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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ANTONIO D. HENLEY,
Plaintiff,
-vs-                                                                                                                    Case No.   11-CV-89
DR. RICHTER, JEANANNE ZWIERS,
and NURSE KATHY LEMENS,
Defendants.
DECISION AND ORDER
The plaintiff, Antonio D. Henley (“Henley”), a Wisconsin state prisoner, filed
this pro se civil rights action pursuant to 42 U.S.C. § 1983 and was granted leave to proceed
in forma pauperis.  1He is proceeding on an Eighth Amendment deliberate indifference to a
serious medical need claim and a Wisconsin state law medical malpractice claim based on
allegations that the defendants did not provide him with medically prescribed rigid contact
lenses following a corneal transplant.   Defendants Jeananne Zwiers (“Zwiers”) and Kathy
Lemens (“Lemens”) have filed a motion summary judgment2, and defendant James Richter
(“Dr. Richter”), who is represented by separate counsel, has filed a motion for summary
1
The court requested an attorney to represent Henley pro bono.   The plaintiff’s first attorney withdrew due
to health reasons.   On June 3, 2012, Attorneys Keith A. Bruett and Andrea J. Fowler of Quarles & Brady, LLP,
agreed to represent the plaintiff pro bono.
2
This motion was originally also brought on behalf of former defendants Richard Raemisch, Cynthia
Thorpe, William Pollard, and Jamie Wertel.   However, on January 8, 2013, the court granted the plaintiff’s motion to
voluntarily dismiss Raemisch, Thorpe, Pollard, and Wertel.




judgment.  Additionally, the plaintiff has filed a motion to strike portions of the affidavits of
John M. Thompson and Dr. Richter.   These motions are ready for resolution and will be
addressed herein.
I. SUMMARY JUDGMENT STANDARD
“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
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facts that would  be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.”   Fed. R. Civ. P. 56(c)(4).
II. FACTS
A. Henley’s Motion to Strike
Henley has filed a motion to strike portions of the affidavits of Attorney John
M. Thompson and Dr. Richter, and corresponding proposed facts.  First, he requests that the
court  strike  paragraph                                                                            15  of  Attorney  Thompson’s  affidavit  because  it  attaches  an
inflammatory hearsay document.  According to Henley, Attorney Thompson lacks personal
knowledge of the  “investigative report” he attaches as Exhibit N, he is not a records
custodian capable of authenticating the report, and the report is inadmissible hearsay.
Paragraph 15 of Attorney Thompson’s affidavit provides, “That attached hereto
as Exhibit N is a true and correct copy of DAI Investigations materials regarding the plaintiff,
Antonio D. Henley, DOC-2135 (12/01), date initiated May 16, 2011, and completion date
June 17, 2011.”   However, Attorney Thompson has not demonstrated through his affidavit
that  he  has  the  requisite  personal  knowledge  of  Exhibit  N  or  that  he  is  capable  of
authenticating the investigative report.   See Fed. R. Civ. P. 56(c)(4)  (“[a]n affidavit or
declaration used to support or oppose a motion must be made on personal knowledge, set out
facts that would be admissible  in  evidence, and show that the affiant or declarant is
competent to testify on the matters stated”); see also Scott v. Edinburg, 346 F.3d 752, 759-60
n.7 (7th Cir. 2003).  Thus, paragraph 15 of Attorney Thompson’s affidavit and Exhibit N will
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be stricken.
Second, Henley contends that all portions of Dr. Richter’s affidavit that are not
based on personal knowledge should be stricken.  Specifically, he asserts that paragraphs 3,
4, 5, 11, 12, 13, 14, 19, 20, 21, 25, and 29 contain statements based “upon information and
belief” and are therefore improper evidentiary support for summary judgment.   He further
contends that paragraphs 18, 22, and 23 should be stricken because they are not based on
personal knowledge.   In response, Dr. Richter contends that Henley’s Response to Dr.
Richter’s Proposed Findings of Fact admits the statements at issue in paragraphs 3, 4, 5, 11,
14, 18, 19, 21, 22, and 23 of Dr. Richter’s affidavit and, therefore, his request as to those
paragraphs should be denied.  Dr. Richter further contends that he has personal knowledge
of Henley’s health care records because, (1) he contemporaneously prepares the records at
the time of his visits with Henley; (2) he reviews the records regularly; and (3) he discusses
the same with Henley’s other health care providers as part of his evaluation and treatment of
Henley’s eyes.  According to Dr. Richter, his affidavit is based on his direct evaluation and
treatment of Henley, his regular review of Henley’s pertinent health care records, and
discussions with Health Services Unit staff regarding the same.  Thus, he contends that the
affidavit is based on personal knowledge and should not be stricken.   Dr. Richter further
contends that Henley’s health care records are admissible under Federal Rule of Evidence
4




803                                                                                                         (4)3, as they are made for Henley’s medical diagnosis and treatment and describe his
pertinent medical history, current symptoms/complaints, and their general cause or lack
thereof.   Finally, Dr. Richter contends that Henley’s health care records are exhibits to his
deposition and that the court should not strike those portions of Dr. Richter’s affidavit that
correspond to the exhibits of Attorney Thompson’s affidavit.
