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Thomas v. Correctional Healthcare Companies, Inc.

United States District Court, E.D. Wisconsin

December 2, 2016

DAVID THOMAS, Plaintiff,



         1. INTRODUCTION

         Plaintiff David Thomas (“Thomas”), a prisoner, brings this action against several prison employees for injuries he suffered while incarcerated at the Racine County Jail. The Court permitted two claims to proceed beyond the screening stage. (Docket #22); see 28 U.S.C. § 1915A. First, Thomas claims that Defendant Christopher Schmaling (“Schmaling”), the Racine County sheriff, negligently failed to maintain the jail in a condition that was reasonably safe for the inmates, in violation of the Wisconsin safe place statute, Wis.Stat. § 101.11. In particular, Thomas claims that Schmaling provided him with a stool to climb in and out of the top bed bunk to which he was assigned when Schmaling should have provided a ladder affixed to the bed. Thomas fell while attempting to climb out of his bunk and fractured his arm. Second, Thomas claims that several persons on the medical staff at the jail, including Defendants Dr. Ortiz, Does 1, 2, 3, and 5, and Correctional Healthcare Companies, Inc. (“CHC”), showed deliberate indifference to his serious medical needs, in violation of the Eighth Amendment, when they denied his requests for a lower-bunk restriction and provided belated and inadequate medical treatment for his broken arm.

         On September 23, 2016, Schmaling filed a motion for summary judgment. (Docket #59). Three days later, on September 26, 2016, CHC and Dr. Ortiz did the same. (Docket #65). On October 31, 2016, after the deadline for responding to either motion had expired, Thomas filed a motion for extension of time to respond to Defendants' motions. (Docket #70). The Court granted Thomas' motion and gave him until November 7, 2016, to file his responses. (Docket #71 at 1-2). Thomas did not file his responses until November 9, 2016, (Docket #72, #73, #74, and #75), but the Court will overlook the two-day delay in light of Thomas' pro se status. Defendants filed their replies on November 17, 2016. (Docket #76 and #83). The Court will grant both motions.


         Federal Rule of Civil Procedure 56 provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh the evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). The party opposing summary judgment “need not match the movant witness for witness, nor persuade the court that [his] case is convincing, [he] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact.” Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).

         3. RELEVANT FACTS

         The following facts are drawn from the parties' proposed statements of fact, viewed in the light most favorable to Thomas. The Court recounts only those facts necessary to disposition of the motions.

         During the period relevant to this lawsuit, Thomas was confined at the Racine County Jail (the “Jail”). (Docket #75 at 6 ¶ 1).[1] Upon entering the Jail in November 2011, a medical screening was administered wherein Thomas was asked questions regarding his physical and mental health. Id. at 6 ¶ 2. The medical screening report indicates that Thomas declined to identify any physical limitations or restricted mobility that would require immediate accommodation. Id. at 6 ¶ 3. The report also reflects that Thomas declined to identify any current medical conditions. Id. at 6 ¶ 4. However, during the screening, Thomas indicated that he had a crushed heel and that he had two prior gunshot wounds from 2007, one of which was to his right ankle, and that he had suffered a slipped disc in 2003. Id. at 6 ¶¶ 3-4.

         Thomas alleges that a month after his initial medical screening, he informed two other members of the jail medical staff, Doe defendants 1 and 2, of his gunshot injuries. (Docket #19 ¶ 5). He requested assignment to a lower bunk in light of these injuries, but Does 1 and 2 denied the request for reasons not explained in the record. Id.

         Thomas was assigned to an upper bed bunk in his cell at the Jail. In April 2012, Thomas filed a written request for assignment to a lower bunk, arguing that his crushed heel made it difficult for him to climb in and out of bed. (Docket #75 at 7 ¶ 6).[2] There is no record of the response to the request, though the Court assumes it was either ignored or denied. See Id. Schmaling asserts that no record in Thomas' medical file shows that any medical staff deemed it medically necessary for him to be placed in a lower bunk. Id. at 7 ¶ 5. Thomas, on the other hand, believes that his reported crushed heel, gunshot wounds, and prior slipped disc, in combination with his April 2012 request for a lower bunk assignment, sufficed to put Schmaling on notice that Thomas needed a lower bunk assignment. See id.

         On September 7, 2012, Thomas fell while attempting to climb down from his bunk. Id. at 7 ¶ 7. Thomas completed a medical request form at around 4:00 p.m. that day referencing the incident and stating that he twisted his wrist and was in a lot of pain. Id. at 3 ¶ 12. Thomas was assessed by Doe Defendant 3, a nurse practitioner, at approximately 6:00 p.m. that same day. Id. at 3 ¶ 13; see (Docket #19 ¶¶ 8-10). Doe 3 noted that Thomas had chronic pain in the same arm due to a 2007 gunshot wound, and that he reported falling out of the bunk and landing on his forearm. (Docket #75 at 3 ¶ 14). Doe 3 further noted that “[n]o deformity or swelling noticed. Able to move arm, bend elbow. Wrist movements painful and restricted.” Id. Finally, Doe 3 observed that Thomas' vital signs were normal. Id. Doe 3 wrote that Thomas should receive ibuprofen 800 mg bi-daily for fifteen days, and Thomas was provided a left forearm brace to wear for one month. Id. at 3 ¶ 15. Her notes reflect that she offered Thomas to be moved to a low bunk and that he declined because he was “alright” and didn't want a different cellmate. Id. Thomas, however, avers that he orally requested a lower bunk assignment and merely suggested that he wanted to stay in his current cell because he liked his cellmate. Id. For purposes of the present motions, the Court credits Thomas' version of this exchange.

