Haynie v. Unknown et al
Filing
106
ORDER DISMISSING CASE signed by Judge Pamela Pepper on 9/23/2019 GRANTING 57 64 71 defendants' motions for summary judgment. (cc: all counsel, via mail to Mark Haynie at FCI Sandstone)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
MARK HAYNIE,
Plaintiff,
v.
Case No. 17-cv-853-pp
DR. KAREN BUTLER,
DR. ABDUL DURRANI,
and REBECCA S. SWENSON,
Defendants.
______________________________________________________________________________
ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
(DKT. NOS. 57, 64, 71) AND DISMISSING CASE
______________________________________________________________________________
Plaintiff Mark Haynie is a federal prisoner representing himself. He
alleges that the defendants denied him proper medical care when he was
confined at the Kenosha County Detention Center, in violation of his
constitutional rights. The three defendants, who are represented by different
lawyers, have filed motions for summary judgment. Dkt. Nos. 57, 64, 71. The
court grants the defendants’ motions and dismisses the case.
I.
Procedural Background
The plaintiff filed a complaint alleging that then-unknown defendants
violated his constitutional rights when he was confined at the Kenosha County
Detention Center (KCDC). Dkt. No. 1. Magistrate Judge David E. Jones
screened the complaint under 28 U.S.C. §1915A and determined that the
plaintiff had stated a claim for deliberate indifference to a serious medical need
under the Eighth Amendment, based on allegations that KCDC staff denied
1
him his medically necessary prescription medication and failed to monitor his
high blood pressure/hypertension condition, resulting in harm. Dkt. No. 18 at
5. Judge Jones allowed the plaintiff to conduct limited discovery to learn the
names of the individual involved in the alleged violation. Id. at 6. He gave the
plaintiff a deadline by which to file an amended complaint, identifying the
defendants involved. Id. at 7.
The plaintiff filed his amended complaint on March 2, 2018, naming Dr.
Karen Butler, Nurse Rebecca Swenson and Dr. Abdul Durrani as defendants.
Dkt. No. 32. Judge Jones screened the amended complaint and determined
that the plaintiff could proceed on deliberate indifference claims against (1)
Butler and Swenson because they allegedly refused to provide the plaintiff his
necessary medication for twenty months and failed to monitor him, resulting in
harm, and (2) Durrani and Swenson because they allegedly prescribed the
plaintiff the wrong medication, which complicated his medical condition. Dkt.
No. 34 at 1-2.
On April 24, 2018, the clerk’s office reassigned the case to this court
because at least one of the parties had not consented to the magistrate judge’s
authority to decide the case.
2
II.
Facts1
The plaintiff was confined at KCDC from May 12, 2015 to April 3 or 4,
2017. Dkt. Nos. 76 at ¶1; 66 at ¶1; 104 at ¶1; 102 at ¶1; 99 at ¶1. During this
period, defendant Swenson was a licensed nurse practitioner working at KCDC
in that capacity. Dkt. Nos. 76 at ¶2; 104 at ¶2. Defendant Butler was a
physician at KCDC when the plaintiff arrived there. Dkt. Nos. 66 at ¶2; 102 at
¶2. Defendant Durrani worked at KCDC during the relevant period.2 Dkt. No.
99 at ¶4.
A.
May 12, 2015 through January 11, 2017
When the plaintiff arrived at KCDC on May 12, 2015, a medical
screening questionnaire reported that he took “high blood pressure meds.” Dkt.
Nos. 76 at ¶4; 104 at ¶3. The plaintiff reported on some medical forms that
previously he had been treated for hypertension. Dkt. No. 66 at ¶4. The
plaintiff did not have any medications with him when he arrived at KCDC. Id.
at ¶5. The plaintiff states that he did not bring his medication “when he was
arrested at home but a Prisoner Custody Alert Notice was prepared by the U.S.
Marshal.” Dkt. No. 102 at ¶5.
For the most part, the court has taken the facts from the defendants
Proposed Findings of Fact, dkt. nos. 59, 66, 76, and the defendants’ responses
to the plaintiff’s three proposed findings of fact filed in response to the
defendants’ summary judgment motions, dkt. nos. 99,102, 104. The court has
included only relevant, material facts that comply with Fed. R. Civ. P. 56(c) and
Civil Local Rules 56(b)(1)(C) and (b)(2)(B) (E.D. Wis.).