Dr. Richter’s  affidavit is  deficient  because  twelve  of its paragraphs are
purportedly based on “information and belief” and because it does not otherwise establish
personal knowledge as to three additional paragraphs.  See Weiss v. Cooley, 230 F.3d 1027,
1034 (7th Cir. 2000) (an affidavit which asserts various facts “on information and belief” is
not enough to satisfy the personal knowledge requirement for summary judgment); see also
Fed. R. Civ. P. 56(c)(4).   However, for the purposes of summary judgment, the court will
accept those proposed facts which are based on faulty paragraphs because Henley deems
them undisputed in his Response to Dr Richter’s Proposed Findings of Fact.   Moreover, in
his deposition, Dr. Richter established that he has the requisite personal knowledge to attest
to the information in his affidavit, based on his reviews of Henley’s medical records and
conversations with medical staff.   Accordingly, the court will not strike the requested
paragraphs from Dr. Richter’s affidavit.
Third, Henley contends that Dr. Richter’s Proposed Findings of Fact Numbers
3
(4) Statement Made for Medical Diagnosis or Treatment.   A statement that:
(A) is made for - and is reasonably pertinent to - medical diagnosis or treatment; and
(B ) describes medical history; past or present symptoms or sensations; their inception; or their general
cause.
Fed. R. Evid. 803(4).
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1, 4, 5, and 27, which are based on the improper portions of Attorney Thompson and Dr.
Richter’s affidavits, should be stricken.   Paragraphs 1, 4, and 5 are based on Dr. Richter’s
affidavit paragraphs  that the court is not striking and, therefore, the corresponding proposed
facts will likewise not be stricken.  Paragraph 27 is based on Attorney Thompson’s affidavit
paragraph 15, which the court is striking, and it will also therefore strike the proposed fact.
In sum, Henley’s motion to strike paragraph  15 of Attorney Thompson’s
affidavit and Dr. Richter’s Proposed Finding of Fact 27 will be granted.   Henley’s motion
to strike paragraphs 3, 4, 5, 11, 12, 13, 14, 18, 19, 20, 21, 22, 23, 25, and 29 of Dr. Richter’s
affidavit, and Dr. Richter’s Proposed Findings of Fact 1, 4, and 5 will be denied.
B. Relevant Undisputed Facts4
Zwiers  was  the  Health  Services  Unit                                                            (“HSU”)  Manager  at  Green  Bay
Correctional Institution (“GBCI”) at all times relevant.  Her duties include management and
supervision of health care services provided.  Zwiers does not have the authority to overturn
the treatment decisions of a treating physician and she does not control the details of a
physician’s practice or act in a way contrary to his treatment decisions.  However, Zwiers has
considerable latitude in her position, including the ability to bypass the warden and contact
the Bureau of Health Services when she has any concerns regarding patient care.  Zwiers has
previously reported concerns over a physician’s care of inmates at GBCI.
Lemens was a Nurse Clinician in the GBCI HSU at all times relevant.   Her
4
This section is taken from Zwiers and Lemens’ Proposed Findings of Fact, Dr. Richter’s Proposed
Findings of Fact, and Henley’s Proposed Findings of Fact.
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responsibilities include patient assessment and treatment, assisting the physician in providing
medical services, management of medications, provision of emergency care, and maintenance
of medical records.  Lemens does not have the authority to overturn the treatment decisions
of a treating physician and she did not control the details of a physician’s practice or act in
a way contrary to his treatment decisions.  However, Lemens can discuss patient care issues
directly with the treating physician and, if necessary, escalate her concerns to Zwiers, who
can - and in the past has - taken those concerns to higher authorities to correct the problem.
Dr. Richter is an optometrist who has been licensed to practice in Wisconsin
since 1973.   He provides optometry care to inmates in correctional facilities throughout
northeast and north central Wisconsin.
In 1997, Henley was diagnosed with bilateral keratoconus.  Prior to November
16, 2009, Henley underwent a left eye corneal transplant.
1. Medical Care of Henley
Henley arrived at GBCI on September 1, 2009.   On November 16, 2009, he
underwent a corneal transplant on his right eye at the University of Wisconsin Hospital and
Clinic in Madison, Wisconsin.   The ocular surgeon who performed the second corneal
transplant, Dr. Neal Barney, instructed Henley to continue wearing a contact lens in the non-
surgical, left eye.
On his return from the hospital to GBCI that same day, Nurse Komorowski
evaluated Henley.  During this period of his recovery, Henley wore a soft contact lens in his
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left eye as directed by Dr. Barney.  He did not, and could not, wear a contact lens in his right
eye, until the stitches were removed.
