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Evans v. Joseph

United States District Court, E.D. Wisconsin

October 30, 2019

MICHAEL L. EVANS, Plaintiff,



         The plaintiff, who is representing himself, filed this lawsuit under 42 U.S.C. §1983. Dkt. No. 1. On March 27, 2018, the court allowed the plaintiff to proceed on claims against Dr. Manuel Joseph, Jean Lutsey and Susan Peters based on his allegations that they were deliberately indifferent to his neck and back pain. Dkt. No. 12. On February 1, 2019, the court granted summary judgement in favor of Lutsey and Peters and dismissed them from the case because the plaintiff had failed to exhaust the available administrative remedies before he sued them. Dkt. No. 53.

         Dr. Joseph had conceded that the plaintiff had exhausted the available administrative remedies as to the plaintiff's claims against him, so the court's order dismissing Lutsey and Peters did not impact the plaintiff's claims against Joseph. A week after the court dismissed Lutsey and Peters, the plaintiff confirmed that he wanted to proceed against Joseph based on the allegations in his original complaint. Dkt. No. 54. The court granted the plaintiff's request to proceed. Dkt. No. 55. On May 10, 2019, Dr. Joseph moved for summary judgment. Dkt. No. 58. That motion is fully briefed and ready for the court's decision.[1] The court will grant the defendant's motion and dismiss this case.


         During the events alleged in his complaint, the plaintiff was a Wisconsin inmate housed at Green Bay Correctional Institution. Dkt. Nos. 60 at ¶1; 66 at ¶1. The Wisconsin Department of Corrections employed Dr. Joseph as physician in the health services unit at GBCI from November 2016 until April 28, 2017. Dkt. Nos. 60 at ¶2; 66 at ¶2. Dr. Joseph no longer works for the Department of Corrections. Id.

         Evans was under Dr. Joseph's care for a little more than two months, from February 24, 2017 until April 28, 2017. Dkt. No. 60 at ¶3. According to Dr. Joseph, he entered his first order for the plaintiff on February 24, 2017, in response to the plaintiff's complaints of back pain. Id. Dr. Joseph states that he prescribed muscle rub to use daily, as needed, for six months. Id. The plaintiff disputes that Dr. Joseph ordered muscle rub for him; he states that he already had muscle rub. Dkt. No. 66 at ¶3.

         On March 3, 2017, Dr. Joseph met with the plaintiff for the first and only time. Dkt. Nos. 60 at ¶¶4, 5; 66 at ¶¶4, 5. They discussed the plaintiff's medical history, including his back and neck pain. Id. The plaintiff reported to Dr. Joseph that the medication he had been taking was not helping his pain. Dkt. Nos. 60 at ¶6; 66 at ¶6. Dr. Joseph discontinued the medication and prescribed Naproxen and Tylenol in its place to help the plaintiff with his back pain. Id.

         The plaintiff informed Dr. Joseph that his TENS unit (a device that provides low voltage electric current) was providing some relief, so Dr. Joseph advised that the plaintiff continue to use it. Dkt. Nos. 60 at ¶¶7, 8; 66 at ¶¶7, 8. Dr. Joseph also recommended that the plaintiff use a back brace and have an additional three to four physical therapy appointments. Dkt. No. 60 at ¶8. Another doctor (Dr. Allen) already had recommended that the plaintiff have an advanced pain therapy consultation; that appointment was scheduled for April 21, 2017. Dkt. No. 60 at ¶9. Advanced Pain Management could provide injections, which, according to the plaintiff, would provide relief for about three to five days before wearing off. Dkt. Nos. 60 at ¶9; 66 at ¶9.

         On April 20, 2017, staff informed health services, which informed Dr. Joseph, that the plaintiff was misusing his order for ice. Dkt. No. 60 at ¶11. Dr. Joseph discontinued the plaintiff's ice that same day. Id. The plaintiff asserts that officers in the restricted housing unit were “withholding medical” (the court assumes the plaintiff means medical ice) to harass inmates. Dkt. No. 66 at ¶11.

         The next day, on April 21, 2017, the plaintiff was seen offsite by a nurse practitioner at Advanced Pain Management. Dkt. Nos. 60 at ¶12; 66 ¶12. There, he was evaluated and given information about cervical spine steroid injections to address his pain (he received injections for his back pain about three months later, on August 1 and 10, 2017). Dkt. Nos. 60 at ¶¶12, 19; 66 ¶¶12, 19. On April 25, 2017, Dr. Joseph reviewed Advanced Pain Management's recommendation and wrote an order to provide the plaintiff with Voltaren gel, a topical medication used to relieve joint pain, as needed for four months. Dkt. Nos. 60 at ¶13; 66 at ¶13. Dr. Joseph did not see the plaintiff or enter any orders for his care after April 25, 2017. Dkt. Nos. 60 at ¶14; 66 at ¶14.


         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); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir. 2011). “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 ...

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