Koch v. Does
Filing
90
DECISION AND ORDER signed by Judge Pamela Pepper on 6/7/2016 DENYING 71 Defendant Karen Butler's Motion for Summary Judgment; GRANTING Defendants Barb Braun, Patti Manthey, Kim Mueller and Julie Treiber's 75 Motion for Summary Judgment; and DISMISSING Barb Braun, Patti Manthey, Kim Mueller and Julie Treiber as defendants. (cc: all counsel). (cc: all counsel) (pwm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
IAN DANIEL KOCH,
Plaintiff,
Case No. 14-cv-393-pp
v.
KAREN BUTLER, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING DEFENDANTS BARB BRAUN, PATTI
MANTHEY, KIM MUELLER, AND JULIE TREIBER’S MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 75) AND DENYING DEFENDANT KAREN
BUTLER’S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 71)
______________________________________________________________________________
Plaintiff Ian Koch was incarcerated at the Fond du Lac County Jail
during the events described in this case. On October 15, 2013, Judge William
M. Conley of the U.S. District Court, Western District of Wisconsin (the judge
initially assigned to the case) entered an order allowing the plaintiff to proceed
on his claims that the defendants were deliberately indifferent to his medical
needs in violation of the U.S. Constitution. Dkt. No. 10. On April 4, 2014,
Judge Conley transferred the case from the Western District of Wisconsin to
the Eastern District. Dkt. No. 25. On April 7, 2014, the Clerk’s Office randomly
assigned the case to Judge William C. Griesbach; on December 29, 2014,
Judge Griesbach assigned the case to Judge Pepper after her appointment to
the district court bench.
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October 30, 2015, defendant Karen Butler, M.D., filed a motion for
summary judgment, (Dkt. No. 71), and defendants Barb Braun, Patti Manthey,
Kim Mueller, and Julie Treiber (nurses at the jail) filed their motion for
summary judgment on November 7, 2015 (Dkt. No. 75). Those motions now are
fully briefed and ready for the court’s decision. The court will grant Braun,
Manthey, Mueller, and Treiber’s motion for summary judgment, and will deny
Butler’s motion for summary judgment.
I.
FACTS1
The plaintiff alleges that on January 20, 2012, he injured himself while
working in the jail’s kitchen. Dkt. No. 83 ¶ 1. The plaintiff reported his
abdominal pain to a jail nurse (not a defendant) on January 23, 2012. Dkt. No.
83 ¶ 3. The plaintiff described his pain as being on his left side, about two
inches from his belly button. Dkt. No. 83 ¶ 4. The nurse suggested that the
plaintiff might have a muscle strain or constipation; she told him to increase
his fluid intake and exercise. Dkt. No. 83 ¶ 4. She removed the plaintiff from
his job and told him to follow up with a nurse in a few days. Id.
Defendant Mueller saw the plaintiff at sick call on January 27, 2012.
Dkt. No. 83 ¶ 5. Mueller recorded that the plaintiff denied any pain in his left
side and said he was able to eat, sleep, and work out normally. Dkt. No. 83 ¶ 5.
The plaintiff disputes this record, stating that he told Mueller his pain was still
The court takes the facts primarily from Plaintiff Ian Koch’s Response to
Defendant Karen Butler, M.D.’s Proposed Statement of Facts and of Additional
Facts Requiring Denial of Summary Judgment (Dkt. No. 82) and from Plaintiff
Ian Koch’s Response to Nursing Defendants’ Proposed Finding of Fact (Dkt. No.
83). The facts are undisputed unless otherwise noted.
1
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present, though it had decreased, and that he could not work out normally.
Dkt. No. 83 ¶ 5.
The plaintiff next was seen on February 17, 2012. Dkt. No. 83 ¶ 6. The
plaintiff states that he told Mueller that “it felt like the internal stiches from his
prior hernia surgeries were ripping open.” Dkt. No. 83 ¶ 6. Mueller recorded
that the plaintiff reported “left lower quadrant abdominal pain and left upper
quadrant abdominal pain” and that “he felt like his bowel was not emptying.”
Dkt. No. 83 ¶ 6. Mueller reported the information to Butler, who ordered a
clear liquid diet for seventy-two hours. Dkt. No. 83 ¶ 6.
