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Pennewell v. Parish

United States District Court, E.D. Wisconsin

July 20, 2018

JAMES VERN PENNEWELL, Plaintiff,
v.
DR. JAMES PARISH, et al., Defendants.

          ORDER

          LYNN ADELMAN DISTRICT JUDGE

         Plaintiff James Pennewell, a Wisconsin state prisoner who is representing himself, filed a complaint under 42 U.S.C. § 1983 alleging that defendants violated his civil rights. Docket No. 1. I screened the complaint on March 20, 2017 and allowed plaintiff to proceed with an Eighth Amendment claim that defendants (including a party identified as “Unknown Eye Technicians”) showed deliberate indifference towards his eye problems. Docket No. 4 at 4-5. I instructed plaintiff to identify “Unknown Eye Technicians, ” on or by August 25, 2017, and warned him that, if he did not, I would dismiss that party from the case. Docket No. 15. Plaintiff did not identify “Unknown Eye Technicians” by the deadline, and therefore I will dismiss his claims against it. Below, I consider the parties' pending motions.

         I. DEFENDANTS' MOTIONS TO STRIKE PLAINTIFF'S SUR-REPLIES

         Defendants filed motions for summary judgment on October 24, 2017. Docket Nos. 27 and 37. They also filed motions to strike plaintiff's sur-replies to the motions for summary judgment. Docket Nos. 46 and 48. Defendants explain that they did not raise any new issues in their reply brief and that plaintiff never sought leave from the court to file a sur-reply. Id.

         Plaintiff did not file an opposition to defendants motions to strike nor did he explain in his sur-reply why he needed to file a sur-reply to properly prosecute this case. See Docket Nos. 45 and 47. Therefore, I will grant defendants' motions to strike the sur-replies. See Civ. L. R. 7(i) (“Any paper, including any motion, memorandum, or brief, not authorized by the Federal Rules of Civil Procedure, these Local Rules, or a Court order must be filed as an attachment to a motion requesting leave to file it.”).

         II. DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

         a. Facts [1]

         At the time relevant to this matter, plaintiff was an inmate at the Dodge Correctional Institution (“DCI”) who was transferred to the John Burke Correctional Center (“JBCC”). Docket No. 29, ¶¶ 6, 15. Defendants are Department of Corrections (“DOC”) employees/contractors who work at DCI and JBCC: James Richter is an Optometrist who provides eye care at DCI; James Parish is a Physician's Assistant at DCI; Sandra Jackson and Victoria Bruns are Nurses at JBCC; and Brian Lange and Heather Bunker are Correctional Sergeants at JBCC. Id., ¶¶ 4-5. Mark Rice, Scott Hofteizer, Denise Bonnett, Paula Lampe, Julie Nickel, Patricia Beyer, Jeffrey Rollins, and Nicholas Redeker are also defendants in this case but neither party provides specific information on who these individuals are or what institution they worked at. See Docket Nos. 29 and 42.

         Plaintiff arrived at DCI on February 3, 2015. Docket No. 29, ¶ 6. Plaintiff talked to an eye technician during his “intake eye screening” and explained that he was blind in his left eye and had “shadows, ghosts, and the vision is decreasing” in his right eye. Docket No. 42 at 3. The eye technician said she would “fast track” plaintiff for a quicker eye exam. Id.

         About a week later, on February 11, 2015, Richter examined plaintiff's eyes. Docket No. 40, ¶ 1. Plaintiff told Richter that he was blind in his left eye and the vision in his right eye was “decreasing, foggy, floaters, spots, ghosts, shadows, and flashes but not as bad as 2008 left detachment.” Docket No. 42 at 3. The “Eyecare Examination Form” that Richter completed during the exam indicates that plaintiff reported blindness and no light perception in his left eye and “floaters foggy” in his right eye. Docket No. 17-1 at 53; see also Docket No. 40, ¶ 2-3. Plaintiff also told Dr. Richter he could not see very well even though his glasses were only a few months old. Docket No. 42 at 3.

         Richter performed a “dilated fundus evaluation” on plaintiff's eyes and concluded that plaintiff had the wrong prescription. Docket No. 40, ¶ 4. Richter ordered new glasses with a proper prescription. Id., ¶ 5. Richter also referred plaintiff to the University of Wisconsin Eye Clinic (“UWEC”) for evaluation and possible extraction of a right eye cataract. Id., ¶ 6. Richter did not communicate with or examine plaintiff again until seven months later, on September 22, 2015. Id., ¶¶ 35-36.

