Banks v. Patton et al

Filing 224

ORDER signed by Judge Pamela Pepper on 1/14/2019. 152 Medical defendants' motion for summary judgment GRANTED IN PART and DENIED IN PART. Defendant Mahita Gone DISMISSED. The court will recruit counsel for plaintiff. (cc: all counsel, via mail to Tarence Banks at Columbia Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TARENCE BANKS,
Plaintiff,
Case No. 14-cv-381-pp
v.
LESLIE PATTON, et al.,
Defendants.
______________________________________________________________________________
ORDER GRANTING IN PART AND DENYING IN PART MEDICAL
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DKT. NO. 152)
______________________________________________________________________________
On May 27, 2014, District Judge Lynn Adelman (the judge assigned to
this case at the time) screened the plaintiff’s complaint under 28 U.S.C.
§1915A. Dkt. No. 8. Judge Adelman allowed the plaintiff to proceed on claims
against two sets of defendants: correctional staff who worked at the Racine
County Jail (the jail defendants) and medical staff who were employed by
Correctional Healthcare Companies to provide healthcare services to inmates at
the Jail (the medical defendants). Id.; Dkt. No. 154 at ¶13.
On March 21, 2016, the jail defendants and the medical defendants filed
separate motions for summary judgment. Dkt. Nos. 146, 152. Both sets of
defendants argued, in part, that the plaintiff had failed to exhaust the available
administrative remedies before he filed his federal complaint. On August 2,
2016, the court held an evidentiary hearing to examine whether the
defendants’ exhaustion arguments had merit. Dkt. No. 196.
On February 22, 2017, the court dismissed the plaintiff’s claims against
the medical defendants because it concluded that he had failed to exhaust the
available administrative remedies before he filed the case. Dkt. No. 199. The
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court also dismissed his claims against the jail defendants—some because he
had failed to exhaust the available administrative remedies and some on the
merits. Id. A couple of weeks later, the plaintiff filed a notice of appeal. Dkt. No.
201. The plaintiff challenged the court’s finding that the jail defendants were
entitled to summary judgment on his claim that they had violated the
Americans with Disabilities Act when they failed to place him in a handicap
cell. Dkt. No. 222 at 4. He also challenged the court’s finding that he had failed
to exhaust his deliberate indifference claim against the medical defendants. Id.
On July 26, 2018, the Seventh Circuit Court of Appeals affirmed the
court’s entry of summary judgment for the jail defendants on the disabilitydiscrimination claim, but it vacated the court’s judgment of dismissal for the
medical defendants based on the plaintiff’s failure to exhaust. Id. at 8. The
appellate court remanded the case to this court so that it could evaluate the
merits of the plaintiff’s deliberate indifference claim against the medical
defendants. Id. at 8.
On August 6, 2018, the court informed the parties that it would decide
the remanded claims based on the parties’ previously-filed summary judgment
briefs (they had briefed the substantive issues as well as exhaustion). Dkt. No.
221. Having reviewed the briefs, the court finds that defendant Mahita Gone is
entitled to summary judgment on the plaintiff’s deliberate indifference claim,
but defendants William Coe, Leslie Patton and Dana Mehring are not.
I.

FACTS1

The court takes the facts from the plaintiff’s sworn complaint (Dkt. No. 1),
“Proposed Findings of Fact of Defendants Leslie Patton, Bill Coe, and Dana
Mehring, and Nurse Practitioner Mahita Gone in Support of their Motion for
Summary Judgment” (Dkt. No. 154), “Medical Defendants’ Response to
Plaintiff’s Proposed Findings of Fact” (Dkt. No. 181), and “Medical Defendants’
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The plaintiff’s medical claims involve four defendants: Nurses Coe, Patton
and Mehring and Nurse Practitioner Gone. The medical defendants were
employed by Correctional Healthcare Companies to provide healthcare services
to inmates at the jail. Dkt. No. 154 at ¶13.
A.

