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Vasquez v. Rigueur

United States District Court, E.D. Wisconsin

January 18, 2019

LUIS VASQUEZ, Plaintiff,
v.
JOEL RIGUEUR, et al., Defendants.

          DECISION AND ORDER

          LYNN ADELMAN UNITED STATES DISTRICT JUDGE

         Plaintiff Luis Vasquez, a Wisconsin state prisoner who is representing himself, filed this lawsuit under 42 U.S.C. § 1983. I allowed him to proceed on claims that the defendants were deliberately indifferent to his serious medical and mental health needs. The defendants filed motions for summary judgment, which are fully briefed and ready for my decision. I will grant the defendants' motions and dismiss this case.

         I. BACKGROUND [1]

         The plaintiff is incarcerated at Waupun Correctional Institution. Docket No. 21 at ¶ 1. The defendants are: 1) Dr. Joel Rigueur, a psychiatrist who contracts with the Department of Corrections (DOC); 2) Dr. Salam Syed, who works for the DOC; 3) Nancy White, a retired registered nurse who worked as the manager of Waupun's health services unit from September 2016 until May 2017; and 4) Dr. Jeffrey Anders, the DOC's Psychiatry Director. Id. at ¶ 2; Docket No. 51 at ¶ 69; Docket No. 28 at ¶ 2.

         The time period relevant to this case is August 23, 2016, through March 20, 2017. Docket No. 21 at ¶ 4. Prior to that time, the plaintiff was under the care of Dr. Todd Callister (a psychiatrist who is not a defendant). Docket No. 28 at ¶ 10. The plaintiff had last seen Dr. Callister on April 26, 2016. Id. Dr. Callister reported that the plaintiff had a history of depression and anti-social personality disorder and that the plaintiff was taking medication with no reported side effects. Id. Specifically, the plaintiff was taking Duloxetine (also called Cymbalta), which is taken to treat Major Depressive Disorder and Generalized Anxiety Disorder, and Buspirone, which is taken to treat anxiety. Id. Dr. Callister also noted that the plaintiff had suffered sexual abuse as a child and had ongoing symptoms of traumatic re-experiencing. Id.

         The plaintiff had last seen his psychologist, Dr. Torria Van Buren (who is not a defendant), on April 26, 2016. Docket No. 28 at ¶ 11. According to her report, the plaintiff had been diagnosed in part with Major Depressive Disorder and Anti-Social Personality Disorder. Id. The plaintiff also had a history of suicidal ideation and poor institutional adjustment, which included fighting with staff and inmates and inciting a riot. Id. The plaintiff told Dr. Van Buren that he had flashbacks and intrusive thoughts, leading him to believe he suffered from PTSD. Id. Dr. Van Buren decided to continue to monitor the plaintiff for trauma-related symptoms. Id. She did not diagnose the plaintiff with PTSD.

         Dr. Rigueur saw the plaintiff for the first time on August 23, 2016, for a psychiatric evaluation after reviewing the reports of Dr. Callister and Dr. Van Buren. Docket No. 21 at ¶ 7. The plaintiff asserts that, at that appointment, he told Dr. Rigueur about his childhood, specifically that he had been physically and sexually abused. Docket No. 68 at ¶ 4. The plaintiff notes that he told Dr. Rigueur he was having nightmares once or twice a week and that he would often wake up screaming or wrestling with his blankets. Id. The plaintiff states that Dr. Rigueur dismissed his statements and informed him that he had not been diagnosed with PTSD and that he should continue to work with his psychologist. Id. at ¶ 5. Dr. Rigueur disputes that they discussed PTSD symptoms at this meeting. Id. at ¶ 6. He notes that the plaintiff has elsewhere conceded that he did not discuss his need for PTSD treatment until after his initial meeting with Dr. Rigueur. Id. According to the plaintiff, he told Dr. Rigueur that this psychologist was not treating his nightmares or his other symptoms. Id. At the plaintiff's request, Dr. Rigueur maintained the plaintiff's dosage of Duloxetine, increased his dosage of Buspirone, and prescribed Trazadone at bedtime and Atomoxetine to address the plaintiff's reported sleep disturbances. Id. at ¶ 19; Docket No. 21 at ¶ 9.

