Johnson v. State of Wisconsin Department of Corrections et al
Filing
59
ORDER signed by Judge Lynn Adelman on 1/22/13 granting 48 Motion for Summary Judgment; denying 55 Motion to Strike. Further ordering that this action is dismissed and the Clerk of Court shall enter judgment. (cc: all counsel) (dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARKEL JOHNSON,
Plaintiff,
v.
Case No. 10-CV-337
HOLLY MEIER, RICK RAEMISCH,
JODINE DEPPISCH, JIM SCHWOCHERT,
MARK SCHOMISCH, RENEE SHULER,
DR. DAVID BURNETT, and JOHN DOE,
Defendants.
DECISION AND ORDER
Plaintiff, Markel Johnson, a Wisconsin state prisoner, filed this case pursuant to 42
U.S.C. § 1983. He claims that defendants acted with deliberate indifference when they
denied his request for knee surgery after he injured his knee at Fox Lake Correctional
Institution, in violation of the Eighth Amendment to the United States Constitution. Before
me now is defendants’ motion for summary judgment.
I. 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.” 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 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).
II. FACTUAL BACKGROUND
Plaintiff was incarcerated at Fox Lake Correctional Institution (“FLCI”) at all times
relevant to this lawsuit. Defendant Holly Meier is a supervisor in the Health Services Unit
(“HSU”) at FLCI. Defendants Rick Raemisch, Jodine Deppisch, Jim Schwochert, Mark
Schomisch and Renee Schueler are all FLCI agents who were acting under the color of
state law. Defendant David Burnett is the medical director for the Wisconsin Department
of Corrections Bureau of Health Services.
On February 28, 2008, plaintiff injured his knee while playing basketball at FLCI.
He presented to the HSU with an injury to his left knee along with moderate pain, and was
referred to Waupun Memorial Hospital’s emergency department. X-rays taken there were
negative for any fractures, dislocations or excess fluids. Plaintiff was provided with a knee
immobilizer and prescribed Tylenol #3 for pain.
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At a follow-up HSU appointment on March 3, 2008, plaintiff reported decreased pain
and increased function. He declined the further use of Tylenol #3. On March 12, 2008,
plaintiff had another follow-up appointment where he indicated that he was no longer using
his knee immobilizer. His physician noted that his left knee exhibited a full range of motion
and recommended a treatment plan consisting of continued conservative self-care
measures and activity precautions. Plaintiff was seen again on April 16, 2008, and his
physician described his left knee as “completely unremarkable.” On June 5, 2008, plaintiff
had another HSU appointment. His physician noted that plaintiff was not doing the rehab
exercises he was told to do—specifically, a “straight leg raise” home exercise program that
would strengthen his quad muscles. Plaintiff’s physician recommended that he not engage
in jumping or force exertion activities and instead focus on straight leg raise exercises.
Plaintiff re-injured his knee playing basketball on June 10, 2008, and was taken to
the HSU. He was issued crutches, and instructed to rest and not play basketball. Plaintiff
was seen again at the HSU on July 2, 2008. At that appointment, he reported that his knee
was not feeling any better and that it hurt when he did squats while working out. Plaintiff
was told that he needed to use low weights and increase slowly. On July 7, 2008, plaintiff
was given a steroid injection in his left knee.
On July 19, 2008, plaintiff re-injured his knee and was seen by a registered nurse.
He was prescribed rest, ice, and ibuprofen for pain. At a follow-up HSU appointment on
August 14, 2008, plaintiff reported continued knee pain. His physician noted that he
continued to not do his straight leg raise exercises. At plaintiff’s request, his physician
agreed to the second steroid injection on the condition that he start doing his straight leg
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raises and refrain from playing basketball. Plaintiff was given the second steroid injection
on September 5, 2008.
On September 11, 2008, plaintiff reported to medical staff that his left knee gave out
and that the injury was not related to any activity but had “just happened.” He was
prescribed ice, elevation, crutches, and ibuprofen.
Plaintiff was seen at the HSU on October 6, 2008, where his physician noted a likely
grade II or III ACL tear, and sought authorization for an MRI to confirm. On October 19,
2008, plaintiff reported to a registered nurse that his knee gave out. The note indicates
that, while plaintiff had crutches, he was not using them and instead trying to walk without
them.
