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Holm v. Helgerson

United States District Court, W.D. Wisconsin

March 14, 2019

VICTOR HOLM, Plaintiff,



         Pro se plaintiff Victor Holm is proceeding on Eighth Amendment claims that health care staff at the Columbia Correctional Institution failed to provide him appropriate treatment for a herniated disc and three bulging discs in his spine in 2011 and between 2015 and March 2017. (I have amended the caption of the complaint to reflect defendants' full names and the correct spelling of their names). Now before the court is defendants' motion for summary judgment. Dkt. #30. For the reasons explained below, I am granting the motion and closing this case.

         As a preliminary matter, I note that plaintiff has responded to some of defendants' proposed findings of fact with an argument or a statement of his own conclusory opinion and not citing any admissible evidence in support of his contention. This practice violates the court's summary judgment procedures, which direct parties that “[e]ach fact proposed in disputing a moving party's proposed factual statement . . . must be supported by admissible evidence. The court will not search the record for evidence. . . . or consider any factual propositions made in response to the moving party's proposed facts that are not supported properly and sufficiently by admissible evidence.” Pretr. Conf. Ord., dkt. #15, at 20. Therefore, I have considered plaintiff's responses to defendants' proposed findings of fact only to the extent that they are clearly and obviously supported by citations to admissible evidence.

         With this consideration in mind, I find the following facts to be undisputed unless otherwise noted.


         A. The Parties

         At all times relevant to this case, plaintiff Victor Holm was incarcerated at the Columbia Correctional Institution. Defendants have all worked at Columbia at some time.

         During all times relevant to this lawsuit, defendant Jamie Gohde was the health services unit manager and defendants Steven Helgerson and Trisha Anderson were nurses. Helgerson and Anderson provided direct medical treatment to plaintiff, but Gohde's duties do not usually involve providing direct care to patients. The health services unit manager and the nurse clinicians do not have authority to prescribe medications.

         Defendant Dr. Dalia Suliene was a physician at the prison between January 3, 2006 and April 5, 2013. Dr. Salam Syed is currently employed as a physician at Columbia and has worked at various institutions since July 2014. Defendant Dr. Karl Hoffmann was a physician at Columbia between February 12, 2014 and March or April 2015. Defendant Fern Springs was employed as a half-time physician at the Chippewa Valley Correctional Treatment Facility from August 2005 until July 2015 but covered vacancies at other institutions as needed. Between February 2016 and November 2017, Springs was employed as a limited term employee with the Department of Corrections. The physician defendants are not surgeons and do not have the authority to order surgery in the absence of a recommendation from a surgeon indicating that surgery is necessary.

         B. Health Service Requests

         Inmates at Columbia must submit a health service request to the health services unit if they require non-emergency medical attention. Health services unit staff try to triage all requests received within 24 hours of receipt, that is, they review requests from prisoners and evaluate the urgency of each. If they believe that the request is urgent or represents an emergency, arrangements will be made for a same day appointment, if possible, for evaluation by a health care provider. Although the health services unit manager's duties include responding to health service requests, the majority of these requests are first reviewed by nursing staff.

         It is the unit's general practice not to refer inmates to an advanced care provider until nursing staff have assessed or examined the inmate. Nursing staff do not have control over the schedules of advanced care providers, who may have to change their schedules or respond to emergency situations.

         C. 2011 Treatment by Helgerson, Suliene and Springs

         On May 23, 2011, plaintiff saw defendant Helgerson for back, chest and arm pain that started after plaintiff had completed 150 push-ups. Helgerson consulted Dr. Suliene, who prescribed Vicodin, an arm sling and an extra pillow. Suliene ordered a neck and thoracic spine x-ray for the following day and gave plaintiff a one-week course of Flexeril for muscle spasms. She also placed plaintiff on a two-week recreation restriction and planned to see him for a follow up in one week. Later that day, plaintiff saw Nurse Joe Reda, who gave plaintiff 50 milligram ibuprofen tablets during an emergency sick call visit.

         Plaintiff's May 24, 2011 x-rays showed some bone spurring and disc narrowing in his cervical spine but no fracture. The radiologist recommended a magnetic resonance imaging study.

         Plaintiff submitted health service requests dated May 25 and 26, 2011, stating that the ibuprofen and muscle relaxers were not helping his shoulder and arm pain and that he had run out of his 600 milligram tablets of ibuprofen. He asked to be seen immediately for unrelenting pain that was preventing him from sleeping, walking and putting his shoes on. Helgerson received the forms on May 28, 2011 and saw plaintiff at sick call the same day. Plaintiff requested stronger pain medication. Helgerson observed plaintiff get up on the exam table easily and remove his shirt without difficulty. Plaintiff's hand grasp was strong, he could move his arm all the way out and back with minimal issues and he had no edema, redness or limits in his range of motion. (Although plaintiff says that he disputes Helegerson's account, he does not say that he could not do any of these things during the examination.) Helgerson noted in plaintiff's chart that plaintiff was taking five ibuprofen tablets at a time, which is far more than the normal amount. Helgerson asked the on-call physician, Dr. Springs, whether plaintiff's medication should be changed because plaintiff was asking for stronger pain medication. Springs did not order different medication because plaintiff was already prescribed 600 milligrams of ibuprofen four times a day, his x-rays did not show serious abnormalities and his physical examination showed a normal range of motion. Plaintiff was scheduled to see a physician within three days.

