United States District Court, W.D. Wisconsin
JEFFREY D. LEISER, Plaintiff,
DR. JOAN HANNULA, et al., Defendants.
OPINION & ORDER
STEPHEN L. CROCKER MAGISTRATE JUDGE.
se plaintiff Jeffrey Leiser is proceeding in this
lawsuit on Eighth Amendment and state law claims against
several current and former Wisconsin Department of Correction
(DOC) employees for their alleged failure to respond properly
to his requests for treatment of his spinal and testicle
pain. Before the court are defendants' motions for
summary judgment (dkts. 75, 81), defendants' motion to
strike Leiser's proposed findings of fact (dkt. 114),
Leiser's Motion to Compel (dkt. 74), Leiser's
objection to my denial of his request for default judgment as
to defendant Tricia Thacker (dkt. 73), and Leiser's
Motion to Appoint Expert (dkt. 124).
reasons stated below, I am denying Leiser's motions, and
I am granting in part and denying in part defendants'
motions. Based on this outcome and as foreshadowed in my
August 31, 2017, text-only order, I will recruit counsel to
represent Leiser on the claims that remain. As a result, I am
striking all remaining deadlines, to be reset at a telephonic
conference once counsel has been recruited.
Motion to Strike (dkt. 114)
ask that I strike plaintiff's Proposed Findings of Fact.
(Dkt. 114.) Defendants correctly point out that Leiser has
not filed his own motion for summary judgment, and in any
event, his proposed facts are largely conclusory and
argumentative. In this situation, I am granting the motion in
part and denying it in part. I have not fully incorporated
Leiser's proposed findings of fact because Leiser has not
moved for summary judgment. However, I will not strike them
completely from the record because Leiser has responded to
many of defendants' proposed findings of fact by citing
to his own proposed findings of fact and the attached
documents. These citations have been helpful to determining
whether there are genuine issues of material fact,
particularly where Leiser asserts a fact drawn from his own
experience. To be clear, I have only considered
Leiser's proposed findings of fact that he has cited to
in response to defendants' proposed facts.
Motion to Appoint Expert (dkt. 124)
seeks appointment of an expert to opine on his medical
claims, in particular pointing out that an expert is
necessary to support his claims and that he and his family
have failed in their efforts to secure an expert on their
own. While a plaintiff's expert might be appropriate and
useful at trial, I am denying this motion because I have
determined, sua sponte, to recruit a volunteer
attorney to represent Leiser a trial. It will be up to that
attorney to determine the base approach to future proceedings
in this lawsuit.
Motion to Object to Denial of Default Judgment (dkt.
seeks reconsideration of my denial of his request for default
judgment as to Thacker. On April 25, 2017, I denied
Leiser's motion because “Thacker filed an answer on
June 15, 2016 (see dkt. 30), fulfilling her
obligation under Rule 55(a) to plead or otherwise defend
against the claims in plaintiff's complaint.” (Dkt.
72.) Leiser cites no law or fact suggesting that this was
incorrect. Accordingly, I am denying his motion for
Motion to Compel Discovery (dkt. 74)
has filed a motion to compel better discovery responses from
Tricia Thacker. He seeks more specific responses to his
requests for admissions, documents related to the contract
between Guardian Health Staff, LLC, and the State of
Wisconsin, and Guardian's policies and procedures for
responded by indicating that she updated her discovery
responses to Leiser once she reviewed his medical records,
but she does not have access to any documents related to
Guardian because she was a contract worker at SCI for only
six months and never possessed those documents. Leiser
persists, arguing that Thacker could call Guardian to obtain
the documents; Thacker, however, is not obliged to take this
step. Thacker's responsibility under the discovery rules
is to provide the documents that she possess or controls not
to search for and seek documents from other people or
entities. Leiser does not suggest that Thacker has failed to
provide the information that she actually possess or
controls, so I am denying his motion to compel.
Summary Judgment Motions (dkts. 75 and 81)
October 28, 2010, until July of 2016, Leiser was an inmate at
Stanley Correctional Institution (SCI). Leiser now is
incarcerated at the New Lisbon Correctional Institution
following defendants are current or former SCI employees: Dr.
Joan Hannula, a physician; July Bentley, a nurse
practitioner; Tracy Brunner, and Patty Hazuga, all registered
nurses. Sandra DeMars, Christine McCall and Jeanie Ann Voeks
all were registered nurses who served as nursing supervisors
in SCI's Health Services Unit (HSU) during the relevant
supervisors manage health care services, develop procedures,
monitor nursing practices and record-keeping, and assist in
resolving inmate complaints related to medical issues.
Tricia Thacker, a registered nurse, was employed by a
professional staffing service that assigned her to work at
SCI during the relevant time period.
