United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge United States District Court
Plaintiff Ernesto Rivera filed this civil rights action under 42 U.S.C. § 1983 alleging that six nurses at Kettle Moraine Correctional Institution violated the Eighth Amendment prohibition of cruel and unusual punishment by their deliberate indifference to his serious medical needs. More specifically, Rivera alleges that the nurses failed to properly respond to his complaints of severe abdominal pain, which began on the evening of June 17, 2013, and delayed having him seen by a physician and/or transferred to a hospital until the afternoon of June 19, 2013. Upon his arrival at the hospital, it was determined that his appendix was inflamed and surgery was performed.
This case is before the court on Defendants Palm and Robinson’s motion for summary judgment. Defendants and Plaintiff have also filed cross motions regarding certain inadvertently stipulated to evidence. For the reasons that follow, Defendants’ motion for summary judgment (ECF No. 63) will be denied, Defendants’ motion to withdraw inadvertently stipulated documents from evidence and clarify scope of stipulation (ECF No. 82) will be denied, and Plaintiff’s Rule 7(h) expedited non-dispositive motion to strike Defendants’ objections (ECF No. 84) will be denied.
At all times relevant to this suit Plaintiff Ernesto Rivera was a prisoner at Kettle Moraine Correctional Institution. On the evening of June 17, 2013, Plaintiff began experiencing the symptoms of severe stomach pain, vomiting, and nausea. Plaintiff spoke with a correctional officer, requesting that he be sent to the Health Services Unit (HSU) located at a separate building within the institution. The officer called the HSU and, after a brief discussion with the nurse, handed the phone to Plaintiff. Plaintiff told the nurse about his symptoms and denied having either gas or the flu. The nurse refused to see Plaintiff and recommended walking and drinking fluids. Around 3:50 a.m. on June 18, 2013, Plaintiff again approached the same officer, complaining of severe pain in his side. The officer explained that no nurse was on duty and allowed Plaintiff to take a shower in an effort to alleviate the pain.
Correctional officers drove Plaintiff to the HSU at 6:00 a.m. on June 18, 2013 and Plaintiff was evaluated by Nurse Lisa Hocutt at around 6:25 a.m. During the examination, Plaintiff rated his pain at an intensity of 10 out of 10 and told Hocutt about the nausea and vomiting. Throughout the evaluation Plaintiff was hunched and grabbing the right side of his abdomen. Hocutt recorded that Plaintiff suffered from human immunodeficiency virus (HIV), rated his pain as a 10 out of 10, and that his abdomen was tender on palpation. Hocutt recommended Plaintiff drink fluids and walk to alleviate the pain, informing him that she believed he was likely suffering from the flu or gas. Plaintiff disagreed, stating that the pain was so severe he thought something was wrong with his appendix. Plaintiff’s request to see a doctor was denied. Hocutt issued Plaintiff a box of antacids and instructions to return if his symptoms did not improve.
Later on June 18, 2013, Plaintiff approached a guard and informed him that his symptoms had not improved. The guard called the HSU and allowed Plaintiff to speak with the nurse. Plaintiff again explained that he was suffering from severe stomach pain on the right side of his abdomen. The nurse again told Plaintiff that it was the flu or gas and explained that he needed to drink fluids and walk it off. Plaintiff again stated that he believed that it was his appendix and asked to be sent to the doctor. The nurse refused to see him or refer him to a doctor.
Around 7:00 p.m. on June 18, 2013, Plaintiff again requested medical care. Due to his pain, Plaintiff was transported to the HSU by van. During this evaluation, Plaintiff was examined by Nurse Debra Palm. During the examination Plaintiff was bent over at the waist grasping the right side of his abdomen. Plaintiff explained that for the past two days he had been suffering from severe stomach pain and nausea, was vomiting, and had diarrhea. Plaintiff repeated that he would rate his pain intensity as a 10 out of 10. Nurse Palm consulted Plaintiff’s medical history which noted Plaintiff’s earlier visit and HIV-positive status. Nurse Palm also reviewed the “Abdominal Pain Nursing Protocol, ” which stated that an inmate who is suffering from severe abdominal pain and also has an HIV diagnosis should be referred to a doctor on an urgent basis. Plaintiff told Nurse Palm about his earlier treatment and the lack of improvement in his symptoms. Nurse Palm opined that Plaintiff had the flu or gas. Plaintiff disagreed, again stating that he could not walk or sleep and that he believed there was something wrong with his appendix. When Plaintiff asked to see a doctor, Nurse Palm told him that he could not see the on-site doctor until June 20, 2013. Realizing that he could not wait two days to see a doctor, Plaintiff asked to be sent to an off-site doctor. Nurse Palm denied his request and recorded that Plaintiff was suffering from pain. Nurse Palm scheduled Plaintiff to see the doctor on June 20, 2013, gave him Tylenol, and sent him back to his housing unit.
At about 8:00 a.m. on June 19, 2013, Plaintiff was again seen for his severe stomach pain by Nurse Hocutt. During the examination Plaintiff was bent over at the waist grasping the right side of his abdomen. Plaintiff explained how he was suffering from severe stomach pain and recurring diarrhea. Plaintiff reported that his pain was a 9 out of 10 on an intensity scale. Plaintiff stated that he thought something was wrong with his appendix and requested to see an off-site doctor. Nurse Hocutt refused to refer Plaintiff to an off-site doctor, informing Plaintiff that fluids and walking would help. She also gave him Imodium to help alleviate his diarrhea.
During two more occasions on the morning of June 19, 2013, Plaintiff approached correctional officers regarding his medical problems. During the first encounter Plaintiff explained his symptoms. During the second encounter Plaintiff stated that he felt his stomach was going to burst. On both occasions the officer called the HSU and spoke to a nurse. During the first call, the nurse refused to see Plaintiff at that time. During the second, the officer informed the HSU nurse of Plaintiff’s complaint that his stomach was going to burst and that his pain had not improved. The nurse again refused to treat Plaintiff, stating that they would when they had time. The officer recorded that he spoke to Nurse Beth and Nurse Kim during the two calls.
Sometime after 1:00 p.m. on June 19, 2013, Plaintiff lost consciousness and was found on the floor of his cell by a correctional officer. Plaintiff was then transported to the HSU and seen by Nurse Palm, who immediately sent him to the emergency room at St. Agnes Hospital for further evaluation. An initial CT scan at the hospital did not reveal a rupture in the appendix, though the surgeon suspected that Plaintiff may have already had perforated gangrenous appendicitis. Plaintiff’s expert opined that it is probable that Plaintiff’s appendix was starting to rupture at some point in the afternoon on June 19, 2013. On June 20, 2013, emergency surgery was performed to remove Plaintiff’s appendix. As a result of the rupture in his appendix, the surgery was more complicated and the recovery more lengthy than expected.
Plaintiff filed this case against six nurses, alleging that they had been deliberately indifferent to his serious medical need. Service was unsuccessfully attempted on Nurses Beth and Depaemk and the Wisconsin Department of Justice states that they cannot determine who those nurses are. On June 12, 2014, default as to Nurse Hocutt was entered for failure to timely answer. Nurse Karin Graf filed a motion for summary judgment on September 15, 2015. Plaintiff chose not to oppose Graf’s motion for summary judgment and this Court granted Graf’s motion on November 9, 2015, dismissing all claims against Graf with prejudice. Defendants Palm and Robinson filed this motion for summary judgment on September 15, 2015.
A. Summary Judgment ...