Brian A. Ducksworth v. Tammy Maassen

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 17, 2024*
Decided May 20, 2024
Before
THOMAS L. KIRSCH II, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-3431
BRIAN A. DUCKSWORTH,
Plaintiff-Appellant,
v.
TAMMY MAASSEN,
Defendant-Appellee.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 22-cv-149-wmc
William M. Conley,
Judge.
O R D E R
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
* 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. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-3431 Page 2
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.

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No. 23-3431 Page 3
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

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