McQueen v. Milwaukee County et al

Filing 43

ORDER signed by Judge J P Stadtmueller on 5/27/15 granting 32 Defendant's Motion for Summary Judgment and DISMISSING this matter with prejudice. See Order. (cc: Plaintiff, all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ANTONIO MCQUEEN,
Plaintiff,

Case No. 14-CV-391-JPS

v.
DIANNA MUELLER,
Defendant.

1.

ORDER

INTRODUCTION
The plaintiff, Antonio McQueen, a prisoner proceeding pro se, filed a

complaint under 42 U.S.C. § 1983 alleging that the defendant, Dianna1
Mueller (“Mueller”), was deliberately indifferent to his serious medical
needs. (See Docket #1). Before the Court is the defendant’s motion for
summary judgment (Docket #32). As will be discussed more fully below, the
Court finds that the defendant is entitled to judgment as a matter of law, and
thus will grant the defendant’s motion for summary judgment.
2.

SUMMARY JUDGMENT LEGAL STANDARD
“When a party files a motion for summary judgment, it [represents the

party’s] ‘contention that the material facts are undisputed and the movant is
entitled to judgment as a matter of law.’” Flint v. City of Milwaukee, — F.
Supp. 3d —, 2015 WL 1261245, at *2 (E.D. Wis. Mar. 20, 2015) (quoting Hotel
71 Mezz Lender LLC v. Nat. Ret. Fund, 778 F.3d 593, 601 (7th Cir. 2015)).
“Material facts” are those facts which “might affect the outcome of the suit,”
and “summary judgment will not lie if the dispute about a material fact is
‘genuine,’ that is, if the evidence is such that a reasonable jury could return

1

The defendant points out that the correct spelling of her name is “Diana.”
(Docket #35 at 1).

a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Thus, to have a genuine dispute about a material fact, a party
opposing summary judgment “must do more than simply show that there
is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 474 U.S. 574, 586 (1986); namely, the party in
opposition “must set forth specific facts showing that there is a genuine issue
for trial,” Fed. R. Civ. P. 56(e).
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). When analyzing whether summary judgment should
be granted, a court must draw all reasonable inferences from the materials
before it in favor of the non-moving party. See Johnson v. Pelker, 891 F.2d 136,
138 (7th Cir. 1989).

Page 2 of 13

3.

DISCUSSION
3.1

The Facts2 and the Parties’ Arguments

Prior to his instant incarceration, the plaintiff was hit by a car on either
April 4, 2013, or April 23, 20113; both his tibia and fibula in his left leg were
shattered in the accident. In August of 2013 he was transferred to the House
of Correction (“HOC”) in Franklin, Wisconsin. During his stay at the HOC,
he repeatedly and regularly complained of pain in his left leg and other pain
that he attributed to after-effects of the accident. On April 4, 2014, he filed the
instant suit, alleging that the HOC and Mueller were deliberately indifferent
to his serious medical needs. The Court screened the plaintiff’s complaint,
pursuant to 28 U.S.C. § 1915A(a), and allowed him to proceed only on his
deliberate indifference claim against Mueller. (See Docket #15).
The substance of the plaintiff’s complaint—which is the only
document the Court has to work from because the plaintiff did not file a brief
in opposition or proposed findings of fact4—alleges that the defendant failed
to heed his repeated complaints of pain and provide him adequate care.
Specifically, the plaintiff alleges that he was seen by members of the Health
Services Unit (“HSU”) at the HOC and was given a variety of over-thecounter pain medications which failed to alleviate his pain. According to the
plaintiff, he told Mueller “what happened [to him], and told her that [he] still

2

The Court will summarize the facts and cite to the record as appropriate.