On March  16,  2010, Henley was seen at the UW Eye Station by Robert
Lazorik, for evaluation of contact lenses by referral of Dr. Barney.  Lazorik noted that Henley
was wearing disposable soft contact lenses and that he reported occasional discomfort with
the  contact  lenses.    Lazorik  found  no  irritation  secondary  to  the  contact  lenses  and
recommended  that  Henley  continue  to  wear  the  soft  contact  lenses  daily.  He  also
recommended discontinuing the lenses if Henley experienced pain, discharge, or sudden
changes in vision.   Lazorik recommended monthly replacement of the contact lenses.
Pursuant to Bureau of Health Services Policy 300.02, a consulting physician
may make recommendations concerning a course of treatment for an inmate.   If the DOC
prescribing practitioner writes orders different than recommendations of the consultant:
a. The DOC-3528 form must be completed and forwarded to the
specialty consultant if consultant’s recommendation involves a
significant   recommendation                                                                        (eg.;   transplant   evaluation,
treatment for hepatitis C, etc.), versus a recommendation for
comfort  items  or  changes  in  medications,  and  presribing
practitioner does not follow the recommendations.
b. File a copy of the DOC-3528 in the Medical Chart, in the
Consultation Section, in front of the corresponding DOC-3001.
(Bruett Aff. ¶ 5, Ex. 4 at 5.)
Lemens saw Henley on March 30, 2010, who reported his right eye was itchy,
and that he felt the stitches were loose.   Lemens told Henley she would consult with the
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physician in the morning and follow-up with him. Lemens placed a call to the UW Eye
Station on March 31, 2010, and left a message.
On April 7, 2010, a contact lens was dispensed to Henley per his request.  On
April 9, 2010, Lemens saw Henley again regarding his concerns.  Lemens noted that Henley
had been using the soft contacts for nine months and, when asked what problems he was
having, he was evasive.  Lemens told Henley that if the contact ripped he should keep it and
file a health services request form. She also told him she would check and try to assist with
further problems and care.
On April 23, 2010, Henley had a follow-up appointment with Dr. Richter at
GBCI’s HSU.   Henley’s vision was as follows: 20/30, Left eye (with contact lens); and
20/400, Right eye (without any corrective lens).  Dr. Richter determined that Henley’s right
eye had not yet healed fully from the corneal transplant.  He also determined that Henley’s
contact lenses were not “medically necessary” and would therefore be replaced with glasses.
Henley still had sutures in his right eye which prohibited him from wearing a contact lens in
his right eye.  Dr. Richter discontinued Henley’s prescription for contact lenses and ordered
slightly tinted glasses.   Dr. Richter was concerned, given the at times violent environment
that exists at GBCI, that Henley’s safety would be jeopardized if he wore a contact lens.
Moreover, refraction indicated that Henley’s vision improved with the glasses prescription
as follows: 20/20, Left eye; and 2/25, Right eye.
Nurse Jamie Wertel attempted to dispense the glasses to Henley on May 10,
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2010.   During this appointment, Henley asked whether he could have his contact lenses in
his cell with him.   Lemens, who was also present, explained to him that Dr. Richter had
reviewed his record and determined the contacts were no longer needed, discontinued the
contacts, and ordered glasses.   Henley’s contact lenses were confiscated.   He refused the
glasses  because  Dr.  Barney  had  told  him  to  continue  wearing  contacts,  and  left  the
appointment.  Nurse Wertel noted that she would check with the Bureau of Health Services
on how to handle the refusal of the glasses.
Immediately after GBCI attempted to replace Henley’s contact lenses with
glasses on May 10, 2010, Henley wrote a letter to Zwiers explaining the situation and Dr.
Barney’s treatment plan.  On May 12, 2010, Henley filed an Interview/Information Request
in which he wrote that he wanted it stated on record that HSU staff was forcing him to walk
around  not being  able to  see  because his contacts were  discontinued.    Nurse Wertel
responded to the request and noted that HSU ordered glasses but he refused them and that
Dr. Richter had discontinued the contact lenses.  Nurse Wertel told Henley to contact her if
he wanted the glasses.
Lemens met with Henley on May 13, 2010, and she again attempted to explain
to him that Dr. Richter had discontinued the contact lenses and ordered the glasses.   She
offered Henley the glasses, but he again refused them stating, “I’ll just walk around and not
be able to see.”  Lemens noted that Henley was being argumentative and would not listen to
her.   Lemens also noted Henley’s desire to see his “doctor in Madison,” presumably Dr.
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Barney.
Lemens saw Henley was seen by on May 14, 2010, for his complaints of eye
irritation and drainage.   She found no obvious drainage or irritation evident and scheduled
Henley for a follow-up for evaluation of his complaints.
On May 17, 2010, Lemens followed-up with Henley for his complaints of eye
irritation and drainage.   Nurse Wertel was present at the exam.   Lemens found no redness,
drainage, or irritation to the right eye.   His eye lids were not warm or sensitive to light.
