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Werner v. Jones

United States District Court, E.D. Wisconsin

January 5, 2018




         Plaintiff 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 dismissed.


         Werner 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.

         The 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.

         Dr. 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.

         Dr. 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.

         Nurse 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.

         Werner 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.

         Werner 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. ¶¶ 95-96.


         A. Motion to Dismiss

         The 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 ...

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