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Scott v. Richter

United States District Court, E.D. Wisconsin

January 29, 2018

JAMES RICHTER, et al., Defendants.


          PAMELA PEPPER United States District Judge

         Plaintiff Steven Dionne Scott, a Wisconsin state prisoner who is representing himself, filed an lawsuit under 42 U.S.C §1983, alleging that the defendants violated his civil rights at the Green Bay Correctional Institution (“GBCI”). Dkt. No. 1. The court screened the complaint under 28 U.S.C. §1915, and allowed the plaintiff to proceed with two claims: (1) that James Richter showed deliberate indifference towards the plaintiff's serious eye condition, and (2) that Richard Heidorn and Jeanne Greenwood (formerly Jeanne Zwiers) showed deliberate indifference toward the plaintiff's serious eye condition, severe “nerve and muscle” pain, low back pain, and “scalp pain and hair loss.” Dkt. No. 10. The court also exercised supplemental jurisdiction over the plaintiff's state law medical malpractice claim against Richter. Id.

         The defendants filed motions for summary judgment on October 6, 2016. Dkt. Nos. 61, 65. The court grants those motions, and dismisses the case.

         I. FACTS[1]

         A. Parties

         At the relevant time, the plaintiff was an inmate at GBCI. Dkt. No. 1. Defendant James Richter was an optometrist employed by the Department of Corrections (id. at 5); Richard Heidorn was a full-time physician at GBCI (dkt. no. 85, ¶1); and Jeanne Greenwood was the manager of the Heath Services Unit (“HSU”) at GBCI (id., ¶2).

         B. The Plaintiff's Allegations

         The facts involve several different medical conditions from which the plaintiff suffered between 2006 and 2012. The court will describe the events in chronological order.

         1. The plaintiff's arrival at GBCI

         The plaintiff arrived at GBCI in November 2006 with injuries from a work-related accident that occurred in 2005. Dkt. No. 1 at 14, ¶1.[2] He brought all of his medical records with him to GBCI, and these records allegedly showed that he had been diagnosed with an “acute head injury” and “left upper radiculopathy, ” a disorder of the spinal nerve roots, sometimes called a pinched nerve. Id. at 14-15, ¶¶5, 6. The plaintiff told Heidorn about his 2005 injury, and Heidorn prescribed Ibuprofen 800mg and a muscle relaxer for the pain. Id. at 14, ¶1.

         2. The plaintiff's scalp pain and hair loss

         Around October 2008, the plaintiff began noticing hair loss, lumps on his head and extreme dryness in his scalp. Id. at 18, ¶1. He also started experiencing throbbing headaches. Id. The plaintiff alleges that he has Acne Keloidalis Nuche, a condition that causes “extreme/severe scalp pain, discomfort, humiliation, bald spots, loss of sleep, and depression.” Id. at 19, ¶4. Between 2008 and 2012, the plaintiff filed over a dozen HSU requests regarding his scalp pain and hair loss. Id. at 18, ¶3.

         Most “acne keloids” are treated with antibiotics and special shampoos. Dkt. No. 85 at ¶20. Heidorn considered surgery to remove the plaintiff's keloids, but decided that it was not “necessary based on examination of the risks of surgery (infection and other complications) versus the benefits.” Id. Instead, Heidorn prescribed “Tera-Gel shampoo and Selenium Sulfide shampoo” to treat the acne keloids. Id. According to the plaintiff, neither of these shampoos worked. Dkt. No. 1 at 18, ¶2. Nevertheless, Heidorn and Greenwood continued to tell the plaintiff “you must give the shampoo time to start working, ” id., and that “there was no treatment beyond what Dr. Heidorn was currently giving to him, ” id. at 19, ¶6.

         3. The plaintiff's lower back pain

         The plaintiff alleged that when he arrived at GBCI, he told Heidorn numerous times “about the physical pain he was always dealing with each day.” Id. at 14, ¶1. He had x-rays in October 2010 that showed a narrowing of the disc space in his spine; the notes that accompanied those x-rays indicated that a follow-up MRI “should be considered.” Id. at 14, ¶2. This appears to have caused low back pain; Heidorn told the plaintiff that this was “just Arthritis.” Id. Heidorn does not specifically recall the October 2010 x-rays, but he explains that a “mild” narrowing at ¶ 5-S1 would not necessarily require an MRI unless the plaintiff was complaining of nerve pain extending down from the spine to the lower extremities. Dkt. No. 85 at ¶ 19. According to the doctor's notes, the plaintiff did not complain of this symptom; therefore, Heidorn did not request an MRI. Id.