On February 20, 2012, the plaintiff complained to Braun that the liquid
diet was not effective. Dkt. No. 83 ¶ 7. The plaintiff states that he tried the diet
for about twenty-four hours, but felt like he was starving, so he ate some solid
food once he determined the liquid diet wasn’t helping. Dkt. No. 83 ¶ 7. Braun
recorded the plaintiff’s medical history, which included three prior hernia
repairs. Dkt. No. 82 ¶ 9. The jail also requested the plaintiff’s medical records
from Children’s Hospital. Dkt. No. 82 ¶ 9. Braun called Butler, who ordered a
liquid antacid to be taken twice a day for two weeks. Dkt. No. 83 ¶ 8.
The next day, the plaintiff complained to Braun that his pain was getting
worse. Dkt. No. 83 ¶ 9. The plaintiff described his pain as a seven out of ten
(with ten being the worst); he explains that he could not lie down without
making minimal use of the left side of his abdomen and could sit up only by
rolling over and using his arms. Dkt. No. 83 ¶ 9. However, Braun recorded
that, despite his complaints of significant pain, the plaintiff could “lay down
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and sit up on the exam table without any guarding of his muscles and without
distress.” Dkt. No. 83 ¶ 9. The plaintiff agreed to take antacids as prescribed by
Butler, but he states that Braun told him he could stop taking them if they did
not improve his condition. Dkt. No. 83 ¶ 9. The plaintiff explains that he had
surgery as a child to address problems with acid reflux, but that he had not
suffered from acid reflux at any time since the surgery. Dkt. No. 82 ¶ 11. And,
although he had been diagnosed as a child with being lactose intolerant, he
could consume certain dairy products, such as cheese, without a problem; it
was only milk that was difficult for him to consume. Dkt. No. 82 ¶ 11.
On February 23, 2012, the plaintiff complained to Braun that his pain
was still a seven out of ten. Dkt. No. 83 ¶ 10. Braun recorded that the plaintiff
had missed one dose of his antacid and that he had stopped exercising after
hurting himself on January 20. Dkt. No. 83 ¶ 10. The plaintiff disputes this
record; he states that he does not recall missing any doses of the antacid and
that he told Braun that he had exercised in the weeks following his initial
injury (except abdominal exercises), but that he needed to stop by February 23
because the pain was so severe. Dkt. No. 83 ¶ 10. The plaintiff also says he told
Braun that his abdominal pain was shifting throughout his abdomen and had
not localized in one area. Dkt. No. 83 ¶ 10. Braun again called Butler, who
ordered the jail staff to keep a seventy-two hour log of the plaintiff’s activities
and to evaluate his urine with a dipstick test. Dkt. No. 83 ¶ 11. The log
indicates that the plaintiff was exercising, playing cards, pacing, and walking
up stairs quickly. Dkt. No. 82 ¶ 11.
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Also on February 23, 2012, the plaintiff filed a grievance, in which he
complained that the prescribed liquid diet and antacids had not improved his
condition; he asked to go to the hospital because he believed he had a hernia.
Dkt. No. 83 ¶ 13.
On March 1, 2012, Butler ordered the plaintiff be given Prilosec once a
day for ninety days. Dkt. No. 83 ¶ 14. The plaintiff denies he suffered from acid
reflux at any time since his surgery when he was a child. Dkt. No. 82 ¶ 12.
On March 2, 2012, the plaintiff told Mueller his pain was seven out of ten
and made it hard for him to breathe. Dkt. No. 83 ¶ 15. Mueller performed a
urine dipstick, which indicated there was blood in the plaintiff’s urine. Dkt. No.
83 ¶ 15. After receiving this information, Butler suspected that the plaintiff
might have a kidney stone, so she ordered the plaintiff to increase his fluid
intake and to take Ibuprofen. Dkt. No. 83 ¶ 16. She also ordered the jail to put
the plaintiff in a segregated cell with a surveillance camera to monitor his
activities. Dkt. No. 83 ¶ 16.
On March 5, 2012, the plaintiff told Braun that the ibuprofen had
improved his pain; it was now only a two or three out of ten. Dkt. No. 83 ¶ 17.
Braun performed another urine dipstick test, which indicated a moderate
amount of blood. Dkt. No. 83 ¶ 17. The next day, the plaintiff complained to
Braun that his pain was back to a seven out of ten. Dkt. No. 83 ¶ 18; Dkt. No.
