United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING THE DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT (DKT. NOS. 61, 65), DENYING AS
MOOT THE PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO.
88) AND DISMISSING THE CASE
PEPPER United States District Judge
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.
defendants filed motions for summary judgment on October 6,
2016. Dkt. Nos. 61, 65. The court grants those motions, and
dismisses the case.
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.,
The Plaintiff's Allegations
facts involve several different medical conditions from which
the plaintiff suffered between 2006 and 2012. The court will
describe the events in chronological order.
The plaintiff's arrival at GBCI
plaintiff arrived at GBCI in November 2006 with injuries from
a work-related accident that occurred in 2005. Dkt. No. 1 at
14, ¶1. 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.
The plaintiff's scalp pain and hair loss
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.
“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.
The plaintiff's lower back pain
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.
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.)
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. 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.
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.
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
The plaintiff's eye care
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.
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.
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.
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.
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.
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.”
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.”
uveitis is “an inflammatory condition of the eye(s)
that is most often idiopathic 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.
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.
The plaintiff's severe “nerve and muscle
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.'”Id. He says ...