallas, MD, Donald Hands, PhD, Patrick A Tienor, RN, Judith Stemper, RN (Burkert Brist, Monica)

02/21/2008

62 REPLY BRIEF in Support filed by Jess M Gonzalez, Lori A Amend, Tonya R Alexander−Krings, Kevin L Batterman, Kevin D Jones, Barbara E Sweeney, Helene Nelson, Anne Boyle, Lynda Schwandt, Deanne Schaub, Ana Boatwright, Holly Meier, Rose Kleman, Steven Meress, MD, Julia Reschke, MD, James Doyle, Matthew Frank, James Greer, David Burnett, MD, Kevin Kallas, MD, Donald Hands, PhD, Patrick A Tienor, RN, Judith Stemper, RN re 36 MOTION to Dismiss Counts Six and Nine of Plaintiffs' Amended Complaint and for Dismissal of All Counts as to Defendants Doyle, Nelson and Frank. (Burkert Brist, Monica)

02/21/2008

63 CERTIFICATE OF SERVICE by Jess M Gonzalez, Lori A Amend, Tonya R Alexander−Krings, Kevin L Batterman, Kevin D Jones, Barbara E Sweeney, Helene Nelson, Anne Boyle, Lynda Schwandt, Deanne Schaub, Ana Boatwright, Holly Meier, Rose Kleman, Steven Meress, MD, Julia Reschke, MD, James Doyle, Matthew Frank, James Greer, David Burnett, MD, Kevin Kallas, MD, Donald Hands, PhD, Patrick A Tienor, RN, Judith Stemper, RN (Burkert Brist, Monica)

02/21/2008

MARGIN ORDER approving 60 MOTION to Withdraw Motion for a Protective Order Disallowing Certain Discovery Related to Inmate Mortality Review Records. Signed by Chief Judge Rudolph T Randa on February 21, 2008. (cc: all counsel)(Koll, J)

Case: 2:07-cv-376 As of: 12/06/2013 12:06 AM CST 13 of 23

03/07/2008 03/28/2008 03/28/2008 03/28/2008 03/28/2008 03/28/2008 03/31/2008 03/31/2008 04/10/2008 04/11/2008
04/18/2008 04/25/2008 04/25/2008 04/25/2008 04/28/2008 05/02/2008
05/05/2008 05/06/2008 05/08/2008

64 First MOTION to Compel by The Estate of Angela Enoch, Ashley Enoch, Amber Enoch. (Attachments: # 1 Affidavit of James J. Gende, II, # 2 Exhibit to Affidavit of James J. Gende, II, # 3 Certificate of Service)(Gende, James)
65 MOTION to Stay Discovery by Tonya R Alexander−Krings. (Burkert Brist, Monica)
66 BRIEF in Opposition filed by Tonya R Alexander−Krings re 64 First MOTION to Compel, [AND IN SUPPORT OF] 65 MOTION to Stay Discovery. (Burkert Brist, Monica) Modified on 3/31/2008 (vlh).
67 MOTION to Seal Affidavit of Monica Burkert−Brist and Exhibits ABand to submit Exhibit B for In Camera Inspection Only by Tonya R Alexander−Krings. (Burkert Brist, Monica)
68 PROPOSED Order to Seal Affidavit of Monica Burkert−Brist and its Exhibits ABand to View Exhibit B In Camera Inspection Only filed by Tonya R Alexander−Krings. (Burkert Brist, Monica)
69 CERTIFICATE OF SERVICE by Tonya R Alexander−Krings (Burkert Brist, Monica)
70 Docket Annotation − E−mail regarding brief at no. 66. (vlh)
71 Document sealed as to Tonya R Alexander−Krings. (vlh) Document unsealed on 1/5/12 per order. Modified on 1/5/2012 (kmm). (Entered: 04/01/2008)
72 ORDER signed by Chief Judge Rudolph T Randa on April 10, 2008 granting 67 Motion to Seal. (cc: all counsel) (Koll, J)
73 BRIEF in Support filed by all plaintiffs re 64 First MOTION to Compel. (Attachments: # 1 Affidavit Second Affidavit of James J. Gende, # 2 Exhibit Exhibit to Second Affidavit of James J. Gende, # 3 Certificate of Service Brief in Support of Plaintiffs' Motion to Compel)(Gende, James)
74 BRIEF in Opposition filed by all plaintiffs re 65 MOTION to Stay Discovery. (Attachments: # 1 Certificate of Service)(Gende, James)
75 STIPULATION of Counsel to Stay Further Briefing and Decision on Plaintiffs Motion to Compel and Defendants Motion for Protective Order by all parties. (Attachments: # 1 Letter)(Gende, James)
76 PROPOSED filed by all parties. (Attachments: # 1 Certificate of Service)(Gende, James)
77 Docket Annotation − E−mail regarding proposed order at docket entry 76 (vlh)
78 ORDER REFERRING CASE to Magistrate Judge Aaron E Goodstein for mediation. Signed by Chief Judge Rudolph T Randa on April 28, 2008. (cc: all counsel)(Koll, J)
79 ORDER REGARDING SETTLEMENT PROCEEDINGS signed by Magistrate Judge Aaron E Goodstein on 5/2/2008. Settlement Conference set for 6/3/2008 at 9:30 AM in Courtroom 254 before Magistrate Judge Aaron E Goodstein. SEE Order for all deadlines and instructions. (cc: all counsel)(Goodstein, A.)
80 MOTION for Discovery Notice of Motion and Rule 7.4 Expedited Non−Dispositive Motion Requesting Leave to Depose an Incarcerated Person by all defendants. (Attachments: # 1 Certificate of Service)(Burkert Brist, Monica)
81 First MOTION to Appoint Counsel for minors by Amber Enoch. (Attachments: # 1 Certificate of Service)(Gende, James)
82 First MOTION for Leave to File Amended Answer to Amended Complaint (Rule 7.4 Expedited Non−Dispositive Motion) by all defendants. (Attachments: # 1 Exhibit A [Proposed Amended Answer to Amended Complaint], # 2 [Incorrect Attachment] Certificate of Service)(Burkert Brist, Monica) Modified on 5/8/2008 (vlh). (Additional attachment(s) added on 5/8/2008: # 3 Rule 7.4 Motion for Leave to Amend) (vlh).

Case: 2:07-cv-376 As of: 12/06/2013 12:06 AM CST 14 of 23

05/09/2008 05/13/2008 05/13/2008 05/13/2008 05/13/2008 05/13/2008 05/14/2008 05/14/2008
05/14/2008 05/16/2008 05/22/2008 05/22/2008
05/22/2008
05/28/2008
05/29/2008

Docket Annotation − Please note correction made to docket entry 82. (vlh)
83 RESPONSE to Motion filed by all plaintiffs re 82 First MOTION for Leave to File Amended Answer to Amended Complaint (Rule 7.4 Expedited Non−Dispositive Motion)First MOTION for Leave to File Amended Answer to Amended Complaint (Rule 7.4 Expedited Non−Dispositive Motion). (Gende, James)
84 AFFIDAVIT of James J. Gende In opposition to defendants' motion for leave to file amended answer. (Gende, James)
85 CERTIFICATE OF SERVICE by all plaintiffs Plaintiffs' Opposition to Defendandants' Request for Leave to Amend Pleading, Affid. of James J. Gende II in Opposition to Amend Pleadings (Gende, James)
86 Amended AFFIDAVIT of James J. Gende Opposing Amendments to Pleadings. (Gende, James)
87 Second Amended AFFIDAVIT of James J. Gende opposing amendments to pleadings. (Gende, James)
88 MOTION for Leave to File Reply In Support of Defendants' Rule 7.4 Expedited Non−Dispositive Motion for Leave to Amend Defendants' Answer by all defendants. (Burkert Brist, Monica)
89 REPLY BRIEF in Support filed by all defendants re 82 First MOTION for Leave to File Amended Answer to Amended Complaint (Rule 7.4 Expedited Non−Dispositive Motion)First MOTION for Leave to File Amended Answer to Amended Complaint (Rule 7.4 Expedited Non−Dispositive Motion), 88 MOTION for Leave to File Reply In Support of Defendants' Rule 7.4 Expedited Non−Dispositive Motion for Leave to Amend Defendants' Answer. (Burkert Brist, Monica)
90 CERTIFICATE OF SERVICE by all defendants Regarding Documents 88 and 89 (Burkert Brist, Monica)
MARGIN ORDER approving 88 MOTION for Leave to File Reply In Support of Defendants' Rule 7.4 Expedited Non−Dispositive Motion for Leave to Amend Defendants' Answer. Signed by Chief Judge Rudolph T Randa on May 15, 2008. (cc: all counsel)(Koll, J)
91 ORDER signed by Chief Judge Rudolph T Randa on May 22, 2008 granting 81 Motion to Appoint Guardian Ad Litem. The plaintiffs should submit the names of appropriate guardian ad litems for the Court's approval (cc: all counsel) (Koll, J) (Entered: 05/27/2008)
92 ORDER signed by Chief Judge Rudolph T Randa on May 22, 2008 granting 80 Motion for leave to depose an incarcerated person; granting 82 Motion for Leave to Amend; the Clerk of Court is directed to detach and file the defendants proposed amended answer [D. 82−3]; Defendants motion for leave to file a reply brief in support of its motion for leave to amend [D. 88] is GRANTED. (cc: all counsel) (Koll, J) (Entered: 05/27/2008)
93 AMENDED ANSWER by Jess M Gonzalez, Lori A Amend, Tonya R Alexander−Krings, Kevin L Batterman, Kevin D Jones, Barbara E Sweeney, Anne Boyle, Lynda Schwandt, Deanne Schaub, Ana Boatwright, Holly Meier, Rose Kleman, Steven Meress, MD, Julia Reschke, MD, James Greer, David Burnett, MD, Kevin Kallas, MD, Donald Hands, PhD, Patrick A Tienor, RN, &Judith Stemper, RN to 30 Amended Complaint (vlh) (Entered: 05/28/2008)
NOTICE of Hearing: (cc: all counsel) Telephone Conference set for 5/30/2008 at 2:00 PM before Magistrate Judge Aaron E Goodstein to discuss possible adjournment of 6/3 settlement conference in view of appointment of guardian ad litem. The court will initiate the call. Participating counsel shall notify chambers of a direct dial number for the telephone conference by 5/29.(Quinn, C. Deputy Clerk)
94 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Settlement Scheduling Conference held on 5/29/2008; settlement conference continued to 6/19/08 at 9:30am (vkb)

