United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING DEFENDANTS BARB BRAUN,
PATTI MANTHEY, KIM MUELLER, AND JULIE TREIBER’S MOTION
FOR SUMMARY JUDGMENT (DKT. NO. 75) AND DENYING DEFENDANT
KAREN BUTLER’S MOTION FOR SUMMARY JUDGMENT (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
Ian Koch was incarcerated at the Fond du Lac County Jail
during the events described in this case. On October 15,
2013, Judge William M. Conley of the U.S. District Court,
Western District of Wisconsin (the judge initially assigned
to the case) entered an order allowing the plaintiff to
proceed on his claims that the defendants were deliberately
indifferent to his medical needs in violation of the U.S.
Constitution. Dkt. No. 10. On April 4, 2014, Judge Conley
transferred the case from the Western District of Wisconsin
to the Eastern District. Dkt. No. 25. On April 7, 2014, the
Clerk’s Office randomly assigned the case to Judge
William C. Griesbach; on December 29, 2014, Judge Griesbach
assigned the case to Judge Pepper after her appointment to
the district court bench.
30, 2015, defendant Karen Butler, M.D., filed a motion for
summary judgment, (Dkt. No. 71), and defendants Barb Braun,
Patti Manthey, Kim Mueller, and Julie Treiber (nurses at the
jail) filed their motion for summary judgment on November 7,
2015 (Dkt. No. 75). Those motions now are fully briefed and
ready for the court’s decision. The court will grant
Braun, Manthey, Mueller, and Treiber’s motion for
summary judgment, and will deny Butler’s motion for
plaintiff alleges that on January 20, 2012, he injured
himself while working in the jail’s kitchen. Dkt. No.
83 ¶ 1. The plaintiff reported his abdominal pain to a
jail nurse (not a defendant) on January 23, 2012. Dkt. No. 83
¶ 3. The plaintiff described his pain as being on his
left side, about two inches from his belly button. Dkt. No.
83 ¶ 4. The nurse suggested that the plaintiff might
have a muscle strain or constipation; she told him to
increase his fluid intake and exercise. Dkt. No. 83 ¶ 4.
She removed the plaintiff from his job and told him to follow
up with a nurse in a few days. Id.
Mueller saw the plaintiff at sick call on January 27, 2012.
Dkt. No. 83 ¶ 5. Mueller recorded that the plaintiff
denied any pain in his left side and said he was able to eat,
sleep, and work out normally. Dkt. No. 83 ¶ 5. The
plaintiff disputes this record, stating that he told Mueller
his pain was still present, though it had decreased, and that
he could not work out normally. Dkt. No. 83 ¶ 5.
plaintiff next was seen on February 17, 2012. Dkt. No. 83
¶ 6. The plaintiff states that he told Mueller that
"it felt like the internal stiches from his prior hernia
surgeries were ripping open." Dkt. No. 83 ¶ 6.
Mueller recorded that the plaintiff reported "left lower
quadrant abdominal pain and left upper quadrant abdominal
pain" and that "he felt like his bowel was not
emptying." Dkt. No. 83 ¶ 6. Mueller reported the
information to Butler, who ordered a clear liquid diet for
seventy-two hours. Dkt. No. 83 ¶ 6.
February 20, 2012, the plaintiff complained to Braun that the
liquid diet was not effective. Dkt. No. 83 ¶ 7. The
plaintiff states that he tried the diet for about twenty-four
hours, but felt like he was starving, so he ate some solid
food once he determined the liquid diet wasn’t helping.
Dkt. No. 83 ¶ 7. Braun recorded the plaintiff’s
medical history, which included three prior hernia repairs.