1
Durrani refers to himself in his brief and other pleadings as “Dr. Durrani.”
See, e.g., Dkt. No. 60. He does not explain whether he was employed by KCDC,
or worked there as a contract physician, or had some other relationship with
KDCD.
2
3
The day after the plaintiff arrived at KCDC, Dr. Butler ordered that his
blood pressure and arterial pressure be monitored for three days, and that she
be notified if his blood pressure exceeded 140/90 and/or if his arterial
pressure was not between 60 and 100. Dkt. No. 66 at ¶7. On May 13, 2015,
the plaintiff’s blood pressure was 120/84, and his pulse was 98; on May 14,
2015, the plaintiff’s blood pressure was 124/86, and his pulse was 97; and on
May 16, 2015, his blood pressure was 132/82, and his pulse was 97. Dkt. No.
76 at ¶6.
On May 16, 2015, Butler ordered the nurses to recheck the plaintiff’s
vital signs within two days, and to call if the results did not fall within the
stated parameters. Dkt. Nos. 76 at ¶7; 66 at ¶10. On May 18, 2015, a nurse
documented that the plaintiff’s blood pressure was 118/84, with a pulse of 87.
Dkt. No. 76 at ¶8.
On May 18, 2015, Nurse Swenson ordered a re-check of the plaintiff’s
blood pressure and pulse in one month. Dkt. No. 76 at ¶13. Butler co-signed
this order. Dkt. No. 66 at ¶12. One month later, on June 18, 2015, the
plaintiff’s blood pressure was 122/86, and his pulse was 90, which are normal
results. Dkt. Nos. 76 at ¶13; 66 at ¶13.
The plaintiff’s medical records indicate that his blood pressure was
checked during a correctional physical exam on May 20, 2015. Dkt. No. 66 at
¶14. Medical notes from the exam indicate that his blood pressure was 124/90,
a normal result, and that his “B/P is being monitored.” Id. at ¶15.
4
A normal medical standard to determine the presence of hypertension
(high blood pressure) is 140/90. Dkt. No. 76 at ¶14. If a patient’s blood
pressure exceeds 140/90, he is considered for use of hypertensive medication.
Id. The plaintiff’s blood pressure was checked and rechecked and did not
indicate the need for ordering hypertensive medication. Id. Based on Swenson’s
medical training and experience, she believed that it was not medically
necessary to order hypertension medications for the plaintiff based on his
condition and blood pressure. Id.
Given the normal blood pressure readings between May 13 and June 18,
2015, Butler did not believe that medication for high blood pressure was
medically indicated. Dkt. No. 66 at ¶16. If the plaintiff was suffering from
hypertension and needed medication for it, his blood pressure would have
demonstrated that need by June 2015. Id. at ¶17. Giving medications when
they are not needed can cause harm. Id. at ¶18. Butler did not have any
further contact with the plaintiff, and she did not see any requests from the
plaintiff for medical attention in 2015 or 2016. Id. at ¶19. Butler stopped
working at KCDC on April 15, 2016. Id. at ¶22.
The plaintiff’s medical records show no further activity regarding his
blood pressure from June 18, 2015 until early January 2017. Dkt. No. 76 at
¶15. He did not file any Inmate/Detainee Medical Request forms (HSRs), which
an inmate fills out to request medical attention. Id.
According to the plaintiff, Swenson’s initial excuse for not supplying him
hypertension medication was that it was very expensive and that KCDC could
5
not afford to supply him with the medication because his blood pressure was
normal. Dkt. No. 104 at ¶6. Swenson disputes this. Id.
B.
January 12, 2017 through April 3 or 4, 2017
On January 12, 2017, at his yearly physical, the plaintiff had a blood
pressure of 170/120. Dkt. No. 76 at ¶16. That day, Swenson ordered for the
plaintiff:
Clonidine 0.2 mg by mouth now, then Clonidine 0.2 mg by mouth 2
x a day until medications arrive, then discontinue.
Lisinopril 20 mg daily x 365 days.
HCTZ (Hydrochlorothiazide) 25 mg by mouth daily x 365 days.
Metoprolol 25 mg 2 x a day x 365 days.
Blood pressure and applicable pulse daily until blood pressure is
below 140/90.
