Houston, Kevon v. Brown, Nicole et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
KEVON HOUSTON,
Plaintiff, OPINION AND ORDER
v.
24-cv-112-wmc
NICOLE BROWN and
LISA PAYNE,
Defendants.
Plaintiff Kevon Houston is representing himself while incarcerated by the
Wisconsin Department of Corrections (“DOC”). This court previously granted him leave
to proceed with a claim that defendants Nicole Brown and Lisa Payne violated his rights
under the Eighth Amendment by failing to ensure that he received a low-bunk restriction
for pain caused by bulging discs in his back. (Dkt. #9.) Defendants Brown and Payne
have filed separate motions for summary judgment, arguing that Houston cannot prevail
under 42 U.S.C. § 1983, because even viewing the evidence in a light most favorable to
plaintiff, no reasonable jury could find that they violated his Eighth Amendment rights.1
(Dkt. ##43, 47.) Because the failure to enter plaintiff’s lower bunk restriction timely in
the DOC’s electronic record was, at most, a negligent act, rather than one of deliberate
indifference, the court will grant defendants’ motions for summary judgment.
1 Defendant Payne also moves in the alternative for judgment on the pleadings under Federal Rule
of Civil Procedure 12(c). (Dkt. #47.) Because she is entitled to summary judgment, the court
limits its analysis to the parties’ arguments under Rule 56 and the evidence presented in support.
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UNDISPUTED FACTS2
A. Background
Plaintiff Kevon Houston is presently confined at the Prairie du Chien Correctional
Institution, while defendants Nicole Brown and Lisa Payne are employed by the DOC at
New Lisbon Correctional Institution (“NLCI”), where Houston was previously confined.
Defendant Brown is a registered nurse, who serves as the NLCI Health Services Manager
(“HSM”), and defendant Payne is also a registered nurse at NLCI in the same Health
Services Unit (“HSU”).
On May 18, 2023, St. Agnes Hospital in Fond du Lac, Wisconsin, performed an
MRI of Houston’s lumbar spine, which identified a diffuse disc bulge with central disc
protrusion at L5-S1, displacing the S1 nerve root posteriorly with mild spinal stenosis.
(Houston Decl. (dkt. #57) at 3; Ex. 100 (dkt. #57-1).) At some point following that MRI,
Houston was restricted to a lower bunk, but that restriction eventually expired. After
Houston was later transferred to NLCI, he asked the NLCI Special Needs Committee to
renew his low-bunk restriction. On November 14, 2023, Nurse Payne then gave Houston
a temporary low-bunk restriction for 30 days, pending the Special Needs Committee’s
2 Unless otherwise indicated, the following facts are material and undisputed. The court has drawn
these facts from the parties’ proposed findings, as well as the underlying evidentiary record where
appropriate, viewing those facts in a light most favorable to plaintiff, as well as drawing all
reasonable inferences in his favor. Sanders v. Moss, 153 F.4th 557, 561 (7th Cir. 2025). However,
plaintiff has not filed a response to the findings of fact proposed by defendant Brown as required
by the court’s procedures on summary judgment, which were provided to the parties at the
preliminary pretrial conference. (Preliminary Pretrial Packet (dkt. #23) Summ. Judg. Proc., §§ I-
II.) Because plaintiff has not put into dispute those facts, the court treats those facts as undisputed.
(Id. § II(C)); see also Hedrich v. Bd. of Regents of Univ. of Wisconsin Sys., 274 F.3d 1174, 1178 (7th
Cir. 2011) (courts are to consider only evidence set forth in proposed finding of fact with proper
citation).
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decision. However, because this temporary lower-bunk restriction was not entered into
institutional records or disclosed to security personnel, Houston was not assigned a lower
bunk as directed by defendant Payne. Worse, on the night of November 30, 2023,
Houston then experienced back spasms and fell while climbing down from his assigned top
bunk, sustaining an abrasion over one eye and a concussion. This lawsuit against HSM
Brown and Nurse Payne followed.
