Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cose v. Gorske

United States District Court, W.D. Wisconsin

February 12, 2018

ROGER ALLEN COSE, Plaintiff,
v.
MARY GORSKE and CHARLES LARSON, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON, DISTRICT JUDGE.

         Pro se plaintiff and prisoner Roger Allen Cose is proceeding on claims that defendants Charles Larson and Mary Gorske failed to provide adequate treatment for his fractured fibula, in violation of the Eighth Amendment. Several motions are before the court: (1) defendants' motion for summary judgment, Dkt. 29; (2) Cose's motion for summary judgment, Dkt. 37; (3) Cose's motion for sanctions, Dkt. 49; and (4) Cose's motion “to dismiss” defendants' summary judgment motion, Dkt. 50, which is more accurately described as another motion for sanctions.

         I will deny Cose's motions for sanctions because he has not shown that defendants engaged in any misconduct. I will grant defendants' summary judgment motion and deny Cose's summary judgment motion because no reasonable jury could find in Cose's favor on any of his claims. Although Cose experienced delays in receiving some treatment, he has not adduced any evidence that defendants were consciously refusing to provide care, which is what he must do to prove an Eighth Amendment violation.

         UNDISPUTED FACTS

         Except where noted, the following facts are undisputed.

         In 1999, Cose was incarcerated in the Wisconsin Department of Corrections in the Dodge Correctional Institution, which is the intake facility. The medical intake form, which Cose signed, states that Cose fractured his left tibia and fibula in a motorcycle accident in 1976 and that Cose had suffered from a “leg discrepancy” since then. Dkt. 52, ¶ 5. The tibia and fibula are both located in the lower leg.

         Medical staff took x-rays of Cose's ankle, among other things. The radiology report included the following information:

LEFT ANKLE:
Two views of the left ankle reveal old tibial and fibular fractures. There is an orthopedic side plate and screw traversing the distal fibula and a single screw traversing the medial malleolus. There are marked posttraumatic degenerative changes involving the ankle joint. No definite new fracture is seen.
* * *
LEFT LOWER LEG:
Two views of the left lower leg again reveal the orthopedic side plate and screw traversing the distal tibia with the old tibial and fibular fractures noted. No acute fracture seen.

         In 2003, Cose was transferred to the Waupun Correctional Institution, which is in Waupun, Wisconsin. On February 4, 2003, Cose had an appointment with defendant Gorske, a nurse practitioner employed at the Waupun prison. Cose and Gorske discussed Cose's injury to his lower left leg, among other medical conditions. She informed him that she would request an orthopedic referral. She also renewed prescriptions for ibuprofen and amitriptyline for chronic pain.

         On September 9, 2003, Cose wrote in a health service request that he was still waiting to see a specialist. The following day, Gorske wrote that she had not received a response from her referral request, but she would submit a new one. Later the same day, Gorske submitted a request for an orthopedic referral to Ellen O'Brien.[1] On September 19, 2003, the referral was approved.

         On October 13, 2003, O'Brien and defendant Larson, a physician at the prison, requested an x-ray of Cose's ankle because of continued swelling. Larson's name was included on the referral so that a health-care provider at the prison would receive the radiology report. On October 17, 2003, Cose had an appointment with O'Brien. After an examination, she recommended that Cose see an orthotist for a shoe modification to address the discrepancy in the length of his legs. She also requested a follow-up appointment after Cose was fitted for the shoe lift.

         Department of Corrections staff approved O'Brien's recommendation for a referral to an orthotist. Larson submitted a request for a referral for a follow-up appointment with O'Brien. That referral was approved, but Cose never received another appointment with O'Brien. Larson does not know why.

         On October 22, 2003, medical staff took an x-ray of Cose's left ankle. The radiology report included the following information:

LEFT ANKLE:

         Three views left ankle are obtained and compared to previous examination 1999. The orthopedic side plate and screw transverse in the distal fibular shaft is again noted unchanged. The same orthopedic screw transverse in the medial malleolus is also noted unchanged. The overriding fracture at the distal fibular is again noted and appear[s] unchanged, as well. There is moderate narrowing involving the ankle mortise consistent with a posttraumatic degenerative change, unchanged. No acute fracture o[r] dislocation is seen.

         Larson did not review the x-rays but he reviewed and initialed the radiology report. He did not inform Cose of the results because he did not see any changes in Cose's condition and because Cose was already under the care of an orthopedist.

         On November 3, 2003, an orthotist evaluated Cose for a shoe lift. In December 2003, Cose received the shoe lift.

         Larson transferred to another prison in December 2006. Gorske transferred to another prison in April 2010. Cose was transferred to the Stanley Correctional Institution in 2011.

         In 2013, medical staff at the Stanley prison requested new x-rays. A radiology report included the following information:

[T]here is an overlapping fracture of the fibula, and osteoarthritis within the ankle. I reviewed the patient's old x-rays and in 1999 there is evidence of tibial and fibular fractures. Another x-ray of 10/2003 reveals an unchanged plate and screw and an overriding fracture at the distal fibula. We are unable to find if the degree of override has increased. The patient, however, has had an increase in his discomfort, mostly noted over the last three years.

Dkt. 38-3. The same nurse practitioner who wrote the radiology report later informed Cose that “[t]he x-ray report from 10/2003 states there is an overriding fracture so that means the this type of break has been there since at least then. Nonetheless, we will request orthopedic consult.” Dkt. 15-13. In April 2013, Cose received a cast on his left ankle.

         MOTIONS FOR SANCTIONS

         Cose seeks sanctions against defendants on a number of grounds: (1) defendants misstated Cose's inmate number in their summary judgment materials; (2) one of defendants' summary judgment exhibits is numbered differently from the same exhibit defendants provided Cose in discovery; (3) Larson lied about his place of employment in his declaration; (4) defendants sent Cose documents related to another prisoner's lawsuit; (5) defendants misstated the date Cose was transferred to the Waupun Correctional Institution; (6) in 2013, prison staff allegedly denied Cose's requests to review his 1999 and 2003 x-rays; and (7) defendants denied Cose's discovery request to review the same x-rays. None of these contentions have any merit.

         Inaccurate inmate number.

         Defendants acknowledge that they misstated Cose's inmate number in some of their summary judgment materials. But Cose's number is irrelevant to his claims, so the mistake was harmless. Cose cites no evidence that defendants deliberately misstated his inmate number or were trying to prejudice him in anyway. He says that the mistake is evidence that his case “is being confused or intertwined with someone else's case, ” Dkt. 49, at 2, but he does not identify a single document or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.