United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING DEFENDANTS ARMOR CORRECTIONAL HEALTH SERVICE, INC., ELFTMAN, AND XIONG’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 40), GRANTING DEFENDANT DR. GABLE’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 45), GRANTING DEFENDANTS GOSS, HAFEMANN, HERNANDEZ, MCKENZIE AND MILWAUKEE COUNTY HOUSE OF CORRECTION’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 52), DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE SUR-REPLY (DKT. NO. 100), AND DISMISSING CASE
HON. PAMELA PEPPER United States District Judge
The plaintiff is a Wisconsin state prisoner, representing himself. He filed this lawsuit under 42 U.S.C. §1983 alleging that, while confined at the Milwaukee County House of Correction, the defendants denied him adequate medical care for his asthma, arthritis, and back pain, and subjected him to cold cell temperatures. Dkt. No. 1. The defendants have filed motions for summary judgment. Specifically, defendants Armor Correctional Health Service Inc. (“Armor”), Floyd Elftman, and Mai Xiong filed a motion for summary judgment on August 19, 2015, Dkt. No. 40; defendant Dr. Thomas Gable filed a motion for summary judgment on August 20, 2015, Dkt. No. 45; and defendants Rebecca Goss, Michael Hafemann, Jose Hernandez, Kerri McKenzie, and Milwaukee County House of Correction (“HOC”) filed a motion for summary judgment on August 25, 2015, Dkt. No. 52. For the reasons explained in this order, the court will grant the defendants’ motions and dismiss this case.
I. The Defendants’ Motions for Summary Judgment
1. Preliminary Matter
In this section, the court includes relevant facts from defendants Armor, Elftman, and Xiong’s Proposed Findings of Fact (Dkt. No. 42), defendant Dr. Gable’s Proposed Findings of Fact (Dkt. No. 47), and defendants Hafemann, Goss, McKenzie, Hernandez, and HOC’s Proposed Findings of Fact (Dkt. No. 53). The plaintiff did not respond to Dr. Gable’s proposed facts or to Hafemann, Goss, McKenzie, Hernandez, and HOC’s proposed facts. Thus, these facts are undisputed for summary judgment purposes. See Civil L.R. 56(b)(4) (E.D. Wis.). The plaintiff did file a response to Armor, Elftman, and Xiong’s proposed facts. Most of his responses, however, did not cite to the record as required. See Fed.R.Civ.P. 56(c)(1), 56(e); Civil L.R. 56(b)(2)(B) (E.D. Wis.).
The plaintiff filed his own Proposed Findings of Fact. Dkt. No. 86. Most of these proposed facts do not cite to admissible evidence in the record; for that reason, the court will not consider those facts in its discussion below. See Fed.R.Civ.P. 56(c)(1); Civil L.R. 56(b)(2)(B)(ii) (E.D. Wis.). Some of the plaintiff’s proposed facts cite to the defendants’ evidentiary materials and/or proposed facts. The court will not consider these proposed facts in this section because they do not provide any additional facts that require the denial of summary judgment. See Civil L.R. 56(b)(2)(B)(ii) (E.D. Wis.). Finally, some the plaintiff’s proposed facts cite to evidentiary materials that do not support the fact he asserts. The court also will not consider such proposed facts.
The plaintiff was incarcerated at the HOC from October 22, 2013 until January 13, 2014. Dkt. No. 42 ¶ 2; Dkt. No. 47 ¶ 3; Dkt. No. 53 ¶¶ 2-3.
Defendant Floyd Elftman was employed as a nurse practitioner at the HOC at all times relevant. Dkt. No. 42 ¶ 1.
In the complaint, the plaintiff alleged that sometime between November of 2013 and January 13, 2014, Dkt. No. 1 at 7, the plaintiff had an asthma attack, and defendant Xiong (who was working in the Health Services Unit at the time) told the reporting officer that there was nothing medical services could do, and that there was nothing in the plaintiff’s file requiring him to be given a breathing treatment, id. at 8-9. He also alleged that defendant Xiong never had him taken to HSU or came to his dorm to evaluate him. Id. at 9. According to the proposed findings of fact presented by defendants Armor Correctional Health Services, Nurse Practitioner Floyd Elftman, and Nurse Mai Xiong, however, the medical records regarding the plaintiff’s contact with medical staff during the relevant time period reveal that defendant Xiong “never was recorded as seeing or making any decisions relative to” the plaintiff’s care. Dkt. No. 41 at 2.
