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Lockett v. Cox

United States District Court, W.D. Wisconsin

February 27, 2018

DR. COX, J. LABELLE, and DR. MANLOVE, Defendants.



         Plaintiff 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.


         The following facts are drawn from the parties' summary judgment materials, and are undisputed unless noted otherwise.

         A. Parties

         Plaintiff 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.

         B. H. pylori infection

         On 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 Dr. Cox.

         Two 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.

         Lockett's 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.

         Lockett 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.

         Defendant 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.

         At some point before November, Lockett saw an outside provider via tele-med, and an upper endoscopy procedure, blood test, and Zantac were ordered.

         In 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.

         C. Grievance following provision of antibiotics

         Lockett filed a grievance regarding his medical care on January 20, ...

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