Lon Becher was not located at SCI. Rather, in 2013, he became
the Health Services Nursing Coordinator for thirteen DOC
institutions, including, SCI. Becher, a registered nurse, was
responsible for coordinating and overseeing health services
provided at DOC facilities, which included reviewing inmate
complaints involving medical issues unrelated to actual
treatment or care.
Leiser's Conditions and Their Treatment
was an inmate at SCI from October 28, 2010 until July 2016.
Leiser arrived at SCI with a history of back problems. He had
undergone two failed lumbar fusion surgeries to address
L5-S1, one in 1996 and a second in 2003. Leiser had a history
of a herniated disc at ¶ 8-T9 that did not involve
either radiculopathy (a disease that may involve a pinched
nerve) or myelopathy (a neurologic problem related to the
spinal cord). In 2010, Leiser underwent surgery again, at
that point to fuse C6-C7.
health services providers, including the defendants, were
aware of Leiser's back and consistently worked with him
to address his requests for care. Leiser was not satisfied
with the treatment choices made. Leiser's relevant
treatment history follows, with the parties' material
points of dispute set out in italics:
20, 2010: Leiser underwent an MRI of his cervical
and thoracic spine, which covered his neck and mid-back
areas. The narrative report states:
Central subligamentous disc herniations at ¶ 7-T8 and
T8-T9 levels causing mild impingement on the anterior right
aspect of the spinal cord although this doesn't appear to
cause significant impingement upon the lateral recesses at
(Dkt. 93-1, at 794-94.)
21, 2010: A neurosurgeon at the University of
Wisconsin Hospital and Clinics (UWHC) examined Leiser and
recommended anterior fusion and discectomy at ¶ 6-C7
(the neck area). He also recommended that Leiser receive
Vicodin, an opioid pain medication, until surgery was
scheduled. (Dkt. 93-1, at 326.)
9, 2010: Leiser underwent a cervical spine fusion
and discectomy at ¶ 6-C7 at UWHC.
4, 2010: Dr. Hannula examined Leiser for the first
time, when he reported trapezius (shoulder) muscle spasms and
residual hand numbness from the June 2010 surgery. Hannula
recorded Leiser's weight at 304 pounds and noted that his
upper strength and gait was normal despite walking with a
cane. In Leiser's progress notes, Hannula ordered a
physical therapy evaluation and an adjustment to his diet.
Hannula advised Leiser to lose 25-50 pounds to help with the
disc pain. Dr. Hannula noted Leiser's pain management
regimen, which included heat and ice, behavioral therapy for
stress reduction, a brace, non-impact aerobic exercise, a
TENS unit, and anti-inflammatory medication.
3, 2011: Dr. Hannula saw Leiser for pain that
radiated from his shoulders to his knees, and noted that he
told her that that he was awaiting physical therapy, walked
the track when the weather permitted, and used a glider or
bike in the gym. Leiser claims that he told Hannula that
he could not ride the bike because it caused numbness in his
testicles and that his legs give out because of the pain.
(Leiser Decl., dkt. 103, ¶ 37.)
wrote that Leiser did not exhibit pain behavior and did not
walk as though he was trying to avoid pain. Dr. Hannula noted
that she told Leiser that complete resolution of his pain was
impossible because he had chronic degenerative disc disease,
and that the DOC did not permit the long-term use of
narcotics. Dr. Hannula stopped the medications Leiser that no
longer wanted, prescribed ketoprofen, a non-steroidal
anti-inflammatory drug, gave him an abdominal binder to help
with his discomfort, and advised him to stay active.
15, 2011: Leiser had requested a second mattress to
provide additional support to help deal with his back pain.
Voeks, the acting HSU manager, denied his request because
prison policy only permitted double thick mattresses when an
inmate suffered from severe disabling degenerative joint
disease, or following joint replacement surgery.
28, 2011: Leiser was taken to HSU in a wheelchair
due to severe lower lumbar and leg pain, then was sent to the
emergency room at Our Lady of Victory Hospital. At the
emergency room, he received pain medications, including
Dilaudid, IM, Flexeril (cyclobenzaprine, a muscle relaxer),
and Vicodin. Hospital staff sent Leiser back to SCI
recommending rest and that he “see a neurologist or
neurosurgeon.” (Dkt. 100-2, at 19-20.) Because it was a
holiday, Dr. Hannula was not at SCI and did not see him that
29, 2011: Leiser reported continued severe lower
back pain and other related problems. Dr. Hannula approved a
3-day prescription of Vicodin and cyclobenzaprine over the
31, 2011: Dr. Hannula saw Leiser. According to
Hannula, even though Leiser arrived in a wheelchair, he could
ambulate and rise up on his toes and heels. (Hannula decl.,
dkt. 85, ¶ 26.) Leiser claims that he could not get
up on his own, Hannula did not make him stand on his toes or
heels, and he yelled in pain when Hannula tried to lift his
leg (Leiser Decl., dkt. 103, ¶ 32-33.) She ordered
an x-ray, physical therapy and a follow up. (Dkt. 93-1, at
78.) She also extended his cyclobenzaprine, Vicodin, and
nonsteroidal anti-inflammatories prescriptions.
