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Teas v. Suliene

United States District Court, W.D. Wisconsin

September 17, 2019

WILLIAM TEAS, Plaintiff,
v.
DALIA SULIENE, KARL HOFFMAN, KAREN ANDERSON, MEREDITH MASHANK, LILLIAN TENEBRUSO, NANCY WHITE, ANTHONY ASHWORTH, LUCAS WEBER, JANEL NICKEL, KEVIN BOODRY, MICHAEL DITTMAN, JAMES GREER, SCOTT BAUER and JAMES KOTTKA, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB. DISTRICT JUDGE

         Pro se plaintiff William Teas is proceeding in this case on claims that several employees of the Columbia Correctional Institution violated his rights under the Eighth Amendment, the Americans with Disabilities Act, the Rehabilitation Act and Wisconsin law, by failing to provide him adequate treatment and accommodations for chronic back pain. Now before the court is defendants' motion for summary judgment. Dkt. #75. Defendants argue that plaintiff cannot show that they consciously disregarded his serious medical needs, ignored any substantial risk of serious harm or failed to provide accommodations for his disabilities. I agree with defendants. Although I am sympathetic to plaintiff's ongoing pain, he has failed to submit evidence showing that any of the individual defendants violated his rights under federal law. Accordingly, I will grant defendants' motion for summary judgment as to plaintiff's claims under the Eighth Amendment, Americans with Disabilities Act and Rehabilitation Act. I will decline to exercise jurisdiction over plaintiff's malpractice claims.

         Before turning to the facts, I must address some preliminary matters raised by plaintiff. Plaintiff filed a motion to strike the declarations of the individual defendants, on the ground that they are signed electronically with a “/s, ” not personally by the defendants. Dkt. #113. However, Rule 5(d) of the Federal Rules of Civil Procedure specifically provides that “[a] person represented by an attorney must file electronically” and “[a] filing made through a person's electronic-filing account and authorized by that person, together with that person's name on a signature block, constitutes the person's signature.” In this case, all of the defendants are represented by a lawyer, Elliot Held, who electronically filed the declarations on defendants' behalf. All of defendants' declarations comply with section III.E of this Court's Electronic Filing Procedures (available online at www.wiwd.uscourts.gov/electronic-filing-procedures), which provides that non-CM/ECF filing users' signatures may be submitted electronically after the original signature is obtained. Plaintiff has identified no valid basis to strike defendants' declarations.

         In his motion to strike, plaintiff also argues that defendants' proposed findings of fact should be disregarded because, when defendants answered plaintiff's amended complaint, they failed to dispute any of plaintiff's allegations. Plaintiff is mistaken. In answering plaintiff's amended complaint, defendants stated that they “DENY all of the allegations in the plaintiff's amended complaint.” Dkt. #38. Accordingly, I will deny plaintiff's motion to strike defendants' declarations and defendants' proposed findings of fact.

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

         UNDISPUTED FACTS

         A. The Parties

         Plaintiff William Teas has been incarcerated at Columbia Correctional Institution since November 2008. Most of the defendants worked at Columbia during the relevant time period: Dalia Suliene was a physician; Lillian Tenebruso, Nancy White, Karen Anderson and Meredith Mashak were health services unit managers; Anthony Ashworth was a unit manager; Janel Nickel was the security director; Scott Bauer was a correctional officer; James Kottka was a sergeant; Kevin Boodry was a lieutenant and a captain; Lucas Weber was the security supervisor; and Michael Dittman was the warden from March 2014 to July 2018. Plaintiff has also sued James Greer, who was the director of the Bureau of Health Services within the Division of Adult Institutions.

         B. Medical Care at Columbia Correctional Institution

         When an inmate has a medical concern or wants to be seen by health services staff, the inmate submits a health service request. The requests are “triaged”, that is, reviewed to determine which required immediate responses by nursing staff. There are approximately 800 inmates at Columbia, so nursing staff must prioritize which inmates see the doctors first. Nursing staff attempts to handle patient concerns that do not require attention from a doctor. For non-emergency symptoms and problems that do not require immediate evaluation from a doctor, nursing staff typically work with the patient to rule out simple causes and find solutions to the problem through education and over-the-counter medications. The nurse will advise the patient to contact a health care provider if the problem is not resolved.