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05/29/2008 05/29/2008
05/30/2008 05/30/2008 06/04/2008 06/04/2008
06/04/2008
06/04/2008 06/10/2008 06/10/2008 06/10/2008 06/11/2008
06/11/2008 06/11/2008
06/11/2008 06/11/2008 06/12/2008 06/12/2008 06/12/2008
06/12/2008 06/16/2008

Reset Hearings: Settlement Conference set for 6/19/2008 at 9:30 AM before Magistrate Judge Aaron E Goodstein (vkb)
95 NOTICE RESCHEDULING HEARING: The Settlement Conference is adjourned to June 19, 2008, at 9:30 A.M. in view of Chief Judge Randa's Order granting appointment of guardian ad litem for mediation. (Quinn, C., Deputy Clerk)
96 MOTION for Extension of Time to Conduct Additional Discovery by all plaintiffs. (Gende, James)
97 CERTIFICATE OF SERVICE by all plaintiffs Motion to Extend Discovery (Gende, James)
98 RESPONSE to Motion filed by all defendants re 96 MOTION for Extension of Time to Conduct Additional Discovery. (Burkert Brist, Monica)
99 MOTION to Stay Non−Stipulated Discovery and the Dispositive Motion Deadline Pending Resolution by the Court of Plaintiffs' Pending Discovery Motion by all defendants. (Burkert Brist, Monica)
100 AFFIDAVIT of Monica Burkert−Brist RE: Motion to Stay Discovery and the Dispositive Motion Deadline and in Response to Plaintiffs' Pending Discovery Motion. (Burkert Brist, Monica)
101 CERTIFICATE OF SERVICE by all defendants for Documents 98, 99 &100 (Burkert Brist, Monica)
102 PETITION for Guardian Ad Litem filed by The Estate of Angela Enoch, Ashley Enoch, Amber Enoch.(Gende, James)
103 NOTICE by all plaintiffs Consent of Guardian Ad Litem (Attachments: # 1 Certificate of Service Petition and Consent of Guardian Ad Litem)(Gende, James)
104 NOTICE by all plaintiffs of Amended Consent to Appoint GAL (Gende, James)
105 ORDER granting petition to appoint guardian ad litem. Nathaniel Cade, Jr. is hereby appointed guardian ad litem for Amber and Ashley Enoch to manage the resolution of their claims. Signed by Chief Judge Rudolph T Randa on June 11, 2008. (cc: all counsel)(Koll, J)
Copy of Order, 105 sent via U.S. Mail to Nathaniel Cade, Jr. (Koll, J)
NOTICE TO GUARDIAN AD LITEM of Hearing: (cc: all counsel) Settlement Conference set for 6/19/2008 at 9:30 AM in Courtroom 254 before Magistrate Judge Aaron E Goodstein. The presence of the Guardian ad litem for the minor parties shall be required for mediation. (Quinn, C., Deputy Clerk)
106 First MOTION for Leave to File Amended Complaint by all plaintiffs. (Gende, James)
107 CERTIFICATE OF SERVICE by all plaintiffs Rule 7.4 Expidited Non−Dispositive Motion for Leave to File Amended Complaint (Gende, James)
108 LETTER from Attorney Mark A. Neuser on behalf of Attorney Monica Burkert−Brist. (Attachments: # 1 Certificate of Service)(Neuser, Mark)
109 LETTER from Plaintiffs in Response to Defendants' Letter Request for Expedited Ruling on Discovery Motions. (Gende, James)
110 CERTIFICATE OF SERVICE by all plaintiffs Responsive Letter to the Defendants' Letter Request For Expedited Ruling on Discovery Motions (Gende, James)
111 DECISION AND ORDER signed by Chief Judge Rudolph T Randa on 6/12/08 granting 99 Motion to Stay. (cc: all counsel) (cef) (Entered: 06/13/2008)
NOTICE ADJOURNING SETTLEMENT CONFERENCE: (cc: all counsel) At the request of counsel for the minor parties, the Settlement Conference presently set for 6/19/2008 at 9:30 AM in Courtroom 254 before Magistrate Judge Aaron E Goodstein is ADJOURNED to a date to be determined by the court and the parties.

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06/16/2008 06/17/2008
06/17/2008 06/18/2008 06/19/2008
06/25/2008 06/25/2008 06/25/2008 06/25/2008 07/01/2008 07/16/2008 07/16/2008 07/18/2008 07/18/2008 07/18/2008 07/18/2008 07/18/2008 07/18/2008 07/18/2008

(Quinn, C., Deputy Clerk)
112 RESPONSE to Motion filed by all defendants re 106 First MOTION for Leave to File Amended Complaint. (Attachments: # 1 Certificate of Service)(Burkert Brist, Monica)
113 DECISION AND ORDER signed by Chief Judge Rudolph T Randa on 6/17/08 DENYING 96 Motion for Extension of Time; DENYING 106 Motion for Leave to File. The stay of the current dispositive motion deadline 111 is LIFTED. The dispositive motion deadline is re−set to July 18, 2008. All other deadlines and scheduled dates remain in effect. (cc: all counsel) (cef)
Set/Reset Deadlines: Motions due by 7/18/2008 (cef)
114 REPLY BRIEF in Support filed by Tonya R Alexander−Krings re 65 MOTION to Stay Discovery. (Attachments: # 1 Certificate of Service)(Burkert Brist, Monica)
NOTICE RESCHEDULING Hearing: (cc: all counsel) Settlement Conference rescheduled for 7/30/2008 at 9:30 AM in Courtroom 254 before Magistrate Judge Aaron E Goodstein. The parties' submittals have been received by the court. All other provisions of the court's Order Regarding Settlement Proceedings [Docket No.79] remain in effect. Additionally, the Guardian ad litem for the minor parties, and the personal representative for the Estate shall appear in person for the mediation.(Quinn, C., Deputy Clerk)
115 LETTER from Attorney Mark A. Neuser re: Requesting to be added as co−counsel for defendants. (Attachments: # 1 Certificate of Service)(Neuser, Mark)
116 MOTION to Dismiss Plaintiffs Ashley Enoch and Amber Enoch's Claims for Loss of Society and Companionship Pursuant to Fed R Civ P 12(C) by all defendants. (Neuser, Mark)
117 BRIEF in Support filed by all defendants re 116 MOTION to Dismiss Plaintiffs Ashley Enoch and Amber Enoch's Claims for Loss of Society and Companionship Pursuant to Fed R Civ P 12(C). (Neuser, Mark)
118 CERTIFICATE OF SERVICE by all defendants re: Document No: 116 &117 (Neuser, Mark)
119 ORDER signed by Chief Judge Rudolph T Randa on July 1, 2008 granting 36 Motion to Dismiss; denying 64 Motion to Compel; granting 65 Motion to Stay. (cc: all counsel) (Koll, J) (Entered: 07/02/2008)
120 BRIEF in Opposition filed by all plaintiffs re 116 MOTION to Dismiss Plaintiffs Ashley Enoch and Amber Enoch's Claims for Loss of Society and Companionship Pursuant to Fed R Civ P 12(C). (Gende, James)
121 CERTIFICATE OF SERVICE by all plaintiffs of Brief in opposition to defendants' motion to dismiss loss of society and companionship claims (Gende, James)
122 LETTER from Nathaniel Cade, Jr.. (Cade, Nathaniel)
123 MOTION for Leave to File Exceed Page Limit by all defendants. (Burkert Brist, Monica)
124 MOTION for Summary Judgment by all defendants. (Burkert Brist, Monica)
125 BRIEF in Support filed by all defendants re 124 MOTION for Summary Judgment. (Burkert Brist, Monica)
126 Proposed Findings of Fact by all defendants (Burkert Brist, Monica)
127 AFFIDAVIT of Betty Kruse. (Attachments: # 1 Exhibit A &B)(Burkert Brist, Monica)
128 AFFIDAVIT of Holly Meier. (Attachments: # 1 Exhibit C − E)(Burkert Brist, Monica)

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07/18/2008 07/18/2008 07/18/2008 07/18/2008
07/18/2008 07/23/2008
07/23/2008 07/23/2008 07/23/2008 07/23/2008 07/24/2008 07/29/2008 07/29/2008 07/29/2008
07/29/2008 07/29/2008 07/29/2008
07/30/2008 07/30/2008

129 AFFIDAVIT of Julia Reschke. (Attachments: # 1 Exhibit F)(Burkert Brist, Monica)
130 AFFIDAVIT of Deanne Schaub. (Attachments: # 1 Exhibit G−R, # 2 Exhibit S part 1, # 3 Exhibit S part 2, # 4 Exhibit S part 3)(Burkert Brist, Monica)
131 AFFIDAVIT of Monica Burkert−Brist. (Attachments: # 1 Exhibit T−V, # 2 Exhibit W, # 3 Exhibit X 1Brist, Monica)
132 ATTACHMENTS Exhibits Y − II and remaining Exhibits to Affidavit of Monica Burkert−Brist by all defendants re 131 Affidavit. (Attachments: # 1 Exhibit JJ−MM, # 2 Exhibit NN − PP, # 3 Exhibit X 3a, # 4 Exhibit X 3b, # 5 Exhibit X 4−6, # 6 Exhibit X 7−9, # 7 Exhibit X 10, # 8 Exhibit X 11, # 9 Exhibit QQ, # 10 Exhibit RR−SS, # 11 Exhibit TT−UU, # 12 Exhibit V V)(Burkert Brist, Monica)
133 CERTIFICATE OF SERVICE by all defendants re: Documents 122−132 (Burkert Brist, Monica)
134 REPLY BRIEF in Support filed by all defendants re 116 MOTION to Dismiss Plaintiffs Ashley Enoch and Amber Enoch's Claims for Loss of Society and Companionship Pursuant to Fed R Civ P 12(C). (Attachments: # 1 Certificate of Service)(Neuser, Mark)
135 MOTION for Extension of Time to file Response to Summary Judgment by all plaintiffs. (Gende, James)
136 NOTICE by all plaintiffs of Motion to Extend Time to Respond to Summary Judgment (Gende, James)
137 AFFIDAVIT of James J. Gende in Support of Plaintiffs' Motion to Extend Time to Respond to Summary Judgment. (Gende, James)
138 CERTIFICATE OF SERVICE by all plaintiffs of Motion and Notice of Motion to Extend Time to Respond to Summary Judgment, and the Affidavit of James J. Gende in Support Thereof. (Gende, James)
139 RESPONSE to Motion filed by all defendants re 135 MOTION for Extension of Time to file Response to Summary Judgment. (Attachments: # 1 Certificate of Service)(Neuser, Mark)
140 MOTION to Strike Undisclosed Evidence by all plaintiffs. (Gende, James)
141 BRIEF in Support filed by all plaintiffs re 140 MOTION to Strike Undisclosed Evidence. (Gende, James)
142 AFFIDAVIT of James J Gende II In Support of Plaintiff's Motion to Strike and Bar Undisclosed Evidence. (Attachments: # 1 Exhibit to Affidavit of James J. Gende II In Support of Plaintiff's Motion to Strike and Bar Undisclosed Evidence)(Gende, James)
143 CERTIFICATE OF SERVICE by all plaintiffs of Affidavit of James J. Gende II In Support of Plaintiff's Motion to Strike and Bar Undisclosed Evidence with exhibits (Gende, James)
144 MOTION for Leave to File Excess Pages by all plaintiffs. (Attachments: # 1 Certificate of Service for Extention of Page Limits)(Gende, James)
145 REPLY BRIEF in Support filed by all plaintiffs re 135 MOTION for Extension of Time to file Response to Summary Judgment. (Attachments: # 1 Affidavit of James J. Gende II In Support of Plaintiffs 56f Motion, # 2 Certificate of Service)(Gende, James)
146 Supplemental AFFIDAVIT of James J. Gende in Support of Plaintiffs Motion to Strike and Bar Undisclosed Evidence. (Gende, James)
147 CERTIFICATE OF SERVICE by all plaintiffs of supplemental affidavit of James Gende in support of Plaintiffs Motion to Strike Undisclosed Evidence (Gende, James)