         Thomas was assessed again by Doe 3 on September 10, 2012. Id. at 3 ¶ 16. She noted that Thomas “continues to have pain and the forearm is slightly swollen now.” Id. She ordered an x-ray of Thomas's left forearm. Id. The x-ray was taken the next day. Id. at 3 ¶ 17. The x-ray was interpreted by Doe 5, a radiologist, whom Defendants identify as Dr. Elliot Wagner. Id.; see (Docket #19 ¶ 11). Doe 5 observed that Thomas had an “acute fracture of the mid-radius with no displacement. No displacement [was] seen. The visualized elbow and wrist [were] normal.” (Docket #75 at 3 ¶ 17).

         Dr. Ortiz was employed by CHC to provide on-site healthcare to inmates at the Jail. Id. at 2 ¶ 9. He avers that a non-displaced fracture is a fracture in which the bone breaks fully or partially, but still moves, maintains the correct alignment, and does not protrude from the skin. Id. at 4 ¶ 18. Thomas disagrees, stating that “[j]ust because the radius was not displaced at the time of the x-ray does not mean the radius maintained the correct alignment at all times.” Id. He further avers that he “felt pain when he moved his wrist even the slightest amount because the radius was fractured.” Id.

         Dr. Ortiz was consulted by telephone approximately forty minutes after the x-ray results were received and he gave a verbal order for Thomas to be referred to an orthopaedic specialist for treatment. Id. at 4 ¶ 19. Thomas was taken to an orthopaedic doctor at Wheaton Franciscan Hospital on September 14, 2012, where his arm was placed in a cast. Id. at 4 ¶ 20. Thomas underwent a follow-up appointment at the hospital on October 1, 2012. Id. at 4 ¶ 21. The findings and orders from that follow-up appointment are not indicated in the record.

         Dr. Ortiz opined that he is not responsible for making outside medical appointments for inmates. Id. at 4 ¶ 22. Instead, that duty is shared by healthcare and correctional staff. Id. Thomas, by contrast, contends that Dr. Ortiz “had a professional responsibility to insure that Thomas received immediate medical treatment for the radius being fractured and the x-rays” and that Dr. Ortiz “should have ordered Thomas to be taken to the hospital immediately to have the arm put in a cast.” Id. In Thomas' view, “[a]llowing 3 more days to elapse before treatment of Thomas' fractured radius was improper, ” particularly considering that there was a total of seven days' time from fracture to hospital treatment. Id. Thomas avers that CHC has a policy or custom that nurse practitioners or doctors are not required to order immediate treatment of broken bones and instead allow a three-day delay between diagnosis and treatment and a seven-day delay between actual injury and treatment. (Docket #74 ¶ 48).

         Three weeks after his fall, on September 20, 2012, Thomas filed an inmate complaint relating to his injury. (Docket #75 at 8 ¶ 13). He stated, in relevant part, that he “[has] a crushed heel bone, ” that he “was denied a low bunk, ” that he fell getting out of bed when “[t]he stool moved and my hand slipped, ” and that he broke his wrist when he fell. Id. He received no response to this complaint. Id. He filed a second complaint, which he calls his “appeal” of the first complaint, on October 8, 2012. Id. There, he argues for the first time that he should have been provided a ladder to get in and out of bed rather than a stool. Id.

         Thomas filed a request for medical attention on November 25, 2012, asking that he be assigned a lower bunk because of his crushed heel and his recently broken wrist. Id. at 10 ¶ 17. The request was denied for unspecified reasons. Id. at 10 ¶ 18. Thomas made a similar request on December 10, 2012, and this time the request was granted. Id. at 10 ¶¶ 19-20. In this request, Thomas attributed his September 7, 2012 fall to the fact that his crushed heel caused his foot to fall asleep during the night and that, in turn, caused him to slip as he was climbing down from bed that day. See id.

         Other than Thomas' claims asserted in this case, there are no known reports of inmates housed at the Jail who claimed, prior to September 7, 2012, that they fell while climbing to or dismounting from the top bunk and that the fall was attributable to the negligent or defective design of the jail. Id. at 11 ¶ 22.[3] The Jail undergoes yearly inspections by the Wisconsin Department of Corrections. Id. at 11 ¶ 23. There is no known record from the Wisconsin Department of Corrections or any other authority indicating that the configuration and design of the housing unit in which Thomas was housed on September 7, 2012, was unsafe before or after that date, nor is there a record indicating that it was necessary-before or after September 7, 2012-to provide an affixed or designated ladder to alleviate risks associated with an inmate's climb to the top bunk. Id. at 11 ¶¶ 24-25. Despite this, Thomas claims that Schmaling knew of the problem inmates faced in climbing in and out of their bunks with unstable stools as opposed to fixed ladders. (Docket #74 ¶ 28). Thomas believes that “just because [records] do not exist does not necessarily mean that falls did not occur.” (Docket #75 at 11 ¶ 22).

         4. ANALYSIS

         Summary judgment is appropriate in favor of Schmaling, Dr. Ortiz, and CHC. Schmaling is immune from Thomas' claim of negligence, while Thomas fails to marshal any competent evidence that Dr. Ortiz and CHC provided constitutionally inadequate medical care. As to the Doe defendants, however, the Court will give Thomas one final chance to identify these individuals before it will dismiss Thomas' claims without prejudice for failure to ...

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