McIntosh v. Jadin et al
Filing
89
MEMORANDUM AND ORDER granting in part and denying in part 35 Motion for Summary Judgment; signed by Judge William C Griesbach on 08/22/2011. (cc: all counsel) (Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHARLES T. MCINTOSH
Plaintiff,
v.
Case No. 09-C-1106
C.O. MALUEG and
NORB WENDRICKS,
Defendants.
MEMORANDUM AND ORDER
Charles McIntosh, having been convicted in this court of conspiracy to distribute crack
cocaine, is currently serving a federal sentence at F.C.I. Otisville. From February 15, 2007 to
September 17, 2007, while his federal case was pending, McIntosh was held in custody in the
Brown County Jail (“BCJ”), which houses federal pretrial detainees under an agreement with the
United States Marshal Service. On November 30, 2009, McIntosh filed this pro se civil rights
action pursuant to 42 U.S.C. § 1983, claiming that seven named and thirty unnamed defendants, all
of whom are officers or employees of the BCJ, violated his constitutional rights while he was
housed there. McIntosh was allowed to proceed against two defendants, Nurse Norb Wendricks and
Correctional Officer (“CO”) Ryan Malueg, on three claims. McIntosh alleged in his complaint that
Wendricks and Malueg were deliberately indifferent to his serious medical needs when they
collaborated to deny him prescribed pain medication following his testicular surgery. McIntosh
additionally alleges that Wendricks demonstrated deliberate indifference to his medical needs by
denying him meals that met his diabetic needs, which exacerbated his diabetic condition, and by
refusing to allow him to see an eye doctor.
The case is presently before the Court on the defendants’ motion for summary judgment.
For the reasons that follow, the motion will be granted in part and denied in part.
ANALYSIS
I. Summary Judgment Standard
The court shall grant summary judgment if the movant shows 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); McNeal v. Macht, 763 F. Supp. 1458, 1460-61 (E.D. Wis. 1991).
“Material facts” are those under the applicable substantive law that “might affect the outcome of
the suit.” See Anderson, 477 U.S. at 248. A dispute over “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 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
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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).
The Court reviews the evidence in a light most favorable to McIntosh, the non-moving party;
however, the Court will not accept conclusory allegations and pleadings if they are not supported
by specific facts showing a genuine issue for trial. Paul v. Theda Med. Ctr., 465 F.3d 790, 793-94
(7th Cir. Wis. 2006).
II. Deliberate Indifference Standard
To prove a claim of deliberate indifference, “a plaintiff must show (1) an objectively serious
medical condition to which (2) a state official was deliberately, that is subjectively, indifferent.”
Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008) (internal citation omitted). An inmate’s
subjective belief that a different course of action would have been preferable does not constitute
sufficient evidence of deliberate indifference to survive summary judgment. Greeno v. Daley, 414
F.3d 645, 653 (7th Cir. 2005). Even a difference of opinion between physicians is not enough to
establish deliberate indifference. Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006).
Deliberate indifference requires more than negligence; it requires that the official both knew
of and disregarded an excessive risk to the inmate’s health or safety. Farmer v. Brennan, 511 U.S.
825, 834–37(1994). Subjective knowledge of the risk is required: “[A]n official’s failure to
alleviate a significant risk that he should have perceived but did not, while no cause for
commendation, cannot under our cases be condemned as the infliction of punishment.” Id. at 838.
Although the Eighth Amendment does not apply to pretrial detainees, as a pretrial detainee
McIntosh was entitled to at least the same protection against deliberate indifference to his basic
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needs under the Fourteenth Amendment as is available to convicted prisoners under the Eighth
Amendment. See Cavalieri v. Shepard, 321 F.3d 616, 620 (7th Cir. 2003) (citation omitted). With
these principles in mind, I now turn to the claims asserted by the plaintiff.
III. Denial of Pain Medication
McIntosh’s first claim is that he was denied his prescribed pain medication while at the BCJ.
(Compl. ¶ ¶ 4–6 .) McIntosh underwent surgery on his testicles at St. Vincent Hospital on April 19,
2007. Specifically, Dr. Daniel DeGroot performed bilateral hydrocelectomy on him. A hydrocele
testis is the abnormal accumulation of fluids around a testicle. A hydrocelectomy is a surgical
procedure to remove the fluid from around a testicle.