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07/30/2008
07/31/2008 08/01/2008 08/01/2008
08/01/2008 08/01/2008 08/01/2008 08/01/2008 08/01/2008 08/04/2008 08/04/2008 08/04/2008 08/04/2008 08/04/2008 08/05/2008 08/05/2008 08/05/2008 08/05/2008 08/06/2008

148 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Settlement Conference held on 7/30/2008; parties agreed to adjourn conference with discussions still open; Judge Goodstein will continue to facilitate discussions for a brief period of time; if matter is not fully resolved the file will be returned to Judge Randa (vkb) (Entered: 08/01/2008)
155 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Settlement Conference held on 7/31/2008; parties continue settlement discussions (vkb) (Entered: 08/01/2008)
149 MOTION for Sanctions Pursuant to Rule 26(g) by all plaintiffs. (Attachments: # 1 Affidavit of James J. Gende II in Support of Motion to Deem Admitted Plaintiffs' Requests for Admissions)(Gende, James)
150 CERTIFICATE OF SERVICE by all plaintiffs Plaintiffs' Motion and Brief in Support Thereof to Deem Admitted Plaintiffs' Requests for Admissions Directed to Defendant Tonya Alexander−Krings, and Affidavit of James J. Gende II in support thereof with attached exhibits (Gende, James)
151 Second MOTION to Compel by all plaintiffs. (Attachments: # 1 Affidavit of James J. Gende II in support of Plaintiffs' Second Motion to Compel)(Gende, James)
152 CERTIFICATE OF SERVICE by all plaintiffs Second Motion to Compel and Affidavit of James J. Gende II in Support Thereof, with Attachments (Gende, James)
153 ORDER RETURNING CASE signed by Magistrate Judge Aaron E Goodstein on 8/1/2008. Case no longer referred. (cc: all counsel)(Goodstein, A.)
154 BRIEF in Opposition filed by all defendants re 144 MOTION for Leave to File Excess Pages. (Attachments: # 1 Certificate of Service)(Neuser, Mark)
156 Minute Entry for proceedings held before Magistrate Judge Aaron E Goodstein: Settlement Conference held on 8/1/2008; parties not able to settle; case returned to Judge Randa for further proceedings (vkb)
157 LETTER from Attorney Nathaniel Cade, Jr. as guardian ad litem. (Cade, Nathaniel) (Additional attachment(s) added on 8/6/2008: # 1 Redacted Letter) (vlh).
158 ORDER signed by Chief Judge Rudolph T Randa on August 4, 2008 granting 123 Motion for Leave to File; granting 135 Motion for Extension of Time; granting 144 Motion for Leave to File Excess Pages. (cc: all counsel) (Koll, J)
159 LETTER from AAG Monica Burkert−Brist. (Burkert Brist, Monica)
160 7.4 MOTION to Strike THE ENCLOSURES TO THE AUGUST 4, 2008 LETTER FROM ATTORNEY NATHANIEL CADE, JR. TO THE COURT [DKT. # 157, p. 3−10] by all defendants. (Burkert Brist, Monica)
161 CERTIFICATE OF SERVICE by all defendants re: Documents 159 and 160 (Burkert Brist, Monica)
162 RESPONSE to Motion filed by Nathaniel Cade, Jr as Guardian Ad Litem [to 160 Motion to Strike] (Cade, Nathaniel) Modified on 8/5/2008 (vlh).
163 CERTIFICATE OF SERVICE by Nathaniel Cade, Jr (Cade, Nathaniel)
164 BRIEF in Opposition filed by all plaintiffs to 160 Defendants Motion to Strike. (Gende, James) Modified on 8/5/2008 (vlh).
165 CERTIFICATE OF SERVICE by all plaintiffs of Plaintiffs Memorandum in Opposition to Defendant's Motion to Strike (Gende, James)
166 ORDER that the GAL's motion for an immediate hearing and to stay the offer of judgment [D. 157] is DENIED; granting 160 Motion to Strike. The Clerk of Court is directed to strike pages 3−10 in Docket No. 157. Signed by Chief Judge Randa on August 6, 2008. (cc: all counsel) (Koll, J)

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08/12/2008 08/12/2008 08/12/2008
08/22/2008 08/22/2008
08/22/2008 08/23/2008 08/23/2008 08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/26/2008
08/26/2008 08/26/2008 08/26/2008

167 MOTION for Judgment by all plaintiffs. (Attachments: # 1 Affidavit of James J. Gende in support of Plaintiffs' Motion for Entry of Judgment)(Gende, James)
168 CERTIFICATE OF SERVICE by all plaintiffs of Plaintiffs' Notice of Motion and Motion for Entry of Judgment; and Affidavit of James J. Gende II in support of Plaintiffs' Motion for Entry of Judgment (Gende, James)
169 JUDGMENT signed by Deputy Clerk on 08/12/2008 in favor of The Estate of Angela Enoch, Amber Enoch, Ashley Enoch against Ana Boatwright, Anne Boyle, Barbara E Sweeney, David Burnett, MD, Deanne Schaub, Donald Hands, PhD, Holly Meier, James Greer, Jess M Gonzalez, Judith Stemper, RN, Julia Reschke, MD, Kevin Kallas, MD, Kevin D Jones, Kevin L Batterman, Lori A Amend, Lynda Schwandt, Patrick A Tienor, RN, Rose Kleman, Steven Meress, MD, Tonya R Alexander−Krings. Granting 167 MOTION for Judgment filed by Ashley Enoch, The Estate of Angela Enoch, Amber Enoch. Motions terminated: 149 MOTION for Sanctions Pursuant to Rule 26(g), 151 Second MOTION to Compel, 140 MOTION to Strike Undisclosed Evidence, 124 MOTION for Summary Judgment, 116 MOTION to Dismiss Plaintiffs Ashley Enoch and Amber Enoch's Claims for Loss of Society and Companionship Pursuant to Fed R Civ P 12(C). This action is hereby DISMISSED. (cc: all counsel)(Koll, J)
170 MOTION Rule 7.4 Expedited Non−Dispositive Motion for Stay of Enforcement of Judgment Pursuant to Fed. R. Civ. P. 62 Pending the Resolution of Any Motion by Plaintiffs for Attorney Fees and Costs by all defendants. (Neuser, Mark)
171 AFFIDAVIT of Mark A. Neuser in Support of Defendants' Rule 7.4 Expedited Non−Dispositive Motion for Stay of Enforcement of Judgment Pursuant to Fed. R. Civ. P. 62 Pending the Resolution of Any Motion by Plaintiffs for Attorney Fees and Costs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Neuser, Mark)
172 CERTIFICATE OF SERVICE by all defendants (Neuser, Mark)
173 MOTION to Strike by Nathaniel Cade, Jr. (Cade, Nathaniel)
174 DECLARATION of Nathaniel Cade, Jr. as Guardian Ad Litem. (Attachments: # 1 Exhibit 1)(Cade, Nathaniel)
175 MOTION to Withdraw Motion Documents 170 &171 by all defendants. (Burkert Brist, Monica)
176 7.4 MOTION to Stay Enforcement of Judgment Pursuant to Fed R Civ P 62 Pending Resolution of any Motion by Plaintiffs for Attorney Fees &Costs by all defendants. (Burkert Brist, Monica)
177 AFFIDAVIT of Monica Burkert−Brist in Support of Rule 7.4 Motion to Stay. (Attachments: # 1 Exhibit A − E)(Burkert Brist, Monica)
178 CERTIFICATE OF SERVICE by all defendants re: Documents 175, 176, 177 (Burkert Brist, Monica)
MARGIN ORDER approving 175 MOTION to Withdraw Documents 170 &171; finding as moot: 173 MOTION to Strike filed by Nathaniel Cade, Jr.; terminating 170 MOTION Rule 7.4 Expedited Non−Dispositive Motion for Stay of Enforcement of Judgment Pursuant to Fed. R. Civ. P. 62 Pending the Resolution of Any Motion by Plaintiffs for Attorney Fees and Costs. Signed by Chief Judge Rudolph T Randa on 08/26/08. (cc: all counsel)(Koll, J)
179 MOTION for Attorney Fees and Costs by all plaintiffs. (Gende, James)
180 AFFIDAVIT of James J. Gende II in Support of Plaintiffs' Motion for Fees and Costs. (Attachments: # 1 Exhibit A to Attorney Gende's Affidavit, # 2 Exhibit B to Attorney James J. Gende's Affidavit, # 3 Exhibit C+D to Affidavit of James J. Gende II.)(Gende, James)
181 AFFIDAVIT of Christopher P. Katers in Support of Plaintiffs' Motion for Fees and Costs. (Gende, James)

