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Messner v. Murphy

United States District Court, E.D. Wisconsin

April 6, 2016




Stephen Messner, a Wisconsin state prisoner who is currently confined at Oshkosh Correctional Institution (Oshkosh), filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging that his civil rights were violated. Judge Rudolph T. Randa (to whom this case was assigned at the time) screened Messner’s complaint pursuant to 28 U.S.C § 1915A(a) and allowed him to proceed with his claims that defendants Patrick Murphy and Corina Lutz-Daul were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment to the United States Constitution. (ECF No. 7.)

The parties subsequently consented to have this court resolve this matter. (ECF Nos. 2, 9.) This case is now before the court on the defendants’ motion for summary judgment. (ECF No. 17.)


The facts in this section are primarily taken from “Defendants’ Replies to Plaintiff’s Responses to Defendants’ Proposed Findings of Fact.” (ECF No. 26.) The facts are undisputed unless noted otherwise.

Murphy has been employed by the Wisconsin Department of Corrections (DOC) as a physician at Oshkosh since March 2007. (Id. at ¶ 2.) Lutz-Daul was employed by the DOC as a nurse clinician in the Oshkosh Health Services Unit (HSU) from June 4, 2012, until March 21, 2015. (Id. at ¶ 3.) Messner is suing the defendants for failing to treat his complaints of extreme stomach pain and nausea from October 2012 to September 2013. (Id. at ¶ 4.)

On October 11, 2012, Messner submitted a health services request (HSR) because he was experiencing abdominal pain. (Id. at ¶ 23.) The next day he was seen by nursing staff, whom he informed that his stomach hurt and that the pain increased when he pressed on it. (Id. at ¶ 23, 24.) He also stated that the pain had gotten progressively worse over the past two weeks and that it hurt more after eating a lot. (Id. at ¶ 24)

Murphy examined Messner that day. (Id. at ¶ 27.) Messner informed Murphy that the pain began in his right lower back and radiated to his right, mid-abdomen but that it was then located in his right middle to right lower abdomen. (Id. at ¶ 27.) Messner also stated that he felt pain when he moved but not when he sat still or laid down. (Id. at ¶ 28.) Messner indicated that he had some nausea but was not vomiting and that he had not had diarrhea or constipation. (Id. at ¶ 29.) Murphy noted that Messner was alert with no apparent distress; his lungs were clear; his abdomen was soft with positive bowel sounds; he had a tender right upper quadrant to right mid- abdomen (Messner recalls squirming in pain when Murphy pressed his abdomen), with no rebound or guarding. (Id. at ¶ 30.) Messner recalls telling Murphy that he had previously suffered from colitis, although Murphy does not recall Messner informing him of that diagnosis. (Id. at ¶ 33-34.)

Based on the exam, Murphy assessed a possible muscle strain and prescribed Tylenol as needed for the pain. (Id. at ¶ 31.) Murphy also directed Messner to contact HSU if the pain worsened. (Id. at ¶ 32.)

On October 26, 2012, Messner filed an HSR stating, “I saw Dr. Murphy for pain in back and side about (2) weeks ago - pain has not subsided and has gradually gotten worse. He recommended I put a slip in if no change for the better.” (Id. at ¶ 36.) Messner was notified that he was scheduled to see Murphy. (Id. at ¶ 37.) On November 1, 2012, Messner submitted another HSR complaining that his pain was increasing. (Id. at ¶ 39.) Murphy did not see Messner but instead prescribed acetaminophen three times a day as needed for one year. (Id. at ¶ 39.)

On December 24, 2012, Messner submitted another HSR, stating, “I saw Dr. Murphy for pain in side, stomach, and back a couple of months ago and was told If (sic) pain persists, or gets worst to contact him. I sent a request quite some time ago to see him again. I was told I was ‘red tag’ to see doctor and still have not seen him. What’s up?” (Id. at ¶ 41.) Murphy reviewed Messner’s records and scheduled Messner for a visit on December 28, 2012. (Id. at ¶ 43.)

Murphy later decided that Messner’s condition was not in need of a follow-up as urgently as other patients, so he rescheduled Messner’s appointment for January 17, 2013. (Id. at ¶ 43-44.) At the time Murphy was the only physician at Oshkosh and could see only six to twelve patients per day out of more than two thousand inmates. (Id. at ¶ 45.) (Murphy does not say how many patients requested to see him on a typical day, so the actual demand for his services is unclear.) Murphy would schedule patients in order of perceived need as determined by him and the nurses. (Id. at ¶ 45.) Murphy states that less urgent needs are eventually addressed but that there may be some delay. (Id.)

On January 3, 2013, nursing staff examined Messner for his complaints of continued abdominal pain and back pain. (Id. at ¶ 46.) Messner told the nurse that he was having right upper quadrant pain that radiated to his back and neck and that it felt like his brain was sloshing in his head. (Id. at ¶ 47.) He said, “[T]here is something not right.” (Id.) Messner also recalls specifically informing nurses of his abdominal pain. (Id. at ¶ 48.) The nursing staff reassured Messner and advised him to continue with his pain medication. (Id. at ¶ 49.) After reviewing the nursing appointment notes, Murphy decided that Messner’s January 17 appointment could wait, so he cancelled the appointment. (Id. at ¶ 51-52.)

On March 26, 2013, Messner submitted another HSR, stating that he “ . . . still [has] pain in lower stomach, side, and back. I found the source of my pain . . . not a muscle as Dr. Murphy thought. I have a fairly large growth on my right testis. Need to be seen ASAP.” (Id. at ¶ 58.) Messner was seen the next day by the nursing staff. (Id. at ΒΆ 59.) Nursing staff notes indicate that Messner complained about pain on the right side of his scrotum, which was shooting through to his side and back, but Messner ...

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