Cuesta v. Richardson et al

Filing 40

DECISION AND ORDER signed by Judge Lynn Adelman on 04/20/18 granting 26 Motion for Summary Judgment. (cc: all counsel, Plaintiff) (JAD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TOMAS D. CUESTA, SR.,
Plaintiff,
v.

Case No. 17-C-104

JAMIE BARKER and NICOLE TREVINO,
Defendants.
______________________________________________________________________
DECISION AND ORDER
Tomas D. Cuesta, Sr., a state prisoner representing himself, brings this action
alleging that Jamie Barker and Nicole Trevino violated his constitutional rights by
denying him medical care and acting with deliberate indifference to his medical needs.
Defendants move for summary judgment.
I. BACKGROUND1
At all times relevant to this case, plaintiff was an inmate at Stanley Correctional
Institution (SCI). (Compl. ¶ 17; Dft. PFoF ¶ 1.) Barker was the Health Services Manager
and Trevino was a Nurse Clinician II at SCI. (Dft. PFoF ¶¶ 2, 4.)
Prior to being transferred to SCI, plaintiff was housed at Green Bay Correctional
Institution. (Compl. ¶ 14.) While there, at some point, he suffered a back injury resulting
in a week in the infirmary, a “Tylenol #3” prescription, and a low-bunk restriction. Id.
When plaintiff arrived at SCI in 2012, his low-bunk restriction was terminated.
(Compl. ¶ 15.) After he complained, the Health Service Unit (HSU) called him to be
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This background is taken from defendants’ proposed findings of fact (Dft. PFoF,
Docket No. 28) and plaintiff’s sworn complaint (Compl., Docket No. 1), which I construe
as an affidavit at the summary judgment stage. Ford v. Wilson, 90 F.3d 245, 246–47
(7th Cir. 1996). I have included only those properly supported facts that are relevant to
the claims upon which plaintiff proceeds in this case. See Fed. R. Civ. P. 56(c).

seen by a doctor. Id. While being seen by the doctor, plaintiff asked to see a specialist
and also told the doctor that he could not “climb[] up and down [the] bunk bed without
experiencing ‘substantial difficult and discomfort.’” Id. The doctor recommended ice and
ibuprofen and prescribed plaintiff a renewable low-bunk restriction. Id. Plaintiff was
required to annually request the low-bunk restriction from his care provider. His
requests were approved in 2013, 2014, and 2015. (Dft. PFoF ¶ 7.)
At some point, plaintiff obtained a job with the maintenance staff, but he irritated
his back injury while shoveling snow, which was one of his job duties. (Compl. ¶ 16.)
While a nurse in the HSU was examining him, plaintiff requested to see a back
therapist. Id. The nurse prescribed plaintiff ibuprofen, ice, and low back exercises. Id.
In November 2015, Barker became the Health Services Manager, and that
December he established a Special Needs Committee in accordance with Bureau of
Health Services policy. (Dft. PFoF ¶ 8.) This committee—comprised of HSU personnel,
security staff, and non-security staff—is responsible for making determinations on
inmate requests for special accommodations after reviewing the inmates’ medical
history. (Dft. PFoF ¶ 9.)
In October 2016, plaintiff submitted his annual request for a low-bunk restriction.
(Dft. PFoF ¶ 10.) He, at some point later, was “sick” because of back pain, and Trevino
treated him. (Compl. ¶ 17.) Trevino prescribed plaintiff medication and authorized a
one-month extension of the low-bunk restriction, until the Special Needs Committee
could meet to review plaintiff’s request. (Compl. ¶ 17; Dft. PFoF ¶ 10.) Trevino was not
a member of the committee. (Dft. PFoF ¶ 12.) When the committee met, it reviewed

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plaintiff’s medical file, determined that he did not meet the criteria for a low-bunk
restriction, and denied his request. (Compl. ¶ 18; Dft. PFoF ¶ 11.)
After the denial, plaintiff asked Barker to schedule an appointment with a nonDepartment of Corrections (non-DOC) back specialist. (Compl. ¶ 18; Dft. PFoF ¶ 13.)
According to Division of Adult Institutions (DAI) policy, if the requested non-DOC
medical provider exam is not ordered by a DOC medical provider, the prisoner who
wishes to be examined by a non-DOC medical provider must bear all related expenses
including the security staff escort, transportation, treatment, and other associated costs.
(Compl. ¶ 18; Dft. PFoF ¶ 14.) After reviewing plaintiff’s file and not seeing a request by
a DOC medical provider for a non-DOC provider exam, Barker informed plaintiff by
memo of the policy and the steps plaintiff would need to take to complete his request.
(Dft. PFoF ¶¶ 15–17.)
Plaintiff submitted an inmate complaint asserting Barker failed to provide him with
a non-DOC medical provider exam. (Dft. PFoF ¶ 18.) The complaint was dismissed
based on the finding that plaintiff was not denied the ability to see an outside provider
but was told how to complete his request. (Dft. PFoF ¶ 20.)
II. DISCUSSION
Summary judgment shall be granted “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). “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 a

