United States District Court, W.D. Wisconsin
JOHN L. DYE, JR., Plaintiff,
ERIC KOEHLER, CARLO GAANAN, LOYDA LORIA, and MICHELE ANDRADE, Defendants.
OPINION & ORDER
D. PETERSON District Judge.
John Dye, a prisoner incarcerated at the Waupun Correctional
Institution, brings Eighth Amendment medical care and First
Amendment retaliation claims against defendant prison
officials for failing to adequately address his severe neck
pain and canceling a medication used to treat his mental
illness. Dye says that defendant doctors Loyda Loria and
Carlo Gaanan persisted in giving him ineffective pain
medication for his neck, defendant Dr. Michele Andrade abused
her authority as the doctor coordinating his care by failing
to treat or refer him for treatment for his neck pain,
defendant therapist “Eric” cut his physical
therapy short for no reason, and that Andrade canceled his
psychotropic medication in retaliation for him bringing this
lawsuit against her.
parties have filed dueling motions for summary judgment.
After considering the parties' submissions, I conclude
that Dye has failed to show that any of the defendants
violated his constitutional rights, so I will grant
defendants' motion for summary judgment, deny Dye's
motion, and dismiss the case.
following facts are drawn from the parties' summary
judgment materials and are undisputed unless noted otherwise.
to his previous case in this court, Dye v. Klemz,
No. 13-cv-284-jdp, 2018 WL 502737, at *2 (W.D. Wis. Jan. 22,
2018), Dye's summary judgment materials do not fully
comply with this court's procedures. But given his status
as a pro se litigant, I will excuse minor, technical defects
in his materials. Here, Dye did not submit his own proposed
findings of fact, and his responses are often conclusory
statements disputing defendants' proposed findings
without offering his own version of events explaining why he
disputes a particular finding. Nor does he submit a
declaration stating under penalty of perjury his own version
of events. So much of defendants' version is undisputed.
But where the summary judgment exhibits, mostly medical
records or internal grievances, contain statements by Dye
recounting the events in question, I will consider those
statements to be his version of events.
January 2013 to February 2014, Dye was an inmate at the
Wisconsin Resource Center (WRC). At WRC, a mental-health
treatment facility, a prisoner is assigned a psychiatrist to
act as his “primary doctor to provide general medical
and psychiatric care as a part of a multidisciplinary
treatment team.” Dkt. 58, at 7. Defendants Carlo Gaanan
and Loyda Loria (general-practice physicians), Eric Koehler
(a physical therapist), and Michele Andrade (a psychiatrist)
were all employees at WRC for at least part of the events in
question. Andrade later worked at the Waupun Correctional
first sought treatment for his neck pain after he was
transferred to WRC in January 2013. On January 28, Dye was
seen by defendant Dr. Gaanan. Gaanan examined him and noted
“mild tenderness” and “mild pain on motion,
but no limitation of motion.” He ordered an x-ray and a
follow-up appointment, and prescribed capsaicin cream, a
topical medication used to treat pain. Gaanan also prescribed
Relafen 500 mg, a nonsteroidal anti-inflammatory medication.
The radiologist found “minimal to mild degenerative
changes . . . as evidenced by mild osteophytic
spurring.” Dkt. 53-1, at 45.
February 2013, Dye wrote two health service requests (HSR)
complaining of neck pain. Nurses initially responded by
telling him to take his pain medication. On March 5, Gaanan
ordered an increase in the dosage of Dye's Relafen from
500 mg to 1000 mg. Dye states that the main purpose of the
March 5 visit was his thumb problems, not his neck.
April 18, Dye was seen by defendant psychiatrist Andrade.
Andrade reported that Dye told her that “his
medications ‘are doing okay.'” Dye disputes
this. Andrade reviewed Dye's medical chart and noted that
“he is actually being followed by Dr. Gaanan for his
pain control and so we'll defer to Dr. Gaanan regarding
those issues.” Id. at 76.
8, Dye wrote another HSR: he sought to be put on a pain patch
instead of the capsaicin cream. After consulting with Gaanan,
the nurse stated that no medication changes would be made and
that Dye had already been seen numerous times for the same
21, Dye was again seen by Andrade. Andrade characterized
Dye's demeanor as “irritable, ”
“entitled, ” and “slightly
oppositional.” Id. at 75. Dye complained about
neck pain, but Andrade reported that he did not appear to be
in acute pain. Andrade referred Dye to a general practitioner
for follow up on pain treatment. The next day, Dye was seen
by defendant Dr. Loria, who reviewed Dye's history of
neck pain and noted the minor degenerative changes shown on
the previous x-ray. Loria reported that Dye was not taking
the Relafen as often as prescribed, but because Dye said that
it was not working, Loria discontinued it and replaced it
with naproxen 500 mg. Loria also referred Dye to the physical
therapist for neck exercises, and he told Dye to fill out
another request if there was no improvement in his condition.
saw Dye again on June 25 for another follow up. Andrade says
that Dye complained of severe back pain but not neck pain.