Id. at ¶17. She also ordered laboratory tests in two to three weeks—sooner if
possible. Id. at ¶18. That same day, a nurse entered into the Progress Notes:
“Blood pressure and pulse reported to R Swenson, APNP. Blood pressure
163/123, heart rate 95, see new Order.” An order for blood pressure/pulse
check twice daily was issued for January 12 through January 15, 2017. Id. at
¶19. A re-check that day showed a blood pressure of 114/78, with a pulse of
71. Id. On January 13, 2017, a nurse recorded the plaintiff’s blood pressure of
144/88, with a pulse of 75. Id.
On January 13, 2017, Swenson ordered the plaintiff’s blood pressure
and pulse to be checked three times, and to report any abnormal results. Dkt.
No. 76 at ¶21. On January 14, 2017, the plaintiff’s blood pressure was 132/92,
with a pulse of 70; on January 15, 2017 the plaintiff’s blood pressure was
6
146/92, with a pulse of 70; and on January 16, 2017, the plaintiff’s blood
pressure was 180/120, with a pulse of 65. Id. at ¶22.
On January 16, 2017, a nurse entered the following Progress Note:
“Blood pressure/pulse re-checked in patient’s left arm using electronic cuff.
Blood pressure equals 197/127, with a pulse of 72. Rebecca Nurse Practitioner
notified. See new Orders.” Dkt. No. 76 at ¶23. That same day, Swenson
ordered:
Clonidine 0.2 mg by mouth x 1 dose now.
Re-check blood pressure/pulse in (two) 2 hours using electronic
cuff.
Increase Lisinopril to 40 mg by mouth daily.
Spironolactone 25 mg by mouth daily.
Re-check blood pressure/applicable pulse daily x seven (7) days
using electronic cuff only; call United States Marshal to get stat labs
approval.
Id. at ¶24. Following Swenson’s order to re-check the plaintiff’s blood pressure
and pulse in two hours, a nurse recorded that the plaintiff’s blood pressure
was 111/73, and his pulse was 72, which are normal findings. Id. at ¶25.
On January 17, 2017, the plaintiff’s blood pressure was 148/103, with a
pulse of 68; on January 18, 2017, his blood pressure was 131/92, with a pulse
of 91; on January 19, 2017, the plaintiff’s blood pressure was 154/104, with a
pulse of 71; and on January 20, 2017, it was 161/104, with a pulse of 85. Dkt.
No. 76 at ¶27.
On January 17, 2017 the U.S. Marshals Service approved laboratory
testing for the plaintiff and the lab test blood draw was performed that day.
Dkt. No. 76 at ¶28. The next day, Swenson entered a Progress Note stating
“reviewed labs. No new Orders.” Id. at ¶30.
7
On January 21, 2017, the plaintiff prepared an HSR stating: “I’m trying
to find out the results of my blood work that was done on me.” Dkt. No. 76 at
¶31. A nurse responded that day: “the Nurse Practitioner reviewed your lab
results and no new orders were given.” Id. The nurses documented the
following finding as to the plaintiff: “January 22, 2017, blood pressure
170/109, with a pulse of 75 before taking Clonidine.” Id. at ¶32. On January
23, 2017, the plaintiff’s blood pressure was 118/87, with a pulse of 64, and on
January 24, 2017, his blood pressure 192/73, with a pulse of 64. Id.
On January 23, 2017, Swenson entered a new Progress Note, stating:
“received blood pressure results; discontinue Clonidine 0.1 mg daily.” Dkt. No.
76 at ¶33. Two days later, Swenson ordered:
Change Lisinopril to 30 mg by mouth daily x 1 year.
Change Metoprolol to 12.5 mg by mouth twice a day x 1 year.
Clonidine 0.1 mg by mouth daily x 1 year.
Blood pressure/pulse checks daily using electronic cuff until less
than 140/90.
Id. ¶34.
On February 4, 2017, the plaintiff prepared an HSR stating “I’m starting
to feel some side effects from this medication that I’m taking. My chest is
feeling strange and my head be light at times.” Dkt. No. 76 at ¶35. The next
day, a nurse entered a Progress Note stating:
Blood pressure/face to face: patient’s blood pressure and apical
pulse obtained per patient’s request 122/72, pulse 72. Patient
asked about med slip. Patient reports he doesn’t need to be seen
for sick call, wanted blood pressure taken. ROR (Release of
Responsibility) to be signed. Patient encouraged to notify HSU if he
needs to be seen.