The Plaintiff’s Version of his Medical Treatment

The plaintiff is an amputee; his left arm was amputated as a result of a
shotgun blast that hit him on October 8, 2013. Dkt. No. 154 at ¶6. He spent
the rest of October and the first part of November at the hospital; he was
transported to the jail on November 12, 2013. Dkt. No. 1 at 6; Dkt. No. 154 at
¶6.
According to the plaintiff, prior to his transfer to the jail, an outside
doctor ordered that he receive “wet to dry dressing change[s].” Dkt. No. 1 at 6.
The plaintiff explains that the gauze was supposed to be wetted, the wound
wiped and the wet gauze fitted into the wound, but he says that this did not
happen on a regular basis. Id.
The plaintiff asserts that throughout the month of November 2013, he
had to get help from other inmates to change his bandages; he states that at
most, nurses would change his bandages once per week and he’d sometimes go
days without changing his bandages. Dkt. No. 181 at ¶¶4, 14. He states that
when he asked Coe why medical staff wasn’t changing his bandages, Coe would
tell him that he wasn’t a priority and that Coe thought that another inmate was
helping the plaintiff. Id. at ¶¶5, 14. The plaintiff asserts that other nurses
would acknowledge his injury but do nothing to help him. Id. at ¶¶7, 8, 12. The
plaintiff also explains that despite numerous requests, the medical defendants
refused to help him wash his hand/right arm and that, on November 30, 2013,
Reply to Plaintiff’s Response to Medical Defendants’ Proposed Findings of Fact”
(Dkt. No. 182). The facts are undisputed unless otherwise noted.
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he received bandages so he could change them himself (it is not clear from
whom). Id. ¶¶8-10, 46.
According to the plaintiff, on December 4, 2013, he took a shower and
the smell from his wound was so bad that he and another inmate were
bothered by the smell. Id. at ¶16. The plaintiff states that he fell in the shower
and his wound re-opened. Id. The plaintiff explains that the next day, medical
staff treated the re-opened wound with gauze. Id. at ¶17. The plaintiff asserts
that he talked to Coe about getting his bandages changed, but Coe told him
that they were trying to get him to change his own bandages. Id. at ¶18.
A few days later, on December 8, 2013, Coe changed the bandages on the
plaintiff’s arm and noted a “scant” amount of drainage. Id. at ¶19. The
plaintiff’s bandages were not changed for the next two days. Id. ¶20. The
plaintiff states that he submitted a request slip, noting that there was green
pus coming from his arm. Id. ¶20. Someone changed the plaintiff’s bandages
later that day. Id.
On December 11, 2013, Gone assessed the plaintiff and included daily
dressing changes as part of the treatment plan. Id. at ¶21. The plaintiff asserts
that for the next week he had green drainage coming from his arm, and that it
was red and sore. Id. at ¶22.
On December 18, 2013, about a week after seeing Gone, the plaintiff
went to Froedtert Hospital, where he was seen by Dr. Uppal. Id. at ¶23.
According to the plaintiff, Dr. Uppal told him that his arm might have to be reopened because of a possible infection in the armpit. Id. at ¶23. Dr. Uppal
ordered daily, wet-to-dry bandage changes twice per day. Id.
The plaintiff states that the next day no one changed his bandages. Id. at
¶24. He asserts that he asked Patton why, and notified her of Dr. Uppal’s
orders. Id. According to the plaintiff, Patton said that they say a lot of things at
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Froedtert. Id. The plaintiff states that Patton only put gauze on the wound and
