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Juarez v. Hentz

United States District Court, W.D. Wisconsin

July 7, 2017


          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Pro se plaintiff Elpidio Juarez, a prisoner currently housed at the Redgranite Correctional Institution, is proceeding on Eighth Amendment and state-law negligence claims against defendant prison officials at the New Lisbon Correctional Institution for failing to warn him about side effects of medications they gave him or otherwise help him avoid the risk of harm he faced from those medications. After taking one of the medications, Juarez fell down the stairs.

         The parties have filed dueling motions for summary judgment. After considering the parties' submissions, I will grant defendants' motion and deny Juarez's. I will dismiss Juarez's Eighth Amendment claims because no reasonable jury could conclude that defendants acted with deliberate indifference toward a substantial risk of harm, and I will dismiss Juarez's negligence claims because he failed to comply with Wisconsin's notice-of-claim statute.


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

         Plaintiff Elpidio Juarez is an inmate in the custody of the Wisconsin Department of Corrections (DOC) and was housed at New Lisbon Correctional Institution (NLCI) at the times relevant to this lawsuit. Defendants Carol Walter, Jean Felber, and Anthony Hentz were employed by the DOC as nurses at NLCI at the times relevant to this lawsuit.

         On February 10, 2015, Juarez had an off-site medical appointment with a neurologist for ongoing treatment of a hand tremor. At that appointment, the neurologist recommended a Gabapentin prescription because Juarez had not tolerated side effects of two previous medications. The parties dispute exactly what the neurologist told Juarez about this medication. Defendants cite a medical note stating that the doctor told Juarez that his prescription was being changed to Gabapentin and she told him about the “common adverse side effects” of that medication. Juarez says that the doctors said nothing about the new medication.

         On February 13, 2015, defendant Walter told Juarez that his medication had arrived at the prison, and she told him to take it three times a day: morning, noon, and bedtime. Walter did not tell him about any side effects of this medication, even though Division of Adult Institution regulations state that nurses have a duty to explain the side effects of medications to prisoner patients.

         Juarez started taking Gabapentin that evening. The next day, Juarez took a dose around 7 a.m. Later that morning, when he went to the Health Services Unit (HSU) to receive another dose around 11 a.m., he asked to see a nurse. Defendant Felber came to the HSU door. Juarez told Felber that he felt dizzy and ill after starting his new medication. When Felber asked Juarez for the name of the medication, he told her it was Gabapentin. Juarez told Felber that the symptoms had not subsided and he had been feeling “like this” all morning. Felber responded, “[O]h, that's just part of the side effects, you just need to drink more liquids, ” and she told Juarez to return to his unit. Juarez says that he asked Felber, “[A]re you sure?” to which Felber responded, “Yes! Just go back to your unit.” Juarez took the dose of Gabapentin and went back to his cell. Felber did not take Juarez's vitals, conduct any physical examination, or warn him about taking the stairs. DOC nursing protocols state that “[v]ital signs shall be taken for inmate patient encounters.”

         Juarez slept from noon to about 4:30 p.m. Juarez says he went to sleep because the medication was making him ill. At about 4:30 p.m., there was a count of the inmates, so Juarez stood outside of his cell for a few minutes. At that time, Juarez was groggy from his nap, but did not feel dizzy. A few minutes later, Juarez left his cell tier to go to the dayroom on his housing unit. When Juarez approached the top of the stairs, he either blacked out or became dizzy and fell down the stairs. Juarez was transported to Mile Bluff Hospital for a physical examination. The parties dispute the range of injuries he received, but the medical records from the hospital show that Juarez suffered multiple contusions and a possible shoulder strain. He received medication to treat muscle spasms in his back and pain. The doctor recommended discontinuing use of the Gabapentin, which he concluded may have been the cause of Juarez's dizziness.

         The next day, Juarez saw defendant Felber. He states that he told Felber, “I told you that that medication was making me dizzy and ill!” and that Felber said, “I know, and I'm sorry.” Defendants deny that this exchange occurred. About two weeks later, Juarez was placed on a “lower tier/upper bunk restriction.”

         On April 10, 2015, Juarez was called to HSU to start a new medication.[2] Juarez met with defendant Hentz, who gave him a blister pack of medication. Juarez says that Hentz did not warn him about potential side effects. The blister pack of medication was a non-controlled medication, so Juarez was able to take the medication back to his cell for storage and self-administration. The back of the blister pack contained information about the medication. The information included potential side effects of the medication. The parties do not say what these side effects were. Before taking any of his new medication, Juarez read the back of the blister pack and knew the potential side effects. An upset stomach was the only side effect that Juarez experienced from the new medication.


         I granted Juarez leave to proceed on Eighth Amendment and state-law negligence claims against (1) defendants Walter and Felber for disregarding the risk of harm he faced in February 2015 from the dizziness caused by his Gabapentin; and (2) defendant Hentz for disregarding the risk of harm he faced in April 2015 from another medication he ...

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