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Wilke v. Shaw

United States District Court, E.D. Wisconsin

February 28, 2017

KEVIN L. WILKE, Plaintiff,


          HON. PAMELA PEPPER United States District Judge.

         The 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.

         On 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.


         The 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).[1]

         A. Parties

         The 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.

         B. The Plaintiff's Injury

         On 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.

         Later 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.

         The 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. Id.

         The 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 stated:

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 you.”

Dkt. No. 1-1 at 34.

         That 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 ¶29.

         The 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 at ¶17.

         At the 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.[2]

         The 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.

         On July 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.

         On July 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.

         On July 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.

         On July 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.

         On July 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. Id.

         On July 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[.]” Id.

         On July 23, 2014, the plaintiff wrote a complaint addressed to “Sheriff.” Dkt. No. 1-1 at 44. The plaintiff wrote:

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.” Id.

         On July 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.

         The 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 ...

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