         After Richter's evaluation, Parish performed an “intake physical exam” of plaintiff later that same day. Docket No. 29, ¶¶ 7-8. Parish reviewed Richter's notes on plaintiff's eye problems and recorded the issues on plaintiff's “problem list.” Docket No. 29, ¶¶ 9-11. Plaintiff told Parish that he had a “blind left eye and right eye decrease vision problems.” Docket No. 42 at 3. Plaintiff had already been seen by an eye specialist earlier in the day; therefore, Parish did not order anything for plaintiff's eyes. Docket No. 29, ¶¶ 11-13. He did, however, order treatment for plaintiff's other medical issues. Id. Parish continued to provide plaintiff with medical care for his other medical issues while at DCI, but he never communicated with plaintiff regarding his eye problems after the intake screening on February 11, 2015. Id., ¶ 14.

         About one month later, on March 17, 2015, the DOC transferred plaintiff to JBCC. Id., ¶ 15. Bruns performed a transfer screening similar to the intake screening Parish performed at DCI. Id., ¶¶ 16-19. Plaintiff reported “blind left eye, right eye vision was decreasing with foggy, floaters, ghosts, and spots in vision.” Docket No. 42 at 4. The “Progress Notes” that Burns completed that day shows that plaintiff reported left eye blindness and poor vision in his right eye with cataract. Docket No. 29, ¶ 18; Docket No. 31-1 at 20. Bruns noted that plaintiff had an appointment with UWEC scheduled for April 14, 2015. Id., ¶ 20.

         About a week later, on March 30, 2015, plaintiff submitted a Health Services Unit (“HSU”) request. Id., ¶ 24. The requested stated:

I am scheduled for an eye appointment in Madison. My right eye is painful the Tylenol is not working for pain. It feels like there is a tear in my eye. I am very red it drains then dries up. I have to put warm water on a washcloth to get it open. When can it be looked at, soon I'm hoping.

         Docket No. 42 at 4; see Docket No. 31-1 at 93. Jackson saw plaintiff's HSU request and scheduled him for an appointment that same day at 4:15 p.m. Docket No. 29, ¶ 26. Plaintiff told Jackson that the symptoms in his right eye “was getting worse.” Docket No. 42 at 4. Jackson states that plaintiff complained about pain but did not report floaters, shadows, or a loss of vision, nor did he state that he needed to be seen more quickly or that his eye condition was an emergency. Docket No. 29, ¶¶ 18, 32. Jackson told plaintiff to wash his hands regularly and not touch his eyes. Docket No. 29, ¶¶ 29, 34; see also Docket No. 31-1 at 20. According to Jackson, plaintiff's primary focus at the appointment was to find out when his appointment with UWEC was scheduled. Docket No. 29, ¶ 30. Jackson told plaintiff that he was scheduled for an appointment in April but she couldn't tell him the exact date. Id. ¶ 31; see also Docket No. 42 at 4. Plaintiff allegedly responded “OK, that's good. I am glad its scheduled.” Docket No. 31-1 at 20.

         About a week later, on April 6, 2015, plaintiff submitted another HSU request. Docket No. 29, ¶ 36. The request stated:

“The pain in my left eye is getting bad and the vision in my right eye is deteriorating, it's as if there is a retinal detachment. The vision in my right eye has a shadow in the lower right limiting my vision, some flashes of light, Thank you.”

         Docket No. 42 at 4; see Docket No. 31-1 at 94. Bruns scheduled plaintiff for an appointment the next morning, on April 7, 2015. Docket No. 29, ¶ 37. Plaintiff states that he told Bruns “half [his] vision was gone” and “I had a right eye retinal detachment and I will lost all my vision if I did not get medical attention.” Docket No. 42 at 4. Bruns contacted Denise Bonnett and Scott Hoftiezer regarding plaintiff's complaints; by 9:30 a.m. that morning, Bonnett and Hoftiezer approved plaintiff's transfer to the Waupun Memorial Hospital Emergency Room. Docket No. 29, ¶¶ 39-40. Bunker transported ...


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