         One week later, on August 31, 2016, the plaintiff prepared a health services request (HSR), requesting Dr. Rigueur to stop his Buspirone and Trazadone. Docket No. 28 at ¶ 22. He asserted that the medications were exacerbating his migraines and causing insomnia. Id. The plaintiff also stated that, when he tried to stop taking the medications, he started having withdrawal symptoms and impulsive, violent behavior. Id. He explained that, when he restarted the medications, the withdrawal and side effects stopped, but his migraines returned. Id. The plaintiff did not mention PTSD or alleged symptoms of trauma in his HSR. Docket No. 68 at ¶ 12.

         Dr. Rigueur did not receive the plaintiff's HSR because nursing staff triage HSRs. Docket No. 21 at ¶ 12; Docket No. 28 at ¶ 31, 46. If a nurse deems an HSR to be urgent, the patient will be scheduled to be seen as soon as possible, typically within twenty-four hours by a nurse or mental health professional. Docket No. 21 at ¶ 13. The nurse who triaged the plaintiff's August 31st HSR noted on the HSR that she referred the request to the psychiatrist, meaning that the plaintiff was likely placed on a waiting list to see the psychiatrist at the next available time. Id. at ¶¶ 14-15. Nurses can flag an HSR to be reviewed by the psychiatrist on a more immediate basis, but there is no indication that occurred with the plaintiff's August 31st HSR. Id. at ¶ 16.

         Dr. Rigueur explains that he does not control what patients he sees on any given day unless the HSU manager informs him of an emergency. Docket No. 28 at ¶ 6. He states that he is given the medical records of each patient that he is scheduled to see that particular day, but those records do not include HSRs. Id. at ¶ 7. HSRs are shared with him at the discretion of health services staff. Id. at ¶ 8.

         A few weeks later, on September 19, 2016, the plaintiff sent another HSR to health services. Docket No. 28 at ¶ 23. The plaintiff again requested to see Dr. Rigueur and stated that he wanted to stop the Buspirone and Trazadone because they were causing frequent and persistent migraines. Id. The nurse who triaged the HSR responded that his request had been referred to the psychiatrist and that he was on the list to be seen. Id.

         A little more than a week later, on September 30, 2016, Dr. Syed examined the plaintiff in response to complaints of a urinary issue. Docket No. 28 at ¶ 24. At the appointment, the plaintiff reported that his urinary issues had resolved but he complained of headaches and migraines that he thought were a result of the psychiatric medications he was taking. Docket No. 21 at ¶ 28. The plaintiff told Dr. Syed that his headaches had been going on for years and he had a history of migraines. Id. at ¶ 29.

         Dr. Syed explains that, when a patient is under the care of a psychiatrist, he generally does not interfere with the psychiatrist's prescribed medications. Docket No. 21 at ¶ 30. He informed the plaintiff that a small percentage of people who take Buspirone develop headaches; he deferred to the plaintiff's psychiatrist what medication was proper to treat the plaintiff's psychiatric conditions. Id. at ¶ 32. Dr. Syed explains that it was not necessary for him to refer the plaintiff to see his psychiatrist because he was seeing him on a regular basis and, according to the September 19th HSR response, he was on a list to see him again soon. Id. at ¶ 33.

         In response to the plaintiff's complaints of headaches, Dr. Syed prescribed ibuprofen and started the plaintiff on 1000mg of Tylenol, once per day as need. Docket No. 21 at ¶¶ 35-36. Dr. Syed also explained to the plaintiff that his blood pressure was high, which could cause headaches. Id. at ¶ 36. Dr. Syed offered the plaintiff blood pressure medication, but he declined to take it. Id. at ¶ 38. He ordered weekly blood pressure checks and a chart review in four weeks to monitor the issue. Id. at ¶ 39. Dr. Syed continued the plaintiff's prescription of Excedrin, which he was already receiving to treat his migraines. Id. at ¶ 40. Dr. Syed did not increase the plaintiff's dosage of Excedrin; the plaintiff was already receiving the maximum dosage allowed by DOC policy. Id. at ¶ 41.

         A little more than a week after seeing Dr. Syed, on October 9, 2016, the plaintiff submitted another HSR asking to see Dr. Rigueur and complaining about his migraines, which he attributed to the Buspirone and Trazadone. Docket No. 28 at ¶ 25. The HSR discussed these symptoms as a side effect of the medication; it did not relate the symptoms to PTSD. Docket No. 68 at ¶17. Health services responded that the complaint had been referred to the psychiatrist. Docket No. 28 at ¶ 25.