8
Id. That same day, the plaintiff signed a Release of Responsibility form stating:
“I hereby refuse to accept the following treatment/recommendations: sick call,
complaint of side effects from meds. Reason for refusal: had blood pressure
check.” Id. The form lists as education provided, “change position slowly/stay
well hydrated/notify HSU if symptoms continue or worsen.” Id. That day,
nursing staff entered into the plaintiff’s record, “blood pressure and pulse one
time per patient request showing blood pressure of 122/82, and a pulse of 70.”
Id. at ¶36.
On February 9, 2017, Swenson ordered: “decrease Clonidine to 0.1 mg
by mouth every other day x 1 week, then stop. Blood pressure/pulse in one
week.” Dkt. No. 76 at ¶37. That same day, Swenson prepared a six-page
document entitled “Chronic Disease Clinic Initial Baseline Medical Data,”
which outlined a summary of the plaintiff’s condition and plan for treatment of
hypertension. Id. at ¶38. The plaintiff’s blood pressure and pulse were 104/80
and 65. Id. Swenson documented under Chief Complaint:
“No complaints today.” I ordered a decrease in Clonidine to 0.1 mg
by mouth every other day for 1 week, then stop. I ordered BP/AP in
1 week and report to Nurse Practitioner.
Id. Swenson also discussed with the plaintiff potential use of statin
medications. Id.
On February 12, 2017, the plaintiff prepared an HSR stating: “I’m
requesting to know the names of all of the medications that I’m taking and
what each one is for?” Dkt. No. 76 at ¶39. The HSU responded as follows:
1. Hydrochlorothiazide 25 mg daily
2. Lisinopril 30 mg daily
9
3. Metoprolol Tart 25 mg twice daily
4. Spironolactone 25 mg
All are to control your blood pressure.
Id. at ¶39.
On March 2, 2017, the plaintiff prepared an HSR stating, “I’m requesting
to have my blood pressure checked.” Dkt. No. 76 at ¶40. The nursing response
was: “seen face to face 3-3-17.” Id. On March 3, 2017, a nurse recorded in
Progress Notes: “Blood pressure/apical pulse checked per patient request.
Blood pressure equals 130/78, pulse 69. Patient had no complaints. Patient
instructed to notify HSU of any changes.” Id.
At his yearly physical examination on January 12, 2017, the plaintiff had
an elevated blood pressure; Swenson treated him with well-recognized
medications for the treatment of high blood pressure and titrated the
medications and dosages until the plaintiff’s blood pressure was again within
normal parameters. Id. at ¶41. Swenson believes that her treatment of the
plaintiff’s blood pressure was well within acceptable medical practice and
within requisite standards of medical care. Id.
The medical administration record, with Dr. Durrani noted as the
physician, shows the plaintiff was administered Clonidine, Lisinopril,
Metoprolol, Spironolactone, and Hydrochlorothiazide in January 2017. Dkt. No.
59 at ¶15. The same record, again with Durrani noted as the physician, shows
that the plaintiff was administered Clonidine, Lisinopril, and Metoprolol in
February 2017. Id. at ¶16. According to the Physician’s Desk Reference,
10
Metoprolol, Spironolactone, and Clonidine can be used to treat hypertension.
Id. at ¶¶18-20.
