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Neisler v. Larson

United States District Court, E.D. Wisconsin

March 7, 2017



          HON. PAMELA PEPPER, United States District Judge

         Plaintiff Mathew Neisler is incarcerated at Waupun Correctional Institution, and represents himself. On June 6, 2014, he filed a civil rights complaint against the defendants. Dkt. No. 1. He amended that complaint on June 18, 2014. Dkt. No. 5. On August 14, 2014, Judge Rudolph T. Randa screened the amended complaint, see 28 U.S.C. § 1915A, and permitted the plaintiff to proceed on Eighth Amendment deliberate indifference to a serious medical need claims against defendants Donna Larson and Belinda Schrubbe. Dkt. No. 9. On December 29, 2014, the case was reassigned from Judge Randa to Judge Pepper. On February 16, 2015, the defendants filed a motion for summary judgment. Dkt. No. 14. This motion is now fully briefed.[1] For the reasons explained below, the court will grant the defendants' motion, and dismiss the case.

         I. FACTS[2]

         Judge Randa allowed the plaintiff to proceed against Donna Larson and Belinda Schrubbe on his Eighth Amendment deliberate indifference to a serious medical need claims involving a prosthetic limb. Dkt. No. 16 at ¶1. The plaintiff alleges that Larson and Schrubbe placed him in an unsafe environment when his prosthetic limb was damaged. Id. at ¶2. He also alleges that Larson and Schrubbe again placed him in an unsafe environment after he received his new, replacement prosthetic limb, because he did not receive a follow-up appointment for five months. Id. at ¶3.

         The plaintiff was housed at Waupun Correctional Institution (WCI) from May 16, 2006, to January 6, 2010, and again from January 18, 2010, to the present. Id. at ¶4. Defendant Schrubbe is a registered nurse, and was the health service manager in the Health Services Unit (HSU) at WCI at all times relevant. Id. at ¶5. Schrubbe since has retired and is no longer employed at WCI. Dkt. No. 49 at ¶5. Defendant Larson is a nurse clinician 2 in the HSU at WCI. Dkt. No. 16 at ¶6.

         A. Health Services Unit

         Inmates may submit a Health Services Request (HSR) to the HSU to request to be seen in the HSU, or to request information related to their medical care. Id. at ¶7. A medication/medical supply refill request is not the proper form for requesting treatment. Dkt. No. 47 at ¶92. An inmate is to use an HSR for this purpose. Id.

         B. Neisler's Damaged Prosthetic Limb

         On March 9, 2012, Nurse Larson saw the plaintiff “in the HSU after he was involved in an incident that caused damage to his left lower leg prosthesis.” Dkt No. 16 at ¶14. Larson observed that the prosthetic foot “turned around:” the last time this occurred, WCI's Engineering, Maintenance and Construction (EMC) staff had repaired the prosthesis by tightening it with an Allen wrench. Id. Larson also noted that the plaintiff had a one-inch laceration. Dkt. No. 16 at ¶15. She “cleaned the wound and applied a bacitracin ointment, which is used to prevent skin infections, and a bandaid.” Id. Larson called the EMC and made arrangements for help with the prosthesis. Id. She gave the plaintiff “bandaids and instructed him on self-wound care.” Id.

         The parties dispute certain aspects of the plaintiff's March 9, 2012, appointment with Nurse Larson. According to the defendants, Larson observed that the plaintiff “had a steady gait while wearing his prosthetic.” Dkt. No. 16 at ¶15. The defendants also state that Nurse Larson sent the plaintiff “to EMC and advised him to notify HSU if EMC was unable to fix the prosthesis.” Id. The plaintiff, on the other hand, alleges that Larson advised EMC to call her back if they were unable to effect repairs. Dkt. No. 47 at ¶90. In addition, the plaintiff states that he “did not stand or walk at this examination, making it difficult to witness Neisler walk with a ‘steady gait.'” Id. at ¶91.

         “None of the EMC personnel at WCI are licensed to practice medicine, nor are they certified in prosthetics.” Dkt. No. 47 at ¶89. “Prosthetics are specialized pieces of medical equipment, and under Wisconsin DHS § 105.40 (2), persons who develop, fit, or alter prosthetics [should be] certified in prosthetics.” Id.

         Between March and July 2012, the plaintiff submitted forms or had interactions with medical staff in which he did not mention any issue with his prosthetic.[3] The plaintiff questions the relevance of his failure to raise the issue on the forms or during these interactions, given that they were not the proper forms to seek medical treatment or because the appointments were unrelated to prosthetics.

         “On July 22, 2012, the HSU received a HSR from [the plaintiff] in which he asked if an appointment had been made with Aljan to repair/replace his prosthetic . . . .”[4] Dkt. No. 16 at ¶19. The plaintiff had indicated that the limb was “causing skin breakdown and swelling making it difficult to put on and unbearable to walk.” Id. The plaintiff's HSR indicated that there never had been any follow-up for this incident. Id.

