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Machiote v. Roethlisberger

United States District Court, W.D. Wisconsin

September 9, 2019




         Plaintiff 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 case.

         From the parties' proposed findings of fact, I find the following facts to be undisputed unless otherwise noted.


         Plaintiff 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 nurse.

         On 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 order.

         At 8:00 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.

         At 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 medication.

         At some 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.

         According 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.”

         Defendant 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.

         On 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 September 29.

         Plaintiff 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.

         On 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 ...

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