United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE.
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.
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.
following facts are undisputed unless otherwise noted.
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
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.
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.
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.
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
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.)
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.
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
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
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.
left his employment with the prison on October 8.
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.)
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.
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.
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.
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.
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.
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