United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
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.
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.
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
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
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.
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.
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.
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. 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. 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.
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.
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
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.
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.
had CT scans on November 3, 2011, and March 5, 2012. The
second scan showed “changes in the area of the
anastomosis.” Following the second scan, defendant
Suliene prescribed plaintiff
hydrocodone-acetaminophen to be taken four times a day, as
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.
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.
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.
May 5, 2012
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
bag was eventually changed the next day when he was taken for
off-site treatment regarding the ostomy.
March 3, 2013
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
observed plaintiff's wound and described it as not
bleeding, seeping, and with no unusual redness. 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
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.
Plaintiff's request for pain medication in mid to late
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
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.
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 ...