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Walker v. Smith

United States District Court, E.D. Wisconsin

May 26, 2017

DONALD WALKER, JR., Plaintiff,



         Plaintiff Donald Walker, Jr., proceeding pro se, filed this action under 42 U.S.C. § 1983 alleging that his civil rights were violated while serving a prison sentence at Oshkosh Correctional Institution. He claims that Warden Judy Smith, Dr. Patrick Murphy, Dr. Phillip Wheatley, and Health Services Unit Manager Danielle Foster violated his constitutional rights by their deliberate indifference to his serious medical needs. Currently before the court is the defendants' motion for summary judgment, which is fully briefed and ready for the court's decision. For the following reasons, the court will grant the defendants' motion and dismiss the case.


         Walker was housed at Oshkosh Correctional Institution at all times relevant to this case. (Defs.' Proposed Findings of Fact (DPFOF) ¶ 1, ECF No. 26.) The defendants all work at Oshkosh: Smith is the warden; Foster is a registered nurse and the manager of the Health Services Unit (HSU); and Wheatley and Murphy are physicians. (DPFOF ¶¶ 2, 3, 6.)

         Walker was transferred to Oshkosh on June 28, 2012. (DPFOF ¶ 34.) At that time, nursing staff screened Walker, and no hearing impairment was indicated. (Id.) Walker began to complain about hearing loss in April 2014. (DPFOF ¶¶ 35-42.)

         On May 20, 2014, Walker was seen at Rexall Hearing Center. (DPFOF ¶ 44.) Rexall performed an audiogram that showed Walker had profound hearing loss, which was worse in his right ear. (Id.) A hearing instrument specialist at Rexall recommended that Walker be given two digital hearing devices and that a follow-up appointment be scheduled so he could receive the hearing aids. (DPFOF ¶¶ 45, 48.) Pursuant to DOC policy, only one hearing aid was approved at that time. (DPFOF ¶¶ 45, 48, 108-109.) Walker received a hearing aid for his left ear on August 20, 2014. (DPFOF ¶ 49.)

         Wheatley began working at Oshkosh in October 2014. (Decl. of Wheatley ¶ 2, ECF No. 27.) Wheatly first met with Walker about his hearing issues on February 9, 2015. (DPFOF ¶ 55.) Walker told Wheatley he was housed in W-building and was having trouble communicating with people. (DPFOF ¶ 56.) Wheatley recommended that Walker be moved to an open unit (the defendants do not explain what this means) and be re-evaluated at Rexall to determine whether two hearing aids or an adjustment of the current hearing aid would help. (Id.) Wheatley also approved Walker to receive a vibrating alarm clock and his unit was provided with a closed-caption phone. (Id.)

         On February 12, 2015, Murphy reviewed Wheatley's order and discontinued the recommendation to move Walker to an open unit because security must address all housing assignments. (DPFOF ¶ 58.) He affirmed Wheatley's order to send Walker's hearing aid to Rexall to see if it needed cleaning or adjustment. (Id.) However, he cancelled Wheatley's order for a second hearing aid and his order to send Walker to Rexall for assessment for a second hearing aid. (Id.) Murphy cancelled the orders related to a second hearing aid because DOC policy requires prior authorization from the Bureau of Health Services. (DPFOF ¶¶ 23, 58, 59, 116.) Murphy believed that, as an initial step, it was sufficient to send the hearing aid to Rexall for cleaning and/or an adjustment. (DPFOF ¶¶ 23, 58, 59.) This was Murphy's only involvement in decisions related to Walker's care. (DPFOF ¶¶ 120-122.)

         Because Wheatley was new to Oshkosh, he did not know that housing assignments are a security issue or that prior approval for a second hearing aid is required. (DPFOF ¶ 60.) Wheatley agreed with Murphy's assessment, so he did not immediately submit an authorization request for a second hearing aid; he wanted to first obtain a recommendation from Rexall about the next best step. (DPFOF ¶ 61.) (The parties do not state whether or when Walker's hearing aid was sent to Rexall.)

         On February 20, 2015, Walker submitted an information request asking if it was true that inmates are allowed only one hearing aid even if they need two. (DPFOF ¶ 62.) A nurse responded and told him that it was rare for an inmate to receive two hearing aids and that special permission from Madison is required. (DPFOF ¶ 63.) On March 5, Walker had an appointment with a nurse; she prescribed him ibuprofen for his headache pain. (DPFOF ¶ 64.)

         On April 7, 2015, Walker asked for a second hearing aid and asked if he could visit Rexall for an adjustment to his left hearing aid. (DPFOF ¶ 65.) Wheatley saw Walker on April 13, 2015. (DPFOF ¶ 66.) Walker complained that his hearing was getting worse and the frequency of his headaches was increasing. (Id.) He questioned whether his headaches were related to his hearing loss and he asked if he could move to “the open center” for better phone access. (Id.) The parties do not explain what the open center is. Wheatley ordered an off-site evaluation at Rexall for an adjustment of Walker's left hearing aid. (DPFOF ¶ 67.) Wheatley also scheduled a follow-up with Walker in about three months. (Id.)

         On May 12, 2015, Walker was seen at Rexall. (DPFOF ¶ 69.) The hearing instrument specialist noted that Walker complained that the hearing in his right ear was worse, he was having frequent headaches, he was often dizzy, and he was afraid that he was going to lose his hearing. (Id.) The specialist made a plan to fit Walker with a custom ear piece and recommended a follow-up for the fitting of a new ear mold and a re-test. (DPFOF ¶ 70.) (The parties do not explain what a custom ear piece or ear mold is or how they differ from a hearing aid.)

         That same day, after reviewing the recommendation of the Rexall specialist, Wheatley submitted an authorization request for the re-testing of Walker's hearing and for the fitting for a new ear mold. (DPFOF ¶ 71.) The request was approved later that day. (DPFOF ¶ 72.)

         On May 19, 2015, in an effort to address Walker's complaints of headaches, Wheatley prescribed migraine formula ...

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