Howard v. Schrubbe

• Decision Date: 19 March 2018
• Docket Number: Case No. 15-cv-557-pp
• Parties: JOSHUA HOWARD, Plaintiff, v. BELINDA SCHRUBBE, TODD CALLISTER, AND JOHN O'DONOVAN, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

JOSHUA HOWARD, Plaintiff, v. BELINDA SCHRUBBE, TODD CALLISTER, ANDJOHN O'DONOVAN, Defendants.

Case No. 15-cv-557-pp

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

March 19, 2018

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

(DKT. NO. 55)

The plaintiff, Joshua Howard, is a Wisconsin state prisoner. On June 10, 2016, Judge Rudolph T. Randa screened his second amended complaint under 28 U.S.C. §1915A, and allowed the plaintiff to proceed against the defendants on Eighth Amendment medical care claims related to ongoing errors in the dispensation of prescription medication at Waupun Correctional Institution (Waupun). Dkt. No. 38 at 1. Later, the case was reassigned to this court. This order addresses the defendants' motion for summary judgment.¹ Dkt. No. 55.

As explained below, the court will deny the defendants' summary judgment motion to the extent that they argue that the statute of limitations bars the plaintiff's claims against defendants Todd Callister and John O'Donovan, as well as portions of the plaintiff's claim against defendant Belinda Schrubbe. The court also will deny the defendants' motion as to the rest of the plaintiff's claim against defendant Schrubbe. Finally, the court will set a new dispositve motion deadline by which either party may file a dispositive motion as to the merits of the plaintiff's claims.

A. PLAINTIFF'S CLAIMS

The plaintiff sued three defendants: John O'Donovan, former security captain at Waupun; Todd Callister, psychiatrist at Waupun; and Belinda Schrubbe, former manager of Waupun's Health Services Unit. Dkt. No. 39 at 1; Dkt. No. 57 at ¶2-4. He alleges that corrections staff dispenses medications at Waupun, instead of professional health staff. Dkt. No. 39 at 2. He states that due to inconsistent and contradictory medication refill procedures, medication errors commonly occur at Waupun. Id. The plaintiff alleges that since 2004, he has been prescribed medication to treat depression, anxiety and insomnia; that he has experienced over eighty interruptions in the availability of his medication; and that he has filed over fifty inmate complaints. Id. at 2-3. He says that the "continuous and abrupt unavailability of [his] medication has caused him many problems in addition to the migraine headaches and severe nausea he experiences each time his medication is not tapered off." Id. at 3.

The plaintiff alleges that defendant O'Donovan twice found him guilty and punished him for conduct that was a direct result of being abruptly cut off from his medication. Id. at 5. Specifically, on December 20, 2017, O'Donovan allegedly found the plaintiff guilty of a conduct report based on disobeying orders and violating policy and procedure. Id. at 5; Dkt. No. 57 at ¶8. On January 17, 2018, O'Donovan also allegedly found the plaintiff guilty of a conduct report based on disobeying orders, despite the lapse in his sleeping medications. Dkt. No. 39 at 5; Dkt. No. 57 at ¶8.

With respect to defendant Callister, the plaintiff alleges that when he complained about the interruptions in his medication, Callister did not intercede so that the plaintiff could start taking the medication again without interruption. Dkt. No. 39 at 3, 5. This allegedly occurred between September 2006 and March 2008, see dkt. no 57 at ¶8, and may have also occurred in 2012, see dkt. no. 80 at ¶¶44, 46.

The plaintiff alleges that defendant Schrubbe failed to take remedial action to fix his problems with not receiving timely medication, beginning in 2004. Dkt. No. 39 at 4-5; Dkt. No. 57 at ¶8. The plaintiff states that Schrubbe maintained a constitutionally-infirm medication distribution system, leading to the plaintiff's injuries, including migraine headaches, severe nausea and disruptions in sleeping patterns. Dkt. No. 39 at 4-5, Dkt. No. 57 at ¶8. He alleges that Schrubbe directly supervised the nursing staff and was responsible for monitoring the distribution and refilling of medication, and that theinstitution complaint examiner contacted her every time the plaintiff filed a complaint about his medication. Dkt. No. 39 at 4.

B. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

1. Standard of Review

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). "Material facts" are those under the applicable substantive law that "might affect the outcome of the suit." See Anderson, 477 U.S. at 248. A dispute over "material fact" is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

A party asserting that a fact cannot be, or is, genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would beadmissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4).

2. The Parties' Arguments: Statute of Limitations

The defendants contend that the statute of limitations bars the plaintiff's claims against O'Donovan and Callister. Dkt. No. 56 at 9. They reason that because the plaintiff filed this lawsuit in May 2015, any of the plaintiff's claims that arose before May 2009 fall outside the applicable six-year statute of limitations. Id. at 10. According to the defendants, the plaintiff's claims against O'Donovan arose in 2007 and 2008, and his claims against Callister took place between September 2006 and March 2008. Id. They argue that because the plaintiff's claims against them occurred before May 2009, the court should grant summary judgment based on the statute of limitations. Id. The defendants also contend that the statute of limitations bars consideration of instances of medication availability between 2004 and April 2009 as to the plaintiff's claims against Schrubbe. Id. at 11 n.3.

In response, the plaintiff contends that the defendants have waived the ability to defend based on the statute of limitations, because they did not assert this affirmative defense in their answer to the second amended complaint. Dkt. No. 78 at 6. He states that his second amended complaint put the defendants on notice that his allegations went back to 2004, and that in their answer, the defendants admitted that the conduct reports at issue were given to the plaintiff on December 7, 2007 and December 30, 2007. Id. at 7.The plaintiff asserts that, despite having this information, the defendants did not raise the statute of limitations defense. Id.

In reply, the defendants contend that they did not waive the defense because, while the plaintiff's sole response to their statute of limitations defense is that they waived the defense, he had the opportunity to provide a substantive response to the defense in summary judgment briefing. Dkt. No. 88 at 2.

3. Discussion

a. Statute of Limitations Argument

Federal Rule of Civil Procedure 8(c) requires a defendant to assert affirmative defenses, including the defense of statute of limitations, in a responsive pleading. The purpose of this rule "is to avoid surprise and undue prejudice to the plaintiff by providing [him] notice and the opportunity to demonstrate why the defense should not prevail." Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir. 1997) (citations omitted). Where a defendant fails to raise a statute of limitations defense in the answer or other responsive pleading, it is generally considered waived. Metropolitan Housing Devel. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1287 (7th Cir. 1977); see also 5 Wright & Miller, Federal Practice and Procedure: Civil 3d §1278 (Westlaw 2017). As the Seventh Circuit has explained,

We recognize that the [affirmative] defense may have been meritorious; and [the plaintiff's] counsel should have had some inkling that the defense might be raised . . . . But . . . if Rule 8(c) is not to become a nullity, we must not countenance attempts to invoke such defenses at the eleventh hour, without excuse and without adequate notice to the plaintiff.

Castro v. Chi. Housing Authority, 360 F.3d 721, 735 (7th Cir. 2004) (quoting Venters, 123 F.3d at 969). (Emphasis in original.)

The court may excuse a technical failure to comply with Rule 8(c) as long as the plaintiff had adequate notice of the defense and was not deprived of the opportunity to respond. Venters, 123 F.3d at 968 ("The appropriate thing for the defendant to do, of course, is to promptly seek the court's leave to amend his answer."). The defendants cite to Lyon Fin. Servs., Inc. v. Ill. Paper & Copier Co., 247 F. Supp. 3d 923 (N.D. Ill. 2017) in support of their contention that they didn't waive the defense by failing to plead it in their answer. In that case, the court stated:

Cases where statute of limitations defenses are appropriately waived involve circumstances where the opponent has not had an opportunity to respond. In Venters v. City of Delphi, the court reversed the district court's order that a statute of limitations defense was waived, finding that the plaintiff suffered prejudice when the defense was not raised until a reply brief at the summary judgment stage, a month before trial, and the trial court refused to allow a surreply. In contrast,

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