B. Institutional Procedures Regarding Medical Care
1. Role of the HSM
As NLCI’s HSM, Brown serves under the DOC’s Bureau of Health Services
Associate Director of Nursing, but is the administrative manager of NLCI’s HSU. Her
responsibilities at NLCI include management and supervision of health care services;
developing policies and procedures; monitoring care plans; preparing required reports; and
providing liaison assistance to other disciplines, institution units, and community health
providers. Brown also supervises NLCI’s nursing staff and completes random chart audits,
but she is not required to track and check each order entered by nursing staff on a daily
basis. She also does not supervise the physicians or other advanced care providers
(“ACPs”), and she does not typically evaluate, diagnose, or determine a course of treatment
for inmates. Rather, the majority of her time is spent conducting the administrative duties
of an HSM.
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2. Health Services Requests
When a DOC inmate has a medical concern and wishes to communicate with
medical staff or be seen in the HSU, he must fill out a Health Service Request (“HSR”)
form.3 The HSRs are triaged by nursing staff in the HSU, who use their training and
judgment to prioritize appointments and inmate needs. Even though an HSR may be
directed to a specific staff member, it is always triaged in the same manner for patient care
and safety, although an HSR placed in a pile for a certain staff member may contain a
request for emergent care that cannot wait. In most cases, HSM Brown is not aware of
HSRs unless they are specifically forwarded to her. In those cases, the triage nurse will
note “refer to HSU Manager” in the HSR response, which will then be signed by the HSM.
3. Low-Bunk Restrictions
DOC uses the Wisconsin Integrated Corrections System (“WICS”), which is an
electronic platform for inmate records, including offense details, housing, movement,
inmate banking, conduct reports, incident reports, and restrictions. WICS also contains
each inmate’s “Special Handling Summary,” which includes information about an inmate’s
housing recommendations (i.e., special placement needs, etc.); ADA accommodations; and
medical restrictions. DOC Staff have different levels of access in WICS; however, all
security staff have access to the Special Handling Summary.
3 Sometimes inmates will use interview/information request forms instead of HSR forms, but HSU
processes interview/information requests in the same way as HSRs.
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DOC’s Division of Adult Institutions also has a special needs policy in place to guide
the provision of medically indicated restrictions. (See Ex. 1001 to Brown Decl., DAI Policy
#500.30.07 (dkt. #46-2).) The Special Needs Committee is a multi-disciplinary
committee at each facility that reviews requests for special medical needs, restrictions, and
adaptations. HSU staff are permitted to grant temporary special needs restrictions for up
to 90 days without waiting for approval from the Special Needs Committee. However,
continuation of a medical restriction for an extended period of more than 90 days requires
Special Needs Committee approval.
When an inmate requests a special medical needs restriction or accommodation, a
special needs evaluation appointment is scheduled with HSU staff who see the patient to
determine if the request is appropriate for review by the Special Needs Committee. If the
request is appropriate for Special Needs Committee review, a DOC-3332D “Functional
Observation” form may be sent to the inmate’s housing unit for security personnel to
complete and return it to the HSU. This form is designed to provide a more compete
picture of how an inmate functions in their daily activities on their housing unit, since
HSU staff only see inmate patients for a limited time and in a limited capacity.
If HSU staff find adequate medical documentation of a need for a medical
restriction or accommodation based on their assessment and review of the functional
observations made by security staff, HSU staff will then forward the inmate’s request to
the Special Needs Committee for their review. Once all information is gathered, the
Special Needs Committee determines if the inmate’s request is both allowable and
supported under the special needs criteria for greater than 90 days up to one year. When
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a medical restriction order is placed, modified, or discontinued in the electronic medical
record, the system automatically prints an order sheet in the HSU. The nursing staff who
enter the orders are responsible for collecting these printed order sheets, notifying the
housing units, and updating WICS with new restrictions.
Unless she entered the restriction herself, DOC policy does not require HSM Brown
to ensure that a specific restriction is properly entered into WICS or reported to security.
Rather, each nurse typically is expected to take care to enter their own orders throughout
the day. Further, when a patient is transferred from one DOC facility to another, any
current special needs restrictions remain in effect until the health care record is reviewed
by HSU at the new institution. Finally, inmates themselves are responsible for requesting
a review or renewal of their restrictions before the expiration date.
