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Gillispie v. Correct Care Solutions

United States District Court, E.D. Wisconsin

September 12, 2019

KEVIN EUGENE GILLISPIE, Plaintiff,
v.
CORRECT CARE SOLUTIONS, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (DKT. NOS. 73, 86) AND DISMISSING CASE

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The 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.

         I. FACTS

         The 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.

         Two 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.

         On May 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.

         On June 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.

         On July 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.

         By 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.

         Two 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.

         On 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[1] 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.

         The 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.

         The 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 pain. Id.

         On 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.

         On 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.

         Provider notes from the Aurora Bay Care Hospital indicate the following:

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 previously.

Dkt. No. 81-2.

         Hospital 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.

         II. MOTIONS FOR SUMMARY JUDGMENT (DKT. NOS. 73, 86)

         A. Summary Judgment Standard

         “The 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.

         A party 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. 56(c)(4).

         B. The Plaintiff's Claims ...


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