McIntosh underwent a bilateral
hydrocelectomy, meaning surgery was performed on his scrotum and both testicles because they
were grossly enlarged due to the accumulation of fluid. (PFOF ¶¶ 81–82.) Following the surgery,
Dr. DeGroot prescribed one to two Vicodin tablets every four hours as needed for pain, and an
antibiotic, Keflex (cephalexin), one tablet, three times a day, for seven days. The prescription called
for a total of 35 Vicodin tablets with no refills. (PFOF ¶¶ 83, 86.)
McIntosh was discharged from the hospital and returned to BCJ on April 21, 2007. He
alleged in his complaint that BCJ had a policy of dispensing medication to inmates three times per
day: 5:00 a.m., 12:00 p.m., and 5:00 p.m. (Compl. ¶ 3.) Based on this policy, McIntosh alleged that
BCJ refused to give him his pain medication at bedtime. As a result, he alleged that was unable to
sleep at night for weeks because the medication he took at 5:00 p.m. wore off by around 9:00 p.m.,
and he “experienced serious twings [sic] of pain in his penis every time he moved in his sleep.” (Id.
at ¶ 5.) McIntosh further alleged in his complaint that Officer Malueg was one of the guards that
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usually worked on the unit on which he was housed at BCJ, and that on many occasions between
April 2007 and September 2007, CO Malueg, in collaboration with Nurse Wendricks, refused to
give him his pain medication at 9:00 p.m. McIntosh alleges he “repeatedly informed medical
supervisors, nurse Norb Wendricks, CO Malueg, Lt.’s Office, Cpt. Jadin, and BCJ Administration,
Medical supervisors” that he was prescribed the pain medication specifically to relieve the pain in
order to allow him to sleep through the night without severe pain. (Id. at ¶ 6.) McIntosh’s
allegation has some support in the record. On April 27, 2007, McIntosh filed a grievance in which
he states that CO Malueg denied his request for medication at 9:00 p.m. on April 26, 2007. The
grievance states that McIntosh informed CO Malueg that he had just had surgery “on his penis” and
needed his medication so he could sleep. (ECF 26, Pl.’s Resp. to Def.’s Interrog. at BCJ042.) The
grievance further stated that CO Malueg refused McIntosh’s request, stating that he and Nurse
Wendricks had agreed that McIntosh was not supposed to get medications after 5:00 p.m. McIntosh
claims he told CO Malueg that he was in severe pain at night and that Malueg said he didn’t care.
Malueg also denied his request for a corporal. (Id.)
CO Malueg’s notes confirm he denied McIntosh’s request for Vicodin at 9:00 p.m. on April
26, 2007. Malueg’s notes state he informed McIntosh that according to his med sheet, McIntosh
was only allowed to get Vicodin at 5:00 a.m., 12:00 p.m., and 5:00 p.m., as needed. When
McIntosh informed CO Malueg that other officers had been giving Vicodin to him at 9:00 p.m.,
Malueg again told him that his med sheet clearly states when he is allowed to receive Vicodin.
Malueg states McIntosh was not happy with his answer and wanted him to call the nurse. Malueg
states he called Nurse Wendricks, and Nurse Wendricks confirmed that McIntosh was allowed to
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have his Vicodin at the three med times listed above and no other times. (Malueg Aff. ¶¶ 8–10, Ex.
A.)
It appears that the jail staff had incorrectly recorded McIntosh’s Vicodin prescription
information on his med sheet. Instead of indicating he was to be given one or two tablets every four
hours as needed as Dr. DeGroot had prescribed, McIntosh’s medication record states that he was
to receive Vicodin three times a day. (Wendricks Aff., Ex. O at BJC 094.) But the defendants do
not even acknowledge the inaccuracy; nor do they offer any explanation for it. It even appears that
the jail may have had a policy at the time that prohibited inmates from receiving prescription pain
medication other than at the three set times referred to above.
Nevertheless, the defendants argue that even if they erred in not giving McIntosh his
medication on April 26, 2007, they are entitled to summary judgment on McIntosh’s denial of
medication claim because McIntosh has failed to produce any evidence regarding when he was
allegedly denied Vicodin and BCJ records reflect only the denial on that one occasion. In response
to the grievance he filed over the incident, McIntosh was advised, “If this occurs in the future refer
to your on duty CO and let him know the level of pain and they will follow up with HSU [Health
Services Unit].” (Pl.’s Ans. To Def.’s Interrog. at BCJ 039.) Defendants argue that despite this
advice, there is no evidence that McIntosh made any further requests for Vicodin after 5:00 p.m.
