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Grant v. Heidorn

United States District Court, E.D. Wisconsin

June 24, 2019

STEPHEN L. GRANT, Plaintiff,



         Plaintiff Stephen L. Grant, who is currently representing himself and serving a state prison sentence at Columbia Correctional Institution, filed a complaint under 42 U.S.C. § 1983, alleging Defendants Richard Heidorn, Paul Sumnicht, and Mary Sauvey were deliberately indifferent to his serious medical needs. In particular, Grant asserts that from June 2009 to August 2016, Defendants refused to order an MRI or send him to an orthopedic specialist for his chronic left knee pain. On October 24, 2018, Defendants moved for summary judgment. After allowing Grant a number of extensions to respond to the summary judgment motion, Grant filed a response brief on April 3, 2019. He subsequently filed a motion for leave to file an amended brief opposing Defendants' motion for summary judgment. For the reasons that follow, Grant's motion for leave will be granted, Defendants' motion will be granted, and the case will be dismissed.


         At all times relevant Grant was an inmate housed at Green Bay Correctional Institution (GBCI). Defendants were physicians working at GBCI during different time periods from 2007 through 2016.[1] Defs.' Proposed Findings of Fact, Dkt. 38.

         During Dr. Heidorn's time as a treating provider for Grant from 2007 through October 2012, Dr. Heidorn treated Grant for his chronic pain conditions, including lower back pain and left knee pain. On June 10, 2009, Nurse M. Vanderkinter saw Grant in the Health Services Unit (HSU) for his left knee pain. Grant indicates that he told Nurse Vanderkinter that he injured his left knee while playing basketball during his confinement at Waupun Correctional Institution in November 1999. Grant reported that he no longer had a housing unit job and did not have access to ice to help with his pain. He requested ice, an orthopedic consult, and an MRI for his left knee. HSU staff advised that they would consult a physician for follow-up on his left knee.

         Dr. Heidorn saw Grant regarding his increasing left knee pain on June 18, 2009. Dr. Heidorn observed that Grant's left knee had no effusion and that Grant resisted motion, claiming severe pain. Dr. Heidorn indicated that Grant's knee was stable. Dr. Heidorn did not order an MRI at that time because there was a lack of physical findings confirming any significant disease that would warrant an MRI. Instead, he diagnosed Grant with chronic knee pain; ordered an x-ray, laboratory, and non-steroidal anti-inflammatory drugs (NSAIDs); and advised Grant to continue his home exercise program and to use a knee sleeve. Dr. Heidorn ordered x-rays to act as a baseline to evaluate the progression of the degenerative disease that existed in Grant's left knee.

         Grant had an x-ray as ordered by Dr. Heidorn on June 25, 2009. The radiologist found an “unremarkable left knee” and recommended following up in two months. Grant had a second x-ray on July 9, 2009. The x-ray revealed mild degenerative changes with periarticular sclerosis and minimal narrowing of the medial joint compartment. There was no significant interval change. Grant had a third x-ray on March 25, 2010, which again revealed mild degenerative changes with periarticular sclerosis and minimal narrowing of the medial joint compartment. A small osseous protrusion was noted emanating from the proximal tibial shaft, which appeared stable. Based on these x-rays and his professional experience, Dr. Heidorn concluded it was not necessary to order an MRI for Grant because there was no evidence of significant degenerative joint disease or progression of his mild degenerative joint disease. On July 7, 2011, x-rays were taken which showed no significant change when compared to the March 25, 2010 x-ray. The x-ray revealed mild degenerative changes and minimal narrowing of the medial joint compartments in the left knee. Because the x-rays showed no significant changes and no progression of the degenerative disease in Grant's left knee, Dr. Heidorn did not order an MRI.

         Although Dr. Heidorn did not order an MRI or request a referral with an offsite orthopedic specialist, Grant was consistently evaluated by health care providers. More specifically, HSU staff saw Grant a total of ten times for complaints related to his left knee pain. Dr. Heidorn treated Grant's complaints of pain through conservative measures. In treating Grant's mild degenerative disease in his left knee, Dr. Heidorn ordered that Grant be allowed to eat in his cell, have a lower bunk, have a no-kneel restriction, have extra blankets and pillows to prop his leg up at night, have an extra mattress, and use ice as needed. Dr. Heidorn also prescribed medications including Meloxicam, Lisinopril, Atenolol, and Simvastatin. When Grant reported that the medications were ineffective, Dr. Heidorn changed the dosages and prescribed new medications in an effort to manage Grant's pain. Dr. Heidorn also ordered a physical therapy evaluation for Grant's chronic pain conditions. The physical therapy was discontinued on November 10, 2011, because Grant failed to cooperate in physical therapy, insisting that he needed an MRI and orthopedic evaluation.

