United States District Court, E.D. Wisconsin
KEVIN L. WILKE, Plaintiff,
TANYA SHAW, TEODORO ROMANA, HEATHER WITTIG, JEFFREY NETT, PAUL HANNEMAN, BONNIE ALT, SANDRA GEISTER, and CORRECTIONAL HEATHCARE COMPANIES, INC., Defendants.
AND ORDER GRANTING SUMMARY JUDGMENT AS TO DEFNDANTS WITTIG,
NETT, AND HANNEMAN (DKT. NO. 83), AND AS TO DEFENDANTS ALT
AND CORRECTIONAL HEALTHCARE COMPANIES, INC. (DKT. NO. 91),
AND DENYING SUMMARY JUDGMENT AS TO DEFENDANTS GEISTER, ROMANA
AND SHAW (DKT. NO. 91)
PAMELA PEPPER United States District Judge.
plaintiff, who is representing himself, filed this lawsuit
under 42 U.S.C. §1983, alleging that the defendants
violated his constitutional rights. Dkt. No. 1. On September
19, 2014, Chief District Court Judge William Griesbach
allowed the plaintiff to proceed on his claims that the
defendants demonstrated deliberate indifference to his
serious medical needs when they failed to provide treatment
for his fingers, which had been injured at the Waushara
County Jail. Dkt. No. 7. On December 29, 2014, the Clerk of
Court reassigned this case to this court.
April 25, 2016, defendants Paul Hanneman, Jeffrey Nett and
Heather Wittig (the Jail Defendants) filed a motion for
summary judgment. Dkt. No. 83. Defendants Bonnie Alt,
Correctional Healthcare Companies, Inc., Sandra Geister,
Teodoro Romana, and Tanya Shaw (the Medical Defendants) filed
their motion for summary judgment on May 9, 2016. Dkt. No.
91. This decision resolves those motions.
court takes the facts from the “Proposed Findings of
Fact in Support of [the Jail Defendants'] Motion for
Summary Judgment, ” dkt. no. 85, and the “Medical
Defendants' Proposed Findings of Fact in Support of
Summary Judgment, dkt. no. 93. In addition, because the
plaintiff is representing himself, the court will consider
facts from the plaintiff's sworn complaint (dkt. no. 1)
and the attachments to the complaint, which were incorporated
by reference (dkt. no. 1-1). The Seventh Circuit has
instructed district courts to construe a sworn complaint by a
pro se plaintiff as an affidavit at the summary
judgment stage. Ford v. Wilson, 90 F.3d 245, 246-47
(7th Cir. 1996).
plaintiff is no longer incarcerated, but he was incarcerated
at the Waushara County Jail (the Jail) at the time of the
events alleged in his complaint. Dkt. No. 85 ¶7, 8.
Defendants Wittig, Hanneman and Nett are Waushara County
Sheriff's Department personnel. Id. at ¶4.
Defendants Shaw, Alt and Geister are nurses licensed to
practice in Wisconsin; defendant Romana is now retired, but
in 2014, was a physician licensed to practice in Wisconsin.
Dkt. No. 93 ¶6. Throughout July, August and September of
2014, defendant Correctional Healthcare Companies, Inc.,
employed Alt, Shaw, Geister and Romana to provide on-site
healthcare to the Jail inmates. Id. at ¶7.
The Plaintiff's Injury
Friday, June 27, 2014, the plaintiff was involved in a fight
at the Jail. Dkt. No. 85 at ¶12. He initially told the
jail staff that he wasn't injured (and at the
disciplinary hearing, made no mention of any injury), and he
initially denied that the fight had occurred. Id. at
¶¶12, 14. However, the plaintiff prepared a medical
request form, dated June 27, 2014. Dkt. No. 1-1 at 33. The
form was addressed to “Nurse” and stated:
“I have either a broke[n] finger or dislocated
[k]nuckle I'm not sure. I thought I [sic] would just go
away but it[‘]s been 2 days. Thank you.”
Id. The plaintiff alleges that he gave the request
to Officer Kirwan (who is not named as a defendant) while she
was making her rounds, and she said that “she would
give it to medical right away.” Dkt. No. 1 at 5, 19.
that day, the plaintiff states that he spoke to the officer,
and she assured him that she had given his request to the
nurse “right away.” Id. She said she did
not know why the nurse hadn't seen him, but that the
nurse “went home” and likely probably would not
be back until the next day. Id. The plaintiff states
that he put his hand under running cold water for the rest of
the day to try to stop the swelling and pain. Id.
plaintiff states that the next day, he again asked to see the
nurse (he does not clarify who he asked). Id. An
unknown person told him that the nurse probably wouldn't
be in because it was the weekend, so he'd have to wait
until Monday (which would have been June 30, 2014).
