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Zavala v. Waterman

United States District Court, W.D. Wisconsin

May 7, 2019

JIMMY ZAVALA, Plaintiff,



         Plaintiff Jimmy Zavala, appearing pro se, is an inmate at Wisconsin Secure Program Facility. He alleges that defendant prison officials failed to properly treat him after he injured his back working at his prison job. He brings claims under the Eighth Amendment and Wisconsin negligence law.

         All of the defendants except Sandra McArdle are represented by the state, and they have filed a motion for summary judgment. Dkt. 76. I will refer to these defendants as the “state defendants.” Defendant McArdle has filed her own motion for summary judgment. Dkt. 87. Those motions are fully briefed. Zavala has filed motions for sanctions against defendants, for appointment of counsel, and to amend his complaint.

         For reasons stated below, I will deny plaintiff's various motions. After considering the parties' summary judgment materials, I conclude that there are no genuine disputes of material fact regarding Zavala's medical treatment, and that no reasonable jury could conclude from the extensive treatment Zavala received that any of the defendants were deliberately indifferent to his back problem. I will grant defendants' motions for summary judgment regarding Zavala's Eighth Amendment claims, and I will decline to continue exercising supplemental jurisdiction over Zavala's state-law claims.


         A. Motions to amend complaint

         I previously denied Zavala's requests to amend or supplement his complaint to add new claims against several of the defendants for knowingly sending him to an off-site MRI scan despite knowing that he has metal rods in his back; I concluded that Zavala unduly delayed in making those requests. Dkt. 106, at 1-2. Zavala also asked the court to include the Wisconsin Injured Patients and Families Compensation Fund as a defendant, because it “is the supplemental insurer for defendants.” Dkt. 94. The state defendants responded that is took no position on the motion. I gave defendant McArdle a final opportunity to respond to the motion herself; she responded that she also took no position on the motion. Dkt. 110.

         Zavala has filed another motion to amend his complaint, raising issues similar to his earlier motions discussed above. Dkt. 130. He seeks to amend his amended complaint to elaborate on claims about being sent to an MRI and what he believes were injuries suffered because of it. But his amended complaint is not the operative complaint; as stated above, I denied his request to amend his complaint. His new proposed allegations have the same problems as his earlier attempt to amend, so I will deny his new motion to amend as well.

         Zavala would also like to amend his complaint to add as a defendant Maxim Physician Resources, McArdles's employer, so that he can hold it liable under a respondeat superior theory on his state-law negligence claims against McArdle. But this request and his earlier request to add the Wisconsin Injured Patients and Families Compensation Fund are rendered moot by this summary judgment opinion. These proposed new defendants are perhaps relevant to his state-law negligence claims, but I am relinquishing jurisdiction over those claims because I am granting summary judgment to defendants on all of his federal claims. So I will deny his motions to amend his complaint concerning the proposed new defendants.

         B. Motion for sanctions

         Zavala filed a motion to dismiss defendants McArdle and Waterman because he believes that they perjured themselves by contradicting each other about when McArdle worked at WSPF, Dkt. 104, which I construed as a motion for entry of judgment against those defendants as a sanction. I denied that motion, stating that at that point in the proceedings, Zavala had not submitted enough evidence to prove that such an extreme sanction was appropriate. See Dkt. 106, at 4-5. Zavala had to yet submit his own response to either of the summary judgment motions, so it was unclear what material facts the parties were disputing, or whether defendants' versions were actually inconsistent. Id. at 5. I told Zavala that he could renew his motion along with his summary judgement response.

         Defendants McArdle and Waterman each filed motions to supplement their proposed findings of fact to explain the discrepancies in defendants' proposed findings, Dkt. 109 and Dkt. 120, which the court granted. Zavala opposed those additional findings, and I take him to be renewing his motion for sanctions.

         After reviewing all of the parties' materials, I conclude that defendants' initially contradictory accounts are not a reason to sanction them. Waterman initially said that on May 19, 2016, McArdle ordered an MRI for Zavala and referred him to physical therapy. Dkt. 79, at 13, ¶ 51. But McArdle stated that her first day at WSPF “on this assignment” was January 1, 2017, Dkt. 91, at 5, ¶ 35, and she did not mention the May 19, 2016 order discussed in Waterman's declaration. Zavala seized on this discrepancy.

         In their supplemental materials, Waterman and McArdle both revise their version of events. McArdle now says that she indeed worked ten shifts at WSPF in May and June 2016 on a part-time basis, and that her first full-time day at WSPF was January 1, 2017. Waterman says that she was incorrect in saying that McArdle ordered the MRI or referred Zavala for physical therapy in May 2016. Rather, an outside provider made those orders and McArdle approved them. Defendants' new accounts are consistent with each other and with the medical record for the May 19, 2016 order, which includes what appears to be McArdle's signature. Dkt. 79-1, at 40.

