Famous v. Zohia et al

Filing 98

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 8/18/2015. 66 71 Defendants' MOTIONS for Summary Judgment GRANTED; 86 Plaintiff's MOTION to Withdraw as Attorney GRANTED. Doe Waterford, Doe Zohia, Estate of James Wong and Jane Doe Nurse DISMISSED. (cc: all counsel, via mail to Ronnie Famous at Wisconsin Resource Center)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RONNIE L. FAMOUS,
Plaintiff,
-vs-

Case No. 13-CV-195

DOE ZOHIA, RICHARD HEIDORN,
DOE WATERFORD, JANE DOE NURSE
ANDREW KESSLER, KATHY BRESTER,
MICHAEL BAENEN, JEANANNE ZWIERS,
DAVE BURNETT, JAMES RICHTER,
and ESTATE OF JAMES WONG,
Defendants.1

DECISION AND ORDER
The pro se plaintiff, Ronnie L. Famous, is a Wisconsin state prisoner.
He filed this civil rights action pursuant to 42 U.S.C. § 1983 and was granted
leave to proceed in forma pauperis on an Eighth Amendment deliberate
indifference to a serious medical need claim and a state law negligence claim
based on allegations that nurses, doctors, and health care administrators at
Green Bay Correctional Institution (GBCI) and the Wisconsin Resource
Center (WRC) failed to provide adequate medical treatment for a serious,
long-lasting eye infection.2 This matter is before the Court on the defendants’

Defendants Doe Zohia, Doe Waterford, and Jane Doe Nurse have not been
identified or served. Thus, the Court will dismiss them.
1

2

The plaintiff filed this case in the Western District of Wisconsin. The case was

motions for summary judgment. The motions are unopposed. For the reasons
explained herein, the Court will grant the defendants’ motions for summary
judgment and dismiss this case.
I. PRELIMINARY MATTER
On June 25, 2015, the Court denied the plaintiff’s motion to appoint new pro bono
counsel. (Dkt. No. 95.) The Court advised the plaintiff that he should inform the Court
by July 6, 2015, whether he still wanted his pro bono attorney to respond to the
defendants’ motions for summary judgment.3 The Court also advised the plaintiff that,
whether or not he wanted his attorney to file a response, as previously discussed at the
May 20, 2015, telephonic status conference, the plaintiff’s response was due by July 20,
2015, and that no further extensions would be granted. The Court also stated as follows:
In this case, the plaintiff charges that Attorney Newbold has not
done anything on his case. Attorney Newbold denies that (as does counsel
for defendant Dr. Richter). At the May 20, 2015, telephonic status
conference, Attorney Newbold stated that he and the plaintiff had a
fundamental disagreement about the way to proceed in the case,
specifically with regard to his response to the defendants’ motions for
summary judgment. Attorney Newbold also disagreed with the plaintiff’s
contention that he did not conduct discovery and stated that he had the
plaintiff’s medical record which he had presented to the plaintiff. The
Court recommended that the plaintiff let Attorney Newbold respond to
summary judgment for him, and Attorney Newbold agreed to do so. The
Court also stated that the plaintiff could file his own summary judgment
response if he wanted. Additionally, the Court advised the plaintiff that it
would not recruit another attorney to represent him.

transferred to this district on February 20, 2013.
On September 9, 2013, the Court entered an order recruiting Attorney Joseph
Newbold to represent the plaintiff pro bono in this matter.
3