Defendant Dr. Thomas Gable is a doctor of osteopathic medicine. Dkt. No. 47 ¶ 5. At all times relevant to this case, he was employed by Armor Correctional Health Care, an agency that provided health care services to the Milwaukee County Jail and the HOC. Id. ¶ 7. Between October 22, 2013 and November 25, 2013, Dr. Gable was the acting medical director at the Milwaukee County Jail. Id. ¶ 9. Dr. Gable did not have a supervisory role at the HOC at any time during the plaintiff’s incarceration. Id. ¶ 11. Between October 22, 2013 and January 13, 2014, Dr. Gable occasionally was the on-call physician for the HOC. Id. ¶ 12. He was transferred to the HOC the second week of January of 2014 to work as a staff physician. Id.¶ 15.
Defendant Michael Hafemann is the superintendent of the HOC. Dkt. No. 53 ¶ 4. Defendant Kerri McKenzie is the assistant superintendent for operations for the HOC. Id. ¶ 5. Defendant Jose Hernandez is the assistant superintendent for programming at the HOC. Id. ¶ 6. Defendant Rebecca Goss was, at the times relevant to the complaint, a correctional officer at the HOC; she now works as a case manager at the Milwaukee County Jail. Id. ¶ 7. Defendant HOC is a Milwaukee County department. Id. ¶ 8.
3. Facts Regarding Medical Care Claim
Upon his intake to the HOC on October 22, 2013, the plaintiff was prescribed Acetaminophen 325 mg, three times a day, for his chronic arthritis and back pain. Dkt. No. 42 ¶ 3. The plaintiff’s asthma status was tested upon intake. Id. ¶ 4. His peak flow values were 550, 600 and 600. Id. The plaintiff was placed on asthma protocol as needed. Id. ¶ 5. Normal peak flow values for a forty-seven-year-old, six-foot-tall male are in the range of 554-593. Id. ¶ 6.
On October 23, 2013, defendant Elftman prescribed Naproxen 375 mg, twice a day, for the plaintiff’s back pain. Id. ¶ 7. At that visit, the plaintiff described his asthma condition as having been diagnosed thirteen years ago. Id. ¶ 8. He reported that his symptoms included shortness of breath, that he took Albuterol occasionally but had no current “prescriber” for Albuterol, that his last emergency room visit for asthma was approximately one year ago, that he had been hospitalized for asthma in 2008, that he’d never needed an intubation, and that he was awakened by his symptoms three to four times monthly. Id. At that time, the plaintiff’s pulse oxygen ratio was 99%. Id. ¶ 9. Normal pulse oximeter readings are 95% to 100%. Id. ¶ 10. Two days later, the plaintiff asked to be prescribed Gabapentin, stating that the Naproxen was not working. Id. ¶ 11.
On October 28, 2013, the plaintiff was seen by a nurse, who explained the medication prescribed and who made sure he was given the dose he had missed that morning. Id.¶ 12. That same day, defendant Elftman changed the order for the plaintiff’s back pain medication, and added Carbamazepine, 200 mg twice a day, to the Naproxen. Id. ¶ 13.
On November 5, 2013, the plaintiff was given the flu vaccine. Id. ¶ 14. On November 6, 2013, the plaintiff made a sick call request for a sudden, two-week duration onset of neck pain and tingling to his fingers. Id. ¶ 15. Defendant Elftman saw the plaintiff on November 8, 2013, at which time the plaintiff also complained of hard stools. Id. ¶ 16. A stool softener was ordered for the plaintiff. Id. ¶ 17.
