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Patterson v. Hepp

United States District Court, E.D. Wisconsin

July 31, 2017



          J. P. Stadtmueller U.S. District Court

         Plaintiff Shannon Patterson (“Patterson”), a prisoner, brings this action pursuant to 42 U.S.C. § 1983 against Defendants, prison officials at Fox Lake Correctional Institution (“FLCI”), arising from Patterson's slip and fall on a loose floor tile in the prison and his ensuing medical care. Patterson makes constitutional and state-law claims related to Defendants' alleged misconduct. Defendants filed a motion for summary judgment as to all of Patterson's claims on May 3, 2017. (Docket #54). The motion is fully briefed and, for the reasons stated below, it will be granted.[1]


         Federal Rule of Civil Procedure 56 provides 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 fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh the evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). The party opposing summary judgment “need not match the movant witness for witness, nor persuade the court that [his] case is convincing, [he] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).

         2. RELEVANT FACTS

         Patterson is an inmate at FLCI. He claims that on January 25, 2015, he slipped on a loose, raised piece of a floor tile just outside his cell. He purportedly injured his neck, leg, and back in the fall and aggravated several preexisting conditions stemming from a car accident he was in prior to his incarceration. He brought this suit against FLCI's warden, Randall Hepp (“Hepp”) and the prison Building and Grounds Superintendent, John Maggioncalda (“Maggioncalda”). Also joined as defendants are Dr. Charles Larson (“Larson”), a physician working in the FLCI Health Services Unit (“HSU”), Robert Frank (“Frank”), an HSU nurse practitioner, Holly Meier (“Meier”), the HSU Health Services Manager, Paula Stelsel (“Stelsel”), a Dialysis Nursing Supervisor in the HSU and sometime-Health Services Manager, and Dr. Richard Steliga (“Steliga”), another HSU physician.

         2.1 Patterson's Fall

         Prior to Patterson filing the instant suit, Hepp and Maggioncalda were aware of numerous locations around FLCI where floor tiles were loose or missing. This circumstance had been occurring since before Hepp assumed his position as warden in early 2014, and he knew about it since his appointment. However, Maggioncalda had never witnessed an instance where a floor tile was “sticking up, ” as Patterson has alleged. In his experience, the floor tiles are likely to crack if they are bent, rather than stick upward from the floor. If staff found a loose floor tile, it would be removed, leaving the smooth concrete subfloor exposed.[2] The concrete floor provided similar traction to the floor tiles and the height difference between the two was at most one eighth of an inch. In everyday life, walkers must often negotiate walking surfaces with greater height disparities. Defendants note that large-scale replacement of the floor tiles would require a significant outlay, and neither could unilaterally approve such a project.

         Although they knew about instances of missing or loose floor tiles, Hepp and Maggioncalda aver that no inmates or institution staff ever notified them of a dangerous condition created by the floor tiles. Patterson accuses Defendants of lying about this, see (Docket #79 ¶ 18-19), but he proffers insufficient evidence to support such a conclusion. Prior to his fall, Patterson never himself complained to either Hepp or Maggioncalda that loose floor tiles outside his own cell created a safety concern. Further, although Patterson fell in January 2015, he cites his and another inmates' complaints about the floor tiles from years later, claiming these put Defendants on notice of the problem. These complaints would, of course, have no relevance to Defendants' knowledge at the time of Patterson's injury. At most, Patterson appears to question Defendants' credibility, but the Court cannot do so at this stage. Berry, 618 F.3d at 691.

         Additionally, while Patterson says that Hepp knew about the severity of the floor-tile problem because he directed a “study” of it to be conducted, Defendants point out that the study occurred after Patterson's fall, not before. (Docket #78 at 68-69). Indeed, the “study” was conducted only after Patterson filed an inmate grievance relating to his fall. See (Docket #69-1 at 10). Likewise, Patterson relies heavily on another grievance he filed after his fall in which the complaint examiner notes in passing that the floor tiles were “causing a safety issue if stepped on.” Id. at 25.

