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Evans v. Manuel

United States District Court, E.D. Wisconsin

February 1, 2019

MICHAEL L. EVANS, Plaintiff,
v.
JOSEPH MANUEL, et al., Defendants.

          ORDER GRANTING DEFENDANTS LUTSEY AND PETER'S MOTIONS FOR SUMMARY JUDGMENT BASED ON FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (DKT. NOS. 34, 39)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The plaintiff, a Wisconsin state prisoner who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil rights. Dkt. No. 1. On March 27, 2018, the court screened the plaintiff's complaint and allowed him to proceed with deliberate indifference claims against (1) Dr. Joseph Manuel, based on his allegations that Dr. Manuel persisted in a course of treatment that he knew was ineffective to address the plaintiff's complaints of pain; (2) Jean Lutsey, based on his allegations that in July or August of 2016, she canceled a doctor-ordered surgery; and (3) Susan Peters, based on his allegations that in June 2017, she provided him with pain medication that she knew was inadequate to address his needs. Dkt. No. 12 at 6-7.

         Defendants Lutsey and Peters have moved for summary judgment, arguing that the plaintiff failed to exhaust the available administrative remedies on his claims against them. Dkt. Nos. 34, 39. Dr. Manuel concedes that the plaintiff has exhausted the available administrative remedies as to the plaintiff's claim against him. Dkt. No. 35 at 1, n.1. The court will grant Lutsey and Peters' motions for summary judgment and will dismiss them as defendants.

         I. FACTS [1]

         The plaintiff explains that he suffers from extreme pain and numbness on the left side of his body due to degenerative disc disease. Dkt. No. 1 at 2; Dkt. No. 46 at ¶2. He says that sometime in July or August 2016, Dr. Sauvey (who is not a defendant) ordered surgery to help address the plaintiff's pain. Dkt. No. 1 at 2. The plaintiff says that around the same time that Dr. Sauvey ordered the surgery, defendant Lutsey (the manager of the Health Services Unit) “denied” Sauvey's recommendation and ordered advanced pain therapy instead. Id. This is the only allegation the plaintiff made against Lutsey.

         The plaintiff also asserts that, on June 14, 2017, defendant Peters (a nurse practitioner) treated the plaintiff's complaint that he was in pain “as if it was a common cold, ” and just prescribed him over-the-counter medication. Dkt. No. 1 at 2. This is the only claim the plaintiff made against Peters.

         The plaintiff filed two inmate complaints in October 2016: GBCI 2016-22640 and GBCI 2016-23857. Dkt. No. 36 at ¶2; Dkt. No. 41 at ¶2. In inmate complaint 22640, the plaintiff complained that “H.S.U. staff stopped [his] Gabapentin (pain) without telling [him] . . . .” Dkt. No. 37-2 at 7. In inmate complaint 23857, the plaintiff complained that he was not receiving physical therapy as prescribed by Dr. Allen (who is not a defendant). Dkt. No. 37-3 at 6. Neither inmate complaint mentions cancellation of the surgery Dr. Sauvey had ordered, neither mentions Lutsey, and both predate the plaintiff's allegations about Peters by about eight months. Dkt. No. 36 at ¶2; Dkt. No. 41 at ¶2. The inmate complaint examiner (ICE) dismissed both complaints. Dkt. No. 36 at ¶3. The plaintiff did not appeal those dismissals. Id.

         On May 21, 2017, the plaintiff prepared inmate complaint GBCI 2017-13286, in which he stated the following:

H.S.U lack of is causing suffering and emotional confusion . . . .
I put a H.S.U. request in to see a doctor due to my chronic illness worsen[ing]; . . .
I was s[een] by H.S.U 5-15-17, and told there was no medical-Doctor here no more and I would be put on the list to see a medical Ddoctor in 3 weeks, that['s] not going [to] work . . . .
I have been experienc[ing] numbness all this year, from my neck, left shoulder, left arm and hands, left leg & toes, I wake up feeling paralyze[d], and when I write, within 30 minute[s] or so my neck & whole left side go numb. On 5-13-17, I put my 3rd or 4th request in H.S.U since April, regarding numbness experience, and H.S.U, have disregarded my medical issue as “cry me a river, ” because of H.S.U lack of treatment - regarding my degenerat[iv]e disc disease, and damage[d] nerve, I have been experienc[ing] numbness, extreme pain through out my neck, left shoulder, left arm, left leg. I have experience[d] numbness during 2nd shift and 1st shift, and was told by Clos that H.S.U, said put a request in to be seen, because I am not dying, H.S.U is depriving me of adequate medical treatment, and making me depress[ed]. I have been patien[t] with H.S.U over a year, and this issue happened in April 2015. I had to push the issue with I.C.Es in late 2015 just to have M.R.Is, which show I was suffering from far worse illness, now I'm enclosing #3 H.S.U correspondence with H.S.U since April, every time I see H.S.U, it the same thang, we can't do nothing else . . . .

Dkt. No. 37-4 at 11-12.

         The reviewing authority dismissed that complaint on June 21, 2017. Id. at 4. The plaintiff timely appealed that dismissal. Id. at 25-26. In his appeal, the plaintiff wrote, “H.S.M. Lutsey stop[ped] Dr. Mary Sauvey from sending me out for surgery to help rel[ie]ve some of the pain in my neck . . . .” Id. at 26. He also asserted that, “[he] never [saw] ACP til 6-14-17, the same day, that ICE - A. DeGroot, ...


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