The plaintiff says that even though he alerted KCDC staff at intake that
he was taking high blood pressure medication and was “under care of Des
Plaines Valley Medical Center,” dkt. no. 97 at ¶4, he wasn’t “seen or re
evaluated for 20 months and didn’t receive a yearly physical which is policy +
required by law.” Id. at ¶5. He states that he made “numerous medical
request[s]” to Butler and Swenson “concerning blood checks, what medication
[he] was taking.” Id. at ¶7. The plaintiff says the reason he complained about
the side effects of the medication—his chest feeling strange and feeling lightheaded—was because of the twenty-month delay in treating him and being
given the “wrong” medication. Id. at ¶8. He asserts that he was prescribed
Hydrochlorothiazide and Lisinopril by doctors at F.C.I. Terre Haute (he does
not say when) and says that he had taken those medications “for the past 10
years with no complication until arrival at [KCDC].” Dkt. No. 96 at ¶6. He avers
that Durrani prescribed him the “wrong medications: Metroprolol,
Spionolactone, and Clonidine . . . .” Id. He also says that Durrani did not give
him the right medications—the Hydrocholorothiazide and Lisinopril—until “20
months later.” Id. The plaintiff says that Durrani also was deliberately
indifferent to the plaintiff’s serious medical need when Durrani “didn’t admit
[him] to an outside hospital when [his] blood pressure wouldn’t go down from
192/140.” Id. at ¶11. He contends that Durrani and Swenson “deliberately”
supplied him with Metoprolol, Spironolactone and Clonidine “after his high
11
blood pressure was abnormally over 140/190, when if they only supplied
Hydrochlorothiazide and Lisinopril as medical records indicated he would not
have had the negative health issues.” Id. at ¶7.
As for Butler, the plaintiff says that while she and the nursing staff
checked his pressure when he arrived, he wasn’t seen or re-evaluated for 20
months and didn’t receive the required annual physical. Dkt. No. 92 at ¶6. He
states that Butler ignored his medical needs, even though she’d been advised
that he was on blood pressure medication and despite the alert notice from the
Marshal. Id. at ¶7. The plaintiff asserts that Butler told him that he was “fine
without [his] medication,” and that he didn’t have any reason to put in medical
requests until he discovered that his hypertension was “out of control” as a
result of Butler’s “decision not to prescribe [his] legal hypertension medication
in hopes to save [KCDC] money.” Id. at ¶10.
As for the impact of the defendants’ actions on his health, the plaintiff
says that he has “suffered heart, arteriole and cardiovascular system damage
which prevent him from his normal daily activity.” Dkt. No. 96 at ¶8.
C.
Exhaustion of Administrative Remedies
The plaintiff admits that he was aware of the KCDC grievance process.
Dkt. No. 92 at ¶13. The grievance policy required inmates to file a grievance
within five days of the underlying occurrence. Dkt. No. 66 at ¶28.
According to the defendants, the plaintiff availed himself of the grievance
procedure on only two occasions while at KCDC and neither grievance involved
a complaint about his medication management nor about any health concerns.
12
Dkt. No. 66 at ¶¶29-30. According to the plaintiff, he filed three grievances
regarding his medication management and health conditions to while at KCDC,
and he filed one when he was at MCC Chicago, but he never received a
response. Dkt. No. 92 at ¶16. The plaintiff states that he filed the latter
grievance after transferring to MCC Chicago once he discovered that the other
grievances had been removed from his property when he arrived there. Id. at
¶14. The plaintiff avers that the KCDC staff disposed of his grievances,
claiming they’d never received them. Id. at ¶13.
III.
Analysis
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.” 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, 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
13
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.
Discussion
1.
Exhaustion of Administrative Remedies
Butler contends that the plaintiff failed to exhaust his administrative
remedies; Nurse Swenson joins that argument. Dkt. Nos. 84 at 3; 79 at 4.
The Prison Litigation Reform Act requires that, prior to filing a lawsuit
complaining about prison conditions, a prisoner must exhaust “such
administrative remedies as are available[.]” 42 U.S.C. §1997e(a). To do so, the
prisoner must “file complaints and appeals in the place, and at the time, the
prison’s administrative rules require,” and he must do so precisely in
accordance with those rules; substantial compliance does not satisfy the PLRA.
Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002); Smith v. Zachary,
255 F.3d 446, 452 (7th Cir. 2001). The two primary purposes of this
exhaustion requirement are limiting frivolous lawsuits and permitting
correctional facilities to address issues prior to litigation, hopefully obviating
the need for a lawsuit. Witzke v. Femal, 376 F.3d 744, 753 (7th Cir. 2004).
14
Failure to exhaust administrative remedies is an affirmative defense to be
proven by defendants. Westefer v. Snyder, 422 F.3d 570, 577 (7th Cir. 2005).
Butler and the plaintiff dispute whether the plaintiff filed a grievance
related to the issues he raises in this case. According to Butler, the plaintiff did
not file any grievance related to his claims. According to the plaintiff, he filed
three grievances regarding his medication management while at KCDC and one
while he was at another facility, but he never received a response. Dkt. No. 90
at 7. He also states that staff removed grievances from his property. Id. The
plaintiff states that his claim should proceed because he did exhaust, despite
KCDC’s misconduct and failure to respond. Dkt. No. 86 at 6.