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Attorney Newbold’s representations reveal that his decisions in this
case relate to strategy, not lack of diligence. However, it is apparent that
Attorney Newbold and the plaintiff disagree on how proceed with this
case. Although the Court previously encouraged the plaintiff to let
Attorney Newbold stay on long enough to respond to summary judgment,
the Court will not force the plaintiff (or Attorney Newbold) to do so.
Currently, the Court’s order of May 20, 2015, that Attorney Newbold
respond to summary judgment by July 20, 2015, is in effect. If the plaintiff
does not want Attorney Newbold to file a response to summary judgment,
he should inform the Court by July 6, 2015, and the Court will then grant
Attorney Newbold’s motion to withdraw. However, the plaintiff is advised
that the Court is unable to recruit a new pro bono attorney to represent
him.
The parties are reminded that the plaintiff’s response to the
defendants’ motions for summary judgment is due by July 20, 2015, and
the defendants’ replies are due by August 3, 2015. These deadlines remain
in effect whether or not Attorney Newbold stays on the case. No further
extensions will be granted.
(Dkt. No. 95 at 4-6) (footnotes omitted).
The plaintiff has not notified the Court whether he wants Attorney
Newbold to respond to the defendants’ motions for summary judgment. On
July 20, 2015, Attorney Newbold filed a letter informing the Court that the
plaintiff had instructed him not file a response to the defendants’ motions for
summary judgment. The letter also states the plaintiff did not intend to file
his own response to the motions for summary judgment. (Dkt. No. 96.) Based
on the foregoing, Attorney Joseph Newbold’s motion to withdraw as attorney
will be granted.
II. SUMMARY JUDGMENT STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that

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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 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
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).
III. FACTS
A. Dr. Richter’s Facts

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Dr. Richter has been a licensed optometrist in the State of Wisconsin
since 1972 and has provided optometry care to inmates in correctional
facilities throughout northeast and north central Wisconsin. In the course of
Dr. Richter’s work with the Wisconsin Department of Corrections (DOC), he
saw the plaintiff as a patient on three occasions, June 28, 2008, August 8,
2008, and February 8, 2012.
The plaintiff had been diagnosed with meibomianitis at least back to
the year 2000, as well as blepharitis on various occasions, before Dr. Richter
first saw him as a patient on June 28, 2008. Dr. Richter has experience with
diagnosing

and

treating

meibomianitis

(meibomian

and

glandular

dysfunction), which is an inflammation of the meibomian glands, a group of oil
secreting (sebaceous) glands that have tiny openings to release oils into the
surface of the cornea. In meibomianitis, these glands become inflamed, with
the otherwise normal secretion turning a thick yellow, which causes dry eye
symptoms. Meibomianitis is frequently associated with blepharitis, which is a
flaky collection on the eyelashes, and is the result of staph bacterial exotoxins.
It has been Dr. Richter’s education and experience that neither
meibomianitis nor blepharitis result in a loss of vision, other than potential
intermittent short term blurring, but both conditions can be troublesome,
chronic problems which may require, on and off, lifetime attention, medication
and treatment to address the symptoms. Appropriate treatment for these

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conditions can involve medication, such as TobraDex (antibiotic/steroid
combination), eyelid scrubs with baby shampoo, warm compresses, and use of
artificial tears for dry eye symptomatology.
At no point during Dr. Richter’s treatment of the plaintiff, or for that
matter anywhere else in the plaintiff’s treatments by anyone else either inside
or outside the DOC health care system, was there any indication that the
plaintiff ever lost any visual acuity, suffered any serious medical condition as
a result of his symptomatology but, rather, continued to complain of chronic,
ongoing symptomatology consistent with meibomianitis and blepharitis. The
records from UW Hospital Eye Clinic reveal that those eye specialists came up
with the same diagnoses and recommended treatments, with regard to the
plaintiff and meibomianitis and blepharitis, as did Dr. Richter.
In Dr. Richter’s personal visits and treatments with the plaintiff, based
upon his recurring complaints that he felt like he had a foreign body or object
in his eyes, Dr. Richter carefully examined him and never found any such
foreign object or body in his eyes. Nor does a review of the available outside
health care provider records or other records from the DOC reveal that any
other health care provider, be it an optometrist or medical doctor, has ever
found any foreign object or body in the plaintiff’s eyes. During Dr. Richter’s
examinations of the plaintiff, his vision was always considered to be within
the normal range, typically in the 20/20 - 20/25 range. There is no evidence in

