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Weston v. Manlove

United States District Court, W.D. Wisconsin

December 13, 2017

HENRY WESTON, Plaintiff,
v.
JEFFREY MANLOVE, BELINDA SCHRUBBE, ALEISHA COLE, AMY RADCLIFFE, ED NEISNER, [1] and PAUL SUMNICHT, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Pro se plaintiff and prisoner Henry Weston is proceeding on claims that medical staff at the Waupun Correctional Institution failed to provide adequate treatment for pain in his legs and lower back, in violation of the Eighth Amendment. Defendants have filed a motion for summary judgment, Dkt. 57, which is ready for review. I will deny the motion as to defendant Belinda Schrubbe because there are factual disputes regarding whether Schrubbe refused to help Weston get a medical appointment. But I will grant the motion as to the remaining defendants because no reasonable jury could find that any of them consciously refused to provide Weston adequate care.

         Also before the court is Weston's motion for assistance in recruiting counsel. Dkt. 80. I will deny that motion because Weston has failed to show that the case is too difficult for him to litigate without a lawyer.

         UNDISPUTED FACTS[2]

         The following facts are undisputed unless otherwise noted.

         Weston is a prisoner at the Waupun Correctional Institution, where he was confined during the events relevant to this case. In a health service request dated February 6, 2012, Weston complained about pain in his left leg. Two days later, Weston was examined by a nurse at the prison who is not a defendant. Weston told the nurse that he started feeling pain about four weeks earlier while he was at the Rock County jail. The pain was in his buttocks and left leg and radiated to his toes. He described the pain as “like a Charlie horse.” The nurse instructed him to take ibuprofen, avoid strenuous sports, and continue walking “as tolerated.” Dkt. 79, ¶ 12. A follow-up appointment was scheduled for the following week.

         At the February 14 follow-up appointment with another nurse (also not a defendant), Weston stated that he was still feeling pain down his buttocks and left leg. He also said that he may have injured himself while jumping up and down from his top bunk. The nurse instructed Weston to perform hip-stretching exercises, use muscle rub, and alternate warm and cold compresses around exercises. Another follow-up appointment was scheduled for the following week.

         On February 22, defendant Amy Radcliffe, a nurse, examined Weston. He said that his pain had not gone away despite using ibuprofen, ice, and stretching. It was a constant and radiating pain that he rated a “4.5” on a scale of 1 to 10.

         Radcliffe inspected and palpated Weston's left buttock and leg but felt no abnormalities. She directed him to continue the same regimen of ice, ibuprofen, and stretching, and to avoid doing things that make him uncomfortable. She stated that his injury “may take a significant amount of time to heal.” Dkt. 79, ¶ 14. She also spoke to Weston about watching for signs and symptoms and determining when to submit a health service request for follow-up treatment.

         Six months later, on July 31, 2012, defendant Aleisha Cole, a nurse at the prison, saw Weston for complaints of back and leg pain. He stated that staff in the health services unit had seen him multiple times in 2012, and that the pain got better on its own. Now, Weston said he was suffering from intermittent, sharp, and shooting pain, making it difficult for him to sleep and walk. He was not taking any pain relievers.

         Cole observed that Weston was limping but had a steady gait. She did not observe any physical deformities, changes in skin color, or signs or symptoms of inflammation. Cole prescribed ibuprofen and an extra pillow for repositioning. (The parties dispute whether Cole also referred him to a physician.)

         On August 6, 2012, Weston had an appointment with either defendant Paul Sumnicht or defendant Jeffrey Manlove, both of whom were physicians at the prison. Weston said that he had hurt his back while playing basketball in 2005 and that it now hurt to stand straight and walk. After an examination, the doctor concluded that Weston was suffering from a moderate left sacral iliac strain and a mild left lower lumbar strain. The doctor instructed Weston to take ibuprofen when he experienced pain or inflammation and ordered an x-ray and a physical therapy evaluation.

         Weston did not receive an x-ray at that time. The parties do not explain why, but it is undisputed that doctors are not involved in scheduling x-rays. Weston did not notify the health services unit or anyone else that he had not received his x-ray.

         On August 20, 2012, Weston had an evaluation with defendant Ed Neisner, a physical therapist, who recommended six sessions. Weston had physical therapy sessions every week or two between August 27 and October 22. Treatment consisted of heat, ultrasound, electric stimulation, and therapeutic exercise.

         Neisner says that Weston never complained that the physical therapy wasn't working. In fact, Neisner says that Weston consistently reported throughout the sessions that he was improving. Although Weston does not dispute that he reported a decrease in symptoms as a result of the physical therapy sessions, he also says that he “perpetually advised [Neisner] that th[e] exercising was not effective and actually induced further pain.” Dkt. 77, ¶ 37.

         Sumnicht left his employment with the prison on October 8.

         The following year, on September 8, 2013, Weston wrote to defendant Schrubbe, the manager of the health services unit, telling her that he was not receiving adequate treatment for “serious chronic distressful pains” in his lower back and legs. Dkt. 79, ¶ 35. In response, Schrubbe wrote: “You were seen on 8-27-13 per your request, assessed your medical need and provided treatment. You were also instructed to write HSU if no improvement. I will schedule you per this request.” (Neither side discusses the August 27 appointment in their briefs or proposed findings of fact.)

         Schrubbe does not remember what she did next, but she believes that she either placed Weston's name on a list to be scheduled for an appointment with a nurse or included his letter with other health service requests that require an appointment. Schrubbe does not schedule the appointments herself; that is handled by another staff member. Weston did not receive an appointment at that time.

         On January 3, 2014, health services staff saw Weston in response to a health service request for lower back and leg pain. The parties do not say what happened at that appointment.

         On January 24, 2014, Weston had an appointment with defendant Manlove, a physician at the prison. After examining Weston, Manlove concluded that he suffered from “chronic intermittent left sciatica, ” which involves pain radiating along a nerve that runs from the lower back to one or both legs. The condition may be caused by a herniated disk or bone spur that presses on the nerve.

         Manlove prescribed a higher dose of ibuprofen (600 mg as opposed to 200 mg) and a Vitamin D supplement. He also ordered x-rays of the lumbar spine and physical therapy. Results of Weston's x-ray showed “a mild loss of disc space height at ¶ 5/S1, ” which could cause sciatica.

         Weston also ordered an MRI, which Weston received later in 2014. The MRI showed “a central bulging disc herniation of soft gel like material that was putting light pressure directly backwards on the S1 nerve roots that would exit at ¶ 1, the next level below. He did not have pressure on the L5 nerve root exiting to the sides at the L5-S1 level.” Dkt. 79, ¶ 25. The pain specialist who evaluated the MRI concluded that physical therapy was an appropriate treatment.

         Weston continued to receive different kinds of treatment in 2014, 2015, and 2016, including various pain relievers, a consultation with a specialist, a TENS unit, and steroid injections.

         ANALYSIS

         A. Scope ...


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