C. Plaintiff’s Bunk Assignments
Although Houston had one previously, his most recent low-bunk restriction before
transfer to NLCI had expired in June 2023, so when Houston transferred to NLCI from
Kettle Moraine Correctional Institution on October 5, 2023, he did not have a low-bunk
restriction.
On the same day he arrived at NLCI, however, Houston submitted an HSR stating,
“I just got here and I would like to discuss medical restrictions, [etc.] please.” On October
6, 2023, Nurse Valerius responded to Houston’s HSR by writing as follows:
Back brace restriction effective until 3-30-24. TENS unit
order/restriction is good until 9-22-24. Is there a specific restriction or
medical issue for scheduling purposes that you would like to discuss?
Next, on November 11, 2023, Houston submitted another HSR stating,
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I came from KMCI Oct 7th[.] I was told my bottom bunk needed to
be renewed. I wrote to HSU & talked to staff but haven’t been
notified of anything. I have severe back pain and it hurts to climb up
& down and am I on the list for a tens unit?”
On November 13, 2023, Nurse Valerius responded to Houston’s HSR by writing,
TENS unit was ordered 8-21-23 and is good for 1 year. Will forward
to PT so one can be issued to you. Low bunk expired in June. Special
Needs Committee review & evaluation by nursing required. Copay
will apply.
Nurse Valerius also referred Houston’s HSR to physical therapy and scheduled him for a
nursing sick call appointment the following day.
On November 14, 2023, Nurse Payne conducted a special needs evaluation for
Houston regarding his need for a low-bunk restriction as well. (Brown Decl. Ex. 1002 (dkt.
#46-3) at 53).) After Houston indicated that he had “constant” back pain, Payne noted
on the “Special Needs Evaluation Low Bunk Low Tier” form that further records were
needed -- specifically, she noted a “NEED” for his MRI results. (Id.) Nurse Payne further
noted, “↓ Bunk 1 month for SNC decision,” (id.), which HSM Brown interpreted to mean
that Nurse Brown was planning on entering a low-bunk restriction for one month pending
the Special Needs Committee’s decision on Houston’s request. However, the restriction
was not entered into WICS or reported to security staff in Houston’s housing unit, and so
he remained in an upper bunk.
On November 15, 2023, Sergeant Bates completed a DOC-3332D Functional
Observation form based on Houston’s ability to function in his housing unit, noting that
he had complained of pain related to climbing up to the upper bunk and had reported
having a lower bunk at previous institutions. (Brown Decl. Ex. 1002 (dkt. #46-3) at 52.)
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Still, Sergeant Bates noted that Houston was able to complete activities independently,
such as bathing, dressing, hygiene, using the restroom, cleaning, climbing stairs, and
walking steadily both on and off his housing unit. (Id.) Sergeant Bates further noted that
Houston had no obvious signs of pain. (Id.)
On November 19, 2023, Houston submitted another HSR, complaining of ongoing
back pain and noting that he had not yet received his TENS unit, although he made no
mention of his bunk assignment. The following day, Nurse Valerius responded in writing
that his TENS unit request had been forwarded to physical therapy and that he was
scheduled for a sick call appointment with a nurse. Houston was then seen by Nurse
Maryah Martin. Houston reported that his back pain was a “5/10” on a bad day. In
response, Nurse Martin educated Houston on the benefits of stretching, ice compression,
use of over-the-counter medication, and traction to assist with his disc bulge. There is also
no indication in Nurse Martin’s note that Houston mentioned or requested a low-bunk
restriction during this appointment.
Overnight on November 30, 2023, however, the on-call nurse at the time, Nurse
Frisk, received notice that Houston had fallen while climbing down the ladder of his upper
bunk and had hit his head. Houston was then sent to the local emergency room via state
van, where he underwent a head CT scan, which did not show any acute intracranial
hemorrhage or acute skull fracture, although a superficial abrasion to his right eyebrow was
noted that did not require closure. Eventually, Houston was diagnosed with a concussion
and discharged back to the institution.