Dye disputes this, although he does not explain which part he
disputes. The parties also dispute what Dye said about his
pain treatment. Andrade says that Dye told her that he had
not been seen by anybody for his pain, even though the
medical records showed that he had been seen by Loria a month
prior. Dye says that he complained that his pain treatment
was inadequate. Andrade says that she told Dye that he always
seemed angry, and his response was “‘what do you
come up with that' in a very angry, demeaning tone,
” and “I have a right to be angry.”
Id. at 70. Andrade scheduled Dye for a follow up but
did not change his pain treatment.
started his physical therapy in mid July 2013. The parties do
not agree on the identity of the therapist who treated Dye.
Dye named as a defendant therapist “Eric.”
Defendants accepted service on behalf of a WRC therapist
named Eric Koehler, but Koehler states that he was never
Dye's physical therapist at WRC. Fellow therapist Robert
Rhodes states that he was the therapist who saw Dye, and he
recounts Dye's treatment records in defendants'
proposed findings of fact. Keeping in mind that the parties
dispute the identity of the therapist, Rhodes's proposed
findings are listed below. I will discuss the identity issue
in the analysis section of the opinion.
says that he assessed Dye on July 17, 2013. After the
assessment, Rhodes issued him a home exercise program,
consisting of range of motion and postural exercise, and
instructed him to perform the exercises twice daily with
three to five repetitions per exercise. Rhodes also wrote Dye
a plan of care for Dye to see Rhodes for physical therapy
twice a week for one to two weeks, for a total of three to
four sessions. Before he left, Rhodes also advised Dye of his
“no-show policy, ” which he says is necessary
because of the extensive waiting list for physical therapy:
This is a policy I developed for my patients since I work in
a number of institutions and often have a 4-6 week waiting
list for patients waiting to get into see me. I explain my
policy to all patients at their initial visit and again if
they show up late for a subsequent appointment. I state that
if a patient does not show up on time for a scheduled
appointment it is considered a “No Show”. If they
do this two times and I have to track them down to get the[m]
their scheduled appointment or if they are noncompliant with
their home exercise program, I will discharge them from
first physical therapy session was scheduled for 3:15 p.m. on
July 22. When Dye failed to show up on time, Rhodes called
his housing unit twice to track him down, resulting in what
Rhodes deemed to be a “no show.” Dye eventually
arrived 15 to 20 minutes late, and Rhodes says that Dye
admitted to poor compliance with his home exercise program,
and that Dye did not demonstrate a working knowledge of the
exercises he was given. Although Dye admits that there was a
session that day, he calls Rhodes's report of this
meeting a “fabrication.” Dye was scheduled for
another therapy session on July 24, but he again failed to
show up on time. Rhodes called his housing unit to locate
him, and Dye arrived 12 to 15 minutes late. Rhodes again says
that Dye did not demonstrate a working knowledge of the home
exercise program. Rhodes discontinued the therapy for
Dye's second “no show.” Rhodes later
explained to Dye that he could be seen again in therapy, but
only after he explained his noncompliance to the referring
30, Dye wrote an HSR complaining of severe neck pain. A nurse
met with Dye, and noted that Dye did not appear to be in
obvious pain, that Dye had skipped his schedule appointment
that day with Andrade, and that he was not taking his
naproxen as scheduled.
August 8, in response to another HSR, defendant Loria wrote
an order discontinuing the naproxen, and ordering
cyclobenzaprine 10 mg for neck stiffness, and meloxicam 7.5
mg for pain. Because Dye was also complaining about the
capsaicin cream, Loria discontinued it and prescribed Bengay.
In early September, at Dye's request, Loria changed the
timing of Dye's dose of meloxicam to the afternoon.
saw Dye again on September 11 and October 21, 2013. Dye did
not complain of neck pain at those appointments. At an
October 30 meeting, which Dye calls a “staffing
meeting, ” Dye said that he had not taken his
medications in five days. Andrade told him that it would be
safe for him to stop taking them if that is what he wanted to
do. The ...