         Between January and September 2011, the plaintiff filed at least eleven HSU requests regarding his lower back pain. Dkt. No. 1 at 15, ¶9. He also indicates that he “repeatedly” told Heidorn, Greenwood and nurse Lori Alsum (no longer a defendant) that he “was always in constant pain.” Id. Heidorn reviewed the x-rays again on February 18, 2011, and again told the plaintiff, “Nothing was wrong it was only Arthritis.” Id. at 14, ¶2. Heidorn “repeatedly” told the plaintiff that “no type of medical treatment was available to him, and that he could not be given any type of medication, that was stronger than what he was currently receiving.” Id. at 16, ¶11. (The plaintiff reports that Heidorn gave him 800 mg. of ibuprofen and a muscle relaxer; he does not say when, and it is not clear if this is what the plaintiff means when he mentions the medication he was “currently receiving.” Id. at 14, ¶1.)

         The plaintiff asserts that when he arrived at GBCI in November 2006, he'd brought with him “all medical records/reports, pertaining to the February 2005, work accident.” Id. at 14. ¶5. He states that “[e]ach visit, ” he asked about why the HSU “could not obtain the records (medical records).” Id. at 12, ¶5. The plaintiff asserts that he asked for treatment for almost five years, and that “[e]ach time he signed a medical authorization for release forms, ” but that the HSU was unable to obtain “those records.” Id. at 15, ¶7. He explains that on April 6, 2011, he himself contacted ProCare Medical Group, and that they sent him the certified records on April 20, 2011. Id. at ¶8.[3] The plaintiff alleges, however, that “[p]er Dr. Heidorn, ” Heidorn “could not rely on the medical records that were in his possession.” Id. at 12, ¶5.

         On April 17, 2011, the plaintiff sent another HSU request about his lower back pain. Id. at 14, ¶3. Registered Nurse Jean Lutsey (not a defendant) examined the plaintiff on April 25, 2011 and reviewed his x-rays. Id. According to the plaintiff, Lutsey explained that “due to the decrease of the spine disc . . . it was pushing down on the sciatic nerve in the lower back, ” causing the pain. Id. at ¶4. She allegedly stated that Nortriptyline 50mg was “very good for nerve pain.” Id. The court has no information on whether anyone prescribed this medication to the plaintiff.

         The plaintiff alleges that his rheumatologist ordered a follow-up MRI, which revealed “evidence for Chronic Bilateral Sacroiliitis.” Dkt. No. 74 at 9. “Sacroiliitis” is an inflammation of the joints where the lower spine and pelvis connect; it can cause pain in the buttocks and lower back. (last visited January 27, 2018). As evidence, the plaintiff attached an examination report from the Mercy Medical Center's department of radiology dated March 1, 2013, signed by Timothy H. Seline, M.D., which stated, “IMPRESSION: Evidence for chronic bilateral sacroiliitis. Mild active component?” Dkt. No. 74-1 at 2.

         4. The plaintiff's eye care

         In April 2011, the plaintiff began having blurred vision, migraine headaches and sensitivity to light. Dkt. No. 1 at 4, ¶1. At that time, he “was seen for his (2) year follow-up/examination” with Richter (the optometrist) and he told Richter about his eye problems-specifically, that the blurred vision in his left eye had become worse. Id. at 5, ¶3. Richter “only changed prescription.” Id. He also told the plaintiff to file an HSU request, because “nothing was wrong except really bad migraine headaches.” Id. at ¶2. The plaintiff submitted a request on May 10, 2011. Id.

         On June 3, 2011, the plaintiff went to see Richter again about the same problems. Id. at ¶3. Richter conducted “slit lamp” and “dilated” examinations of the plaintiff's eyes. Dkt. No. 68 at ¶10. Richter placed “numerous eye drops in both eyes to examine the back of the plaintiff's eyes.” Dkt. No. 1 at 5, ¶3. Richter observed that “all structures were normal with no signs of inflammation.” Dkt. No. 68 at ¶10. The plaintiff disputes Richter's conclusion, asserting that the “slit lamp” and “dilated” examinations revealed “flares and cells, ” which he characterizes as “a sign of inflammation.” Dkt. No. 79 at ¶10.