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08/26/2008 08/26/2008 08/26/2008 08/26/2008 08/26/2008
08/28/2008 08/28/2008 09/05/2008 09/16/2008 09/16/2008 09/16/2008 09/17/2008 09/30/2008 09/30/2008 09/30/2008 10/02/2008 11/03/2008
11/05/2008 11/05/2008 11/05/2008

182 AFFIDAVIT of Ian T. Matyjewicz in Support of Plaintiffs' Motion for Fees and Costs. (Gende, James)
183 AFFIDAVIT of Matthew R. Harding in Support of Plaintiffs' Motion for Fees and Costs. (Gende, James)
184 AFFIDAVIT of Nathaniel Cade, Jr. in Support of the Plaintiffs' Motion for Fees and Costs. (Gende, James)
185 AFFIDAVIT of Julie M. Maslowski in Support of Plaintiffs' Motion for Fees and Costs. (Gende, James)
186 CERTIFICATE OF SERVICE by all plaintiffs of Plaintiffs' Notice of Motion and Motion for Fees and Costs; Affidavit of James J. Gende II in support thereof; affidavit of Christopher P. Katers in support thereof; affidavit of Ian T. Matyjewicz in support thereof; affidavit of Matthew R. Harding in support thereof; affidavit of Nathaniel Cade, Jr. in support thereof; and affidavit of Julie M. Maslowski in support thereof. (Gende, James)
187 LETTER from James J. Gende II regarding no objection to Defendants' Motion to Stay Enforcement of Judgment. (Gende, James)
188 CERTIFICATE OF SERVICE by all plaintiffs of James J. Gende II letter regarding no objection to Defendants' Motion to Stay Enforcement of Judgment (Gende, James)
189 LETTER from Mark A. Neuser to Clerk of Court and Judge Randa. (Attachments: # 1 Certificate of Service)(Neuser, Mark)
190 OBJECTIONS by all defendants to Proposed Fees and Costs Pursuant to Accepted Rule 68 Offer of Judgment. (Burkert Brist, Monica)
191 AFFIDAVIT of Monica Burkert−Brist In Support of Objections to Plaintiff's Fee Petition. (Attachments: # 1 Exhibit A − F)(Burkert Brist, Monica)
192 CERTIFICATE OF SERVICE by all defendants RE: Documents 190 &191 (Burkert Brist, Monica)
193 Docket Annotation − E−mail regarding scanned affidavit. (vlh)
194 REPLY BRIEF in Support filed by all plaintiffs re 179 MOTION for Attorney Fees and Costs. (Gende, James)
195 CERTIFICATE OF SERVICE by all plaintiffs Motion Fees and Costs (Gende, James)
196 LETTER from Nathaniel Cade, Jr. as guardian ad litem. (Cade, Nathaniel)
197 LETTER from AAG Monica Burkert−Brist. (Attachments: # 1 Certificate of Service)(Burkert Brist, Monica)
198 ORDER signed by Chief Judge Rudolph T Randa on 11/03/2008 finding as moot 176 Motion to Stay; granting 179 Motion for Attorney Fees; Attorney Nathaniel Cade is awarded $1,500.00 in fees for work performed in his capacity as guardian ad litem for the minor plaintiffs Ashley and Amber Enoch; and Plaintiffs are awarded $100,000.00 in fees and costs. (cc: all counsel) (Koll, J) (Entered: 11/04/2008)
199 NOTICE of Appearance by James J Gende, II on behalf of all plaintiffs. Attorney(s) appearing: Ian T. Matyjewicz (Gende, James) Modified on 11/5/2008 (vlh).
200 NOTICE of Appearance by James J Gende, II on behalf of all plaintiffs. Attorney(s) appearing: Christopher P. Katers (Gende, James) Modified on 11/5/2008 (vlh).
201 CERTIFICATE OF SERVICE by all plaintiffs Notices of Appearances for Ian T. Matyjewicz and Christopher P. Katers (Gende, James)

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11/05/2008

202 Docket Annotation − E−mail regarding entries at 199 and 200. (vlh)

12/02/2008

203 NOTICE OF APPEAL as to 198 Order on Motion to Stay, Order on Motion for Attorney Fees by The Estate of Angela Enoch, Ashley Enoch, Amber Enoch. Filing Fee PAID $455, receipt number 4689007849 (cc: all counsel) (jv) (Entered: 12/04/2008)

12/02/2008

204 Docketing Statement by The Estate of Angela Enoch, Ashley Enoch, Amber Enoch re 203 Notice of Appeal (cc: all counsel) (jv) (Entered: 12/04/2008)

12/02/2008

205 7th Circuit Information Sheet re: 203 Notice of Appeal (jv) (Additional attachment(s) added on 12/4/2008: # 1 Lead Attorney) (jv). (Entered: 12/04/2008)

12/02/2008

206 Attorney Cover Letter re: 203 Notice of Appeal (jv) (Entered: 12/04/2008)

12/02/2008

207 PLEASE DISREGARD Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 203 Notice of Appeal (jv) Modified on 12/4/2008 (jv). (Entered: 12/04/2008)

12/02/2008

208 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 203 Notice of Appeal (jv) (Entered: 12/04/2008)

12/04/2008

209 USCA Case Number 08−4103 re: 203 Notice of Appeal filed by Ashley Enoch, Amber Enoch, The Estate of Angela Enoch. (jv)

05/06/2009

210 Certified Record on Appeal Transmitted to US Court of Appeals record transmitted in PDF format on CD via US Mail, 1 vol in camera materials (doc#71) re 203 Notice of Appeal (cc: all counsel) (Attachments: # 1 docket sheet)(jv)

07/01/2009

211 LETTER from Monica Burkert−Brist to Jon W. Sanfilippo, Clerk of Court. (Attachments: # 1 Certificate of Service)(Burkert Brist, Monica)

07/08/2009

212 The Clerk is ORDERED to randomly reassign this matter once the mandate is received from the Seventh Circuit. Signed by Chief Judge Rudolph T Randa on 07/08/2009. (cc: all counsel)(Koll, J)

07/13/2009

213 BILL OF COSTS Proposed by The Estate of Angela Enoch, Ashley Enoch, Amber Enoch (Katers, Christopher)

07/13/2009

214 DECLARATION of Christopher P. Katers in Support of Plaintiffs' Bill of Costs. (Katers, Christopher)

07/13/2009

215 CERTIFICATE OF SERVICE by all plaintiffs of Plaintiffs−Appellants' Bill of Costs and the Declaration of Christopher P. Katers (Katers, Christopher)

07/15/2009 216 BRIEFING LETTER Electronically Transmitted to the Parties (mlm)

07/21/2009

217 USCA Mandate (certified copy) as to 203 Notice of Appeal filed by Ashley Enoch, Amber Enoch, The Estate of Angela Enoch USCA Number 08−4103.The judgment of the district court is REVERSED, with costs, and the case is REMANDEDfor a calculation of attorney fees and costs. (jv)

07/21/2009

Case Reassigned to Judge Lynn Adelman. Chief Judge Rudolph T Randa no longer assigned to the case. (jv)

07/23/2009

218 LETTER from Monica Burkert−Brist RE: Mediation. (Attachments: # 1 Certificate of Service)(Burkert Brist, Monica)

07/27/2009

219 SCHEDULING ORDER: signed by Judge Lynn Adelman on 7/27/09. Telephonic Status Conference set for 8/11/2009 10:30 AM before Judge Lynn Adelman. (cc: all counsel)(Wesolek, Marie)

07/27/2009 220 LETTER from Attorney Nathaniel Cade, Jr. as GAL. (Cade, Nathaniel)

08/11/2009

221 Minute Entry for proceedings held before Judge Lynn Adelman: Telephone Conference held on 8/11/2009; agreed to advise clients to settle remaining fees for $165,000. GAL will put remaining funds in CD for remaining minor and then drop out. (cms) (Entered: 08/12/2009)

08/18/2009

222 LETTER from James J. Gende II informing Court of Settlement on Attorneys' Fees. (Gende, James)

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08/18/2009
08/19/2009 09/23/2009
10/09/2009 01/05/2012

223 CERTIFICATE OF SERVICE by all plaintiffs of James J. Gende II letter informing Court of Settlement on Attorneys Fees. (Gende, James)
224 LETTER from parties re: settlement.(cms)
225 COSTS TAXED for Amber Enoch, Ashley Enoch, The Estate of Angela Enoch by Chief Deputy Clerk in amount $455.00 against defendants. (cc: all counsel) (cms)
Appeal Record Returned consisting of 1 In Camera re 203 Notice of Appeal (dmm)
226 ORDER signed by Judge Lynn Adelman on 1/5/12 that the documents filed as Docket #71 shall be UNSEALED. (cc: all counsel)(dm)

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 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

KRISTINE FLYNN, et aI., Plaintiffs,
v. JAMES DOYLE, 01 al.,
Defendants.

Case No. 06-C-0537

SETTLEMENT AGREEMENT

WHEREAS on May 1,2006, the Plaintiffs filed the above-captioned action alleging that: (J) Defendants' medical, mental health and dental care services at Taycheedah CorrectIOnal
Institution (Tel) violated the Eighth Amendment's prohibition on cruel and unusual punishment;
(2) Defendants' lack of inpatient mental health care capacity for female prisoners viola!ed the Equal Protection clause of the Fourteenth Amendment; and (3) Defendants failed to provide reasonable accommodations to permit prisoners with disabilities to have equivalent access to programs and services in violation of the Americans with Dlsahilities Act and the Rehahilitation Act; and
WHEREAS on March 14, 2007, the Court granted Plaintiffs' modon for class certification, certifying a class of ''all prisoners who are now or in the future will be confined at TCr' and a subclass of ''all individuals with disahUities who are now or in the future will be confined at TCJ;" and
WHEREAS the Parties have engaged in substantial discovery and litigation over plaintiffs' claims, including motions for a preliminary injunction and partial summary judgment; and
WHEREAS the Parties agree that it is in theIr mutual interest to resolve this case by agreement, rather than trial;
NOW THEREFORE, the Parties, by their Counsel, hereby agree to rhe following terms and conditions:
Definitions
"Agreement" or "Settlement Agreement" means this document and all of the tenns set forth herein or as modified pursuant to the procedures set forth below.

