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Oswald v. Manlove

United States District Court, E.D. Wisconsin

February 6, 2019

DANIEL PERRY OSWALD, Plaintiff,
v.
JEFFREY MANLOVE, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 97) AND GRANTING PLAINTIFF'S MOTIONS TO APPOINT COUNSEL (DKT. NOS. 131, 133)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE

         The plaintiff, who is representing himself, filed this lawsuit under 42 U.S.C. §1983. Dkt. No. 1. About four months later, the court allowed the plaintiff to amend his complaint. Dkt. No. 27. The court screened the amended complaint and allowed him to proceed on (1) deliberate indifference to medical needs claims against defendants Jeffrey Manlove, Belinda Schrubbe, Kristine DeYoung, Carol Al-Rahrawy and Tammy Westphal; (2) deliberate indifference to conditions of confinement claims against defendants Josh Bleiler, Erik Marwitz, Timothy Price, Brian Schmidt, [1] Micah Moore and Joseph Beahm; (3) a state law medical malpractice claim against Manlove, Schrubbe and DeYoung; and (4) a state law negligence claim against Al-Rahrawy and Westphal. Dkt. No 27.

         The defendants filed a motion for summary judgment, which is fully briefed.

         I. RELEVANT FACTS[2]

         During the time of the events at issue, the plaintiff was incarcerated at Waupun Correctional Institution. Dkt. No. 117 at ¶1. Manlove was a physician; Schrubbe was the Health Services manager; DeYoung was a registered nurse; Al-Rahrawy and Westphal were licensed practical nurses; and Bleiler, Marwitz, Moore, Price, Schmidt and Beahm were officers who worked in the Restricted Housing Unit (RHU). Id. at ¶¶2-7.

         A. The Plaintiff's Elevator Pass Claim

         On October 1, 2014, the plaintiff received a Special Needs Restriction for a lower tier and an elevator pass. Id. at ¶21. The defendants explain that the Special Needs Committee approved the restrictions to address the plaintiff's vertigo/dizziness. Id. at ¶22. The plaintiff states his vertigo was only part of the reason he received the pass; he also received the pass to address his “debilitating back condition.” Dkt. No. 113 at ¶22. According to the plaintiff, two months earlier, an off-site specialist had recommended that the institution house the plaintiff on a lower tier and that it allow him to use the elevator. Dkt. No. 117 at ¶29; Dkt. No. 113 at ¶29. The plaintiff says that the off-site specialist issued the order on August 1, 2014, stating that the plaintiff should stay on a lower tier “until ‘FURTHER NOTICE.'” Dkt. No. 113 at ¶29. In a footnote in their reply brief, the defendants maintain that the order was to remain in place “until further workup.” Dkt. No. 118 at 2, n.1. In support of their version of what the off-site specialist said, the defendants cited their reply to the plaintiff's response to their proposed findings of fact, Dkt. No. 117 at ¶¶28-29. Notably, however, the reply makes no mention of either the plaintiff's “until further notice” language or the defendants' “until further workup” language.

         The defendants attached certain medical records to defendant Manlove's declaration. Dkt. No. 100-1. The records include a report from Dr. Raymond J. Hah, dated August 1, 2014. Dkt. No. 11-1 at 257-258. In the section captioned “ASSESSMENT, ” the reported stated,

Will continue with anti-inflammatory medications, a course of physical therapy, and tramadol as well as downgrading his tier level to assist him with some of his ADL[3] requirements. We will order an MRI of the lumbar spine and see him back in 2-3 months to review those results. . . . At this point, my plan is to manage him conservatively, see how his symptoms go, and see if on his next visit he would benefit from an epidural steroid injection based on the location of his maximal stenosis.

Dkt. No. 100-1 at 258. Neither the words “until further notice” or “until further workup” appear in the three-page report.

         At the time the Special Needs Committee gave him the pass, the plaintiff was living in general population, which, according to the defendants has a lot of stairs. Dkt. No. 117 at ¶¶21, 16. Some areas of the general population units do not have elevators (there is no elevator to get from the cell hall to the chapel, for example, or to the cafeteria). Id. at ¶17. The plaintiff agrees that there are a lot of stairs in general population, but he clarifies that the areas without elevator access that he frequented (the showers and the cafeteria) had only one or two stairs. Id. at ¶16; Dkt. No. 113 at ¶16. He says he didn't go to chapel or recreation because of the lack of accommodations. Id.

