Opinion
23-3431
05-20-2024
BRIAN A. DUCKSWORTH, Plaintiff-Appellant, v. TAMMY MAASSEN, Defendant-Appellee.
NONPRECEDENTIAL DISPOSITION
Submitted May 17, 2024 [*]
Appeal from the United States District Court for the Western District of Wisconsin. No. 22-cv-149-wmc William M. Conley, Judge.
Before THOMAS L. KIRSCH II, Circuit Judge, CANDACE JACKSON-AKIWUMI, Circuit Judge, DORIS L. PRYOR, Circuit Judge
ORDER
Brian Ducksworth, a Wisconsin state prisoner, sued Tammy Maassen, a nurse working at the prison, accusing her of violating his Eighth Amendment rights by failing to prevent his close contact with prisoners infected with COVID-19. The district court entered summary judgment for Maassen, and we affirm because she lacked the power to prevent the interactions and otherwise complied with the Eighth Amendment.
Because we are reviewing a summary judgment adverse to Ducksworth, the non-moving party, we recite the facts with all reasonable inferences construed in his favor. Hunter v. Mueske, 73 F.4th 561, 565 (7th Cir. 2023). In December 2021, Ducksworth was incarcerated in the "A-side" of the Oxbow Unit at Jackson Correctional Institute in Black River Falls, Wisconsin. Maassen, a registered nurse, worked in the health services unit at the prison. She supervised nursing staff and participated in the prison's response to COVID by advising prisoners to wear masks, offering vaccines, and isolating infected prisoners brought to the infirmary.
After the prison had an uptick in prisoners testing positive for COVID, it brought in Wisconsin's National Guard to test all prisoners. The National Guard tested the Oxbow Unit on December 7, and the prison received the results on the afternoon of December 13. Eleven prisoners in Oxbow tested positive. That evening, the unit manager for Oxbow recommended by email, with Maassen copied, that the infected prisoners and their cellmates isolate in the "B-Side." He also recommended halting the movement of any prisoners out of Oxbow because COVID-positive prisoners had commingled with the COVID-negative prisoners before the prison received the test results. The next afternoon, on December 14th, the unit manager and another prison official moved the COVID-positive prisoners and their cellmates to the B-Side.
The morning before COVID-positive prisoners and their cellmates moved to the B-side, Ducksworth had met with a fellow prisoner during the prison's peer mentor program. Unbeknownst to Ducksworth, the other prisoner was COVID-positive. (Ducksworth does not say whether he wore a mask, but he does not dispute that the prison made them available to him.) Previously Ducksworth had also interacted with other prisoners who turned out to be COVID-positive.
Ducksworth never tested positive or contracted COVID in the following months, but upon learning that he had been exposed to infected prisoners, he became distressed and sued Maassen under 42 U.S.C. § 1983. He alleged that she violated the Eighth Amendment's bar against cruel and unusual punishment because she did not prevent his contact with the COVID-positive prisoners. The district court entered summary judgment in her favor. It observed that COVID had not infected Ducksworth and that Maassen was not deliberately indifferent to his well-being because she had taken reasonable steps to combat the spread of COVID and had not knowingly exposed Ducksworth to infected prisoners.
We review the summary judgment decision de novo. Hunter, 73 F.4th at 564-65. To get past summary judgment on his Eighth Amendment claim, Ducksworth had to present evidence sufficient to persuade a reasonable jury that he faced a "substantial risk of serious harm" to which Maassen responded with "deliberate indifference." Farmer v. Brennan, 511 U.S. 825, 834 (1994). Prison officials show deliberate indifference by having actual knowledge of the substantial risk of harm and doing nothing within their control about it. Id. at 837.
On appeal Ducksworth's argument is limited. He concedes that Maassen was unaware that he faced a risk of exposure to COVID, and thus she did not deliberately ignore that risk, until the prison received the test results on December 13. But he maintains that Maassen deliberately ignored this risk between the afternoons of December 13 and 14 by allowing him to interact with the infected prisoners before they were isolated. For at least two reasons he must lose.
First, no reasonable jury could conclude that, between December 13 and 14, Maassen deliberately ignored a risk of COVID exposure that she could abate. To begin, it is undisputed that Maassen lacked the authority to relocate or restrict prisoners, like Ducksworth, who were not in the infirmary. She cannot be held liable for failing to take steps beyond her power. Miller v. Harbaugh, 698 F.3d 956, 962 (7th Cir. 2012). Further, no evidence suggests that she was aware that, in this period, Ducksworth was interacting with infected prisoners through the peer-mentoring program or otherwise. Finally, she knew from the email on December 13 that the unit manager was working to rearrange cells to isolate the infected prisoners (and did so the next day), obviating the need for her to duplicate his efforts.
In addition, there are no remedies for Ducksworth's claim. First, he has presented no evidence of a compensable injury, as is required. See Lord v. Beahm, 952 F.3d 902, 905 (7th Cir. 2020). He concedes that he never contracted COVID in the months following the exposure to COVID-positive prisoners. And he cannot recover compensatory damages for the psychological distress from mere exposure because, without a physical injury, psychological stress is not compensable. 42 U.S.C. § 1997e(e). That leaves available only nominal and punitive damages. Lisle v. Welborn, 933 F.3d 705, 719 (7th Cir. 2019). But punitive damages require evidence of "evil motive or intent" or "reckless or callous indifference," Smith v. Wade, 461 U.S. 30, 56 (1983), and Ducksworth does not cite any. Finally, he does not tell us on appeal that he wishes to pursue nominal damages. Thus he has not supported a basis for compensation.
AFFIRMED.
[*] We have agreed to decide the case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. FED. R. APP. p. 34(a)(2)(C).