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Key v. Mashak

United States District Court, W.D. Wisconsin

July 5, 2017

PRINCE D. KEY, Plaintiff,

          OPINION & ORDER

          JAMES D. PETERSON, District Judge

         In this action removed from the circuit court for Dane County, plaintiff Prince D. Key brings claims that defendant prison officials violated his Eighth Amendment right against cruel and unusual punishment by failing to treat his injured knee. The parties have filed dueling motions for summary judgment, and Key has filed a motion for recruitment of counsel.

         After considering the parties' submissions, I will grant defendants' motion and deny Key's regarding his claims about defendants' treatment decision for the injury itself. But I will require the parties to provide supplemental briefing on Key's claim that there was a 50-day delay in being seen by a doctor to assess his need for more effective pain medication. I will deny Key's motion for recruitment of counsel without prejudice to reconsidering it following the supplemental briefing.


         The following facts are drawn from the parties' summary judgment submissions and are undisputed unless otherwise noted.

         Plaintiff Prince D. Key is a prisoner currently housed at the Wisconsin Secure Program Facility. The events at issue in this case took place while Key was incarcerated at the Columbia Correctional Institution.

         On November 29, 2014, Key injured his right knee during a basketball game. Key heard a loud popping sound in his knee and then felt pain, grinding, and swelling. Key submitted a Health Service Request (HSR) stating that he thought he broke a bone in his knee. A nurse responded, stating that he was scheduled to see a nurse.

         On December 1, he was seen by Nurse Jarocki, who told Key to elevate his leg and brace it. Jarocki noted that Key had a limping gait and that he was guarding his right lower leg, but that it was bearing weight. Key's right patella joint was warm and swelling. Jarocki felt “a popping” on the anterior center of the knee above the joint with movement and pain. Jarocki diagnosed Key with an “alteration in comfort” and impaired physical mobility. Jarocki provided Key with an ace bandage, instructed him to use ice, rest, elevate his knee, abstain from recreation, and take ibuprofen as needed for pain. Key was instructed on use of muscle rub and given “special need” for ice bag and muscle rub. Key says that Jarocki told him to “brace” his leg, but another nurse denied him a brace, instead telling him that he could purchase one from the canteen.

         On December 11, 2014, Key submitted an HSR stating that his knee was “moving/popping, ” he was in pain, and he was denied a knee brace. Nurse Campbell responded that braces were available through canteen.

         On December 13, 2014, Key submitted an HSR requesting to see a doctor because his knee was locking up and causing him pain, and the ibuprofen was not working. Nurse Valerius responded that Key was scheduled for an appointment soon and that “scheduling takes time.” Due to the limited number of appointments available with physicians, appointments are scheduled based on the need and severity of the injury.

         Also on December 13, Key filed grievance No. CCI-2014-24408, stating that a nurse denied him the brace that Nurse Jarocki had recommended, and that his pain medication was not working. The institution complaint examiner contacted defendant Meredith Mashak, a registered nurse who at the time was the CCI health services manager, to assist with addressing the medical issues raised by the grievance. (I take the parties to be saying that the examiner was not a medical professional). Mashak reviewed Key's records and sent a memo to the examiner on December 17, stating that Nurse Jarocki followed the prison's “Musculoskeletal Pain Nursing Protocol” and provided him with proper treatment remedies, including ice, muscle rub, an ace wrap, and a recommendation for rest. She also stated that Jarocki told him that he should file a health service request if he was not seeing improvement. On January 6, 2015, the examiner recommended dismissing the grievance, but also stated that if Key continued to have problems with his knee, he should ask to be seen by HSU staff.

         The examiner's recommendation was reviewed by defendant Keisha Perrenoud, a registered nurse who was employed as the DOC's Bureau of Health Services nursing coordinator. On January 9, Perrenoud accepted the recommendation to dismiss the grievance, stating that Key “was evaluated and treated appropriately per standard nursing protocol and reported symptoms.” On December 23, 2014, Key filed grievance No. CCI-2014-25227, stating that he had gone 25 days without seeing a doctor and his knee was “only getting worse.” The institution complaint examiner contacted defendant Mashak and Assistant HSU Manager Nurse Koopmans. Koopmans-not Mashak-reviewed the medical record and stated that Key had a doctor's appointment scheduled for January 7. The examiner recommended dismissing the complaint on January 16 (apparently the examiner did not re-check Key's records, which would have showed that his January 7 appointment was postponed). Perrenoud accepted the recommendation to dismiss the grievance on January 21, stating that Key “was evaluat[ed] by nursing, intervention and education on ice, rest (no rec), elevation and use of ace wrap while ambulating was communicated to [Key] while he waits for his appointment with the provider.” Dkt. 24-3, at 4. That concluded Perrenoud's involvement with the events discussed in Key's complaint.[1]

         On January 9, 2015, Key submitted an HSR asking why he had not yet been seen by a physician when he had an appointment scheduled for January 7. A nurse responded that he was scheduled for an appointment with a physician on January 12. But Key did not see the doctor then either. Defendants suggest that the appointments needed to be rescheduled, but they do not explain the reason for these particular appointments being canceled. On January 19, Key submitted another HSR asking why he had not yet seen a doctor. A nurse responded the next day, stating that Key was scheduled for an appointment on January 21.

         On January 21, 2015, Key was seen by defendant Dr. Karl Hoffmann. Key stated that his knee would lock up and occasionally “give way.”[2] Hoffman examined Key and noted some fluid buildup in the knee. After performing stress tests to the knee, Hoffman noted that Key had some discomfort when exposed to “valgus” stress, or movement inward. Hoffman concluded that Key's right knee was actually stronger than his left. (Key had a history of pain in his left knee.) Hoffman concluded that he had no medical limitations requiring a special medical classification, but he suspected that Key had torn the lateral meniscus in his right knee, and perhaps had a tendon injury or bursitis. Hoffman made the following treatment plan:

Trial of physical therapy for the right knee injury including modalities and possibly a brace. Also use an anti-inflammatory in the form of naproxen and ice. If the knee does not improve with conservative options we can consider an MRI and an orthopedic consult.

Dkt. 23-1, at 33. Key states that his prescription for 500 mg of Naproxen proved to be ineffective in treating his pain.

         Key had an initial evaluation for physical therapy on February 2, 2015. The therapist thought that Key's knee was “no longer lining up as it should” but the therapist denied his request for a brace or other form of support. The therapist instructed Key on stretches to perform. After a few weeks, Key found ...

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