         About a month after receiving the elevator pass, on November 7, 2014, the plaintiff had another appointment with the off-site specialist. Dkt. No. 117 at ¶27. Prior to the appointment, the specialist ordered the plaintiff to undergo an MRI, which he did. Id. at ¶28. At the appointment, the specialist noted that the plaintiff's left leg symptoms had improved somewhat, but that the plaintiff was complaining of a significant spasm in his low back, particularly at night. Id. He also noted that the plaintiff appeared to be in no acute distress, that he arose easily from the chair, and that he walked freely into the room. Id. The specialist acknowledged that the plaintiff had difficulty with heel and toe walking due to pain, but that he had “5 out of 5” for strength in his legs. Id.

         The specialist recommended a trial of epidural steroid injections, increasing the plaintiff's gabapentin dosage at bedtime, a muscle relaxer at bedtime, and to follow up in three to four months. Id. at ¶29. According to the defendants, the specialist did not recommend a lower tier restriction as he had in August, did not recommend that the plaintiff take the elevator instead of the stairs and did not say that the plaintiff was “physically incapable of taking the stairs.” Id. The plaintiff disputes the defendants' interpretation of the specialist's order. He asserts that the November order should have been read as a supplement to the August order because the specialist did not redact or specifically revise the August order and because the August order was to continue “until further notice.” Dkt. No. 113 at ¶29.

         About a week after his November appointment with the specialist, the plaintiff was placed in the RHU. Dkt. No. 117 at ¶30. The RHU has far fewer stairs than general population; there are only about eight stairs that inmates must navigate. Id. at ¶31. A staff member always escorts inmates in the RHU. Id. at ¶32. Within a few days, security officers contacted HSU manager Schrubbe and asked her if the plaintiff had a medical need for an elevator pass. Id. at ¶33. The defendants say that, while there are elevators in the RHU, they typically are used to deliver meals and supplies and transport wheelchair bound inmates. Id. at ¶34. The plaintiff disagrees, asserting that the RHU elevators were used to transport inmates with disabilities. Id.; Dkt. No. 113 at ¶34.

         Schrubbe reviewed the plaintiff's file and discontinued his elevator pass, effective November 17, 2014. Id. at ¶36. According to the defendants, she made this decision for four reasons: 1) nothing in the specialist's November 2014 recommendation indicated that the plaintiff was physically incapable of using the stairs, dkt. no. 117 at ¶37; 2) the advanced care providers at the health services unit believed that the plaintiff was physically capable of using the stairs, dkt. no. 117 at ¶38, and, in October 2014, someone (the defendants do not identify who) observed the plaintiff carrying his mattress and sheets on his back down the stairs to a lower-tier cell, dkt. no. 117 at ¶39; 3) the number of stairs in the RHU was limited, especially compared to the stairs in general population, dkt. no. 117 at ¶40; and 4) in RHU, the plaintiff would be transported with a hands-on-escort, so there would always be at least one officer to assist the plaintiff gain his balance, dkt. no. 117 at ¶41.

         The plaintiff disagrees with Schrubbe's interpretation of the specialist's order. Dkt. No. 113 at ¶37. As noted above, he argues that the November order supplemented the August order; it did not replace it. Id. He further asserts that the only advanced care provider in health services who had an informed opinion of his capacity to take the stairs was Manlove, and Manlove told him that he would have approved an elevator pass. Id. at ¶38. The plaintiff also denies that that he carried his mattress down the stairs. Id. at ¶39. He explains that he had been housed in a lower-tier cell for two months by that date, so it wouldn't make sense that he'd be transporting his mattress down the stairs, and he says he wasn't moved near that time. Id. Next, he asserts that there were about five to six feet of stairs he had to navigate to get to medical appointments, visits and the showers. Id. at ¶40. Finally, the plaintiff asserts that he had no reason to think the correctional officers would catch him if he fell, because in June 2014 he was being transported from one location to another and a correctional officer allowed him to fall face-first down some fifteen stairs. Id. at ¶41.

