United States District Court, E.D. Wisconsin
MICHAEL L. EVANS, Plaintiff,
MANUEL JOSEPH, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION TO CORRECT
DECLARATION (DKT. NO. 68), GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT (DKT. NO. 58) AND DISMISSING
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
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.
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. The court will
grant the defendant's motion and dismiss this case.
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
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.
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.
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.
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.
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.
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); 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 ...