         Finally, Patterson purports to show that Defendants had a special duty to fix the floor tile problem around his cell, both because of his pre-incarceration car accident which left him with numerous chronic injuries, and also because he was housed in a “medical unit.” Certainly, it is undeniable that Patterson was injured by the car accident, but he has no evidence showing that Hepp and Maggioncalda knew of this. Further, he cites only the testimony of himself and other inmates who believed that their unit was a “medical” unit for housing injured inmates. See (Docket #69, #71, #72, #74). The formal designation and use of a particular prison unit is not something with the inmates' personal knowledge, and the Court therefore cannot consider it. Fed.R.Civ.P. 56(c)(4); Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 429 (7th Cir. 2004).

         Patterson notes that a year and a half after his fall, in June 2016, he observed inmates tearing up floor tiles and replacing them with new ones in the unit where he fell.[3] He further reports that he heard about another inmate at the prison who had fallen on the same floor tiles prior to their repair. This inmate had not filed a grievance about the fall.

         2.2 Patterson's Medical Care

         The remainder of the relevant facts concern Patterson's post-injury care. This Part is lengthy because his allegations of medical mistreatment span more than two years.

         After he fell on January 25, 2015, Patterson was seen by an HSU nurse, who instructed that Patterson be taken to Waupun Memorial Hospital for a medical evaluation. Patterson noted a history of orthopedic surgeries, including rods in his left tibia and fibula, and he had a history of chronic leg pain. On examination, medical personnel discovered preexisting, non-healing fractures in his lower left leg, with no new definitive fractures noted. He was diagnosed with a contusion/strain to his left leg. He was prescribed ibuprofen and sent back to the prison.[4]

         Patterson had a follow-up appointment in the HSU on January 26, 2015 regarding his fall. He reported tingling in his buttock, a stiff back, and a sore neck. The nurse found that these were acute injuries that would likely fade with time. Patterson was provided ibuprofen and scheduled for another follow-up visit on January 27. Patterson, unhappy with the delay, had his mother call Meier to complain.

         At his January 27 appointment, Meier discovered bruising and swelling on Patterson's left shin. He was ordered to continue with ibuprofen and use rest and ice. The nurse then referred Patterson to an HSU physician for further evaluation. Patterson claims that Meier did not do a sufficiently thorough check-up, arguing that she failed to see whether his pre-existing conditions from the car accident were aggravated by the fall.

         Dr. Larson saw Patterson later that day. Larson reviewed the emergency room records from January 25 as part of his examination. Larson claims that during his visit with Patterson, Patterson was evasive, inconsistent in his descriptions of when and how he was injured, and exaggerated his injuries. He was also generally non-compliant during the physical examination. Larson noted that Patterson showed no signs of acute distress or pain other than a reluctance to bear weight on his left leg. In light of the exam results, the available records, Patterson's history of substance abuse, and Larson's perception that Patterson was interested only in obtaining narcotic pain medications, Larson decided to continue Patterson on the existing course of non-narcotic pain treatment. Larson avers that Patterson mocked him throughout the exam, apparently confident that he could file inmate grievances or lawsuits in order to obtain the narcotics he desired.

         Patterson disagrees with Larson's allegations, claiming that Larson performed only a cursory exam, laughed at his injuries, ignored his concern about taking ibuprofen given his prior bone fractures, and seemed annoyed that Patterson's mother had called the institution to complain. Patterson states that he should have been more thoroughly examined and that his pain warranted treatment with narcotics. He claims that he has never had prescription painkiller dependency issues, although he does not dispute that the medical record shows a history of substance abuse more generally. He also accuses Larson of fabricating his findings about Patterson, his history, and his behavior, in order to cover up his failure to provide adequate medical treatment and to avoid a lawsuit brought by Patterson's mother. Surprisingly, however, Patterson does not dispute that (1) he was a poor candidate for opioid pain treatments and (2) his pain was being adequately managed with non-narcotic pain medications and other treatments such as ice, elevation, and physical therapy. See (Docket #79 ¶¶ 44-45, 50).[5]

         After this appointment, Patterson's mother called the prison again, complaining that her son was not receiving adequate treatment. Meier took the call and informed Patterson's mother that Patterson was receiving medical care from Larson, who indicated that Patterson was exhibiting drug-seeking behavior. Meier told Patterson's mother that if he was unhappy with his care, he could file an inmate grievance.