told him he’d be ok. Id. at ¶5. According to the plaintiff, Patton did a wet-to-dry
bandage change on December 20, 2013. Id. ¶27. No bandage change happened
the next day. Id. at ¶28.
The plaintiff asserts that on December 22, 2013, Coe changed his
bandages, but used “grease gauze” instead of using wet-to-dry. Id. at ¶29.
According to the plaintiff, when he questioned Coe, Coe told him that was all
they had. Id. The plaintiff states that, on December 24, 2013, Coe did not do a
wet-to-dry bandage change and told the plaintiff that the treatment was over
with. Id. at ¶30. The next day, when the plaintiff talked to Patton about the fact
that wet-to-dry changes are not being done, and when they were they were not
done correctly, she told him that she didn’t have time for all that. Id. at ¶31.
On December 26, 2013, Coe did a wet-to-dry bandage change; the
plaintiff states, however, that Coe stuffed the plaintiff’s wound with gauze so
hard that the plaintiff jumped. Id. at ¶32. The plaintiff states that he told Coe
that he would never get the opportunity to do that again. Id. The plaintiff states
that the next day he let Coe do the wet-to-dry bandage change, but he did not
let him stuff the wound. Id. at ¶33. According to the plaintiff, on the following
two days, Mehring changed his bandages, but she did not follow the wet-to-dry
protocol. Id. at ¶34. The two days after that, Patton changed the plaintiff’s
bandages, but declined his request that she follow the wet-to-dry protocol. Id.
at ¶37.
The plaintiff’s bandages were not changed January 2 through January 5,
2014, although the medical defendants assert that this is because the plaintiff
refused treatment. Id. at ¶38. The plaintiff clarifies that he refused to let Coe
change his bandages because Coe kept trying to hurt him, but medical staff
stated that he was refusing treatment all together. Id. at ¶39. Patton changed
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the plaintiff’s bandages on January 6, 2014 and, according to the plaintiff,
noted that his wound was draining. Id. at ¶40. The plaintiff states that the next
day, he and Coe argued about how Coe was changing the bandages and
handling the plaintiff. Id. at ¶41. On January 8, 2014, the plaintiff complained
to Mehring that he was not receiving daily bandage changes. Id. at ¶42.
The plaintiff states that he went to Froedtert on January 9, 2014, where
he was told that he needed to change his dressing daily with dry gauze, had a
lateral incision and also needed wet-to-dry dressing changes once per day. Id.
at ¶492. The plaintiff asserts that the next day he received bandages so he
could do his own bandage changes. Id. at ¶44. Gone states that she gave him a
supply of Band-Aids so he could change his Band-Aids as needed. Id. at ¶45.
On February 1, 2014, the plaintiff wrote to health services and asked for
pain medication because he was in a lot of pain. Id. at ¶48 (p. 11). He also
wrote that he still had a hole in his arm and he would like to talk to someone
about how to clean his arm and he would like help with the dressing. Id. The
plaintiff received a response, which said in part, “[no] open area to skin, [no]
tunneling, [no] discharge seen, continue with using bandaid [as needed].” Id. at
¶48 (p. 11).
About a week later, the plaintiff wrote to health services again and asked
them if they were supposed to be washing his arm and back because it was not
being done. Id. at ¶51. He informed health services that he had a wound on his
arm and his skin was irritated. Id. Someone responded that no rash had been
noticed before, but the issue was addressed. Id.

