United States District Court, E.D. Wisconsin
ORDER DENYING PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
C.N. CLEVERT, JR. U.S. DISTRICT JUDGE.
Jermaine McAdory, a Wisconsin state prisoner who is representing himself, filed this civil rights action pursuant to 42 U.S.C. § 1983. The court screened McAdory’s complaint in accordance with 28 U.S.C § 1915A(a) and allowed him to proceed with his claims that: 1) defendants Craig Schoenecker and Robert Frank violated the Eighth Amendment when they failed to address his concerns about side effects from the prescribed drug Trazodone; 2) defendants Schoenecker, Frank, Charles Larson, and Wendy Polenska violated the Eighth Amendment when they failed to address his concerns about side effects from the prescribed drug Meloxicam; and 3) defendants Schoenecker, Frank, Larson, and Polenska violated state law when they committed medical malpractice. This case is now before the court on cross-motions for summary judgment. (Docs. 32, 52, 71.)
I. RELEVANT FACTS
The facts in this section are taken primarily from "Defendants' Proposed Findings of Fact" (Doc. 34); those facts are accepted as true for purposes of this decision because plaintiff failed to respond to them. See Civil Local Rule 56(a)(1)(A) (E.D. Wis.). Additional facts are derived from plaintiff's sworn complaint, which the Seventh Circuit has instructed district courts to construe as an affidavit at the summary judgment stage. Ford v. Wilson, 90 F.3d 245, 246-47 (7th Cir. 1996).
On March 29, 2016, more than five months after the dispositive motion deadline and more than two months after plaintiff filed the latter of his two motions for summary judgment, plaintiff filed proposed findings of fact. Defendants have moved to strike this filing as untimely and because it fails to comply with Civil Local Rule 56(b)(1)(C). However, the court does not favor striking filings from the record; yet, for the reasons stated in defendants’ motion, the court will not consider plaintiff’s proposed findings of fact in evaluating the pending summary judgment motions.
Plaintiff was housed at Fox Lake Correctional Institution (Fox Lake) from April 15, 2014 to April 16, 2015. (Doc. 34 ¶ 1.) During that time, Schoenecker, who is employed part-time by the Wisconsin Department of Corrections (DOC) as a psychiatrist, worked at Fox Lake providing psychiatric services to inmates. (Id. ¶¶ 3-4.) Larson is employed by the DOC as a physician and works at Fox Lake providing medical services to inmates. (Id. ¶ 5-6.) Polenska is employed by the DOC as a Nurse Clinician II in the Health Services Unit (HSU) at Fox Lake, and Frank is employed by the DOC as a nurse practitioner at Fox Lake. (Id. ¶¶ 7-8.)
On September 27, 2013, while housed at Columbia Correctional Institution, plaintiff was prescribed Trazodone, an antidepressant medication, to treat his insomnia and to help improve his mood. (Id. ¶¶ 23-24.) Trazodone has the potential to cause side effects, including allergic reaction, anxiety, confusion, weakness, fast heartrate, irritableness, trouble sleeping, light-headedness, dizziness, prolonged erection, unusual behavior, thoughts of hurting yourself, unusual bleeding or bruising, blurred vision, constipation, dry mouth, headaches and sleepiness. (Id. ¶ 25.) Schoenecker states that the side-effects he considers most serious are prolonged erection, suicidal thoughts, and confusion. (Id. ¶ 26.) He would expect to see patients with those side effects as soon as possible. (Id.) However, less serious side effects, including nasal congestion, over-sedation, headache, nightmares, nausea, and irritability, would be discussed with patients, but not on an emergency basis. (Id. ¶ 25.)
Schoenecker explains that side effects of any medication will almost always occur in the first week of exposure to a new medication and will sometimes resolve if the patient stays on the medication long enough. (Id. ¶ 28.) If someone has taken something for more than a month and then suddenly experiences what they believe to be a side effect, Schoenecker questions whether the side effect is due to the medication. (Id.)
