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Booth v. Doehling

United States District Court, E.D. Wisconsin

January 20, 2017

ROBERT EARL BOOTH, Plaintiff,
v.
LORI DOEHLING, SHARON MOERCHEN, CINDY BARTER, SHARI, SUSAN PETERS, WANDA YESKA, DUSTIN HODGE, and BRIAN MILLER, Defendants.

          ORDER GRANTING MOTION TO CORRECT BRIEF, GRANTING SUMMARY JUDGMENT AS TO LORI DOEHLING, CINDY BARTER, SHARI KLENKE, AND SUSAN PETERS AND DENYING SUMMARY JUDGMENT AS TO SHARON MOERCHEN, DUSTIN HODGE, BRIAN MILLER, AND WANDA YESKA

          C. N. CLEVERT, JR. U.S. District Judge

         Robert Earl Booth, a Wisconsin state inmate, claims that defendants violated his constitutional rights through their deliberate indifferent to his thumb injury, which that occurred while he was on his prison job. He further asserts that defendant Sharon Moerchen, retaliated against him by misconstruing his work status to his employer, resulting in him being fired from the job. This case is now before the court on defendants' motions for summary judgment. (Docs. 36, 41.)

         RELEVANT FACTS[1]

         Defendants Lori Doehling, a Health Services Manager; Cindy Barter, a Nurse Clinician II; Shari Klenke, a Nurse Clinician II; Sharon Moerchen, a Nurse Clinician II; Dustin Hodge, a Corrections Officer; Wanda Yeska, a Corrections Food Service Leader; and Brian Miller, a Corrections Unit Supervisor, were employed by the Wisconsin Department of Corrections at the Redgranite Correctional Institution at all relevant times. Susan Peters, an advanced practice nurse prescriber, worked at Redgranite but was employed by Maxim Healthcare Services.

         Plaintiff worked as a dish washer in food services at Redgranite from June 22, 2014, until March 1, 2015, and was supervised by Yeska. According to Yeska, on August 30, 2014, plaintiff showed her his left thumb and said it was hurt while cleaning the dishwasher. Yeska states plaintiff did not say he was in pain or request medical attention. Hodge adds that he spoke with plaintiff on August 30 about a thumb injury. Plaintiff, on the other hand, states he told Yeska and Hodge that he felt a sharp and intense pain when he hurt his thumb and that his hand went numb. He maintains that he requested medical attention.

         Yeska submits that she allowed plaintiff to return to his housing unit without finishing his shift; however, plaintiff states that Yeska and Hodge advised him that they would get medical help. Shortly thereafter, when plaintiff asked Yeska and Hodge about going to the health services unit (HSU), they said no one was there and sent him and other inmates back to their unit.

         Plaintiff states that upon returning to the housing unit he informed Miller that his thumb required medical attention because he was in a lot of pain, but that Miller did nothing to assist. Miller does not recall plaintiff complaining about needing medical care for a thumb injury and explains that his standard practice was to inform inmates that they could submit a health services request for non-emergency injuries. Afterward, he would contact HSU or ensure that HSU was notified by unit staff. However, Miller did not contact HSU about plaintiff's thumb injury.

         The next day, August 31, 2014, plaintiff returned to work and told Hodge that he was still in pain and needed medical attention. Hodge then contacted HSU and sent plaintiff there.

         The HSU triage nurse noted that plaintiff had swelling, and range of motion limitations in his hand. She gave him ice, pain medication, and a splint. Moreover, the triage nurse placed plaintiff on a one-week work restriction and scheduled him to see an advanced practice nurse prescriber. In Wisconsin, an advanced practice nurse prescriber has a certificate that allows the holder to issue prescription orders. An advanced practice nurse may also serve as a primary care provider and perform duties that are similar to those of doctors.

         On September 3, plaintiff was seen by Moerchen for a follow-up and continued to complain of pain. Moerchen placed his thumb in a spica splint and advised plaintiff to elevate his hand to reduce the swelling and throbbing. She also told him to take pain medication and to ice the injury three to four times each day.