Id. at 5-6. The plaintiff states that his finger
hurt so badly that he couldn't sleep. Id. at 6.
He explains that he had two blisters forming on his knuckles,
which he popped with a staple in order to relieve some of the
pressure. Id. The plaintiff states that this
“worked” in that it stopped some of the pain.
plaintiff explains that he was not seen by the nurse on
Monday, so he assumed that she had the day off. Id.
He states that he was allowed out of his cell on Tuesday for
a court hearing. Id. He learned that the nurse and
doctor were at the Jail, and he “got mad” that he
still hadn't been seen. Id. He wrote another
request to “Nurse, ” dated July 1, 2014, which
I can only write when I[‘]m out of my cell or I would
have wrote this this morning when I seen you were here. I
wrote you l[a]st week and told you I have at the very least a
broken finger. The officer told me she gave you the request
and you left. I[‘]ve had to pop a blister over one of
my [k]nuckles to rel[ie]ve press[ure] and I think my fing[er]
is going to be bent? Would you at least take a look. Thank
Dkt. No. 1-1 at 34.
same day (July 1, 2014), Hanneman was working at the Jail,
addressing the issue of which inmates needed medical care.
Dkt. No. 85 at ¶27. Hanneman asked Geister, the on-duty
nurse, if there were any other inmates that needed to see the
doctor. Id. Geister told Hanneman that the plaintiff
had written to her that his hand was injured. Id.
She asked him if the plaintiff had mentioned his hand to
Hanneman. Id. Hanneman said no, and explained that
he did not know about the injury. Id. He offered to
talk to the plaintiff about his hand, but Geister said that
she did not need to see the plaintiff that day. Id.
¶28. Later in the day, Hanneman asked one of the duty
officers if the plaintiff had said anything to her about his
hand; the officer responded that the plaintiff had not.
Id. Hanneman states that this was his only
involvement with the plaintiff's injury. Id. at
next day, on July 2, 2014, the plaintiff informed Corporal
Lee Rokke (who is not named as a defendant) that his hand was
hurt. Id. at ¶17. Within minutes, Rokke (at the
plaintiff's request) took pictures of the plaintiff's
hand. Id. The plaintiff told Rokke that he'd
hurt his hand “doing push-ups.” Id.
Rokke contacted Geister, who told Rokke that the day before,
the plaintiff had told her that his hand no longer
was hurting. Id. According to Geister, she advised
Rokke to send the plaintiff to the hospital. Dkt. No. 93 at
¶12. According to Rokke, “within a half hour, [the
plaintiff] was on his way to the hospital.” Dkt. No. 85
hospital, the emergency room staff x-rayed the
plaintiff's hand and diagnosed him with an avulsion
fracture of his second and fourth fingers. Dkt. No. 1-1 at
10. The emergency room staff applied a splint to treat the
injury and recommended that the plaintiff follow up with an
orthopedic doctor in one day. Id. According to
Romana, the plaintiff has a condition known as “mallet
finger” or “baseball finger, ” which
develops as a result of “the ligament on the finger
detaching from the bone due to trauma.” Dkt. No. 93 at
¶26. Romana states that the accepted treatment for
mallet finger is splinting and taping of the finger.
Id. at ¶27; Dkt. No. 94-2, 1-2.
plaintiff states that he went back to the jail and wrote
complaints and requests to medical, asking that he be sent to
an orthopedic doctor as recommended. Dkt. No. 1 at 7; Dkt.
No. 1-1 at 35. On July 7, 2014, the plaintiff wrote a request
to “Nurse, ” asking why she would not answer any
of his requests. Dkt. No. 1-1 at 37. He explained that he
went to the hospital the prior week, and was supposed to see
a specialist the next day. Id. He asked if the nurse
had set up an appointment. Id. He also asked,
“at the very least can you please change the dressing
on my splints the[y're] falling off. Thank you!”
Id. Alt saw the plaintiff that day, noting that he
had a splint and tape on his finger. Dkt. No. 93 at ¶15.
8, 2014, Romana “assessed” the plaintiff.
Id. at ¶16. Although he noted that the
plaintiff already was scheduled to see an orthopedist,
id., the plaintiff states that Romana told him that
the only reason the emergency room made that recommendation
is because emergency room doctors “always tell you to
follow up with your own Doctor, ” dkt. no. 1 at 8-9.
