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Turner v. Hoechst

United States District Court, W.D. Wisconsin

March 28, 2017

JAMES TURNER, Plaintiff,

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Plaintiff James Turner, a prisoner in the custody of the Wisconsin Department of Corrections at the Columbia Correctional Institution, brings claims that defendant prison officials terminated his back and leg therapy ordered by a doctor, and then did not reinstate the therapy after he filed a grievance. Defendants have filed a motion for summary judgment, stating that Turner's therapy was discontinued because he missed two of the appointments, and that the other defendants acted appropriately in responding to Turner's complaints. I will grant defendants' motion for summary judgment because Turner fails to show that any of them acted with deliberate indifference to his back and leg problems.


         I draw the following facts from the parties' proposed findings and evidence in support.

         Plaintiff James Turner is incarcerated at the Columbia Correctional Institution (CCI). Defendant Phillip Hoechst works at CCI as a physical therapist. Defendant Meredith Mashak was the Health Services Unit manager at CCI. The remaining defendants examined Turner's grievance about his medical care: Lucas Wogernese was the institution complaint examiner at CCI, Charles Facktor was a corrections complaint examiner for the Wisconsin Department of Corrections (DOC), and Cindy O'Donnell was the DOC secretary's “designee” making the final decision on grievances.

         On June 24, 2014, after a medical exam, a physician assessed Turner with sciatica, which is “pain that radiates along the path of the sciatic nerve, which branches from [a person's] lower back through [his or her] hips and buttocks and down each leg ”[2] The doctor referred him to physical therapy for evaluation and treatment of lower back-sciatica pain for six to eight weeks.

         On July 14, 2014, Hoechst saw Turner for an initial physical therapy evaluation. Turner described sore, achy, intermittent pain in the left buttock into his thigh with an intensity of 8 out of 10 at that time and 9 out of 10 at its worst. Turner said the pain was aggravated by lying down and went away on its own. After the initial evaluation, Hoechst concluded that physical therapy was appropriate for Turner. Hoechst's “plan of care” was to see Turner once a week for six weeks, recheck symptoms as needed, and to provide him with stretches he could do on his own, other information, and ultrasound treatment. That day, Turner and Hoechst signed a “Physical/Occupational Therapy Service Agreement” form stating:

I, the undersigned, understand that the Department of Corrections, Bureau of Health Services, has approved my physician's request for physical or occupational therapy services. I agree to fully comply with the instructions of the physical or occupational therapist by following the prescribed exercise program on my own time. I understand that physical or occupational therapy services may be terminated if I fail to fully cooperate with the program.

Dkt. 38-1, at 18.

         Turner's first session with Hoechst was on July 21, 2014. Turner stated that he had pain in his leg and knee with an intensity of 5 to 7 on a 10-point scale. He denied having back pain. Hoechst found that Turner had “full trunk active range of motion.” Hoechst applied ultrasound treatment to Turner's left iliotibial band (tissue running from the hip to knee), [3] and led him through stretches. Hoechst made a plan to have Turner continue “home” stretches and follow up the next week. Turner also received an x-ray of his lumbar spine that day. The x-ray showed “normal alignment, no fracture or dislocation, no significant degenerative disease, and normal regional soft tissues.”

         On July 30, 2014, Turner did not attend his scheduled physical therapy session. Turner was at recreation instead. Turner says he did not attend the session because the officer whose duty it was to inform him he had a “will call pass” to attend therapy did not tell him that.

         A prisoner violates DOC regulations when he is in an area to which he is not assigned. Defendants say that HSU staff makes of list of the inmates they will be seeing the next day, third-shift security staff completes will-call passes overnight, and the passes are “disbursed” to the each prisoner's unit “so staff and the inmates are aware of the appointment and the inmate is able to attend the appointment.” A prisoner who has a pass is supposed to wait in the unit until his appointment. Turner says, “Any time an inmate have [a] pass for anywhere, it's the officer job to inform that inmate.”

         Hoechst rescheduled Turner for next available appointment, on August 6, and Turner attended his session that day. Turner said that he had occasional pain in his knee of 7 on a 10-point scale, but that “the tape” helped his pain. (I take this to be the “kinesiotape” mentioned below.) Turner reported no back problems. Turner had full trunk motion and “did not reproduce pain in the left thigh, ” which I take to mean that he did not experience it during the session. Hoechst believed that Turner's symptoms were iliotibial-band related and not the nerve or lower back pain for which he was originally referred. Turner received ultrasound treatment and kinesiotape on his left knee and leg. Hoechst's plan was for Turner to tape his knee for three days and to continue stretching.

         Turner's next scheduled therapy session was August 13, 2014. But Turner again did not attend and went to recreation instead. Turner again says that his failure to attend was the fault of the officer who failed to tell him he had a “will call” pass to attend therapy that day. Hoechst discontinued the physical therapy due to Turner's non-compliance with the recommended treatment. On the discharge documentation, Hoechst noted that Turner's ...

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