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Luska v. Syed

United States District Court, E.D. Wisconsin

March 29, 2018

CORY LEE LUSKA, Plaintiff,
DR. SALAM SYED, et al., Defendants.


          William C. Griesbach, Chief Judge

         Plaintiff Cory Lee Luska, who is representing himself, filed this action under 42 U.S.C. § 1983, alleging that defendants Dr. Salam Syed, Jamie Gohde, Marci Peloquin, and Jonathan Bussie were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. Currently before the court is the defendants' motion for summary judgment. For the following reasons, the defendants' motion will be granted and the case will be dismissed.


         At all times relevant to this action, Luska was housed at Columbia Correctional Institution. On January 15, 2017, Luska sought medical care for spider bites or a possible infection on his buttocks. A Health Services Unit (HSU) nurse saw Luska for these concerns on January 19, 2017. At that appointment, the nurse ordered a culture of Luska's right buttock to check for infection. She also scheduled Luska for a follow-up appointment with a nurse practitioner, gave him a course of antibiotics and Ibuprofen, and advised him to use ice for pain management. This is the standard practice for treating a methicillin-resistant staphylococcus aureus (MRSA) infection. Luska presented for the follow-up appointment on January 23, 2017. The nurse noted his wound was red and warm, but there was no draining present. The following day, an HSU nurse learned that Luska's culture tested positive for MRSA. But because Luska was already being treated for MRSA, no further intervention or treatment was required on January 24, 2017. Luska returned to HSU for an appointment on January 30, 2017. His wound had healed, and he denied any complaints.

         Luska saw Dr. Syed on February 17, 2017, complaining of an infection on his right leg. Because his previous wound had tested positive for MRSA, Dr. Syed treated this wound as a MRSA infection, according to standard practice. That is, he placed Luska on a course of antibiotics, drained and cleaned the wound, and ordered frequent evaluations in HSU for dressing changes and wound care. Luska received Bactrim to treat the wound on his buttocks and Clindamycin for the wound on his leg. Both antibiotics are used to treat MRSA. Dr. Syed reassessed Luska's infection during his wound care appointments on February 20, 21, 22, 23, and 27. The infection on Luska's buttocks responded well to the 10-day course of antibiotics and did not form an abscess that required incision and drainage. The wound on his leg, however, developed an abscess which required incision and drainage. As a result, this infection required a longer course of antibiotic treatment.

         On February 9, 2017, Luska rolled his ankle playing basketball. That same day, a nurse evaluated the ankle and ordered an x-ray as well as ice, Ibuprofen, acetaminophen, an Ace bandage, and crutches. Dr. Syed also assessed Luska's ankle injury on February 9th and diagnosed Luska with a common ankle sprain. The x-ray did not reveal evidence of a fracture or dislocation. There is no evidence that Luska was prescribed a walking boot.

         Between February 9, 2017 and February 13, 2017, Luska was placed on the “will call” pass list to see HSU. Each housing unit has a list of individuals who have will call passes for the day. The appointments for these individuals vary in time and are set by HSU. Emergency situations must take precedent over the non-urgent appointments scheduled for will call that day. Although security staff have no control over the will call lists and the priority of inmate complaints, staff are required to ensure inmates are ready when HSU calls them for their appointments. On February 13, 2017, Peloquin reported to Bussie that Luska approached her in the security bubble and yelled that he should receive an immediate HSU appointment, rather than wait on the will call list. During rounds, Bussie and Captain Schultz spoke with Luska about his ankle concerns and observed that Luska's ankle was swollen and bruised. Bussie then contacted HSU to determine the results of Luska's x-ray. HSU informed Bussie that Luska's foot was not broken. Based on his observations and HSU's input, it was determined that Luska did not present with an emergency medical situation, and he remained on the will call list for the next available HSU appointment.

         Later in the day on February 13, 2017, staff informed Bussie that Luska was again acting out against staff. The on-duty lieutenant placed Luska in Temporary Lock-Up (TLU) status because Luska did not follow directives to return to his bunk and cooperate with officers. Luska was not permitted to keep his crutches while in TLU. Neither Bussie or Peloquin were involved in placing Luska into TLU status. On February 23, 2017, Bussie completed a conduct report that charged Luska with violating Wis. Admin. Code §§ DOC 303.33 “Disruptive Conduct” and DOC 303.28 “Disobeying Orders.” Luska received 90 days in disciplinary separation for this conduct report, beginning February 24, 2017.

         Luska did not submit a Health Services Request (HSR) about his ankle until March 7, 2017. A nurse responded to the request the following day, and advised Luska he could discuss any concerns he had about his ankle at his upcoming doctor's appointment scheduled for that week. Luska presented for an appointment with Dr. Syed on March 8, 2017 to address his Hepatitis C. Luska did not complain about ankle pain or injury at that appointment.

         Luska submitted HSRs with complaints of ankle pain on March 27, April 5, and April 11. A nurse practitioner saw Luska regarding his concerns on April 17, 2017. The nurse practitioner noted a moderate amount of swelling in the ankle and discussed treatment options with Luska. That same day, Luska was scheduled to see an advanced care provider. Luska reported to APNP Lacey Curtis that he experienced pain when he climbs, jumps, or puts all of his weight on his ankle. She prescribed physical therapy, an Ace bandage, ice, and a low bunk restriction. She also ordered Luska to follow up with HSU as needed or if his physical therapy was unsuccessful. One month after his appointment with APNP Curtis, Luska transferred from Columbia to John C. Burke Correctional. During his admissions health assessment, Luska reported no medical concerns.

         As HSU manager, Nurse Gohde provides overall administrative support and general supervision for HSU. Although Gohde occasionally responds to HSRs, she did not respond to any of the fifteen HSRs Luska submitted between January 15, 2017 and April 30, 2017.


         Summary judgment is appropriate when the moving party shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). All reasonable inferences are construed in favor of the nonmoving party. Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party opposing the motion for summary judgment must “submit evidentiary materials that set forth specific facts showing that there is a genuine issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (citations omitted). “[A] factual dispute is ‘genuine' for summary judgment purposes only when there is ‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'” Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “[A] ‘metaphysical doubt' regarding the existence of a genuine fact issue is not enough to stave off summary judgment, and ‘the nonmovant fails to demonstrate a genuine issue for trial where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.'” Id. (quoting Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir. 1996)). ...

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