Hannula states that she did not order that Leiser be seen by
a neurologist or neurosurgeon at the time because she felt
that it was important to first obtain an x-ray to check the
hardware in Leiser's spine. She felt that conservative
treatment was appropriate at that point, and that Leiser was
not exhibiting any neurologic signs, nor did he meet surgical
2, 2011: Bentley discontinued Leiser's Vicodin
prescription, continued the cycolobenzaprine until June 28,
and renewed his baclofen prescription until June 28. Baclofen
is another muscle relaxer.
14, 2011: Dr. Hannula saw Leiser and noted that
Leiser reported improvement following physical therapy, and
that he was less stiff and moving better. Hannula prescribed
indomethacin, a nonsteroidal anti-inflammatory drug, to
replace ketoprofen. Leiser claims that he never told
Hannula that he was less stiff and feeling better.
28, 2011: Dr. Hannula did not renew Leiser's
prescriptions for cyclobenzaprine and baclofen because of
Leiser's reported improvement and her belief that weaning
Leiser off them wasn't necessary because the medications
were muscle relaxants that did not have withdrawal side
effects when discontinued. According to Leiser, he had been
taking those medications for three years and he suffered
withdrawals when he did not receive them. (Pl. decl., dkt.
103, ¶ 45.) Neither party cited Leiser's files,
which show that SCI staff either ordered or dispensed Leiser
cyclobenzaprine and baclofen on several occasions, beginning
in November of 2010, shortly after his arrival at SCI.
(See Def. Ex. 1000, dkt. 93-1, at 713, 719, 722,
725, 731-32, 734, 738, 746, 752, 762.) Leiser submitted an
HSU request when he did not receive those medications, and
Dr. Hannula told Leiser that the medications were meant for
limited use only.
3, 2011: Dr. Hannula saw Leiser and noted that he
had stopped taking the indomethacin because it was bothering
his stomach. Leiser agreed to try capsaicin cream for his
pain. DR. Hannula wrote that Leiser's gait was normal, he
walked quickly, he did not display pain behaviors at the
appointment or to correctional staff, and that his neuro exam
was normal. Hannula noted her suggestion to Leiser that he
accept the fact that he will have some pain in his life; that
the pain does not imply harm; and that she had explained to
Leiser that although his 2010 MRI showed a central disc
herniation at ¶ 7-T8 and T8-T9 that caused impingement,
surgery was not recommended at that time.
claims that his gait was not normal and that he walked with a
cane and a limp. He further claims that correctional staff
would have noted pain behaviors because of the way he walked,
that he could not sit or stand for long, and that he asked to
bring a pillow with him to the day room.
7, 2011: Bentley met with Leiser and discussed his
pain management. Bentley noted that Leiser complained that he
did not have access to narcotics, that he could walk but
limped on his left leg, and that she told Leiser that
“[n]arcotic analgesics not recommended for long-term
use.” (Dkt. 93-1, at 73.)
29, 2011: Becher was conducting an audit at SCI,
which included an interview of Leiser. During his interview,
Leiser complained about his medical care. After the
interview, Becher spoke with Voeks about Leiser's
complaints. Leiser followed up by sending a letter to Becher.
In a reply letter to Leiser, Becher noted that he had
interviewed Voeks about the treatment decisions made
regarding Leiser, and that he (Becher) generally agreed with
the care SCI staff were providing. (Dkt. 1-23.) Becher
conceded that he did not understand why Leiser's
ibuprofen prescription had been decreased, and he suggested
that Leiser submit an HSR or inmate complaint on this point.
28, 2012: Bentley met with Leiser and discussed his
carpel tunnel, shoulder, neck, and back issues. Bentley told
Leiser that she would check an x-ray to assess his alignment.
18, 2012: Bentley met with Leiser to address his
neck discomfort and review his x-rays, which showed his
fusion was stable. Bentley noted that Leiser asked to be
given tramadol, but that she told him this was a narcotic
that was going to be removed from the DOC's list of
approved drugs. Bentley increased Leiser's baclofen to 20
mg, ordered tests to be done in three months, and recommended
29, 2013: In the morning, Leiser was experiencing
severe pain in his testicle and abdomen. He asked
correctional officers contact HSU on his behalf. Defendant
Thacker learned about Leiser's requests and spoke with a
charge nurse, who told the correctional officer that Leiser
would have to submit an HSR to be seen. (Pl. Ex. 168, dkt.
