United States District Court, E.D. Wisconsin
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY
JUDGMENT (DKT. NOS. 73, 86) AND DISMISSING CASE
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff alleges that the staff at the Brown County Jail
routinely provided him with expired insulin and failed to
diagnose and treat various skin infections he suffered,
including one requiring hospitalization. In a screening
order, the court allowed the plaintiff to proceed on
deliberate indifference claims against Dr. Fatoki, Lt.
Stephens and Officer Bolton, dkt. no. 13 at 6, as well as
official-policy claims against Brown County Sheriff John
Gossage, and Correct Care Solutions, the jail's
contracted healthcare provider, id. at 7-8. The
court later granted the plaintiff's motion to substitute
Jail Administrator Larry Malcomsen and Nurse Emily Blozinski
for Doe defendants originally named by the plaintiff. Dkt.
No. 33. The defendants filed motions for summary judgment.
Dkt. Nos. 73, 86. The court will grant both motions and will
dismiss the case.
plaintiff's deliberate indifference claims arise out of a
nine-month period he spent incarcerated at the Brown County
Jail in 2016. Soon after being admitted to the jail, the
plaintiff reported a foreign object in his eye. Dkt. No. 89
at ¶2. On March 24, 2016, Nurse Emily Blozinski, an
employee of medical contractor Correct Care Solutions LLC,
removed the object using a Q-tip. Id. At that same
March 24 visit, the plaintiff complained of a rash on his
body, and Blozinski examined him and reported that she would
check with Dr. Fatoki about his symptoms. Id. at
¶3. She also asked that the plaintiff be provided with a
new uniform, towel and blankets. Id. The nurse
consulted with Fatoki the same day; he prescribed Ivermectin,
an anti-parasite medication, and treatment notes indicate a
prescription of six 3-mg tablets beginning the following day.
Id. at ¶4; Dkt. No. 88-2 at 2. Blozinski also
“educated patient on medication and treatment of
scabies.” Dkt. No. 88-2 at 2. Two days later, the
plaintiff filed a medical complaint indicating that his wool
blanket was causing a rash and that his insulin pen was
almost empty. Dkt. No. 88-3 at 2. The same-day response from
an officer whose signature is illegible indicates that the
plaintiff should have expected to continue to itch from the
scabies for a few days, “or even a week or two.”
Id. The response also indicated, “we will send
another insulin pen.” Id.
weeks later, the plaintiff submitted another complaint
indicating that his blanket was continuing to cause a rash
and that he had developed a large lump on his torso; an HSU
appointment was scheduled. Dkt. No. 88-4 at 2. At an April 14
appointment, Fatoki drained a scrotal abscess, finding
“copious purulent/bloody material.” Dkt. No. 88-6
at 2. Medical notes indicated no history of wool allergy, as
the plaintiff was alleging, but the doctor instructed the
plaintiff to keep track of interactions with wool in order
“to document evidence of allergy.” Id.
25, the plaintiff again complained of a “skin reaction
to the wool blankets.” Dkt. No. 88-9 at 2. His
complaint noted that he had been very “patient but
nothing [was] being done about this problem.”
Id. The jail's response indicates that the
plaintiff had been seen by HSU but that there was “no
rash present @ time of appointment. Next available
appointment w/ HSU regarding rash from wool blanket.”
Dkt. No. 88-9 at 2.
2, the plaintiff saw Fatoki complaining about a large lump on
his neck. Dkt. No. 88-14 at 2. Fatoki's notes indicate
the lump was likely due to MRSA, a type of bacteria:
“His [previous] rash was treated with Ivermectin with
some improvement. Worsened after he was transferred to
Milwaukee on a writ. Will retreat with Ivermectin.”
Id. The treatment plan also included Bactrim, an
oral antibiotic, and a recommendation to wash clothing and
bedding in hot water. Id. at 3. On June 5, Blozinski
treated the abscess, cleaned it and removed a hair from the
wound on the advice of Fatoki. Dkt. No. 88-15 at 2.
8, the plaintiff informed Blozinski that he had run out of
the insulin pen tips he had brought with him from outside the
jail. Dkt. No 88-16 at 2. She indicated that the jail would
no longer provide pen tips but that the plaintiff could
obtain them from someone outside the jail. Id. The
plaintiff then filed a grievance about this, indicating that
the insulin provided by the jail appeared cloudy, that his
blood sugar was not dropping as expected and that some of the
insulin had expired dates on the bottles. Dkt. No. 88-17 at
2. He also refused the nurse's suggestion that he
withdraw insulin from his insulin pens with a syringe.