3

The plaintiff’s complaint states it was April 4, 2013 (see Docket #1 at 3); the
medical report from an outside specialist states the accident occurred April 23, 2011
(see Docket #39-1 at 5).
4

Nevertheless, the plaintiff is pro se and thus the Court must construe

his filings and arguments liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007).
Page 3 of 13

need[ed] therapy, pain management, and surgery.” (Docket #1 at 3). The
plaintiff concedes, however, at various times, that the pain he felt was
“phantom pain.” Id. He attributes a variety of the decisions that were made
regarding his care to individuals other than Mueller (see Docket #1 at 3)
(“Salley stated there is nothing we can do[,] so she put me on tylenol extra
strength.”); id. at 4 (“Lieutenant Gonzalez and a nurse threw me in a wheel
chair and rolled me backwards.”).
In lieu of filing a brief in opposition to the defendant’s motion for
summary judgment, the plaintiff filed evidence he believes proves the
deliberate indifference of the defendant—namely, treatment records from his
stay at the HOC, records from care he later received at Dodge Correctional
Institution, along with information regarding the accident and original
treatment of his injuries.
The defendant, for her part, argues that she is entitled to summary
judgment because she never actually treated the plaintiff. (Docket #35 at 7).
In support of that contention, the defendant offered her own affidavit, stating
that she never provided care for the plaintiff. (See Docket #33). And, the
defendant also submitted the affidavit of another nurse practitioner, Dorothy
Koenig (“Koenig”), which describes the treatment Koenig and others in the
HSU gave to the plaintiff between August 23, 2013, and August 6, 2014. (See
Docket #34).
The defendant also argues that, regardless of who treated the plaintiff,
he cannot show deliberate indifference because his treatment records reflect
that he was seen, treated, given medication, and provided various
accommodations in an effort to alleviate his pain. (Docket #35 at 8-10).
According to Koenig’s affidavit, the plaintiff was seen at least twenty-seven
times between August 2013 and August 2014. (See Docket #34). He was given
Page 4 of 13

the following medicines: ibuprofen, naproxen (at increasing dosages), Elavil
(at increasing dosages), amitryptiline, salsalate, and extra strength tylenol.
(Docket #34 at 2-5) (see also Docket #36 at 2-6). The plaintiff was seen by a
variety of individuals at the HSU, including: social workers (for pain as well
as psychiatric care), registered nurses, doctors, nurse practitioners, and case
managers. Id. He was also provided various accommodations, including
crutches, an additional mattress, and a lower bunk and lower tier. Id.
Additionally, after six months in the HOC (on February 25, 2014), the
plaintiff was referred to outside medical professionals for an evaluation.
(Docket #36 at 4); (Docket #39-1 at 5-6). A physician’s assistant and a
physician assessed the plaintiff’s complaints of chronic pain. (Docket #39-1
at 5-6). The report of that visit states, in pertinent part:
At this time, [the plaintiff] has complete interval healing of his
left tibia. I explained to him that any of the aching and
discomfort at this time are not something that would be treated
with surgery. This type of discomfort is not atypical. They need
to be managed with over-the-counter medications. I would not
recommend the use of narcotics. I would not limit his activities to the
left tibia.…I would give him no restrictions in terms of the right
knee.…We would recommend over-the-counter use of Tylenol
or NSAIDs to manage his symptoms. He can use his crutches
as needed, but he certainly does not need those for his left
lower extremity injury.
…
Please note…that we would not consider the fracture of the
tibia to be the source of disability for this patient.
Id. (emphasis added). The affidavit of Koenig also notes that at various times,
mostly in 2014, the plaintiff refused medical care, which the defendant argues
necessarily undermines the plaintiff’s claim. (See Docket #34).
Finally, the defendant argues that the plaintiff’s condition was not “a
serious medical need.” (Docket #35 at 10-11). According to the defendant,
Page 5 of 13

“[h]is leg had been and was being monitored. There was nothing lifethreatening about the state of his left leg. In fact the medical records reflect
his leg was completely healed.” Id. at 11. Thus, the defendant argues that the
plaintiff’s condition was not a serious medical need, and without meeting
this prong of the deliberate indifference test, the plaintiff’s claim cannot
survive summary judgment.
The Court, for purposes of its analysis below, will assume that the
plaintiff’s condition was a serious medical need, despite the defendant’s
protestation to the contrary. This is so because: (1) the defendant’s argument
that it is not a serious medical need is underdeveloped and thus
unconvincing; and (2) ultimately, even if the plaintiff’s condition was a
serious medical need, the outcome of the plaintiff’s claim remains the same.
3.2