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"Audit Tools" are the instruments used to collect the data that are necessary to evaluate each Compliance Indicator.
"Class" or "Plaintiffs" means the class certified by the Court in its Order dated March 14, 2007 [Doc. No. 571.
"Compliance IndicatoIS" are the defined, measurable variables for which data are audited to detennine whether TCI is complying with the TCI Medical Care Standards.
"Compliance Thresholds" are the agreed-upon perc¢ntages that Compliance Indicators
must meet for determinations of compliance.
"Consultant" refers to Dr. Marc Stem, M.D., who will be retllined pursuant to Section I.A.2. of this Agreement, or any mutually-agreed upon successor selected by the Parties should Dr. Stern be unable to fulfill his duties as ConSUltant.
"Court" means the United States District Court for the Eastern District of Wisconsin.
"Date of Pinal Approval" means the date on which the Court enteIS an Order approving the Agreement pursuant to Fed. R. Civ. P. 23(e).
"Defendants" means the Parries listed as defendants in the Complaint dated May 1,2006, as modified by subsequent substitution of Parties, and the successors of those Parties.
''Defendants' Counsel" or "Counsel for Defendants" means attorneys from the Wisconsin Department of Justice. "Egregious Circumstances" is defined as systemic and gross deficiencies in staffing, facilities, equipment. or procedures such that plaintiffs are effectively denied access to adequate medicat care, or frequent examples of negligent acts that disclose a pattern of deliberately indifferent conduct by medical staff.
"Explicit Compliance Indicators" are those for which compliance can be determined by mecbanical application of mathematical formulas to data in audited records.
"Implicit Compliance Indicators" are those for which a determination of compliance requires the exercise of advanced clinical judgment.
"Initial Assessment Period" means the time between the Date of Pinal Approval and the completion of the process of developing Compliance Indicators, Audit Tools, and Compliance Thresholds (which are subject to modification pursuant to section
2
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I.A.2.a.i.2). The Initial Assessm~nt Period includes the Consultant's visit to TCI for the purpose of developing these measures, learning about TCl's health care system, and similar tasks. "Medical Care" excludes care ordered by psychologists, psychiatrists, or other mental health staff for the purpose of treating an Axis-lor Axis-IT disorder as defined in the Diagnostic and Sratlslical Manual ofMental Disorders (DSM-IV-TR). Medical care includes medication administration, medication safety, the timeliness and accuracy of medication orders, and other medication-related issues for which relief was ordered by tbe Court in its preliminary injunction entered April 24, 2009.
"Parties" means Defendants and Plaintiffs.
"Plaintiffs' Counsel" means attorneys from the National Prison Project of the American Civil Liberties Union Foundation, the ACLU of Wisconsin Foundation, and Jenner & BlOCK LLP, or any successor anorneys for the plaintiff class.
''TCI'' or ''the facility" means Ihe Taycheedah Correctional Institution in Fond du Lac, Wisconsin.
"TCI Medical Care Standards" refers to the twelve standards set forth in Appendix A.
"USDOJ Consultant" refers to Dr. Jeffery Metzner, M.D., or any successor Consultant appointed pursuant to the USDOJ MOA in Uniled Stales v. Doyle, No. 08-C-753 (B.D. Wis.).
"USDOJ MOA" refers to the Memorandum of Agreement signed in United Slates v. Doyle, No. OS-C-753 (B.D. Wis.).
"WDOC" means the Wisconsin Department of Com:ctions, including its employees and agents.
I. Medical Care
A. NCCHC Accreditation; Auditing and Duties of the Consultant
1. TCl will attain accreditation by the National Commission on Correctional Health Care (NCCHC).
2. The Parties agree that Marc Stem, M.D., M.P.H., will be jointly retained to serve as the Parties' jOintly appointed Consultant for the purpose of reviewing Medical Care pursuant to the retainer agreement attached to this Agreement as Appendix B. Neither party, nor any employee or agent of either party, shall have any supervisory authoriry over the
3
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Consul1ant's activities, reports, findings, or recommendations. Should Dr. Stern become unwilling or unable to act as consultant. the Parties will meet and confer to attempt to agree upon a replacement. Should the Parties be unable to agree on a consultant within 4S days ofDr. Stem's becoming unavailable, they Will each recommend two potential consultants, from which tbe Court will select a replacement The intention of the Parties is thaI TCI and WDOC health care staff will develop the capability to conduct quality assurance/quality improvement audits, and the Consultant will assist TCI in developing this capability. The Consultant will do the following with regard to the TCI Medical Care Standards (as set forth in Appendix A):
a. Compliance Indicators, Compliance Thresholds, and Audit Tools:
i. Within four months of the Date of Fiual Approval. the Consultant and TCI health care staff, with input from Plaintiffs' Counsel, will complete the creation of Compliance Indicators and Audit Tools, Compliance Thresholds, and the review of policies and procedures. This period may be extended by agreement of the Parties if the Consultant and Tel health care staff requite additional time to complete these tasks.
1. Duriog thIs period, the Consultant will conduct the lDitial Assessment that will include a site visit at TCL The length of the visit associated with the initial. assessment will be detennlned by the Consultant but will not exceed five days.
2. At the end of this period, Compliance Indicators and their corresponding Compliance Thresholds will be incorporated into the agreement as eoforeeable terms with the understanding that Compliance Indicators may be modified by the Consultant and TCI health care staff. with input from Plaintiffs' Counsel, to reflect operational needs of the institution. An addendum reflecting these modifications will be filed with the Court.
ii. In the event that the Parties and Consultant are unable to arrive at agreement on Compliance Indicators, Compliance Thresholds, and Audit Tools or modifications thereto. the Parties will meat and confer prior to seeking resolution in Court.
b. Site Visits by the Consultant:
i. During the first twelve months following the Date of Final Approval. the Consultant will conduct two site visits to TCI for the purpose of conducting auditing. These site visits are in addition to the Initial Assessment.
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it In the second and in any subsequent years following the Date of Final Approval, the Consultant will conduct two site visits at TCI. At the Consultant's discretion, he or she may conduct a third site visit.
iii. The Consultant will have full access to TCI (e.g., ability to speak with TCI employees, access to relevant documents, access to facilities, ability to speak confidentially with prisoners).
c. Auditing of Compliance Indictors
i. During the fIrst site visit following the Initial Assessment, the Consultant will conduct audits of ImpliCit Compliance Indicators. He or she will be presumptively responsible for conducting audits of Explicit Compliance Indicators but may, at his or her discretion, delegate this responsibility to WDOCstaff.
ii. During second and subsequent site visits following the Initial Assessment, the Consultant will have the discretion to conduct audits of Implicit and Explicit Compliance Indicators or delegate this responsibility to WDOC staff.
iii. At any point during the duration ofthe Agreement, the Consultant retains the discretion to replicate or re-do audits conducted by WDOC staff. The Consultant at his or her discretion may verify the results of audits conducted by WDOC staff to an eJttent and by means selected at his or her discretion and may do so by reviewing the same or different documents as those chosen by WDOC stafffor their own audits.
d. Reporting of Findings:
i. Following each site visit, the Consultant will prepare a draft written document reporting, at a minimum, the results of the audits conducted, his or her opinion regarding Tcrs progress toward NCCHC accreditation, any Egregious Circumstances requiring remediation, and recommendations that Tel may consider to improve the performance of its health care system. The Consultant may, at his discretion, include other matters in his report. Within 14 days of receipt, the Parties may submit written comments on the report to the Consultant. The Consultant is under no obligation to incorporate or respond to the Parties' comments.
ii. When discussing individual patients in his reports, the Consultant will use unique identifiers or take other reasonable steps to prevent the disclosure of personally identifying patient information to persons other than Plaintiffs' Counsel, Defendants' Counsel, and those employees or agents of Defendants authorized to access such information under WDOC policies in place at the time of the signing of tlris Agreement.
5
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e. The Consultant may initiate or receive ex parle conununications with either Party.
3. Defendants will pay the'Collsultant's reasonable fees and costs. _The Parties recognize that WDOC needs to be able to anticipate the costs associated with the Consultant's services. The Parties also recognize that the reasonable activities of Dr. Stern or any replacement Consultant should not be unreasonably restricted by the hourly caps set forth in the following sections.
a. The Parties have agreed that the Consultant's time will be capped as follows:
i. For the.period that covers the Consultant's Initial Assessment and development Of Audit Tools, Compliance Indicators, and Compliance Thresholds, the Consultant's billed time will not exceed 300 hours.
ii. For the two site visits following the Initial Assessment in the first year of the Agreement, the Consultant's total billed time for the two site visits (including all preparation and follow up) will not exceed 250 hours.
iii. For the second and any subsequent years, the Consultant's total time billed for conducting two site visits and all other activities under the Agreement will not exceed 200 hours.
iv. If, in the second or any subsequent years of the Agreement, the Consultant decides that be or she needs to conduct a third site visit in a given year, his or her total time billed for conducting three site visits and all other activities under the Agreement will not exceed 300 hours.
b. If the Consultant believes that additional hours are needed to complete the tasks required by the Agreement, he Or she shalllimely notify the Parties. The Parties will then meet and coofer in an attempt to reach agreement on allocation of additional hours. If they are unable to do so, the Parties will access the dispute resolution process.
B, Associate Medical Director
1. Within sU months of the Date of Final Approval, Defendants will hire a full-time physician board-certified in a primary care field (e.g., internal medicine, family medicine, etc.) to serve as Associate Medical Director. For the duration of this agreement, the Associate Medical Director will be in addition to the existing 0.5 PTE phYSician position currently allocated to TCI.
2. The Associate Medical Director will be located at Tel to provide patient care and administration of clinical care at Tel for the duration of the Agreement.
3. Duties of the Associate Medical Director will include:
6
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a. Approximately 0.7 FIE devoted to the direct care of patients at TCI;
b. For the remainder of the Associate Medical Director's time, he or she will be - responsible for overseeing and supervising the provision of all clinical care at TeL These duties may include, by way of example: development and implementation of and continuing involvement in the institution's Continuous Quality Improvement (CQ!) program; evaluation of the performance of clinical staff; provision of routine clinical guidance to clinical staff; and provision of overall leadership to the medical program at TCI.
4. Defendants will take all reasonable steps to recruit a highly-qualified candidate within the
time frame specified and shall provide montbly updates on the status of the hiring process to the Consultant.
5. After six months following the star! date of the Associate Medical Director, the Consultant may offer opinions on changing the allocation of the Associate Medical Director's time.
C. Medication Ordering and Administration
Health care staff (with the qua1ifications of an LPN or higher) will continue to administer medications to Tel patients for the duration of tbe Agreement.
D. Miscellaneous Terms Applicable to Medical ProllsioDS Only
1. Plaintiffs' Counsel may attend the Consultant's site visits. Plaintiffs' Counsel may visit Tel to meet with clients and review charts at other times, as well, upon reasonable notice. The Consultant may meet with TCl health care staff without the presence ofPlaintiffs' Counsel.
2. Upon receipt of a Consultant'S repon indicating non-compliance with Compliance Thresholds or Egregious Circumstances, the Parties will proceed as follows:
a. Step 1: The Party alleging non-compliance will notify the other Party in writing, setting forth the nature of the alleged non-compliance and the basis for that allegation.
b. Step 2: Within 30 calendar days of receiving the notice of alleged noncompliance, the Parties and the Consultant will confer to determine whether the Party is non-compliant, and. if so, attempt to agree to steps to bring the aIlegedty non-compliant Party into compliance. Should the Parties reach a resolution, they shall memorialize that resolution in a document that states, at a minimlllll, the specific actions to be taken to bring about compliance and a timetable for taking those actions. After they confer, the Parties may determlne that the allegedly noncompliant Patly is, in fact, compliant. If that is the case, no additional steps will be necessary.
7
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C. Step 3: If, after conferring among themselves. the Parties and the Consultanl are unable to resolve the noncompliance 10 their satisfaction, either Party may move the Court to enforce compliance with the terms of the Agreement (including those developed in Section I.A2) by appropriate order. In sucli proceedings. the Consultant may provide 10 the Court affidavits. testimony, and other su bmissions
regarding compliance or noncompliance.
3. The dispute-resolution mechanism set forth in D.2. above will be used for other disagreements between the Parties before relief is sought in Court. subjecl to the exception set forth in Section IV.G below. The Consultant will not be involved in the dispute-resolution process unless Ihe dispute relates to his substantive duties as Consultant.
E. Termlnation of Medical-Related Provisions
1. The Parties will move 10 dismiss wilh prejudice the medical-related claims in this action when all of the following have occurred:
a. TCI achieves NCCHC accreditation.
b. WDOC hires and continues to employ for the duration of the Agreement a fulltime Associate Medical Director primatiIy located al TCI as set forth in Section I.B. above.
c. All of the TCI Medical Care Standards are '~nactive" as sel forth below.
i. A TCI Medical Care Standard becomes '1nactive" when two of three consecutive audits show compliance with all Compliance Thresholds within that standard.
ii. Once a TCl Medical Care Standard becomes "inactive,H further audits of Compliance Indicators under that standard will not be required.
iii. The Consultant will retain the discretion to conduct further audits of Compliance Indicators for ''inactive'' standards.
iv. If noncompliance is found in an audit of one or more Compliance Indicators for a standard that is currently inactive, the noncompliant Compliance Indicator will be audited again no later than the next scheduled site visit.
v. Audiling of a noncompliant Compliance Indicator within an "inactive" standard will continue until Tel again achieves compliance with that Compliance Indicator.
d. No un-remediated Egregious Circumstances exist.
8
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e. Tel continues to use health care staff with credentials equivalent to or greater than those of LPNs to administer medications.
n. Mental Health Care
A. Access to the USDOJ Consultant for Plalntlfl's' Counsel
1. Plaintiffs' Counsel shall be permitted to communicate with Dr. Jeffery Metzner, the Consultant for the settlement with the U.S. Department of Justice in United States v.
Doyle, 08-C-7S3 (E.D. Wis.), and any successor Consultant, only as described below:
a. Plruntiffs' Counsel may, prior to eacb scbeduled visit by !be USOOJ Consultant, communicate with the USDOJ Consultant in writing regarding any matter within the scope of the USOOJ MOA, TCI Standards and TCI Action Plan, which constitute the substantive terms of the settlement of Untied States v. Doyle. Plaintiffs' Counsel will also receive the USDOJ Consultant's draft reports and bave an opportunity to comment on sucb repons prior to their finalization by the USOOJ Consultant. Plaintiffs' Counsel will also receive the USDOJ Consultant'S final reports on the results of his site visits. AU communications with the USDOJ Consultant will be copied to Defendants' Counsel and the chief legal Counsel of the Wisconsin Department of Corrections.
b. Plruntiffs' Counsel may. at any time after the Date of Final Approval, obtain and/or review forms DOC-9, OOC-3509, Individual Care Plans for release from segregation. and other documents related to the impositioo ofdiscipline on TCI prisoners with serious mental illnesses (SM]). In addition to the communication with !he USDOJ Consultant prior to scheduled visits and the opportunity to comment on the USDOJ Consultant's draft reports (discussed above), Plaintiffs' Counsel may also provide an initial, one-time report on discipline of prisoners with SMI to !he USOOJ ConSUltant. This report shall be provided to the USDOJ Consultant and Defendants' Counsel no later than 5 months after the Date of FInal Approval. The Plaintiffs may discuss this initial report with the USDOJ Consultant ex parte, at the USOOJ Consultant's discretion. Plaintiffs may comment on the USDOJ Consultant's response, if any, to the report in writing. copied to the Defendants.
B. Access to TCI by Plaintiffs' Counsel
Plaintiffs' Couns~l may, upon reasonable notice to Defendants' Counsel, enterTCI for the purpose of interviewing class members in a confidenlIal setting and reviewing class members' medical. psychological services, social services and related records. Defendants will also provide reasonable opponnnities for Plaintiffs' Counsel to communicate by telepbone with class members on a confidential phone line.
C. Construction of and Initiation of Services at TCI Annexes
9
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WDOC shall complete construction of and initiate services at planned annexes at TCI (as

