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Page v. Felber

United States District Court, W.D. Wisconsin

January 10, 2017


          OPINION & ORDER

          WILLIAM M. CONLEY District Judge

         Pro se plaintiff Emmanuel Page was granted leave to proceed in this case on claims that defendants Jean Felber and Anthony Hentz, both nurses at the New Lisbon Correctional Institution, acted with deliberate indifference to his need for medical treatment for serious breathing problems. Before the court is defendants' motion for summary judgment (dkt. #28), which will be denied based on genuine disputes of material facts about (1) whether Page had a serious medical need for an Albuterol inhaler; and (2) whether defendants were deliberately indifferent to that need. Further, in light of the medical questions involved in this case, the court will grant Page's request for assistance in recruiting counsel (dkt. #22), for the trial on his claims. Finally, Page's motion for a continuance (dkt. #40) will, therefore, be denied as moot, since the trial date and all other deadlines will be struck and this case will be stayed pending recruitment of counsel.


         A. The Parties

         At times relevant to this lawsuit, plaintiff Emmanuel Page was confined by the Wisconsin Department of Corrections at the New Lisbon Correctional Institution (“NLCI”). The defendants, Jean Felber and Anthony Hentz, were employed at NLCI as nurse clinicians. Both are licensed registered nurses.

         Page has been diagnosed with asthma and chronic obstructive pulmonary disease (“COPD”), a lung disease that interferes with his ability to breathe properly. Asthma involves inflammation of the airways that contribute to airway obstruction, sometimes causing attacks of wheezing and shortness of breath. Although the symptoms vary from individual to individual, the primary symptoms of COPD usually include shortness of breath, wheezing, and cough with sputum production.

         COPD typically worsens over time. There is no known cure for COPD, but the symptoms may be treatable and its progression can be delayed. Inhaled bronchodilators are the primary medications used to treat COPD. They help open airways and reduce shortness of breath and wheezing.

         B. Obtaining Medical Care and Prescription Refills at the Prison

         Inmates at NLCI are given an inmate handbook that provides instructions for obtaining medical care. The handbook instructs that when an inmate needs to refill a prescription medication, he must complete and submit a medication/medical supply refill form to HSU nursing staff. Inmates are advised to request refills 7-10 days before they will run out in order to provide sufficient time for central pharmacy and HSU to obtain the refill. HSU staff pick up medication refill requests and health services requests from the units generally between 5:00 a.m. and 7:00 a.m. on weekdays and around 9:00 a.m. on weekends/holidays or if an emergency supersedes weekday pickup.

         Nursing staff fills the prescriptions themselves, taking note of when the last medication was dispensed on the patient medication profile sheet. This helps evaluate compliance and any misuse of the medication. Non-controlled medications, such as Albuterol, are placed in a zippered bag labeled for the housing unit. Security staff is supposed to then deliver the blue bag to the inmate's housing unit, where the medication is then distributed to the inmate.

         The handbook instructs that if an inmate needs non-emergency medical attention, they must place a health service request in a designated box located on his housing unit. The request will then be forwarded to HSU. Nursing staff triage health service requests daily and will schedule an inmate to go to “sick call” if his stated problem requires medical attention. Sick call is held every weekday, which assures that the patient will be seen by a nurse, who will determine if he should be seen by a doctor. If an inmate feels he needs to be seen right away, he can contact housing unit staff, who can then notify HSU via telephone.

         C. Page's November 2014 Requests for Medical Care and Medication Refills

         During the relevant time period, Page was prescribed three inhalers to treat his asthma and COPD: Atrovent, Ciclesenide, and Albuterol inhalers. Page had been instructed that when he used his inhalers, he should use the Albuterol inhaler first in order to open up his airways and allow the medication from the other inhalers to work more effectively.

         On November 11, 2014, Page submitted a medication/medical supply refill request for Omeprazole (for treatment of gatroesophageal reflux disease), Meloxicam (nonsteroidal, anti-inflammatory drug with analgesic for pain relief), Ciclesonide inhaler (for asthma treatment) and Atrovent inhaler (used to treat the symptoms of COPD and asthma). Nursing staff dispensed those requested medications to be delivered to Page on November 12.

         While the November 11 medication/medical supply refill request did not include a request for an Albuterol inhaler, Page claims that he had submitted a separate request during the same week for an Albuterol fast acting inhaler, because he had run out of Albuterol and his airways were not opening properly without it. Defendants have no record of such a request, and they deny receiving one. Regardless, it is undisputed that no Albuterol inhaler was dispensed that week.

         On November 14, Page sent a health services request complaining that he had been experiencing headaches and dizziness due to elevated blood pressure and that he needed to see the doctor. The request also stated that he had been using several medications lately but his “body is not responding.” An appointment was scheduled with Nurse Felber for November 15. On the morning of November 15, prior to his appointment, Page submitted another health service request, stating that he made a request for an Albuterol inhaler “days ago, ” but he had not received it. He further wrote that he needed the Albuterol to take the Atrovent inhaler, and he was having trouble breathing.

         Page saw Felber later in the day on November 15. Page told Felber that his headaches and dizziness had increased since starting prescriptions of Metroprolol and Losartan, both medications used mainly for high blood pressure treatment. Felber reassured Page that his blood pressure was okay but advised him that it needed to come down. Felber further discussed the need for Page to take his medications consistently and encouraged him to continue his relaxation techniques. Felber than scheduled an appointment for Page to see the physician regarding his medical issues.

         During his November 15 visit with Nurse Felber, the parties dispute whether Page requested an Albuterol inhaler or made any complaints that he was having trouble breathing. Felber specifically denies that Page asked for an Albuterol inhaler or made complaints about breathing, stating that Page's complaints were solely about his blood pressure. Felber's contemporaneous, written report of that ...

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