Deliberate Indifference Legal Standard

“The Eighth Amendment, applicable to the states through the Due
Process Clause of the Fourteenth Amendment, protects prisoners from prison
conditions that cause the ‘wanton and unnecessary infliction of pain,’
including…grossly inadequate medical care.” Pyles v. Fahim, 771 F.3d 403,
408 (7th Cir. 2014) (quoting Rhodes v. Chapman, 452 U.S. 337, 348 (1981))
(internal citations omitted). The prisoner has the burden “to demonstrate that
prison officials violated the Eighth Amendment, and that burden is a heavy
one.” Id. (citing Whitley v. Albers, 475 U.S. 312, 325 (1986)).
To proceed on an Eighth Amendment deliberate indifference claim,
the plaintiff must allege that “his condition was objectively serious” and
“state officials acted with the ‘requisite culpable state of mind, deliberate
indifference,’ which is a subjective standard.” Reed v. McBride, 178 F.3d 849,
852 (7th Cir. 1999) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). A
condition is objectively serious “if a physician has diagnosed it as requiring
Page 6 of 13

treatment, or the need for treatment would be obvious to a layperson.” Pyles,
771 F.3d at 409; see also Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010) (“A
medical condition need not be life-threatening to be serious; rather, it could
be a condition that would result in further significant injury or unnecessary
and wanton infliction of pain if not treated.”).
“To demonstrate that a defendant acted with a ‘sufficiently culpable
state of mind,’ a plaintiff must put forth evidence to establish that the
defendant knew of a serious risk to the prisoner’s health and consciously
disregarded that risk.” Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1073
(7th Cir. 2012) (quoting Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir.
2006)). This subjective standard requires “[s]omething more than negligence
or even malpractice,” Pyles, 771 F.3d at 409, and “it approaches intentional
wrongdoing.” Holloway, 700 F.3d at 1073.
When it comes to medical care in the prison setting, “prisoner[s] [are]
not entitled to receive ‘unqualified access to healthcare,’” id. (quoting Hudson
v. McMillian, 503 U.S. 1, 9 (1992)); instead, “prisoners are entitled only to
‘adequate medical care,’” id. (quoting Johnson, 433 F.3d at 1013)). Adequate
medical care may involve care that the prisoner disagrees with; this
disagreement alone is insufficient to establish an Eighth Amendment
violation. See Pyles, 771 F.3d at 409. To establish deliberate indifference, the
prisoner must demonstrate “that the treatment he received was ‘blatantly
inappropriate,’” id. (quoting Greeno v. Daley, 414 F.3d 645, 654 (7th Cir. 2005));
or, stated another way, that the treatment decision “represents so significant
a departure from accepted professional standards or practices that it calls
into question whether the [medical professional] was actually exercising his
professional judgment,” id. (citing Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.

Page 7 of 13

2011) and Sain v. Wood, 512 F.3d 886, 895 (7th Cir. 2008)); Gayton, 593 F.3d at
622-23.
If the plaintiff fails to provide enough evidence to show deliberate
indifference, and it cannot be inferred from the medical professional’s
treatment, “the deliberate indifference question may not go to the jury.”
Gayton, 593 F.3d at 620, 623.
3.3

Analysis

The defendant is entitled to summary judgment on the claim against
her for multiple reasons. It is worth pointing out at the outset, however, that
the defendant’s argument that she never treated the plaintiff is insufficient,
standing alone, to grant summary judgment in her favor. Namely, the
plaintiff has consistently alleged that the defendant treated him,
notwithstanding the defendant’s affidavit to the contrary. Because this is
plainly a he-said, she-said, regarding a material fact—i.e. whether the
defendant treated the plaintiff and thus could be deliberately indifferent—the
defendant’s attempt to brush away the plaintiff’s complaint on this ground
alone is unavailing. This is especially so given that the treatment records
submitted by the defendant have instances where the nurse practitioner that
treated the defendant is unnamed. This gives rise to the inference that the
defendant may have treated the plaintiff. (See, e.g., Docket #34 at 4) (“[The
plaintiff] was referred to a nurse practitioner and his medication remained
the same.”).
That said, the Court is constrained to find that the plaintiff has failed
to show sufficient personal liability on the part of the defendant to survive
summary judgment. To wit, even assuming Mueller was involved in or was
aware of the plaintiff’s care at various times, the plaintiff has failed to show
that Mueller acted or failed to act “‘with deliberate or reckless disregard of
Page 8 of 13