         Dr. Sumnicht transferred to GBCI in October 2012 and continued the ongoing plan of care for Grant's chronic left knee pain and low back pain. He first saw Grant at a February 11, 2013 appointment, and they discussed Grant's left knee and back pain. On examination, Grant had left leg weakness, which suggested back problems. X-rays of the back revealed disc problems that could pinch the nerves going to the knees. The left knee examination showed swelling outside of the knee on the lateral side but there was no internal damage to the cartilage, ligaments, or meniscus. Dr. Sumnicht diagnosed Grant with mild arthritis of the low back with disc degeneration and knee pain of many possible causes, including a medication side effect, sprain of the lateral knee, or pain coming down from the back. To assist in the diagnosis of Grant's knee pain, Dr. Sumnicht discontinued Grant's cholesterol medicine and ordered arthritis blood tests and a knee x-ray. Dr. Sumnicht prescribed Ibuprofen for pain and local knee swelling and Nortriptyline for chronic nerve pain from the back. He also continued the restriction that allowed Grant to eat in his cell, ice for pain relief, x-ray analysis, and NSAIDs. A February 14, 2013 x-ray revealed narrowing of the joint space due to mild degenerative changes, mild degenerative spurring involving tibial spine and femoral condyles, no fracture or dislocation, and no joint effusion. The x-ray also showed mild osteoarthrtis of the left knee.

         Dr. Sumnicht saw Grant on March 21, 2013. At that appointment, Dr. Sumnicht noted that the x-rays showed mild arthritis. Grant's swelling was gone and his knee had not been “giving out.” Grant did have a limp in his left leg and the tissue around his knee area was tender to palpation. With the left leg limp Grant experienced, Grant's body would not pump out the fluid in his legs, allowing fluid and waste products to build up. Dr. Sumnicht believed the fluid build up caused Grant's nerve pain and ordered compression stockings for the left calf muscles to help push the fluid out of Grant's leg and reduce pain. Dr. Sumnicht found no objective signs indicating that an MRI was required for Grant's knee. He prescribed Ibuprofen, Nortriptyline, and a local pain cream for Grant's left knee discomfort. Dr. Sumnicht also ordered an extra blanket for Grant's back pain and scheduled a follow-up visit for his low back pain.

         Dr. Sumnicht saw Grant on May 2, 2013. He noted Grant's chronic back pain was worsening and his back x-rays revealed a progressive degenerative disc. Dr. Sumnicht ordered an MRI of Grant's lumbar spine, pending approval from the committee that approved off-site appointments. Because the x-rays of Grant's left knee showed only mild arthritis and that his degenerative condition was not worsening, Dr. Sumnicht did not believe it was objectively necessary to order an MRI for Grant's left knee. Dr. Sumnicht advised Grant that his left knee x-rays remained unchanged.

         On June 17, 2013, Grant presented to an appointment with Dr. Sumnicht. Based on the spinal MRI, Dr. Sumnicht assessed Grant with L3-L4 spinal stenosis, which affected his activities of daily living. Dr. Sumnicht ordered an orthopedic spine referral, pending approval from the committee. Grant's greatest issue at that appointment was his lower back, so Dr. Sumnicht did not assess Grant's left knee pain. Dr. Sumnicht did not have any further appointments with Grant prior to his leaving state service in August 2013.

         From October 2013 through May 2016, Dr. Sauvey provided extensive medical care and treatment for Grant at 32 appointments regarding hypertension, degenerative disc disease with spinal stenosis of the lumbosacral spine, a positive cardiac stress test, chronic refractory pain, urinary retention, and his left knee pain. Grant complained of knee pain secondary to his severe low back pain at a July 18, 2014 appointment. At that time, neither an MRI of Grant's knee nor a referral to an orthopedist was clinically indicated in Dr. Sauvey's medical judgment. Instead, she ordered that Grant's knee could be iced twice a day for six months as needed and gave him an elastic wrap and lidocaine gel to apply to his knee. Grant contends that he never received the elastic wrap and returned the lidocaine gel after a few days because he did not believe it was helpful. Although Dr. Sauvey's medical notes do not reveal that Grant complained about knee pain at his appointments for severe back pain from August 26, 2014 through December 18, 2015, Grant contends that he complained about his knee at every appointment but that Dr. Sauvey would only treat his back pain.

         On January 6, 2016, Dr. Sauvey saw Grant to discuss preoperative plans for his back surgery. At that appointment, Grant requested an MRI or orthopedic evaluation for his left knee. Dr. Sauvey's working diagnosis of Grant's knee problem was age-related mild to moderate degenerative joint disease. Her examination revealed no acute changes to his knee, so Dr. Sauvey prescribed ice, oral NSAIDs, and rest as needed. Although Grant did not agree with this course of treatment, he accepted the plan of care. In Dr. Sauvey's medical opinion, neither an MRI nor a referral to an orthopedic surgeon was required at that time because there was no clinical evidence of any internal derangement of the left knee. She believed that Grant's ...

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