         Moerchen determined that plaintiff should be seen by an advanced care provider, so later that day he was seen by Peters, an advanced practice nurse prescriber. Peters's assessment and plan were as follows:

Traumatic injury to left hand: thumb Spica cast placed per nursing triage. Continue with ibuprofen, ice and elevation. X-ray of left hand and him to be obtained. Further recommendations will be based upon x-ray findings.

(Doc. 70 at 13.)

         The next day, September 4, 2014, plaintiff underwent x-rays of his left fingers and left hand. The x-ray films were evaluated that day by a radiologist who concluded there was “No acute pathology.” (Doc. 70 at 16.) Peters reviewed the radiologist's report on September 5, 2014, in addition to reassessing and reevaluating plaintiff's injury. Her notes indicate:

Traumatic injury to left hand: thumb Spica cast has been removed. X-ray findings of [9/04/14] have been reviewed with Robert. First metacarpal has a deformity most consistent with prior fracture. Soft tissues are within normal limits. There is mild degenerative changes [sic] consistent with mild degenerative changes and narrowing of the interphalangeal joint spaces. Symptomatic treatment will continue with heat, nonsterodial medication and he will be off of work for 3 weeks. If he feels he is unable to perform his activities of occupation he will contact Hsu.

(Doc. 70 at 20.)

         Peters asserts that, based on the appearance of the x-rays, plaintiff suffered from a fracture to the first joint of his left thumb many months, if not years, prior and that the x-ray images of the soft tissue did not demonstrate swelling. During her September 5 examination, Peters noted that plaintiff's thumb joint was bruised.

         Plaintiff disputes much of Peters's assessment and contends it was based only on her review of the triage nurse's examination notes and a visual inspection of his thumb and not a a physical examination. He asserts that he explained to Peters that he did not have a prior fracture to his left hand or thumb. Additionally, plaintiff highlights that the triage nurse noted swelling during her examination.

         Peters diagnosed plaintiff with a contusion of the left thumb in the area of an old fracture and concluded that he had no serious medical need related to the August 30 work injury. She also found that he had chronic, mild degenerative changes from the old fracture, including a narrowing of the interphalangeal joint spaces. Based on her findings, Peters determined that it was no longer medically necessary for plaintiff to possess the spica cast and recommended continued treatment of heat, nonsteroidal medication and a no-work restriction for three weeks.

         Plaintiff asserts he informed Peters that he was in extreme pain and that the ibuprofen was not working. He adds that Peters said there was nothing else she could do and that he should contact HSU for further follow-up if he was unable to perform his work functions. On the other hand, Peters maintains that she was not aware that plaintiff had further complaints concerning his hand injury until she was served in this lawsuit.

         On September 6, 2014, Barter directed plaintiff to return the spica cast to HSU, and he did so that day. Plaintiff's no-work restriction expired on September 26, and he returned to work. Advanced practice nurse prescriber Frank (who is not a defendant) saw plaintiff on November 10, 2014, based on his complaints that his left thumb pain continued and that he had decreased mobility and grip strength that made it difficult for him to perform his kitchen job duties. Frank suspected that plaintiff had postraumatic osteoarthritis and ordered x-rays. He also prescribed lidocaine cream to use for pain control.

         On November 13, 2014, a second x-ray of plaintiff's hand was taken. The x-ray showed moderate left first metacarpal phalangeal joint osteoarthritis. The x-ray did not show an acute fracture or osseous deformity; the soft tissue was also unremarkable. After discussing treatment options with Frank, plaintiff elected to try capsaicin cream for a few weeks and if that was unsuccessful he would consider a cortisone injection into the joint.

         On January 22, 2015, a nurse (who is not a defendant) placed plaintiff on a no-work restriction through March 15, 2015. Defendants contend that such a lengthy no-work restriction is contrary to the practice of HSU, as nurses are authorized to give inmates restrictions for only up to thirty days. Defendants explain that inmates can lose their jobs if they are off work more than thirty days. However, in ...


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