         Suspecting that plaintiff was abusing his medication, Helgerson asked plaintiff's housing unit to make plaintiff's ibuprofen “controlled” so that plaintiff would no longer have the drug in his possession and the medication would be dispensed at certain times of the day. Beginning May 29, 2011, plaintiff was offered 600 milligrams of ibuprofen four times a day as prescribed. (Plaintiff says that he had not been taking too much ibuprofen because he was taking five of the 50 milligram tablets he received on May 23, 2011, which was less than his total prescribed amount. Plaintiff says in his affidavit that he tried to explain this to Helgerson but Helgerson did not listen to him.) According to defendant Dr. Springs, making a medication controlled prevents inmates from abusing or overdosing on a medication because they do not have them in their possession to take as often as they please. If health services unit staff have reason to believe that an inmate could be abusing medication, they have the authority to make that medication controlled.

         On May 31, 2011, plaintiff saw defendant Dr. Suliene, who requested approval from the institution's medical committee for a magnetic resonance imaging study and ordered physical therapy for plaintiff. On June 1, 2011, she renewed plaintiff's ibuprofen prescription and also prescribed gabapentin for additional pain management. According to Suliene, she prescribed gabapentin because it enhances the effect of pain medications, which she believed might reduce plaintiff's pain.

         Plaintiff submitted two health service request forms dated June 7, 2011, and the health services unit received them on June 8. In one form, plaintiff complained that he had not been treated or diagnosed by Dr. Suliene. Helgerson responded on June 8, 2011 that various medical professionals had seen plaintiff numerous times since May 23, 2011. Helgerson also scheduled a nurse appointment for plaintiff for the next day. Helgerson forwarded the health service request for a doctor's review. Plaintiff directed his second health service request to Dr. Suliene, complaining that she had not prescribed him long-term pain medication and that his pain was not improving. Helgerson forwarded this request to a doctor for review, and Dr. Suliene responded on June 8, telling plaintiff that he should take the gabapentin as prescribed and that he had an imaging study scheduled.

         Plaintiff's magnetic resonance imaging study was approved on June 7, 2011 and performed on June 16. It showed arthritic cervical spine changes (herniated and bulging discs).

         On June 20, 2011, plaintiff submitted a health service request for “emergency medical services” because he had severe pain that was not responding to medication. On June 21, 2011, plaintiff saw Dr. Correll, another institution provider. (Defendants say that Correll explained to plaintiff that there was no surgical remedy for his condition. Plaintiff says that the first specialist whom he saw at the University of Wisconsin Hospital and Clinics told him about a less invasive “laser spine surgery.” Although plaintiff at one point identifies Dr. Correll as the specialist, that does not seem to be the case.) Plaintiff also saw Dr. Kenneth Adler (not a defendant) on June 22, 2011 for a follow-up for his neck and shoulder pain. Dr. Adler increased plaintiff's gabapentin dosage and scheduled another follow-up appointment.

         On June 24, 2011, plaintiff's muscle relaxer was discontinued pursuant to a health services unit policy that limited an inmate's use of the medication to three weeks. The same day, plaintiff submitted a health service request for emergency medical services. Helgerson responded that he had a sick call scheduled. Plaintiff underwent trigger point steroid injections on July 1, 2011, but he told Helgerson on July 2 that they were not helpful. Helgerson told plaintiff to raise his concerns at his upcoming appointment with Dr. Suliene.

         On July 7, 2011, Dr. Suliene saw plaintiff and noted that he was uncomfortable and in pain. She referred plaintiff to the University of Wisconsin Orthopedics and Spine Clinic for further evaluation, requested a nerve study and placed plaintiff on a light activity medical restriction for his prison work.

         An August 18, 2011 nerve study confirmed chronic nerve damage in plaintiff's neck resulting from degenerative changes. Plaintiff was seen at the spine clinic on November 11, 2011 and March 9, 2012, but surgery was not recommended on either visit. (Records from the 2012 appointment show that plaintiff reported that his pain was almost gone. Plaintiff denies saying this and says that he has been in severe pain since May 2011.)

         The parties do not discuss any further treatment that plaintiff may have received in 2012 and 2013.

         D. 2014 Treatment by Hoffmann

         Dr. Hoffmann first saw plaintiff on July 14, 2014. Plaintiff complained about right shoulder and neck pain from lifting a heavy box in 2013. At the time of the appointment, plaintiff was participating in physical therapy, but he reported that doing so caused radiating pain into his neck. Hoffmann reviewed the 2011 imaging studies and performed a physical examination. He concluded that plaintiff's symptoms might be the result of a rotator cuff injury, so he referred plaintiff for an orthopedic consultation with Dr. Ellen O'Brien. On O'Brien's recommendation, Hoffmann ordered x-rays and requested another imaging study for plaintiff on August 20, 2014.

         Plaintiff's August 26, 2014 x-rays were normal. A November 18, 2014 imaging study showed a partial tear of the labrum, which Hoffman explains shows rotator cuff tendinosis, a common cause of shoulder pain caused by aging or other factors. On November 20, 2014, Dr. O'Brien referred plaintiff to the University ...

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