         Richter concluded that “[n]othing” from the June 3, 2011 examinations “suggest[ed] that [the plaintiff's] migraine issues were related to an eye condition.” Dkt. No. 68 at ¶15. So he informed the plaintiff that “there was nothing he could do for migraines, because he [was] not a medical doctor.” Id. at ¶14. Richter did see at that examination, however, that the plaintiff had “light amblyopia” (“lazy eye”), and that the plaintiff “was straining the muscles in his left eye causing the right eye to work harder.” Dkt. No. 1 at 6, ¶5; Dkt. No. 68 at ¶18. Amblyopia is a condition where “the vision in one eye is reduced because the eye and the brain are not working properly together.” Dkt. No. 68 at ¶19. “Generally, there is no treatment for lazy eye in an adult.” Id. at ¶8. Richter suggested that the plaintiff see a medical doctor, and prescribed Excedrin. Dkt. No. 1 at 5, ¶4. The plaintiff alleges that “[n]o other ophthalmologist has ever stated that the Plaintiff, suffers from only light amblyopia, ” id. at 8, ¶14; the record evidence indicates that in June 2013, Dr. Pamela Dobson diagnosed the plaintiff with amblyopia, dkt. no. 83-1 at 4.

         On June 10, 2011, the plaintiff saw Heidorn about his eye issues. Dkt. No. 1 at 5, ¶4. Heidorn was unable to read Richter's handwriting and stated that he would have to call Richter. Id. The record contains no further information on whether Heidorn contacted Richter, or whether he followed-up with the plaintiff on the matter.

         The plaintiff says that he continued to take Excedrin for about two more months. Id. at 6, ¶6. Around that same time, the plaintiff saw Heidorn to discuss his “hypertension care plan.” Id. The plaintiff tried to raise his eye issues with Heidorn, but he says that he couldn't because the institution requires a $7.50 co-pay for “unrelated issues at visit, ” which he couldn't pay. Id.

         About a week later, the plaintiff's eye got worse. Id. at ¶7. On August 19 and August 25, 2011, the plaintiff saw several GBCI nurses (none of whom are defendants) regarding the deteriorating condition of his eyes. Id. at ¶¶7-8. They gave him “Ketotifen Ophthalmic Solution.” Id. at ¶8. On August 29, 2011, the plaintiff had another follow-up with Heidorn and a non-defendant nurse; Heidorn thought the eye looked clearer, and “inquired, if the Plaintiff was in fact causing damage to his eyes.” Id.

         Around September 1, 2011, the eye became “exacerbated” again, and the plaintiff was sent to see an outside ophthalmologist, Dr. Memmen (not a defendant). Id. at 7, ¶9. Dr. Memmen conducted “a series of tests, which were the same, exact, and/or similar to the ones done by Dr. Richter.” Id. Memmen, however, diagnosed the plaintiff with “anterior uveitis.” Id.

         Anterior uveitis is “an inflammatory condition of the eye(s) that is most often idiopathic[4] in nature.” Dkt. No. 68 at ¶9. At the June 3, 2011 exam, Richter had excluded this diagnosis, concluding that “[h]ad anterior uveitis been present” at that time, “there would have been current signs of inflammation.” Id. at ¶12. Richter indicates that because anterior uveitis is “a transient, inflammatory condition, the fact that it was present in September of 2011 does not mean that it was present in June of 2011.” Id. at ¶16.

         On July 27, 2012, the plaintiff saw a nurse, and complained about burning in his eyes. Dkt. No. 85 at ¶8. The nurse noted that the plaintiff was “continued on ‘Prednisone gtts, '” and that he “was told to talk to the physician about ‘liquitears, ' which [the plaintiff] had requested.” Id. The plaintiff saw Heidorn on July 31, 2012, who referred him back to Richter to discuss his eye issues. Id. at ¶9. Richter saw the plaintiff on August 16, 2012; the record contains a note from him on that date, stating “Schedule w/ staff MD., - Rec work up to find or rule out systemic reason for repeated uveitis.” Id. at ¶10; dkt. no. 71-1 at 95.

         5. The plaintiff's severe “nerve and muscle pain”

         On September 30, 2011, GBCI staff placed the plaintiff on “observation status” for self-harm. Dkt. No. 1 at 11, ¶1. The plaintiff asserts that he was in such severe nerve and muscle pain that he wanted to kill himself, “or requested that PSU staff give him anything, so that he could die.” Id. The plaintiff states that he kept telling Heidorn and the HSU staff that the pain in his “head, neck, and back” felt as if it was getting worse, that the pain made him feel as though “he ha[d] been beaten over his entire body with bats” or as if he “was in a car accident and ha[d] a concussion.” Id. at ¶2. The plaintiff says he explained that when he laid down, it felt like he was “spinning around, in a circle making himself dizzy.” Id. at ¶3. He explained that his neck was tight, and that it was hard for him to turn his head from side to side, “[o]r bring it up and down to rotate it.” Id. He complained that he always had “a numbness and tingling sensation, all over his body, ” and that it was “difficult to sit, squat, and bring his knees to his chest when doing ‘William Exercises.'”[5]Id. He says ...

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