         When the plaintiff rejoined general population, he was again permitted to use an elevator pass. Dkt. No. 117 at ¶42.

         B. The Plaintiff's Special Needs Claim

         On September 5, 2014, Manlove signed a medical restrictions/special needs form that allowed the plaintiff to have an extra bath towel, extra washcloth, briefs (also referred to as adult underwear) and clean bedding as needed for his urinary incontinence issues. Id. at ¶43. The restriction was to be in effect until December 5, 2014. Id. at ¶44. A little less than a month later, on October 1, 2014, Schrubbe, who was a member of the Special Needs Committee, updated the medical restriction/special needs form and approved Manlove's recommendation. Id. at ¶45. According to the defendants, Department of Corrections policy requires inmates ask the Special Needs Committee to update special needs restrictions at least thirty days prior to the restriction expiring. Id. at ¶46. The plaintiff explains that he did not know this was the policy; he also notes that he notified Manlove in person on November 21, 2014, that his restrictions were set to expire in about two weeks. Dkt. No. 113 at ¶47.

         DeYoung received a call from RHU security staff on December 5, 2014 (the day the restrictions expired), informing her that the plaintiff was claiming to have a linen exchange restriction, but that it had either expired or was not in the system. Dkt. No. 117 at ¶48. The plaintiff asserts that he also spoke to DeYoung in person that day about his restrictions expiring. Dkt. No. 113 at ¶48. According to the defendants, DeYoung entered a temporary order extending the plaintiff's linen exchange to March 2015, until the Special Needs Committee could review and approve the order. Dkt. No. 117 at ¶49. The defendants indicate that DeYoung sent the updated restriction to RHU, but that the restriction did not make it into the binder or WICS (the electronic log). Id. at ¶¶50, 69. The plaintiff disputes that DeYoung placed the order; he questions why the order is not in WICS and argues that she created the document after-the-fact. Dkt. No. 113 at ¶50.

         On December 5, 2014, the plaintiff filled out a health services request asking for his pillow, extra linen, cane, ice bag and briefs to be extended; he noted that these items expired on that day. Dkt. No. 117 at ¶51. According to the defendants, health services received the request three days later. Id. The defendants highlight that the request did not state that officers were refusing to provide the plaintiff with these items (though elsewhere they assert that policy compelled refusal of such requests), nor did his request inform health services that he was sleeping in urine-soiled sheets, blankets and clothing. Id. at ¶51. The plaintiff explains that he did not need to inform health services that he was wetting himself because his condition was well known. Dkt. No. 113 at ¶51.

         On December 10, 2014-two days after the date on which the defendants indicate they got the plaintiff's first HSU request-health services received another request from the plaintiff explaining that his restrictions had not been updated. Dkt. No. 117 at ¶52. Health services (the defendants do not specify who) forwarded the request to the Special Needs Committee. Id. According to the defendants, the plaintiff did not notify Manlove, Schrubbe, DeYoung or the Special Needs Committee that he was sleeping on urine-soiled bedding until December 17, 2014. Id. at ¶53. The plaintiff doesn't dispute that he didn't specifically notify them that he was sleeping on urine-soiled bedding and clothes, but he clarifies that he told Manlove his restrictions were about to expire on November 21, 2014, and on December 5 he told DeYoung his restrictions had expired. Dkt. No. 113 at ¶53, 48, 47.

         Schrubbe states that, as soon as she learned on December 17, 2014, that the plaintiff was sleeping on urine-soiled linen, she updated the special needs restrictions that same day, and the plaintiff received clean linens. Dkt. No. 117 at ¶54. Manlove, Schrubbe and DeYoung state that they did not know prior to December 17, 2014, that the December 5, 2014 order was not being followed, or that the plaintiff claimed that he wasn't getting clean linens. Id. at ¶55.