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After Houston returned to NLCI from the emergency room, a 30-day low bunk
restriction was entered into his Special Handling Summary because he had suffered a
concussion, which would be considered an acute injury. That same day, however, the
Special Needs Committee denied Houston’s request for an extended low-bunk restriction,
stating that his request did not meet the criteria as defined in the Special Needs policy.
Under the Special Needs policy, inmate patients may be granted a low-bunk
restriction if they have a medical condition that significantly impairs vision, mobility,
balance, cognition, agility or strength. (Ex. 1001 to Brown Decl., DAI Policy #500.30.07
Appendix 1 (dkt. #46-2) at 10.) More specifically, if such a condition represents “an
imminent fall hazard,” the inmate may not be placed in an upper bunk. (Id. at 10-11.)
Otherwise, the policy dictates that an inmate should be restricted from the upper bunk
only “if they have a medical condition that represents a higher than average [likelihood] of
severe injury if that person fell from the upper bunk or if there is an uncontrolled medical
condition that places them at increased risk of a sudden unpredictable loss of mobility,
balance or cognition.” (Id. at 11 (emphasis in original).)
As noted above, the Special Needs Committee reviews functionality in addition to
evaluations by HSU staff. According to Houston’s functional assessment, he was able to
perform his normal daily activities without a serious limitation and did not represent a
higher risk than average of falling from the top bunk. Further, his back condition -- a mild
disc bulge at L5-S1 -- did not meet the criteria as a medical condition that would
significantly impair his ability to climb into a top bunk. Thus, Houston’s 30-day low bunk
restriction was only honored from November 30 to December 30, 2023, due to his acute
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injury, but was not approved for an extended low-bunk restriction by the Special Needs
Committee. HSM Brown was a member of the Special Needs Committee that denied
Houston’s extended low-bunk restriction, but she does not recall the underlying reasons
for that decision due to the passage of time.
On December 3, 2023, Houston next submitted an “interview/information request”
addressed to HSM Brown, writing in part: “I was granted [a] bottom bunk restriction for
a period of time yet I was never moved nor was anything done until my back gave out and
I hit my head.” There is no indication that HSM Brown saw or responded to this letter,
as it was triaged by Nurse Frisk. Specifically, on December 4, 2023, Nurse Frisk responded
to Houston’s letter as follows:
You have a neurosurgery consult ordered & scheduled. You had a special
needs assessment done 11/14/23. The Committee denied that 11/30/23. You
temporarily have low bunk until 12/30/23 from your concussion. You were
given a back brace 3/30/23. TENS unit issued 10/3/23 per EMR chart.
Houston was seen during these follow-up appointments. Moreover, his neurological
checks were normal, and he verbalized no visual concerns. On December 11, 2023,
Houston was also seen by Advanced Practice Nurse Prescriber (“APNP”) Hadassa Legrand
for an emergency room follow-up. Houston reported a mild headache that improved with
Tylenol and ibuprofen, as needed, and APNP Legrand extended his Tylenol and ibuprofen
prescriptions, while advising Houston that he should contact HSU with any new or
worsening neurological symptoms. However, APNP Legrand did not make any
recommendation for Houston to receive an extended low-bunk restriction.
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OPINION
Summary judgment is proper “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). A dispute about a material fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). If the moving party meets this burden, the nonmovant
“must go beyond the pleadings (e.g., produce affidavits, depositions, answers to
interrogatories, or admissions on file) to demonstrate that there is evidence upon which a
jury could properly proceed to [reach] a verdict in [his] favor.” Burton v. Kohn Law Firm,
S.C., 934 F.3d 572, 579 (7th Cir. 2019) (citation and internal quotation marks omitted).
Although pro se litigants are entitled to liberal construction of their pleadings, they
too have the burden to come forward in response to a motion for summary judgment with
evidence that demonstrates a genuine issue of material fact. Arnett v. Webster, 658 F.3d
742, 760 (7th Cir. 2011) (“[A plaintiff’s] pro se status doesn’t alleviate his burden on
summary judgment.”) (citation omitted). Further, while the court views the record “in the
light most favorable to the nonmovant and constru[es] all reasonable inferences from the
evidence in his favor,” Moore v. Western Ill. Corr. Ctr., 89 F.4th 582, 590 (7th Cir. 2023),
a nonmovant is only entitled to favorable inferences that are supported by admissible
evidence, not those based upon mere speculation or conjecture, Grant v. Trustees of Ind.