81-1 ¶ 16. Another urine dipstick test showed blood in the plaintiff’s urine,
although at a lesser amount than the prior tests. Dkt. No. 83 ¶ 18. A nurse (it
is unclear which one) called Butler, who prescribed Tylenol for the plaintiff’s
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pain and asked jail administration to set up a consult with a urologist. Dkt. No.
83 ¶¶ 18, 19.
On March 7, 2012, “the jail nurse” called Fond du Lac Regional Clinic to
set a urology appointment. Dkt. No. 83 ¶ 20. Appointments were being
scheduled two months out, which “was too long to wait.” Dkt. No. 83 ¶ 20. The
nurse then called Aurora Clinic and asked for a urology appointment. Dkt. No.
83 ¶ 21. That afternoon, Aurora Clinic called back and indicated that the
urologist (not a defendant) suggested that a CT scan be done before deciding
whether a urology consult was necessary. Dkt. No. 83 ¶ 23. Per the Clinic, the
urologist also suggested that if the plaintiff experienced increased pain,
vomiting or fever, he could be taken to the emergency room. Dkt. No. 83 ¶ 23.
According to the plaintiff, he told a correctional officer (not a defendant)
at about 4:00 p.m. on March 7, 2012, that he had to go to the hospital because
it felt “like his stomach lining was ripping.” Dkt. No. 83 ¶ 24. The officer called
Butler, who ordered a clear liquid diet and instructed the officer to have the
plaintiff see a nurse in the morning. Dkt. No. 83 ¶ 24. Butler does not have
access to medical records when she talks about patients over the phone, and
she acknowledges that she did not consult the plaintiff’s medical records before
ordering this course of treatment. Dkt. No. 86 ¶ 4; Dkt. No. 82 ¶ 16.
At about 6:15 p.m., a correctional officer observed the plaintiff lying on
his cell floor in the fetal position. Dkt. No. 83 ¶ 25. The plaintiff states that he
again told the officer it was painful to breathe and that the pain was in his
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right side. Dkt. No. 83 ¶ 25. The officer notified Butler of the plaintiff’s vitals
and complaints; she did not change her orders. Dkt. No. 83 ¶ 25.
By 10 p.m. that night, the plaintiff states that there was vomit all over
his cell. Dkt. No. 83 ¶ 26. The plaintiff explains that initially he had been able
to make it to the toilet, but as the pain increased, he began to vomit in a cup
and then on the floor, off the side of his bed. Dkt. No. 83 ¶ 26. The officer’s
record—which the plaintiff argues minimizes the circumstances—notes that
the plaintiff was complaining of vomiting and that the officer observed some
clear liquid on the floor, which might have been vomit. Dkt. No. 83 ¶ 26. The
officer called Butler, who continued her order that the plaintiff be kept on a
clear liquid diet, see the nurse in the morning and remain in an observation
cell; she also prescribed Vistaril (for anxiety) and Clonidine. Dkt. No. 83 ¶ 27;
Dkt. No. 82 ¶ 16.
Butler’s practice is to visit the Fond du Lac County Jail once per week,
usually on Thursdays. Dkt. No. 83 ¶ 28. March 8, 2012 happened to be a
Thursday, so Butler came to the institution to review charts and see patients.
Dkt. No. 83 ¶ 28. At 7:05 a.m., Butler reviewed the plaintiff’s chart. Dkt. No. 82
¶ 17. According to Butler, this was the first she learned of the urologist’s
suggestion that the plaintiff be sent to the hospital if his symptoms worsened.
Dkt. No. 82 ¶ 16. Butler noted that the activity log, maintained by correctional
officers from 4 p.m. until 1:30 a.m. on the night of March 7-8, indicated that
the plaintiff had been sleeping without incident and sitting quietly or standing.
Dkt. No. 82 ¶ 17. Butler decided to order a CT scan based on the plaintiff’s
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“hernaturia, [increased] pain, and vomiting.” Dkt. No. 83 ¶ 28; Dkt. No. 82 ¶
17. She also ordered that the plaintiff continue a clear liquid diet for another
seventy-two hours, continue to be monitored in a camera cell, and take the
Prilosec. Dkt. No. 82 ¶ 17. Jail staff scheduled the CT scan for the next
afternoon—March 9, 2012, at 2:30 p.m. Dkt. No. 82 ¶ 17. Butler did not see the
plaintiff in person. Dkt. No. 86 ¶ 5.
