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Hebert v. Nitz

United States District Court, W.D. Wisconsin

March 22, 2016

DAVID HEBERT, Plaintiff,



Pro se plaintiff David Hebert, an inmate at the Stanley Correctional Institution, brings Eighth Amendment and state-law negligence claims against defendant prison officials Nurse Shelley Nitz and Captain Eric Speckhart. Plaintiff alleges that after he had surgery for a broken wrist, they refused to give him his prescribed Vicodin to alleviate the severe pain he suffered.

Defendants have filed a motion for summary judgment, and plaintiff has filed motions related to discovery as well as a motion for the court’s assistance in recruiting counsel. After considering these filings, I conclude that there are disputed issues of material fact precluding resolution of the claim on summary judgment, and that it is appropriate to recruit counsel to assist plaintiff with the complex medical issues raised in the case. Accordingly, I will deny defendants’ motion for summary judgment and grant plaintiff’s motion for counsel. I will deny the remainder of plaintiff’s motions, with the exception of a motion to compel a new response to an interrogatory that defendants previously inappropriately answered.


The following facts are drawn from the parties’ proposed findings of fact and supporting evidentiary materials, and are undisputed unless noted otherwise.

Plaintiff David Hebert is in inmate who has been incarcerated at Stanley Correctional Institution (“SCI”) since 2007. During the times relevant to this case, defendant Shelley Nitz was as a “Nurse Clinician 2” at SCI. Defendant Eric Speckhart was a “Supervising Officer 2 (Captain)” at SCI.

Plaintiff broke his right wrist playing softball on May 29, 2011. He was sent to Our Lady of Victory Hospital and then to Marshfield Clinic. A doctor set plaintiff’s broken bone. Plaintiff’s wrist was placed in a cast and he was given a sling and a prescription for Vicodin, a narcotic medication used for short-term relief of moderate to severe pain. He was returned to SCI.

On May 31, 2011, plaintiff reported that he heard his wrist “pop” and was experiencing increased pain. Dr. Hannula (a non-defendant) split the cast and removed a section of it to alleviate plaintiff’s pain. Plaintiff was seen at Marshfield Clinic on June 6, 2011, for a scheduled follow-up. Two days later, doctors performed an “open reduction internal fixation surgery” on plaintiff. As part of the procedure, plaintiff was given a nerve block to temporarily numb some of his pain. Plaintiff was again prescribed Vicodin to take on an “as-needed” basis. Prison staff controlled plaintiff’s access to the Vicodin.

Plaintiff returned to SCI that night, at about 9:45 p.m., plaintiff was placed in the Health Services Unit (HSU), pursuant to the hospital’s recommendation that he be monitored overnight because of the nerve block he was given. A nurse gave him a dose of Vicodin and an ice bag at about 9:50 p.m.

Defendant Nurse Nitz saw plaintiff at 10:00 p.m. Plaintiff said that he was not in pain, and that his arm was still numb but that he could move his fingers. Nitz gave plaintiff provided an ice bag and extra pillow. Nitz received orders from Dr. Hannula to give plaintiff one or two tablets of Vicodin four times a day as needed for two weeks.

Nitz states that when an inmate is ordered to receive medication four times a day, the medication is dispensed at four specific times: 8:00 a.m., noon, 6:00 p.m., and 8:30 p.m., unless the doctor specifies that it is to be dispensed at other times. Plaintiff disputes this. He slightly disagrees with the specific times, which he calls “pill call” times-he states that they are 8:00 a.m., 1:00 p.m., 6:00 p.m., and 8:00 p.m. He also disputes that nurses are required to dispense these medications only at these times, and states that there were several times during the treatment of his wrist that he received Vicodin at times other than the four “pill call” times. The “DEA Controlled Substance Perpetual Inventory HSU Medication Room” chart submitted by plaintiff supports his statement. See Dkt. 31-12. It shows that plaintiff received Vicodin at non-pill-call times several times in late May and early June 2011.

Nitz saw plaintiff again at 11:30 p.m. He was sitting in his room and denied having any pain. She provided him an ice bag and advised that he should press his call button if he had any concerns.

Plaintiff pushed his call button around 2:00 a.m. The parties dispute aspects of what plaintiff told Nitz at this time. Plaintiff states that he was experiencing pain of about 7 on a 1-10 scale, that he was grimacing because of the pain, and that his fingers were “barely numb with slight tingling.” Nitz states that plaintiff reported pain of 6-7 on the scale, that he did not appear to be experiencing extreme pain, was not grimacing, and that his fingers were “still numb and tingling.” It is undisputed that Nitz would not give plaintiff Vicodin because it was not a designated “pill call” time. Nitz told plaintiff to use his ice bag and elevate his arm.

Nitz saw plaintiff again sometime between 2:30 and 3:00 a.m. Nitz says that plaintiff did not appear to be in distress. Plaintiff states that he was grimacing and that he told Nitz that his pain was now fluctuating between 8 and 10 on the scale, that his fingers were no longer numb, and that his arm felt like it was in a vice. Nitz again told plaintiff that she could not give plaintiff Vicodin. She instead ...

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