In her reply brief, Butler contends that there is no genuine dispute of fact
as to the plaintiff’s failure to exhaust administrative remedies because he has
provided no documentary evidence to support his assertion that he filed
grievances. Dkt. No. 101 at 4. The plaintiff has asserted, however, that the
grievances were removed from his property, so he would not have had the
grievances to submit. Butler also contends that the statements the plaintiff
made in his declaration do not create a genuine dispute of material fact as to
whether he exhausted his administrative remedies relative to his specific
allegations against Butler. Dkt. No. 101 at 4. The court disagrees; the plaintiff
made his declaration under penalty of perjury and under 28 U.S.C. §1746. The
plaintiff’s declaration is sufficient to create a factual dispute regarding whether
the plaintiff filed any grievances related to his medical care claims.
15
Under ordinary circumstances, when a defendant disputes exhaustion,
the court should hold an evidentiary hearing before considering the merits of
the plaintiff’s claims. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008)
(holding that prisoner not entitled to a jury trial on contested issues regarding
his failure to exhaust; instead, a hearing before the district court suffices to
resolve any such questions); see also Wagoner v. Lemmon, 778 F.3d 586, 588
(7th Cir. 2015) (“A proper Pavey hearing should be conducted before an
adjudication on the merits.”). The Court of Appeals for the Seventh Circuit has
instructed that “in the ordinary case discovery with respect to the merits
should be deferred until the issue of exhaustion is resolved. If merits discovery
is allowed to begin before that resolution, the statutory goal of sparing federal
courts the burden of prisoner litigation until and unless the prisoner has
exhausted his administrative remedies will not be achieved.” Pavey, 544 F.3d at
742.
In this case, however, neither Butler nor the other defendants asked for
summary judgment on the exhaustion issue prior to the discovery deadline.
Butler could have asked the court to suspend the discovery deadline and to
consider the exhaustion issue before the parties conducted discovery on the
merits of the case. Defendants have made similar requests in other cases, and
the court has granted those requests. Instead, Butler waited to raise the
exhaustion issue until after all the parties had conducted discovery on the
merits of the plaintiff’s claims. To ignore the parties’ arguments on the merits
in favor of holding an evidentiary hearing on the question of whether the
16
plaintiff exhausted his administrative remedies would be wasteful and
inefficient. The court will deny Butler’s motion for summary judgment to the
extent that it seeks summary judgment on exhaustion grounds, and will
consider the defendants’ motions for summary judgment on the merits. See
Wagoner, 778 F.3d at 590-92 (while “it is a better practice to hold a Pavey
hearing separate from and before considering a motion for summary
judgment,” district court did not abuse discretion when it considered fully
briefed summary judgment motion instead of holding Pavey hearing).
2.
Applicable Law
a.
Pretrial detainee/convicted prisoner
The plaintiff states that he was a convicted prisoner during the relevant
period (May 12, 2015 through about April 4, 2017). Dkt. No. 90 at 2. According
to the plaintiff, he was a federal inmate because he was under the jurisdiction
and custody of the U.S. Marshal even upon arrest and placement in KCDC.
Dkt. No. 86 at 3. The defendants filed supplemental briefs in support of their
motions for summary judgment in which they state that the plaintiff was or
may have been a pretrial detainee before January 11, 2017. Dkt. Nos. 79 at 2;
81 at 1; 84 at 1-2.
The court takes judicial notice that on May 11, 2015, the defendant was
charged in a complaint issued by the U.S. Attorney for the Eastern District of
Wisconsin in United States v. Haynie, Case 15-cv-117, dkt. no. 1, the
defendant appeared before the magistrate judge on May 12, 2015, dkt. no. 47,
17
and was ordered temporarily detained3, dkt. no. 50, the defendant was indicted
on June 9, 2015, dkt. no. 115, the defendant signed a plea agreement on
December 14, 2016, dkt. no. 511, and the court accepted his guilty plea on
January 11, 2017, dkt. no. 539. The plaintiff was a pretrial detainee from May
12, 2015 through January 11, 2017; he was a convicted prisoner starting
January 11, 2017.