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the record that either the meibomianitis or blepharitis ever affected his vision
negatively despite their chronic nature.
On June 28, 2008, Dr. Richter’s first visit with and treatment of the
plaintiff, his chief complaint was a yellowish discharge at times. Dr. Richter
diagnosed meibomianitis, he prescribed TobraDex, warm compresses twice a
day for twenty minutes, and directed that the patient follow-up with him.
Dr. Richter next saw the plaintiff on August 8, 2008, at which point he
sat down with the plaintiff and re-explained the diagnosis, care, and
treatment plan and the reasons for the care recommended. On that date, Dr.
Richter also observed that the plaintiff’s pre-existing chart showed that his
cup/disk ratios with regard to his optic nerves were larger than optimum, so
Dr. Richter wrote an order to return to him in six weeks for an eye pressure
check with follow-up and progress. However, the plaintiff did not meet that
appointment.
The records in this case indicate that one of the DOC staff physicians
attempted to send the plaintiff back to UW Eye Clinic on September 10, 2008,
based upon a previous recommendation from a February 6, 2008, visit to UW
Eye Clinic with regard to the above-referenced cup/disk ratio and the fact that
the plaintiff was glaucoma suspect. However, on the morning of September
10, 2008, the plaintiff refused to go to that appointment. A review of the
records indicates that on July 19, 2010, he again refused a referral to UW due

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to the glaucoma suspect concern.
Dr. Richter’s final personal visit/treatment with the plaintiff was on
February 8, 2012, at GBCI; the primary incoming complaint was that the
plaintiff indicated he felt he had a foreign body sensation in his left eye at
times, which would come and go. The plaintiff complained of no itch, no green
or yellow discharge, although he had a slight whitish discharge from one eye,
and he appeared to be negative from an allergy, bacterial, and viral
standpoint.

Dr.

Richter

concluded

that

he

had

conjunctival

crustacean/concretion in the inferior and superior area under the lid and he
prescribed a mild Prednisone-type solution, to be targeted over time, along
with artificial tears and warm compresses.

On that date, Dr. Richter

observed, through the use of a fluorescein dye test, which is completely
harmless and painless, that the plaintiff had mild dryness of his cornea,
demonstrated by light corneal stain, which is consistent with both
meibomianitis and blepharitis. Accordingly, he wrote an order for artificial
tears for each eye as needed for six months, with that medication being
renewed on March 15, 2012.
The records in this case indicate that the plaintiff has been seen by
physicians

and

optometrists

with

similar

problems

and

diagnoses

(meibomianitis and blepharitis), with recommended similar treatments as far
back as June 2000, and continuing on beyond Dr. Richter’s three in-person

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treatments with the plaintiff.
As an example of a prior treatment of this nature, the plaintiff
presented to the optometric clinic at GBCI with similar complaints on
January 30, 2006, and was again informed that he had meibomianitis and
blepharitis in both eyes, along with concretions and conjunctivitis in both
eyes, and he was again advised to use a lid scrub with Johnson & Johnson
baby shampoo and warm compresses.

On that date, he also refused an

ophthalmoscope evaluation, which is designed to examine interior eye health.
Thereafter, on March 14, 2006, the records reflect resolving mild blepharitis,
better than the prior year, although the patient wanted a second opinion
regarding his eye conditions, which appears to have been scheduled for
August 2006, with the patient refusing the actual appointment with UW Eye
Clinic when that date arrived.
Thereafter, on November 30, 2007, the plaintiff again presented to the
DOC optometric department with the complaint of eye infection in both eyes
with a “pus buildup” in the eyes, and Dr. Wall’s assessment was conjunctivitis
in both eyes, and the plaintiff was prescribed Tobramycin three time a day for
seven days, and he was again referred to UW Eye Clinic for a glaucoma
suspect workup.
Thereafter, on February 6, 2008, the plaintiff saw UW Health
Ophthalmology (Daniel W. Knoch, M.D.), presenting with a history of seeing