According to Schoenecker, nightmares are a common side effect of Trazodone, but are not serious. (Id. ¶ 29.) If nightmares were caused by Trazodone, they would occur in the first week, and it would be unusual for them to occur as a new side effect after a patient being on the medication for seven months, even if the dosage were increased. (Id.)
Between September 2013 and April 2014, plaintiff was taking Trazodone with no complaints of side effects. (Id. ¶ 30.) His dosage was increased on February 21, 2014, and April 11, 2014, by Dr. Robert Vickrey at the plaintiff's request to help him improve his sleep. (Id. ¶¶ 31-33.)
Plaintiff was transferred to Fox Lake on April 15, 2014. (Id. ¶ 34.) Five days after his transfer and nine days after his appointment with Dr. Vickrey, plaintiff submitted a Psychological Service Request (Request Form) stating:
To whom this may concern, this Trazodone is causing me to have headaches that is unbearable on my left side of my head, Im having nightmares to the point I actually act out physically in my sleep and it is not helping me to sleep. The doctor at CCI told me to let him know if the Trazodone is not working and he will put me on a diverse medication, but I end up moving here. Can I see you soon please.
(Id. ¶ 35.)
Request Forms are typically received and triaged by nursing staff, who, if necessary, forward them to Schoenecker. (Id. ¶ 36.) Plaintiff's Request Form was triaged by HSU staff on April 21, 2014, and he was scheduled him for an appointment with Schoenecker on May 14, 2014. (Id. ¶ 41.) Scheduling is done at the discretion of the nursing staff, who designate inmates to see a medical provider based on the provider's schedule and the priority of an inmate's condition. (Id. ¶¶ 38-39.) If nursing staff feel an inmate's concerns are emergent, Schoenecker can see them the same day or within a few days. (Id. ¶ 39.) Plaintiff was scheduled for May 14, 2014. Schoenecker speculates this was the first opening in his schedule based on the priority of other appointments. (Id. ¶ 41.) (Schoenecker does not clarify whether he also receives/reviews Request Forms submitted by inmates, whether he was aware of plaintiff's Request Form prior to the scheduled appointment on May 14, or whether he always defers to the scheduling nurse’s prioritization of Request Forms.)
On May 3, 2014, plaintiff reported that he fell from his top bunk. (Id. ¶ 58.) Plaintiff states that he fell while having a nightmare and landed on his back, hitting the back of his head. (Doc. 1 at 3.) That day, he was given a medical restriction allowing him to apply ice six times per day until July 3, 2014. (Doc. 34 ¶ 58.) On May 4, 2014, nursing staff saw plaintiff, gave him ibuprofen, analgesic balm, along with ice, and ordered him to rest. (Id.)
Plaintiff had a follow-up appointment with Frank on May 8, 2014. (Id. ¶ 57.) Plaintiff told Frank that he had been having frequent nightmares, which he thought were due to the increased dosage of Trazodone. (Id. ¶ 60.) He reported that he fell from his bunk on May 3, 2014, and had fallen on his back; he complained of lower back pain and neck pain. (Id.) However, he noted that he did not lose consciousness from the fall, and further advised Frank that he had been using the ibuprofen and balm with some relief. (Id.)
Frank examined plaintiff and diagnosed him with a lumbar sacral strain and neck strain. (Id. ¶ 62.) Frank found that plaintiff did not exhibit any symptoms of fracture or broken bone and decided not to order an x-ray or CT scan. (Id. ¶ 65.) Muscle strains are not detectable by x-ray. (Id. ¶ 66.) Frank told plaintiff to continue with the balm, and ordered a low-bunk restriction for six months so plaintiff could get his psychiatric medications regulated. (Id. ¶ 67.) Moreover, Frank discontinued the ibuprofen and prescribed Meloxicam for three months, as needed, for the pain. (Id. ¶ 68.) Additionally, Frank placed the order for Meloxicam on May 8, 2014, and plaintiff received it on May 13, 2014. (Id. ¶ 75.)