set forth in Attachment B to the Memorandum of Agreement between USDO] and

WDOC in United States v. Doyle) to provide space for out-of-cell therapeutic activities

and group and individual therapy for prisoners with serious mental iUnesses no later than

June 1,2012.

•

D. Construction of and Initiation of Service. at the Wisconsin Women's Resource

Center

WDOC shall complete construction of and begin accepting plisoners from TCI who need

I

inpatient-level psychiatric services at the planned Wisconsin Women's Resource Center

no later than June I, 2012.

E. MIscellaneous Terms Applicable to Mental Health Provisions Only

I

I. With regard to this Section (Mental Health Care) only, upon a Party's aUegation that the other Party has failed to comply with the tenns of this section, the Parties will attempt to resolve the matter as follows:

a. Step I: The Party alleging non-compliance will notify the other Party in writing. setting forth the nature of the alleged non-compliance and the basis for that allegation.

b. Step 2: Within 30 calendar days ofreceiving the notice of alleged noncompliance, the Parties will confer to detennine whether the Party is noncompliant, and, if so, attempt to agree to steps to bring the allegedly noncompliant Party into compliance. Should the Parties reach a resolution, they shall
memorialize that resolution in a document that states, at a minimum, the specific actions to be taken to bring about compliance and a timetable for taking those actions. After they confer, the Parties may detemUne that the allegedly noncompliant Party is, in fact, compliant. Jf that is the case, no additional steps will
be necessary.

c. Step 3: If, after meeting and conferring, the Parties are unable to resolve the noncompliance to their satisfaction, either Party may move the Court to enforce compliance by appropriate order.

2, The provisions of this Agreement relating to Plaintiffs' Counsel's access to the USDO] Consultant will end on September 5, 2012.

3. The remainder of the mental health-related provisions of this Agreement will continue until the later of (I) September 5,2012 or (2) when both oftha following occur:

a. Defendants complete construction of and open the TCI annexes so that they are ready to receive prisoners; and

10

Case 2:06-cv-00537-RTR Filed 08/23/10 Page 11 of 27 Document 264-1

b. Defendants complete construction of and open the Wisconsin Women's Resource Center so that it is ready to receive patients.
4, Upon compliance with all mental health-relatea terms in this Agreement, the Parties will seek dismissal with prejudice of the mental health-related claims in this action.
TIl. Access tor Prisoners with Disabilities
A. InterpreterslReaders for Prisoners with Hearing and/or Vision Impairments
1. Defendants will adopt a policy providing that prisoners with bearing disabilities will be provided with qualified sign language interpreters (who abide by the National Association of the Deaf/Regisrry of lnterpreters for the Deaf Code ofProfessional Conduct) andlor other accommodations as necessary to make available core programs and services, including medical and mental health visilS, disciplinary and grievance hearings, educational classes, tests used to assign prisoners to classes or programs, and treatment programs,
2. Defendants will adopt a policy providing that prisoners with vision disabilities will be provided with reading assistants, Braille materials, andlor other accommodations as necessary to make available core programs and services, including medical and mental health visits, disciplinary and grievance bearings, educational classes, tests used to assign prisoners to classes or programs, and treatment programs,
B. Accommodations tor Hearing Impaired PrIsoners
Prisoners with bearing impainnents shall have access to adaptive hearing devices to permit them to place and receive telephone calls with the same ability as prisoners
without hearing impairments. Prisoners using adaptive devices for telephone calls win be allowed three times the amount of time usually permitted for telephone calls. TCI sball ensure that visual alarms andlor other means of notifying deaf or bard of hearing prisoners of such things as emergencies, counts, and announcements sball be utilized. TCr shall ensure that closed captioning is available on all facility televisions for the viewing of television programs for which closed captioning is available. Accommodations may include a qualified sign language interpreter or other auxiliary aids, services, and devices.
C. Clarification of ADA Accommodation Request Policy
Consistent with DAI Policy & Procedure # 300.()(),35 (part IIL effective March 26, 2010). the ADAcoordinator shall forward any requests for accommodation to tbe appropriate staff with the authority to grant or deny the accommodation. Defendants will provide Plaintiffs' Counsel with a copy of DOC Fonn 2530. Plaintiffs' Counsel may comment on tbe form and Defendants may act on any comments at their complete discretion.
D. Access to Disability-Related Prisoner Grievances
Counsel for Plaintiffs may, upon request, obtain and review disability-related grievances.
Il
Case 2:06-cv-00537-RTR Filed 08/23/10 Page 12 of 27 Document 264-1