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optometry back on November 30, 2007, and being diagnosed

with

conjunctivitis and a history of being glaucoma suspect. At UW, the patient
again complained of a foreign body sensation in the right eye, which moved
around. Dr. Knoch’s examination that day revealed visual acuity of 20/25 in
the right eye and 20/20 in the left eye, without glasses, and demonstrated
intraocular pressure of 19 on the right and 17 on the left, with meibomian
gland dysfunction and blepharitis bilaterally. Based on this examination, Dr.
Knoch’s assessment was that the plaintiff had a moderate suspicion of
glaucoma and he wanted him to return to UW in approximately 4-6 weeks’
time for follow-up testing of the type that Dr. Richter similarly recommended
when he eventually saw him. It appears that the plaintiff did go back to UW
Eye Clinic on March 27, 2008, for such testing.
The record indicates that there is a Psychological Service Request
record dated April 4, 2012, directed to Dr. Olbinski which, among other
things, references the “harmful eye drops” that Dr. Richter “intentionally put
into” the plaintiff’s eyes on February 8, 2012. In this respect, the record does
not indicate that any eye drops were put into the plaintiff’s eyes on that date
by Dr. Richter but, instead, a mild Prednisone-type treatment along with
artificial tears was prescribed. The only “drops” that were administered to the
plaintiff on February 8, 2012, was the fluorescein dye test for dryness, which
is painless, simple, routinely used, and is in no way harmful to the eye.

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The records and evidence developed to date in this case reveal that at
no point during Dr. Richter’s treatments of and visits with the plaintiff did
any of his conditions equate to any sort of emergency. Rather, his conditions
of meibomianitis and blepharitis were chronic and recurring, which typically
require diligent self-care by the patient, such as warm compresses, lid scrubs
and improved eye hygiene, and compliance with suggested eye medication
regimens. While the concretions which can occur with these conditions are
not foreign bodies, the presence of these concretions can make it feel as if the
patient has something in his eye(s).
The record in this case reveals that the plaintiff has had regular,
frequent and continual responsive medical care both within the DOC and,
when appropriate, with outside experts and health care providers with respect
to any and all of his eye concerns, although he has not always accepted
recommendations of referrals. With regard to the plaintiff’s allegation that
Dr. Richter was deliberately indifferent to his serious health concerns, a
review of his entire record reveals that there is no evidence of any such
alleged deliberate indifference, there is no evidence that anything Dr. Richter
did or did not do in providing treatment or care to the plaintiff in anyway
aggravated, exacerbated or accelerated his longstanding, pre-existing chronic
conditions, and in fact Dr. Richter’s treatments of those symptoms and
conditions were entirely appropriate.

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Additionally, the record appears clear that with regard to the plaintiff’s
allegation of deliberate indifference as against Dr. Richter or anyone else
associated with the HSU and/or DOC, the plaintiff has never been denied any
requested appointments, follow-up care, or referrals (although referrals were
often rejected), his eye complaints all match his diagnosed conditions
symptomatically, he does not and has not had any acute eye illnesses, he has
been seen by multiple eye care specialists, all of whom agree on these
diagnoses of meibomianitis and blepharitis, he has had these diagnoses,
treatment plans and concepts explained to him on multiple occasions, and he
has been provided with the proper medications and course of treatments on a
timely basis.
B. State Defendants’ Facts
1. Dr. Richard Heidorn
Dr. Heidorn is a physician. He was employed by the DOC Bureau of
Health Services (BHS) in the Health Services Unit (HSU) at GBCI from May
2004, through October of 2012.
The plaintiff alleges that in 2006 he saw Dr. Zohia about his complaint
that he had a discharge of yellow pus and a foreign object in his eyes. Zohia
prescribed an eye wash, and sought a referral to the UW Madison eye clinic
regarding the pus discharge. The plaintiff alleges that Dr. Heidorn cancelled
an appointment to the eye clinic that Zohia had made for the plaintiff. The

