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Akins v. Maier

United States District Court, W.D. Wisconsin

September 1, 2016

ARSENIO R. AKINS, Plaintiff,
v.
GARY MAIER, CHARLES RIBBKE and JOSEPH KRASOVEC, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB, District Judge.

         Plaintiff Arsenio Akins, a prisoner at Columbia Correctional Institution, filed this civil lawsuit against defendants Gary Maier, Charles Ribbke and Joseph Krasovec. Plaintiff contends that defendant Maier subjected him to cruel and unusual punishment in violation of the Eighth Amendment and committed medical negligence by abruptly discontinuing his medication. With respect to defendants Ribbke and Krasovec, plaintiff contends that they ignored his medical complaints, in violation of his Eighth Amendment rights. Plaintiff also contends that defendants Ribbke and Krasovec retaliated against him for filing grievances, in violation of his First Amendment rights.

         Defendants have filed a motion for summary judgment on all of plaintiff's claims, which I am granting in part and denying in part. Plaintiff's Eighth Amendment claim against Maier fails because the withdrawal symptoms plaintiff allegedly experienced were minor and Maier made a reasoned medical decision to discontinue plaintiff's medication, rather than taper it. Plaintiff's Eighth Amendment claims against Ribbke and Krasovec fail because both defendants responded to plaintiff's medical needs and any harm attributable to their delay in securing plaintiff care was not sufficient to support a claim under the Eighth Amendment. I am also dismissing plaintiff's First Amendment claims against Krasovec because there is no evidence tying the deprivations plaintiff suffered at Krasovec's hands to retaliatory animus. However, there is a genuine issue of material fact with respect to whether defendant Ribbke denied plaintiff medical care in retaliation for plaintiff's filing complaints against him and other prison personnel. Accordingly, this claim will proceed to trial. Finally, I am dismissing plaintiff's state law negligence claim against Maier because there is no evidence that Maier violated the standard of care by failing to prescribe a tapering regimen or that this decision caused plaintiff's alleged injuries.

         Plaintiff has also filed two motions for assistance with recruiting counsel, but I am denying these requests because plaintiff has failed to demonstrate that he has made an adequate effort to find counsel on his own. Furthermore, even if plaintiff had satisfied this obligation, I would deny his motions because he has failed to establish that he is incapable of continuing to represent himself in this case.

         From the parties' summary judgment materials and the record, I find that the following facts are not subject to genuine dispute.

         UNDISPUTED FACTS

         Plaintiff has been incarcerated at Columbia Correctional Institution since April 9, 2013. During the relevant time period, defendant Gary Maier was employed as one of the prison's psychiatrists and was responsible for treating plaintiff. Maier treated plaintiff primarily for depression and prescribed a variety of medications. Plaintiff frequently complained that these medications were either ineffective or caused unwanted side effects.

         Initially, on December 19, 2013, Maier prescribed plaintiff venlafaxine, a drug used to treat depression. Maier scheduled a followup appointment for two months later to see how the venlafaxine was working. At the February 19, 2013 followup appointment, plaintiff stated that although he had been taking the venlafaxine for a while, he had decided to stop taking it because it made him tired. Plaintiff did not discuss the decision to stop taking venlafaxine with Maier. Maier and plaintiff discussed other possible drugs for treating plaintiff's depression, including paroxetine, which belonged to a different class of antidepressants. Plaintiff said he was willing to try paroxetine, so Maier prescribed it and entered an order for it to start the following day.

         Maier's notes from the April 2, 2014 followup appointment indicate that plaintiff reported that the paroxetine was working “a little bit, ” that he was able to tolerate the drug and that he was not experiencing any side effects. (However, plaintiff asserts at summary judgment that he informed Maier that the paroxetine made him feel “weird.”) Maier and plaintiff agreed to increase plaintiff's paroxetine dose from 20 mg to 40 mg per day. Maier scheduled another followup appointment for May 28, 2014.

         At the May 28, 2014 appointment, plaintiff stated that he was beginning to have periodic headaches. Maier believed these headaches may have been attributable to trazadone, a drug Maier had prescribed plaintiff to help him sleep. Maier and plaintiff agreed to switch from trazadone to diphenhydramine in an effort to resolve his headache symptoms. However, they decided they would continue to use paroxetine to treat his depression.

         Maier and plaintiff met again on June 24, 2014. Plaintiff stated that he was continuing to have headaches and that he believed the paroxetine was making him feel sick. Maier believed that the headaches and other side effects plaintiff was experiencing may have been attributable to the paroxetine. Plaintiff also complained that the paroxetine was not helping him with his “legal work.” (Plaintiff's concerns about his legal work and his frequent complaints about his antidepressants led Maier to suspect that plaintiff was seeking other drugs, such as Adderall, a controlled substance that plaintiff was prescribed while in prison. However, prison officials soon discovered that plaintiff was abusing his Adderall so they discontinued the prescription.) After informing plaintiff that the drugs were not being prescribed to help with his legal work, Maier and plaintiff discussed the side effects plaintiff was experiencing. Ultimately, Maier suggested that plaintiff try fluoxetine. Fluoxetine is similar to paroxetine and in the same class of anti-depressants, but it has a different side effect profile. Plaintiff agreed to try fluoxetine, so Maier discontinued plaintiff's paroxetine. The fluoxetine had to be ordered from the prison's central pharmacy, a process Maier knew would take approximately one week. Maier also knew that during this one-week period, plaintiff would be without either paroxetine or fluoxetine.

         Five days later, on June 29, 2014 at approximately 11:00 a.m., plaintiff entered the housing unit's dayroom and approached Ribbke and Krasovec. Plaintiff informed them that he wanted them to send him to the health services unit because he was experiencing various symptoms, including dizziness, lightheadedness and a headache. Plaintiff compared his symptoms to a “hangover.” Krasovec contacted the health services unit and described plaintiff's symptoms. The nurse Krasovec spoke with determined that plaintiff's symptoms did not present an emergency. She instructed Krasovec to send plaintiff to his cell to rest and advise him to drink fluids, which Krasovec did. (Plaintiff alleges that Krasovec misinformed the health services unit that plaintiff had recently been in the recreation yard and that he appeared to be dehydrated. Defendants dispute that Krasovec made any such misrepresentation and further state that even if they had, this fact is immaterial.) Plaintiff then returned to his cell to rest.

         Later that day at approximately 4:30 p.m., a health services unit nurse, Joe Reda, stopped by plaintiff's cell and examined him. Plaintiff complained that he was experiencing chest pain, dizziness and was unable to sleep. Reda's treatment notes indicate that plaintiff told Reda he felt like he was “coming off a hangover.” Reda contacted the on-call physician. Plaintiff informed the physician of his symptoms and that he initially thought the symptoms were attributable to the fact that he was fasting for Ramadan. However, plaintiff stated that he had stopped fasting, but his symptoms persisted, so he believed that they might be attributable to the discontinuance of his paroxetine. The on-call physician agreed to restart plaintiff's paroxetine for a short period of time until plaintiff's fluoxetine arrived from the central pharmacy. Plaintiff's paroxetine was restarted the next day; all told, he was without his paroxetine or a similar antidepressant for a total of six days.

         The following day, on June 30, 2014, plaintiff filed formal complaints against defendants Ribbke, Krasovec and Maier. In plaintiff's complaint against Ribbke and Krasovec, he alleged that they should not have prevented him from visiting the health services unit when he began to experience withdrawal symptoms on June 29, 2014. The institution's complaint examiner interviewed Krasovec regarding the complaint, but did not interview Ribbke. As for plaintiff's ...


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