United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE.
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.
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.
where noted, the following facts are undisputed.
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
staff took x-rays of Cose's ankle, among other things.
The radiology report included the following information:
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.
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
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. On September 19, 2003, the
referral was approved.
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.
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.
October 22, 2003, medical staff took an x-ray of Cose's
left ankle. The radiology report included the following
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.
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
November 3, 2003, an orthotist evaluated Cose for a shoe
lift. In December 2003, Cose received the shoe lift.
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.
2013, medical staff at the Stanley prison requested new
x-rays. A radiology report included the following
[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
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.
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.
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 ...