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Aponte v. Suliene

United States District Court, W.D. Wisconsin

August 30, 2016


          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Plaintiff Andrey Aponte, a prisoner currently incarcerated at the Jackson Correctional Institution, located in Black River Falls, Wisconsin, brings various Eighth Amendment and state-law negligence claims against prison officials for failing to restrict him from work following abdominal surgery and then failing to give him proper medical treatment while he was incarcerated at the Columbia Correctional Institution.

         Defendants have filed a motion for partial summary judgment, which I will grant in part and deny in part. I conclude that it is appropriate to recruit counsel to assist plaintiff with the complex medical issues raised in the clams that survive summary judgment. Accordingly, I will stay the proceedings pending recruitment of counsel.


         Plaintiff Andrey Aponte is a prisoner currently incarcerated at the Jackson Correctional Institution. The events in question occurred while plaintiff was incarcerated at the Columbia Correctional Institution (CCI). Defendants were all employees at CCI.

         A. Surgical staples

         Plaintiff underwent bowel resection surgery at Waupun Memorial Hospital on July 28, 2011. He was discharged and returned to CCI three days later. The discharging physician noted that plaintiff should return to the clinic for surgical staple removal within 10 to 14 days. Plaintiff was prescribed Vicodin to be taken four times a day for two weeks. Following that, plaintiff was prescribed naproxen for post-surgery pain management.

         On August 12, 2011, plaintiff was examined by a prison doctor and he was scheduled for staple removal the following week. An employee called the “Medical Program Assistant Associate” scheduled off-site medical appointments.

         Plaintiff's staples were removed without incident on August 18, which was 21 days after his surgery, and 15 days after the date of the discharge order. Defendant Dalia Suliene (a doctor at CCI) supervised the nurse practitioner intern that removed the staples. There is no evidence that plaintiff suffered harm as a result of the delay, because the staples were removed with no difficulty, plaintiff was not in acute distress, and he was noted as “doing well.” One week after the staple removal, plaintiff had a follow-up appointment and the incision was healing with no signs of infection.

         B. Work restriction

         Defendant Suliene was on vacation from August 1 to August 14, 2011. When she returned to CCI on August 16, she reviewed the hospital's discharge orders for plaintiff. The instructions contained a section titled “Activity, ” which included a statement saying “Return to work when your doctor indicates.” There was a handwritten notation next to “Activity” stating “as tolerated.” Dkt. 89-1, at 13. Plaintiff and Suliene met on August 18 for an “off-site follow-up, ” but they did not discuss work restrictions. Plaintiff says they did not discuss work restrictions because he had not yet been ordered back to work. Suliene did not inform plaintiff of what the discharge instruction sheet said.

         The next day, sergeant Jakuse (a non-defendant) noticed that plaintiff had not yet returned to his work assignment. He asked plaintiff if he was supposed to return to work. Plaintiff said he was still having pain. Jakuse called the Health Services Unit (HSU) and was told that plaintiff did not have a work restriction.[2] According to plaintiff, defendant Nancy White (at that point the acting HSU manager) was the HSU staff member on the other end of the line.[3] Jakuse then ordered plaintiff back to work. Although defendants object to some of plaintiff's proposed findings regarding this conversation, see supra note 2, I take it to be undisputed that plaintiff did not have a formal work restriction issued by CCI medical staff at that point.

         On August 23, 2011, plaintiff pulled a “muscle in the stomach” at his job by trying to lift a “3 to 5 gallon” milk crate. Plaintiff was taken to the HSU and prescribed ibuprofen. Plaintiff submitted several health service requests about his ongoing pain.

         Plaintiff saw defendant Suliene on September 8, 2011. Suliene told plaintiff that she would issue a work restriction. Plaintiff confronted Suliene with a copy of his discharge instructions (which plaintiff says he had recently obtained) and asked her why he had not been told about the instructions, and why she had not already issued a work restriction. Plaintiff told Suliene that he was suffering “excruciating” pain trying to perform his job. Plaintiff says that Suliene “appeared to get perturbed and attempted to snatch this document from [his] hands and asked me where did I get it from.” Dkt. 108, at 4, ¶ 9. Plaintiff said that he obtained a copy of the document from his medical files and was allowed to keep it. Plaintiff says this made Suliene “even more perturbed.” Id. at ¶ 10. Suliene asked a nurse whether plaintiff was allowed to possess that record, and the nurse responded that he could, but noted that Suliene was not bound by the off-site provider's recommendation. Suliene “still appeared to be agitated, ” but told plaintiff that he could return to his unit and that he would not have to worry about work. Id., at 5, ¶ 11. Suliene refused to provide plaintiff with anything else for his pain.[4]

