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Love v. Hoffmann

United States District Court, W.D. Wisconsin

August 23, 2019

XAVIER LOVE, Plaintiff,
v.
DR. KARL HOFFMANN, KOREEN FRISK, CAROL SWAN, NICOLE KRAHENBAHL, BRIDGET RINK, MARYAH MARTIN, MICHELLE SCHROEDER, and DR. MARK HEBERLEIN, Defendants.

          OPINION AND ORDER

          JAMES D. PETERSON, DISTRICT JUDGE

         Plaintiff Xavier Love, who is incarcerated at New Lisbon Correctional Institution, alleges that prison medical staff and hospital employees failed to properly treat the torn Achilles tendon he suffered playing basketball, delayed in arranging surgery, failed to adequately treat his pain, and disregarded his infected incision after the surgery. He is proceeding on claims under the Eighth Amendment and Wisconsin law.

         The state defendants[1] (Dr. Karl Hoffmann, Koreen Frisk, Carol Swan, Nicole Krahenbahl, Bridget Rink, and Maryah Martin) and the hospital-staff defendants (Nurse Michelle Schroeder and Dr. Mark Heberlein) have filed motions for summary judgment. Dkt. 37 and Dkt. 45. Because I conclude that Love has not submitted evidence showing that the state defendants were negligent or acted with deliberate indifference to his medical needs, I will grant the motion for summary judgment filed by Hoffman, Frisk, Swan, Krahenbahl, Rink, and Martin. I will decline to exercise supplemental jurisdiction over Love's negligence claims against the hospital-staff defendants, Schroeder and Heberlein. I will dismiss those claims without prejudice so that Love can refile them in state court if he chooses to do so. Finally, I will deny Love's motions requesting that the court recruit counsel to assist him with this case.

         UNDISPUTED FACTS

         The following facts are drawn from the parties' summary judgment materials and are undisputed unless noted otherwise.

         A. The parties

         Plaintiff Xavier Love is incarcerated at New Lisbon Correctional Institution, where several defendants worked during the relevant time period: Karl Hoffmann (physician), Koreen Frisk (nurse clinician 2), Carol Swan (registered nurse), Nicole Krahenbahl (nurse clinician 2), Bridget Rink (registered nurse), and Maryah Martin (registered nurse). Defendants Michelle Schroeder and Dr. Mark Heberlein worked at Mile Bluff Medical Center, a hospital in Mauston, Wisconsin. Health services staff regularly send New Lisbon inmate patients to Mile Bluff Medical Center for emergency trips and non-emergent services, including podiatry. Health services may also send inmates to other hospitals, including University of Wisconsin Hospital, Waupun Medical Center, and Gundersen Medical Center.

         B. Love's Achilles tendon injury

         On December 22, 2017, Love injured his right ankle while playing basketball during recreation. He was taken to the health services unit, where he told defendant Nurse Rink that he thought he had torn his Achilles tendon. Medical providers generally conduct a physical exam if they suspect an Achilles tendon injury. A physical exam can reveal a gap in the Achilles tendon that can indicate malformation or injury. The “Thompson test” is a specific type of physical exam that indicates whether the Achilles tendon is completely torn. Rink was not trained to perform the Thompson test and she did not attempt to do so. She examined Love's ankle, noted that it had a “divot, ” that his Achilles tendon was “not palpable, ” and that his foot was “dangling” and swollen.

         Rink sent Love to the emergency room at Mile Bluff Medical Center. Defendant Dr. Mark Heberlein, the emergency room doctor, ordered x-rays of Love's ankle. The x-rays showed an Achilles tendon injury, but Heberlein could not tell whether Love had a partial or complete tear. Heberlein recommended that Love contact orthopedics on December 26, 2017 to schedule an MRI. He also recommended that Love take either ibuprofen or naproxen and keep all weight off of his right foot. Defendant Nurse Schroeder placed a splint on Love's foot and directed him to leave the splint in place except when bathing.

         After Love returned from the hospital, Nurse Rink gave Love ibuprofen. The ibuprofen did not relieve Love's pain and made his stomach hurt. On December 23, another nurse gave Love acetaminophen and defendant Dr. Hoffmann increased Love's ibuprofen prescription. On December 26, Hoffmann received the emergency report from Mile Bluff Medical Center. Hoffmann ordered Love a wheelchair and crutches, extra pillows, ice, a low-tier and low-bunk restriction, and Vitamin C to help with the healing process. Hoffmann also ordered an MRI of Love's right ankle and lower leg and a follow-up appointment with Mile Bluff orthopedics.

