United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
Kendale Sims (“Sims”), a prisoner, brings this
action pursuant to 42 U.S.C. § 1983 against Defendants,
alleging that they were deliberately indifferent to his
serious medical needs, in violation of the Eighth Amendment.
Defendants are three individuals who worked at Oshkosh
Correctional Institution (“Oshkosh”), the prison
where Sims was housed during the events alleged in his
complaint. Sims claims that Defendant Dr. Kate Keshena
(“Dr. Keshena”) prescribed antidepressant
medication for him despite knowing that it would cause severe
side effects. For Defendant Danielle Foster
(“Foster”), the Health Services Unit
(“HSU”) manager at the prison, Sims alleges that
she ignored his health services request forms in which he
complained of worsening side effects from the medication.
Lastly, Sims alleges that Defendant Captain Hans Kuster
(“Kuster”) failed to properly respond after Sims
complained to him about the adverse side effects of his
filed a motion for summary judgment on October 3, 2016.
(Docket #86). On November 8, 2016, the Court granted
Plaintiff's request for an extension of time to review
Defendants' discovery responses and to draft a response
to Defendants' motion. (Docket #104). Because Plaintiff
had already filed a response to the motion, the Court
directed Plaintiff to file an amended response that
incorporated whatever new evidence and argument he sought to
make based on Defendants' discovery responses.
Id. On November 16, 2016, Plaintiff filed his
amended response, which was largely identical to his initial
response but incorporated a handful of new exhibits and
arguments. See (Docket #107 and #113). Defendants
replied to the amended response on November 22, 2016. (Docket
#117). Defendants' motion is fully briefed and, for the
reasons explained below, it will be granted.
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).
has been incarcerated at Waupun Correctional Institution
since June 12, 2015. (Docket #118, ¶ 1). From February 10,
2015 to June 12, 2015, and all times relevant to this action,
Sims was incarcerated at Oshkosh. Id. Prior to
Oshkosh, Sims was an inmate at Green Bay Correctional
Institution (“Green Bay”). Id.
times relevant, Dr. Keshena was employed by the Wisconsin
Department of Corrections (“DOC”) as a
psychiatrist at Oshkosh. Id. ¶ 3. Kuster was
employed by DOC as a Supervisor II (Captain) at Oshkosh.
Id. ¶ 4. Foster was employed by DOC as a
Nursing Supervisor and manager of the HSU at Oshkosh.
Id. ¶ 5.
after arriving at Oshkosh, Sims was in a fight with another
inmate and was given a disciplinary ticket for 120 days in
segregation. Id. ¶ 6. Sims was housed in
Oshkosh's Restrictive Housing Unit from February 19, 2015
through June 12, 2015, the date he was transferred to Green
Bay, due to his behavioral problems. Id. ¶ 7.
The Restrictive Housing Unit is a unit which houses inmates
who need more intensive supervision, as well as more closely
restricted and monitored privileges based upon their record
of serious behavioral issues while in prison. Id.
¶ 8. Restrictive housing was formerly known as
“segregation” and such placement may put the
inmate at a greater risk for self-harm behavior. Id.
Prescription of Venlafaxine
to his transfer to Oshkosh, Sims was being treated by a
psychiatrist at Green Bay and was prescribed venlafaxine, an
antidepressant. Id. ¶ 10. Venlafaxine (also
known under the brand name Effexor) is a commonly-prescribed
antidepressant known to have very low rates of
life-threatening or lethal outcomes when compared to other
psychotropic medications. Id. ¶ 16. Venlafaxine
has been known to cause headaches in some people, but this
risk is low. Id. ¶ 17. Other very common side
effects include nausea, insomnia, or dizziness. Id.
Venlafaxine is a medication that should be tapered gradually
prior to discontinuation. Id. ¶ 18. One risk of
stopping venlafaxine abruptly is that a patient may develop
discontinuation syndrome, with symptoms including dizziness,
nausea, stomach cramps, sweating, and tingling.
January 23, 2015, Dr. Gary Maier (“Dr. Maier”), a
psychiatrist working at Green Bay, prescribed the venlafaxine
because of Sims' diagnosis of unspecified mood disorder,
with associated depression and adult ADHD by history.
Id. ¶ 11. Venlafaxine was prescribed to replace
another medication Sims had been taking for mood instability.
Id. ¶ 12. Dr. Maier's note of January 23,
2015 indicates that venlafaxine can be effective for
depression, anxiety and adult ADHD. Id. ¶ 13.
He prescribed venlafaxine at a single daily dose of 75 mg.
Id. ¶ 14. Dr. Maier obtained informed consent
from Sims before prescribing the venlafaxine. Id.
was assigned to be one of Dr. Keshena's patients when he
was transferred to Oshkosh in February 2015. Id.
