Terry v. Cnty. of Milwaukee

• Decision Date: 11 January 2019
• Docket Number: Case No. 17-CV-1112-JPS
• Parties: Rebecca TERRY, Plaintiff, v. COUNTY OF MILWAUKEE, Richard R. Schmidt, Officer Brian Wenzel, Unknown Employees of Milwaukee County Jail, Unknown Jail Supervisors, Armor Correctional Health Services Inc., Carolyn Exum, Morgan Bevenue, and Margaret Hoover, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

357 F.Supp.3d 732

Rebecca TERRY, Plaintiff,

v.COUNTY OF MILWAUKEE, Richard R. Schmidt, Officer Brian Wenzel, Unknown Employees of Milwaukee County Jail, Unknown Jail Supervisors, Armor Correctional Health Services Inc., Carolyn Exum, Morgan Bevenue, and Margaret Hoover, Defendants.

Case No. 17-CV-1112-JPS

United States District Court, E.D. Wisconsin.

Signed January 11, 2019

Aisha N. Davis, Arthur Loevy, Jonathan I. Loevy, Scott Rauscher, Megan Pierce, Theresa Kleinhaus, Loevy & Loevy, Chicago, IL, for Plaintiff.

Charles R. Starnes, Cory J. Brewer, Douglas S. Knott, Leib Knott Gaynor LLC, Colleen A. Foley, Milwaukee County Corporation Counsel, Milwaukee, WI, for Defendant.

ORDER

J. P. Stadtmueller, U.S. District Court

1. INTRODUCTION

Plaintiff Rebecca Terry ("Terry"), brings this action pursuant to 42 U.S.C. § 1983, alleging that her constitutional rights were violated when she was ignored while she gave birth in a cell at the Milwaukee County Jail ("MCJ"). See (Docket # 129). Terry brings claims of denial of medical care in violation of her Fourteenth Amendment right against Milwaukee County (the "County"), Officer Brian Wenzel ("Wenzel"), Carolyn Exum, R.N. ("Exum"), and Morgan Bevenue, R.N. ("Bevenue"), (collectively, the "County Defendants").¹

Terry asserts Monell claims related to her labor and delivery in the jail against the County Defendants, acting Sheriff Richard Schmidt in his official capacity ("Schmidt"), and Armor Correctional Services ("Armor"), a private corporation that provides healthcare services to inmates at the MCJ.² She also asserts a Monell claim against the County Defendants regarding their use of restraints in transporting and monitoring hospitalized inmates. Under Monell, a municipal or corporate entity can be liable under Section 1983 for constitutional violations if those violations are brought about by (1) the entity's express policy; (2) a widespread, though unwritten, custom or practice, or (3) a decision by an agent with "final policymaking authority." Darchak v. City of Chicago Bd. of Educ. , 580 F.3d 622, 629 (7th Cir. 2009). Both the County Defendants and Armor filed motions for summary judgment. (Docket # 162 and # 169).³

2. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 provides that 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 Boss v. Castro , 816 F.3d 910, 916 (7th Cir. 2016). A fact is "material" if it "might affect the outcome of the suit" under the applicable substantive law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The court construes all facts and reasonable inferences in the light most favorable to the nonmovant. Bridge v. New Holland Logansport, Inc. , 815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh the evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that "we leave those tasks to factfinders." Berry v. Chicago Transit Auth. , 618 F.3d 688, 691 (7th Cir. 2010). The party opposing summary judgment "need not match the movant witness for witness, nor persuade the court that her case is convincing, she need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact." Waldridge v. Am. Hoechst Corp. , 24 F.3d 918, 921 (7th Cir. 1994).

3. RELEVANT FACTS

3.1 Night of March 9-10, 2014

On the afternoon of March 9, 2014, Terry was arrested and taken to the MCJ. Terry was 32 years old and nine months pregnant with her third child. Terry was screened by Nurse Maggie Burton at around 6:28 p.m. Terry informed Burton that she was a daily heroin user and that she was due to deliver that day. Terry also stated that she felt pressure and tightening, ⁴ and that she felt a pain sensation that she was familiar with from her other two births, which she associated with the baby dropping right before labor.

Burton arranged for the MCJ to send Terry to Froedtert Hospital ("Froedtert"), where she was monitored for labor. Terry's records from Froedtert reveal that she was 80 percent effaced and 2 centimeters dilated, and experienced "intermittent" contractions, some of which she slept through. The hospital records also indicate that Terry was a daily heroin user and had tested positive for opiates that day. After conducting an ultrasound, Froedtert estimated that she was likely due around March 18, 2014.

