United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge
James David Fish (“Fish”), formerly an inmate
incarcerated at Oshkosh Correctional Institution
(“OSCI”), brought this action against Dr. Mary
Sauvey (“Dr. Sauvey”), Dr. Dilip Tannan
(“Dr. Tannan”), Officer Scott Krisbaher
(“Krisbaher”), and Sergeant Christopher Musha
(“Musha”), alleging that they were deliberately
indifferent to his serious medical conditions, in violation
of the Eighth Amendment. Specifically, Fish alleges that Musha
and Krisbaher ignored his request to be seen immediately by
the Health Services Unit (“HSU”) on February 7,
2016, when he reported to each of them that he was suffering
from back pain. He further alleges that after he was sent to
the HSU later that day, Dr. Sauvey refused to send him to the
emergency room despite the fact that he was suffering from a
medical emergency related to back pain and urinary issues.
Finally, he alleges that from February 8, 2016 through his
release from OSCI in October 2016, Dr. Tannan did not provide
him with adequate medical care regarding his back pain and
March 9, 2017, defendants Dr. Sauvey, Dr. Tannan, Krisbaher,
and Musha filed a motion for summary judgment, along with a
brief in support, proposed findings of fact, and several
declarations. (Motion, Docket #59; Brief in Support, Docket
#60; Proposed Findings of Fact, Docket #61; Declarations,
Docket #62-68). Fish was required to respond to the
defendants' motion on or before March 30, 2017. (Docket
#53). As of today's date, the Court has received no
response to the motion or other communication from Fish. The
motion will be addressed in its unopposed form and, for the
reasons explained below, it will be granted.
STANDARD OF REVIEW
Rule of Civil Procedure 56 provides the mechanism for seeking
summary judgment. Rule 56 states that the “court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th
Cir. 2016). A “genuine” dispute of material fact
is created when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The Court construes all facts and reasonable
inferences in a light most favorable to the non-movant.
Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016). In assessing the parties'
proposed facts, the Court must not weigh the evidence or
determine witness credibility; the Seventh Circuit instructs
that “we leave those tasks to factfinders.”
Berry v. Chicago Transit Auth., 618 F.3d 688, 691
(7th Cir. 2010).
Fish failed to respond to the defendants' statement of
facts, the Court will consider them undisputed. Fed.R.Civ.P.
56(e). The relevant facts are as follows. At all times
relevant to this lawsuit, Fish was an inmate at OSCI.
See (Docket #23). Defendants were employees of the
Department of Corrections. Id. Drs. Sauvey and
Tannan were employed as physicians, Musha was employed as a
sergeant, and Krisbaher was employed as a correctional
officer. (Docket #61 ¶¶ 2-3, 6-7).
February 7, 2016, at approximately 1:30 p.m., Fish informed
Krisbaher that he was having severe lower back pain.
Id. ¶ 55. Fish did not tell Krisbaher that he
was experiencing urinary issues; Fish only said he had back
pain. Id. ¶ 60. Based on his observations of
Fish, and the information that Fish relayed to him, Krisbaher
did not believe Fish's pain required urgent medical care.
Id. ¶ 62. Krisbaher did not send Fish
immediately to the HSU; instead, Krisbaher told Fish to
submit a Health Services Request to the HSU nursing staff.
Id. ¶ 64. At OSCI, general back pain, without
evidence of a fall, is not considered an urgent medical issue
warranting an immediate referral directly to the HSU.
Id. ¶¶ 44-49, 81.
then walked away from Krisbaher's desk and went to speak
to Musha at the sergeant's station. Id. ¶
65. Fish informed Musha that his back hurt, and he asked
Musha to call the HSU. Id. Fish did not describe any
symptoms, and Musha did not observe any symptoms, indicating
that Fish needed immediate medical care. Id.
¶¶ 69, 73. Fish did not tell Musha that he was
experiencing urinary issues. Id. ¶ 71; (Docket
#23 at 3). Like Krisbaher, Musha advised Fish to submit a
Health Service Request. Id. ¶ 74.
returned to his bunk area and waited until second shift
started, and then made contact with security staff again.
Id. ¶¶ 79-82. The second shift security
staff sent Fish to the HSU at 3:15 p.m., and he was seen by
registered nurse Corey Schroeder (“Schroeder”).
Id. ¶¶ 83-84. Fish complained of back pain
and difficulty passing urine. Id. ¶ 84.
Schroeder performed a medical assessment of Fish and then
contacted Dr. Sauvey, the on-call physician. Id.
¶¶ 85-86. Schroeder relayed Fish's symptoms,
and Dr. Sauvey told Schroeder that she believed Fish should
be sent to the hospital for the urinary issue. Id.
¶ 88. Schroeder told Dr. Sauvey that he believed Fish
should be given a muscle relaxer first; he had used this
method in the past with success. Id. ¶ 89-90.
it was Dr. Sauvey's preference that Fish be sent to the
hospital, she permitted Schroeder to give Fish the muscle
relaxer first because it was a reasonable request and
Schroeder was familiar with Fish. Id. ¶ 91. Dr.
Sauvey instructed Schroeder that if Fish was unable to
urinate after taking the muscle relaxer, Fish must be sent to
the emergency room. Id. ¶ 92. Schroeder gave
Fish the muscle relaxer, but Fish was still unable to
urinate. Id. ¶ 96. Fish was transported to the
hospital where he was assessed as having back pain and
urinary retention, and was prescribed a Foley catheter for
one week, a muscle relaxer, and a nonsteroidal
anti-inflammatory drug. Id. ¶ 98.
was seen the following day by his primary physician, Dr.
Tannan. Id. ¶ 100. Dr. Tannan determined that
Fish's urinary issues were not related to his back pain.
Id. ¶ 102. Between February 8, 2016 and
September 22, 2016, Dr. Tannan had eleven appointments with
Fish to treat his chronic back pain and urinary issues.
Id. ¶¶ 106-134. At each appointment, Dr.
Tannan conducted a full assessment of Fish's medical
concerns. Id. Dr. Tannan prescribed appropriate pain
medications and physical therapy to control Fish's pain,
as well as antibiotics to treat his urinary issues.
Fish's back pain waxed and waned, which is common for a
patient suffering from chronic back pain, Fish's pain was
controlled and diagnostic testing confirmed that his
condition was stable and did not require any further ...