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Johnson v. Schrubbe

United States District Court, W.D. Wisconsin

January 23, 2019

IVAN JOHNSON, Plaintiff,



         Pro se plaintiff Ivan Johnson, a Wisconsin prisoner incarcerated at Columbia Correctional Institution (CCI), brings Eighth Amendment deliberate indifference and First Amendment retaliation claims against nurses at his previous prison, Waupun Correctional Institution (WCI). While at WCI, Johnson had stomach surgery, and after the surgery his surgeon prescribed diazepam to treat muscle spasms. Johnson alleges that defendants Belinda Schrubbe, Nancy Garcia, and Donna Larson withheld the medication because he had a pending lawsuit against Schrubbe.

         Defendants have filed a motion for summary judgment. Dkt. 17. They contend that Garcia made the decision to withhold diazepam not because she wanted to retaliate against Johnson, but because it is a controlled substance and because she determined it was not medically necessary. They say that the other defendants were not involved in the decision.

         I will grant defendants' motion in part. I will grant summary judgment for Schrubbe and Larson on both claims because Johnson has not produced any evidence showing that they were responsible for the denial of diazepam. And I will grant summary judgment for Garcia on the retaliation claim because Johnson has not produced any evidence that Garcia acted with a retaliatory intent. But I will deny summary judgment for Garcia on the deliberate indifference claim because there is a material dispute regarding whether Garcia acted within the bounds of accepted professional judgment when she countermanded the surgeon's treatment orders.

         Also before me is Johnson's motion for assistance in recruiting counsel. Dkt. 16. I am persuaded that the trial in this case will likely be too complex for Johnson to handle on his own, so I will grant his motion.


         The following facts are undisputed except where noted.

         In 2012, while incarcerated at WCI, Johnson filed a lawsuit against several prison employees, including Health Services Unit (HSU) manager Belinda Schrubbe. See Johnson v. Sumnicht, No. 12-cv-891-bbc (W.D. Wis. Dec. 6, 2012). That suit involved complications from a stomach surgery that Johnson had in 2010. He alleged that prison staff did not follow the surgeon's discharge orders, which caused ulcers and stomach erosion. The case settled in January 2015. Dkt. 87 ('891 case). The parties agree that Schrubbe never spoke to any inmates or other staff about the lawsuit. Dkt. 36, ¶ 48.

         Nancy Garcia started working at WCI as a nurse practitioner in March 2014. As a nurse practitioner, Garcia works in collaboration with a unit physician who has overall responsibility for treatment decisions in the prison unit. She has the authority to prescribe medications. Unlike registered nurses, who work for the HSU and are supervised by the HSU manager, Garcia is employed by the Bureau of Health Services and supervised by the bureau's medical director. Dkt. 20, ¶ 5.

         The parties dispute whether Garcia was aware of Johnson's lawsuit against Schrubbe. Garcia says that she had never heard of it until she received the complaint in this case. Id., ¶ 29. But Johnson says that during his first appointment with Garcia on June 6, 2014, he spoke at length about the lawsuit and how he “suffered at the hands of” Schrubbe and other WCI staff.[1] Dkt. 31, ¶ 26. He says that Garcia listened to him for 10 to 15 minutes before telling him that “we are not here for that” and ending the appointment.

         On August 15, 2014, while the '891 lawsuit was still pending, Johnson had a second stomach surgery to fix the complications from his first stomach surgery. Dr. Guilherme M. Rocha Campos performed the surgery at UW Health Hospital.

         On September 30, Campos performed an upper endoscopy to check Johnson's progress following surgery. Johnson says that during this appointment, he talked with Campos about muscle spasms in his abdomen, and Campos recommended diazepam (known under the brand name as Valium). Id., ¶ 10. But Campos received a phone call and had to leave the appointment, so he asked his resident, Dr. Lauren Taylor, to write the prescription. Taylor used Campos's prescription pad to write Johnson a prescription for ten tablets of diazepam, to be used “one time daily at bedtime as needed (muscle spasms).” Dkt. 22-1, at 87. She crossed out Campos's name and signed the prescription in her own name.

         Campos did not mention muscle spasms or diazepam in his treatment notes. See Id. at 78-81. His notes describe the results of the endoscopy and order additional follow-up appointments. But the only medications listed are the anesthetics used during the endoscopy. Taylor's prescription was attached to Campos's notes as a separate document.

         The next day, Johnson wrote a health services request asking to receive his prescribed medication. Id. at 146. Nurse Donna Larson reviewed the request and responded that the medication needed to be approved by a nurse practitioner. She explained to Johnson that the nurse practitioner had his record, and she ordered an appointment with Garcia within the next week. Because Larson is a registered nurse (rather than a nurse practitioner) she cannot prescribe medication herself, and her duties are limited to documenting and reviewing orders for medication made by advanced care providers like Garcia. Dkt. 36, ¶ 49-50.

         On October 2, Garcia reviewed Campos's treatment notes and Taylor's prescription. WCI treats prescriptions from offsite doctors as recommendations, and Garcia has the authority to dismiss a recommendation based on security concerns or her review of the inmate's medical history. If the prescription is for a controlled substance, Garcia looks at the inmate's record and appointment notes to decide whether there is an actual need to distribute the substance.

         Garcia decided to deny Johnson's prescription for diazepam. Although diazepam can be used to treat muscle spasms, it is a controlled substance and is highly addictive. Garcia believed that, in the past, other inmates had manipulated offsite providers to receive unnecessary medication. Dkt. 20, ¶ 19. And in this case, Campos did not mention the prescription in his treatment notes or sign the prescription himself. Johnson's medical records showed that he suffered from acid reflux and that he already had several prescriptions intended to treat acid reflux and other stomach-related pain but refused to take those medications.[2] Although none of those drugs treated muscle spasms, Garcia could not find any records that said Johnson's pain was caused by muscle spasms. So she denied the prescription for diazepam, and she did not prescribe an alternative drug to treat muscle spasms.

         When Johnson did not receive diazepam, he sent another health service request asking for his prescription. Dkt. ...

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