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Stewart v. Cox

United States District Court, W.D. Wisconsin

June 23, 2016


          OPINION & ORDER


         Pro se prisoner Steven Stewart is challenging the medical treatment that he has received while in prison. I granted plaintiff leave to proceed with claims under the First and Eighth Amendments, and with state law claims for medical malpractice.

         Plaintiff suffers from a neurogenic bladder condition that makes it difficult for him to urinate without a catheter. At different times over the last 10 years or so, plaintiff has either worn an indwelling catheter or inserted a single-use "straight" catheter every few hours each day. All of plaintiff's claims in this case essentially involve variations on a central theme: plaintiff wants to receive narcotics each time that he catheterizes himself (or changes his indwelling catheter), and he wants to catheterize himself privately, in his cell. Since 2005, plaintiff has aggressively asserted these wishes, and medical personnel have generally accommodated him. But when things have not gone plaintiff's way, he has become agitated and has refused to cooperate. He perceived these changes in routine to be retaliatory or below the standard of medical care that he was entitled to receive. Thus, plaintiff filed suit alleging that defendants violated his constitutional rights.

         After a series of discovery disputes and a round of summary judgment motions based on plaintiff's failure to exhaust his administrative remedies, we have finally arrived at the merits of plaintiff's claims. All defendants move for summary judgment, contending that the undisputed facts of the case entitle them to judgment as a matter of law. For reasons explained in this opinion, I will grant these motions and dismiss this case.


         Plaintiff disagrees with many of the facts that defendants have proposed in support of their motions for summary judgment. But for some of plaintiff's disputes, he does not cite to admissible evidence that actually contradicts the proposed fact. For other disputes, plaintiff does not respond to the proposed fact, instead discussing other issues and other evidence. As the preliminary pretrial conference order indicated, "[i]f a party's response to any proposed fact does not comply with the court's procedures or cites evidence that is not admissible, the court will take the opposing party's factual statement as true and undisputed." Dkt. 40, at 17. Thus, unless plaintiff has properly disputed a proposed finding of fact, I will accept defendants' proposed facts as true. Except where noted, the following facts are undisputed.

         Plaintiff is an inmate in the custody of the Wisconsin Department of Corrections (DOC). The relevant events in this case occurred between 2005 and 2014. During some of this time, plaintiff was incarcerated at the Wisconsin Secure Program Facility (WSPF), located in Bascobel, Wisconsin, and during the rest of the time, he was incarcerated at the Columbia Correctional Institution (CCI), located in Portage, Wisconsin. Defendants are medical personnel who worked at WSPF or CCI and interacted with plaintiff. I will generally refer to individual defendants by their titles and last names. But for organizational purposes, I will sometimes refer to the defendants who were employed by the DOC as "the state defendants." This group includes:

• Dr. Burton Cox, a physician at WSPF;
• Mary Miller, the manager of the Health Services Unit (HSU) at WSPF;
• Jolinda Waterman and Sheryl Kinyon, nurses at WSPF;
• Richard Matti, a correctional officer at WSPF.
• Dr. Dalia Suliene and Dr. Karl Hoffmann, physicians at CCI;
• Karen Anderson, the manager of the HSU at CCI;
• Kim Campbell, Natalie Newman, Melissa Thorne, Phillip Kerch, David Spannagel, and Trisha Anderson, nurses at CCI; and
• Dr. Brad Martin, a physician at a different DOC facility who filled in at CCI.

         The remaining defendants were independent contractors:

• Rose Drafahl is a licensed practical nurse who was assigned to work at CCI from August 20, 2012, to August 3, 2015; and
• Ann Peters-Anderson is a registered nurse who was assigned to work at CCI from April 21, 2014, to October 31, 2014.

         In August 2005, doctors at the University of Wisconsin Hospital examined plaintiff and discussed an ongoing issue that he had been having with his bladder. In a letter summarizing the examination, doctors informed WSPF medical staff that plaintiff should catheterize himself to manage his condition. As the doctor explained:

I would like him to begin catheterizing much more frequently to try to achieve catheterized volumes of 500 ml or less. This may mean that the patient will need to catheterize every 2-3 hours, at least initially. If he is unable to accommodate this at the facility, then an indwelling Foley catheter should be placed for l month's time, at which point it could be removed and new attempts at straight catheterization with a decompressed bladder could be attempted. For now, he should continue with either straight catheterization to achieve catheterized volumes of less than 500 ml at a time for several months or have an indwelling Foley placed, as mentioned previously, with resumption of straight catheterizing after 1 month's time.