Henley complained of blurriness in his right eye.  After discussing the reason for the glasses,
and a review of the UW medical records in the chart, Henley agreed to take the glasses and
try them until he saw Dr. Richter.   Later that day, Henley filed a Health Services Request
stating, “I can’t wear them and plus they make my head hurt. I tried them out.”
Henley returned the glasses because he continued to suffer from distorted
vision that induced painful headaches.  Similar problems persisted for Henley when he had
no corrective lenses - his vision was distorted to the point that he could barely function and
he experienced intense and painful headaches.   Henley continued to suffer from severely
limited vision and debilitating headaches after Dr. Richter and the GBCI HSU staff refused
to implement Dr. Barney’s treatment plan.
On May 17, 2010, Nurse Wertel responded to Henley’s May 10, 2010, letter
to Zwiers.  Nurse Wertel noted that Henley had accepted his glasses during his appointment
that day and that Dr. Richter prescribed the glasses to correct his vision in accordance with
11




DOC policies.  Nurse Wertel told Henley an appointment was scheduled for him to see Dr.
Richter in early June and encouraged him to wear the glasses as much as possible to get used
to the prescription so that he could discuss any issues with the prescription with Dr. Richter.
Nurse Wertel responded to Henley’s Health Services Request on May 18, 2010.
She informed him that a follow-up with Dr. Richter had been scheduled and encouraged him
to work with Dr. Richter to find a correct eyeglass prescription.  Nurse Wertel stated that the
brief period of time that Henley tried the glasses (less than one day) may not have been
enough for Dr. Richter to provide alternatives. She told Henley that HSU would keep the
glasses in case he changed his mind and wanted them again.
Each time that Lemens - or any other member of the GBCI HSU- examined
Henley, he informed them about Dr. Barney’s treatment plan for continued use of contact
lenses, a point that was noted in Henley’s Progress Notes on May 19, 2010.
On June 4, 2010, Henley returned to the HSU and saw Dr. Richter for a follow
up appointment.  Dr. Richter noted that his right eye showed no corneal epithelial straining,
the tissue was clear, the anterior chamber was quiet and there were no signs of any
inflammation or corneal rejection.   In other words, there was no objective evidence that
supported Henley’s complaints of eye irritation and blurriness.   He still had sutures in his
right eye left over from the corneal transplant.   Dr. Richter advised Henley that it was still
appropriate for him to wear the glasses that he had previously prescribed.
By at least June 4, 2010, Dr. Richter was aware that Henley had reported
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symptoms of blurry vision and was filing frequent complaints about his eye care.  Dr. Richter
was aware that either  Henley or the nursing staff had described his eyes as “really bad now.”
(Bruett Aff. ¶ 2, Ex. 1 at 104:15-18.)   Dr. Richter never tried to contact Henley’s surgeon.
On July 13, 2010, Henley had a follow-up appointment with Dr. Barney at
University Station Clinic in Madison, Wisconsin.  Half of the corneal sutures were removed
from his right eye.  Dr. Barney noted that corneal transplants “almost invariably come with
some irregular astigmatism and do not permit fully correctable vision with spectacles alone.”
(Thompson Aff. ¶ 7 and Richter Aff. ¶ 17).  Dr. Barney determined that Henley was not yet
ready to wear a contact lens in his right eye since sutures from the corneal transplant
remained.
On his return to GBCI,   Nurse Komorowski examined Henley and noted that
his right eye sclera was red but with no drainage.   Nurse Komorowski also noted that the
chart would be forwarded to the physician and Dr. Richter.
After learning of Henley’s situation, Dr. Barney wrote a letter directly to the
GBCI HSU and Dr. Richter on July 15, 2010, stating:
I want to be clear about the routine medically indicated care of
patients with keratoconus and corneal transplant:
1. Routine Care of patients who undergo corneal transplant for
keratoconus involves the medically indicated use of rigid contact
lenses following transplant. The transplants almost invariably
come with some irregular astigmatism and do not permit fully
correctable vision with spectacles alone.
…
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I believe that our records here would indicate that Mr. Henley
will see best with contact lens use. We would need sometime
further to removed [sic] all of his sutures out of his right eye in
order to permit fitting for that eye, but at present, at least, left
eye contact lens wear is medically indicated for his best vision.
(Zwiers Aff., Dkt #36-3 at pp. 3-4 of 29.)  Dr. Barney’s July 15, 2010 letter to the HSU and
Dr. Richter went into Henley’s GBCI medical file.
Dr. Richter said he agreed a “hundred percent” with the surgeon's July 15, 2010
letter specifically telling Dr. Richter that a contact lens was the routine, medically indicated
care for patients with keratoconus corneal transplants.    He stated:  “I’m agreeing with
statement in terms of if you have irregular astigmatism you cannot get the good vision with
glasses.  Contact lenses is obviously the choice.”                                                   (Bruett Aff. ¶ 2, Ex. 1 at 121:10-15.)  Dr.
Richter also stated that he would never consider sending Mr. Henley to Madison to be fitted
with a left lens before he could be fitted with a right lens because doing so would be
expensive.  Dr. Richter stated: “Q. So these trips are pretty expensive? A. Yeah. Q. Okay. A.