“[M]edical-care claims brought by pretrial detainees under the
Fourteenth Amendment are subject only to the objective unreasonableness
inquiry identified in Kingsley [v. Hendrickson, ___ U.S. ___, 135 S. Ct. 2466
(2015)].” Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir. 2018). The
Kingsley Court held that a pretrial detainee alleging an excessive force claim
“did not need to prove that the defendant was subjectively aware” that the
amount of force he was using was unreasonable, and needed “only to show
that the defendant’s conduct was objectively unreasonable.” Id. at 351 (citing
Kingsley, 135 S. Ct. at 2472-73). Because the plaintiff was a pretrial detainee
prior to January 11, 2017, the court will apply the objective standard to the
claims that arose before January 11, 2017.
b.
Standards for evaluating medical-care claims
To establish that the standard of medical care he received violated the
Fourteenth Amendment, a pretrial detainee must show (1) that he suffered
from an objectively serious medical condition, see Greeno v. Daley, 414 F.3d
There is no federal pretrial holding facility in Wisconsin. The U.S. Marshal
Service contracts with local jails, such as KCDC, to hold detained defendants
pending trial.
3
18
645, 653 (7th Cir. 2005), and (2) that jail personnel “purposefully, knowingly,
or perhaps even recklessly” disregarded a serious risk to his health or safety
when treating the condition, Miranda, 900 F.3d at 353-54. Negligence or even
gross negligence is not enough. Id. Instead, a defendant’s conduct must be
objectively unreasonable, which means that the conduct must be “more than
negligence . . . something akin to reckless disregard[.]” Id.
After January 11, 2017, the plaintiff was a convicted prisoner, which
means that the Eighth Amendment’s deliberate indifference standard applies to
the events that took place after that date. Miranda, 900 F.3d at 350 (citing
Estelle v. Gamble, 429 U.S. 97 (1976)). “The Eighth Amendment’s proscription
against ‘unnecessary and wanton infliction of pain’ is violated when prison
officials demonstrate ‘deliberate indifference to serious medical needs’ of
prisoners—whether the indifference ‘is manifested by prison doctors in
response to prison needs or by prison guards in intentionally denying or
delaying access to medical care.’” Lewis v. McLean, 864 F.3d 556, 562 (7th Cir.
2017) (quoting Estelle, 429 U.S. at 104). A deliberate indifference claim
contains both an objective and a subjective component. “[A] prisoner must first
establish that his medical condition is ‘objectively, sufficiently serious,’ and
second, that prison officials acted with a ‘sufficiently culpable state of mind’—
i.e., that they both knew of and disregarded an excessive risk to inmate
health.” Id. at 562-63 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
“To determine if a prison official acted with deliberate indifference, [courts] look
into his or her subjective state of mind.” Petties v. Carter, 836 F.3d 722, 728
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(7th Cir. 2016) (citing Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996)).
“[S]howing negligence is not enough.” Id. (citing Estelle, 429 U.S. at 106). “Even
objective recklessness—failing to act in the face of an unjustifiably high risk
that is so obvious that it should be known—is insufficient to make out a claim.”
Id. (citing Farmer, 511 U.S. at 836-38). “[A] plaintiff must provide evidence that
an official actually knew of and disregarded a substantial risk of harm.” Id.
(citing Farmer, 511 U.S. at 837).
Both standards require courts to determine whether the plaintiff had an
objectively serious medical need. “Objectively serious medical needs are those
that have either been diagnosed by a physician and demand treatment, or are
‘so obvious that even a lay person would easily recognize the necessity for a
doctor’s attention.’” Cesal v. Moats, 851 F.3d 714, 721 (7th Cir. 2017) (quoting
Estelle, 429 U.S. at 104-105). “Hypertension is a serious condition. Untreated
it can result in strokes or heart attacks.” Jackson v. Pollion, 733 F.3d 786, 789
(7th Cir. 2013). The defendants have not argued that the plaintiff’s
hypertension and high blood pressure were not objectively serious medical
needs, and the court finds that they were. The only question for summary
judgment is whether the defendants either “purposefully, knowingly, or
perhaps even recklessly” disregarded the plaintiff’s condition before January
11, 2017, or that they knew of and disregarded that condition after January
11, 2017.
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c.
Application of the standards
i.