Dkt. 127-4, at 81. Within three days of the appointment, Dr. Cox entered an order that plaintiff was to use a straight catheter seven to eight times a day and have a follow-up appointment at UW Hospital in six months. Doctors at UW Hospital eventually diagnosed plaintiff with a neurogenic bladder, which is a dysfunction of the urinary bladder that occurs because of central nervous system disease or because of disease in the nerves that control urination. Most patients with the condition must use catheters to pass urine.

         On October 8, 2005, plaintiff had his first confrontation with prison staff concerning his catheterization. At about 11:00 a.m., Nurse Waterman received a call from a correctional officer on plaintiff's unit. The officer informed Nurse Waterman that plaintiff had refused his catheter supplies twice that morning and three times the day before. Nurse Waterman went to plaintiff's cell and provided him with a DOC form to confirm that he was refusing recommended treatment. The form explained the risks of refusing to catheterize, including bacterial infection, abdominal pain, and sepsis. Plaintiff waved Nurse Waterman away (it does not appear that he signed the refusal form). Nurse Waterman noted in plaintiff's medical records that she would have Dr. Cox review plaintiff's refusal.

         The next morning, Nurse Waterman received another call from a correctional officer informing her that plaintiff had again refused his catheter kit. There is some dispute about what happened next. Nurse Waterman contends that she noted plaintiff's non-compliance and indicated that he should review the August 2005 letter from doctors at UW Hospital. Plaintiff disputes this, alleging that Nurse Waterman came to his cell, gave him a copy of the letter from UW Hospital, and told him that he would be forced to wear an indwelling Foley catheter. The parties' dispute is immaterial because even accepting plaintiff's version of events as true, he was not forced to switch to an indwelling catheter. Indeed, medical records confirm that plaintiff continued using straight catheters for the next several months.

         In February 2006, plaintiff underwent surgery at UW Hospital to repair a rectal prolapse. Plaintiff was hospitalized for three days, and during that time, doctors gave him a Foley catheter. This type of catheter stays in place and is connected to a drainage bag that can be changed without changing the catheter. When UW Hospital discharged plaintiff, his doctors instructed that he could return to using straight catheters as needed. Upon plaintiff's return to WSPF, Dr. Cox wrote an order for him to continue using straight catheters.

         The day after plaintiff's discharge, he submitted a health service request for a Foley catheter. Plaintiff wrote that:

I am in so much pain I am requesting to wear the catheter that stays in because when I use the straight catheter this is causing unreal pain. Plus at the UW Hospital I felt no discomfort with the catheter staying in. Plus I want [sic] have to use the catheter, I don't really have much say into what goes on I am requesting to wear the catheter, because of too many infections and way too much pain and keeping my life out of danger. I need to speak to Doctor Cox or Cindy Sawinski A.S.A.P.

Dkt. 127-1, at 232. Dr. Cox saw plaintiff two days later and approved his request for a Foley catheter, to be changed weekly. The day after that, plaintiff visited the HSU and medical personnel inserted the Foley catheter, showed plaintiff how to change the discharge bag (which the parties sometimes refer to as a "leg bag"), and instructed him to contact the HSU if he had any problems. The HSU manager sent a memo to WSPF staff explaining that plaintiff would be wearing a Foley catheter, and that medical staff would change the catheter every week while plaintiff would change his discharge bags daily, by himself.

         During April 2006, plaintiff went back and forth between wanting a Foley catheter and wanting straight catheters. On April 6, at plaintiff's request, Dr. Cox wrote an order allowing him to use straight catheters seven to eight times per day, as needed. But less than two weeks later, plaintiff requested to switch back to a Foley catheter. Dr. Cox approved the request on April 17. Plaintiff did not request any more changes after April 2006.

         Beginning in 2011, Dr. Cox ordered that plaintiff could take Vicodin one hour before changing his Foley catheter (i.e., once a week). Dr. Cox did not feel that Vicodin was medically necessary; in his experience, most patients who routinely changed their catheters did not require any pain medication. But he prescribed it anyway, based on plaintiff's complaints of pain. Every six months, Dr. Cox reviewed and renewed his orders for Vicodin. He issued the most recent order in November 2012, and it was valid through April 2013.

         Although plaintiff's bladder condition and difficulties with catheterization continued, he also had an isolated medical incident in May and June 2012. On May 28, plaintiff submitted a health service request for a urine test because he was worried that he had an infection. The HSU did not receive this request until June 1. But plaintiff submitted a second request two days after submitting his first request. The HSU received plaintiff's second request on May 31. That same day, Nurse Kinyon responded to the second request. Plaintiff refused to come out of his cell, agreeing only to provide a urine sample. Nurse Kinyon noted that plaintiff did not display obvious signs of distress. The results of plaintiff's urine test came back positive for an infection. Dr. Cox prescribed Ciprofloxacin (Cipro), an antibiotic, to treat the infection pending the results of a sensitivity report. Nurse Kinyon informed plaintiff of the prescription, and he began taking the antibiotics.

