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Karow v. Estate of Heyde

United States District Court, W.D. Wisconsin

March 30, 2017


          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Pro se plaintiff Thaddeus Jason Karow, an inmate at the Stanley Correctional Institution (SCI), brings this action under 42 U.S.C. § 1983, asserting Eighth Amendment claims against prison officials. Karow contends that defendants failed to provide adequate medical care for his knee and inappropriately shackled him to his bed while he was being treated at a hospital.

         Three motions are before the court: (1) Karow's motion for the court's assistance in recruiting counsel; (2) Karow's motion for the court to take judicial notice; and (3) defendants' motion for summary judgment. I will deny the first, grant the second in part, and grant the third. Undisputed facts show that defendants were not deliberately indifferent to Karow's medical condition or the conditions of his confinement, so defendants are entitled to summary judgment. The grant of summary judgment disposes of all of Karow's claims, so I will dismiss the case.


         The following facts are undisputed unless otherwise noted.

         A. Medical care

         Karow suffered from pain in his leg, which turned out to be a Methicillin-resistant Staphylococcus aureus (MRSA) infection in his left knee. He asserts denial of medical care claims against defendants Kathryn Heyde, Patricia Scherreiks, Joan Hannula, and Lauren Nelson-Bobb (Medical Defendants). According to Karow, the Medical Defendants failed to diagnose his MRSA infection for five days as his condition deteriorated.

         On April 24, 2010, Karow went to the Health Services Unit (HSU) at SCI and saw defendant Kathryn Heyde, a nurse.[1] Although Karow indicated that he had some knee pain, he also directed Heyde to his rectus femoris (one of the four quadriceps) as the source of his pain. Dkt. 59, ¶ 26 and Dkt. 117, ¶ 26. As a nurse, Heyde had no authority to order diagnostic tests. Dkt. 64, ¶ 12. But she examined Karow's knee, took his medical history and vital signs, and performed a physical examination. Dkt. 59, ¶ 26; Dkt. 117, ¶ 26; Dkt. 64, ¶ 12. She also issued him various items to alleviate his pain, including a heat bag, some muscle rub, and an extra pillow. She also issued him a low bunk restriction. Heyde noted that Karow already had ibuprofen from a different medical condition, but Karow told Heyde that ibuprofen was not effective in treating his pain and asked for stronger pain medication. Dkt. 78, ¶ 2. Heyde had no authority to prescribe pain medication, but she referred Karow to a doctor. Dkt. 59, ¶ 26; Dkt. 61-1, at 9; Dkt. 64, ¶ 13; Dkt. 78-4, at 2; Dkt. 117, ¶ 26. Heyde also told Karow that if his condition did not improve, then he should return to HSU.

         Later the same day, Karow returned to HSU and saw a different nurse, defendant Patricia Scherreiks.[2] This time, Karow informed the nurse that his pain was “centered in the knee.” Dkt. 59, ¶ 27 and Dkt. 117, ¶ 27. Karow also indicated that his pain was “tolerable” and that the pain was not “bad” when he was sitting. Dkt. 59, ¶ 27 and Dkt. 117, ¶ 27. Scherreiks consulted with a doctor who was on call and relayed to the doctor Karow's symptoms and her observations. Dkt. 66, ¶ 11. After this consultation, Scherreiks advised Karow to apply ice to his knee four times a day, to continue taking ibuprofen, and to take Tylenol 325 mg, as prescribed by the on-call doctor. She also gave him crutches. Although Heyde had already referred Karow to a doctor, Scherreiks scheduled an appointment with a doctor to take place in two days.

         Two days later, April 26, 2010, Karow showed up for his scheduled appointment to see a doctor at HSU, defendant Joan Hannula. Karow told Hannula that he had been experiencing “tightness and swelling in the left thigh to knee.” Dkt. 59, ¶ 29 and Dkt. 117, ¶ 29. Karow denied having a fever, joint pain, or “any history of injury to the area in pain.” Dkt. 59, ¶ 29 and Dkt. 117, ¶ 29. Karrow also added that “he thought he might have a strain.” Dkt. 64, ¶ 17. Hannula reviewed Karow's medical history and performed a physical examination. Hannula believed that a quadriceps strain caused Karow's pain, and she recommended massage, heat, and quadriceps stretches. Hannula also prescribed Vicodin to address Karow's pain and discomfort.

         The next day, April 27, 2010, Karow returned to HSU and saw Hannula again. Karow indicated that he continued to have tightness in his left quadriceps. Hannula referred Karow to a physical therapist to assess whether electro-stimulation therapy would address Karow's pain. Hannula also prescribed Karow Cyclobenzaprine, a muscle relaxant.

         The parties dispute whether Karow saw a physical therapist. According to Karow, he saw a physical therapist, defendant Lauren Nelson-Bobb, on the same day Hannula recommended that he see a physical therapist. Karow alleges that after he informed Nelson-Bobb about his pain, Nelson-Bobb performed electro-stimulation therapy on his left knee and that this therapy caused him “excruciating pain.” Dkt. 116, ¶ 21. Nelson-Bobb does not recall treating Karow, Dkt. 62, ¶ 8, and the parties have not produced any record of her treating Karow. Nelson-Bobb points to her time sheet from April 27, 2010, Dkt. 62-1, at 2, which does not show that she saw Karow. Nelson-Bobb also states that she would not have been at SCI at 6:30 p.m. on April 27, 2010, the time Karow claims to have seen Nelson-Bobb. Nelson-Bobb also states that she does not perform electro-stimulation therapy. Dkt. 62, ¶ 14.