E. Safety of Facility Paths
TCI shall maintain paths, walkways, and thoroughfares between buildings in a state of repair sufficient to ensure access to core programs and services for prisoners with mobility disabilities. Obstructions or impediments in paths that pose safety hazards to
prisoners with mobility impairments will be clearly marked with a sign stating. in substance: "CAUTION: Wheelchair Users Should Use Other RODte." The sign will be
made of a durable material. TCI sball provide position descriptions and training for wheelchair pushers (or mobility assistants) emphasizing safety. and training shall be documented.
F. Access to Dining Hall for Mobility-Impaired PrIsoners
Prisoners with mobility disabilities sbali be permitted to eat in the dining halJ at the same time as the:ir non·disabled peers. Defendants represent that, currently, nondjsabled prisoners m~y not elect whether or not to eat in the dining han, because kitchen staff needs to be able to predict the number of prisoners who will eat in the dining ball. In reliance and understanding of these representations, prisoners with mobility disabilities may be required to make a prospective commitment to eating in Ibe dining hall of no more than three months.
G. Discipline of Prisoners with Hearing I>IsablHtles.
Defendants shali adhere to DAr Policy & Procedure # 300.00.35 (effective date March 26,2010), sections II.B. (determining whether disability prevented a prisoner from following institution rules) and II.F.2. (ensuring that the institution uses visual alarms or manual means ofnotifying hearing impaired prisoners ofemergencies, counts and announcements), In disciplining prisoners wilb hearing disabilities for the duration of this ll8I'eement. Plaintiffs' Counsel may, UpOD request, obtain documentntion of disciplinary proceedings against prisoners with hearing disabilities.
H. AvalJablUty ofACCfSBible Cells in Medium-Security Housing Units
Defendants shall conduct a review or study comparing the waiting times for cells in TCl medium security units for prisoners with disabilities with the waiting time for such cells for prisoners without disabilities to help inform decision-making about any future construction or retrofitting of cells at Tel to make them accessible to disabled prisoners. Defendants will provide the results oflhis review or study to Plaintiffs' Counsel, but Plaintiffs may not use the results of this review or study in an enforcement action or to establish further liability.
L Miscellaneous Terms Applicable to DisabIlIty Provisions Only
1. With regard to this Section (Access for Prisoners with Disabilities) only, upon a Party's allegation that the other Party has failed to comply with Ibe teons of Ibis section, the Parties will attempt to resolve the matter as follows:
12
Case 2:06-cv-00537-RTR Filed 08/23/10 Page 13 of 27 Document 264-1

a Step J: The Party aUeging non-compliance will notify the other Party in writing, setting forth the nature of the alleged non-compliance and the basis for that allegation.
b. Step 2: Within 30 calendar days of receiving the notice of alleged noncompliance, the Parties will confer to determine whether the Party is noncompliant, and, if so, attempt to agree to steps to bring the allegedly noncompliant Party into compliance. Should the Parties reach a resolution, they shall
memorialize that resolution in a document that stateS, at a minimum, the specific
actions to be taken to bring about compliance and a timetable for taldng those actions. After they confer, the Parties may determine that the allegedly noncompliant Party is, in fact, compliant. Ifthat is the case, no additional steps will be necessary.
c. Step 3: If, after meeting and confening, the Parties are unable to resolve the noncompliance to their satisfaction, either Party may move the Court to enforce compliance by appropriate order.
2. The provisions of tbis Agreement relating 10 Disability Access shall teoninal. upon the tennination of the Medical and MenIal Health provisions and the Parties will seek dismissal of the Disability Access claims in this action at that time.
IV. MlsceDaneous Terms Applicable to Entire Agreement
A. The Court will retain jurisdiction over this action until the Agreement ends and all claims in the Action have been dismissed.
B. The Parties stipulate thaI the relief set forth in this Agreement is narrowly drawn, extends no further than necessary to correct violations of federal rights, and is the least intrusive means necessary to correct violations of federal rights, and the Parties shall jointly request that the Court make these findings.
C. Defendants agree not to unilaterally move to terminate or modify this agreement under 18 U.S.C. § 3626(b) until the Agreement eods according 10 its renns.
D. No termination hearing shall be required.
E. Plaintiffs will seek reasonable attorneys' rees and costs for work performed up to and through the Date of Final Approval of this Agreement. The Parties will attempt to reach an agreement regarding the amount of fees and costs after negotiations regarding the substantive terms of this Agreement have concluded. Plaintiffs will seek reasonable attorneys' fees and costs for facilitating and monitoring the implementation of this Agreement for the duration of the Agreement.
F. Plaintiffs' Counsel may send in writing to Defendants' Counsel time-sensitive concerns about the health ofindividual prisoners. Defendants' Counsel agrees to make reasonable
13
Case 2:06-cv-00537-RTR Filed 08/23/10 Page 14 of 27 Document 264-1

efforts to investigate these concerns and respond in writing to Plaintiffs' Counsel within a reasonable period of time. G. In the event of circumstances threatening to caUse immediate or irieparable harm to Ibe class or any portion of the class, Plaintiffs may seek immediate judicial relief. H. The Consultant'S reports and his fmdings shall not be admissible for any reason in any
action other than Flynn v. Doyle.
L The Parties will work together to ensure the timely preparation and filing of all motions, briefs, and documents necessary to obtain preliminary and final approval of this Agreement pursuant to applicable rules and statutes.
J. This Agreement supersedes all other agreements made between. the Parties and all preliminary orders issued during the course of this litigation regardless of form.
K. This Agreement constitutes Ibe final written expression of all of the terms of the settlement between the Parties and is a complete and exclusive statement of those terms, except that: a. The Agreemenf will be modified by incorporating the Compliance Indicators, Audit Tools, Compliance Tluesholds and related terms developed during Ibe Initial Assessment Period, defined in more detail in Section J.A.2 above; b. The Agreement may be modified at any time by a written and signed document executed by mutual agreement ofPlalntiffs' Counsel and Defendants' Counsel; c. Plaintiffs' attorneys' fccs and costs, when agreed upon, will be incoIporated as a term of this Agreement.
L. All modifications to this Agreement will be filed with the Court. M. This Agreement may be signed in counterpart originals.
Dated: ~ 1~) '2.010
14
Case 2:06-cv-00537-RTR Filed 08/23/10 Page 15 of 27 Document 264-1

Dated: :TUI\.t. l~ ~O)o
/

rDated:

1"1,10'0

2(17 East Buffalo Street, Suite 325
Milwaukee, WI 53202
Idupuis@ACLU-WI.org
NATIONAL PRISON PROJECT OF ACLU
G~ FOa~
David C. Fathi* 915 15'hStreet, N.W., 7th Floor Washington, D.C. 20005 Telephone: (202) 393-4930 geber@npp-aclu.org *Not admitted in DC; Practice limited to federal
court:
Genevieve J. Essig Ked Holleb Hotaling Robert Graham Jenner & Block 353 N. Clark Street
Chicago, n. 60654-3456
Telephone: (312) 840-7655
gessig@jenner.com

inkelmeyer Wis sin Slate Bar No. 1034147 Karla Keckbaver Wisconsin State Bar No. 1028242 Francis X. Sullivan Wisconsin State Bar No. 1030932 P.O. Box 7857
Madison, WI 53707-7857
(608) 267-2222 SullivanFX@DOJ.state.wi.us
Attorneysfor Defendants
15
Case 2:06-cv-00537-RTR Filed 08/23/10 Page 16 of 27 Document 264-1

Dated: 4~FfIW'D

WISCONSIN DEPARTMENT OF CORRECI10NS
~ ill ~-::::: ~
Chief Legal Counsel
Wisconsin Depanment of Corrections 3099 E. Washington Ave
POBox 7925
Madison, WI 53707 Phone: (608) 24(}'5049
Pax:(608)~3306
Email: kathryn.anderson@wisconsin.gov

16
Case 2:06-cv-00537-RTR Filed 08/23/10 Page 17 of 27 Document 264-1

APPENDIX A: TCI MEDICAL CARE STANDARDS
NONEMERGENCY HEALTH CARE REQUESTS AND SERVICES All inmates have the opportunity daily to request health care. Their requests are documented and reviewed for immediacy of need and the intervention required. Sick call and clinicians' clinics are conducted on a timely basis and in a clinical selting by qualified health care professionals. Patients referred to a provider from sick call are seen timely as clinically indicated. (See NCCHC Standard P-E-07)
NURSING ASSESSMENTS Nurses assessing patients utilize WDOC nursing protocols or professional judgment to determine infonnation to be collected to make an adequate assessment and an appropriate referral if indicated in accordance with DOC Policy and Procedure 300:18 ("Nursing Protocols," effective 12!8f()7) or any subsequent. substantially similar version olthat policy and procedure.
CONTINUITY OF CARE Patients receive treatment and diagnostic tests oroered by clinicians; inmates returning from offsite care receive appropriate treatment and follow-up. (See NCCHC standard P-E-12)
CHRONIC DISEASE PatienlS with chronic diseases are identified and enrolled in a chronic disease program to decrease the frequency and severity of the symptoms, prevent disease progression and complication, and foster improved function. (See NCCHC standard P-G-Ol)
EMERGENCY SERVICES The facility provides 24-hour emergen., medical services. (See NCCHC standard P-E-08)
HOSPITAL & SPECIALTY CARE Arrangements are made to provide hospitalization and specialty care to patients in need of these services. This standard intends that prisoners have access to necessary hospitalization and specialty services. Clinical need dictates the time required to receive the ordered service. (See NeCHe standard P-D-OS)
RECEIVING SCREENlNG Receiving screening is perfonned on all plisoners on arrival ... to ensure that emergent and urgent health needs are met (See NCCHC standard P-E-02)
INITIAL REALTH ASSESSMENTS Prisoners receive timely aod appropriate initial health assessments. (See NCCHC standard P-E-04)
17
Case 2:06-cv-00537-RTR Filed 08/23/10 Page 18 of 27 Document 264-1

