United States District Court, E.D. Wisconsin
PATRICK J. WERNER, Plaintiff,
AMY JO JONES, BRIGIT BELOW, DR. BECK, and THOMAS FINNEGAN, MD, Defendants.
DECISION AND ORDER
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES.
Patrick Werner, currently a prisoner serving a state sentence
at Oshkosh Correctional Institution, filed this pro
se 42 U.S.C. § 1983 action against defendants Amy
Jo Jones, Brigit Below, Dr. Beck, and Dr. Finnegan for
violation of his constitutional rights while he was in
custody at the Brown County Jail. Werner claims the
defendants were deliberately indifferent to his serious
medical needs when they failed to properly treat his ingrown
toenail. Currently before the court are defendants'
motion to dismiss Finnegan as a defendant and their motion
for summary judgment. For the following reasons, the
defendants' motions will be granted and the case will be
claims Brown County Jail medical staff were deliberately
indifferent in treating his ingrown toenail. He notes that he
has experienced ingrown toenails since January 2007.
Pl.'s Proposed Findings of Fact (PPFOF) ¶ 14, ECF
No. 79. Werner was transferred to the Brown County Jail in
February 2013. Shortly after his arrival, the jail physician
prescribed three tablets of Tylenol to take twice daily for
pain. Defs.' Proposed Findings of Fact (DPFOF) ¶ 26,
ECF No. 67. From February 16 though September 28, 2013,
Werner submitted 64 inmate requests for medical care, but
none of the requests sought care for his toe. Id.
¶ 27. Werner claims he submitted medical requests on
September 8, 15, 22 and 29, 2013 that were not addressed by
medical staff, though he does not indicate that these
requests pertained to an ingrown toenail. PPFOF ¶ 13.
defendants contend Werner first submitted a health care
request regarding pain in his left big toe on September 29,
2013. In that request, Werner noted he that he had
experienced pain in his toe “for the past 2
days.” DPFOF ¶ 28 (quoting ECF No. 70-2 at 68).
Five days later, on October 4, 2013, Nurse Amy Jones examined
Werner's toe. Id. ¶ 30. She noted in a
medical progress note that Werner's left big toe was
swollen and red with some drainage from the nail bed. Nurse
Jones arranged for Dr. Beck to examine Werner's toe.
Id. ¶ 32. That same day, a physician prescribed
the antibiotic Keflex for Werner to use twice a day for ten
days to ward off any potential infection. Id. ¶
33. Dr. Beck examined the toe on October 8, 2013, observed
that Werner had an ingrown toenail that was red with no
drainage, and instructed Werner to continue using Keflex and
soak his toe in Epsom salt bathes twice a day for seven days.
Id. ¶¶ 35-36. Medical staff continued to
monitor Werner's toe to determine whether the antibiotic
and salt-soaks prevented infection and reduced pain.
Id. ¶ 39. He was examined by the jail physician
on October 17 and October 22, 2013. At the follow-up
appointment on October 22, 2013, Werner complained that his
toe was “worse.” The physician noted that the toe
was red and swollen, though it showed no sign of drainage,
and prescribed Augmentin for Werner to use twice a day for
ten days. Id. ¶ 40. Werner received the
prescription on October 28, 2013.
Finnegan examined Werner's toe on November 14, 2013, with
the assistance of Nurse Below. Id. ¶ 43. During
the examination, Dr. Finnegan noted Werner complained of pain
and drainage and determined Werner would need the infected
portion of his left big toenail removed. He also mentioned
that Werner could be referred to an outside podiatrist for
the procedure. Id. ¶ 45. On November 23, 2013,
Werner submitted a medical request inquiring as to the status
of the podiatry referral. Nurse Jones responded to the
inquiry within four days and informed him his appointment was
under review. Id. ¶ 47. On November 27, 2013,
jail medical staff provided Werner with additional Epsom salt
to continue his salt-soaks. That same day, Werner submitted a
medical request asking about the status of his medical
appointment for his toe. Nurse Jones responded within three
days, informing him that he will be seen by a jail doctor for
the partial nail removal, rather than a podiatrist.