Plaintiff’s left knee was examined via MRI on November 5, 2008, which confirmed
an ACL tear, along with medial and lateral meniscus tears. On November 19, 2008,
plaintiff’s physician reviewed the MRI results with him and agreed to present the MRI
results to Corrections’ “Prior Authorization for Therapeutic Level of Care” Committee (“the
Committee”). The physician requested an orthopedic surgery consult The Committee is
a panel of doctors and other medical professionals that considers whether surgical
treatment should be authorized. The Committee authorized six sessions of physical
therapy and a hinged knee brace rather than ACL reconstruction surgery.
From December 15, 2008 to January 12, 2009, plaintiff participated in physical
therapy. By the conclusion of the physical therapy regimen, he had regained his full range
of motion and had increased strength in his left knee. On January 2, 2009, plaintiff was
issued a knee brace and instructed in its use, and on January 28, 2009, he was seen in
the HSU for a follow-up appointment. He was not wearing his knee brace during that
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appointment. Plaintiff’s physician, who noted that his left knee was “rehabbing” well,
recommended that plaintiff use his brace, and reminded him that he should continue his
muscle strength exercises while avoiding extra activities and recreation.
On July 30, 2009, plaintiff was seen in the HSU for further follow-up and his
physician noted his pain and instability were diminished when he used the brace. It was
further noted that plaintiff’s ability to transfer and ambulate were good when he was
wearing the brace. At plaintiff’s insistence, his physician agreed to present his progress
at a future Committee meeting in order to see whether an orthopedic surgery consultation
would be approved. Plaintiff’s physician described his condition as non-urgent. The
Committee, which considered plaintiff’s request on August 12, 2009, noted that his pain
was diminished when he used his brace, and that special conditions were in place for
plaintiff, notably, sleeping on a low bunk.
The Committee approved continuing
conservative care, with an instruction to re-present if conditions warranted.
On April 8, 2010, plaintiff reported left knee pain and was seen at the HSU. His
physician noted that he was not wearing his knee brace compliantly, and reminded him to
do so.
An ACL injury may be treated a number of different ways. Some individuals with
ACL injuries require only minimal medical intervention.
More commonly, doctors
recommend “conservative” treatment which consists of rehabilitation through physical
therapy.
Physical therapy is intended to strengthen the surrounding muscles to
compensate for the torn ligament.
In circumstances where rehabilitation has not
adequately resolved the injury or where the injury is severe, surgical construction may be
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necessary. Overall, approximately one third of all patients presenting with ACL injuries
require reconstruction surgery.
III. ANALYSIS
As an initial matter, plaintiff contends that the declaration of defendants’ expert
witness, Ellen O’Brien, M.D., should be stricken because the expert was not disclosed
pursuant to Federal Rule of Civil Procedure 26(a)(2) and because the declaration is not
consistent with the legal standard for the admission of expert testimony. Parties must
disclose the identity of expert witnesses at the times and in the sequence that the court
orders and if the court does not so order, the disclosure must be made at least 90 days
before trial. Fed. R. Civ. P. 26(a)(2)(D). In this case, I have not yet ordered the disclosure
of experts and a trial date is not set. Thus, defendants’ failure to disclose the identity of
their expert before filing the summary judgment motion does not violate Fed. R. Civ. P. 26.
Plaintiff also contends that Dr. O’Brien’s affidavit should be stricken because, in
addition to giving her opinion, Dr O’Brien interprets facts for the fact-finder, thereby creating
new facts. Plaintiff contends that paragraph ## 10-34, 36-38, and 40-45 of Dr. O’Brien’s
declaration are misleading for either providing her own interpretation of the facts based on
notes she has reviewed in the record, or for creating new facts within the fact patterns that
were presented to her in the record. While Dr. O’Brien may not testify as to legal
conclusions, she may testify as to ultimate fact issues. Roundy’s Inc. v. N.L.R.B., 674 F.3d
638, 648 (7th Cir. 2012); see also Fed. R. Evid. 704(a). For the most part, Dr. O’Brien’s
affidavit summarizes plaintiff’s medical records. Plaintiff does not challenge her authority
to do so. I find that Dr. O’Brien’s affidavit accurately restates the medical records and that
there is no basis to strike the affidavit. I now turn to plaintiff’s constitutional claim.
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Defendants contend that plaintiff’s claims of deliberate indifference fail as a matter
of law.