In fact, the record shows that while McIntosh submitted 26 Inmate Request for
Medical/Dental/Psychiatric Care forms from the time he entered BCJ on February 15, 2007, until
his surgery on April 19, 2007, he filed no Requests for medical assistance to deal with his pain after
April 26, 2007, except for a May 5 and May 9 Request that his Vicodin prescription be refilled,
which was done by the BCJ on May 11, 2007. (PFOF ¶¶ 106-113.) And McIntosh filed no other
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grievances over the denial of prescription medication. In addition, the defendants point out, the
medication sheets show that McIntosh did not ask for Vicodin at night or at bedtime on any other
day. (PFOF ¶¶ 103, 115.)
Furthermore, aside from this one incident, defendants highlight that several facts indicate
Wendricks and Malueg were otherwise attentive to McIntosh’s medical needs. McIntosh was
provided Vicodin on a daily basis two to three times a day from the date he returned to the jail from
his surgery, on April 21, 2007, until his prescription ran out on May 5. (Wendricks Aff. ¶ 45, Exs.
O, P, Q.) On May 5, McIntosh filled out a medical care request form in which he asked for another
prescription for Vicodin, although the prescription on his discharge sheet from the hospital stated
that no refills were to be given. (Id. ¶¶ 39, 57.) Nurse Wendricks accommodated McIntosh by
allowing him ibuprofen, which was administered to him on a daily basis from May 6 to May 11.
(Id.) On May 10, Nurse Wendricks went further; he personally saw McIntosh, removed his sutures,
gave him antibiotic ointment and pads to change his dressing, and prescribed him a refill of Vicodin,
one tablet to be taken three times a day as needed. (Id. ¶ 59, Ex. E.) The following day, on May 11,
2007, McIntosh began receiving Vicodin three times a day through May 20, 2007, when his
prescription from Wendricks ran out. (Id. ¶¶ 60–61.) He never received Vicodin at bedtime between
May 11 and 20, and never complained to Nurse Wendricks or Malueg that he requested, but was
refused, Vicodin at night during this time. (Id. ¶ 62.)
Pain due to the withholding of medication can constitute a serious medical need. See West
v. Millen, 79 Fed. Appx. 190, 193 (7th Cir. 2003). The defendants understandably question whether
a single missed dose of Vicodin can constitute deliberate indifference. See Zentmeyer v. Kendall
County, 220 F.3d 805 (7th Cir. 2000) (holding that the failure to give an inmate five out of thirty
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prescribed pills according to schedule was not deliberate indifference); see also Mayweather v. Foti,
958 F.2d 91, 95 (5th Cir. 1992) (deficiencies in prison medical system are minimal where prison
officials only occasionally miss a dose of medication for plaintiff-inmate), Holms v. Sheahan, 930
F.2d 1196, 1201–02 (7th Cir. 1991) (inmate who was forced to wait eight months for medication
for a painful skin condition did not have a colorable § 1983 claim). But McIntosh claims he was
denied pain medication not just once but throughout the weeks following his surgery. Defendants
are correct that their records do not show that McIntosh continued to complain. However, he
alleged that he repeatedly complained in his verified complaint and has objected to Defendants’
proposed findings of fact on that basis. Given his status as a pro se litigant, I conclude that he has
sufficiently alleged the denial of medication to raise an issue of fact as to whether it rises to a
constitutional violation. While the defendants offer a number of strong arguments regarding
McIntosh’s credibility and damages, these questions are for the jury and cannot be appropriately
resolved on summary judgment. See Ralston v. McGovern, 167 F.3d 1160 (7th Cir. 1999)(reversing
and remanding summary judgment for a state prison guard’s refusal to render medical treatment).
McIntosh has raised genuine issues of material fact with respect to this claim; Defendants’ motion
for summary judgment with respect to McIntosh’s alleged denial of pain medication is accordingly
denied.
Furthermore, upon review of the record and the oral arguments before the court on August
17, 2011, I am convinced that a genuine issue of material fact remains with respect to whether the
denial of pain medication reflected a policy of the BCJ. The portion of the order dismissing Captain
Jadin as a party (Docket 10) is thereby vacated and he is reinstated as a defendant along with Nurse
Wendricks and Correctional Officer Malueg.