Plus we have to pay for them at that time. If they fit two lenses at the same time, he does it
at the same time, why would we even consider that? And I told Mr. Henley that.”                      (Bruett
Aff. ¶ 2, Ex. 1 at 123:8-14.)  Dr. Richter did not provide Henley with a new left contact lens
when he received the ocular surgeon’s letter.   Dr. Richter admits that he decided against
fitting a lens in Henley’s left eye because, in part, fitting only the left eye was “going to cost
everybody a lot of money.”                                                                           (Bruett Aff. ¶ 2, Ex. 1 at 122:24-123:3.)
On July 28, 2010, Henley was seen by Nurse Komorowski for complaints of
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eye irritation in his right eye.  No optometrist was on-site, so she contacted Dr. Heidorn, the
regular GBCI physician, who ordered Polymixin B Sulfate and trimethoprim.  Henley refused
Dr. Heidorn’s prescriptions and started to walk out of the HSU.   Nurse Komorowski then
called Dr. Richter, who directed that Henley should be given the Polymixin B Sulfate and
trimethoprim that Dr. Heidorn had ordered and that he should be scheduled for an eye
appointment to assess for any loose sutures.
Due to Henley’s ongoing eye complaints, on August 6, 2010, Dr. Richter
recommended that he be moved to Dodge Correctional Institution (“DCI”) in Waupun,
Wisconsin, since there was a full-time optometrist present at the facility.  Zwiers placed a call
to the DCI Health Services Manager on August 11, 2010, to discuss Henley’s optical care
needs.   On August 23, 2010, Zwiers met with Henley regarding his upcoming transfer to
DCI.  Henley was upset.  Zwiers tried to explain to him that the transfer was temporary and
encouraged him to cooperate. Henley stated, “I ain’t cooperating with nobody.”   He was
transferred to DCI on August 31, 2010.
Shortly after Henley’s August 31, 2010 transfer to DCI, Dr. Barney wrote
another letter, this time directly to Henley, substantiating the need for contact lenses:
This letter is to substantiate your need for the use of rigid gas
permeable contact lenses in order to achieve your best vision.
You have post corneal transplant irregular astigmatism in both
eyes. The irregular astigmatism can not be fully corrected with
glasses  alone.  For  this  reason,  rigid  gas-permeable  contact
lenses  are  medically  indicated  to  reduce  this  irregular
astigmatism and allow you your best corrected vision. Glasses
alone will not allow your best corrected vision because of this
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uncorrected astigmatism.
If you or any of your care providers have any questions, please
do not hesitate to have them contact me. I would anticipate that
this will result in your being dispensed rigid gas-permeable
contact lens so that when I see you back in a few months, then
I can determine that you are seeing well in these lenses.
(Zwiers Aff., Dkt. #36-3 at p. 8 of 29.)
DCI’s HSU called on September 20, 2010, to schedule Henley’s contact lens
fitting.   On October 4, 2010, the sutures remaining in Henley’s right eye were removed.
University Station Clinic staff supplied Henley with ridged contact lenses for both eyes.  Due
to eye irritation, Henley was unable to put in the contact lenses for approximately two days.
On October 26, 2010, Henley was seen by Lazorik who provided the rigid lenses to him.
Henley returned to GBCI on November  5, 2010.   At that time, he had a
prescription for rigid contact lenses, and he was allowed to possess the contact lenses at
GBCI.  Since receiving his contact lenses on, Henley has not experienced the impaired vision
and associated headaches that he endured when wearing glasses and foregoing corrective
lenses.
GBCI does not prohibit inmates from having contact lenses. GBCI follows
Divison of Adult Institutions Policy 309.20.03 I, J, 12 which states contact lenses will not
be permitted unless medically necessary and approved.  Neither Zwiers nor Lemens took any
action to provide Henley with access to the contact lenses.  Dr. Richter justified his treatment
plan to Zwiers during a brief portion of a five-minute conversation.
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Henley was consulted frequently regarding his treatment options and had the
opportunity to have his concerns addressed by HSU staff by submitting HSU requests
through the prison communication system.   Henley was seen by GBCI HSU staff and off-site
treatment providers for various medical complaints and conditions approximately 55 times
from his transplant on November 16, 2009 until his transfer to DCI on August 31, 2010.
2. Inmate Complaint Review System (ICRS)
On May 13, 2010, Henley submitted Offender Complaint GBCI-2010-10165,
complaining that GBCI staff took his contact lenses away but that he was told by the UW Eye
Station specialist that he was to wear contact lenses. Henley claimed that GBCI staff had
taken his lenses and were trying to give him glasses, and he was having trouble seeing.
