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Leiser v. Hannula

United States District Court, W.D. Wisconsin

September 14, 2017

DR. JOAN HANNULA, et al., Defendants.

          OPINION & ORDER


         Pro 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).

         For the 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.

         Leiser's Motion to Strike (dkt. 114)

         Defendants 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.

         Leiser's Motion to Appoint Expert (dkt. 124)

         Leiser 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.

         Leiser's Motion to Object to Denial of Default Judgment (dkt. 73)

         Leiser 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 reconsideration.

         Leiser's Motion to Compel Discovery (dkt. 74)

         Leiser 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 employees.

         Thacker 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.

         Defendants' Summary Judgment Motions (dkts. 75 and 81)

         I. The Parties

         From 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 (NLCI).

         The 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 time period.

         Nursing supervisors manage health care services, develop procedures, monitor nursing practices and record-keeping, and assist in resolving inmate complaints related to medical issues.

         Defendant Tricia Thacker, a registered nurse, was employed by a professional staffing service that assigned her to work at SCI during the relevant time period.

         Defendant 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.

         II. Leiser's Conditions and Their Treatment

         Leiser 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.

         SCI's 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:

         January 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 these levels.

(Dkt. 93-1, at 794-94.)

         April 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.)

         June 9, 2010: Leiser underwent a cervical spine fusion and discectomy at ¶ 6-C7 at UWHC.

         November 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.

         January 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.)

         Hannula 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.

         February 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.

         May 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 day.

         May 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 phone.

         May 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.

         Dr. 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 criteria.

         June 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.

         June 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.

         June 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.

         August 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.

         Leiser 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.

         October 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.)

         November 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.

         August 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.

         September 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 physical therapy.

         April 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.

         At 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.

         May 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.)

         May 24, 2013: Leiser underwent a scrotal ultrasound, which revealed no evidence of a testicular mass.

         May 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 sling.

         May 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.

         Leiser sent McCall a complaint about this incident. McCall did not respond because she no longer worked at SCI.

         June 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.

         June 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.

         June 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.

         July 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.

         July 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.

         July 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.

         August 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.

         August 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 ...

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