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IV. Alleged Denial of Diabetic Meals
McIntosh is a diabetic with dietary restrictions. (Wendricks Aff. ¶ 9.) He alleges he told
Wendricks he needed to eat “healthier food” and that the jail’s normal fare made McIntosh’s feet
swell up. (Compl. ¶ ¶ 15–19.) He claims Wendricks did nothing to ensure that McIntosh was
provided diabetic meals. (Id.) McIntosh claims the food he ate at the BCJ caused excessive weight
gain and caused a spike in his blood-sugar levels, which has resulted in damage to his vision and
nerves. (Id.) McIntosh alleges he informed Wendricks of his dietary requirements in May and June
of 2007, but Wendricks did nothing to ensure that McIntosh received appropriate meals. (Compl.
¶ ¶ 17–18.)
The failure to provide a diabetic inmate with a special diet could amount to cruel and
unusual punishment in some circumstances. See Sellers v. Henman, 41 F.3d 1100, 1102–03 (7th
Cir. 1994). To prevail on his claim of deliberate indifference McIntosh has the burden of proving
(1) Nurse Wendricks was aware of facts from which an inference could be drawn that a substantial
risk of serious harm to McIntosh’s health existed due to the food McIntosh was being provided and
(2) Nurse Wendricks actually drew the inference but consciously disregarded the risk. Farmer v.
Brennan, 511 U.S. 825, 837 (1994); Pierson v. Hartley, 391 F.3d 898, 902 (7th Cir. 2004).
While McIntosh’s claim regarding his allegedly inadequate diet is specifically against
Wendricks, he fails to mention Wendricks in any pleadings except his actual complaint. In his brief
opposing summary judgment (ECF 66) he never argues that Wendricks was aware that the food
McIntosh was being served presented a substantial risk of harm to McIntosh’s health. He has
submitted no affidavits in support of his diet-related allegations against Wendricks.
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In stark contrast to McIntosh’s unsupported allegations, Defendants have demonstrated
through sworn affidavits that a special diabetic diet was designed for McIntosh by an ARAMARK
registered dietitian. (Aff. of Darryl Markin, ECF 40 at ¶ ¶ 1–17.) McIntosh’s confused response
to the declaration merely alleges that the dietitian is a defendant whose own deliberate indifference
deprived McIntosh of proper diabetic meals. (Plt.’s Objec. to Aff.of Darryl Martin, ECF 71 at 1–2.)
The dietitian is not a defendant in this action and his affidavit is credible and uncontradicted.
On balance McIntosh has set forth no facts or arguments demonstrating any genuine issues
of material fact related to his allegedly inadequate diet. He has submitted no affidavits based on
personal knowledge. He has not attempted to refute any of the Defendants’ facts in any manner
authorized by Fed. R. Civ. P. 56. In contrast, Defendants have demonstrated in their motion and
supporting materials, including the affidavits of Darryl Martin and Wendricks, that McIntosh was
served a proper diabetic diet designed by a registered dietician. McIntosh has failed to refute these
affidavits and they will be deemed undisputed. Fed. R. Civ. P. 56(2). McIntosh has not put forward
any evidence that Wendricks demonstrated such a complete absence of professional judgment to
the extent that no minimally competent professional would have responded in such a manner under
the circumstances. Collignon v. Milwaukee County, 163 F.2d 982, 989 (7th Cir. 1998). Summary
judgment is therefore proper as to McIntosh’s claim that Wendricks was deliberately indifferent to
his need for a diabetic diet.
V. Alleged Denial of Vision Care
Finally, McIntosh alleges on June 11, 2007 he informed Wendricks that he was having
difficulty seeing, was experiencing blurriness, and had eye pain. (Compl. ¶ 23.) According to the
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complaint, Wendricks denied McIntosh’s request to see an eye doctor, apparently because federal
authorities would not authorize sending him to visit an eye doctor, and there was no eye doctor at
the jail. (Compl. ¶ ¶ 20, 22.) While at the initial screening stage of this litigation McIntosh’s
allegations were sufficient to state a claim of deliberate indifference against Wendricks regarding
denial of medical treatment, Defendants have now submitted affidavits that contradict McIntosh’s
unsupported allegations.