         Regarding the plaintiff's complaints about not receiving new briefs (adult diapers), the defendants indicate that he asked for a refill on November 3, 2014, and that this request was filled the next day, id. at ¶56; he asked again on December 25, 2014, and that request was filled three days later, id. at ¶58. The defendants assert that the package the plaintiff received on November 4, 2014 contained eighteen briefs, id. at ¶56, and they state that inmates are told to request refills five to seven business days before running out; that information is also in the inmate handbook. Id. at ¶57. The plaintiff explains that, if he did not soil a brief, he would wear it for multiple days, so sometimes a package of eighteen could last a month or two. Dkt. No. 113 at ¶56.

         C. The Plaintiff's Conditions of Confinement Claim

         The institution gives inmates two sheets, one hand towel, one face cloth and one pillowcase, which the inmates can exchange every Sunday. Dkt. No. 117 at ¶59. Inmates can exchange their blankets twice per year-a “one-for-one” exchange where the inmate can receive up to two blankets. Id. at ¶60. The institution allows inmates to exchange their linens or blankets more frequently if they have a restriction from the Special Needs Committee and/or health services. Id. at ¶61. Security staff are authorized to do more frequent linen or blanket exchanges only if there is a medical restriction. Id.

         Medical restrictions are stored in a binder that is in the sergeant's office. Id. at ¶63. The information is also in the WICS computer program. Id. The binder and WICS contain the medical restrictions for all inmates in RHU. Id.

         When an inmate with a medical restriction needs a linen or blanket exchange, it is the inmate's responsibility to contact security staff, who check the binder to confirm the inmate has a restriction. Id. at ¶64. If there is no restriction noted in the binder, security staff instruct the inmate to contact the Special Needs Committee or health services. Id. at ¶65. Under those circumstances, policy does not permit security staff to exchange an inmate's linen. Id. Nevertheless, according to the defendants, if an inmate shows them that his linen or blankets are soiled, they given him fresh linen and blankets “as needed.” Id. at ¶66. The defendants explain that, if an inmate has soiled linens or blankets, it jeopardizes the health and safety of everyone on the unit-inmates and staff. Id. at ¶67.

         The plaintiff asserts that on December 9, 2014, while at the showers, he asked Bleiler for clean linen. Dkt. No. 117 at ¶¶73-74; Dkt. No. 113 at ¶¶73, 74. The defendants don't appear to dispute this, but argue that because this conversation took place at the showers, Bleiler could not see the plaintiff's linens. Dkt. No. 117 at ¶74. The plaintiff alleged in his amended complaint that two days later, on December 11, 2014, he again awoke to soiled sheets, underwear and blanket. Dkt. No. 28 at ¶41. He told Marwitz, id. at ¶42; Dkt. No. 60 at ¶5 (identifying Marwitz as the officer involved in this incident). The plaintiff asserts that Marwitz told him that because there was no longer an approved special needs slip, Marwitz could not replace the soiled linens. Dkt. No. 113 at ¶76.

         On that same date-December 11, 2014-Price and Schmidt were working in the control center. Dkt. No. 117 at ¶¶77. The plaintiff alleged in the amended complaint that he pushed his emergency button and “asked the . . . officer working in the segregation bubble on first shift to please call H.S.U. because the PLAINTIFF was being forced to eat, sleep and sit in urine.” Dkt. No. 28 at ¶42. He later identified Price and Schmidt as the officers involved in this incident. Dkt. No. 60 at ¶6. The defendants assert that there is no record of the plaintiff calling the control center to complain about his linens that day, and that making such a request would have been inappropriate because soiled linens are not a medical emergency. Id. at ¶¶79-80.

         The amended complaint indicated that the plaintiff finally received clean linen from Moore on December 14, 2014, because it was linen exchange day, but that Moore would not exchange his soiled blanket because only linen was being exchanged that day. Dkt. No. 28 at ¶43; Dkt. No. 60 at ¶7. The plaintiff had another incident between December 14 and December 17; he says that on the 17th, he asked Beahm for clean linen and a diaper, but was told that there were no diapers on the medical cart for the plaintiff and that “he no longer had a medical need for such diapers, or linen.” Dkt. No. 28 at ¶44; Dkt. No. 60 at ¶8. The defendants argued that there were no diapers on the cart because the plaintiff failed to properly reorder them. Dkt. No. 117 at ¶85.

