Schmidt v. Clarke et al

Filing 122

ORDER signed by Judge J P Stadtmueller on 6/25/13 denying 98 Defendants' Motion for Summary Judgment; a Status Conference is set for 7/16/13 at 8:30 AM in Courtroom 425, 517 E Wisconsin Ave., Milwaukee, WI before Judge J P Stadtmueller. (cc: Plaintiff, all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROBERT S. SCHMIDT,

Plaintiff,
v.

Case No. 10-CV-381-JPS

SHERIFF DAVID A. CLARKE, JR.,
BARBARA WIGLEY RN, CONNIE PUETZ RN,
LETINA PEVEY LPN, DEBRA FENCEROY RN,
NORMA HUGHES LPN,
KIM TURNER-POINTER LPN,
SONJA NEAL LPN, JESSICA ZEMLAK,
MELISSA VAN HOFF, DIONNE YOUNG,
ELLIE SEYMOUR, DR. MICHAEL GREBNER,
KRIS BABE RN, MARGARET ZARWELL RN,
SUE PRUSINSKI LPN, GLORIA BEAL RN,
MELISSA CASTILLO LPN, FLOYD ELFTMAN,
PAUL DOUGLAS RN, DR. JUSTIN WOODS,
DR. ROBERT BLANCO, and
DR. ROGER BENSON,

ORDER

Defendants.

Pro se plaintiff Robert S. Schmidt (“Schmidt”), a prisoner in the
custody of the State of Wisconsin, filed a claim under 42 U.S.C. § 1983,
asserting that the defendants deprived him of his prescribed blood thinner
and blood tests, resulting in a painful blood clot in his left leg. Second
Amended Complaint (“2d Am. Compl.”) (Docket #74) at 5-6. Presently before
the court is a motion for summary judgment, filed by the defendants. (Docket
#98). For the reasons stated below, the defendants’ motion will be denied.

1.

Facts1
Schmidt was in the custody of the Milwaukee County Jail from

October 23 through October 25, 2009. From October 25, 2009, through
December 21, 2009, Schmidt was in the custody of the Milwaukee County
Correctional Facility-South. When Schmidt arrived at the jail on October 23,
2009, the medical record noted that Schmidt took Warfarin2 daily for chronic
Deep Vein Thrombosis (“DVT”). A Request of Information (“ROI”) was sent
to Fox Lake Correctional Facility, Schmidt’s previous location of
confinement, to verify Schmidt’s prescription. The parties dispute whether
the ROI was sent on October 23 or October 25, 2009. Either way, the parties
agree that Schmidt went without his prescribed blood thinners for five
consecutive days: the 23rd, 24th, 25th, 26th, and 27th of October, 2009. On
October 28, 2009, an Advanced Nurse Practitioner (“ANP”) ordered three
doses of Warfarin: two 10-milligram doses and one 2-milligram dose. On
November 5, 2009, Schmidt’s blood was tested and a 6-milligram dose of
Warfarin was ordered. On November 11, 2009, a 2-milligram dose was
ordered.
Schmidt claims that on or about December 10, 2009, he started to
experience pain and walk with a noticeable limp. He further claims that his
leg was hot to the touch and had to remain elevated at all times. Defendants
admit that Schmidt filed out a medical request slip, but state that it is unclear

1

Facts appearing in this section are not disputed, unless noted. Facts are
taken from the Defendants’ Proposed Findings of Fact (Docket #113) as compared
with the Plaintiff’s Response to Defendants’ Proposed Findings of Fact (Docket
#102), and the 2d Am. Compl as compared with Defendants’ Answer. (Docket #77).
2

Warfarin is the generic name for Coumadin, a prescription blood thinner.
In their briefing, the parties utilize both names; this Order will use Warfarin
throughout.

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when the request slip was submitted. Both parties agree that on December
16, 2009, Schmidt saw a nurse at the jail, and was then transported to the
hospital. Schmidt claims that an ultrasound performed at the hospital
revealed a two and a half foot long clot in his left leg.
2.

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. The
court ruling on a summary judgment motion construes all facts and makes
all reasonable inferences in the light most favorable to the nonmoving party.
Id.
3.

Analysis
Schmidt alleges a violation of the Eighth Amendment of the United

States Constitution.3 (Compl. at 7). As plaintiff in this action, Schmidt will

3

Schmidt attached an affidavit as part of his briefing in opposition to
defendants’ motion. (Docket #104). In the affidavit, Schmidt states that he was
arrested on October 22, 2009. In that case, Schmidt would have been a pretrial
detainee at the time of the alleged constitutional violation, and, therefore, his claim
arises under the Fourteenth Amendment’s Due Process Clause, rather than the
Eighth Amendment. Velez v. Johnson, 395 F.3d 732, 735 (7th Cir. 2005). The court
notes this distinction though it does not affect analysis of this case; in the Seventh
Circuit, “there is ‘little practical difference between the two standards.’” Id. (quoting
Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000)).

