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Franklin v. Dittman

United States District Court, W.D. Wisconsin

April 12, 2019

MICHAEL DITTMAN, et al., Defendants.



         In response to the parties' diverging version of events in previous submissions, the court directed defendants to provide evidentiary answers, if possible, to seven questions regarding plaintiff's access to and receipt of his insulin, carvedilol, and gabapentin.[1] (See dkt. #26 at 1-2.) This opinion summarizes the evidence provided by defendants and outlines the next steps following the court's telephonic scheduling conference on April 10, 2019.

         I. Blood Sugar Monitoring and Insulin

         Franklin declared that after December 17, 2018, he has had trouble receiving his timely doses of insulin because he is not let out of his cell to go to the HSU in accordance with a new policy. (Dkt. #25 at ¶ 6.) Generally, he alleges that following the court's December 14, 2018 order, he “has had consistent problems with defendants refusing to give him his insulin and pain medication.”[2] (Id. at ¶ 8.) More specifically, he identified a number of incidents in which he was denied his insulin outright, not given it in a timely manner, or not permitted to go to HSU under the new policy. (See Id. at ¶ 10.) Accordingly, the first two questions that the court posed involved documentation showing that: (1) “plaintiff was regularly let out of his cell to go to HSU to check his blood sugar and take his insulin between December 17, 2018 and the mid-January lockdown”; and (2) “plaintiff regularly received his insulin during the lockdown in mid-January.” (Dkt. #26 at 1.)

         In response, defendants submitted plaintiff's January 2019 diabetic log, which includes Franklin's morning and evening blood sugar readings and units of insulin taken. (Dkt. #32-1 at 2.) Generally, this log reflects two blood sugar readings and two or three doses of insulin per day. However, this log arguably provides documentary support for some of plaintiff's concerns, either directly or by inference:

Reported Incident


On January 2, 2019, defendant Fabry and non-defendant Cascade refused to let Franklin out of his cell to get his insulin at 3:30 p.m. (Dkt. #25 at ¶ 10f.)

On January 2, 2019, Franklin's evening blood sugar reading was 335, even though he took the same morning doses as the day before (on which he had an evening blood sugar reading of 162). (Dkt. #32-1 at 2.)

On January 3, 2019, the log has no blood sugar reading or insulin dosage at night. (Id.)

On January 11, 2019, defendant Fabry and non-defendant Cascade refused to let Franklin out of his cell to get his insulin at 3:30 p.m. (Dkt. #25 at ¶ 10g.)

Franklin's evening blood sugar reading was 429 on January 11; that morning his reading was 73 and he took the same morning insulin dose (50L, 8R). (Dkt. #32-1 at 2.)

On January 14, 2019, at around 2:30 or 3 p.m., non-defendant CO Oregon refused to discuss Franklin's insulin because she did not have time. When she returned around 7 p.m., she said she would call HSU. At 8:45, she returned with a male nurse; Oregon told Franklin that he would not get his insulin because he had failed to force her to give it to him earlier. The male nurse said the insulin had been sent to the unit in the afternoon and detailed who was supposed to get what medication when. (Id. at ¶ 10h.)

The log has a note “refused to give me insulin” on January 14, 2019. (Dkt. #32-1 at 2.) There is a nursing narrative note, which states:

During HS medication, offender brought to nurse's attention that he had not received his insulin. Nurse informed offender that glucometer was on unit and that custody would be passing them out, and that the nurse would review his chart to be sure it was ordered correctly. Offender began to argue with staff and become bel[l]iger[e]nt cursing at both officer and nurse. Due to volatile response, officer instructed nurse off the tier and medication was marked as refusal due to offender's behavior.

(Id. at 3.)

         Additionally, the log shows that Franklin received no insulin all day on January 8 and no insulin on the evenings of January 9 and 30.