Id. ¶ 49.
Finnegan performed the partial toenail removal, among other
medical procedures, on December 3, 2013. Id. ¶
50. Dr. Finnegan began the procedure by injecting
Werner's toe with a Lidocaine numbing agent and rubbed
the agent on his toe. He then removed the infected portion of
Werner's “nail plate.” Id. ¶
52. Dr. Finnegan prescribed a 90-day supply of extra strength
Tylenol for Werner to use for pain during his recovery.
Id. ¶ 56.
Jones examined Werner's surgical wound, changed the
dressing, and applied Bacitracin to his toe on December 4, 5,
and 6, 2013. Id. ¶¶ 60-61. Werner
submitted eight medical requests unrelated to his toe between
December 5 and December 20, 2013. Id. ¶ 63. He
then submitted requests on December 20, 22, and 24, 2013,
noting some discoloration on his toenail as well as the skin
on his toe and claiming his toe was sore and dry.
Id. ¶ 64. A registered nurse examined Werner on
December 27, 2013 and noted Werner's toe was “tan
colored.” Id. ¶ 66. Dr. Finnegan advised
that Werner should continue using the antibiotic and
salt-soak as previously prescribed. Id. ¶ 67.
Nurse Jones also responded to his requests on December 31,
2013 and informed him that he would be seen at the next
available appointment. Id. ¶ 65.
contends that in January 2014, his toenail began splitting.
PPFOF ¶ 52. Dr. Finnegan and Nurse Jones examined Werner
during a sick call on January 3, 2014 to evaluate his flulike
symptoms and dandruff concerns. Dr. Finnegan noted
Werner's toe was sensitive and instructed Werner to
continue the antibiotic and salt-soak regime. DPFOF ¶
68. Werner submitted a medical request on January 25, 2014,
describing redness and complaining that his nail was
“coming apart.” Id. ¶ 69. Dr.
Finnegan and Nurse Jones examined Werner's toe on
February 4, 2014. Dr. Finnegan noted the toe was clean and
dry and did not have drainage but was slightly red. At this
appointment, Dr. Finnegan suggested scheduling a podiatry
appointment for Werner if his pain continued. Id.
¶ 70. Nurse Jones informed Werner that, in the meantime,
he was to try another round of antibiotics with Betadine
soaks. If this final round of treatment did not resolve his
problems, the jail would order a podiatry referral.
Id. ¶ 73.
contends that on February 20, 2014, he told a guard that his
toe was bleeding and that he was in pain. PPFOF ¶ 57.
That same day, Nurse Below examined the toe, cleaned the
wound, applied Bacitracin, and covered the toe with gauze and
tape. Dr. Fatoki ordered the antibiotic Ciprofloxacin and
provided a Batedine solution for Werner to use twice a day
for seven days. DPFOF ¶¶ 74-75. He used the
Batedine solution and medication from February 21 through
February 28, 2014. Id. ¶ 76. Werner submitted a
final medial request on March 3, seeking information about
the podiatry referral and complained of continued discomfort.
The medical staff continued to provide him extra-strength
Tylenol throughout March, until he left the facility for
Dodge Correctional Institution on March 24, 2014.
Id. ¶ 77. Werner received the same treatment
for his toe at Dodge Correctional Institution and Oshkosh
Correctional Institution until he ultimately underwent a full
nail removal on June 5, 2014. Id. ¶¶
Motion to Dismiss
defendants filed a motion to dismiss on behalf of defendant
Thomas Finnegan, M.D., who died on February 4, 2017, based on
Werner's failure to file a motion for substitution in
accordance with Rule 25 of the Federal Rules of Civil
Procedure. Rule 25(a) addresses the substitution of a party
upon death and provides:
If a party dies and the claim is not extinguished, the court
may order substitution of the proper party. A motion for
substitution may be made by any party or by the
decedent's successor or representative. If the motion is
not made within 90 days after service of a statement noting