United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB, DISTRICT JUDGE
Anthony Machiote, who is incarcerated at the New Lisbon
Correctional Institution, is proceeding on Eighth Amendment
claims that defendants Dr. Roethlisberger (who now goes by
the last name Herweijer), Dr. Kuber, Dr. Hoffman, Candace
Warner and Kim Stecker failed to provide him adequate pain
medication following his orthoscopic ankle surgery. Now
before the court is defendants' motion for summary
judgment. Dkt. #33. For the reasons stated, I am granting
defendants' motion for summary judgment and closing this
the parties' proposed findings of fact, I find the
following facts to be undisputed unless otherwise noted.
is incarcerated at the New Lisbon Correctional Institution,
where defendants all worked at the time of the events at
issue in this lawsuit. Dr. Roethlisberger, Dr. Kuber and Dr.
Hoffman are physicians; defendant Candace Warner is the
health services manager; and defendant Kim Stecker is a
September 26, 2017, plaintiff had ankle surgery. Upon his
return to the prison that day, defendant Stecker called the
on-call doctor, defendant Dr. Roethlisberger, to review
plaintiff's discharge instructions. The offsite provider
at the hospital recommended that plaintiff take one to two
hydrocodone-acetaminophen tablets every six hours as needed
for moderate pain. However, Dr. Roethlisberger ordered one to
two tablets of Tylenol no. 3 (which contains the narcotic
pain reliever codeine) every six hours as needed for a period
of three days. She prescribed the alternative pain medication
based on her medical judgment that it would adequately treat
plaintiff's post-surgery pain and because the medication
was available at the prison for plaintiff to start taking
immediately. Dr. Roethlisberger had no further involvement
with plaintiff's medical care beyond this phone call and
p.m. on September 26, 2017, plaintiff refused pain medication
because he had taken oxycodone at the hospital at 5:00 p.m.
and was still under the effects of a nerve block. Nurse
Stecker gave plaintiff Tylenol no. 3 at 9:35 p.m. She then
left the prison and was not on-call the rest of that evening.
(There is some dispute as to plaintiff's interaction with
Stecker. Plaintiff avers that Stecker called him to the
health services unit at around 9:30 p.m. that night and told
him that he should take the pain medication at that time
because another dose would not be made available to him until
6:00 a.m. the following morning. Defendants do not dispute
plaintiff's averment directly, but point out that because
plaintiff's medication order at that time was for every
six hours as needed, he could have requested another dose of
Tylenol no. 3 beginning at 3:35 a.m. According to defendant
Warner, the correct procedure for doing so would have been
for plaintiff to contact a security staff member, who would
contact the on-call nurse to come to the institution to give
plaintiff his medication per the doctor's order.
Plaintiff says that he did not request any pain medication
during the middle of the night, even though he was in
excruciating pain, because Stecker had told him that he could
not do so.) When Stecker returned to work the next morning,
she gave plaintiff another dose of Tylenol no. 3 at 6:20 a.m.
about 12:40 p.m. on September 27, 2017, plaintiff went to the
health services unit to get a dose of Tylenol no. 3. Stecker
told plaintiff that he had to get his medicine during regular
medication pass times, like the other inmates. When plaintiff
told Stecker that he was coming in every six hours per the
hospital's orders, Stecker told him, “We will see
about that.” Stecker then gave plaintiff his
point on September 27, 2017, Jacqueline Bogseth (whom I
presume is a friend or relative of plaintiff) called the
health services unit and spoke with Stecker about
plaintiff's having been left in pain overnight and unable
to sleep. Stecker told Bogseth that there would be no changes
to the medication. The same day, Kristen Joseph (another
friend or relative of plaintiff) called Nurse Warner to
inform her that plaintiff was complaining that he was in pain
and not getting his medication every six hours. Warner told
Joseph that plaintiff's medication orders had been
changed to four times daily and that plaintiff had received a
dose at 1:00 p.m. that day. Warner also told Joseph that at
the time of her call, plaintiff was laughing while he sat in
a wheelchair in the waiting room of the health services unit.
Warner then spoke with plaintiff to reiterate the importance
of elevating his foot and icing it to prevent swelling and
pain. Plaintiff said that he understood.
to plaintiff, while he was in the health services unit
waiting room on September 27, he observed nurses Warner and
Stecker having a heated conversation, which he assumed
related to the phone calls they had received about
plaintiff's being in pain. Another inmate made plaintiff
laugh, for which Warner admonished him and became angry when
he “did not show that he was receptive of the
admonishment.” After speaking further with Stecker,
Warner returned to tell plaintiff that he would be receiving
his medications at the regular medication pass times.
Plaintiff expressed concern that he would have to go almost
11 hours overnight without pain medication, but Warner
responded that this is “how it will go.”
Dr. Kuber was the on-call physician who approved the
medication change for plaintiff at 1:05 p.m. on September 27.
An unidentified nursing staff member had recommended that
plaintiff receive his medication four times per day at the
regular medication pass times of 6:00 a.m., noon, 4:00 p.m.
and 8:00 p.m., rather than every six hours. Dr. Kuber
approved the change based on her medical training and
judgment that the revised order would adequately treat
plaintiff's pain. Dr. Kuber reasoned that under either
the previous or new order, plaintiff would receive the
medication no more than four times daily. Stecker noted the
revised order in plaintiff's chart and stated “Stop
after PM dose on 9-29-27, ” based on her understanding
that Dr. Kuber's September 27 order revised only the
dosage times and not Roethlisberger's original order
limiting the prescription to three days. Dr. Kuber had no
further involvement in plaintiff's medical care.
September 27, 2017, plaintiff received his medication at 6:20
a.m., 1:00 p.m. and at 7:00 or 8:00 p.m. Although plaintiff
attempted to get a fourth dose of his pain medication at the
3:00 p.m. medication pass, Stecker refused to give it to him
because it was too soon, telling him to come back at the
evening medication pass. Plaintiff woke in extreme pain at
1:00 a.m. on September 28. Even though he took Exedrin,
Naproxen and Tylenol and iced and elevated his foot, he
remained in pain until he could take his narcotic medication
the next morning. He had the same experience at 1:00 a.m. on
received the remainder of his medication at the four regular
medication pass times through the afternoon dose on Friday,
September 29, 2017, when his prescription expired. On
September 30, plaintiff filed a health service request about
being in pain and having a burning sensation in his ankle.
(Although plaintiff says he submitted the request on
September 29, the form shows that he dated it September 30.
Dkt. #37-2 at 18.) Nurse Stecker examined plaintiff later
that day and decided to continue his current treatment plan
without checking with the on-call physician.
Sunday, October 1, 2017, the first-shift sergeant (6:00 a.m.
to 2:00 p.m.) telephoned the health services unit because
plaintiff was complaining about unbearable pain and an
inability to sleep. The nurse working that day (whom
plaintiff says was Stecker) told the sergeant that plaintiff
had to put in a “blue slip” for medical
assistance, even though the form states that if an inmate is
experiencing an emergency, he ...