¶ 19. She had two appointments with Sims while he was an
inmate at Oshkosh. Id. ¶ 20. The first was on
March 13, 2015. Id. ¶ 21. Sims was referred for
the appointment because he had been treated by Dr. Maier at
Green Bay and was on psychiatric medication when he was
transferred to Oshkosh. Id. The appointment was to
maintain continuity of care. Id. Sims had also filed
a request for such an appointment in late February 2015.
Id. ¶ 38.
March 13, 2015 appointment, Dr. Keshena discussed with Sims
the use of and the potential benefits of venlafaxine,
including what the medication would be able to help and what
it would not help. Id. ¶ 22. Sims claims that
“Dr. Keshena never told me about the risk of
venlafaxine and how it would affect me as the dose went up.
Had I known about these risks I would have had a chance of
refusing the raise in the medication.” See Id.
At this appointment, Sims reported feelings of anger,
increased depression, and trouble sleeping. Id.
¶ 23. He also reported a history of self-harm and
suicide attempts, and he believed his medication was not
working. Id. He did not, however, report any
physical symptoms to Dr. Keshena, and he admits that he was
suffering none at the time. Id. Dr. Keshena advised
Sims that venlafaxine would not likely help with his anger.
Id. ¶ 24. She discussed the benefits of therapy
sessions to address his anger issues. Id.
appointment, Dr. Keshena diagnosed Sims with depressive
disorder, alcohol use disorder, rule out PTSD, and borderline
personality disorder. Id. ¶ 25. She recommended
increasing the daily dose of venlafaxine to better alleviate
his depression, sadness, chronic suicidal ideation, and his
difficulty with sleep. Id. ¶ 26. Dr.
Keshena's notes reflect that Sims was “agreeable to
increasing his current dose of venlafaxine.” (Docket
#89-1 at 24). Sims asserts that he “told Dr. Keshena
about his problems with the venlafaxine, and told her he
wanted to be taken off of it, but she stated she wanted him
to give it another try before stopping it. She was very
adamant about this, leaving Sims no other choice but to
agree.” (Docket #118 ¶ 27). Sims also asserts that
he asked about decreasing his dosage, but Dr. Keshena told
him that it would take a long time to wean him from the
medication. See Id. ¶ 30. He claims that
despite his complaint that venlafaxine was not working for
him, she encouraged him to give the higher dosage a try
before they gave up on it. (Docket #119 ¶ 8).
Keshena ordered the daily dose of venlafaxine be increased
from 75 mg to 112.5 mg on March 13, 2015. (Docket #118 ¶
28). She avers that she made this treatment decision based on
the following factors:
(1) Sims had a history of attempting suicide on multiple
occasions and this put him at an elevated risk of future
(2) Sims reportedly felt sad and was having chronic thoughts
(3) the stressors that led to Sims's suicidal thoughts
were long-term problems that are not quickly or easily
(4) Sims had multiple episodes of self-harm;
(5) Sims was in the segregation unit and demonstrated that he
did not have the appropriate coping skills to conform his
behavior to be able to maintain in a general population
setting for longer than one week; and
(6) Sims was not experiencing side effects of the medicine
and given the amount of time it would take to get him off the
venlafaxine and restart another medication, it made more
sense to increase the dose, as he was taking only one-third
of the maximum dose.
Id. ¶ 31. Given all of the risk factors, Dr.
Keshena determined, based upon her medical and psychiatric
expertise, that the current dose of antidepressant medication
was not adequately treating Sims' reported symptoms.
Id. ¶ 32. Sims disagrees, stating that she
“never explored any other options [except] increasing
the dose” and “she didn't consider the side
effects” of the drug. Id.
Keshena avers that she increased the dose of Sims's
medication in an effort to relieve Sims' reported
symptoms and requested that he be seen again in six to eight
weeks. Id. ¶ 33. Because Sims had been able to
tolerate the medication since January 2015, Dr. Keshena
believed the potential benefits of the medication outweighed
the risks of not adequately treating Sims's mental
illness or the risk of potential side effects. Id.
¶ 34. At no time during the appointment on March 13,
2015 did Sims report symptoms of dizziness, headaches,
nausea, or “brain shocks.” Id. ¶
35. If Sims had reported such symptoms, and Dr. Keshena
believed the symptoms were related to the medication, Dr.
Keshena would have tried to wean Sims off the venlafaxine.
Id. ¶ 36.
Medical Visits and Complaints After March 30, 2015
inmates enter Wisconsin DOC institutions, they are given an
inmate handbook informing them that if they require
nonemergency medical attention they must submit a Health
Services Request (“HSR”) or a Psychiatric
Services Request (“PSR”) to the HSU. Inmates are
informed that if they need to see medical/psychiatric staff
immediately for a medical emergency, they need to alert unit
staff of their concern. Id. ¶ 37. Sims
submitted twelve HSRs between February 25, 2012 and June 5,
2012. Id. ¶ 38. For four of those HSRs, dated
February 25, March 29, April 19, and May 14, 2015, nurses
from the HSU flagged the forms ...