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Koch v. Butler

United States District Court, E.D. Wisconsin

June 7, 2016

IAN DANIEL KOCH, Plaintiff,
v.
KAREN BUTLER, et al., Defendants.

          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. 71)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         October 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 summary judgment.

         I. FACTS [1]

         The 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.

         Defendant 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.

         The 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.

         On 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.

         The 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.

         On 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.

         Also on 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 ¶ 13.

         On 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.

         On 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.

         On 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.

         On 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 ¶ 23.

         According 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.

         At 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.

         By 10 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.

         Butler’s 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, ...


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