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Carter v. Griggs

United States District Court, W.D. Wisconsin

April 20, 2018

CARLA GRIGGS, Defendant.

          OPINION & ORDER


         Pro se plaintiff Johnson Carter is proceeding in this civil lawsuit on Eighth Amendment and Wisconsin negligence claims against defendant Carla Griggs for her alleged failure to treat Carter's collarbone and shoulder injury while he was incarcerated at Jackson Correctional Institution (“JCI”). Griggs has filed a motion for summary judgment. (Dkt. #57.) For the following reasons, that motion will be denied, the trial date in this matter of May 21, 2018, will be struck and the court will recruit counsel to represent the plaintiff.


         Plaintiff Johnson Carter is no longer incarcerated, but was incarcerated at JCI during the relevant time period. Defendant Carla Griggs was employed by the Wisconsin Department of Corrections (“DOC”) as a registered nurse at JCI.

         I. Carter's basketball injury and treatment

         On May 7, 2013, an officer called the HSU to report that Carter had fallen and hurt himself on the recreation field, and to ask if Carter could be seen. Carter arrived in the HSU a few minutes later where Nurse Griggs examined him. The parties offer very different versions of Carter's examination that day. According to Griggs' declaration and her contemporaneous notes, when he arrived in HSU, Carter was not in acute distress; rather, he walked in. (Griggs Decl. (dkt. #61); Ex. 1000 (dkt. #61-1) at 13-14.) Carter then reported that he had fallen on blacktop playing basketball, landing on his right upper arm and palms. While Carter complained about right shoulder pain, reporting a 5 out of 10 on the pain scale, Griggs noted: (1) that Carter was able to remove his shirt independently for an exam; (2) his right arm and shoulder had full range of motion; (3) he showed equal grip strength; and (4) he appeared to have no deformities or abnormalities in his shoulder or joint.

         At that first visit, Griggs diagnosed Carter with an “alteration in comfort, ” meaning that he was having discomfort, and an “alteration in skin integrity, ” meaning that he had abrasions on his hands from the fall. Based on this diagnosis, Griggs claims that she cleansed his hands, applied antibiotic ointment and gave him a tetanus vaccination, but did not give him a work restriction because she saw no reason to do so. While Griggs concluded that Carter should be able to deal with the discomfort, she still recommended treatment with ice and ibuprofen, and she told Carter to submit a Health Service Request (“HSR”) if he did not see any improvement.

         Griggs believed that her diagnosis and treatment aligned with the guidance given by the nursing Musculoskeletal Protocol. While Griggs agrees the Protocol would require referral to a medical provider for same-day evaluation if the patient presents with limitations in range of motion, severe pain and deformity, she reports not observing any of those symptoms during Carter's exam.

         In contrast, Carter's version of the parties' first encounter is drawn only from statements in his affidavits. (Carter decl. (dkt. #66).) To begin, Carter avers that his fall caused a compound fracture of his collarbone, and when he arrived at the HSU, he was bleeding down his shoulder where the bone was sticking out. Carter also represents that he was holding his right arm to keep it from moving because he was in so much pain, and that he was bent over. Carter further recalls telling Griggs that he had heard a “pop, ” but that Griggs did not examine his bone. Carter further maintains that he never removed his shirt, because he was unable to do so.

         At that point, Carter further claims that he asked to go to the Black River Falls Hospital, but that Griggs refused. Instead, Griggs told him that there was nothing they could do for a collarbone injury, and that she specifically said, “You are the one who has been contacting Senator Lena Taylor on us. There is nothing we can do for you. You will just have to let it grow back like that.” (Id. at 2.) Griggs denies each of those statements. She avers instead that while Carter complained about his shoulder, he did not mention anything about his collarbone. Additionally, Griggs does not recall Carter asking to be seen by a physician on an emergency basis, stating that if Carter had made such a request, she would have notified a physician to make that determination.

         II. Carter's subsequent HSR's and HSU visits

         After Carter left the HSU, there is no dispute he submitted an HSR that same day, asking for a work restriction because he was unable to lift his arm. The next day, May 8, Griggs denied his request, citing their conversation the day before in which Griggs told Carter that he did not need the restriction. In particular, Griggs explains in her affidavit that a work restriction was unnecessary because Carter had not reported being unable to lift his arm.

         Carter submitted another HSR on May 16, nine days after his injury, asking when his next doctor's appointment was scheduled and requesting additional pain pills. He also stated in the request that the ibuprofen was giving him pain in the left side of his chest and did not work well. The next day, another nurse, Georgia Kostohryz responded to Carter's HSR by issuing him acetaminophen. Griggs avers that she never received this request.

         On May 29, now some 22 days after injury, Carter sent another HSR, asking when he would been seen by a physician about his cholesterol and right shoulder pain. He also asked for more acetaminophen. Griggs responded to the HSR on May 30, noting that Carter was rescheduled to see a doctor the next week and refilling his acetaminophen prescription. She did not follow up with him about his shoulder pain at that time.

         On June 7, September 3, and October 1 of 2013, JCI nursing staff saw Carter. The records of those visits do not include a note that Carter complained about shoulder pain or an inability to perform activities of daily living. Again, Carter disputes this, averring that he mentioned right shoulder pain during ...

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