United States District Court, W.D. Wisconsin
D. PETERSON, DISTRICT JUDGE.
Jeremy Lockett, a prisoner incarcerated at the Wisconsin
Secure Program Facility, brings this lawsuit alleging that
defendant prison officials failed to properly treat his H.
pylori bacterial infection and other gastrointestinal
problems. The parties have filed dueling motions for summary
judgment. After considering the parties' submissions, I
will grant defendants' motion regarding Lockett's
claims against defendants James LaBelle and Jeffrey Manlove.
But I conclude that summary judgment is inappropriate for
either party regarding Lockett's claim that defendant
Burton Cox failed to provide him with antibiotics after Cox
concluded that Lockett had an H. pylori infection. I will
grant Lockett's motion for recruitment of counsel to
assist him with his claim at trial.
following facts are drawn from the parties' summary
judgment materials, and are undisputed unless noted
Jeremy Lockett is an inmate at the Wisconsin Secure Program
Facility (WSPF), a maximum security prison operated by the
Wisconsin Department of Corrections (DOC) in Boscobel,
Wisconsin. Defendant Burton Cox, D.O., was a physician at
WSPF until late July 2015. Defendant James LaBelle is a
regional nursing coordinator responsible for reviewing
health-care-related grievances filed by inmates at Wisconsin
prisons. Defendant Jeffrey Manlove is a physician at Waupun
Correctional Institution who occasionally provided on-call
services at other prisons, including WSPF.
H. pylori infection
January 22, 2015, Lockett submitted a health service request
form (HSR) stating that his stomach had been hurting for a
week and a half, and he had been vomiting. Lockett was seen
the next day by a Nurse Anderson, who followed nursing
protocols for nausea/vomiting and abdominal pain and provided
Pepto-Bismol tablets for one month. Anderson advised Lockett
to avoid food that aggravated his symptoms. On January 24,
2015, Lockett submitted another HSR stating that the
medication he was given for his stomach was not working.
Nurse Anderson forwarded Lockett's request to defendant
days later, Cox saw Lockett and prescribed omeprazole, a
proton-pump inhibitor used to treat gastroesophageal reflux
disease. On February 5, 2015, Cox saw Lockett again and
increased the omeprazole prescription and ordered blood tests
including a test for H. pylori infection. H. pylori infection
occurs when a type of bacteria called Helicobacter pylori
infects the stomach. It can cause peptic ulcers and other
signs and symptoms, including abdominal pain, nausea, and
unintentional weight loss.
test results came back positive for H. pylori. Cox reviewed
the results on February 12, 2015. Cox says that his practice
when a patient tests positive for H. pylori infection is to
order a course of two antibiotics to treat the infection,
then retest the patient after four weeks to ensure the
treatment was effective. But that did not happen here. Cox
says that he does not know why antibiotics were not ordered,
but he says that the “oversight or omission by him or
his nursing staff was completely inadvertent.” Cox
suggests possible reasons for this mistake: his failure to
place the lab report in the designated pile, nursing
staff's failure to properly process the lab report, or
his failure to follow-up by entering a prescriber's order
in the chart.
says that he “continued to complaint to HSU [the Health
Services Unit] explaining that he is in pain (Abdominal) and
can't sleep and continue to throw up and the HSU always
says that they are going to refer Lockett to the
Doctor.” Dkt. 21, at 1. Defendants say that Lockett did
not file another HSR about the problem for months, except for
a March request to see the results of the blood test. Lockett
received updated prescriptions for Loratadine (for allergies)
in May and Folic Acid (for anemia) and Hydroxyurea (for
sickle cell) in early July, but these prescriptions did not
require Cox to review Lockett's file.
Cox stopped working at WSPF in late July 2015. Although he
filled in on an as-needed basis after his departure as the
full-time physician, he no longer was responsible for
directing patient care with respect to WSPF inmates. There is
no indication Dr. Cox treated Lockett while filling in at
WSPF after July 2015.
point before November, Lockett saw an outside provider via
tele-med, and an upper endoscopy procedure, blood test, and
Zantac were ordered.
early November 2015, Lockett was sent out of the prison to
the emergency room for sickle-cell treatment. An outside
provider started Lockett on antibiotics for H. pylori.
Lockett saw the outside provider again in November 2015 and
January 2016. It appears that one of the two antibiotics
Lockett was prescribed was changed in January. He also
received acidophilus with pectin in an effort to restore his
normal gastric flora.
Grievance following provision of antibiotics
filed a grievance regarding his medical care on January 20,