PHARMACEUTICAL OPERATIONS Pharmaceutical operations are sufficient to meet the needs of the facility and are in accordance with legal requirements. (See NeCHC standard P-D-Ol) MEDICATION SERVICES Medication services are clinically appropriate and provided in a timely, safe, uninterrupted and sufficient manner, in accordance with WDOC Policy & Procedure 800:02 and its appendices (eff. 10/1I04). In addition, medication orders written as code 2 or routine shall be filled accurately and administered within 72 hours and any medication necessary to prevent life-threatening or serious adverse health outcomes shall be filled accurately and administered immediately or same day as clinicallY indicated by the prescribing practitioner. (See NCCHe standard P-D-02J INFIRMARY CARE Patients in need of infirmary level care, as de~ed in NCCHC Standards for Health Services In Prisons (2008) P-G-03, shall have timely and appropriate access to infirmary services. (See NCCHC standard P-G-03) CONTINUOUS QUALITY IMPROV&"\1ENT PROGRAM TCl's continuous quality improvement (CQI) program shall monitor and improve health care delivered in the facility. (See NCCHe standard P-A-06)
18
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APPENDIX B: RETAINER AGREEMENT: DR. MARC STERN, MD, MPH
Flynn, et aL v. Doyk, e/ aL, No 06·cV·0537·RTR (E.D. Wis.)
1. This Retainer confirms that Defendants and Plaintiffs (the "Parties"), through their counsel, jointly retain Dr. Marc Stern, M.D., M.P.A. ("Yon") to serve as Consultant in the civil action captioned Flynn, et al. v. Doyle, et aI., No. 06-cv·0537.RTR (B.D. Wis.) pursuant to the terms set forlb below.
2. You will perform the duties of Consultant as forth in the Settlement Agreement ("Agreement") signed by the Parties and intended to be submitted to the Court for approval pursuant to Fed. R. Civ. P. 23(e). Tbe duties of Ibe Consultant, as set forth jn Section Ioflbe
Agreement, as may be amended pursuant to the Agreement, are hereby incorporated into this
Retainer.
3. You will be compensated by Defendants at arate of $_ per hour, billable in fifteen·minute increments, for time spent in furtherance of your duties as Consultant. Compensation will be limited as set forth in Section 1.A.3. of the Settlement Agreement.
4. You will be reimbursed for reasonable costs and expenses incurred in furtherance of your
duties as Consultant. Flrst·class air travel or other extraordinary expenses will not be reimbursed without prior written approval by Defendants.
5. Should the Parties, by mutual agreement memorialized in writing, amend andlor dissolve the Agreement prior to an Order of tbe COUrt granting final approval of the Settlement, this Retainer will be nUll and void.
6. Should the Coun deny fmal approval to Ihe Agreement pursuant to any rule or statute, this Retsiner will be null and void.
7. You are not authorized to commence billable work until you receive written instructions signed by the Parties.
8. You will snbmit every _ months to the Parties an itemized invoice for time spent and expenses incurred. Defendants agree to remit payment within _ days by a means mutually agreed upon by You and Defendants andlor their counsel.
9. This Retainer constitutes the final written expression of the agreement between You and the Parties except that the terms of the Retainer may be modified from time to time by Your
19
Case 2:06-cv-00537-RTR Filed 08/23/10 Page 20 of 27 Document 264-1

written consent and the written consent of the Parties.
10 Plamriffs and their counsel are under no obligation to pay you and any recourse you have for non-payment shall be solely against Defendants.
1I. You agree to maintain the confidentiality of patient health information in accordance with the tenns of the Agreement.
12. You agree to attempt to resolve all disputes arising from this Retainer by means other than iltigation prior to seeking judicial relief.
13. TIu. Retainer will be enforced under the Jaws of the State of Wisconsin. It is the intention of the Consultant and the Parties that the jurisdiction of the Court in Flynn v. Doyle not extend to disputes arising under this retainer notwithstanding the amount in controversy.
14. If any portion of this Retainer is held to be invalid, the surviving portions shall remain In effect.
15. This Retainer may be executed in counterparts and by facsimile signatures.
16. This Retainer shall remain in full force and effect until all claims in Flynn v. Duy/e haYe been dismissed and all obligations of the Parties and Consultants bave been satisfied.

Dated: Dated:

Dr. Marc Stem, MD., M.P.H.
NATIONAL PRISON PROJECT OF ACLU FOUNDATION
Gabriel B. Eber Staff Counsel

Dated:

ACLU OF WISCONSIN FOUNDATION
Laurence J. Dupuis Legal Director
20

Case 2:06-cv-00537-RTR Filed 08/23/10 Page 21 of 27 Document 264-1

Dated: Dated:

WISCONSIN DEPARTMENT OF JUSTICE
Corey Finl<ebneyer
Assistant Attorney General
WISCONSIN DEPARTMENT OF CORRECTIONS
Kathryn R. Anderson Chief Legal Counsel

21
Case 2:06-cv-00537-RTR Filed 08/23/10 Page 22 of 27 Document 264-1

Flynn, et at. v. Doyle, et al. Addendum J to Settlement Agreement
The Parties agree to this Addendum to the Settlement Agreement pll!'suant to paragraph IV.E:

1. Defendants agree to pay Plaintiffs' coullsel the sum of nine hundred fifty thousand dolIars ($950,000) in full satisfaction of all claims for rees and costs for work done by plaintiffs' counsel through June 16.2010, in connection with this litigation. Payment shall be made witllin twenty (20) days of the Court's entry of an Order granting Final Approval to the Settlement Agreement.

2. Defendants agree to pay Plaintiffs' Counsel's reasonable expenses and fees for time

reasonably spent on tW, case from June 17,2010, througb the date of the Court's entry of an

Order granting Final Approval to the Settlement Agreement. The Parties agree that

plaintiffs shall be compensated for their time at the rate of $208.50Ihour (the current Prison Litigation Refonn Act cap). Such payment shall be in full satisfaction of all claims for rees and costs for work done by plai ntiffs' counsel in connection with this litigation from June 17,

I

2010, through tile date of the Court's entry of an Order granting Final Approval to the

Settlement Agreement.

3. Defendants agree to pay Plaintiffs' Counsel's reasonable expenses and fees for time reasonably spent on this case from the date of the Court's entry of an Order granting Final Approval to the Settlement Agreement. The Parties agree that Plaintiffs shall be compensalet! for their time at the highest rate permitted by the Prison Litigation Reform Act at the time each request for fees is submitted to Defendants.

4. Submissions for fees and costs shall be made as follows: Plaintiffs' counsel shall submit to defendants' counsel documentation of fees and costs from time-to-time. Defendants may review the documentation and, Within twenty (20) dnys of receIving such documentation, either pay the amount sought in full or provide Plaintiffs' Counsel with a written response
identifying amount, objected to as unreasonable. The Parties will attempt to resolve all disputes among themselves, with payment to be made within ten (10) days of resolution. (f the parties are unable to resolve their differences, the parties agree that the dispute shall be
submitted to the District. Court or a magistrate judge for a determination of whether and to what extent plaintiffs' counsel's claimed fees and costs are reasonable under the circumstances. The parties agree to abide by the determination oflhe District Court or magistrate judge, and defendants shall pay the amollnt determined to be reasonable within ten (to) days of the determination.

5. This Addendum may be modified at any time by a written and signed document executed by mutual agreement of Plaintiffs' counsel and Defendants' counsel. All modifications to this Addendum will be tIIet! with the COllrt.

Case 2:06-cv-00537-RTR Filed 08/23/10 Page 23 of 27 Document 264-1

6. This Addendum may be signed in counterpart originals,

Dated: ~~t Ib,l.ofD
Dated:

A~1FO~NDATION
Laurence 1, upuis State Bar No, 1029261 207 East Buffalo Stree~ Suite 325 Milwaukee, WI 53202 Idupuis@ACLU-Wlorg
NATIONAL PRISON PRO]ECf OF ACLU
~
David C. Fathi· 915 IS" Slreet, N,W" 7" Floor
Washington, D.C. 20005 Telephone: (202) 393-4930 geber@npp-aclu,org 'Not admitted in DC; Practice limited 10 federal
courts
JENNER & BLOCK
Genevieve 1, Essig Keri Holleb Hotaling Robert Graham Jenner & Block 353 N, Clark Street Chicago, IL 60654-3456 Telephone: (312) 840-7655 gessig@jenner.com
AtlOrneysfor Plaintiffs

Dated:~ /~/20JO

ekhaver Wisconsin State Bar No, lO28242
2

Case 2:06-cv-00537-RTR Filed 08/23/10 Page 24 of 27 Document 264-1

Francis X, Sullivan Wisconsin State Bar No, 1030932 P,O, Box 7857 Madison, WI 53707-7857 (608) 267-2222 SullivanFX@DOJ,state,wi.us At/omeysfor Defendants WISCONSIN DEPARTMENT OF' CORRECTIONS
K~ atnerSOn )~Je!:d. I !1.(-e)--
Chief Legal Counsel Wisconsin Department of Corrections 3099 E. Washington Ave PO Box 7925 Madison, WI 53707 Phone: (608) 240-5049 Fax: (608) 240-3306 Email: kathryn,anderson@wisconsin.gov
3
Case 2:06-cv-00537-RTR Filed 08/23/10 Page 25 of 27 Document 264-1

6. This Addendum may be signed in counterpart originals.

A~FOUNDATION

Dated: ~CI..s.r /11, 'lbe>
Oatad:

Laurence J. upuis State BarNo. 1029261 207 East Buffalo Street, Suite 325 Milwaukee. WI 53202 Idupuis@ACLU·Wl.org
NATIONAL PRISON PROJECT OF ACLU
~
David C. Fathi* 915 15th Street, N.W., 7'h Floor Washington, D.C. 2{X)()5 Telepbone: (202) 393-4930 geber@npp--8clu.org •Not admitted in DC; Practice limited to federal
courts
TJ::ta;;,s!f~
Genevieve J. Esgjg Keri HoUeh Hotaling Robort Graham Jenner & Block 353 N. Clark Street Chicago. IL 60654-3456 Telephone: (312) 840-7655 ge6sig@jenner.com
Attorneys for Plaintiffs
WISCONSIN DEPARTMENT OF IUSTICE

Corey Finkelmeyer

.

Wisconsin State BarNo. 1034147

Karla Keckhaver

Wisconsin State Bar No. 1028242

2

Case 2:06-cv-00537-RTR Filed 08/23/10 Page 26 of 27 Document 264-1

Dated:

Francis X. Sullivan Wisconsin State Bar No, 1030932 1'.0. Box 7857 Madison, WI 537fY1·7857 (608) 267·2222 SuUivanFX@DOI,state.wi.us
Attorneysjar Defendants
WISCONSIN DEPARTMENT OF CORRECTIONS
Kathryn R. Anderson Chief Legal Counsel WiscoDsin Department of COnectiODS 3099 B. Washington Ave PO Box 7925 Madison, WI 537fY1 Phone: (608) 240-5049 Fax: (608) 240·3306 Email: kailiryn,anderson@wisconsln.goY

3
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