The following facts relating to eye care are undisputed: In March and April of 2007
McIntosh told BCJ staff that he wore glasses but did not have them with him and needed a “loaner”
pair (Wendricks Aff., ECF 38 ¶ 72, Ex. I.); on June 10, 2007, McIntosh submitted a medical care
request regarding eye problems (id. ¶ 32, Ex. K.); Wendricks responded to McIntosh’s June request
and advised McIntosh that he would need to contact the U.S. Marshals service because the Marshal
was the sole approval authority for eye care for federal inmates housed temporarily in a county jail
(id.); the U.S. Marshal service was responsible for paying all of McIntosh’s medical expenses while
he was housed in the BCJ other than medical care provided by jail doctors and nurses. (Aff. of
Phillip Steffen, ECF 39 at ¶ 14.) Wendricks provided McIntosh with the contact information for the
appropriate U.S. Marshal (Wendricks Aff.¶ 32, Ex. K.); McIntosh submitted a grievance on June
17, 2007 in which he complained he had been without glasses since February 15, 2007. (Steffen
Aff. ¶ 36, Ex. T.) There is no evidence that McIntosh made any requests for eye care after June 17,
2007; if McIntosh contacted the U.S. Marshal service it is unclear what action that agency took (see
Resp. to Mot. for Sum. Jud., ECF 72 at 2) as McIntosh did not receive an eye exam while at the
BCJ.
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First, the need for glasses, especially reading glasses, is not per se a serious medical need.
See Borelli v. Askey, 582 F. Supp. 512 (E.D. Pa., 1984); c.f. Kemppainen v. Aransas County Det.
Ctr., 2010 WL 4918958, *8 (S.D. Tex. Nov 23, 2010) (denying summary judgment where plaintiff
was denied eyeglasses when plaintiff was nearsighted to the point of legal blindness and had
suffered severe headaches and other pain and discomfort as a result of his uncorrected vision.)
Serious medical needs include the following: “(1) conditions that are life-threatening or that carry
risks of permanent serious impairment if left untreated; (2) those in which the deliberately
indifferent withholding results in needless pain and suffering; and (3) conditions that have been
diagnosed by a physician as mandating treatment.” Lilly v. Torhorst, 2006 U.S. Dist. LEXIS 5670,
*16 (W.D. Wis. 2006). Here, McIntosh’s alleged visual impairment does not meet any of these
criteria. McIntosh could see well enough to read and write and, moreover, McIntosh never followed
up with any further complaints of eye problems after June 17, 2010.
Furthermore, even if McIntosh did have a serious medical need regarding his vision,
Wendricks’ response to McIntosh’s June request to see an eye doctor was appropriate. By telling
McIntosh to contact the U.S. Marshals Service, Wendricks did not act with deliberate indifference.
The BCJ did not employ or contract with any eye care specialists to examine and treat inmates at
the jail. (Steffen Aff. ¶ 16.) If a federal prisoner such as McIntosh wanted health care services that
were not provided at the BCJ, such services had to be pre-approved by the U.S. Marshals Service,
since the federal government was responsible for paying all such expenses. (Id. ¶ 15.) Wendricks,
a mere nurse at the BCJ, did not have any authority over the U.S. Marshals Service and could not
have sent McIntosh to an eye care specialist on Wendricks’ own accord. Wendricks provided
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McIntosh with prompt and accurate information about how to coordinate an eye appointment and
such acts flatly contradict McIntosh’s claim of deliberate indifference.
CONCLUSION
The undisputed facts show that McIntosh was provided diabetic meals, and that he was
provided contact information for the U.S. Marshal, the only person who could address his request
for eye glasses. Such facts fail to give rise to any genuine issues of material fact related to
McIntosh’s deliberate indifference claims, making summary judgment with respect to these two
claims proper. Defendants’ motion for summary judgment for McIntosh’s claims regarding his eye
care and diabetes are accordingly GRANTED. However, a genuine issue of material fact still
remains with respect to the denial of McIntosh’s pain medication. Defendants’ motion for summary
judgment with respect to this claim is therefore DENIED. In accordance with McIntosh’s
demonstration of a genuine issue of material fact with respect to whether his denial of pain
medication is the result of a BCJ policy, the portion of the order, Docket 10, dismissing Captain
Jadin as a party is VACATED.
Dated this
22nd
day of August, 2011.
s/ William C. Griesbach
William C. Griesbach
United States District Judge
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