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Fifer v. Holloway

United States District Court, E.D. Wisconsin

September 30, 2016



          J.P. Stadtmueller U.S. District Judge

         In this action under 42 U.S.C. § 1983, Plaintiff Rhonda LaVette Fifer (“Fifer”), a state prisoner, claims Defendant Dr. David Holloway (“Dr. Holloway”) violated her civil rights by acting with deliberate indifference to a serious medical need. Presently before the Court is Dr. Holloway's motion for summary judgment. (Docket #46). On August 23, 2016, Fifer filed an opposition to the motion (Docket #54), and on September 6, 2016, Dr. Holloway filed a reply (Docket #56).The motion is now fully briefed and ready for disposition. For the reasons detailed herein, Dr. Holloway's motion for summary judgment will be granted and this action will be dismissed in its entirety.

         Before turning to the factual background of the case, the Court must address various preliminary matters. On September 9, 2016, and September 21, 2106, Fifer filed motions to amend the complaint (Docket #57, #60). Fifer seeks to forego the 2010 claims and instead add claims related to Dr. Holloway's 2015 treatment of Fifer with the medications Cymbalta and Hydrozyzine. (See Docket #60). The Court's initial scheduling order allowed for amended pleadings to be filed until January 15, 2016. (Docket #17 at 1). Federal Rule of Civil Procedure provides that “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Here, Dr. Holloway has not consented to an amended pleading, nor does the Court find that leave to amend is appropriate in this case. Fifer filed both her motions after Dr. Holloway filed for summary judgment and had likely spent considerable time and money defending the case. As such, the proposed amendment at this stage would likely prejudice Dr. Holloway, and the Court will deny Fifer's motions to amend the complaint. (Docket #57, #60). In light of this ruling, the Court will also grant Dr. Holloway's motion to strike. (Docket #59). Because the Court will not allow Fifer to amend her claims at the eleventh hour, Fifer's additional briefing is unnecessary to decide the issues presented on summary judgment.


         1.1 The Parties and Claims

         The Court allowed Fifer to proceed on her claim that Dr. Holloway violated the Eighth Amendment because he showed deliberate indifference to her serious medical needs when, despite knowing her medical history, he prescribed medication with serious side effects of which he failed to warn her. (Docket #12 at 5-6). The claims allowed to proceed involve incidents from 2010 and 2015. Thus, the Court will limit its discussion to Fifer's medical treatment and history during those relevant time periods.

         Fifer is an inmate in the custody of the Wisconsin Department of Corrections and has been incarcerated at Taycheedah Correctional Institution (“TCI”) since 1999. (DPFF ¶ 1). Dr. Holloway is a board-certified psychiatrist and licensed to practice medicine in the State of Wisconsin. (DPFF ¶ 2). At all times relevant to Fifer's lawsuit, Dr. Holloway was employed as a psychiatrist at TCI. (DPFF ¶ 3). Dr. Holloway voluntarily left the employment of the Department in May 2015 to work in the private sector. (DPFF ¶ 4).

         1.2 Fifer's Medical Treatment

         Dr. Holloway first treated Fifer on November 5, 2010. (DPFF ¶ 21). Prior to that appointment, Fifer had been diagnosed with post traumatic stress disorder and anxiety by another psychiatrist. (DPFF ¶ 23). In preparation for the November 5, 2010 appointment, Dr. Holloway reviewed Fifer's records and noted that Fifer was taking Remeron, which was prescribed by another psychiatrist. (DPFF ¶ 22).

         At the November 5, 2010 appointment, Dr. Holloway learned that Fifer believed Remeron caused her to lose consciousness the week before, and to fall and hit her head. Fifer also believed the drug caused dizziness and hand tremors. Fifer thereafter refused to take Remeron as prescribed, taking it only every three days. (DPFF 2 ¶ 4). Dr. Holloway discontinued the Remeron prescription on November 10, 2010, because Fifer was not taking it as directed, which could cause adverse effects. (DPFF ¶ 25). Dr. Holloway did not prescribe Remeron or Trazodone to Fifer at any time in 2010. (DPFF ¶ 26).[2]

         On February 7, 2015, Dr. Holloway prescribed Buspirone to Fifer because she reported increased anxiety symptoms at this appointment.. (DPFF ¶ 46). Buspirone is an anti-anxiety medication and common side effects include dizziness, nausea, headache, nervousness, and drowsiness. (DPFF ¶ 61). Fifer continued on the Buspirone until April 30, 2015, when the drug was discontinued because she refused to take it. (DPFF ¶ 50).

         Dr. Holloway saw Fifer three more times between February 7, 2015, and May 2015 before he voluntarily departed the Department. (DPFF ¶ 51). At an April 4, 2015 appointment, Fifer reported, for the first time, muscle twitching that she associated with hydroxyzine, not Buspirone. Dr. Holloway, therefore, discontinued the hydroxyzine but continued Buspirone at this appointment. (DPFF ¶ 64).

         On May 2, 2015 (Fifer's last appointment with Dr. Holloway), Fifer agreed to restart the Buspirone because she felt she suffered side effects from Cymbalta, which was discontinued on April 30, 2015. Fifer never told Dr. Holloway that she experienced adverse side effects from Buspirone . (DPFF ¶ 52).

         Fifer's amended complaint alleges that she suffers from tardive dyskinesia due to the lack of knowledge of harmful side effects from medical staff. (Am. Compl. at 5, Docket #11). However, Fifer has never been diagnosed with tardive dyskinesia. (DPFF ¶ 68). Tardive dyskinesia is a disorder that causes involuntary face, lip, and mouth movements that is common with long-term use of anti-psychotic medication. (DPFF ¶ 69). Fifer reported that she believed she suffered from tardive dyskinesia to Dr. Vickrey on August 5, 2015, but the doctor did not see any involuntary movements during the appointment and told her that if she in fact experienced these movements it was likely due to drugs other than the drugs at issue in this case. (DPFF ¶ 73). The risk of developing tardive dyskinesia as a result of the drugs prescribed by Dr. Holloway are very rare. (DPFF ¶ 72).

         1.3 Fifer's ...

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