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Key v. Mashak

United States District Court, W.D. Wisconsin

January 30, 2019

PRINCE D. KEY, Plaintiff,
v.
MEREDITH MASHAK and KARL HOFFMANN, Defendants.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         In this action removed from the circuit court for Dane County, plaintiff Prince D. Key brings claims that defendant prison officials violated his Eighth Amendment right against cruel and unusual punishment by failing to treat his injured knee while he was incarcerated at Columbia Correctional Institution. Both sides filed motions for summary judgment. I granted defendants' summary judgment motion and denied Key's motion on his claims regarding the specific types of treatment he received for his knee injury. See Dkt. 38. I concluded that defendants' treatment decisions were matters of medical judgment that could not support Eighth Amendment claims. See Id. But I required the parties to provide supplemental briefing on Key's claim that there was an approximately 50-day delay in him being seen by a doctor to assess his need for more effective pain medication.

         The parties have provided supplemental briefing and proposed findings of fact. After reviewing those materials, I conclude that Key fails to show that defendants acted with deliberate indifference toward Key's pain treatment, so I will grant defendants' motion for summary judgment, deny Key's motion, and dismiss the case.

         UNDISPUTED FACTS

         I recounted the parties' versions of events in my previous order, Dkt. 38, at 2-7, so I will present only a brief overview here. On November 29, 2014, Key injured his right knee during a basketball game. Key heard a loud popping sound in his knee and then felt pain, grinding, and swelling. A nurse examined him, diagnosed him with an “alteration in comfort” and impaired physical mobility, gave him an ace bandage, and instructed him to use ice, rest, elevate his knee, abstain from recreation, and take ibuprofen as needed for pain.

         In the weeks that followed, Key complained that his knee was locking up, causing him pain, and that the ibuprofen was not working. He wanted to see a doctor. About two weeks after the injury, he filed a grievance, and the institution complaint examiner contacted defendant Meredith Mashak, a registered nurse who at the time was the CCI health services manager, to assist with addressing the medical issues raised by the grievance. Mashak reviewed Key's records and sent a memo to the examiner, stating that the nurse followed the prison's “Musculoskeletal Pain Nursing Protocol” and provided him with proper treatment remedies. She also stated that the nurse told Key that he should file a health service request if he was not seeing improvement. The examiner recommended dismissing the grievance, but also stated that if Key continued to have problems with his knee, he should ask to be seen by Health Services Unit staff. Key later filed another grievance but it was not reviewed by Mashak.

         Key had a doctor's appointment scheduled for January 7, 2015, but it was postponed to January 12 and then January 21, when he was finally seen by defendant Dr. Karl Hoffmann. Hoffmann prescribed physical therapy, ice, Naproxen 500 mg, and stated that if these “conservative” options did not work, he would consider an MRI and an orthopedic consult. In late February 2015, Hoffmann co-signed an order for a knee sleeve. That concluded his involvement in Key's care.

         ANALYSIS

         Key's only remaining claims are Eighth Amendment medical care claims against defendants Hoffmann and Mashak[1] for his 53-day wait to be seen by a doctor, even though he complained that the ibuprofen he was instructed to take “as needed” was not effective to treat his pain. In my previous order, I stated that the parties were unclear about who was responsible for scheduling and re-scheduling the doctor appointments. Dkt. 38, at 10.

         Defendants raise two main arguments in their supplemental briefing: they contend that (1) Key presents no evidence showing that defendants Hoffmann or Mashak were personally involved in delaying his pain treatment; and (2) Key fails to show how the delay caused him any harm. Key has filed a motion he titles as one to “enter new evidence into the record, ” Dkt. 51, in which he recounts what a doctor told him his knee looked like when the doctor performed arthroscopic surgery on him in 2017. Key followed up by filing what appears to be the surgeon's report from that surgery, noting a “significant lesion” and “dangling” cartilage. Dkt. 56. Defendants oppose the first filing on the ground that Key's testimony about what a doctor told him is hearsay.

         I will grant Key's motion and accept the new evidence because he presents the actual medical report from the surgery. But ultimately, Key does not need this evidence at summary judgment, because defendants' argument that Key cannot show that he was harmed by the delay in treatment is fundamentally flawed. Key says that he suffered severe pain because his appointment with a doctor kept being delayed. Prolonged severe pain itself is a serious medical need, Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1039-40 (7th Cir. 2012), so a deliberate or reckless failure to treat that need can violate the Eighth Amendment, regardless of the underlying physical condition of his knee.

         The problem for Key is defendants' first argument: he fails to present evidence showing that defendants Hoffmann or Mashak were deliberately indifferent to the problem. I asked for supplemental briefing on the pain-treatment issue because defendants did not fully explain who was responsible for the scheduling decisions that caused the delay. In particular, I stated:

Perhaps the nurses responding to Key's HSRs weighed his injury against other patients' needs and scheduled the January 7 appointment with Hoffmann without his knowledge and then kept pushing the date back. Perhaps Hoffmann had some input in scheduling decisions, particularly once he canceled the original appointment. Or perhaps none of the individuals involved in these severity assessments and scheduling decisions were deliberately indifferent because they faced a crush of patients and limited resources. In that event, the prison staffing polices themselves may be the actual culprit. . . .
. . . I will give the state a short time to supplement its proposed findings with an explanation of how his appointments were scheduled, and who determined that his pain management ...

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