         In denying Zavala's original motion, I stated that he “should be aware that findings of perjury are rare: inconsistences in testimony are often a result of fallible human memory or other mistakes, not perjury.” Dkt. 106, at 5. I am persuaded that the discrepancy here was simply the result of a mistake or McArdle's faulty memory in recalling her work at WSPF. There is no reason to think that either McArdle or Waterman intentionally lied in their original declarations, nor is it clear what they would have stood to gain by doing so. I will deny Zavala's renewed request for sanctions.

         C. Recruitment of counsel

         Zavala renews his previously denied request for recruitment of counsel to assist him. Dkt. 127. In my December 14, 2018 order, I denied his motion for recruitment of counsel and I gave him another chance to file materials opposing defendants' summary judgment motions after he missed his deadline. Dkt. 106, at 4-5. I stated that Zavala had proven capable of filing understandable and reasoned motions, so he should be able to set out his version of events in his summary judgment opposition materials. Id. at 4. I also stated that without seeing Zavala's summary judgment responses, it was impossible to tell whether the case was truly too complex for him to litigate. Id. at 4-5.

         Now that I have the benefit of seeing Zavala's summary judgment responses, I will deny his renewed motion for the assistance of counsel. Zavala's responses are not perfect, but I do understand his version of events and the legal arguments he is making.

         For instance, Zavala makes many fruitless objections to defendants' proposed findings of fact citing to medical records, on the ground that the defendant citing a particular record did not have knowledge of the events contained within the record. But I do not take him to genuinely dispute the authenticity of his medical records-he relies on the records himself for many of his responses. And he generally does not actually dispute the events described in the records; he just disagrees about what legal conclusions can be drawn from them. I will disregard his objections to his medical records unless he genuinely disputes the contents of a particular finding of fact.

         Ultimately, the problem for Zavala is not that he is unable to understand the complexity of the case, but that the undisputed facts fail to show that defendants acted with deliberate indifference toward his medical needs.

         D. Motion to stay deadlines

         The two sets of defendants have filed a joint motion to stay the trial-related deadlines pending resolution of their summary judgment motions. Because this opinion and order resolved the summary judgment motions, I will deny defendants' motion as moot.


         The following facts are drawn from the parties' summary judgment materials and are undisputed unless otherwise noted. As stated above, I will disregard many of Zavala's objections to defendants' proposed findings of fact recounting information from his medical records, and I will consider those proposed findings as undisputed.

         A. Parties

         Plaintiff Jimmy Zavala is an inmate incarcerated at Wisconsin Secure Program Facility (WSPF). Most of the defendants were Department of Corrections employees: Jolinda Waterman was the health services manager, Sonya Anderson was a nurse clinician, and Lori Alsum was a nursing coordinator. Several of the defendants sat on the “Special Needs Committee, ” a rotating group of medical and non-medical officials that decides prisoner requests for “special needs” or “comfort” items: Anderson, Waterman, Deputy Warden Daniel Winkleski, Security Director Mark Kartman, unit manager Brian Kool, and financial program supervisor Carrie Sutter. The final defendant, Sandra McArdle, is a nurse practitioner who worked for a company that was contracted to provide medical services at WSPF.

         B. Zavala's medical treatment

         About 20 years ago, Zavala badly injured his back. He had surgery that resulted in metal hardware being placed on his lower spine. Zavala also has a bullet lodged near his tailbone.

         On March 1, 2016, Zavala was seen by an outside nurse practitioner by “telemed.” Zavala said that he was experiencing pain and numbness in his left thigh and lower back. On March 26, 2016, Zavala injured his back lifting a heavy object. A non-defendant nurse gave Zavala “muscle rub” and acetaminophen. Zavala was seen several days later by non-defendant Nurse Practitioner Tanya Bonson, who ordered him an anti-inflammatory injection of Solu-Medrol that he received the next day. Bonson also prescribed Zavala analgesic rub, a muscle relaxant, tramadol (narcotic pain medication), and a “safety belt” for his back, although Zavala says that he did not receive the belt. Bonson also told Zavala to continue taking acetaminophen.[2]

         In May, Zavala saw an outside nurse practitioner by telemed. She ordered Zavala an MRI and physical therapy, and to be assessed for a transcutaneous electrical nerve stimulation (“TENS”) unit. McArdle reviewed those orders and signed off on them.

         Zavala began physical therapy on June 14, 2016. A week later, the therapist approved Zavala for a TENS unit. On July 20, 2016, Zavala submitted a health service request (“HSR”) stating that security staff members were interfering with his medical treatment by allowing him only 20 minutes to use a TENS Unit. Waterman followed up on a response by another nurse, telling Zavala ...

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