         “Another HSU nurse forwarded the July 22, 2012 HSR to Larson.” Id. at ¶20. Before she received the HSR, Larson had not been aware that the plaintiff was continuing to have problems with his prosthetic. Id. The last time Larson had seen the plaintiff was on March 9, 2012. Id. The plaintiff did not contact HSU with his complaint about his prosthetic until this July HSR. Id.

         The HSU program assistant is responsible for scheduling off-site appointments. Id. at ¶21. Nurse Larson “does not have control over the scheduling of off-site appointments.” Id.[5]

         On July 25, 2012, Nurse “Larson saw the plaintiff in the HSU for his complaints of the broken prosthesis.” Id. at ¶23. Larson saw that the prosthesis “was broken in three places and EMC was unable to fix it.” Id. She saw a one-inch fissure on the plaintiff's left residual limb, but she didn't see any signs of infection. Id. “Larson placed [the plaintiff[] on sick cell (room confinement), ” gave him crutches, and excused him from work until August 25, 2012. Id. Larson made a note that she would consult with the plaintiff's physician to send him “to Aljan to fix or replace his prosthesis.” Id. The plaintiff “verbalized self-wound management and that he had the necessary supplies.” Id. “A copy of the medical restriction order was given to [the plaintiff].” Id.

         On July 25, 2012, the plaintiff's doctor, Dr. Paul Sumnicht, “submitted a request for replacement of the plaintiff's prosthesis.” Id. at ¶25. The next day, Dr. Hoftiezer, the DOC's acting medical director, approved that request. Id. at ¶26. “On August 15, 2012, Dr. Sumnicht signed off on the approval.” Id. at ¶27.

         On August 20, 2012, a person at Aljan named Ken Crooker saw the plaintiff, and recommended replacement of the prosthetic. Id. at ¶28. “Mr. Crooker noted that Aljan would call with a delivery date.” Id. “Dr. Sumnicht signed off on the recommendations from Aljan in [the plaintiff's] physician orders, making the order official.” Id. at ¶29. The order read: “Replace prosthetic-Aljan will call for delivery date.” Id.

         On August 25, 2012, the plaintiff's medical restrictions expired, and he did not seek an extension. Id. at ¶31. “It is the inmate's responsibility [to] request an extension when they have special restrictions that are about to expire.” Id. Because the HSU manages the health care “for approximately 1, 250 inmates at WCI, ” HSU staff “do not have the resources to review every inmate's chart on a daily basis to make sure the patient's needs have not changed.” Id. “If an inmate needs an extension of a medical restriction, they are responsible for requesting one.” Id.

         Despite the fact that the plaintiff did not ask to have his restriction extended, on August 27, 2012, Nurse Larson extended the plaintiff's restrictions until September 30, 2012. Id. at ¶32. “On October 1, 2012, Larson again extended [the plaintiff's] restrictions until November 12, 2012. Id. at ¶33.

         “When HSU places an inmate on medical restrictions, a medical restriction/special needs form, DOC 3332B, is filled out detailing the restrictions.” Id. at ¶34. A copy of this form is placed in the inmate's medical chart, and a copy given to the inmate at the time of the appointment. Id. “A copy for the inmate's unit correctional officer is placed in the HSU's outgoing institution mail.” Id. “This mail is delivered to the unit officer or sergeant every day by the nurse who is responsible for delivering medication refills to the units.” Id. “At most, it takes one day for the medical restriction to be delivered to the inmate's unit officer.” Id. “Finally, a copy is given to the special needs committee clerk, who enters the restriction into an electronic database that is accessible by institution staff.” Id. “The entry of the restriction into the database can take a few days because the clerk only works part-time.” Id.

         The defendants assert that “WCI practices only allow nurses to give restrictions for one month at a time.” Id. at ¶24. The plaintiff disputes, stating that it “is common place at WCI for registered nurses to issue/authorize Medical Restrictions/Special Needs for terms exceeding 30 days, and quite often without an expiration date.” Dkt. No. 47 at ¶96.

         On October 3, 2012, Nurse Kris DeYoung saw the plaintiff in the HSU for ‘a medical issue unrelated to his prosthetic.” Id. at ¶35. During that appointment, the plaintiff asked “about the progress of his prosthetic.” Id. “Nurse DeYoung noted that [the plaintiff's] residual limb wound was well-healed.” Id. The parties dispute what the plaintiff said at this appointment about his medical restrictions. According to the defendants, the plaintiff returned his crutches, and “told Nurse DeYoung that he wanted to be released from his housing medical restrictions, but he wanted to maintain his work restrictions because of his inability to lift heavy objects.” Id. The plaintiff, on the other hand, states that he asked for his restrictions to continue. Dkt. No. 47 at ¶97.