Institutional Complaint Examiner Michael Mohr investigated the complaint and found that
on April 23, 2010, Dr. Richter completed an optical exam for Henley, decided that the
prescription for contacts should be ended, and requested that a new prescription using state-
supplied eyewear be supplemented. Mohr further noted that Henley refused the glasses on
May 10, 2010.  Mohr stated that it was Dr. Richter’s determination to make regarding what
course of treatment to pursue and that, while Henley may not agree with that determination,
it had been made based on years of education and experience. Mohr found that he was not
in the position to either question or judge the merits, opinions, or treatments offered by the
trained and professional HSU staff.  He recommended that the complaint be dismissed with
the modification that Zwiers be given a copy of the complaint.  On May 17, 2010, acting as
17




reviewing authority, Thorpe reviewed Mohr’s findings, followed his recommendation, and
dismissed the offender complaint with modifications.   Henley appealed the decision to the
corrections complaint examiner’s office, and on May 24, 2010, in agreement with the report
of Mohr, Corrections Complaint Examiner Tom Gozinske recommended that GBCI-2010-
10165 be dismissed.  On July 24, 2010, the deputy secretary, Ismael Ozanne, dismissed the
offender complaint.
On May 18, 2010, Henley submitted Offender Complaint GBCI-2010-10555,
complaining that HSU staff was refusing to acknowledge his Health Service Requests to be
seen by the physician for his eye.  His complaint detailed the eye pain and irritation that he
was experiencing.   Mohr investigated plaintiff’s complaint and found that Henley was
informed that he would be seen in June. Mohr discovered that Henley was given eyewear for
his vision problems but that he decided not to use it and returned the eyewear within one day
of use.   Mohr found that Henley received three different types of drop medications for his
eyes and decided to return the medications too but, after examination by nursing staff,
decided to accept the eye drop medications.   Mohr was informed that Dr. Richter had
consulted with Dr. Barney of the UW Eye Clinic before prescribing eyewear instead of
contact lenses.   Mohr found that he was not in the position to either question or judge the
merits, opinions, or treatments offered by the trained and professional HSU staff.  Based on
his findings, he recommended that the complaint be dismissed with the modification to
provide a missive from Nurse Wertel in five days.  On May 24, 2010, as reviewing authority,
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Thorpe reviewed Mohr’s findings and, based on her review, followed the recommendation
of Mohr and dismissed the offender complaint with modifications.
On June 12, 2010, Henley submitted Offender Complaint GBCI-2010-12447,
complaining that Dr. Richter and HSU staff was refusing to do anything about the loose
stitch in his eye.  Mohr investigated the complaint and found that Dr. Richter and Dr. Barney
were aware of Henley’s complaint. Mohr noted that Henley was seen by Dr. Richter on June
4, 2010, where it was documented that Henley was belligerent and demanding regarding this
issue of contact lenses.  Mohr found that Henley had an upcoming appointment with the UW
the next month and that, per Dr. Richter’s evaluation, the scheduled appointment did not
warrant a change.  Mohr found that he was not in the position to either question or judge the
merits, opinions, or treatments offered by the trained and professional HSU staff.   On June
25, 2010, Mohr recommended that the complaint be dismissed with the modification that
Zwiers receive a copy of the complaint.   On June 28, 2010,   Thorpe reviewed Mohr’s
findings, followed the recommendation of Mohr, and dismissed the offender complaint with
modifications.  Henley appealed the decision to the corrections complaint examiner’s office,
and on July 19, 2010, in agreement with the report of Mohr, Corrections Complaint Examiner
Welcome Rose recommended that GBCI-2010-12447 be dismissed.  On July 24, 2010, the
deputy secretary, Ismael Ozanne, dismissed the offender complaint.
On July 29, 2010, Henley submitted Offender Complaint GBCI-2010-15611,
complaining that Dr. Richter refused to issue Henley contact lenses.   Mohr investigated
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Henley’s complaint and found that Dr. Richter had determined that contact lenses were not
appropriate for Henley at that time.  Mohr noted that Henley was post-corneal transplant and
had been having issues with irritation due to lost sutures for which he had been seen by Dr.
Barney with the UW and off-site by local optical providers.   Mohr stated that it was Dr.
Richter’s determination to make regarding what course of treatment to pursue and that while
Henley may not agree with that determination, it had been made based on years of education
and experience.   He found that he was not in the position to either question or judge the
merits, opinions, or treatments offered by the trained and professional HSU staff.  On August
16, 2010, Mohr recommended that the complaint be dismissed with the modification that
Zwiers receive a copy of the complaint.  On August 24, 2010, as reviewing authority, Thorpe
reviewed Mohr’s findings. Based on her review, Thorpe followed the recommendation of
Mohr and dismissed the offender complaint with the modification that Zwiers would inform
him when the optomologist evaluated the condition again and specifically indicated whether
or not contacts were recommended.    Henley appealed the decision to the corrections
complaint examiner’s office, and on September 13, 2010, in agreement with the report of
Mohr, Corrections Complaint Examiner Tom Gozinske recommended that GBCI-2010-
15611 be dismissed.   On September 13, 2010, the deputy secretary, Timothy Lundquist,
dismissed the offender complaint.