On March 8, 2012, at 9:20 a.m., the plaintiff told Treiber during sick call
that he had vomited fifteen times between 4 p.m. on March 7 and 1 a.m. on
March 8. Dkt. No. 83 ¶ 29. He said the vomit started out brown, turned clear,
and finally was tinged red. Dkt. No. 83 ¶ 29. The plaintiff states that he told
Treiber that the pain he was feeling was different than the abdominal injury he
experienced on January 20. Dkt. No. 83 ¶ 29. He claims he told her that the
pain had moved to his right side starting the day before, and that it was the
worst pain he had ever experienced in his life. Dkt. No. 83 ¶ 29. He also said
that, while the pain had been 3500 on a scale of ten the night before, it was
now at a two out of ten. Dkt. No. 83 ¶ 30. The plaintiff states that he requested
to be returned to the general population because he had not liked being
isolated while he was suffering, and he asked for new clothes and shoes
because his clothes were stained with vomit. Dkt. No. 83 ¶ 30. Treiber did not
schedule the plaintiff to see Butler. Dkt. No. 83 ¶ 30.
On March 9, 2012, at 2:30 p.m., the plaintiff underwent a CT scan. Dkt.
No. 83 ¶ 31. The radiologist read the CT as showing an enlarged appendix. Dkt.
No. 83 ¶ 32. Butler learned of the results at 3:10 p.m. and immediately ordered
8
that the plaintiff be taken by ambulance to the hospital, where he had surgery
to remove his appendix. Dkt. No. 83 ¶ 32; Dkt. No. 82 ¶ 18. The appendix was
enlarged but it was intact; it had not burst. Dkt. No. 83 ¶ 32.
The doctor who removed the plaintiff’s appendix recorded that the
plaintiff had been experiencing left lower quadrant pain for about two months
and that the pain had become localized more toward the right and was
associated with nausea, vomiting, and “poor p.o. intake.” Dkt. No. 82 ¶ 20. The
doctor noted, “This pain is more severe and different from what he is
experiencing over the last 2 months in the left lower quadrant. He denies any
similar problems in the past.” Dkt. No. 82 ¶ 21. The plaintiff states that he
spoke with the doctor only about his then current pain, not about the pain he
had been experiencing on his left side for the prior two months. Dkt. No. 82 ¶¶
21, 22.
On March 12, 2012, at sick call, the plaintiff states that he complained
to Braun that he continued to have pain on his left side, which was the same
pain he experienced in January. Dkt. No. 83 ¶ 33. The plaintiff also states that
he complained about pain where his surgical incisions were; he had Steri strips
covering the incisions in three places. Dkt. No. 83 ¶ 33. The plaintiff states that
Braun began to remove one of the strips, which caused “incredible pain.” Dkt.
No. 83 ¶ 33. The plaintiff also states that Butler ordered his pain relief
medication to be cut in half, which contributed to the plaintiff’s continued
abdominal pain post-surgery. Dkt. No. 83 ¶ 33.
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The plaintiff continued to complain of pain in his left side and at the
incision site through May 2, 2012. Dkt. No. 83 ¶¶ 34-37.
II.
DISCUSSION
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 “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 disputed 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 knowledge, set out facts that would be
10
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).
B.
Deliberate Indifference Standard
A pretrial detainee’s claim that officials were deliberately indifferent to
his serious medical needs arises under the Due Process Clause of the
Fourteenth Amendment. Chavez v. Cady, 207 F.3d 901, 904 (7th Cir. 2000).
Courts generally analyze such claims, however, the same way they analyze
deliberate indifference claims under the Eighth Amendment. Id. at 904
(citations omitted). The plaintiff must demonstrate both an objective element
(i.e., that the plaintiff’s medical need be sufficiently serious) and a subjective
element (i.e., that the officials act with a sufficiently culpable state of mind).
Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997).
The court finds that appendicitis is a sufficiently serious medical need,
so it will focus its analysis on the subjective element—whether the defendants
were deliberately indifferent. With regard to the subjective element, a plaintiff
must show that the defendants had “actual knowledge” that the plaintiff was
“at risk of serious harm.” Pittman ex rel. Hamilton v. Cnty. of Madison, Ill., 746
F.3d 766, 778 (7th Cir. 2014) (emphasis in original). In addition, he must show
that, despite having knowledge of such a risk, the defendants failed to take
reasonable measures to abate the risk. Farmer v. Brennan, 511 U.S. 825, 847
(1994). “[P]rison officials who actually knew of a substantial risk to inmate
health or safety may be found free from liability if they responded reasonably to
the risk, even if the harm ultimately was not averted.” Id. at 844. Medical
11
malpractice does not constitute deliberate indifference. Duckworth v. Ahmad,
532 F.3d 675, 679 (7th Cir. 2008). (Citation omitted). It “means more than
negligent,” but is “something less than purposeful.” Id. (citing Farmer, 511 U.S.
at 836).