Meloxicam is a non-steroidal, anti-inflammatory drug (NSAID) used to reduce pain, swelling and stiffness of the joints. (Id. ¶ 69.) A patient must take the medication as ordered for up to two weeks before the full benefit of the drug may be achieved. (Id.) Developing an allergic reaction from this medication is extremely rare. (Id.) Frank chose Meloxicam because it is generally well-tolerated and an effective pain reliever with minimal side effects. (Id.) In addition, plaintiff had taken medications, such as ibuprofen, that are very similar to Meloxicam without problems. (Id. ¶¶ 72, 74.) Frank believes that, regardless of the type of medication, there is always potential for side effects. (Id. ¶ 70.) In his view, most side effects are temporary and subside within a few days of a patient stopping the medication. (Id. ¶¶ 71, 83, 87.)
On May 14, 2014, Schoenecker saw plaintiff for a psychiatric follow-up. (Id. ¶ 46.) During the appointment, plaintiff told Schoenecker that he would like to discontinue the Trazodone because he felt like it was causing persistent headaches, nightmares, and grogginess. (Id.) Schoenecker discontinued the Trazodone and discussed with plaintiff alternative medication. (Id. ¶¶ 46, 52) According to Schoenecker, during the appointment, plaintiff did not tell him that he had fallen from his top bunk, though plaintiff did mention that his back hurt. Indeed, Schoenecker didn't even know plaintiff was assigned to a top bunk. (Id. ¶¶ 42, 55.)
On May 15, 2014, Larson had his first appointment with plaintiff to follow-up on his complaints of spine and head pain after falling from his top-bunk due to a nightmare induced by his psychiatric medication. (Id. ¶ 79.) Plaintiff complained of chest discomfort and black stools since starting the Meloxicam prescribed by Frank. (Id. ¶ 81.) Larson told plaintiff to continue with the balm, discontinued the Meloxicam and told plaintiff to avoid NSAID medications; he found no basis to keep plaintiff on other oral analgesic medications. (Id. ¶ 87.) Larson agreed with Frank's assessment that there were no objective findings on which to base additional x-ray evaluations. (Id. ¶ 88.) Plaintiff did not complain of a rash. (Id. ¶ 81.)
On May 16, 2014, Polenska received a telephone call from a unit sergeant reporting that plaintiff thought he was having a stroke. (Id. ¶ 90.) The sergeant called plaintiff to the desk and asked for his symptoms. (Id. ¶ 91.) Polenska heard plaintiff say "head pain and face twisting." (Id.) Polenska asked the sergeant whether plaintiff was exhibiting symptoms such as one-sided facial drooping, garbled speech, or walking heavy footed or with an unsteady gait, which are possible signs of a stroke. (Id.) The sergeant denied plaintiff was exhibiting any of those symptoms. (Id.) Polenska determined that plaintiff's symptoms did not match the symptoms of a stroke or warrant an emergency visit, so she asked the sergeant to have plaintiff complete a Health Services request form (HSR). (Id. ¶ 94.) This was Polenska's only interaction with plaintiff. (Id. ¶ 96.)
The next day, on May 17, 2014, plaintiff was seen by a registered nurse to follow up on plaintiff's HSR. (Id. ¶ 98.) Plaintiff complained of sharp pain in his head but did not mention any other symptoms. (Id.) The nurse assessed plaintiff and found no apparent abnormalities. (Id.)
On June 26, 2014, plaintiff had an appointment with a nurse regarding his concern about a rash. (Id. ¶ 106.) The nurse prescribed him some hydrocortisone cream. (Id.) On July 1, 2014, plaintiff had an appointment with Larson, at which time he complained that since stopping the Meloxicam, he had developed a rash that occurred most often when he sweat. (Id. ¶ 107.) Larson advised plaintiff to avoid NSAIDs and he educated plaintiff on self-care and prevention of heat rash, emphasizing cool compresses. (Id. ¶ 109.) Larson also ...