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Dye v. Koehler

United States District Court, W.D. Wisconsin

July 2, 2018

JOHN L. DYE, JR., Plaintiff,

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Plaintiff 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.

         The 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.


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

         Similar 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.

         From 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 Institution (WCI).

         A. Neck pain

         Dye 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.

         In 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.

         On 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.

         On May 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 complaints.

         On May 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.

         Andrade 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.

         Dye 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.

         Rhodes 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 physical therapy.[1]

         Dye's 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 physician.

         On July 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.

         On 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.

         Andrade 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 ...

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