         “On October 15, 2012, [the plaintiff] was placed on “no work” activity level status. Dkt. No. 16 at ¶36. Robert Tuckwell, WCI's food service administrator, had asked for the medical classification report to be completed. Dkt. No. 47 at ¶98.

         The plaintiff “was seen in the HSU” on October 25 and October 31, 2012. Dkt. No. 16 at ¶37. At these appointments, the plaintiff did not ask that his housing restrictions be reinstated, and did not mention any pain associated with his prosthetic. Id.

         “On November 6, 2012, [the plaintiff] was sent to Aljan to get his replacement prosthetic.” Id. at ¶38. Aljan attempted to deliver the prosthetic limb, but it was not the right size, so the plaintiff needed to be refitted. Id. “Aljan was to call WCI to setup [sic] an appointment for refitting once the adjustments were made.” Id.

         On November 30, 2012, the plaintiff sent a letter to Nurse Schrubbe, asking when he would receive his replacement. Id. at ¶40. The defendants allege that “Schrubbe was not aware of his issue, so Larson responded on behalf of Schrubbe.” Id. Larson wrote, “UW is working on your device. We are not able to speed this up.” Id. “Larson mistakenly wrote UW instead of Aljan.” Id.

         The plaintiff disputes that Schrubbe was not aware of his issue. Dkt. No. 47 at ¶40. He asserts that she “was made aware of the issue several times.” Id. He asserts that Robert Tuckwell contacted Schrubbe about the plaintiff's “medical care/status” on September 27, 2012. Dkt. No. 48 at ¶25; see also, Dkt. No. 48-1 at 29 (Tuckwell declaration, stating that on September 27, 2012, he asked Schrubbe to “remove [the plaintiff] from food service due medical reasons and the institutional need to fill the position.”) He also argues that it wasn't true that Schrubbe could not “speed things up, ” noting again that Larson had been able once before to get Aljan to move up an appointment. Id.

         On December 14, 2012, [the plaintiff] was sent to Aljan, where he received his replacement prosthetic. Dkt. No. 16 at ¶41. “Mr. Crooker recommended light duty for one month and to follow-up in one month.” Id.

         C. Post New-Prosthetic

         “After the plaintiff's December 14, 2012 Aljan appointment, Nurse DeYoung entered Mr. Crooker's recommendations in [the plaintiff's] physician orders.” Id. ¶ at 43. Someone named Dr. Hennesay “reviewed the information and signed off on the order, making it official.” Id. The order stated: “light duty x 1 month per off site Aljan.” Id. “The order did not include scheduling a follow-up appointment at Aljan.” Id. Neither Larson nor Schrubbe were involved in any part of this process. Id.

         On December 15, 2012, the plaintiff submitted an HSR “requesting two prosthetic socks from Aljan and a lift of his work restriction.” Id. at ¶45. In this request, the plaintiff did not complain of pain or problems with his prosthetic. Id. According to the plaintiff, he did not complain of sores in that request because “he only had possession of the new prosthetic for a few hours, and was in transport most of the time.” Dkt. No. 47 at ¶99. He asserts that because the new prosthetic “was not under normal use, the sores had not yet manifested” at the time he wrote the request. Id.

         “On December 19, 2012, Larson saw [the plaintiff] in the HSU. Dkt. No. 16 at ¶46. “She gave him his prosthetic socks and made a note to ask his physician to change his medical classification pursuant to [the plaintiff's] request.” Id. On the same day, “Dr. Hennessay reviewed this request and authorized [the plaintiff] for ‘any activity' level indicating he [was] physically fit to perform any type work/recreation.” Id. at ¶47. The plaintiff alleges that Hennessay did not conduct “an examination to verify that the action was appropriate.” Dkt. No. 47 at ¶100.

         The parties dispute whether the plaintiff complained about any injuries at his December 19, 2012, appointment with Nurse Larson. According to the defendants, the plaintiff “did not have any complaints of pain or injury from his new prosthetic.” Dkt. No. 16 at ¶48. They allege that if he had communicated such complaints, “Larson would have included it in the progress note, pursuant to her routine practice.” Id. The plaintiff, on the other hand, states that he complained about “three half dollar sores on his knee, caused by the new prosthetic.” Dkt. No. 49 at ¶48. According to the plaintiff, Larson examined the sores, and gave him Bacitracin and band-aids. Dkt. No. 47 at ¶101. The plaintiff also states that Larson told him that Mr. Crooker had asked for a follow-up, and “that the sores would be addressed at that time.” Id.

         “Larson did not have [the plaintiff's] file with her at the appointment, thus the notes for the visit were made after ...

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