III. ANALYSIS
A. Dr. Richter’s Motion for Summary Judgment
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Dr. Richter contends that he is entitled to summary judgment because no
genuine issue of material fact exists as to whether, (1) Henley lacks evidence of Dr. Richter’s
deliberate indifferent to a serious medical need; and (2) Henley lacks evidence that he
suffered any injury or harm as a result of the course of treatment prescribed by Dr. Richter.
According to Dr. Richter, by prescribing eyeglasses, he took reasonable measures to abate
a substantial risk of harm to Henley.   He contends that evidence that he and Dr. Barney
disagreed  as  to  Henley’s  course  of  treatment  is  insufficient  to  establish  deliberate
indifference.
Henley contends that summary judgment should be denied because each of Dr.
Richter’s arguments raise additional disputes of material fact.  According to Henley, he was
denied “medically indicated” treatment for approximately six months; Dr. Richter’s after-the-
fact justification for prescribing glasses raises disputed issues of material fact; refusing to
follow the course of treatment prescribed by Dr. Barney demonstrated that Dr. Richter’s
indifference was deliberate; and Henley is not required to provide objective evidence of his
symptoms.
1. Eighth Amendment Claim
“The Eighth Amendment safeguards the prisoner against a lack of medical care
that may result in pain and suffering which no one suggests would serve any penological
purpose.”   Arnett v. Webster, 658 F.3d 742, 750  (7th Cir. 2011) (quoting Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009) (internal quotation omitted)).
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Prison officials violate the Constitution if they are deliberately indifferent to a prisoner’s
serious medical need.  Id. (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)).  A prisoner’s
claim for deliberate indifference must establish “(1) an objectively serious medical condition;
and (2) an official’s deliberate indifference to that condition.”   Gomez v. Randle, 680 F.3d
859, 865 (7th Cir. 2012) (quoting Arnett, 658 F.3d at 750).  In this case, the Court will focus
of whether Dr. Richter was deliberately indifferent to Henley’s medical need.
To demonstrate deliberate indifference, a plaintiff must show that defendants
“acted with a sufficiently culpable state of mind,” something akin to recklessness.   Arnett,
658 F.3d at 751 (quoting Johnson v. Snyder, 444 F.3d 579, 585 (7th Cir. 2006)).   A prison
official acts with a sufficiently culpable state of mind when he or she knows of a substantial
risk of harm to an inmate and either acts or fails to act in disregard of that risk.   Id. (citing
Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)).   Deliberate indifference “is more than
negligence and approaches intentional wrongdoing.”   Id. (quoting Collignon v. Milwaukee
Cnty.,  163 F.3d  982,  988  (7th Cir.  1998)).   It  “is not medical malpractice; the Eighth
Amendment does not codify common law torts.”   Duckworth v. Ahmad, 532 F.3d 675, 679
(7th Cir. 2008).                                                                                     “A jury can infer deliberate indifference on the basis of a physician’s
treatment decision [when] the decision [is] so far afield of accepted professional standards
as to raise the inference that it was not actually based on a medical judgment.”  Arnett, 658
F.3d at 751 (quoting Duckworth, 532 F.3d at 679) (quotation marks omitted).
To show that Dr. Richter was deliberately indifferent, Henley needs to establish
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that he was aware of but intentionally or recklessly disregarded his serious medical need.  See
Farmer v. Brennan, 511 U.S. 825, 837 (1994); Hayes v. Snyder, 546 F.3d 516, 522-23 (7th
Cir. 2008). According to Henley, Dr. Richter acted with deliberate indifference because he
provided him glasses instead of contact lenses, as directed by Dr. Barney.   However, Dr.
Richter did follow Dr. Barney’s recommendations as to Henley’s right, surgical eye; as soon
as the sutures in Henley’s right eye were removed, he was fitted for rigid contact lenses.
Henley points to no evidence which might suggest that Dr. Richter’s treatment of his surgical
eye was deliberately indifferent.
Following Henley’s November 16, 2009 corneal transplant surgery, he wore
a soft contact lens in his left, non-surgical eye and nothing in his right eye due to the sutures
in the eye.  On April 23, 2010, Dr. Richter determined that Henley should be provided with
glasses because it would result in improved vision and provide protection to the right eye
until the sutures were removed and he could wear rigid contact lenses in both eyes.  Henley
was provided with the glasses on May 10, 2010, but he refused them because he said that Dr.
Barney had directed him to wear contacts.  Henley agreed to try the glasses on May 17, 2010,
but he did so for less than one day.   He said he had distorted vision with and without the
glasses.  Henley saw Dr. Richter again on June 4, 2010, who advised him to wear the glasses.