the plaintiff’s constitutional rights.’” Childress v. Walker, No. 14-1204, slip op.
at 10 (7th Cir. May 21, 2015) (quoting Brokaw v. Mercer Cnty., 235 F.3d 1000,
1012 (7th Cir. 2000)). While a dispute regarding the defendant’s involvement
in the plaintiff’s care was insufficient, alone, to grant summary judgment in
the defendant’s favor, the lack of any evidence that Mueller played a
substantial personal role—and thus a role that would give rise to liability—in
the defendant’s care is sufficient to grant summary judgment in her favor.
In reality, what the plaintiff alleges is a nebulous deliberate
indifference claim against various officials at the HOC; however, this type of
claim cannot survive summary judgment when the only named defendant
remaining is Mueller.5 See Davis v. Wahl, 596 Fed. Appx. 488, 489 (7th Cir.
2015) (“To avoid summary judgment on a claim of constitutionally deficient
medical care, [the plaintiff] must supply evidence that [the medical professional]
both knew of and disregarded an excessive risk to his health.”) (citing Farmer, 511
U.S. at 837). Respondeat superior or “collective negligence” liability would
only be possible if a Monell claim were before the Court; but, no such claim
remains here.
And, even more importantly, the record before the Court fails to
show—or, stated another way, no reasonable jury could find—that the
treatment the plaintiff did receive evidences deliberate indifference by staff
members at the HOC’s HSU, regardless. The plaintiff was seen by various
medical professionals who treated the plaintiff in disparate ways in an
attempt to alleviate his pain, he was referred offsite for further evaluation
5

The plaintiff avers that an officer can attest to the deliberately indifferent
treatment that he received. (See Docket #1 at 3-4). While this may be true, the
grievance the plaintiff filed as evidence and the response by the officer (see Docket
#9-1 at 3, 4), do not implicate Mueller in any way; again, this does not suffice to
show individual liability against Mueller, which is the only claim that remains.

Page 9 of 13

(during which the current treatment of the plaintiff was found to be the
correct course), and the evidence shows that the plaintiff went no longer than
a month without being seen.
At bottom, the plaintiff’s claim appears to evidence a difference of
opinion between himself and the medical staff at the HOC regarding how he
should be treated. This does not suffice to show deliberate indifference. See
Pyles, 771 F.3d at 409 (“Disagreement between a prisoner and his doctor, or
even between two medical professionals, about the proper course of
treatment generally is insufficient, by itself, to establish an Eighth
Amendment violation.”) (citing Johnson, 433 F.3d at 1013).
In addition, the plaintiff’s medications were repeatedly changed and
various methods were attempted to alleviate the plaintiff’s pain (which the
plaintiff admits may have been phantom pain, thus making it unclear if it
could have been treated at all6). There is simply no evidence that Mueller, or
anyone at the HSU, proceeded with an unchanging course of treatment that
they knew was not working. Lacking this, the Court cannot find the
treatment the plaintiff did receive evidences deliberate indifference by
Mueller or anyone. See Pyles, 771 F.3d at 412 (“When [the plaintiff]
complained that his medications were not helping, [the doctor] responded
by prescribing new medications or changing the dosages. [The plaintiff] may
have wanted different treatment, but his disagreement…does not allow him
to prevail on his Eighth Amendment claim.”). The plaintiff’s treatment record
is replete with visits from and to health professionals, as well as documented

6

See Phantom Pain Treatment and Drugs, Mayo Clinic,
http://www.mayoclinic.org/diseases-conditions/phantom-pain/basics/treatment/
con-20023268 (last visited May 26, 2015) (“Finding a treatment to relieve your
phantom pain can be difficult.”).