         Upon returning to his unit, plaintiff told Jakuse that he did not have to work because Suliene had issued him a work restriction. But when Jakuse called HSU, he was told that Suliene issued only a “light activity” restriction, so he could return to work. Plaintiff says that Jakuse later told him that defendant White was the HSU staff member on the other end of the line for that conversation. Plaintiff returned to work the next day and continued to suffer severe pain. Plaintiff continued to file health service requests about this pain. In response to a September 21, 2011, request by plaintiff, Suliene responded that she would make an appointment for plaintiff with the surgeon, but she did not change his medications and did not change his work restriction limiting him to “light activity.” Plaintiff saw Dr. Reynolds, the off-site surgeon, on October 3, 2011. Reynolds diagnosed plaintiff with a “musculoskeletal strain, ” recommended ibuprofen and Vicodin, and recommended that he not work for two weeks. Suliene placed plaintiff on a full no-work restriction at that point.

         C. Vicodin prescriptions

         When plaintiff returned to CCI, defendant Suliene did not allow plaintiff to have the Vicodin recommended by Reynolds. But she increased plaintiff's ibuprofen prescription to 600 milligrams. The increased ibuprofen dosage did not stop plaintiff's pain. Plaintiff filed more health service requests about his medication being ineffective.

         Plaintiff had CT scans on November 3, 2011, and March 5, 2012. The second scan showed “changes in the area of the anastomosis.”[5] Following the second scan, defendant Suliene prescribed plaintiff hydrocodone-acetaminophen[6] to be taken four times a day, as needed.

         On March 17, 2012, plaintiff was hospitalized for left lower quadrant pain and suspected anastomotic leak. He was hospitalized for ten days. Imaging showed a “severe stricture of the anastomosis.” Dkt. 89-1, at 37. Plaintiff had procedures to dilate the stricture.

         Plaintiff had another off-site visit at UW Hospital on April 24, 2012. The surgeon stated in a letter to Suliene that plaintiff would likely eventually require revision of the prior resection surgery, but for now, he could be treated with dilations of the stricture. The surgeon also stated that “I would like to also have the patient increase his p.r.n. medication for these pain episodes.” Id. at 37. The doctor's report included a recommendation to “increase pain medication to 1-2 tabs Q6H PRN, ” id. at 35, which I take to mean every six hours as needed. A treatment note from another doctor there included a recommendation stating, “Follow clinic recommendations.” Id. at 36.

         After this visit, Suliene prescribed Vicodin for plaintiff's pain three times per day for three weeks. On April 29, 2012, plaintiff submitted a health service request asking why be was being denied his pain medication. Suliene responded that plaintiff was being prescribed narcotics and that they are to be used when needed and not all of the time. On May 1, Suliene increased his Vicodin to four times per day.

         D. May 5, 2012

         On May 5, 2012, a Saturday, plaintiff reported abdominal pain to Sergeant Beech (not a party to this lawsuit) at approximately 10:00 p.m. Defendant Lieutenant Michael Morrison was the supervising officer on plaintiff's unit during third shift that day.

         The parties dispute what plaintiff told Beech. Plaintiff says that he told Beech that he had severe pain in his lower left abdomen, and he was suffering from nausea and vomiting. Plaintiff also said that he had an ongoing medical condition and was being treated with dilation of his colon, and that if he had any complications, he should contact medical staff immediately. Plaintiff says he was “on his knees with tears in his eyes, complaining to Sergeant Beech the pain he was experiencing.” Dkt. 107, at 13, ¶ 38. According to defendants, plaintiff denied nausea or vomiting, was able to pass gas and stool, had already taken his medications as ordered, and was able to eat his dinner without difficulty.

         Because it was third shift and a weekend, CCI did not have a nurse or doctor on site. The parties dispute the exact process by which defendant Nurse Trisha Anderson was contacted-either directly by Beech or by defendant Morrison. Either way, this communication contravened DOC policy, which stated that the on-call nurse should speak directly with inmates in distress.

         After Anderson was informed of plaintiff's symptoms, she decided that plaintiff was not having an emergency. She told either Beech or Morrison to relay to plaintiff that he should rest and take his medications as ordered. Plaintiff suffered increasing pain, and he told Beech on his hourly round that he needed help. Plaintiff stated that he was on the floor on his knees, holding his stomach and in obvious pain.

         At about 3:00 a.m., Morrison came to plaintiff's cell and told plaintiff that he would be seen in the morning. Morrison states that if plaintiff had reported worsening symptoms or appeared to be in acute distress, he would have instructed staff to contact the on-call nurse again. Plaintiff states that he told Morrison that his pain was worse and that “he had tears in his eyes due to the pain he was experiencing and was begging [Morrison] to get him some medical assistance due to the pain.” Id., at 14-15, ¶¶ 14-15.

