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Sims v. Keshena

United States District Court, E.D. Wisconsin

December 28, 2016

KENDALE SIMS, Plaintiff,
v.
DR. KESHENA, FOSTER, and CAPTAIN KUSTER, Defendants.

          ORDER

          J.P. STADTMUELLER U.S. DISTRICT JUDGE.

         Plaintiff 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 medication.

         Defendants 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.

         2.STANDARD OF REVIEW

         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

         Sims has been incarcerated at Waupun Correctional Institution since June 12, 2015. (Docket #118, ¶ 1).[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.

         At all 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.

         Shortly 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. ¶ 9.

         3.1Sims' Prescription of Venlafaxine

         Prior 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. Id.[2]

         On 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. ¶ 15.

         Sims 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.

         At the 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.

         At this 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).

         Dr. 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 suicide attempts;
(2) Sims reportedly felt sad and was having chronic thoughts of suicide;
(3) the stressors that led to Sims's suicidal thoughts were long-term problems that are not quickly or easily remedied;
(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.

         Dr. 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.

         3.2Sims' Medical Visits and Complaints After March 30, 2015

         When 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. ΒΆ 38. For four of those HSRs, dated February 25, March 29, April 19, and May 14, 2015, nurses from the HSU flagged the forms ...


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