10, 2014, the plaintiff was seen by Dr. Jones (who is not
named as a defendant), an orthopedic doctor at CHN Medical
Center in Berlin. Id. at 10. The plaintiff states
that Jones confirmed his fingers were broken. Id.;
Dkt. No. 1-1 at 1. Jones indicated that the plaintiff should
have “stack splint immobilization of both the right
index and ring fingers.” Dkt. No. 1-1 at 2. He also
asked to see the plaintiff back in a week so he could recheck
the x-rays. Id. at 2. The plaintiff wrote requests
asking for the follow-up appointment. Dkt. No. 1 at 10; Dkt.
No. 1-1 at 41.
14, 2014, the plaintiff wrote a complaint to Sheriff Nett, to
which the sheriff responded on July 16. Dkt. No. 97-1 at 32.
The plaintiff complained that, despite writing to medical
about having two broken fingers, they didn't see him or
answer him for an entire week. Id. He said that it
wasn't until he requested that Jail staff take a picture
of his fingers that Jail staff decided to send him to the
hospital, where his injury was confirmed. Id. He
complained that his fingers may now be bent for life and that
he had to endure a week of pain, despite repeated requests
for help. Id. Nett noted that it was his
understanding that the plaintiff had sued Nett and the
sheriff's department, and informed the plaintiff of the
process for obtaining documents and photographs. Id.
15, 2014, Shaw examined the plaintiff. Dkt. No. 93 at
¶19. She noted that the plaintiff had “full
mobility of his [right] ring finger at the knuckles, minimal
swelling, [no] redness noted.” She also said, “Pt
has some mobility of [right] index finger, [not] able to bend
at knuckles, slightly swollen and slight redness noted, Pt
did not appear to be in any discomfort, he was tapping his
injured/taped fingers on the exam table as the writer was
reviewing his chart.” Id.
17, 2014, the plaintiff wrote a complaint addressed to
“Nurse/Medical” in which he asked whether the
ordered follow-up appointment with Jones had been scheduled.
Dkt. No. 1-1 at 41. The next day, Shaw responded that she was
still waiting for the records and would call Jones again.
22, 2014, Mobilex USA came to the Jail and took two x-rays of
the plaintiff's hand. Dkt. No. 1 at 10. The radiologist
observed that, “The right hand demonstrates no fracture
or bony destructive lesion. Normal anatomic alignment is
seen. No abnormal soft tissue swelling is seen.” Dkt.
No. 94-1 at 23. The radiologist concluded, “Normal
right hand.” Id. The radiology report states
in all-caps at the top of the report, “This report is
based solely upon the radiographic examination[.] Correlation
with the clinical examination is essential[.]”
23, 2014, the plaintiff wrote a complaint addressed to
“Sheriff.” Dkt. No. 1-1 at 44. The plaintiff
Sir I've wrote medical but they don[‘]t write back
or see me. I need to know if I will be able to see the
orthopedics to figure out the extent of my injur[ies]. I was
to see him last week, and can I please get my fing[ers]
retaped right now I have p[ie]ces of old tape t[i]ed around
my splints. Thank you!
Id. Nett responded on July 25, 2014, stating,
“This will be turned over to the medical staff.”
25, 2014, Shaw saw the plaintiff, and reviewed the x-ray
report with him. Dkt. No. 93 at ¶24. According to the
plaintiff, she gave him the radiology report and told him his
“fingers are fine.” Dkt. No. 1 at 11. The
plaintiff states that, despite the fact that his fingers were
still swollen and painful and despite the fact that they
still drooped, she took his splints. Id. at 12. The
plaintiff was not examined by a doctor. Id. The
plaintiff asked to see the specialist, but Shaw informed him
that Jones did not need to see him again. Id. The
plaintiff asserts that it was obvious that his fingers were
not healed, as they continued to be swollen and to droop.
Id. at 12-13; Dkt. No. 97-1 at 36, 37. The plaintiff
also states that he “practically begged” Shaw to
put the splints back on because the two weeks he had worn the
splints had helped his ring finger improve. Dkt. No. 1 at 17.
plaintiff continued to write complaints about his care.
See Dkt. No. 1-1 at 45, 46; Dkt. No. 97-1 at 27,
30-31. On August 1, 2014, the plaintiff wrote a complaint to
“LT, ” in which he complained that he was
supposed to see an orthopedics doctor, but that the nurse got
a diagnosis from radiology. Dkt. No. 1-1 at 46. He explained
that medical ...