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Christopher v. Kostohryz

United States District Court, W.D. Wisconsin

July 25, 2019




         Pro se plaintiff Adam Christopher is proceeding on claims that defendants Georgia Kostohryz, a nurse at Jackson Correctional Institution, and Dr. Lily Liu, a physician at the prison, violated his rights under the Eighth Amendment and state law by failing to provide him adequate medical treatment for his back pain, fatigue and gastrointestinal problems. The Wisconsin Department of Justice is representing Kostohryz and Liu is represented by private counsel. Plaintiff has filed several motions that I resolve as set forth below.


         A. Motion for a More Definite Statement

         Plaintiff has requested that the court order defendant Kostohryz to clarify the statement in her answer regarding the employment status of defendant Liu, as well as her statement that plaintiff had not yet signed a medical authorization that would permit Kostohryz to access his medical records. Dkt. #17. I will deny this motion. If plaintiff has questions about Liu's employment status, he should request discovery from Liu directly. Similarly, he should submit a discovery request to Kostohryz's counsel about whether she has signed a medical authorization that would permit Kostohryz access to plaintiff's medical records.

         B. Motion to Add Defendants

         Plaintiff seeks to add Tammy Maassen (health services manager), Lizzie Tegels (warden) and Kevin Carr (Secretary of Wisconsin Department of Corrections) as defendants in their official capacities. Dkt. #18. He states that these defendants should be added because he (1) needs information on Corrections's policies and procedures that defendants Liu and Kostohryz may not have; (2) needs assistance deciphering the handwriting in some of his medical records; (3) has discovery questions about the financial condition of Jackson Correctional; (4) seeks injunctive relief; (5) seeks discovery of his inmate complaints and other documents not available to defendants; and (6) is concerned that he will be disciplined for requesting access to Corrections's policies.

         I will deny this motion. Plaintiff does not allege that Maassen, Tegels or Carr are responsible for any alleged violation of his constitutional rights or that they enacted policies or procedures that caused a violation of his rights. To obtain discovery, plaintiff should review the information provided about discovery in the Preliminary Pretrial Conference Order, dkt. #27 at 8-11, and follow the procedures in Federal Rules of Civil Procedure 26 through 37 and 45. If he has questions about whether he can request a certain document, he should contact defendants' counsel. If he makes a discovery request and is unsatisfied with defendants' response, he should attempt to resolve the dispute with counsel. If the parties' are unable to resolve a discovery dispute, plaintiff should file a motion to compel with the court. Finally, it is too early to determine whether plaintiff would be entitled to specific injunctive relief that would require the addition of another defendant. If the court determines later that injunctive relief is appropriate, I will give the parties the opportunity to address whether it is necessary to add an additional defendant for purpose of insuring that injunctive relief is provided.

         C. Motion to Amend Complaint

         Plaintiff also seeks to amend his complaint to add claims against Lin Kimpel, a nurse; Tammy Maassen, nursing supervisor; Debra Tidquist, a nurse practitioner; and Dougherty, an institution complaint examiner, in their individual capacities. Dkt. #24. I will grant the motion to file an amended complaint. Plaintiff did not amend his allegations concerning defendants Kostohryz and Liu, so plaintiff may continue to proceed on his claims that those two defendants failed to provide him adequate medical care for his back pain, fatigue and gastrointestinal problems, in violation of the Eighth Amendment and state negligence law. On the basis of his new allegations, he may also proceed on Eighth Amendment and state negligence claims against Lin Kimpel. Plaintiff alleges that Kimpel failed to provide him any treatment for his gastrointestinal pain in April and May 2017.

         However, plaintiff's additional allegations do not support Eighth Amendment or negligence claims against Tidquist, Maassen or Dougherty. As for Tidquist, plaintiff alleges that she canceled his ducosate prescription and changed another prescription on July 31, 2018. These allegations do not suggest that Tidquist was deliberately indifferent or negligent, as plaintiff also alleges that docusate was not helpful to him and caused him pain. Additionally, he does not allege that amending his other prescription caused him harm or explain why he thinks the amended prescription constituted deliberate indifference. As for Maassen and Dougherty, plaintiff alleges that these two defendants conspired with each other to deny the inmate complaint he filed requesting treatment. For the reasons I explained in my previous screening order, these allegations are not sufficient to state claim for relief.

         D. Motion for Issuance of Subpoena for Medical Records from Gundersen Lutheran

         Plaintiff has filed a motion requesting that the court issue a subpoena on non-party Gundersen Lutheran Medical Center in La Crosse, Wisconsin so that plaintiff may obtain a copy of all of his medical records held by Gundersen Lutheran. Dkt. #28. He states that he received treatment at Gundersen Lutheran for the medical problems at issue in this case.

         I will grant this motion and direct the clerk of court to issue a subpoena so that plaintiff may obtain his medical records from Gundersen Lutheran. However, plaintiff should be aware that he will be responsible for arranging service of the subpoena as stated in Rule 45(b). Plaintiff may find it easier ...

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