C.
Applying the Law to the Facts
The parties agree that the defendants did something to treat the
plaintiff’s medical needs; the dispute is whether they did enough. The
defendants argue that the plaintiff’s symptoms were shifting and that the
plaintiff refused to follow prescribed treatments, making it difficult to assess
what was wrong with him and how to treat it. They assert that they did the
best they could given the circumstances, and argue that based on the record
before the court, no fact finder could determine they were deliberately
indifferent to the plaintiff’s medical needs.
The plaintiff argues that the defendants ignored his consistent
complaints and failed to properly investigate his symptoms. He claims that as a
result of their indifference to his needs, they failed to diagnose his appendicitis,
and he was forced to suffer additional pain that he could have been spared.
1. January 23, 2012, through March 6, 2012
The court agrees with the defendants that no fact finder could determine
that, through March 6, 2012, the defendants had been deliberately indifferent
to the plaintiff’s serious medical needs. The plaintiff complained of an injury on
January 23, 2012; however, the pain associated with that injury had
significantly improved, if not resolved, by January 27, 2012. The plaintiff did
12
not seek any medical care for an additional twenty-two days. Given his
persistence in trying to obtain care throughout the latter half of February and
early March, the reasonable inference is that the rest and increase in fluid
intake suggested by the nurse adequately addressed the plaintiff’s initial needs.
From February 17 through March 6, the plaintiff once again complained
of stomach pain, consistently rating it during this period as a seven out of ten.
The nurses recorded the pain as being located in the lower left side of his
abdomen, but the plaintiff states that he told them the pain was shifting
throughout his abdomen and had not settled in one location. Regardless, the
record reveals the defendants made consistent attempts to both address and
diagnose the plaintiff’s pain.
The nurses conducted physical exams and reported their observations to
the doctor on multiple occasions. For about a week, Butler attempted to resolve
the plaintiff’s pain with changes to his diet and medication. She ordered a clear
liquid diet (which the plaintiff tried for a period of time, then rejected as
ineffective); she prescribed antacids and Prilosec; and she ordered the kitchen
to implement diet restrictions. When those changes proved ineffective, she
began to look for other causes of the pain.
On February 23, 2012, Butler ordered a urine dipstick and a seventy-two
hour activity log. After the dipstick revealed blood in the plaintiff’s urine, she
ordered that he be placed in a camera cell for observation. Suspecting the
plaintiff might have a kidney stone, she ordered him to increase his fluid intake
to help him pass the stone and prescribed Ibuprofen to reduce his pain. This
13
treatment plan temporarily improved the plaintiff’s pain level, which decreased
to a two on a scale of ten.
Over the next week, Butler ordered two more dipsticks, both of which
revealed the presence of blood, although less than the first dipstick. On March
6, 2012, Butler ordered Tylenol and referred the plaintiff to a urologist so that
he could undergo a CT scan, to better understand why the plaintiff’s urine
contained blood.
Up to this point, Butler (and the nurses via Butler’s orders) provided
continuous care, assessment and monitoring in response to the plaintiff’s
complaints. Butler considered his history, symptoms and test results, and,
when conservative treatments proved to be ineffective, she referred the plaintiff
to an outside specialist. The plaintiff may think she got it all wrong, but the
plaintiff’s disagreement with the kind of treatment he received is not sufficient
to overcome summary judgment. See Stallings v. Liping Zhang, 607 Fed. App’x
591, 593 (7th Cir. 2015). As the court noted above, deliberate indifference is
not medical malpractice (even if such malpractice occurred). Duckworth, 532
F.3d at 679. To survive summary judgment, the plaintiff must present evidence
that the defendants’ choices were so “significant a departure from accepted
professional standards or practices” that it is questionable whether they
actually exercised professional judgment. Id. (citing Pyles v. Fahim, 771 F.3d
403 at 409 (7th Cir. 2014)).
The plaintiff’s expert has opined that the plaintiff may have been
suffering from appendicitis as early as February 23, 2012. Dkt. No. 82 ¶ 28.
