United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT (DKT. NO. 14) AND DISMISSING
PAMELA PEPPER, United States District Judge
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. For the reasons explained
below, the court will grant the defendants' motion, and
dismiss the case.
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.
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.
Health Services Unit
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.
Neisler's Damaged Prosthetic Limb
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.
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.
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.
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. 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.
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 . . . .” 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.
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.
program assistant is responsible for scheduling off-site
appointments. Id. at ¶21. Nurse Larson
“does not have control over the scheduling of off-site
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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.
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.
did not have [the plaintiff's] file with her at the
appointment, thus the notes for the visit were made after