United States District Court, W.D. Wisconsin
ARSENIO R. AKINS, Plaintiff,
GARY MAIER, CHARLES RIBBKE and JOSEPH KRASOVEC, Defendants.
OPINION AND ORDER
BARBARA B. CRABB, District Judge.
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
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
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.
the parties' summary judgment materials and the record, I
find that the following facts are not subject to genuine
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.
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.
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,
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
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.
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.
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.
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