         Nursing staff are not authorized to order testing or prescribe medication, other than over-the-counter drugs. Advanced care providers (doctors and nurse practitioners) must prescribe medication, order outside appointments with specialists and complete authorizations for offsite medical care. To do so, the advanced care provider prepares an off-site service request and report form, explains what type of care is being requested and identifies the potential provider. If an offsite appointment is approved, the appointment is scheduled with the outside provider. Inmates must wait for an appointment for non-emergency services until outside providers are available.

         The institution health services manager oversees the operation of the health services unit generally. In light of the administrative duties of the health services managers, they do not evaluate, diagnose, prescribe medications or provide direct patient care to inmates. The health services managers being sued in this case, defendants Tenebruso, Anderson, White and Mashak, did not treat plaintiff directly, were not involved with plaintiff's treatment and did not have the authority to prescribe medication or override the treatment decision of the physician and nurse practitioners who did treat plaintiff.

         C. Special Needs

         In 2009, the Department of Corrections began revising its policies related to special needs items, including extra pillows, mattresses, bunk restrictions and special shoes, due to concerns that medical providers were spending too much time on requests by inmates for special items. All Department of Corrections institutions were instructed to develop a “special needs committee, ” consisting of nursing, security, management and sometimes psychology staff, that would be responsible for making decisions regarding inmates' requests for special items. After 2009, the special needs committee at Columbia had to approve restrictions for “raised bunk” or “no floor placement.” Also, in 2009, the Department purchased new mattresses, known as “the blue or black mattresses, ” that were purported to be thicker and less likely to break down over time than the previous mattresses. The mattresses were distributed over time to the various institutions. After the new mattresses were available to the prisons, the Bureau of Health Services concluded that it was no longer necessary to authorize “double mattresses” for inmates, as one of the new mattresses was supposed to be equivalent to two of the old mattresses.

         D. Segregation Unit

         Columbia Correctional Institution has three segregation units: disciplinary segregation 1 (DS1); disciplinary segregation 2 (DS2); and the special management unit (Unit 7). DS1 houses inmates who (1) have just arrived in segregation, or (2) are having behavioral problems. DS2 is a “step-down” unit that houses inmates who have been in DS1 and shown a positive adjustment in their behavior. Finally, Unit 7 serves a variety of purposes, but mainly houses mentally ill and vulnerable inmates.

         DS1 has concrete or metal beds that are five inches off the floor, with the exception of cell #43, which has a raised bunk, and which is generally reserved for wheelchair bound inmates, those with significant medical needs or inmates on observation status. DS2 has 50 beds that are 19 inches off the floor and Unit 7 has 12 raised beds. (The beds in general population are also raised.) If two inmates are housed in a single segregation cell, one inmate will be placed on a “bunk” on the floor.

         The population in the restrictive housing unit is constantly changing as new inmates arrive with different needs. Many factors affect cell placement, including daily inmate population, available space, changes in inmate disciplinary status and medical or psychiatric needs. The unit manager and security supervisors have the ultimate placement decision-making authority, and unit sergeants may move inmates as unit needs required. Correctional officers were not authorized to make decisions regarding inmate movement or placement. The Department maintains a record of inmate movement between cells but does not record the specific reasons for the movement of inmates to different cells.

         E. Plaintiff's Medical Treatment and Cell Placement

         Plaintiff suffers from degenerative disc disorder, significant effacement of the spinal cord and paraspinal muscle spasms that cause him to suffer chronic severe back pain. At times, plaintiff cannot engage in any activities. He struggles with sleeping, concentrating and interacting with others.

         1. 2009 and 2010

         After he arrived at Columbia Correctional in November 2008, plaintiff complained to defendant Dr. Suliene about shooting pain and numbness in his right arm. Suliene referred plaintiff to UW Health for testing. The testing was done on June 19, 2009, and the results showed that plaintiff had “right C6 and C7 radiculopathy, chronic and active” and “no evidence of entrapment neuropathy or brachial plexopathy.” Dkt. #79-1 at 102. On October 23, 2009, UW Health took a magnetic resonance imaging of plaintiff, which showed multilevel degenerative disk and facet joint disease, central stenosis at ¶ 3-L4 and L4-L5, small midline protrusion at ¶ 4-L5 and foraminal stenosis at ¶ 4-L5 and L5-S1. Id. at 65.