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plaintiff further alleges that Dr. Heidorn subsequently examined him, and
during that examination intentionally pretended that he did not see the pus.
The plaintiff further alleges that Dr. Heidorn did not do anything about the
foreign object in his eye.
On March 14, 2006, Dr. Zohia requested a referral for the plaintiff to be
seen at UW Eye Clinic. Dr. Zohia was a contracted physician, not employed
by the DOC. Dr. Heidorn wrote an order on July 26, 2006, to schedule the
plaintiff for an evaluation to take place on August 8, 2006, to determine if he
met the criteria for a consultation with an eye specialist at UW Eye Clinic.
The HSU inadvertently scheduled the plaintiff for a blood pressure check
instead of an evaluation of his eye condition.
The plaintiff refused to be seen on August 8, 2006, and signed a refusal
on August 9, 2006, because he thought the appointment was for a blood
pressure check. Due to the plaintiff’s refusal, Dr. Heidorn cancelled his July
26, 2006, order for an eye evaluation on August 8, 2006; he thought the
plaintiff was refusing the eye evaluation needed before referring him to the
UW Eye Clinic. Had the plaintiff come for the appointment and told Dr.
Heidorn that he didn’t want his blood pressure checked but wanted care for
his eyes, Dr. Heidorn would have evaluated his eyes as he requested.
Dr. Heidorn examined the plaintiff on December 7, 2006, to determine
if he met the criteria to be referred to the UW Eye Clinic. The plaintiff’s eye

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exam was normal on this date and was also confirmed by Nurse Kathy
Lemens, and Nurse Jeananne Greenwood (now known as Jeannanne Zwiers).
The plaintiff did not meet the criteria for a referral at that time.
2. Dr. Andrew Kessler
Dr. Kessler is a licensed physician in the State of Wisconsin, practicing
in the field of psychiatry. He has been licensed in the State of Wisconsin
continuously since October 25, 1985.

Dr. Kessler was employed as a

psychiatrist by the Wisconsin Department of Health Services from August
2005, until August 2010. During his employment, Dr. Kessler worked as one
of the psychiatrists at WRC.
The plaintiff alleges that Dr. Kessler examined him at the WRC on
January 27, 2010. The plaintiff alleges that he showed Dr. Kessler yellow
pus in his eyes and showed Dr. Kessler a foreign object in his eyes.

He

further alleges that Dr. Kessler refused to acknowledge the yellow pus, and
refused to remove the foreign object from his eyes.
Dr. Kessler met with the plaintiff on two occasions at WRC. He saw
the plaintiff on January 27, 2010, upon his admission. During that visit, Dr.
Kessler referred the plaintiff to ophthalmology for a glaucoma examination.
Dr. Kessler’s examination on March 26, 2010, was for the purpose of treating
the plaintiff’s psychological issues. The plaintiff did not raise any concerns
about his eyes at that visit.

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3. Nurse Kathleen Brester
Nurse Brester is a registered nurse. In March 2010, she was employed
at the WRC.
The plaintiff alleges that he sought treatment for his eyes on March 2,
2010, but that Ms. Brester ignored him and refused to acknowledge the
yellow pus in his eyes.
The plaintiff submitted a Health Service Request (HSR) on March 14,
2010, to be seen for “a drainage of pus that is build-up in both of my eye lids.”
Nurse Brester subsequently saw the plaintiff and communicated to him that
he had an upcoming eye appointment in the near future to address his
concerns. Nurse Brester next saw the plaintiff on March 21, 2010. At that
visit, the plaintiff complained of drainage of pus that built up in both eye lids.
Nurse Brester noted no drainage, no change in vision, no pain, no edema, and
that his sclera was white. There were no indications that the plaintiff was
suffering from an eye infection on this date of treatment. It was also noted
that he had a follow-up eye appointment scheduled with the UW Eye Clinic
at the end of March, 2010.
4. Jeananne Zwiers
Ms. Zwiers is employed by the DOC as GBCI’s Health Services Unit
(HSU) Manager.
The plaintiff alleges that Jeananne Zwiers participated in an eye exam

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that Dr. Heidorn was conducting. He alleges that she came by, and without
any examination, denied that he had anything in his eye.
On December 7, 2006, Ms. Zwiers observed the plaintiff’s eyes at the
request of Dr. Heidorn and the plaintiff.