108-1.) Thacker did not have the authority to permit Leiser
to be seen in the HSU without permission from a superior.
about 3:30 p.m. that day, HSU summoned Leiser to remind him
about his upcoming lab tests. When he got there, Leiser
reported his testicle pain and belief that he had an
infection. Bentley examined him, and another nurse diagnosed
epididymitis, inflammation of part of the testicle. Leiser
was prescribed ciprofloxican in case of infection, given
ibuprofen, and recommended to use ice and a jock strap.
Leiser did not personally interact with Thacker that day.
13, 2013: Dr. Hannula saw Leiser for his complaints
of back pain that radiated into his right testicle and leg.
She examined him for a hernia or epididymitis, but she did
not see signs of either condition. She noted that he
complained that the jock strap did not fit, so she ordered
better fitting scrotal support. She ordered a follow-up visit
after his upcoming scrotal ultrasound. Leiser claims that
during this appointment he asked for pain medication that
worked better than the anti-inflammatory medications he was
receiving, but Dr. Hannula did not prescribe anything more
than two additional weeks of Cipro (an antibiotic). (Ex.
1000, dkt. 93-1, at 50.)
24, 2013: Leiser underwent a scrotal ultrasound,
which revealed no evidence of a testicular mass.
25, 2013: Leiser went to the HSU with the same
cluster of symptoms, now joined by stomach pain. A nurse gave
him anti-gas pills and told him that Dr. Hannula was
unavailable because it was Memorial Day weekend, but would
see him after the holiday. Leiser also received a testicle
31, 2013: Bentley saw Leiser for right side and
testicle pain. He told her that the anti-inflammatories were
not helping his pain; that he had trouble sleeping, walking,
and sitting; that he was hesitant to urinate and had
difficulty catheterizing; and that he was wearing a scrotal
support and had taken antibiotics but had obtained no relief.
Bentley suggested coming off trazodone, which could be
causing his urinary retention issues, and whether Leiser
should start taking Flowmax. Bentley noted that Leiser asked
her to prescribe less baclofen, also to address his problems
with urination, so she wrote in the plan that she would wean
him off baclofen over time. (Ex. 1000, dkt. 93-1, at 43.)
Leiser claims that he never made such a request.
Bentley adjusted some of Leiser's other medications,
starting him on indomethacin and discontinuing meloxicam,
then recommended rest and ice. She scheduled a follow up
visit in four weeks.
sent McCall a complaint about this incident. McCall did not
respond because she no longer worked at SCI.
11, 2013: Dr. Hannula saw Leiser for pain in his
right side and in his testicle. Leiser told her that the
medications were not helping. Dr. Hannula prescribed
tamsulosin and referred Leiser to an off-site urologist for
testing. Dr. Hannula explains that she did not prescribe
narcotic pain medication to Leiser because she saw no
evidence of a specific medical condition, and narcotics are
not appropriate for chronic non-malignant pain.
21, 2013: Leiser underwent a urology consultation at
the Marshfield Clinic, where he was diagnosed with bilateral
testicular pain and lower abdominal pain with an uncertain
cause. Staff recommended nothing beyond follow up as needed.
25, 2013: Bentley met with Leiser about abdominal,
groin, and testicle pain. She wrote that “[o]nce labs
are available, revisit recommendation for surgical consult,
” but also told Leiser that he may “have to come
to the realization that there is idiopathic discomfort when
no reasoning can be found.” That day Bentley ordered
salsalate for Leiser's pain, canceled his indomethacin
prescription because it was not working for him, increased
his tamsulosin to help treat his urinary retention, and
ordered lab tests. (Dkt. 93-1, at 32.) Leiser did not receive
these medications that day, so he submitted an HSR on July 8,
2013, and the medication was reordered that day.
10, 2013: Bentley submitted a form proposing a
surgical consult for Leiser's pain, and the committee
recommended a CT scan followed by a surgical consult.
18, 2013: Bentley reported that she called Leiser to
HSU to discuss approval of an outside CT scan of his abdomen.
She wrote that he told her that his abdominal binder was
slightly helpful, and even though Leiser reported that the
salsalate had not been helpful, he would continue using it.
Again, Bentley wrote that they would plan a surgery
consultation after the scan. Leiser claims that he asked
Bentley about seeing a neurosurgeon during this visit but she
denied his request.
30, 2013: Leiser underwent a CT scan at the Our Lady
of Victory Hospital for his right lower quadrant and scrotal
pain. The reviewing doctor saw no acute findings or evidence
of a hernia.
6, 2013: Leiser submitted an HSR complaining of ride
side and testicle pain again, and a nurse first told him to
try deep breathing and relaxation techniques.
7, 2013: Bentley submitted an off-site services
request form, in which she wrote that the CT scan had been
completed and requested in a general surgery consult ...