United States District Court, W.D. Wisconsin
Harry G. Schmidt, JR. Plaintiff,
Nancy Bowens and Christine Fowler, Defendants.
OPINION AND ORDER
STEPHEN L. CROCKER Magistrate Judge.
plaintiff Harry Schmidt, who is incarcerated at Oshkosh
Correctional Institution (“OCI”), is proceeding
on an Eighth Amendment claim that defendants Nancy Bowens and
Christine Fowler were deliberately indifferent to his serious
medical needs. Specifically, Schmidt alleges that Bowens
denied him access to a continuous positive airway pressure
(CPAP) machine for his breathing problems and that Bowens and
Fowler failed to provide him with adequate treatment for his
back pain. Before the court is defendants' motion for
summary judgment. Dkt. 81. I am granting the motion and
entering summary judgment in favor of defendants because
Schmidt has failed to produce evidence from which a
reasonable jury could conclude that either Bowens or Fowler
was deliberately indifferent to Schmidt's breathing
problems or back problems.
that the following facts are material and not subject to
genuine dispute, unless otherwise indicated:
Schmidt is an inmate at Oshkosh Correctional Institution.
When Schmidt was transferred to OCI from another institution
in January 2015, he was 24 years old and had been diagnosed
with several psychiatric disorders, chronic headaches and
gastroesophageal reflux disease (GERD). Schmidt did not have
sleep apnea or chronic back pain at that time.
Nancy Bowens has been employed by the Wisconsin Department of
Corrections as a Licensed Nurse Practitioner in OCI's
Health Services Unit since 2001. She has been Schmidt's
primary healthcare provider since January 2015.
Christine Fowler was employed at OCI as a “Limited Term
Employee Nurse Clinician 2 - Weekend” from October 7,
2013 to August 8, 2015.
April 30, 2015, Schmidt was evaluated by nursing staff at
OCI. His main complaint was GERD, but Schmidt also complained
of difficulties sleeping and reported that he needed a fan
blowing on him and needed a “bed wedge” to help
him sleep. (A bed wedge is a device that helps with snoring
and GERD symptoms.) Schmidt was referred to an advanced care
provider and was told that an appointment would be scheduled
in two weeks.
19, 2015, Schmidt submitted a health service request, stating
that he had back pain from falling out of bed twice the night
before. He was seen and evaluated by Nurse Fowler, who noted
that Schmidt had no apparent abnormalities, was alert and
oriented, was not visibly injured, had a strong and steady
gait, had full range of motion and was able to bend over with
his fingers six inches from the ground. Fowler treated
Schmidt's back pain with a muscle rub and acetaminophen.
Although Schmidt asked for an x-ray and to see a doctor,
Fowler did not believe that any additional treatment was
necessary and did not refer Schmidt to an advanced care
provider. Fowler advised Schmidt to submit a health services
request if his symptoms did not improve, but she is not aware
of Schmidt submitting any such request. Bowens was not
involved in this initial treatment of Schmidt's back
6, 2015, Schmidt submitted a health services request asking
when he was going to be seen about a bed wedge and a CPAP
machine. Sleep apnea is a potentially serious sleep disorder
involving the repeated stopping and starting of an
individual's breathing, and a common treatment for sleep
apnea is CPAP therapy, by which a ventilation device-a CPAP
machine-is used to keep the individual's airway
continuously open through the application of air pressure.
24, 2015, Bowens saw Schmidt and ordered a bed wedge for him.
Bowens also adjusted Schmidt's headache medication and
told Schmidt to let health services staff know whether these
interventions relieved his symptoms. The clinical note for
this appointment does not state that Schmidt talked about a
CPAP machine. Schmidt did not follow-up with health services
staff about the effectiveness of the bed wedge.
next saw Schmidt on July 15, 2015 for headaches. At this
appointment Schmidt expressed his interest in a CPAP machine
and reported that he had undergone a sleep study at Mercy
Medical Center in 2011. Bowens wrote an order for staff to
obtain the study results. On July 23, 2015, Bowens directed
staff to notify Schmidt that his 2011 sleep apnea results
were “normal, ” meaning that they were negative
for sleep apnea. Bowens believes that the “Problem
List” in Schmidt's medical chart was updated around
this time to indicate that he had undergone a sleep study in
2011 that was negative for sleep apnea. Although the study
results state that plaintiff had difficulty falling and
staying asleep during the testing, they also make clear that
“[t]he patient does not have sleep apnea.” Dkt.
84, exh. 1 at 12. There are no notations in Schmidt's
medical chart showing that he complained to Bowens about
waking up gasping for breath or being short of breath-the
symptoms that prompted the sleep study in 2011-or about any
other symptoms of sleep apnea.