         Health services staff called Mile Bluff to schedule the MRI and orthopedic appointment. The earliest appointment available was on January 2, 2018, so Love's MRI was scheduled for January 2. Staff wrote in Love's progress notes that Mile Bluff was “aware it was a STAT order, ” meaning that the hospital knew that Love's situation was a high priority.

         During the time in which Love waited for his MRI appointment, Love was in severe pain. On December 28, 2017, Hoffmann prescribed a three-week course of tramadol, a narcotic pain reliever. The tramadol did not relieve all of Love's pain.

         On January 2, Love had an MRI of his right ankle. The results showed a complete tear of the Achilles tendon. Love was scheduled for a follow-up appointment with Mile Bluff on January 8, 2018, but Mile Bluff rescheduled the appointment for January 10. In the meantime, on January 4, Hoffmann increased Love's ibuprofen prescription.

         On January 10, Love met with Dr. Marissa McNelly, a podiatrist, at Mile Bluff. (McNelly is not a defendant in this case.) McNelly discussed treatment options with Love, including the pros and cons of surgery versus more conservative treatment options. Love and McNelly decided that surgery was appropriate for Love's injury. McNelly told Love to keep all weight off his right foot, keep his foot elevated, and use ice. After Love returned to the prison, Dr. Hoffmann wrote an order to schedule Love for surgery “next week” and “ASAP” to repair the Achilles tendon rupture. Surgery was scheduled for January 19, 2019.

         On January 12, Love fell while using his crutches. He was given additional tramadol and told to use his wheelchair, elevate his foot, keep weight off, and apply ice.

         On January 19, Love had surgery to repair his Achilles tendon tear. The surgery was successful. After Love returned to the prison, he was given a walking boot, more tramadol, Flexeril (a muscle relaxant), an anti-nausea medication, and stool softeners.

         C. Love's treatment postsurgery

         Love returned to Mile Bluff Medical Center for follow-up appointments on February 1 and 14, 2018, and he reported no significant concerns. On February 25, Love saw a nurse in health services after housing unit staff reported that his surgical incision was open. The nurse noted that the incision was intact, that there was a superficial scratch near the bottom of the incision, and that his incision was closed with Steri-strips. Love told the nurse that the incision had been draining, but the nurse noted that there was no current drainage, redness, warmth, or swelling. The nurse told Love to avoid touching his incision and to monitor it for drainage, warmth, redness, and odor.

         On March 12, 2018, Love went to Mile Bluff for a follow-up appointment. Dr. McNelly noted that Love's incision was healed except a small area. Love reported to McNelly that he had put some weight on his foot with minimal pain. McNelly lifted Love's non-weightbearing restriction and told Love that he could use a stationary bike and do upper body strengthening during recreation. She also instructed Love to continue wearing his boot and to wear compression stockings. When Love returned to the prison, he received bandages for his incision and was instructed to monitor the area for changes.

         On March 13, Love submitted a health service request stating that he was in pain. The request was referred to Dr. Hoffmann, who responded that he would see Love that week.

         On March 14, Love submitted a health service request stating that his ankle and foot were sore and tingling and that his ibuprofen, tramadol, and Flexeril were not relieving his pain completely. The next day, Nurse Rink met with Love and told him that she would review his concerns with Dr. Hoffman. Rink also told Love it was possible that he had “tarsal tunnel syndrome, ” which is pain caused by a compressed nerve in the ankle or foot.

         On March 18, Love submitted another health service request complaining about pain. He saw Nurse Frisk the next day and reported that he had throbbing pain in his left leg that was “excruciating.” Frisk noted that Love was not displaying signs of pain and told him that he did not “look” like he was in pain. She noted that his incision was clean, dry, and intact, she gave him new compression socks, and she advised him to keep his foot elevated to reduce swelling and the “throbbing” sensation. Love asked Frisk to contact the Dr. McNelly about his pain, but she declined to do so, as nurses are not authorized to contact outside providers directly about inmate patients. Frisk told Love that she would share his pain concerns with Dr. Hoffman. She did so, and Hoffmann prescribed aspirin, an analgesic pain reliever, and anti-inflammatory medication that same day.

         On March 22, Love submitted a health service request complaining of pain shooting from his foot up his leg. Nurse Krahenbahl saw Love the next day. Love's blood pressure was elevated. Love told Krahenbahl that his incision area “didn't look right” and was painful, but Krahenbahl did not observe any abnormalities in Love's incision and noted that the incision site was healing well. Krahenbahl told Love that he had an appointment scheduled at Mile Bluff and that she would discuss ...


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