By November 11, 2013, the plaintiff began refusing his doses of Carbamazepine. Id. ¶ 18. On November 13, 2013, the medical records report that the plaintiff missed five doses in seven days, and that he requested the medication to be discontinued because it was not helping his back and he did not want it any longer. Id.¶ 19.
Starting November 15, 2013, the plaintiff began complaining of a cough and cold. Id. ¶ 20. That day, he was evaluated; his lungs were clear and his vital signs normal, his pulse oxygen was 99%, and he was observed to have a dry cough. Id. ¶ 21. The same day, defendant Elftman ordered Guaifenesin cough syrup for his symptoms. Id. ¶ 22. Dr. Gable’s name is hand-written underneath the November 15, 2013, order for cough syrup by defendant Elftman, but Dr. Gable’s proposed findings indicate that the notation was not made in his handwriting, and that he was not the individual who ordered the cough syrup on that date. Dkt. No. 47 ¶ 26.
Also on November 15, 2013, an appointment request to see defendant Elftman was recorded, because the plaintiff’s medications for his upper neck and spine pain were not working. Dkt. No. 42 ¶ 23.
The first time the plaintiff made any complaint about his asthma or breathing was a November 16, 2013 sick call request, stating that his asthma was flaring up and that he had been asking for an inhaler since October 25, 2013, but had not received one. Id. ¶ 24. There was, however, no record of the plaintiff having requested on inhaler on that date, id. at 25, and two days earlier, on October 23, 2013, defendant Elftman had made a note that the plaintiff’s asthma had not been confirmed, id. at 26.
On November 16, 2013, the plaintiff was seen by a nurse for an evaluation of his complaints regarding shortness of breath. Id. ¶ 28. The nurse noted that there was “a risk of ineffective air exchange due to frequent dry cough, expiratory wheezing heard in both lungs but that no signs or symptoms of shortness of breath were observed or reported.” Id. ¶ 29. The plaintiff’s pulse oxygen ratio was found to be 98%, within normal. Id. ¶ 30. An appointment was made for the plaintiff to see defendant Elftman. Id. ¶ 31.
On November 18, 2013, defendant Elftman evaluated the plaintiff. Id. ¶ 32. The plaintiff told defendant Elftman that he did not want Carbamazepine because it was not helping his back pain, id. ¶ 33, and defendant Elftman discontinued the prescription for that drug, id. The plaintiff reported that he had suffered a cough and congestion for four days. Id. ¶ 34. His vital signs were normal. Id. ¶ 35. He was observed to have mild congestion in his nose, and his right ear showed signs of congestion. Id. ¶ 36. The plaintiff’s respiration rate was normal and his lungs were clear to auscultation. Id. ¶ 37. The plaintiff was diagnosed with a viral syndrome, was encouraged to rest, was told to take Naproxen as needed; a cough syrup with an expectorant was reordered for five additional days. Id. ¶ 38.
On November 21, 2013, correctional officers notified Nurse Melissa Wynstra and the charge nurse on duty that the plaintiff reported that he had “had an asthma attack, but is better now and is just coughing.” Id. ¶ 39. The plaintiff later reported through the correctional officers that “Dr. Floyd [Nurse Practitioner Floyd Elftman] told him that if he had troubles breathing that he would get breathing treatments.” Id. ¶ 40. The nursing staff noted that the plaintiff had just been seen by a nurse practitioner for cough and congestion, and that while he had had cough syrup prescribed, he’d received no other medication orders. Id. ¶ 41. The plaintiff was advised, without being seen, to fill out a sick call request if he had any further respiratory problems. Id. ¶ 42. On the same day, the plaintiff filled out a sick call request stating, “I had an asthma attack at 1:00 am and I was refuse treatment. I want to see Floyd [Nurse Practitioner Floyd Elftman]. Also my right hand is numb from my shoulder on down. It tingles and I have problems holding items.” Id. ¶ 43.
