United States District Court, W.D. Wisconsin
D. PETERSON DISTRICT JUDGE.
Lawrence Northern injured his Achilles tendon playing
basketball at the New Lisbon Correctional Institution (NLCI).
Both of the above-captioned cases concern the medical
treatment Northern received following the injury. His
deliberate indifference claim against defendant Nurse Koreen
Frisk for failing to properly examine his Achilles and
provide him with pain medication is set for trial in case no.
13-cv-367-jdp. Northern is also proceeding on deliberate
indifference, retaliation, and Wisconsin-law medical
malpractice claims against Frisk and other NLCI nurses in
case no. 16-cv-277-jdp, mostly concerning later events
regarding defendants' failure to provide him with
prescribed wound dressing changes following his surgery.
in the 2013 case is scheduled for November 27, 2017. The
trial in the 2016 case is set for September 24, 2018.
Defendants in both cases have filed a motion to consolidate
the cases to fit the 2016 case's schedule, stating that
the cases share common questions of law and fact, parties,
and counsel. Northern opposes consolidation, stating that the
2013 case is “ripe for resolution” and that the
cases are not that similar: the 2013 case is about
Frisk's actions soon after Northern's injury, and the
bulk of the claims in the 2016 case concern events occurring
after Northern had surgery, months after the injury.
the claims in both cases as they are presently constructed, I
am inclined to side with Northern for reasons similar to
those I articulated in ruling against him when he
attempted to amend his complaint in the 2013 case to include
medical malpractice claims against other defendants shortly
before the then-scheduled trial Dated: it was simply too late
to greatly expand the scope of the case. See Dkt. 91
in the 2013 case, at 2-3. The 2013 case is indeed ripe for
resolution, and it would be unfair to Northern to stay the
2013 case ten more months just to join it with claims that
are related but mostly have to do with a later, post-surgical
set of defendants' treatment decisions.
this issue gets more complex. In the 2016 case, Northern has
filed a motion to amend his complaint to include a series of
Eighth Amendment, equal protection, and state-law medical
negligence claims about events that occurred both before and
after his surgery. He alleges the following:
• Right after his injury, Nurse Adrienne Baumgart failed
to adequately examine him, refer him to a doctor, immobilize
his ankle, or give him pain medication, low-bunk restriction,
• Dr. Kenneth Adler failed to immobilize his ankle and
give him a low-bunk restriction.
• After his surgery, Carroll Walters threatened him with
discipline if he didn't sign a form stating he was
refusing further medical treatment.
• The Special Needs Committee, comprised of Lieutenant
Martinson, Lynn Washetas and Candace Warner, rejected his
requests for high-top boots to accommodate his recovery, even
though other inmates with less serious problems were allowed
to have them.
See Dkt. 12. I take the claims against Baumgart and
Adler to be referring to pre-surgery deprivations, roughly
contemporaneous with his original claim against defendant
of these claims survive screening under 28 U.S.C. §
1915A. As I stated in the 2013 case, Northern cannot maintain
a medical malpractice claim under Wisconsin Statutes Chapter
655 against defendant Nurse Baumgart because that chapter
does not allow claims against nurses. See Dkt. 107
in the 2013 case; see also Patients Comp. Fund v.
Lutheran Hosp.-La Crosse, Inc., 216 Wis.2d 49, 573
N.W.2d 572, 575 (Ct. App. 1997) (“nurses employed by a
hospital to participate in the care of a hospital's
patients, with the exception of nurse anesthetists, are not
defined as health care providers”). But he may
proceed on the rest of his claims.
problem with allowing Northern to add those claims is that
the 2016 case would then include more pre-surgery claims that
are intertwined with the claim against Frisk in the 2013
case. This significantly undercuts my rationale above for
allowing the 2013 case to go to trial immediately. If
Northern wants to litigate a host of pre-surgery treatment
decisions, including his original claim against Frisk, they
should be litigated at the same time.
will give Northern a choice: he can amend his 2016 complaint
to include his new claims against Baumgart and Adler, in
which case I will consolidate the 2013 and 2016 cases
together on the 2016 case's schedule. Or he can withdraw
those claims, and I will allow the 2013 case to go to trial
now and the 2016 case will be litigated separately.
of the choice Northern makes about the pre-surgery claims, I
will allow him to amend his 2016 complaint to include his new
post-surgery claims. I will issue a formal order on the
motion to amend once Northern responds to this order.
Defendants have filed a motion for summary judgment based on
Northern's alleged failure to exhaust his administrative
remedies. Once defendants are clear on what claims will be