Page 10 of 13

responses to his requests; conversely, the plaintiff has not offered any
evidence to show inattention to his needs or the culpability necessary to
shore up his deliberate indifference claim.
The plaintiff also strenuously argues that the failure of the HOC’s
HSU staff to refer him to a specialist for his pain evidences deliberate
indifference. The Court disagrees for two reasons. First, the plaintiff has not
shown that the decision not to refer him was that of Mueller. This, by itself,
is fatal to his claim. Second, even if it was Mueller’s decision, the Court
cannot find that the delay caused the plaintiff “needless suffering.” Davis, 596
Fed. Appx. at 490 (citing Knight v. Wiseman, 590 F.3d 458, 466 (7th Cir. 2009)).
Nor is a referral to a specialist necessarily required, in any event, especially
when the prisoner’s condition is a common ailment. See Pyles, 771 F.2d at 411,
412 (noting that “[a] prison physician is not required to authorize a visit to
a specialist in order to render constitutionally acceptable medical care,”
which may be especially true when the prisoner suffers from a “common
ailment”).
Moreover, when the plaintiff was eventually seen by outside
specialists, they recommended a similar course of treatment and explicitly
stated that neither surgery nor narcotic medications were warranted (Docket
#39-1 at 5-6); surely the plaintiff wanted stronger medication, and he
indicates as much, but a desire for narcotic pain medication when a doctor
has found it unwarranted cannot give rise to an Eighth Amendment claim.
See Holloway, 700 F.3d at 1073. And, even were the Court to assume that the
defendant or individuals at the HOC delayed sending the plaintiff to an
outside specialist, there is no evidence that this delay was anything other
than negligence on their part; and, negligence alone cannot sustain a § 1983
claim.
Page 11 of 13

The instant case is in some respects very similar to the scenario in
Davis. There, the Seventh Circuit found that without evidence of needless
suffering, and in light of an outside specialist’s “recommend[ation of]
treatment similar to what [other medical professionals] had been
prescribing” before, the prisoner could not show deliberate indifference
arising from a delay in referring the prisoner to an outside specialist. 596 Fed.
Appx. at 490. And, this was supported even further in Davis by evidence that
the plaintiff there had refused medical treatment. Id. (“[The plaintiff] has
refused to consent to that procedure; his refusal undercuts his unsubstantiated
assertion of harm.”) (citing Pinkston v. Madry, 440 F.3d 879, 892 (7th Cir. 2006)
and Walker v. Peters, 233 F.3d 494, 500 (7th Cir. 2000)). Here, just like in Davis,
an outside specialist confirmed that the course of treatment for the plaintiff
was correct, and there is also evidence that the plaintiff has refused medical
treatment at times7; the outcome, then, must be the same as in Davis: the
plaintiff has failed to show deliberate indifference on Mueller’s (or anyone’s)
part.
In light of the foregoing, the Court is obliged to grant the defendant’s
motion for summary judgment. The plaintiff has not shown that the
defendant was responsible for the decisions that he claims evidence that he
was treated with deliberate indifference. Even assuming, arguendo, that the
defendant was personally involved in some non-de minimis manner with the
decisions regarding the plaintiff’s treatment, the record of the extensive care
the plaintiff received, coupled with his occasional refusals, cannot sustain a
claim of deliberate indifference against the defendant. Most importantly, the

7

These refusals, which may have contributed to his discomfort, also
undermine his claim.

Page 12 of 13

Court simply cannot find a single instance where Mueller, or any medical
staff for that matter, refused to treat the plaintiff or acted with the requisite
culpability—something more than negligence or medical malpractice. Pyles,
771 F.3d at 409; Holloway, 700 F.3d at 1073.
Consequently, for all of the reasons noted above, the defendant is
entitled to judgment as a matter of law.
Accordingly,
IT IS ORDERED that the defendant’s motion for summary judgment
(Docket #32) be and the same is hereby GRANTED and this matter be and
the same is hereby DISMISSED with prejudice.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 27th day of May, 2015.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

Page 13 of 13