On November 23, 2013, Nurse Gloria Beal saw the plaintiff for a nursing assessment, which revealed that the plaintiff’s vital signs were normal, his lungs were clear to auscultation in all fields, his pulse oxygen was 99, and that he complained of a headache. Dkt. No. 47 ¶ 27. A notation was made that he last used an Albuterol inhaler in October 2013. Id. ¶ 28. The plaintiff was observed to have a frequent cough of the “non-productive, dry hackey type, ” and was diagnosed with an altered respiratory status; the cough syrup was requested to be renewed, along with a referral to the nurse practitioner, as needed. Id. ¶ 29. That same day, Dr. Gable ordered a refill of cough medicine with an expectorant for the plaintiff, upon Nurse Beal’s request. Id. ¶ 30. An appointment was made for the plaintiff to be seen by a physician. Id. ¶ 31.
On November 26, 2013, the plaintiff was seen by Masoor Munim, M.D., for back pain, ear itching, and asthma. Dkt. No. 42 ¶ 55. A history was taken and the plaintiff was examined. Id. ¶ 56. Dr. Munim’s diagnosis was an outer left ear infection, chronic back pain with numbness and tingling, and possible neuropathy. Id. ¶ 57. The plaintiff was prescribed Gabapentin, Albuterol, and ear drops. Id. ¶ 58. A follow-up appointment with Dr. Munim was scheduled for December 26, 2013. Id. ¶ 59. Health care records from an outside hospital were obtained to confirm the plaintiff’s asthma. Id. ¶ 60. Those records indicated that at the time of treatment-December 4, 2011-the plaintiff was on Neurontin for nerve pain, Albuterol, Trazodone, and Remeron. Id. ¶ 61.
On December 18, 2013, the plaintiff complained of flu-like symptoms. Id. ¶ 67. A nasal swab and throat culture were obtained. Id. ¶ 68. His pulse oxygen was 100%. Id. ¶ 69.
On December 19, 2013, defendant Elftman ordered two tablets of Acetaminophen 500 mg daily to be alternated with the plaintiff’s Naproxen medication. Id. ¶ 70. That same day, the lab results from the nasal swab confirmed Type A influenza. Id. ¶ 71. Because the plaintiff had suffered symptoms for longer than forty-eight hours, he was not eligible for Tamiflu. Id. ¶ 72. The plaintiff was moved to an isolation pod because of the diagnosis. Id. ¶ 73.
On December 20, 2013, the plaintiff complained to Vicki Dembowski, RN, the nursing supervisor, about his anger for being placed in isolation due to the flu. Id. ¶ 74. “He appeared generally well, was afebrile with normal pulse and respiration.” Id. ¶ 75. Later that same day, Jeanne Chichacki, LPN, found the plaintiff did not have a fever. Id. ¶ 76. The plaintiff complained again about being placed in isolation, stating, “I don't know why they put me here everyone is contagious.” Id. ¶ 77.
On December 23, 2013, the plaintiff’s throat culture results were reported; he had strep throat. Id. ¶ 78. He was prescribed penicillin for ten days and cough medicine was reordered. Id. ¶ 79.
On December 25, 2013, the plaintiff placed a sick call request, indicating that he needed to see the doctor because the tingling in his spine had increased throughout his upper body. Id. ¶ 80.
The next day, on December 26, 2013, Dr. Munim saw the plaintiff. Id. ¶ 81. The plaintiff reported that he still had back pain and now had tingling sensation in his right upper extremities, and that he used Gabapentin 600 mg at home. Id.¶ 82. Dr. Munim examined him without finding any abnormalities. Id. ¶ 83. Dr. Munim increased the dose of Gabapentin from 300 mg to 600 mg three times a day. Id. ¶ 84.
On December 31, 2013, the plaintiff made a sick call request, asking to be retested for strep throat. Id. ¶ 85. That request was denied unless the plaintiff’s symptoms indicated a need for a retest. Id.
a. Dr. Gable’s Involvement in Medical Care Claim
Dr. Gable’s only involvement in the plaintiff’s medical care was when, after being asked to do so by Nurse Gloria Beal after she’d conducted a nursing evaluation of the plaintiff, he placed a November 23, 2013 order to refill cough medicine with expectorant for the plaintiff. Dkt. No. 47 ¶ 33. Dr. Gable was not involved in the care and treatment of the plaintiff ...