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Even he agrees, however, that the plaintiff’s symptoms through March 6, 2012,
did not correlate with the typical presentation of appendicitis. Dkt. No. 82 ¶ 31.
Specifically, the plaintiff’s expert stated that the symptoms of appendicitis may
include abdominal pain on the right side (up to this point, all of the plaintiff’s
complaints referred to shifting pain and/or pain on his left side), fever,
vomiting, anorexia, blood pressure changes, anxiety and sweating. Dkt. No. 82
¶ 25. The plaintiff was exhibiting none of these symptoms. In fact, the
symptom that spurred Butler to refer the plaintiff to a specialist (i.e., blood in
his urine) is not associated with appendicitis. Dkt. No. 82 ¶ 35. The plaintiff’s
expert acknowledges that that symptom is consistent with having a kidney
stone, which is precisely what Butler eventually suspected and began to treat
the plaintiff for (e.g., by ordering that he significantly increase his fluid intake).
The plaintiff has presented nothing to show that the defendants’ course
of treatment from January 23, 2012, through March 6, 2012—including dietary
changes, medications, observation, urine dipsticks and referral to a specialist—
significantly departed from accepted professional standards.
Defendants Braun, Manthey and Mueller had no contact with the
plaintiff outside of that timeframe (see Dkt. No. 81-1 ¶¶ 7-10, 11, 12, 14-16;
Dkt. No. 83 ¶¶ 6, 63). Because the plaintiff has not provided evidence raising a
genuine dispute of material fact regarding these three defendants, and has not
produced evidence demonstrating that these three defendants were deliberately
indifferent to the plaintiff’s serious medical needs, the court dismisses them
from this action.
15
The court will move on to consider those defendants who had continued
contact with the plaintiff after March 6, 2012.
1. March 7, 2012 through March 9, 2012
On March 7, 2012, the plaintiff’s symptoms changed significantly. At
about 4:00 p.m., the plaintiff notified a correctional officer that he was in
severe pain. Butler was notified, and she ordered a clear liquid diet and placed
the plaintiff in an observation cell. Two hours later, staff found the plaintiff
curled up on the floor in a fetal position; he told a correctional officer that he
couldn’t breathe because of the pain and that the pain was in his right side.
The officers notified Butler. At 10:00 p.m., the plaintiff notified the officers that
he was vomiting. Again, the officers notified Butler. She prescribed a
medication for anxiety as well as other medications (it’s unclear what
suspected conditions she intended to treat with those medications).
The next morning, Butler happened to be in the plaintiff’s institution to
see patients and review files. She reviewed the plaintiff’s file first thing in the
morning, at about 7 a.m. Despite having been called about the plaintiff’s
condition three times the night before, and despite a progression (if not a
definitive change) in the plaintiff’s symptoms, she decided not to see the
plaintiff.
Butler states that she looked at the activity log completed by the officers.
The log allows an observer to place a hash mark in eight different columns:
Acting Out; Sitting Quietly or Standing; Sleeping Visualize Breathing; Using
Bathroom; Talking to Others; Laughing or Crying; Self Stimulating; and Other
16
Explain. Id. According to the log, an officer checked in on the plaintiff once an
hour. Id. The log indicated that the plaintiff had been sitting, standing,
sleeping or talking to officers from 4:00 p.m. through 1:30 a.m. Dkt. No. 82 ¶
17. Butler decided that the activity log was “contrary to [the plaintiff’s]
subjective complaints from the night previous.” Id.
The indications in the log—that the plaintiff either was sitting, standing,
sleeping, or talking to officers—are vague. For example, on several occasions,
the log indicates that the plaintiff was observed talking to an officer, but the
notations do not reflect the subjects of the conversations, or the plaintiff’s
behavior while he was talking to the officers. The plaintiff states that he
complained to the officers several times about the severe pain he was
experiencing, and Butler acknowledges that she received three calls to that
effect. The log’s indications that the plaintiff was “talking to officers” confirms
that the plaintiff had contact with officers during the night; they do not provide
any evidence to support or dispute the plaintiff’s claims that those
conversations related to his pain. Yet Butler concluded that the log
contradicted the plaintiff’s complaints.
