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Blake v. Warner

United States District Court, W.D. Wisconsin

June 20, 2018

CHRISTOPHER BLAKE, Plaintiff,
v.
CANDACE WARNER, TONI JOHNSON and ANGELA STETTER, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB, DISTRICT JUDGE

         Pro se plaintiff and prisoner Christopher Blake is proceeding on claims that defendants Candace Warner, Toni Johnson and Angela Stetter violated his rights under the Eighth Amendment by delaying his access to medication needed to treat his Churg-Strauss syndrome. Now before the court are the parties' cross motions for summary judgment, dkt. ##18, 24, as well as plaintiff's motion to amend his complaint to add claims against a new defendant, Jamie Barker. Dkt. #31. Because I conclude that plaintiff has failed to show that any of the defendants acted with deliberate indifference to his serious medical needs, I am granting defendants' motion and denying plaintiff's motion for summary judgment. Additionally, I am denying plaintiff's motion for leave to amend his complaint because the request comes too late in the case and because the record does not support a deliberate indifference claim against Barker.

         From the parties' proposed findings of fact and the record, I find the following facts to be material and undisputed unless otherwise noted.

         UNDISPUTED FACTS

         A. The Parties and Background

         At all times relevant to this case, plaintiff Christopher Blake was an inmate at New Lisbon Correctional Institution in New Lisbon, Wisconsin, where all defendants worked. Candace Warner was New Lisbon's Health Services manager at the relevant time. Toni Johnson and Angela Stetter were registered nurses who worked in the Health Services unit.

         In January 2013, plaintiff was given a diagnosis of Churg-Strauss syndrome at the University of Wisconsin hospital in Madison, Wisconsin. Churg-Strauss syndrome is a rare and incurable disorder marked by blood vessel inflammation. It can cause a variety of symptoms, some of which are mild and others that may be severe or life-threatening. The most common symptom is asthma. After plaintiff received his diagnosis, he was sent to the Dodge Correctional infirmary for 30 days to recover. On February 1, 2012, plaintiff was transferred to New Lisbon. When he arrived, the Health Services unit was informed of the seriousness of plaintiff's Churg-Strauss syndrome and the medications he needed to prevent inflammations.

         In December 2013, plaintiff had a follow-up appointment at the University of Wisconsin Rheumatology Clinic. At that time, plaintiff was taking 24 different medications, including montelukast, which is an anti-inflammatory medication that can treat allergies and asthma. Plaintiff was also taking prednisone, a steroid, and mycophenolate, an immunosuppressive. The mycophenolate was helping plaintiff, but he had “suboptimal” control of his severe asthma symptoms and his asthma had been recently exacerbated by bronchitis, which had been treated with azithromycin, an antibiotic, and an increase of the prednisone. The consulting UW provider recommended that plaintiff be scheduled for a follow-up appointment with his allergist and that he return for a follow-up in the Rheumatology Clinic in six months.

         B. Plaintiff Receives Prescription for Clindamycin

         On February 5, 2014, plaintiff's provider at New Lisbon sent him to the Black River Falls Memorial Hospital emergency room for inflammation, coughing, difficulty breathing, yellow phlegm, cold chills and back pain from coughing. Plaintiff underwent blood tests and a chest xray. The treating emergency room doctor recommended increasing plaintiff's prednisone. He also recommended that plaintiff complete a 10-day course of clindamycin, an antibiotic, to help with his inflammation. When plaintiff returned to New Lisbon, the on-call physician approved the emergency room doctor's recommendations and a nurse transcribed the order at around 6:00 p.m. on February 5, 2014.

         The transcribing nurse, Jamie Barker, dispensed to plaintiff a 5-day supply of clindamycin from the prison's medication room. She told plaintiff the remaining 5 days would be ordered. Barker noted in plaintiff's records that the 5-day supply had been issued by writing “dispensed 30 tabs of 150mg” in the left hand column next to the prescriber's order. Barker also filled out a patient medication profile form showing that the thirty 150- milligram tablets had been issued. Barker reviewed the new medication orders with plaintiff and noted that plaintiff would be seen by a nurse practitioner at the prison the next day. However, Barker failed to send an order for the remaining 5-day supply to the pharmacy. She also did not enter any note in the prescriber's orders stating that order had been sent to the pharmacy and she did not make a separate entry in the patient medication profile stating that a request for the remainder of the prescription had been sent to the pharmacy. Such an entry would usually be made by stating that the medication was “TBI” meaning “to be issued” to the patient when received from the pharmacy. Because Barker did not send the order to the pharmacy, the medication was not listed in the “TBI book, ” which is a log of prescription requests that are pending at the pharmacy.

         The next day, February 6, plaintiff was seen in person by a nurse practitioner and had a “telemed” appointment with his allergist. The allergist recommended slowly tapering the prednisone dose; adding one puff daily of tiotropium (Spiriva), which is a bronchodilator; completing the course of clindamycin as well as a course of azithromycin; and being scheduled for a follow-up in 4 months. These recommendations were transcribed by the physician at New Lisbon later on February 6, at which time it was noted that the Spiriva, which requires authorization from Bureau of Health Services administrators, had been approved and ordered from the pharmacy.

         On February 11, 2014, plaintiff had still not received the next 5-day supply of clindamycin, so he submitted a medical refill form for it. Defendant Johnson received plaintiff's refill form the next day, February 12. Johnson returned the refill request to plaintiff on February 12 with a box checked stating “Can't be filled. Submit a HSR [Health Services Request form] if appointment wanted” and a handwritten note stating “No current order.”

         Defendant Johnson does not recall reviewing the refill request in 2014, but her training would have been to review the medication profile, TBI book and prescriber's orders. Because Nurse Barker, did not send an order for the second 5-day supply to the pharmacy, after transcribing the original order for clindamycin, the TBI book had no entry showing pending order for clindamycin for plaintiff. For the same reason, the medication profile did not have an entry indicating that the second 5-day supply was “TBI, ” which would have been a clear indicator to Johnson that plaintiff had a pending order. However, a careful reading of the medication profile would have shown both that there was an order for 10 days of ...


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