Id. After two days, the plaintiff obtained insulin
pen tips from a friend outside the jail. Id. at 4,
Dkt. No. 95 at 3. In response to the plaintiff's
grievance, Blozinski indicated that some types of insulin
were not always clear and that expiration dates had been
checked at the facility. Id. Although HSU had
provided the plaintiff with a new prescription, it was
cancelled because the plaintiff was once again using his own
insulin pens and tips. Id.
September 26 the plaintiff had run out of his pen tips and
became reliant on jail-supplied insulin. Dkt. No. 95 at 3. He
complained that his blood sugar levels were not dropping as
they should. Dkt. No. 88-19. He observed that the date on the
jail-provided insulin bottles read “7-8-2016, ”
or roughly seven weeks earlier. (The date listed on the
bottle is the date the insulin was first opened, after which
the insulin may be used for 28 days.) The jail's response
indicates that “new insulin was brought down to Charlie
pod yesterday. Thank you for making us aware of that
issue.” Id. The plaintiff agrees that
“new insulins” were brought to the pod as a
result of his complaint. Dkt. No. 95 at 3.
weeks later, Fatoki examined the plaintiff to address the
plaintiff's complaint about recurrent skin infections.
Dkt. No. 88-20 at 2. The treatment notes indicate that the
plaintiff wanted to learn why he kept getting skin
infections. “He does not have any skin lesions at this
time. States he has had people look things up on the internet
and he has been told there are different types of skin
infections. Wants to know if he was treated with the right
antibiotics.” Id. Fatoki also noted that the
plaintiff was “very argumentative” and questioned
how the doctor could know how to treat the infections without
testing the skin. Id. at 3. Fatoki indicated that
the plaintiff did not have any skin lesions at the time of
the visit; he also noted that the plaintiff's blood sugar
was better controlled but that he would restrict concentrated
sweets in the plaintiff's diet because the levels were
still “elevated.” Id.
October 17, the plaintiff again complained that he had found
jail-supplied insulin with expired dates. Dkt. No. 88-21 at
2. “My pens were dated with a marker by the unit
officer in Charlie pod the dates read 7-17-16 which makes
them two months past expiration. Pens or bottles of insulin
are suppose [sic] to be thrown out 28 days since taken out of
refridgerator [sic] expired insulin is susceptible to
degradation after its expiration date which contributes to my
higher blood sugar levels and nerve damage.”
Id. The complaint notes that the plaintiff had
raised this issue several times before. Id. The
response, from a Nurse Jones, indicates that “[y]ou are
prescribed 25 units of Lantus per evening. A lantus pen holds
300 units. You should be going through a pen every 12 days.
Please use only your prescribed pens.” Id. at
4. The defendants explain that this somewhat cryptic response
meant that the plaintiff “had an adequate self-supply
[of insulin] and should not require use of facility-supplied
insulin.” Dkt. No. 89 at ¶21. (As noted earlier,
however, the plaintiff states that he was no longer using his
own insulin by that date.) In any event, the plaintiff soon
obtained new insulin after complaining to an officer named
Dart, who “called hsu and [said] they would bring new
insulin.” Dkt. No. 95 at 4.
next day, the plaintiff filed a grievance about the insulin.
Dkt. No. 88-22 at 2. This time Jones determined the grievance
to be “founded” and agreed with the plaintiff
that “Insulins should be used no longer than 28 days
after opening. Nursing should be and will be checking monthly
to make sure that insulins don't expire. Just as you
would at home, please continue to check insulin that you are
using and be an active participant in your health.”
Id. at 4.
following day the plaintiff filled out a complaint indicating
that he had “severe pain and numbness in [his] arm
hands and feet. This is not getting any better I feel I need
to go to a hospital.” Dkt. No. 88-23 at 2. Fatoki saw
the plaintiff about two weeks later, finding that the leg
pain was indicative of neuropathy, while lesions on his hand
suggested eczema. Dkt. No. 88-24 at 3. Fatoki prescribed
hydrocortisone cream for the eczema and Meloxicam, which the
plaintiff had used in the past with some success, for the
November 9, the plaintiff transferred to Outagamie County
Jail for a court hearing. Dkt. No. 80 at ¶3. On November
14, he complained of a “wound in left hand with
drainage that he noticed yesterday but got worse
overnight.” Dkt. No. 81-1. The nurse obtained an order
for Bactrim DS and acetaminophen. Id. The next day
the plaintiff returned to Brown County Jail, where he filled
out a medical request form indicating he had a “very
bad infection” in his left hand stretching from his
fingers to his forearm. Dkt. No 88-25 at 2. He also indicated
nerve pain, shaking, vomiting, spasms, nausea and dizziness.