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carry a burden to show that: (1) he had a serious medical need;
(2) defendants were deliberately indifferent to his serious medical need;
(3) defendants’ action or inaction caused him harm; and (4) defendants acted
under color of law. Farmer v. Brennan, 511 U.S. 825 (1994). Defendants can
prevail on a motion for summary judgment by showing that there are no
material facts in dispute, and that they are entitled to judgment as a matter
of law. Fed. R. Civ. Pro. 56(a). In their motion, defendants concede that
Schmidt has a serious medical need and that defendants acted under color
of law. (Brief in Support at 2-3). However, defendants argue that they are
entitled to summary judgment because Schmidt cannot prove causation or
deliberate indifference. (Brief in Support at 3-4).
3.1

Causation

In the brief in support of their motion, the entirety of defendants’
argument regarding causation is as follows:
Assuming Schmidt had a clot after arriving at Milwaukee
County, he cannot allege it occurred as result [sic] of
inadequate medical care or deliberate indifference to his
condition. After being prescribed Warfarin, he was examined
by an advanced nurse practitioner. (Pope-Wright Affidavit ¶ 5,
Exhibit A). It was then ordered that he have additional testing
on November 24, 2009 to determine his clotting times.
(Brief in Support at 3-4). In their reply briefing, defendants point out that
Schmidt’s medical condition existed prior to his incarceration. They then
conclude: “[i]t is impossible for the Plaintiff to attribute his blood clot (for
which he was clearly susceptible) to any of the Defendants.” (Reply Brief
(Docket #110) at 2-3).
In his brief in opposition to the defendants’ motion, Schmidt explains
that “DVT is a blood clot in a vein that generally occurs where the blood
stops or slows down, such as the calves of the legs. The major risk associated
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with DVT is that the blood clot will break loose and travel through the blood
stream to the lungs.” He also states that DVT is managed via blood thinners,
and that prior to his detention in Milwaukee County, he had been taking
Warfarin daily.
Construing the record in a light most favorable to Schmidt and
drawing all reasonable inferences in his favor, Anderson, 477 U.S. at 248, the
court cannot agree with the defendants’ argument that Schmidt cannot prove
causation. In reaching this conclusion, the court is mindful that Schmidt is
incarcerated and indigent, and is thus unable to investigate or to secure
expert witnesses. Even so, Schmidt has laid out the argument that: (1) he
requires Warfarin to prevent blood clots; (2) defendants did not provide him
Warfarin for several days; and (3) he developed a blood clot. It is reasonable
to infer a causal relationship from those facts. Expert testimony on the
complicated issue of medical causation will be necessary, should this matter
go to trial. Absent such evidence at this point, however, Schmidt’s offering
suffices, notwithstanding defendants’ bare allegations that proving causation
is “impossible.”
3.2

Deliberate Indifference

Defendants next argue entitlement to summary judgment on the
ground that there is no evidence that defendants acted with deliberate or
reckless disregard for Schmidt’s constitutional rights. To meet his burden to
prove deliberate indifference, Schmidt must show that the defendants:4 (1)
actually knew of a substantial risk of serious harm to Schmidt’s health; and
(2) consciously disregarded this risk by failing to take reasonable measures

4

Schmidt bears the burden of proving liability as against each individual
defendant. Defendants motion, however, considers all defendants en masse instead
of teasing apart the facts as they relate to each defendant.

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to address it. Farmer v. Brennan, 511 U.S. at 837. “A medical professional’s
deliberate indifference may be inferred when the medical professional’s
decision is such a substantial departure from accepted professional
judgment, practice, or standards as to demonstrate that the person
responsible did not base the decision on such a judgment.” King v. Kramer,
680 F.3d 1013, 1018–19 (7th Cir. 2012) (internal quotation marks and citation
omitted).
Defendants’ entire argument in support of summary judgment on this
point states:
First, upon being informed by Schmidt that he had deep
vein thrombosis, medical personnel sent out a request of
information to verify this diagnosis. It goes without saying that
a correctional facility should not dispense prescription
medication to an inmate merely based on the inmate’s
statements. Furthermore, no ethical medical personnel in the
civilian world would give prescription medication without
verifying a prescription. In a correctional setting, it is even
more imperative that such confirmation take place.
Five days after Schmidt reported his condition and his
medication, the Defendants gave him a prescription (Warfarin)
for his deep vein thrombosis. This occurred after receiving
verification.
Defendants’ reply briefing reiterates the same points.
This argument does not speak to Schmidt’s claims; Schmidt does not
claim that the jail denied his constitutional rights by verifying his
prescriptions prior to dispensing the medication. Rather, Schmidt argues that
the untimely and insufficient treatment he received constituted inadequate
medical care.
Construing the record in a light most favorable to Schmidt, and
drawing all reasonable inferences in his favor, the court cannot grant

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summary judgment based on the defendants’ largely inapposite argument.
The parties do not dispute that Schmidt has DVT, and that he notified
defendants of his requirement for treatment. Again, with the benefit of expert
witnesses, Schmidt may well prove that a five-day delay in verifying a
prescription for an important daily medication is a “substantial departure
from accepted professional judgment, practice, or standards” and that,
therefore, the defendants did not take “reasonable measures to address” the
risk to Schmidt’s health.
For the above-articulated reasons, the defendants’ motion for
summary judgment must be denied.
Accordingly,
IT IS ORDERED that Defendants’ Motion for Summary Judgment
(Docket #98) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that a status conference will be held in
Courtroom 425 of the United States Courthouse, 517 East Wisconsin Avenue,
Milwaukee, Wisconsin, at 8:30 A.M. on July 16, 2013, to address the further
scheduling of this case, including trial.
Dated at Milwaukee, Wisconsin, this 25th day of June, 2013.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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