         On the other hand, some of plaintiff's allegations are arguably contradicted by the contemporaneous diabetic log, or at least are not supported. For instance, plaintiff alleged that on January 15, 2019, he was denied his timely afternoon insulin despite specifically asking a male nurse for it, because the nurse claimed that Franklin “cussed” at him, which was considered a refusal. (Id. at ¶ 10i.) On January 15, the log shows that Franklin had a glucose reading of 206 and took 50 units of long-acting insulin. (Dkt. #32-1 at 2.)[3]

         Moreover, the court explicitly directed Franklin to “maintain a careful, written log of his blood sugar, noting the date, time and blood sugar reading . . . each time he checks his sugar, as well as a contemporaneous written record of when receives each medication, ” and to submit his log to the court at the end of February. (Dkt. #26 at 2.) Instead of submitting a log, plaintiff provided another declaration contending that he “is still having problems getting his insulin at prescribed times, ” which caused his failure to take a “fasting reading in quite some time.”[4](Dkt. #36 at ¶ 6.) He further claims that CCI is still failing to take him out of his cell for his timely doses of insulin.[5] (Id. at ¶ 8.)

         Following a second order directing him to provide his February blood sugar log (and other materials) on April 1, plaintiff submitted his blood sugar logs for February, March and the start of April. (Dkt. #39 at 1-3.) These logs generally show two blood sugar readings each day, with a few notable exceptions. In early February, plaintiff has no readings for four and a half days (id. at 3), which plaintiff explained during the telephonic scheduling conference was due to his being sick during this period. In early March, Franklin also noted that CCI “refused to send me down” in the morning, and there are two days when he did not receive any evening insulin or test his blood sugar. (Id. at 1.) Finally, as discussed at the telephonic scheduling conference, plaintiff noted that throughout March his morning blood sugar readings were taken after he already ate breakfast, challenging their usefulness. (See Id. (noting morning readings were “[a]fter breakfast”).)

         At this point, plaintiff's main complaint is that he is not provided the opportunity to check his blood sugar as prescribed at 6:30 a.m., but rather is routinely allowed to check it only after breakfast around 8:30 a.m. He also complains that his afternoon reading and insulin are sporadically delayed. Defense counsel represented that her understanding was that the delays in plaintiff's receipt of insulin were caused by his behavior, not by a systemic problem. As the court noted during the telephonic scheduling conference and will be addressed in more detail below, this dispute, in particular, necessitates an evidentiary hearing on plaintiff's motion for preliminary injunction.

         On the telephone, the court again directed plaintiff to record the time, in addition to the date, of his glucose readings on an ongoing basis. Based on plaintiff's representation that his accucheck machine records the date and time of reading, and defendant's representation the Assure Prism software lacks a history download feature (see dkt. #22 at ¶ 10), the court directed Attorney Rakvic-Farr to provide a log of the readings from January 1, 2019, or the earliest reading saved, whichever is later.[6]

         II. A1c Reading of 8.1

         Next, the court asked what information plaintiff's A1c reading of 8.1 provides. (Dkt. #26 at 1.) Dr. Labby opined that this reading “reflects moderately acceptable control, ” so that plaintiff's “risk of chronic complications associated with diabetes is moderate, ” explaining that:

An A1c of 8.1% reflects an average blood glucose level of 185 mg/dl (in non-diabetics the average sugar level should be around 120 mg/dl or less). In general, the higher the average blood glucose level, the faster and more severe that the chronic complications of diabetes can occur. Ideal diabetic control leads to an A1c level of 7% or less. Undiagnosed or completely noncompliant diabetics can have A1cs at 12-13%.

(Dkt. #33 at ¶¶ 6-7.) An A1c reflects a person's “average blood sugar level for the past two to three months” by “measur[ing] what percentage of [the patient's] hemoglobin . . . is coated with sugar.” A1C Test, Mayo Clinic,

         While this would suggest that Franklin's diabetes is being reasonably managed by Columbia's HSU, the wide range of his actual readings would appear reason for concern, particularly when they seem to coincide with failed insulin deliveries. In January, Franklin's glucose readings ranged from a low of 62 to a high of 475. (Dkt. #32-1 at 2.) Throughout January, he averaged a glucose reading of approximately 137 in the mornings, and approximately 211 in the evenings. In February, his glucose readings ranged from a low of 62 to a high of 427. (Dkt. #39 at 3.) In the morning, he averaged a glucose reading of approximately 112 and approximately 228 at night. In March, his glucose ranged from a low of 70 to a high of 300. (Id. at 1.) In the mornings, his glucose readings averaged approximately 127 and, in the evenings, approximately 178.[7] Consistent with plaintiff's concession during the telephonic hearing that the situation has improved, overall it seems his diabetes is more recently better controlled, yet spikes in his blood sugar remain.

         III. ...

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