         On February 8 2015, Meier received a health services request from Patterson. He claimed that he was still in pain from his fall, that Larson had refused to treat him, and that he wanted to see a different doctor. In response, Meier scheduled Patterson for evaluation by Dr. Steliga on February 20, 2015. After this time, Meier never received another complaint from Patterson or his mother about his medical care. Patterson was seen again in the HSU on February 10, with complaints of pain and seeking something to abate it. What precisely happened at this appointment is not explained by the parties.

         Before his appointment with Steliga, Patterson was seen by Dr. Lang, an outside orthopedic surgeon. Lang agreed with Larson's decision not to prescribe Patterson narcotic painkillers, and he did not change Larson's treatment plan. Lang noted that Patterson had a left tibial nonunion requiring a “revision nailing procedure, ” and suggested that Patterson use a wheelchair until the pain in his left leg subsided.

         Patterson was seen by Steliga on February 20, 2015. Patterson again complained of chronic back, neck, and shoulder pain. Steliga, like Larson, noted that Patterson had a tibia fibula fracture, was taking Tylenol and gabapentin for pain, and was a poor candidate for narcotic pain relievers due to his history of substance abuse. Steliga diagnosed Patterson with chronic pain syndrome secondary to multiple fractures. Steliga opines that such a condition is treated with pain management methods including medication, physical therapy, and psychological care. Steliga instructed Patterson to continue taking his medications and scheduled him for a follow-up appointment at the University of Wisconsin Hospitals and Clinics.

         Again, Patterson counters all this by accusing Steliga of lying, denying his history of substance abuse, and claiming that all of the doctor's decisions and notations were part of a cover-up for his inadequate medical care. He also claims that physical therapy did not relieve his pain.

         On March 12, 2015, Patterson raised for the first time, in a note to the HSU, that gabapentin was causing undesirable side effects and was not alleviating his pain. Steliga saw Patterson again on April 1, and at this appointment Patterson complained of dizziness and confusion. Steliga reviewed Patterson's most recent x-ray, from February 27, 2015, which showed old fractures, a normal cervical spine, and degenerative joint disease. In response to Patterson's complaint about the side effects of gabapentin, Steliga reduced the dosage and also prescribed amitriptyline, a psychotropic anti-depressant. Steliga did not make any other changes to the course of treatment, since Patterson was scheduled to be seen again by Lang a week later, the reduction in the gabapentin dose addressed Patterson's concern about side effects, and the x-ray did not reveal a need for any urgent additional treatment.

         Patterson's next appointment was with Lang on April 8, 2015. Lang again noted that Patterson had a tibial nonunion, and recommended a surgical repair of the condition. He completed an order report on April 16, 2015 regarding that surgery. On May 13, Steliga added a prescription for acetaminophen to Patterson's pain treatment after Patterson reported that he fell and hit his head in his cell. On June 13, Patterson wrote to the HSU complaining of neck and back pain, as well as problems with speech, memory, and clarity. He was put on the list to see an HSU doctor.

         Patterson saw Steliga one final time on June 24, 2015. Patterson complained during this appointment that he had a piece of glass lodged in his forearm. He did not complain of any other issues or pain. Steliga ordered an x-ray to determine whether there was something in Patterson's arm.

         On July 7, 2015, Patterson had a follow-up appointment with Larson to check on his left leg. Larson noted that Patterson declined an examination but did cooperate in an interview. Patterson, unsurprisingly, says that Larson's statements are false. After learning the details of Patterson's care since their last appointment, Larson determined that Patterson's current restrictions-including assignment to a lower bunk, crutches, wheelchair use for long distances, and canteen delivery, among others-were sufficient and should be maintained indefinitely.

         Next, on July 24, 2015, nurse Stelsel received two voicemail messages from Patterson's mother regarding Patterson's need for orthopedic surgery. Stelsel instructed Patterson's mother that the HSU was waiting for cardiology to send dictation before the surgery could go forward. Patterson's mother stated that she would call again for an update. On July 28, Stelsel called the orthopedic office regarding scheduling Patterson's surgery. Stelsel left a message requesting that they call back because the calendar for outside medical appointment are set by the medical providers, not by the HSU.

         Patterson was admitted to a University of Wisconsin hospital on September 8, 2015 for surgical repair of his tibial nonunion, which Dr. Lang performed. He was discharged on September 10 with instructions on cleaning the wound. He was also instructed to schedule a follow-up appointment.