Dkt. No. 82 ¶ 9. The jail also requested the
plaintiff’s medical records from Children’s
Hospital. Dkt. No. 82 ¶ 9. Braun called Butler, who
ordered a liquid antacid to be taken twice a day for two
weeks. Dkt. No. 83 ¶ 8.
next day, the plaintiff complained to Braun that his pain was
getting worse. Dkt. No. 83 ¶ 9. The plaintiff described
his pain as a seven out of ten (with ten being the worst); he
explains that he could not lie down without making minimal
use of the left side of his abdomen and could sit up only by
rolling over and using his arms. Dkt. No. 83 ¶ 9.
However, Braun recorded that, despite his complaints of
significant pain, the plaintiff could "lay down and sit
up on the exam table without any guarding of his muscles and
without distress." Dkt. No. 83 ¶ 9. The plaintiff
agreed to take antacids as prescribed by Butler, but he
states that Braun told him he could stop taking them if they
did not improve his condition. Dkt. No. 83 ¶ 9. The
plaintiff explains that he had surgery as a child to address
problems with acid reflux, but that he had not suffered from
acid reflux at any time since the surgery. Dkt. No. 82 ¶
11. And, although he had been diagnosed as a child with being
lactose intolerant, he could consume certain dairy products,
such as cheese, without a problem; it was only milk that was
difficult for him to consume. Dkt. No. 82 ¶ 11.
February 23, 2012, the plaintiff complained to Braun that his
pain was still a seven out of ten. Dkt. No. 83 ¶ 10.
Braun recorded that the plaintiff had missed one dose of his
antacid and that he had stopped exercising after hurting
himself on January 20. Dkt. No. 83 ¶ 10. The plaintiff
disputes this record; he states that he does not recall
missing any doses of the antacid and that he told Braun that
he had exercised in the weeks following his initial injury
(except abdominal exercises), but that he needed to stop by
February 23 because the pain was so severe. Dkt. No. 83
¶ 10. The plaintiff also says he told Braun that his
abdominal pain was shifting throughout his abdomen and had
not localized in one area. Dkt. No. 83 ¶ 10. Braun again
called Butler, who ordered the jail staff to keep a
seventy-two hour log of the plaintiff’s activities and
to evaluate his urine with a dipstick test. Dkt. No. 83
¶ 11. The log indicates that the plaintiff was
exercising, playing cards, pacing, and walking up stairs
quickly. Dkt. No. 82 ¶ 11.
February 23, 2012, the plaintiff filed a grievance, in which
he complained that the prescribed liquid diet and antacids
had not improved his condition; he asked to go to the
hospital because he believed he had a hernia. Dkt. No. 83
March 1, 2012, Butler ordered the plaintiff be given Prilosec
once a day for ninety days. Dkt. No. 83 ¶ 14. The
plaintiff denies he suffered from acid reflux at any time
since his surgery when he was a child. Dkt. No. 82 ¶ 12.
March 2, 2012, the plaintiff told Mueller his pain was seven
out of ten and made it hard for him to breathe. Dkt. No. 83
¶ 15. Mueller performed a urine dipstick, which
indicated there was blood in the plaintiff’s urine.
Dkt. No. 83 ¶ 15. After receiving this information,
Butler suspected that the plaintiff might have a kidney
stone, so she ordered the plaintiff to increase his fluid
intake and to take Ibuprofen. Dkt. No. 83 ¶ 16. She also
ordered the jail to put the plaintiff in a segregated cell
with a surveillance camera to monitor his activities. Dkt.
No. 83 ¶ 16.
March 5, 2012, the plaintiff told Braun that the ibuprofen
had improved his pain; it was now only a two or three out of
ten. Dkt. No. 83 ¶ 17. Braun performed another urine
dipstick test, which indicated a moderate amount of blood.
Dkt. No. 83 ¶ 17. The next day, the plaintiff complained
to Braun that his pain was back to a seven out of ten. Dkt.
