United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON, DISTRICT JUDGE
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.
state defendants (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.
following facts are drawn from the parties' summary
judgment materials and are undisputed unless noted otherwise.
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.
Love's Achilles tendon injury
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.
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
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.
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
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.
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.
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.
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.
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
Love's treatment postsurgery
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.
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
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.
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.
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.
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 ...