         On September 17, 2015, Stelsel returned a call to Patterson's mother to update her regarding Patterson's pain medication. She informed Patterson's mother that Patterson had a new order for Norco, the brand name for a hydrocodone-acetaminophen painkiller, and that Patterson had been scheduled for a follow-up evaluation. An exam by Dr. Lang on September 22 revealed that Patterson's knee motion was excellent and that his sutures had been successfully removed. Dr. Lang recommended that Patterson could bear weigh on his left leg while in a walking boot and that the boot could be removed when resting. He further recommended that Patterson should order impact-resistant footwear, that he could return to showering and getting the incision wet, and that he would have a follow-up appointment with x-rays in four weeks.

         Based on Dr. Lang's recommendation for impact-resistant footwear, Dr. Larson initially approved an order for the same, but later determined that Patterson would instead be issued a pair of black Velcro shoes. He reasoned that the black Velcro shoes had a much softer sole than the leather boots normally issued to FLCI inmates, and that this was sufficient to accommodate Patterson's needs.

         Patterson's first appointment with nurse practitioner Frank occurred on October 7, 2015. Patterson reported that his surgery went well and that his recovery was also going well. He was able to walk in his cell over short distances but used a wheelchair for longer distances. He reported pain with prolonged standing and felt that his pain was exacerbated by a lack of support in his shoes. Frank did not note that Patterson complained of neck or back pain, other than the issue with his shoes, but Patterson has broadly averred that he consistently complained of neck and back pain throughout this period.

         Frank's examination revealed a normal range of motion in Patterson's left knee and trace swelling at the ankle. Patterson was scheduled to see Dr. Lang again in about two weeks. At Patterson's request, Frank sent a note to Lang asking that Patterson be fitted with different shoes. Frank also scheduled Patterson for an appointment to have a foreign body-the aforementioned piece of glass-removed from his forearm. Frank did no more than this at the time, believing that Patterson was in no acute distress and knowing he had a follow-up appointment scheduled in two weeks.

         Patterson next saw Dr. Lang on October 20, 2015. Lang noted that Patterson had possible suture abscess, so he gently debrided the area and applied a bandage. Patterson's x-ray showed further consolidation of the bone graft with no complications. Thus, Lang recommended that Patterson continue to bear weight has he could tolerate it and that he could wean himself out of the walking boot into shoes. Lang also recommended that Patterson be allowed to order different shoes with greater shock absorption than the black Velcro shoes ordered by Larson.

         On October 22, based on Lang's recommendation, Dr. Larson discontinued the black Velcro shoes and approved an order allowing Patterson to switch between his walking boot and regular shoes as comfort allowed. He also entered an order allowing Patterson to order shoes and over-the-counter arch support inserts from the institution catalog that would better address Patterson's shock-absorption needs. The catalog contains shoes with the sort of shock-absorption characteristics that Lang recommended. Larson also consulted with the Department of Corrections' medical director, who determined that the institution catalog offered appropriate shoes and that there was no need for custom shoes or orthotics.

         Patterson then saw Frank on November 10, 2015, to remove the foreign body in his arm. At the appointment, Patterson reported pain, numbness, and weakness in his left arm resulting from the pre-incarceration car accident. He claimed it had not been addressed since his incarceration. Frank reviewed an x-ray from February 2015 and noted a transverse fracture of the left scapula with nonunion, meaning that Patterson's shoulder blade was fractured long ago and had not grown back together properly. Frank ordered another x-ray and told Patterson to follow up with him after it was completed.

         Per Frank's order, an x-ray was taken of Patterson's clavicle. The two had an appointment to review the results on November 18, 2015. The x-ray revealed a left scapular fracture with subsequent nonunion, and Frank's examination that day showed the Patterson had reduced mobility with the left arm. Nevertheless, Patterson expressed that he did not want to undergo a surgery for the nonunion in his scapula, and so Frank deferred ordering such treatment and asked Patterson to follow up with him in 3-4 months.

         Patterson was next seen by Dr. Lang on December 8, 2015, for his six-week surgical follow-up. Patterson says that he complained about the FLCI staff's refusal, in his view, to provide any appropriate care for his neck and back pain. According to Patterson, ...

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