United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
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.
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.
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.
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.
following facts are undisputed except where noted.
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.
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.
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. 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.
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.
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
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
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.
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
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. 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.
Johnson did not receive diazepam, he sent another health
service request asking for his prescription. Dkt. ...