Univ., 870 F.3d 562, 568 (7th Cir. 2017), or upon “[c]onclusory statements, not grounded
in specific facts,” Bordelon v. Bd. of Educ. of the City of Chicago, 811 F.3d 984, 989 (7th Cir.
2016).
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Plaintiff filed this lawsuit against defendants Brown and Payne under 42 U.S.C.
§ 1983, claiming that they violated is rights under the Eighth Amendment by failing to
ensure that security personnel knew he had a temporary low-bunk restriction in place for
medical reasons before the night of November 30, 2023, when he was injured while
climbing from the top bunk. Prison officials violate the Eighth Amendment’s prohibition
on cruel and unusual punishment if they act with “deliberate indifference” to prisoners’
serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). However, “[t]he burden
is on the prisoner to demonstrate that prison officials violated the Eighth Amendment, and
that burden is a heavy one.” Pyles v. Fahim, 771 F.3d 403, 408-09 (7th Cir. 2014).
Specifically, to prevail on a claim under the Eighth Amendment, a prisoner is required to
show that: (1) he had an objectively serious medical condition; and (2) defendants acted
with deliberate indifference to that condition. Clemons v. Wexford Health Sources, Inc., 106
F.4th 628, 635 (7th Cir. 2024).
An objectively serious medical condition is one that a doctor recognizes as needing
treatment or one for which the necessity of treatment would be obvious to a lay person,
Pyles, 771 F.3d at 412, and defendants accept that the bulging discs in plaintiff’s back
could be considered such a condition. Moreover, if a prisoner has a medical need for
accommodations -- such as a lower bunk restriction -- failing to provide for those
restrictions can violate the Eighth Amendment. See Seymour v. Kostchyz, No. 22-cv-170-jdp,
2022 WL 20328157, at *2 (W.D. Wis. Aug. 19, 2022) (citing Klein v. O’Donnell, No. 19-
cv-887-bbc, 2019 WL 11786778, at *3 (W.D. Wis. Dec. 30, 2019); Verrier v. Murphy, No.
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19-cv-1812, 2020 WL 1975168, at *6 (E.D. Wis. Apr. 24, 2020)). Therefore, plaintiff
satisfies the first requirement for an Eighth Amendment claim.
However, the second element plaintiff must prove to establish an Eighth
Amendment violation relates to the official’s subjective state of mind. Perez v. Fenoglio, 792
F.3d 768, 776-77 (7th Cir. 2015); Arnett, 658 F.3d at 750. A prison official acts with
requisite deliberate indifference when he or she “realizes that a substantial risk of serious
harm to a prisoner exists, but then disregards that risk.” Perez, 792 F.3d at 776 (citing
Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Stated another way, a prison official acts
with the requisite deliberate indifference only if the official “actually knew of and
disregarded a substantial risk of harm.” Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016)
(emphasis in original); see also Tackett v. Dauss, 132 F.4th 1026, 1030 (7th Cir. 2025) (“the
official must have actually known of and consciously disregarded a substantial risk of
harm”). Even if a prison official failed to alleviate a significant risk of harm that he or she
should have perceived, there is no liability under the Eighth Amendment without actual
knowledge and conscious disregard of the known risk. Brown v. Osmundson, 38 F.4th 545,
550 (7th Cir. 2022) (citing Farmer, 511 U.S. at 838).
Deliberate indifference is “a high bar ‘because it requires a showing [of] something
approaching a total unconcern for the prisoner’s welfare in the face of serious risks.’” Rasho
v. Jeffreys, 22 F.4th 703, 710 (7th Cir. 2022) (quoting Rosario v. Brawn, 670 F.3d 816, 821
(7th Cir. 2012)). Ordinary negligence or even gross negligence is not enough to meet this
high standard. Brown, 38 F.4th at 550; Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996).
Neither is medical malpractice. See Estelle, 429 U.S. at 106 (“Medical malpractice does not
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become a constitutional violation merely because the victim is a prisoner.”). Unfortunately
for plaintiff, he has been unable to offer evidence that would support a verdict of more
than negligence, or even gross negligence, as to either of the two named defendants.