When Terry did not show any change in dilation or rate of contractions, Froedtert concluded that Terry was "not currently in labr" (sic) and released Terry back to the MCJ, where she was to receive continued prenatal care. (Docket # 174-11 at 21–23). Terry recalls the doctor telling her that she was in the early stages of labor, and it was unclear how fast labor would progress. The County Defendants deny that this was communicated to them, though they admit that two correctional officers were with Terry at Froedtert. Terry was restrained at the hospital, with one wrist restraint

and one leg iron. She was also transported to, and held at, the hospital in leg irons, wrist restraints, and a belly chain.

Terry returned to the MCJ around 1:00 am with incomplete discharge paperwork from Froedtert Hospital. Specifically, the discharge paperwork did not contain information detailing the tests that the Froedtert medical staff had performed, what they recommended for a treatment plan, or details about Terry's condition.

When Terry returned to the MCJ, Exum evaluated her for admittance back to the jail. Exum knew that Terry was nine months pregnant, an opiate user, and had just returned from Froedtert to rule out labor. Based on Terry's late stage pregnancy and opiate history, Exum also knew that Terry was at risk of early labor. Terry told Exum that the hospital said she was in labor but sent her back to jail anyway. Terry denied feeling contractions but stated that she was experiencing pressure at the bottom of her stomach. Exum checked for contractions but did not detect any.

Exum contacted Dr. Gina Buono, who was the on-call physician that night, to discuss Terry. Exum told Dr. Buono that Froedtert had medically cleared Terry for admittance to the jail. Exum also explained that there were no specific discharge orders. Dr. Buono instructed Exum to contact Froedtert to receive an oral report and request Terry's discharge paperwork. Exum called Froedtert and spoke with an unidentified person, who confirmed that Froedtert had ruled out labor for Terry, but did not provide information regarding a treatment plan (particularly with regard to the impending opiate withdrawal).⁵ Exum requested Terry's discharge papers by fax, then called Dr. Buono back.

Based on Exum's report, Dr. Buono approved Terry's admittance to the MCJ, and placed her in the Special Medical Unit ("SMU"), where she could be closely monitored by medical staff. Exum also received approval to begin the paperwork for the MCJ's opiate protocol for heroin-addicted mothers. (Docket # 174-13 at 101:11–102:9). Meanwhile, Dr. Buono instructed Exum to procure Terry's discharge documents. Exum conducted a standard, 20-minute medical examination of Terry, which included taking her vitals. When Terry was admitted to the SMU at approximately 1:30 a.m. on March 10, neither Dr. Buono nor Froedtert's medical staff had ordered additional nursing assessments.

The SMU is located on the second floor of the MCJ, upstairs from Exum's booking station, and across the hall from the clinic. The SMU consists of 11 cells arranged in a semi-circle, with an officer's work station at one end of the semi-circle. Cells 1-3 have two doors, whereas Cells 4-11 only have one door. Despite having two doors, it is possible to hear inmates when standing outside of Cells 1-3. Additionally, each cell door has a window, so an officer standing outside of the cell can see inmate activity inside of the cell. Each cell is also equipped with a call apparatus that activates a red light outside the cell door. This red light notifies the correctional officer on duty to call the nurse in the clinic.

During the night shift, from 11:00 p.m. to 6:00 a.m., the SMU is staffed with one nurse, who sits in the clinic across the hall from the SMU, and one correctional officer, who sits at a work station at the end of the semi-circle of cells. It is the SMU nurse's responsibility to know the medical conditions of the inmates in the SMU, based on information provided from the booking nurse. The SMU nurse working the night shift typically performs at least two rounds to check on inmates in the SMU (at around 11:00 p.m. and 6:00 a.m.). When Terry arrived at the SMU around 1:45 a.m., Bevenue, the nurse on duty that night, had already performed her initial round. Terry believes that Bevenue may have entered the SMU after Terry was admitted.

Wenzel was the correctional officer on duty at the SMU that night. He worked in the SMU alone, and was the only person responsible for periodically checking the inside of the cells of the SMU. Armor and the County do not require officers to have any special medical training in order to work at the SMU.

Terry was the sixth inmate assigned to the SMU that night. She was placed in Cell 3, which was located directly across from Wenzel's desk. Lieutenant Crystalina Montano ("Montano"), the supervisor on duty, informed Wenzel that Terry was nine months pregnant and had just returned from Froedtert Hospital because she was not in active labor. Wenzel also learned that Terry was a heroin user and might experience withdrawal.

Soon after Terry arrived in the SMU, she began to experience contractions. She screamed in pain, called for help, and activated the emergency light, with no response from either Wenzel or Bevenue. She pounded on the window of her...