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Sheppard v. Schultz

United States District Court, W.D. Wisconsin

April 21, 2017

OFFICER SCHULTZ, et al., Defendants. CHARLES SHEPPARD, Plaintiff
BLOYER, et al., Defendants.


          BY THE COURT STEPHEN L. CROCKER Magistrate Judge

         Pro se plaintiff Charles Sheppard is proceeding in Case. No. 14-cv-797-slc on claims that Officer Tarah Schultz, Judy Schaefer, Dr. Paul Sumnicht and Belinda Schrubbe violated his rights under the Eighth Amendment and state law by denying him his prescription seizure medication and causing him to suffer severe seizures and injury. Defendants filed a Motion for Summary Judgment in that case (dkt. 50).

         In Case No. 14-cv-863-slc, Sheppard is proceeding on claims that prison staff ignored his threats of self-harm. That case is proceeding to trial. In both cases, Sheppard filed motions for assistance in recruiting counsel.

         For the reasons stated below, I am denying the motion for summary judgment in Case No. 14-cv-797-slc, granting Sheppard's requests for assistance in recruiting counsel in both cases for the purpose of attempting a global mediated settlement, and striking all remaining dates in both cases, to be reset once counsel has been recruited.


         I. The Parties

         Sheppard was an inmate at Waupun Correctional Institution (Waupun) during all times relevant to this lawsuit. Defendants were Waupun employees during this time: Dr. Paul Sumnicht was a physician; Belinda Schrubbe (who is a registered nurse) was Waupun's Health Services Unit (HSU) manager and supervisor of Waupun's nursing staff; Judy Schaefer was an HSU nurse; and Tarah Schultz was a correctional officer.

         II. Dr. Sumnicht's Order to Stop Carbamazepine

         Prescription On September 26, 2011, Sheppard was placed in Temporary Lockup (TLU) in Waupun's segregation unit. When an inmate is placed in TLU, someone on the nursing staff reviews the inmate's medications and then reissues these medications to the TLU. Pursuant to this practice, a nurse inspected the bag of medications that accompanied Sheppard to the TLU, listed the type and quantity of each medication in Sheppard's medical chart, then flagged this list for review by Dr. Sumnicht. According to this list, Sheppard's medication bag contained 67 carbamazepine pills, which were prescribed to Sheppard to control his seizures. (Ex. 1000 to Sumnicht Decl., dkt. 53-1, at 18.) Sheppard disputes that all the pills were his because the nurse's note did not explicitly state that the “bag” of pills was his, and because he claims that all the pills never were actually found in his possession. (Sheppard Decl., dkt. 65, ¶ 68.)

         On September 30, 2011, Dr. Sumnicht reviewed the nurse's note. At 1:00 that afternoon, Dr. Sumnicht discontinued Sheppard's carbamazepine prescription. Dr. Sumnicht did not speak to or examine Sheppard before canceling this prescription. Dr. Sumnicht canceled Sheppard's prescription because he believed Sheppard was hoarding his medications and faking his seizures. He came to this conclusion, in part based on his experience as a doctor, but also on: (1) a conversation he remembers having had with HSU manager Schrubbe, and (2) his review of Sheppard's Seizure Flow Sheet, a record that Dr. Sumnicht created in June of 2011 to track Sheppard's seizure history and treatment plan. (Sumnicht Decl., dkt. 53, ¶¶ 7, 10, 11.)

         In Dr. Sumnicht's experience, inmates hoard medications for a number of reasons, and it is not uncommon for inmates to feign illness to obtain medications. Dr. Sumnicht does not claim to have experience assessing whether inmates actually are hoarding, and he does not claim to have knowledge about how other staff members collect and transfer medications when inmates are transferred from their regular unit to TLU. Rather, Dr. Sumnicht states that after he reviewed the nurse's note about Sheppard, he had a discussion with Schrubbe about the significance of the note, and this conversation led him to conclude that Sheppard had been hoarding several of his medications, including the carbamazepine. (Id., dkt.53, ¶ 6.) Dr. Sumnicht's declaration does not describe the details of this conversation, but he stated in a discovery response that Schrubbe told him that Sheppard “indicated that he did not really need doses of Carbamazepine because he was not taking them.” (See PPFOF, dkt. 73, at 30-31.)

         Sheppard disputes that this conversation took place, citing to defendants' discovery responses in which Schrubbe stated that she does not deny that the conversation took place but cannot recall the conversation and only investigated Sheppard's medication after he filed a grievance about the incidents leading up to the discontinuation of his medication. (Def.'s Resp. to Pl. Second Request for Interrogs., dkt. 65-32, at 6.)

         Sheppard's Seizure Flow Sheet, which Dr. Sumnicht reviewed, includes: (1) a note stating “2005 - Neurology - most likely pseudo seizure”; (2) a comment that Sheppard suffered a seizure in 2007; and (3) a note that Sheppard was receiving 400 mg of carbamazepine to treat his seizures. (Ex. 1 to Sumnicht Decl., dkt. 53-1, at 1.) Dr. Sumnicht explains that a pseudo seizure is a seizure-like episode that is not epileptic in nature, but can be difficult to diagnose because the patient either could be faking seizure-like symptoms or actually could be experiencing unexplained but actual neurological symptoms. Dr. Sumnicht further explains that, although seizure medication likely is not appropriate if a patient is faking seizure symptoms, “seizure medication may be appropriate for a patient who has real seizure symptoms.” (Sumnicht Decl., dkt. 53, ¶ 9.)

         III. Sheppard's Requests for Carbamazepine

         On the evening of October 4, 2011, a few days after Dr. Sumnicht cancelled the prescriptions, Officer Schultz conducted a medication pass in TLU, and Sheppard asked Schultz for his seizure medication. Schultz does not recall the details of the conversation; Sheppard claims that she told him that the medication had been discontinued, it wasn't her problem, and she did not have time to call HSU for him. According to Sheppard, he responded “Can you please get a nurse down here or call a doctor cause that's a huge mistake because I've been taking these meds for years and there's no way that they'd discontinue them without me being examined or notified, or having a replacement in place.” (Sheppard Decl., dkt. 65, ¶ 2.) Again, Schultz does not remember how she responded to this; Sheppard states that she still refused to contact HSU on his behalf.

         After Schultz left, Sheppard pushed his medical alert button and was told to talk to an officer, so Sheppard again called Schultz. Sheppard claims that she ignored him at first, but then came to his cell, at which point he told her that he had not taken his seizure medication in over 24 hours, that he could not afford to miss taking them, and that he was already not feeling well. (Id. ...

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