United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
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.
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.
The Parties and Claims
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.
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).
Fifer's Medical Treatment
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 ¶
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 ¶
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).
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).
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
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 ¶