United States District Court, E.D. Wisconsin
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
CLEVERT, JR. U.S. District Judge
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.)
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.
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
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
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.
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.
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.
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.
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.)
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.)
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.
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.
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
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
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
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.
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 ...