         The next day, on October 10, 2016, the plaintiff met with his psychologist, Dr. Kristina de Blanc. Docket No. 28 at ¶ 26. He told her that he was having nightmares about four time per week and persistent migraines, which made it hard for him to sleep. Id. Dr. de Blanc recorded that the plaintiff looked like he was in significant pain from a migraine. Id. at ¶ 27. She informed health services of the migraines and the possibility that they were related to the plaintiff's psychotropic medication. Id. She also noted that the plaintiff was placed on a list to consult with the psychiatrist. Id. Dr. de Blanc's report does not diagnose PTSD; it indicates only that she addressed the plaintiff's complaints of medication reactions. Docket No. 68 at ¶ 14.

         Four days later, on October 14, 2016, Dr. Rigueur performed a psychiatric evaluation of the plaintiff. Docket No. 28 at ¶ 28. After reviewing Dr. Syed's and Dr. de Blanc's reports and at the plaintiff's request, Dr. Rigueur discontinued the Buspirone and Trazadone. Id. at ¶ 29. He explains that he tries to act cooperatively and collaboratively in prescribing medications because it prompts voluntary usage by the patient. Id. at ¶ 45. He also explains that, in light of the plaintiff's history, he would have wanted to see the plaintiff in person before deciding to discontinue medications or start new medications. Id. at ¶ 44. The plaintiff asserts that he told Dr. Rigueur that he needed treatment for nightmares and other symptoms of PTSD, but Dr. Rigueur sat there in silence. Docket No. 68 at ¶¶ 18-19. Dr. Rigueur disputes that they discussed PTSD; instead, he asserts that their discussion focused on the medication the plaintiff had been prescribed. Id.

         Dr. Rigueur asserts that he does not believe the plaintiff's migraines were caused by the increased dosage of Buspirone. Docket No. 28 at ¶ 35. He explains that the plaintiff had been taking Buspirone for a long time without incident and the increase in dosage was minor. Id. at ¶ 35. He also notes that the plaintiff had been dealing with migraines for a very long time. Id. Dr. Rigueur also discounts the plaintiff's assertion that he suffered withdrawal symptoms when he stopped taking Buspirone and Trazadone within a week of Dr. Rigueur's prescription. Id. at ¶ 36. Dr. Rigueur explains that those medications would not cause withdrawal symptoms because they do not induce dependence, especially in such a short amount of time. Id. at ¶ 37.

         Dr. Rigueur prescribed Tegretol (also called Carbamazepine) in place of the discontinued medications to help address the plaintiff's complaints of nightmares, impulsivity, and rage. Docket No. 28 at ¶ 37; Docket No. 68 at ¶¶ 19-20. Dr. Rigueur also requested that health services schedule a follow-up appointment for four weeks later. Docket No. 68 at ¶ 20. He placed the order for Tegretol that same day, and health services sent a notice to the plaintiff to stop taking Buspirone and Trazadone. Docket No. 28 at ¶ 30. Dr. Rigueur explains that he does not have access to the medication room and is unable to provide medication directly to his patients. Id. at ¶ 66. The plaintiff did not receive the medication until ten days later. Id. at ¶ 51. He asserts that he experienced withdrawal symptoms as a result of the delay. Id.

         Health services failed to schedule the follow-up appointment requested by Dr. Rigueur. Docket No. 68 at ¶ 29. Dr. Rigueur explains that he does not personally manage his schedule; health services is responsible for scheduling requested appointments. Id.

         A little less than three months later, on January 17, 2017, the plaintiff submitted an HSR asking to be referred to a psychiatrist to stop Tegretol because he was gaining weight in his stomach and chest, developing “man boobs, ” had diarrhea with dark green stool, dry mouth, unusual movement of his eyelids, and extreme drowsiness. Docket No. 28 at ¶ 52. Health services responded that it would refer his request to the psychiatrist. Id.

         About a week later, Dr. Van Buren, the plaintiff's psychologist, met with the plaintiff. Docket No. 28 at ¶ 53. Dr. Van Buren's report indicates that the plaintiff told her he was experiencing a depressed mood on and off but said he was currently feeling ok. Id. The plaintiff denies telling her he was ok, although there is no dispute that this is recorded in her report. Docket No. 68 at ¶ 31. According to her report, he also said he was having nightmares of prior trauma and was increasingly irritated with other inmates and noise. Docket No. 28 at ¶ 53. Dr. Van Buren decided to continue to monitor the plaintiff and schedule him to take the “Trauma Symptom Index-2” in a few weeks. Id. Dr. Van Buren met with the plaintiff again on February 21, 2017, while he was in segregation. Id. at ΒΆ 57. She noted that the plaintiff reported having nightmares, but he did not say that he was punching and kicking walls. Docket No. 21 at ...


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