I. HSM Brown
In particular, defendant Brown argues that as NLCI’s HSM, her role was primarily
limited to administrative tasks. As a result, she had no role in evaluating or treating
Houston when he initially requested a low-bunk restriction. Brown also did not see
whether or not Nurse Payne entered any order into the electronic medical record or WICS
regarding a low-bunk restriction for Houston on November 14, 2023. Brown herself
believes that this lack of entry was an inadvertent oversight at most. Contrary to plaintiff’s
assertion, Brown also confirms there is no requirement in DOC policy for the HSM to
ensure that a restriction is entered into WICS or reported to security. To the contrary in
this case, it is undisputed that Brown would only have had such a duty if she had personally
imposed the restriction herself. Regardless, Brown had no involvement with the short-term
low-bunk restriction issued by Nurse Payne on November 14 pending review by the Special
Needs Committee.
To be held liable under 42 U.S.C. § 1983, a plaintiff must also prove the defendant’s
personal participation or direct responsibility for the alleged constitutional deprivation.
Mitchell v. Kallas, 895 F.3d 492, 498 (7th Cir. 2018) (citing Wilson v. Warren Cnty., 830
F.3d 464, 469 (7th Cir. 2016)). Plaintiff similarly presents no evidence from which a
reasonable jury could conclude that defendant Brown was personally involved in providing
medical treatment nor that she had any involvement with respect to the temporary low-
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bunk restriction that was issued, but not entered into, in his institutional record on
November 14. Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017).
Finally, although Brown held an administrative and supervisory role in the HSU,
plaintiff cannot hold her vicariously liable for the actions of his treatment providers or
insist that she perform the jobs of others. See Burks v. Raemisch, 555 F.3d 592, 595 (7th
Cir. 2009) (“no prisoner is entitled to insist that one employee do another’s job”). Because
no reasonable jury could find that Brown acted with deliberate indifference to plaintiff’s
medical needs by failing to ensure that his low-bunk restriction was entered into WICS or
provided to security personnel in plaintiff’s housing unit, plaintiff does not establish a
constitutional violation of the Eighth Amendment and Brown is entitled to summary
judgment on plaintiff’s claim against her.
II. Nurse Payne
The evidence shows that plaintiff’s request for a low bunk was based on pain while
climbing up and down the ladder to the top bunk, and not because of an imminent risk of
falls. In fact, a functional evaluation of plaintiff shortly before his fall revealed no obvious
signs of pain, and there is no evidence that climbing in and out of the top bunk posed a
risk of further harm to plaintiff’s back or that he faced a significant risk of falling from the
top bunk. For this reason, the Special Needs Committee ultimately rejected plaintiff’s
request for an extended, low-bunk restriction based on back pain after being granted a
lower bunk restriction temporarily by Nurse Payne on November 14. As for defendant
Payne’s argument that any alleged failure to enter plaintiff’s temporary low-bunk
restriction in WICS at most amounted to negligence, there is no evidence from which a
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reasonable jury could find that she intentionally failed to enter his low-bunk restriction into
WICS or to inform NLCI’s security personnel of its existence. And as already noted.
inadvertent error, mere negligence, or ordinary malpractice do not rise to the level of
deliberate indifference under the Eighth Amendment. Vance, 97 F.3d at 992.
Based on this record, no reasonable jury could find that Nurse Payne acted with
deliberate indifference to plaintiff’s medical needs by failing to ensure that his low-bunk
restriction was entered into WICS or brought to the attention of security personnel more
promptly. Therefore, plaintiff does not establish a constitutional violation of the Eighth
Amendment and Nurse Payne is entitled to summary judgment on plaintiff’s claim against
her.
ORDER
IT IS ORDERED that:
1) Defendant Nicole Brown’s motion for summary judgment (dkt. #43) is
GRANTED.
2) Defendant Lisa Payne’s alternative motion for summary judgment (dkt. #47) is
GRANTED.
3) The clerk of court is directed to enter judgment in favor of defendants and close
this case.
Entered this 17th day of February, 2026.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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