The plaintiff began repeating paragraph numbers in his proposed findings of
fact, starting at paragraph 48. This paragraph 49 is the second such numbered
paragraph; it appears at page 11 of Dkt. No. 181.
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A. The Medical Defendants’ Version of the Plaintiff’s Medical
Treatment

The medical defendants disagree with the plaintiff’s characterization of
the treatment he received. They assert that medical staff treated the plaintiff’s
wound in a variety of ways, including by regularly changing his bandages,
giving him antibiotics and giving him pain medication. Dkt. No. 154 at ¶19.
While the plaintiff concludes that he developed an infection in his arm
and back as a result of infrequent bandage changes, dkt. no. 1 at 9, the
medical defendants note that the plaintiff developed an infection before he
came to the jail, while he was still at the hospital, dkt. no. 154 at ¶14-16. The
plaintiff complains that he told nurses more than fifteen times that the
antibiotics he was taking were not working, dkt. no. 181 at ¶66; the medical
defendants state that while at the jail, the plaintiff was given the following
antibiotics: Cirpoflaxin, Cephalexin (which the plaintiff refused), Levoflaxacin
and Bactrim, dkt. no. 154 at ¶22. They also note that Gone prescribed
antibiotics on November 20 and again on December 4, 2013, after Patton
reported that the plaintiff’s wound was still draining. Id. at ¶¶29-30. On
December 11, 2013, after noting a wound with a “scant” amount of discharge,
Gone wrote that the plaintiff should continue to receive regular dressing
changes, antibiotics and pain medication. Id. at ¶31.
The medical defendants dispute the plaintiff’s assertion that they did not
change his bandages regularly. They note that the plaintiff was at the jail for
eighteen days in November 2013, and assert that during that time medical staff
changed his bandages at least fourteen times. Dkt. No. 154 at ¶27. They assert
that medical staff changed the plaintiff’s dressings at least twenty-two times in
December 2013. Id. at ¶28. They allege that on January 2, 2014, the plaintiff
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refused to have his dressing changed. Id. at ¶32. They stated that the plaintiff
refused any further treatment from staff; they state that staff provided the
plaintiff with bandages and gave him instructions on how to change them
himself. Id. at ¶¶34-35.
According to the medical defendants, the plaintiff’s wound had healed by
January 2014, except for two small open areas. Id. at ¶41. On January 28,
2014, Gone examined the plaintiff and noted no swelling or redness at the
amputation site, though there was a “scant” amount of drainage coming from
an open area on the stump. Id. at ¶42. The plaintiff received antibiotic
ointments and Band-Aids to change himself. Id.
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

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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).
B.