Henley saw Dr. Barney on July 13, 2010, who removed half of the sutures from his right eye
and determined that the eye was still not ready for a contact lens because of the remaining
sutures.   After that appointment, Dr. Barney wrote a letter advising that for patients who
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undergo corneal transplant for keratoconus, the use of rigid contact lenses following surgery
is medically indicated.   Dr. Barney also advised that, while at that time, Henley’s right eye
was not ready for contacts, he believed that left eye contact lens wear was medically
indicated for best vision. During this time, Henley had consistent contact with the HSU and,
at Dr. Richter’s recommendation, he was even temporarily transferred to DCI where there
was a full-time optometrist.  The remaining sutures were removed on October 4, 2010, and
on October 26, 2010, Henley was provided with rigid contact lenses for both eyes.
As indicated, Dr. Richter decided to provide Henley with glasses because he
thought they would provide the best vision temporarily and to protect his right eye.   In his
deposition, Dr. Richter explained his rationale following a question from Henley’s counsel
asking if he considered prescribing Henley a rigid contact lens for his left eye.  Dr. Richter
answered as follows:
Sure.
But not yet because we’re not done.  Remember, we have to get
the right eye healed up.   Then we fit the contact lens.   Then we
come back and do the left . . .
Okay.   So now we do it all at one time.   I’m not going to send
him down [to Madison] for five trips to fit the right eye and then
send him down for five trips to do the left eye.   That’s going to
cost everybody a lot of money.
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That’s ludicrous when he’s got a pair of glasses to wear that he
sees 20/20 with and he’s got protection on the right eye.
(Thompson Supp. Aff. ¶ 2, Exh A at 122-23.)
The court defers to a medical professional’s treatment decisions “unless ‘no
minimally competent professional would have so responded under those circumstances.’”
Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2008) (quoting Jackson v. Kotter, 541 F.3d
688, 698 (7th Cir. 2008)).   The record shows that Dr. Richter’s treatment of Henley was
grounded in professional judgment and was reasonable.   See Jackson, 541 F.3d at 698;
Johnson v. Doughty, 433 F.3d 1001, 1014 (7th Cir. 2006).   Even if Dr. Richter was wrong
in prescribing glasses for Henley until his sutures were removed from his right eye and he
could be fitted for contact lenses in both eyes, as long as he believed that he was providing
appropriate treatment, he was not deliberately indifferent. See Walker v. Peters, 233 F.3d
494, 499 (7th Cir. 2000).
On the basis of this record, no reasonable juror could find that Dr. Richter was
deliberately indifferent to Henley’s serious medical need.  See Duckworth, 532 F.3d at 681
(concluding that doctor who knew there was risk of cancer but erroneously thought that
another  condition  was  more  likely causing  prisoner’s  symptoms  was  not  deliberately
indifferent); Norfleet v. Webster,                                                                439  F.3d  392,  396  (7th  Cir.  2006)  (explaining  that
difference of opinion as to prisoner’s arthritis amounted to, at most, medical malpractice, and
was not constitution violation).   A good faith disagreement about the proper course of
treatment will never prove deliberate indifference.  Norfleet, 439 F.3d at 396; Johnson, 433
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F.3d at 1012-13.   Therefore, Dr. Richter’s motion for summary judgment will be granted.
2. Medical Malpractice Claim
Dr. Richter also asserts that his motion relates to Henley’s medical malpractice
claim.   However, apart from that statement in his summary judgment brief, the medical
malpractice claim has not been addressed.  Thus, summary judgment as to the state law claim
will be denied.
B. Zwiers and Lemens’ Motion for Summary Judgment
Zwiers and Lemens contend that they are entitled to summary because they had
no personal involvement in the decision to prescribe glasses instead of contact lenses to
Henley.  They further contend that they were not deliberately indifferent to Henley’s serious
medical needs.  They concede that his corneal transplant constitutes a serious medical need,
but contend that Henley cannot prove that they were deliberately indifferent to it.
Henley’s claim against Zwiers and Lemens centers on their failure to intervene
in Dr. Richter’s allegedly unconstitutional treatment of Henley.   However, the Court’s
finding that Dr. Richter is entitled to judgment on the claim forecloses Henley’s claims
against Zwiers and Lemens.   Thus, their motion for summary judgment as to the Eighth
Amendment claim will be granted.
Finally, Zwiers and Lemens acknowledge that they did not address Henley’s
medical malpractice claim and, therefore, summary judgment will be denied as to that claim.
IT IS THEREFORE ORDERED that defendants Zwiers and Lemens’ motion
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for summary judgment (Docket # 28) is granted in part denied in part.   The motion is
granted as to Henley’s Eighth Amendment claim and denied as to his medical malpractice
claim.
IT IS FURTHER ORDERED that defendant Richter’s motion for summary
judgment (Docket # 38) is granted in part and denied in part.   The motion is granted as
to Henley’s Eighth Amendment claim and denied as to his medical malpractice claim.
IT IS FURTHER ORDERED that the plaintiff’s motion to strike portions of
the affidavit of John M. Thompson and James Richter, and corresponding proposed facts
(Docket # 68) is granted in part and denied in part as described herein.
Dated at Milwaukee, Wisconsin, this 26th day of March, 2013.
SO ORDERED,
HON. RUDOLPH T. RANDA
U. S. District Judge
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