         On January 27, 2010, UW Health Neurosurgery recommended that plaintiff receive an L4-L5 laminectomy for his stenosis, which is a condition in which an individual's spinal column is narrower than normal in places. On February 1, 2010, defendant Suliene requested surgery approval from the Department of Corrections. The request was approved, and plaintiff received an L4 laminectomy and bilateral medical facetectomy at UW Hospital on April 7, 2010.

         When plaintiff returned to the prison after his surgery on April 8, 2010, nursing staff and defendant Suliene provided him post-operative care that included monitoring the incision area, changing the dressing and distributing pain medication, including Vicodin, a narcotic medication, and Flexeril, a muscle relaxant. On April 10, plaintiff submitted a health service request stating that he was experiencing excruciating pain in his back, shooting pains in both legs and was urinating blood frequently with a burning sensation. He said that the Vicodin was inadequate for the severity of his pain and that he needed an increase in the dosage or a different medication. Suliene saw plaintiff on April 12. (Defendants say that plaintiff reported that he was doing “ok” at the April 12 appointment. Plaintiff disputes this, stating that he told Suliene that he was experiencing constant back pain and that the Vicodin was not helping, and that Suliene responded that she could not approve a higher dosage of Vicodin under the prison's “Narcotic Grade Medication” limitations.)

         In the meantime, on April 11, plaintiff was placed in “receiving and orientation, ” a small unit close to health services, where he remained until May 17, 2010. On April 16, plaintiff was given ibuprofen and an extra pillow. (The special needs committee had granted a permanent authorization for an extra pillow to plaintiff starting in 2009.) On May 11, Suliene renewed plaintiff's Vicodin prescription for two weeks, started him on baclofen, for muscle spasms, and directed that plaintiff be scheduled to see a UW doctor for a follow-up on his back surgery. Plaintiff saw Dr. Daniel Resnick at UW Hospital on May 27. Resnick noted that the surgery had resolved plaintiff's leg pain but that plaintiff was still experiencing back pain. Resnick recommended that plaintiff stay active, limit periods of sitting and use ibuprofen as needed. He also noted that plaintiff did not need to return to the Neurosurgery Clinic for additional follow-up. Dkt. #79-1 at 40. (Plaintiff says that Resnick told him that he could not prescribe pain medication because of a contract between UW Health and the prison system, which mandated that only prison medical staff would prescribe pain medication. He also says that Resnick told him that he should have a bed two feet off of the ground. However, these allegations about what Resnick said are inadmissible hearsay because plaintiff is attempting to rely on an unsworn statement made outside of court to prove that UW Health doctors could not prescribe pain medication and recommended a specific bed height. Therefore, I cannot consider Resnick's alleged statements. Burton v. Kohn Law Firm, S.C., 934 F.3d 572, 583 (7th Cir. 2019) (hearsay statements are no admissible evidence at summary judgment)).

         Around this time, plaintiff requested an additional mattress, stating that his current mattress caused him pain. On June 18, 2010, the special needs committee authorized a “thick” mattress for plaintiff, which meant a blue and black mattress, because extra mattresses were no longer allowed. However, plaintiff's cell already had the blue and black mattress in it. Plaintiff did not receive any different or additional mattress.

         On June 30, 2010, Suliene requested that plaintiff to be evaluated by a UW doctor for his ongoing complaints of back pain. She also restarted him on ibuprofen. (It is not clear whether plaintiff had run out of ibuprofen at this point.) On July 14, 2019, Suliene prescribed glucosamine to see whether it might give plaintiff some relief for his joint pain and nortriptyline for treating his neuropathic pain. Plaintiff was also taking citalopram at this time, which is an antidepressant that can be useful in treating pain. Health services renewed the citalopram and ibuprofen prescriptions in September and October 2010. Around this time, plaintiff renewed his request for an extra mattress. The special needs committee again approved a “thick” mattress for plaintiff, even though he already had one. On November 2, 2010, plaintiff submitted a health service request, stating that his back and neck pain had increased. On November 3, plaintiff refused an appointment with a nurse, stating that he wanted to wait for a follow-up with a medical doctor. (Plaintiff says he refused the appointment because he knew that the nurse could not do anything and that he would have to pay a co-pay for no reason.)

         On November 23, plaintiff submitted a health service request stating that he was experiencing severe back and neck pain that was not subsiding. Plaintiff received a response the next day, stating that he would be seen by a doctor on November 30 and reminding him that UW Neurosurgery had recommended that he “stay active and strengthen your core.” Dkt. #79-1 at 50. The ...


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