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Fish v. Sauvey

United States District Court, E.D. Wisconsin

May 24, 2017



          J.P. Stadtmueller, U.S. District Judge

         1. INTRODUCTION

         Plaintiff 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.[1] 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 urinary issues.

         On 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.


         Federal 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).

         3. RELEVANT FACTS

         Because 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).

         On 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.

         Fish 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.

         Fish 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.

         While 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.

         Fish 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. Id.

         While 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 ...

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