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“material fact” is “genuine” if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
Plaintiff’s claims arise under the Eighth Amendment, which “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 Srv., 577 F.3d 816, 828
(7th Cir. 2009)). If prison officials are “deliberately indifferent to prisoners’ serious
medical needs,” they violate the Constitution. Id. (citing Estelle v. Gamble, 429 U.S. 97,
105 (1976)). A plaintiff asserting an Eighth Amendment claim based on deficient
medical care must show (1) an objectively serious medical condition and (2) an official’s
deliberate indifference to that condition. Id. Defendants do not argue that plaintiff’s back
injury is not objectively serious. Thus, the only issue before me is whether defendants
acted with deliberate indifference to that condition.
Defendants argue that plaintiff cannot show that either of them acted with
deliberate indifference. Specifically, they contend that Trevino was not personally
involved in the decision to deny plaintiff’s request for a low-bunk restriction and that
Barker was not personally involved in the policy requiring plaintiff to complete additional
steps to secure a non-DOC medical exam. Plaintiff counters that Trevino acted with
deliberate indifference when she failed to request a back specialist to assess plaintiff’s
back injury and when she recommended that the committee deny plaintiff’s low-bunk
restriction request. He asserts that Barker was deliberately indifferent to his medical
needs when she failed to assist him in securing a non-DOC exam. I will discuss
plaintiff’s claim against each defendant in turn.

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A. Plaintiff’s Claims Against Trevino
First, no reasonable jury could find that Trevino violated plaintiff’s Eighth
Amendment rights by not requesting a back specialist to assess plaintiff’s condition. A
prison official charged with providing treatment to a prisoner is not liable under § 1983
simply because the prisoner is dissatisfied with the medical treatment provided. See
Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003). In fact, “[a] prisoner’s
dissatisfaction with a . . . prescribed course of treatment does not give rise to a
constitutional claim unless the medical treatment is ‘so blatantly inappropriate as to
evidence intentional mistreatment likely to seriously aggravate the prisoner’s condition.’”
Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (quoting Thomas v. Pate, 493 F.2d
151, 158 (7th Cir. 1974)). “A medical professional acting in [her] professional capacity
may be held to have displayed deliberate indifference only if the decision by the
professional is such a substantial departure from accepted professional judgment,
practice, or standards, as to demonstrate that the person responsible actually did not
base the decision on such a judgment.” Sain v. Wood, 512 F.3d 886, 894–95 (7th Cir.
2008) (internal quotation marks omitted).
Trevino provided plaintiff with pain medication and extended plaintiff’s low-bunk
restriction for an extra month after plaintiff’s low-bunk restriction had expired. These
treatment decisions, as well as her decision to deny plaintiff’s request to see a
specialist, were in line with those of other medical professionals who treated plaintiff for
his back pain and similarly denied his requests to see a specialist. Thus, her actions
cannot be said to have been “blatantly inappropriate” or a “departure from accepted
professional judgment, practice, or standards.” Id.

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Second, no reasonable jury could find that Trevino violated plaintiff’s Eighth
Amendment rights by purportedly recommending that the Special Needs Committee
deny plaintiff’s request for a low-bunk restriction. For one thing, nothing in the record
suggests that Trevino did any such thing. Moreover, a mere recommendation is
insufficient to establish that Trevino is personally responsible for the Special Needs
Committee’s decision, as necessary to demonstrate individual liability for any resulting
constitutional violation. See Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir.
2017). Thus, Trevino is entitled to summary judgment on plaintiff’s claims against her.
B. Plaintiff’s Claims Against Barker
The same is true with respect to Barker, who formed the Special Needs
Committee that denied plaintiff’s request for a low-bunk restriction but did not serve on it
and, thus, was not involved in making that decision. Also, Barker did not create
plaintiff’s back injury nor does plaintiff allege, let alone show, that she increased his
back pain in any way. When plaintiff requested to see a non-DOC medical provider,
Barker—following DAI policy that she did not create but merely enforced—reviewed
plaintiff’s medical records, saw that no DOC medical provider had request a specialist
for plaintiff, and so provided plaintiff with information on how he could complete his
request in that instance. No reasonable jury would find that following DAI policy and
providing this information made it harder for plaintiff to solve his back pain problem.
DAI policy does not prevent access to a specialist, but it also does not require the
prison institution to foot the bill for a specialist when plaintiff’s DOC care providers have
not—based on their professional judgment—requested that he be seen by one. Again,
plaintiff’s “mere disagreement” with the medical treatment he received is insufficient to

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support an Eight Amendment claim. Berry v. Peterman, 604 F.3d 435, 441 (7th Cir.
2010) (citing Estelle, 429 U.S. at 106). Indeed, “the Eighth Amendment does not confer
a constitutional right to demand either a particular type of medical treatment or a certain
specialist.” Kendrick v. Frank, 310 F. App’x 34, 38 (7th Cir. 2009). Therefore, Barker is
entitled to summary judgment on plaintiff’s claims against her.
III. CONCLUSION
THEREFORE, IT IS ORDERED that defendants’ motion for summary judgment
(Docket No. 26) is GRANTED. The Clerk of the Court shall enter judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may appeal
this court’s decision to the Court of Appeals for the Seventh Circuit by filing in this court
a notice of appeal within 30 days of the entry of judgment. See Federal Rule of
Appellate Procedure 3, 4. This court may extend this deadline if a party timely requests
an extension and shows good cause or excusable neglect for not being able to meet the
30-day deadline. See Federal Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or amend its
judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment
under Federal Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of judgment. The court cannot
extend this deadline. See Federal Rule of Civil Procedure 6(b)(2). Any motion under
Federal Rule of Civil Procedure 60(b) must be filed within a reasonable time, generally
no more than one year after the entry of the judgment. The court cannot extend this
deadline. See Federal Rule of Civil Procedure 6(b)(2).

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A party is expected to closely review all applicable rules and determine, what, if
any, further action is appropriate in a case.
Dated at Milwaukee, Wisconsin, this 20th day of April, 2018.

s/Lynn Adelman____________
LYNN ADELMAN
United States District Judge

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