(In the relevant medical note,

Zwiers is identified by her maiden name of Jeananne Greenwood.)

Dr.

Heidorn noted that there was no pus and no crusting in the plaintiff’s eyes or
redness of the sclera (the white portion of the eye). Dr. Heidorn noted a
normal eye exam, with which Ms. Zwiers concurred.
5. Michael Baenen
Baenen was GBCI’s warden from March 2011, to March 2014. When
an inmate sent Baenen correspondence, it was his practice to respond to the
inmate, take any action that was needed, and make sure that his responsive
correspondence became part of the inmate’s medical chart or was retained in
the Inmate Complaint Review System (ICRS), dependent upon the nature of
the issue.
The plaintiff alleges that Baenen refused to rectify the problems the
plaintiff was having with the medical staff, even after he notified Baenen of
these problems through grievances, letters, and other means.
Baenen no longer has personal access to his prior records and security
files.

However, in conjunction with this lawsuit, GBCI staff searched

Baenen’s former records to determine if during his tenure as Warden, he had

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received any information from the plaintiff concerning his complaints of
inadequate medical care by GBCI staff for his alleged eye infections. No
correspondence by the plaintiff was found in the records of the Warden’s
office or in the medical record maintained in the HSU. Based on that
information, it is Baenen’s understanding that while he was Warden he did
not receive any letters from the plaintiff regarding his eye concerns.
6. Dr. David Burnett
Dr. Burnett was employed as the medical director for the Bureau of
Health Services (BHS) at the DOC from 2001 to 2013. BHS is the DOC
agency responsible for providing health care services to inmates confined in
DOC's adult institutions, including GBCI.

Dr. Burnett never personally

treated the plaintiff for his eye concerns.
The plaintiff alleges that Dr. Burnett refused to rectify the problems he
was having with the medical staff, even after the plaintiff notified him of
these problems through grievances, letters and other means.
The plaintiff wrote a letter on February 27, 2012, to the BHS. A search
at GBCI and at BHS has failed to produce a copy of that letter. Dr. Burnett’s
response, dated February 28, 2012, directed the plaintiff to file his complaint
through the ICRS.

This was Dr. Burnett’s only involvement with the

plaintiff’s medical care. The plaintiff did file an offender complaint. His
complaint was eventually dismissed because it was documented that he had

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received appropriate care for his eye concerns
III. DISCUSSION
A. Eighth Amendment Law
“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); see also Estelle v. Gamble, 429 U.S. 97, 103 (1976)).
Prison officials violate the Constitution if they are deliberately indifferent to
prisoners’ serious medical needs. Arnett, 658 F.3d at 750 (citing Estelle, 429
U.S. at 104).

Accordingly, a claim based on deficient medical care must

demonstrate two elements: 1) an objectively serious medical condition; and 2)
an official’s deliberate indifference to that condition. Arnett, 658 F.3d at 750
(citation omitted).
“Deliberate indifference to serious medical needs of a prisoner
constitutes the unnecessary and wanton infliction of pain forbidden by the
Constitution.” Rodriguez, 577 F.3d at 828 (quoting Estelle, 429 U.S. at 104).
Deliberate indifference occurs when a defendant realizes that a substantial
risk of serious harm to a prisoner exits, but then disregards that risk. Perez v.
Fenoglio, 2015 WL 4092294, at *3 (7th Cir. July 7, 2015) (citing Farmer v.
Brennan, 511 U.S. 825, 837 (1994) (plaintiff must show that officials are