         Two days later, April 29, 2010, Karow returned to HSU and saw Scherreiks again. Scherreiks observed that Karow's knee had swollen and that his pain had worsened. Scherreiks then consulted with Hannula, who again examined Karow. Apparently at this point, Hannula recognized that Karow had a serious problem: she had Karow sent to an emergency room at Ministry Our Lady of Victory Hospital. From there Karow was transferred to St. Joseph's Hospital, where he was hospitalized for seven days, from April 29, 2010, to May 6, 2010. At St. Joseph's Hospital, Karow received a variety of medical treatment, including surgery to drain an abscess in his left knee. Dkt. 61-1, at 6-7, 19-22.

         B. Restraints at St. Joseph's Hospital

         At St. Joseph's Hospital, Karow was shackled to his hospital bed: his right wrist was shackled to a metal bar at his right side, and both of his ankles were shackled to the lower edge of his bed, forcing him to lie on his back, facing up, whenever he was in bed. The prison security staff removed his shackles during medical procedures. He was allowed to use the lavatory, and his restraints were removed there, although he still had to wear leg irons. He was transported to and from his medical appointments in a wheelchair, but it is unclear whether he was restrained on the wheelchair. But whenever he was in bed, which was most of the seven-day hospital stay, he was in the three-point restraint.

         Karow challenges the constitutionality of the restraints, and asserts claims against 17 defendants: nine security officers (Security Defendants), who refused to remove the shackles that bound him to his hospital bed or to remove leg irons when he used the lavatory; six security supervisors (Supervisor Defendants), who supervised and directed the Security Defendants; and two wardens of SCI, one former and one current warden (Wardens), who implemented and enforced the policy on physical restraints.[3]

         The manner in which Karow was restrained at the hospital was determined by his security classification under the Wisconsin Department of Corrections and SCI policies. Under these policies, an inmate's security classification depends on a number of nonexclusive factors:

1. Nature of offense and length of sentence;
2. History of escapes;
3. History of assaultive/disruptive behavior;
4. Pending criminal charges;
5. Security threat group affiliation;
6. Hospital staffing requirements;
7. Availability of on-site hospital security;
8. Availability of local law enforcement response;
9. Institution proximity and response time to hospital;
10. Inmate medical condition; and
11. Public perception/notoriety of crimes committed/media interest.

Dkt. 60-4, at 3.

         In Karow's case, he was classified as a “medium” security inmate. According to Karow, he has no history of attempted escape. But other factors tip the other way. Karow is serving a sentence of life imprisonment plus 20 years for murder, burglary, and armed robbery. When he was a 14-year-old, he murdered an 80-year-old woman by stabbing her several times in the head and back with her kitchen knife. He then took the victim's car for a joyride. Dkt. 59, ¶ 2 and Dkt. 60-3, at 1. During his incarceration, Karow had at least 51 conduct reports: 15 for disobeying orders; 12 for failure to follow institution policy; 10 for possessing contraband; 9 for disruptive conduct; 3 for damaging or altering property; 1 for fighting; and 1 for making threats.

         Under SCI policies, a medium security inmate who stays at a hospital must be “restrained to the hospital bed at all times except when the [inmate] leaves his bed for medical procedures.” Dkt. 59, ¶ 45; see also Dkt. 60-4, at 4. Partial removal of restraints requires a security supervisor's approval. Complete removal requires a security supervisor's approval and a medical professional's determination that the proposed removal is medically necessary.


         A. Karow's motion for the court's assistance in recruiting counsel

         Karow moves for the court's assistance in recruiting counsel. Dkt. 82. I will deny this motion.

         Litigants in civil cases do not have a constitutional right to counsel, and I do not have the authority to appoint counsel to represent a pro se plaintiff in a civil matter. Rather, I can only assist in recruiting counsel who may be willing to serve without compensation. See 28 U.S.C. § 1915(e)(1); Pruitt v. Mote, 503 F.3d 647, 653-54, 656 (7th Cir. 2007) (en banc) (“Section 1915(e)(1) thus codifies the court's discretionary authority to recruit a lawyer to represent an indigent civil litigant pro bono publico; it ‘does not authorize the federal courts to make coercive appointments of counsel.'” (quoting Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 310 (1989)).

         Before assisting in recruiting counsel, this court generally requires a pro se litigant to satisfy two requirements. First, the pro se litigant must show that he has made reasonable attempts to recruit counsel on his own. See Jackson v. Cty. of McLean, 953 F.2d 1070, 1072-73 (7th Cir. 1992) (“[T]he district judge must first determine if the indigent has made reasonable efforts to retain counsel and was unsuccessful or that the indigent was effectively precluded from making such efforts”). The court requires the pro se litigant to provide the names and ...

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