         Defendant Trisha Anderson was on duty the next morning and examined plaintiff at 8:30 a.m. Defendants say that plaintiff only then told Anderson that he was reporting nausea, vomiting, and headaches. Plaintiff says he had told Beech and Morrison about the same symptoms the night before. Anderson arranged for plaintiff's transfer to the emergency room at Divine Savior Hospital for further evaluation. Plaintiff was diagnosed with a stricture of his intestinal tract. He was transported to UW Hospital.

         E. Ostomy bag

         On May 30, 2012, plaintiff had a surgery for a bowel obstruction, after which he required the use of an ostomy bag. Plaintiff returned to CCI about a week later.

         Plaintiff's bag was to be changed every three days or more often, as needed. On July 20, 2012, the nurse noted that plaintiff had irritated skin and arranged for him to see an off-site UW physician on July 24.

         The night before that appointment, plaintiff noticed that the ostomy bag was leaking. Plaintiff's medical records show that his bag was last previously changed on July 20. Plaintiff says that he told defendant Sergeant Todd Anderson that medical staff needed to change his bag, and that Anderson told him that he would “let someone know.” Anderson says that if plaintiff had reported the issue to him, he would have contacted the HSU, but that he has no recollection of plaintiff reporting a problem with his bag leaking About an hour later, on Todd Anderson's next round, plaintiff asked him about help for the ostomy bag. According to plaintiff, Anderson asked him “did [he] really need to change it tonight or could [he] wait until the morning?” Dkt. 108, at 17, ¶ 54. Plaintiff told Anderson that a leaky ostomy bag was like having soiled underwear, and so he indeed needed it changed that night. Anderson told plaintiff that he would talk to defendant Nurse Joe Reda, who was on duty that night.

         Reda says that he was familiar with plaintiff's ostomy bag and would have changed it had he been notified. But plaintiff says that, another hour later, Todd Anderson told plaintiff that he talked to Reda and that Reda said that plaintiff should wait until the morning.

         Plaintiff's bag was eventually changed the next day when he was taken for off-site treatment regarding the ostomy.

         F. March 3, 2013

         Plaintiff had further abdominal surgery in late February 2013. Defendant Sergeant Cletus Tully was assigned to plaintiff's housing unit overnight from March 2 to 3, 2013. Plaintiff reported pain to Tully at 1:00 a.m. Tully, in turn, contacted defendant Nurse Trisha Anderson, who was the on-call nurse at the time. Tully reported plaintiff's pain and appearance of the incision to Anderson, who informed Tully that plaintiff would be seen the next morning in the HSU.

         Tully observed plaintiff's wound and described it as not bleeding, seeping, and with no unusual redness.[7] Trisha Anderson told Tully that plaintiff's pain was consistent with normal post-surgical pain. Anderson also advised Tully to tell plaintiff to place a warm, wet washcloth on the incision to alleviate some pain, and to take the medication that was available to him in his cell. Anderson had seen plaintiff about 12 hours earlier for a wound dressing change, and she had no concerns at that time-plaintiff had tolerated the change well.

         Plaintiff was scheduled for a follow-up appointment the next day. Anderson saw plaintiff at 12:35 p.m., and plaintiff reported that his pain had resolved after he had a bowel movement. Anderson states that post-surgical constipation and associated pain are not medical emergencies.

         G. Plaintiff's request for pain medication in mid to late 2013

         Defendant Dr. Bradley Martin examined plaintiff on August 19, 2013, and referred him to the UW Surgery Clinic for follow-up care. Martin's notes indicate that plaintiff “would like Vicodin for relief.” The parties do not elaborate on the treatment provided by Martin, but I take it to be undisputed that Martin did not provide plaintiff with Vicodin.

         Plaintiff continued to suffer pain and sought changes in his prescribed medication. Plaintiff filed a series of health service requests in late August through October 2013. Plaintiff brings claims against defendants Karen Anderson (then the HSU manager) and Nurse Reda for refusing to give plaintiff stronger pain medication. Some of these requests were responded to by staff members other than Anderson or Reda. Plaintiff's August 25 health service request was answered by Reda, who scheduled plaintiff an appointment with a nurse for the following day. Reda also responded to plaintiff's September 7 request: Reda scheduled plaintiff for an appointment with a nurse, who saw him later that week. Plaintiff's October 5 request was answered by Anderson two days later. She scheduled plaintiff to see a doctor.

         Plaintiff had surgery for a ventral hernia on October 21, 2013 and was prescribed Vicodin to manage the pain. Defendant Dr. Fern Springs saw plaintiff on October 31, 2013, upon his return from the hospital. Springs ordered a prescription for “Norco, ” which is roughly equivalent to Vicodin. Springs also added acetaminophen to assist with pain management. On November 1, 2013, plaintiff had a follow-up appointment with Springs, where she adjusted his medication schedule. On ...

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