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Grice v. Tapio

United States District Court, W.D. Wisconsin

September 30, 2019

REGIS GRICE, Plaintiff,
TAPIO, et al., Defendants.


          STEPHEN L. CROCKER Magistrate Judge

         Pro se plaintiff Regis Grice, a prisoner at Waupun Correctional Institution, is proceeding against defendants Tapio and Marchant on Eighth Amendment deliberate indifference and state negligence claims related to alleged delays and mishandling of his degenerative hip condition. On August 7, 2019, I denied Grice’s motion for reconsideration of the leave-to-proceed order because it was too vague. See dkt. 29. Grice has followed up by filing several requests to amend his complaint, along with his proposed second amended complaint. (Dkt. 30, 31, 33, 35.) For good measure, Grice has filed a motion to compel discovery related to the claims that he is seeking to add to this lawsuit but have not yet been added. (Dkt. 32.)

         I am granting Grice’s motions to amend his complaint and I will allow him to proceed on Eighth Amendment and Wisconsin negligence claims against all but one defendant, as explained below:


         Grice now seeks leave to proceed against Marchant, Dr. Jeanpierre, and special needs committee members B. Dittman, Kuepper, Frame, Deblanc, Tritt, and Larson based on their involvement either in responding to Grice’s complaints about pain or in denying his requests for a medical mattress between November 2018 and July of 2019.

         I. Summary of Allegations from First Amended Complaint

          Grice’s amended complaint repeats the majority of the allegations from his amended complaint related to his hip pain between March and November of 2018, so I will incorporate by reference those allegations from the leave to proceed order (dkt. 12, at 1-4), and summarize those allegations for context: Between March and September 2018, Grice was complaining constantly to the HSU about pain related to his hip condition. Grice’s pain medication changed multiple times because he reported that it was ineffective for his pain; Grice experienced a delay in starting his physical therapy; when Grice actually started physical therapy, it was too painful for him; and, Grice was unable to get a supportive pillow that he had requested from NP Tapio.

         As of November 28, 2018, when Grice’s new allegations start, Grice had starting taking duluxetine for his pain; Grice was waiting for an orthopedic consult to discuss his pain medication and undergo an MRI; and Marchant had assured Grice that those appointments were scheduled and would take place within two months. Grice’s additional allegations relate to his continued attempts to be seen by a doctor to discuss his pain medication, and the special needs committee’s denial of a second mattress.

         II. Requests to be Seen in the HSU

          On November 28, 2019, Grice submitted an Information Request, repeating his complaints about pain. On November 30, RN Jensen responded that Grice was scheduled to see a doctor after the MRI and orthopedic consult, which would take place within six weeks. Jensen also wrote that she would forward Grice’s note to Dr. Jeanpierre. On December 1, 2018, Grice submitted a Health Service Request (HSR), asking to see his doctor to discuss a better pain medication, reporting that his hip was so tender that he could not lay down, walk, or sit up. Grice reported that he had requested an extra mattress, but hadn’t heard back.

         On December 4, 2018, Grice wrote to the HSU manager, complaining that when he went to the HSU asking for different pain medications, he never got to see an actual doctor. On December 6, someone from the HSU – it appears to have been a nurse – responded that s/he had reviewed Grice’s record and had moved up his appointment to see a doctor. Dkt. 31-1 at 5. On December 9, Grice submitted another HSR, repeating that he wanted to be seen for his pain, adding that he did not want to refill his current prescription because the medication wasn’t working. Grice submitted a similar HSR on December 12; the records show that on December 14, RN Jensen noted that Dr. Jeanpierre had seen Grice on December 13. Id. at 8. On December 13, Grice submitted another Information Request to the HSU manager, writing that while he was thankful he had been seen, he felt it was inappropriate that he had to wait for three weeks.

         On January 8, 2019, Grice underwent an x-ray at Agnesian Healthcare, and the radiology report noted severe degenerative arthritis in Grice’s left hip joint. That same day, Grice also met with a physician, Dr. Eric Nelson, who concluded that Grice’s severe degenerative hip condition presented “a difficult case without any type of straightforward solution, ” noting that because Grice was so young, he was not a candidate for consideration of joint replacement surgery. Dkt. 31-1 at 18-19. Dr. Nelson recommended that the DOC schedule Grice for an injection, which would help manage his pain; if that did not work, then Grice should see a tertiary level hip specialist at the University of Wisconsin. Id. at 19.

         On January 31, 2019, Grice submitted an information request to Dr. Jeanpierre, complaining about not being seen for his pain, and reporting that a nurse had met with him and said he would get Grice a single cell and put a note in the computer that a doctor needed to see him ASAP. RN Jensen responded to that request, writing that Dr. Jeanpierre cancelled a nurse’s order to see Grice, that his request for a medical mattress had been denied, and that there was no order for a single cell.

         Most recently, it appears that some time before May 16, 2019, Grice was sent to the orthopedics department at University of Wisconsin, and received a recommendation for a total hip replacement. Dkt. 31-1 at 31. After that recommendation, Tapio requested that Dr. Jeanpierre opine about the ...

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