         A few days later, the sensitivity report indicated that plaintiff's infection was resistant to Cipro. On June 4, Dr. Cox changed plaintiff's prescription to Levofloxacin, a different antibiotic. After entering the order, Dr. Cox had no further involvement in treating plaintiff's infection. Despite the order changing plaintiff's medication, unidentified staff members at WSPF accidentally sent plaintiff Cipro and Levofloxacin on June 5. Nurses Waterman and Kinyon were not involved in sending the medication to plaintiff.[1]

         Plaintiff ended up taking both antibiotics. He alleges that afterward, he "became very sleepy, and even after I had gone to sleep and awaken I still felt sleepy and strange like I wasn't myself." Dkt. 24, ¶ 5. Plaintiff submitted a health service request on June 5, and Nurse Waterman received the request the next day. Nurse Waterman went to plaintiff's cell and took away the Cipro because it had been discontinued. At that time, plaintiff did not complain to Nurse Waterman about any side effects of taking both medications.

         Plaintiff's next confrontation with WSPF staff occurred on January 1, 2013. The parties dispute what exactly happened. According to plaintiff, his catheter had come out, and so he asked Sergeant Matti to contact a nurse. But Sergeant Matti refused to do so, causing plaintiff to suffer severe pain and stomach cramps. For his part, Sergeant Matti does not remember plaintiff asking to see medical staff on January 1, nor does he remember plaintiff making any statements about his catheter coming out.[2]

         Plaintiff was transferred to CCI later in January 2013. He underwent an intake screening on January 17, and Dr. Suliene saw him a few days later to assess his condition and discuss his medical issues, including his catheter needs. Dr. Suliene noted that plaintiff had been using a Foley catheter for six to seven years. She wrote orders allowing plaintiff to continue using the Foley catheter and to change it monthly. Dr. Suliene did not change the existing orders for pain medication before catheter changes. Plaintiff contends that he told Dr. Suliene that he wanted to switch back to using straight catheters. Dr. Suliene disputes that plaintiff ever mentioned straight catheters.[3]

         With Dr. Suliene's order in place, HSU Manager Anderson informed nursing staff that she wanted plaintiff's first catheter change at CCI to be supervised, to ensure that he was using proper technique. Consistent with this instruction, nursing staff called plaintiff to the HSU on February 1, 2013, to observe his catheter change. Plaintiff refused to change his catheter, explaining that he did not want to be observed and that he wanted to be able to change his catheter on his own. Plaintiff also demanded Vicodin for his catheter change. But a nurse responded that plaintiff did not have a doctor's order for Vicodin on file. Plaintiff left the HSU without changing his catheter.

         The state defendants do not dispute that plaintiff actually had a valid order for Vicodin in February 2013-Dr. Cox's November 2012 order was still in effect. But the medical personnel who interacted with plaintiff between February and May 2013 did not see Dr. Cox's order because of a recordkeeping error.

         Over the next several months, plaintiff essentially went through the same routine each month: he would get called to the HSU, nurses would ask him to change his catheter so that they could ensure that he was using proper technique, plaintiff would refuse to do so, and nurses would provide him with a new leg bag and let him return to his cell.

         On May 1, 2013, plaintiff saw Nurse Campbell for a catheter change, and he asked for Vicodin. She checked plaintiff's medical records and determined that he did not have a current prescription for Vicodin (by this time, Dr. Cox's order had expired). Nurse Campbell contacted another nurse, who authorized her to offer plaintiff lidocaine jelly. Plaintiff refused the lidocaine jelly and refused to change his catheter. Nurse Campbell provided him with a leg bag, and he returned to his cell.

         On June 3, 2013, plaintiff saw Nurse Thorne for a catheter change. Plaintiff explained that he usually received two Vicodin tabs before changing his catheter and that he had previously been allowed to change his catheter in his cell. Nurse Thorne reviewed plaintiff's medical records, concluded that he did not have a current prescription for Vicodin, and saw that he had not yet completed a catheter change under supervision while at CCI. Plaintiff again refused to change his catheter.

         A week later, Dr. Martin-who was assisting at CCI at the time but who was not the institution's primary physician-ordered supplies for plaintiff to change his catheter. Dr. Martin also wrote plaintiff a prescription for Vicodin. According to Dr. Martin, he ordered the Vicodin because "it was a chronic routine for [plaintiff]." Dkt. 133, ¶ 14. On June 11, 2013, plaintiff returned to the HSU, where Nurse Newman gave him two Vicodin tablets and observed him ...

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