Deliberate Indifference to Serious Medical Needs

“Prison officials violate the Eighth Amendment’s proscription against
cruel and unusual punishment when their conduct demonstrates ‘deliberate
indifference to serious medical needs of prisoners.’” Gutierrez v. Peters, 111
F.3d 1364, 1369 (7th Cir. 1997) (citations omitted). This standard contains
both an objective element—that the medical needs be sufficiently serious—and
a subjective element—that the officials act with a sufficiently culpable state of
mind. Id. To survive summary judgment the plaintiff must produce sufficient
evidence for a jury to reasonably conclude that he has proven each element of
the standard.
The crux of the plaintiff’s argument is that the medical defendants did
not regularly and properly change his bandages, which caused the infection in
his arm to persist, resulting in a lot of pain. The medical defendants argue that
they changed the plaintiff’s bandages regularly and that, even if they did not,
the plaintiff has not presented evidence demonstrating that their failure to do
so is what caused his infection to persist. The court disagrees.
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The plaintiff has explained, in detail, how he asked Coe, Patton and
Mehring repeatedly to change his bandages; he has alleged that they regularly
ignored him or failed to help him, forcing the plaintiff to rely on other inmates
to do it. He notes that medical staff changed his bandages about once per week
and that they regularly failed to follow the wet-to-dry application prescribed by
his doctor at Froedtert and noted by medical staff (dkt. no. 151-1 at 10).
The medical defendants argue that the plaintiff’s medical records
demonstrate that they changed the plaintiff’s bandages nearly every day, but
the court notes that many of those records have no date on them (see, e.g., dkt.
no. 156-1 at 11, dkt. no. 157-1 at 19). Even if they did, the records themselves
show that the instructions were not that the bandages should be changed
“nearly” every day; the records include instructions that the plaintiff receive
daily application of salve with his bandage changes (dkt. no. 156-1 at 11), daily
dressing changes until there was no discharge for several consecutive days
(dkt. no. 157-1 at 19), and wet-to-dry dressing changes “per Froedtert” (dkt. no.
156-1 at 10).
The plaintiff asserts that the records are not accurate. The defendants
respond that the plaintiff’s statements about his treatment and the accuracy of
his records are self-serving and unsupported by evidence. As for the “selfserving” argument, the Seventh Circuit long ago rejected the notion that a fact
that an affidavit is “self-serving” dooms it as sufficient evidence to oppose
summary judgment. Almost sixteen years ago, in Payne v. Pauley, the court
noted that “most affidavits submitted for” summary judgment purposes are
self-serving; the real issue is whether the affidavit is “based on personal
knowledge as required by the Federal Rule of Civil Procedure on summary
judgment, Rule 56(e) . . . and by Federal Rule of Evidence 602 . . . .” Payne v.
Pauley, 337 F.3d 767, 772 (7th Cir. 2003). The assertions the plaintiff has
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made in his various affidavits are based on his personal knowledge of what
happened to him; the court isn’t sure what other form of evidence the plaintiff
could provide to prove that something didn’t happen or that documents created
by the defendants don’t accurately reflect what happened. The question of
which party’s version is more credible is a question for the fact-finder at trial,
not one for the court to resolve on summary judgment.
It is true that at this point the plaintiff has not proven definitively that
the defendants’ failure to change his dressings every day, and in the way the
instructions required, caused his arm to get infected or made the infection
worse. But common sense dictates that wounds, especially as serious as the
plaintiff’s, must be kept clean in order to prevent or treat infections, and that
regular, consistent bandage changes, especially in an environment as
contaminated as a jail, help keep wounds clean. At the summary judgment
stage, the plaintiff does not have to definitely prove that the defendants’ alleged
indifference caused or worsened his infection. He needs only raise a dispute as
to that issue. He has asserted that there was drainage, and pus, and pain in
his arm. There seems to be no dispute that there was some sort of infection,
and that it lasted for some time. This is sufficient to raise a dispute as to
whether the defendants’ actions (or inactions) caused the plaintiff injury.
Accordingly, the court finds that, should a jury credit the plaintiff’s version of
how his wounds were treated, it could reasonably conclude that Coe, Patton,
and Mehring3 were deliberately indifferent to his serious medical needs.

The medical defendants argue that the plaintiff’s complaint fails to state a
claim against Mehring because it contains only a single allegation against her.
As required, the court construed the complaint broadly when screening it;
further development of the record has revealed the full extent of Mehring’s
involvement in the plaintiff’s care.
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The court finds, however, that Gone is entitled to summary judgment.
Gone is a nurse practitioner, not a nurse, so she was not responsible for the
plaintiff’s daily bandage changes. On the few instances that Gone examined the
plaintiff, she prescribed daily bandage changes, antibiotics to treat his
persistent infection and the application of salve to the plaintiff’s wounds. These
responses do not demonstrate deliberate indifference. Under §1983 there is no
vicarious liability, so if other members of the jail staff did not follow her orders,
she cannot be held liable on that basis. Burks v. Raemisch, 555 F.3d 592, 595
(7th Cir. 2009) (public officials are responsible for their own misdeeds but not
for anyone else’s). The court will grant summary judgment as to Gone.
III.

CONCLUSION
The court GRANTS the medical defendants’ motion for summary

judgment as to Mahita Gone and DISMISSES her as a defendant. Dkt. No. 152.
The court DENIES the medical defendants’ motion for summary
judgment as to defendants William Coe, Dana Mehring and Leslie Patton. Dkt.
No. 152.
While the court recruited counsel for the plaintiff in 2016, it did so on a
limited basis, for the purpose of having someone represent the plaintiff at the
evidentiary hearing on exhaustion. Dkt. No. 191. The court now will recruit a
lawyer to represent the plaintiff on his surviving claims. After it does so, it will
schedule a telephone conference to discuss how the parties would like to
proceed.
Dated in Milwaukee, Wisconsin this 14th day of January, 2019.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge
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