         Although the plaintiff alleges that he notified health services several times that he did not have his special needs items, the defendants allege that the first time he specified that he was sleeping on urine-soiled linens was December 17, 2014. Id. at ¶87. The plaintiff responds that he should not have had to specifically state that he was soiling himself. Id. The plaintiff received clean bedding and briefs that same day. Id. at ¶86.

         D. The Plaintiff's Migraine Claim

         The plaintiff had an appointment with DeYoung on January 21, 2015, to seek treatment for his headaches. Id. at ¶92. The plaintiff requested Excedrin Migraine, but that prescription had lapsed because he had not refilled it since July. Id. at ¶93. DeYoung noted that the plaintiff already was taking gabapentin, so she ordered acetaminophen, thinking that the plaintiff could treat his headaches by adding another medication that he could take with the gabapentin or in between doses of gabapentin. Id. at ¶94. (The plaintiff says he never got the acetaminophen. Id.) The plaintiff states that DeYoung told him that she would consult with Manlove about what other medications would be needed. Dkt. No. 113 at ¶95.

         A little more than two weeks later, on February 6, 2015, DeYoung saw the plaintiff again to follow up on his headaches. Dkt. No. 117 at ¶96. The defendants assert that the plaintiff told DeYoung that the acetaminophen was not helping. Id. at ¶97. According to the plaintiff, DeYoung told him that she had forgotten to talk to Manlove about prescribing other medications to treat his migraines, dkt. no. 113 at ¶96, and he never got the acetaminophen, dkt. no. 113 at ¶97.

         That same day, DeYoung spoke with Manlove, who orally prescribed Nortriptyline, which can be used to treat and prevent headaches. Dkt. No. 117 at ¶98. Although DeYoung put the order in the Prescriber's Orders, the order “did not make it” onto the plaintiff's Medication Profile. Id. at ¶99. As a result, the medication room never received the order, id. at ¶100, which meant that Nortriptyline was never ordered from the pharmacy or delivered to the plaintiff, id. at ¶101.

         About a week later, on February 12, 2015, and again on March 17, 2015, DeYoung had appointments with the plaintiff. Id. at ¶108. The defendants assert that the plaintiff did not complaint about not receiving the Nortriptyline at either appointment, dkt. no. 117 at ¶108; according to the plaintiff, he did not know that Manlove had ordered Nortriptyline, so he asked DeYoung if anything was being done about getting him medication for his migraines, dkt. no. 113 at ¶108. The plaintiff asserts that DeYoung told him that he had another surgery coming up that would hopefully cure the migraines. Id. The plaintiff also asserts that, on February 15, 2015, he asked Schrubbe if DeYoung had talked to the doctor about medication for his migraines. Id. at ¶106.

         The plaintiff concedes that he saw other health care providers between February and May 2015, but he asserts that he did not know that Manlove had prescribed Nortriptyline. Id. at ¶109. The plaintiff further concedes that he was taking other pain medications during that time for his back condition, but he explains that they did not prevent his migraines from occurring nor did they help with the pain from his migraines. Id. at ¶¶110-111.

         According to the defendants, inmates are told that, if their medications do not arrive within seven to ten days, they should contact health services to notify them of the delay. Dkt. No. 117 at ¶103. The plaintiff explains that he did not know that Manlove had prescribed Nortriptyline, so he did not know there was a delay in it being delivered. Dkt. No. 113 at ¶103.

         On May 9, 2015, more than three months after Manlove orally prescribed Nortriptyline, the plaintiff received a response to an inmate complaint he had filed. Id. at ¶105. The response indicated that Manlove had prescribed medication to address his migraines, but no one had ordered the medication. Id. That same day, the plaintiff sent a health services request to HSU, complaining that he had not received the medication. Dkt. No. 117 at ¶105. Health services received the request the next day and sent an order to the medication room on May 11, 2014. Id. at ¶¶105-106. The defendants assert that May 11, 2015 was the first time the medication room became aware that an order for Nortriptyline existed for the plaintiff. Id. at ¶105. The plaintiff received his first dosage of Nortriptyline on May 15, 2015. Id. at ¶107.

         II. ...


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