Plaintiff contends that he has shown that prison officials were deliberately
indifferent to his serious medical needs and suffering.
“The Eighth Amendment safeguards the prisoner against a lack of medical care that
may result in pain and suffering which no one suggests would serve any penological
purpose.” Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011) (quoting Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009) (internal quotation omitted)).
Prison officials violate the Constitution if they are deliberately indifferent to a prisoner’s
serious medical need. Id. (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). A prisoner’s
claim for deliberate indifference must establish “(1) an objectively serious medical
condition; and (2) an official’s deliberate indifference to that condition.” Gomez v. Randle,
680 F.3d 859, 865 (7th Cir. 2012) (quoting Arnett, 658 F.3d at 750).
In this case, defendants do not contend that plaintiff’s knee was not a serious
medical need and I therefore turn to whether defendants were deliberately indifferent. To
demonstrate deliberate indifference, a plaintiff must show that defendants “acted with a
sufficiently culpable state of mind,” something akin to recklessness. Arnett, 658 F.3d at
751 (quoting Johnson v. Snyder, 444 F.3d 579, 585 (7th Cir. 2006)). A prison official acts
with a sufficiently culpable state of mind when he or she knows of a substantial risk of harm
to an inmate and either acts or fails to act in disregard of that risk. Id. (citing Roe v. Elyea,
631 F.3d 843, 857 (7th Cir. 2011)). Deliberate indifference “is more than negligence and
approaches intentional wrongdoing.” Id. (quoting Collignon v. Milwaukee Cnty., 163 F.3d
982, 988 (7th Cir. 1998)). It “is not medical malpractice; the Eighth Amendment does not
codify common law torts.” Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008). “A jury
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can infer deliberate indifference on the basis of a physician’s treatment decision [when] the
decision [is] so far afield of accepted professional standards as to raise the inference that
it was not actually based on a medical judgment.” Arnett, 658 F.3d at 751 (quoting
Duckworth, 532 F.3d at 679) (quotation marks omitted).
To show that defendants were deliberately indifferent, plaintiff needs to establish
that they were aware of but intentionally or recklessly disregarded his serious medical
need. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Hayes v. Snyder, 546 F.3d 516,
522-23 (7th Cir. 2008). According to plaintiff, defendants acted with deliberate indifference
because the Committee denied his request for knee surgery after his doctor recommended
an orthopedic surgery consultation on November 19, 2008. The court defers to a medical
professional’s treatment decisions “unless ‘no minimally competent professional would
have so responded under those circumstances.’” Sain v. Wood, 512 F.3d 886, 894-95 (7th
Cir. 2008) (quoting Jackson v. Kotter, 541 F.3d 688, 698 (7th Cir. 2008)). Plaintiff points
to no evidence which might suggest that defendants’ treatment of his knee was
unreasonable; plaintiff was seen and treated in the HSU multiple times, and the Committee
determined to proceed with a conservative course of treatment for his knee injury. The
record shows that defendants’ treatment of plaintiff was grounded in professional judgment
and was reasonable. See Jackson, 541 F.3d at 698; Johnson v. Doughty, 433 F.3d 1001,
1014 (7th Cir. 2006). Even if defendants were wrong in denying the request for surgery,
as long as they believed that they were providing appropriate treatment, they were not
deliberately indifferent. See Walker v. Peters, 233 F.3d 494, 499 (7th Cir. 2000).
On the basis of this record, no reasonable juror could find that defendants were
deliberately indifferent to plaintiff’s serious medical need. See Duckworth, 532 F.3d at 681
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(concluding that doctor who knew there was risk of cancer but erroneously thought that
another condition was more likely causing prisoner’s symptoms was not deliberately
indifferent); Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006) (explaining that
difference of opinion as to prisoner’s arthritis amounted to, at most, medical malpractice,
and was not constitution violation). A good faith disagreement about the proper course of
treatment will never prove deliberate indifference. Norfleet, 439 F.3d at 396; Johnson, 433
F.3d at 1012-13. Therefore, defendants’ motion for summary judgment will be granted.
IT IS THEREFORE ORDERED that defendants’ motion for summary judgment
(Docket #48) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to strike (Docket #55) is DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED.
IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 22nd day of January, 2013.
s/ Lynn Adelman
______________________
LYNN ADELMAN
District Judge
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