Id. The response indicated that HSU staff were aware
of the issue, that he had been prescribed antibiotics at
Outagamie County Jail and the situation was being monitored.
Id. A Nurse Denissen (not a defendant) saw him the
same day, noting his hand was swollen and hot and that he had
been prescribed Bactrim (the antibiotic) the previous day.
Dkt. No. 88-26 at 2. The jail continued the Bactrim
prescription. Dkt. No. 88-27 at 2; Dkt. No. 81-7.
November 17, a Nurse Larson (not a defendant) saw the
plaintiff and indicated that the plaintiff had returned from
Outagamie County Jail with a “swollen hand.” Dkt.
No. 88-27 at 2. “Tonight his left arm is swollen, warm
to the touch and has red streaks coming from his hand. He
also complained of flu like symptoms and trouble breathing.
His lungs were clear. . . . MD contacted and informed writer
to send patient to ER.” Id. That evening, the
sheriff's department drove the plaintiff to the hospital.
Dkt. No. 80-2 at 2.
notes from the Aurora Bay Care Hospital indicate the
Patient is a 52-year-old male who presents to the emergency
department with law enforcement from Brown County Jail for
evaluation of redness and swelling to his left hand. The
patient states his symptoms began for [sic] 5 days ago, He
was started on a course of Bactrim while in jail, He states
he has been raking the Bactrim as prescribed, His symptoms
have been progressively worsening. He states the redness and
swelling has begun to spread and worsened. He now has a red
line extending up the inside of his arm. He also complains of
a lowgrade fever, chills, and flulike symptoms. He is an
insulin-dependent diabetic. He has had pus draining from
between his second and third fingers, He states he has had
various abscesses on his abdomen, neck, head, and axilla
Dkt. No. 81-2.
records show that the plaintiff “responded well”
to treatment with an “excellent start to
healing.” Dkt. No. 95-2 at 1. The hospital discharged
the plaintiff on November 21 with a prescription for oral
antibiotics. Id. On November 25 the plaintiff filed
another grievance about expired insulin. Dkt. No. 95-2 at 17.
He stated that he had discovered the date on the bottle he
was using had been changed from 10-7-16 to 11-15-16.
Id. He alleged that “medical staff is
extending the dates” instead of disposing of the
expired insulin. Id. The response, from Blozinski,
denies this, indicating that staff exchanged insulin bottles
on the “appropriate dates;” she further counseled
the plaintiff that if he had concerns, he could supply his
own insulin. Id. On December 7, the plaintiff raised
the same issue in what he described as an “appeal,
” suggesting that Blozinski's treatment of his
original grievance had failed to address the issue properly.
Dkt. No. 95-2 at 19. The response, which appears to be signed
by Jones, indicates that “Insulin is changed every
month per protocol. As stated in past grievances, I have
personally made sure that insulin is changed out every 28
days and it has been done so on schedule. The insulin that
you are using is not expired.” Id. at 20. A
notation in the same record by a J. Lelinski explains that
“[m]edication expiration date was changed to reflect
the medication was not expired, [although] the expiration
date on bottle reflected it was. This was changed on 3rd
shift by HSU last night.” Id. Although
somewhat opaque, apparently the defendants' position is
that they were re-using insulin bottles (with expired dates)
to supply new (unexpired) insulin, and on at least one
occasion they supplied the plaintiff with a bottle having
both October and November 2016 dates on it.
MOTIONS FOR SUMMARY JUDGMENT (DKT. NOS. 73, 86)
Summary Judgment Standard
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). “Material
facts” are those under the applicable substantive law
that “might affect the outcome of the suit.”
Anderson, 477 U.S. at 248. A dispute over a
“material fact” is “genuine” if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
asserting that a fact cannot be disputed or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration
used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated.” Fed.R.Civ.P.
The Plaintiff's Claims ...