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“aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and they must also draw the inference”)).
Prison officials must provide inmates with medical care
that is adequate in light of the severity of the condition and
professional norms. See, e.g., Farmer, 511 U.S. at 832, 114 S.Ct.
1970; Arnett, 658 F.3d at 751. The “receipt of some medical care
does not automatically defeat a claim of deliberate indifference.”
Edwards, 478 F.3d at 831; see also Arnett, 658 F.3d at 751
(prisoner need not show that his or her medical needs were
“literally ignored”). Deliberate indifference may occur where a
prison official, having knowledge of a significant risk to inmate
health or safety, administers “blatantly inappropriate” medical
treatment, Edwards, 478 F.3d at 831, acts in a manner contrary
to the recommendation of specialists, Arnett, 658 F.3d at 753, or
delays a prisoner's treatment for non-medical reasons, thereby
exacerbating his pain and suffering. McGowan v. Hulick, 612
F.3d 636, 640 (7th Cir. 2010).
Perez, 2015 WL 4092294, at *4.
B. Discussion
The undisputed facts do not support a finding that any defendant acted
with deliberate indifference toward the plaintiff’s medical needs. Rather, the
record reflects that he received appropriate treatment for his eye conditions
from DOC medical professionals and non-DOC medical professionals. It is
undisputed that the non-medical professional defendants lacked personal
involvement in the plaintiff’s claims. Accordingly, the Court will grant the
defendants’ motions for summary judgment as to the plaintiff’s Eighth
Amendment claim.
In the absence of any surviving federal claim, this Court declines

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exercise supplemental jurisdiction over the plaintiff’s state law claim. See 28
U.S.C. § 1367(c); Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635, 639
(2009).
C. Defendant Estate of James Wong
Defendant Estate of James Wong has not been served.4 The plaintiff
alleges that in 2000 defendant Wong took an eye culture which came back
positive for three different types of “bacteria infectious organisms.” (Compl. ¶
29.) The plaintiff further alleges that Wong never told him about the infection
or test results, and that the plaintiff was not treated for the infection until
three years later. (Id.)
Federal Rule of Civil Procedure 25(a)(1) governs substitution of parties.
It provides, in relevant part, “If a party dies and the claim is not extinguished,
the court may order substitution of the proper party.” Fed. R. Civ. P. 25(a)(1).
However, when a person for whom substitution is sought has died before
being named a party, substitution is not allowed. Mizukami v. Buras, 419
F.2d 1319, 1320 (5th Cir. 1969); accord Davis v. Cadwell, 94 F.R.D. 306, 307
(D. Del. 1982).
It appears from an obituary that Dr. James Wong died on May 17,
On February 16, 2012, Magistrate Judge Crocker granted the plaintiff’s motion
to substitute the Estate of James Wong as party for Dr. James Wong, who was
deceased. (Dkt. No. 25.) Magistrate Judge Crocker also ordered that the Court could
issue an order for service on the estate at a later time, if necessary. Id.
4

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2008,5 and the plaintiff did not file his complaint until February 29, 2012.
Thus, the plaintiff could not substitute Dr. Wong’s estate (if there is one)
because Dr. Wong was never a proper party to this action.
Even if Dr. Wong was a proper party, the plaintiff’s claim against him
would be barred by Wisconsin’s six-year personal rights statute of limitations,
Wis. Stat. § 893.53, the residual statute for personal-injury actions, which is
used for § 1983 actions in Wisconsin. See Givens v. Luedtke, 587 Fed. Appx.
979, 981 (7th Cir. 2014) (citing Malone v. Corr. Corp. of Am., 553 F.3d 540,
542 (7th Cir. 2009); Gray v. Lacke, 885 F.2d 399, 407-09 (7th Cir 1989)).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT defendant Richter’s motion for summary
judgment (ECF No. 66) is GRANTED.
IT IS FURTHER ORDERED that defendants Baenen, Brester,
Burnett, Heidorn, Kessler, and Zwiers’ motion for summary judgment (ECF
No. 71) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s motion to withdraw
as attorney (ECF No. 86) is GRANTED.
IT IS FURTHER ORDERED that defendants Doe Zohia, Doe
Waterford, Jane Doe Nurse, and Estate of James Wong are DISMISSED.
See http://proko-wall.i-lived.com/obituary/05-17-2008/Dr-James-Wong/, (last
visited August 14, 2015).
5

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IT IS FURTHER ORDERED that the Clerk of Court enter judgment
dismissing the plaintiff’s claims and this action.
Dated at Milwaukee, Wisconsin, this 18th day of August, 2015.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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