No. 83 ¶ 18; Dkt. No. 81-1 ¶ 16. Another urine
dipstick test showed blood in the plaintiff’s urine,
although at a lesser amount than the prior tests. Dkt. No. 83
¶ 18. A nurse (it is unclear which one) called Butler,
who prescribed Tylenol for the plaintiff’s pain and
asked jail administration to set up a consult with a
urologist. Dkt. No. 83 ¶¶ 18, 19.
March 7, 2012, "the jail nurse" called Fond du Lac
Regional Clinic to set a urology appointment. Dkt. No. 83
¶ 20. Appointments were being scheduled two months out,
which "was too long to wait." Dkt. No. 83 ¶
20. The nurse then called Aurora Clinic and asked for a
urology appointment. Dkt. No. 83 ¶ 21. That afternoon,
Aurora Clinic called back and indicated that the urologist
(not a defendant) suggested that a CT scan be done before
deciding whether a urology consult was necessary. Dkt. No. 83
¶ 23. Per the Clinic, the urologist also suggested that
if the plaintiff experienced increased pain, vomiting or
fever, he could be taken to the emergency room. Dkt. No. 83
to the plaintiff, he told a correctional officer (not a
defendant) at about 4:00 p.m. on March 7, 2012, that he had
to go to the hospital because it felt "like his stomach
lining was ripping." Dkt. No. 83 ¶ 24. The officer
called Butler, who ordered a clear liquid diet and instructed
the officer to have the plaintiff see a nurse in the morning.
Dkt. No. 83 ¶ 24. Butler does not have access to medical
records when she talks about patients over the phone, and she
acknowledges that she did not consult the plaintiff’s
medical records before ordering this course of treatment.
Dkt. No. 86 ¶ 4; Dkt. No. 82 ¶ 16.
about 6:15 p.m., a correctional officer observed the
plaintiff lying on his cell floor in the fetal position. Dkt.
No. 83 ¶ 25. The plaintiff states that he again told the
officer it was painful to breathe and that the pain was in
his right side. Dkt. No. 83 ¶ 25. The officer notified
Butler of the plaintiff’s vitals and complaints; she
did not change her orders. Dkt. No. 83 ¶ 25.
p.m. that night, the plaintiff states that there was vomit
all over his cell. Dkt. No. 83 ¶ 26. The plaintiff
explains that initially he had been able to make it to the
toilet, but as the pain increased, he began to vomit in a cup
and then on the floor, off the side of his bed. Dkt. No. 83
¶ 26. The officer’s record-which the plaintiff
argues minimizes the circumstances-notes that the plaintiff
was complaining of vomiting and that the officer observed
some clear liquid on the floor, which might have been vomit.
Dkt. No. 83 ¶ 26. The officer called Butler, who
continued her order that the plaintiff be kept on a clear
liquid diet, see the nurse in the morning and remain in an
observation cell; she also prescribed Vistaril (for anxiety)
and Clonidine. Dkt. No. 83 ¶ 27; Dkt. No. 82 ¶ 16.
practice is to visit the Fond du Lac County Jail once per
week, usually on Thursdays. Dkt. No. 83 ¶ 28. March 8,
2012 happened to be a Thursday, so Butler came to the
institution to review charts and see patients. Dkt. No. 83
¶ 28. At 7:05 a.m., Butler reviewed the
plaintiff’s chart. Dkt. No. 82 ¶ 17. According to
Butler, this was the first she learned of the
urologist’s suggestion that the plaintiff be sent to
the hospital if his symptoms worsened. Dkt. No. 82 ¶ 16.
Butler noted that the activity log, maintained by
correctional officers from 4 p.m. until 1:30 a.m. on the
night of March 7-8, indicated that the plaintiff had been
sleeping without incident and sitting quietly or standing.
Dkt. No. 82 ¶ 17. Butler decided to order a CT scan
based on the plaintiff’s "hernaturia, [increased]
pain, and vomiting." Dkt. No. 83 ¶ 28; Dkt. No. 82
¶ 17. She also ordered that the plaintiff continue a
clear liquid diet for another seventy-two hours, ...