Similarly, while the log contains notations that at various times during
the night, the plaintiff was “sitting quietly or standing,” “laying on back,”
“laying on back awake,” “on back,” or “left side,” it contains no further detail
about his behavior while in these positions. As recounted above, at about 6:15
p.m. on March 7, a correctional officer observed the plaintiff lying on his cell
floor in the fetal position. Dkt. No. 83 ¶ 25. Someone lying on the floor in a fetal
17
position is lying “on side;” those two words, however, do not paint the full
picture. A person sleeping peacefully may be lying on his side; a person in
severe pain may be lying on his side, but the similarities end with the
description of the orientation of the person’s body in space.
While there is an “other column” in the log, there is no space to write
anything meaningful, which discourages observers from including important
details that would explain or qualify whatever hash marks they make. Nowhere
does the log indicate that the plaintiff had thrown up, yet an officer separately
reported to Butler that he had seen liquid in the plaintiff’s cell that could have
been vomit. And, with observations being recorded only once an hour, there
also exists the possibility that any guard checking on him might not have
observed the plaintiff while he was vomiting.
It appears that, rather than following up on the fact that the log did not
comport with the plaintiff’s complaints to her, Butler simply construed the log
as discounting everything the plaintiff had told her the night before. She did
not review the video coverage from the camera in his cell (despite the fact that
she’d ordered him to be put in a camera cell). She did not follow up with the
officers who made remarks in the log, to ask whether the plaintiff appeared in
distress when he was talking with officers, or appeared in distress when he was
lying down.
In light of the shift and/or progression in the plaintiff’s symptoms and
the fact that Butler was on site at the institution the very morning after those
symptoms presented, there is a genuine dispute over a material fact: whether
18
Butler failed to take reasonable measures to abate the risk to the plaintiff when
she decided not to send him to the emergency room for an in-person evaluation
on the night of March 7, 2012, and/or see the plaintiff in person on the
morning of March 8, 2012. See Dkt. 80 at 21 (Dr. Holmburg opining that,
“Once Koch began vomiting and experiencing extreme pain on March 7, it was
at a minimum recklessly indifferent for Dr. Butler to refuse to immediately
check on Koch or send him to the emergency room for an evaluation.”) For this
reason, the court will deny Butler’s summary judgment motion.
This leaves Treiber, the nurse who evaluated the plaintiff at about 9:20
a.m. on March 8, 2012. The plaintiff told Treiber that he had experienced the
worst pain of his life the night before (a 3500 on a scale of ten), and that he
had thrown up fifteen times. He also told her, however, that at the time he met
with her, his pain currently was at a two, that he wanted new clothes and
shoes, that he wanted to be put back on his regular diet, and that he wanted to
go back to the general population. Treiber reported this information to Butler.
Dkt. No. 83 ¶ 30.
There is some dispute regarding whether the nurses were to recommend
to Butler which patients she should see or whether Butler determined on her
own which patients to see, but there is no dispute that Butler was at the prison
on March 8, 2012, and that by the time Treiber saw the plaintiff at 9:20 a.m.,
Butler already had reviewed the plaintiff’s records some two hours before, and
decided not to see the plaintiff in person. It is not clear from the record whether
Treiber knew that Butler already had seen the plaintiff. What is clear is that
19
the plaintiff himself told Treiber his pain was a manageable two out of ten, and
that he himself requested that he be allowed to go back to general population,
in clean clothes.
The plaintiff argues that Treiber could have sent him to the emergency
room. Even accepting the plaintiff’s facts as true, however, what he told Treiber
did not indicate that an emergency situation existed. The plaintiff told Treiber
that his pain was largely diminished, he was no longer vomiting, he wanted to
eat regular food, and he wanted to go back to the general population. In other
words, while there may have been an emergency situation the previous night,
according to the plaintiff himself, it was no longer an emergency by the time
Treiber could do anything about it.
Because there is no genuine dispute of material fact about whether
Treiber was presented with an emergency situation, the court cannot find as a
matter of law that Treiber was deliberately indifferent to the plaintiff’s serious
medical need. The court will dismisses Trieber as a defendant.
III.
CONCLUSION
The court ORDERS that defendants Barb Braun, Patti Manthey, Kim
Mueller, and Julie Treiber’s motion for summary judgment (Dkt. No. 75) is
GRANTED. The court DISMISSES Barb Braun, Patti Manthey, Kim Mueller,
and Julie Treiber from this lawsuit.
The court further ORDERS that defendant Karen Butler’s motion for
summary judgment (Dkt. No. 71) is DENIED. The court will schedule a
conference to discuss trial dates.
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Dated in Milwaukee, Wisconsin this 7th day of June, 2016.
21
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