May 12, 2015 through January 11, 2017:
Fourteenth Amendment Standard Applies
Swenson and Butler contend that the care they provided the plaintiff met
the Fourteenth Amendment’s objectively reasonable standard. Dkt. Nos. 79 at
4; 84 at 2.
The plaintiff disagrees, arguing that Swenson acted with deliberate
indifference because she did not order hypertension medication for him when
he arrived at KCDC, or in the months that followed.4 Dkt. No. 86 at 3. He
states that her initial excuse for not ordering the medication was that KCDC
could not afford to supply him with such an expensive medication, given that
his blood pressure was normal. Id. at 4. The plaintiff argues that his normal
blood pressure did not justify Swenson and Butler’s decision not to prescribe
him his medication and not to try to obtain his records. Id. The plaintiff
contends that Butler “was deliberately indifferent to his Hypertension medical
needs by failing to provide him his hypertension medication for high blood
pressure for 20 months, exacerbating his injury and unnecessarily prolonging
his serious health issues.” Dkt. No. 90 at 4. According to the plaintiff, Butler
told him he was fine without his hypertension medication but discovered later
that his hypertension was out of control because of Butler’s decision not to
prescribe his medication. Id. at 5.
The plaintiff applies the Eighth Amendment’s subjective deliberate
indifference standard throughout his summary judgment filings.
4
21
Even if the plaintiff is right that Butler did not prescribe medication for
him when he arrived at KCDC because of the cost, he has not shown that
Butler “purposefully, knowingly, or perhaps even recklessly” disregarded his
condition. The record shows that when the plaintiff arrived at KCDC, his blood
pressure was normal. But given the plaintiff’s history of hypertension, Butler
ordered additional blood pressures and pulse rates. Ordering additional blood
pressure tests was not disregard; it was action. The plaintiff tested normal on
May 13, 14, 16 and 18, 2015. Swenson ordered another blood test a month
later; the results of that June 18, 2015 test also were normal. Based on these
repeated normal test results, Butler did not believe it was medically necessary
to prescribe the plaintiff hypertension medication. She was not disregarding
the plaintiff’s condition; she (and Swenson) were choosing not to give him
medication because the condition was under control. Butler stopped working at
KCDC on April 15, 2016. The plaintiff did not file any HSRs until after his
January 12, 2017 physical examination—nine months later. The record does
not contain any evidence that Butler had reason to believe that the plaintiff
needed medication. She made sure he was checked and monitored, and his
pressure did not spike while Butler was at KCDC. No reasonable jury could
find that Butler purposefully, knowingly or recklessly disregarded the plaintiff’s
hypertension in declining to prescribe medication to him between May 2015
and April 2016. The court will grant Butler’s motion for summary judgment.
The plaintiff asserts that Swenson’s alleged “initial excuse” for not
ordering hypertension medications was the cost, and he reiterates that his
22
normal blood pressure did not justify the failure to order the medications. Dkt.
No. 88 at ¶6. Swenson denies telling the plaintiff that hypertension medications
were very expensive and that KCDC couldn’t afford them. Dkt. No. 104 at ¶6.
Even if she did say that, however, it would be irrelevant; the plaintiff has not
shown that Swenson disregarded his condition. On May 18, 2015 she ordered
that the plaintiff have another pressure and pulse check in a month. The
results of that June 2015 check were normal. The plaintiff did not complain of
problems between that date and January 2017. While the plaintiff does not
agree with Swenson’s (and Butler’s) decision to not order hypertension
medications for him in 2015 and 2016, he does not dispute that the reason
they didn’t order them was because the plaintiff had repeated normal blood
pressure readings. The plaintiff has not submitted any evidence demonstrating
that their decision was objectively unreasonable. The court will grant
Swenson’s motion for summary judgment as it relates to the plaintiff’s care
before January 11, 2017.
ii.
January 12, 2017 through April 3 or 4, 2017:
Eighth Amendment Standard Applies
Swenson contends that she did not act with deliberate indifference
regarding the care and treatment of the plaintiff from January 2017 until his
discharge from KCDC. Dkt. No. 73 at 7. Durrani asserts that he was not
deliberately indifferent to the plaintiff’s condition. Dkt. No. 60 at 2.
The plaintiff maintains that Swenson deliberately supplied him with the
wrong medication, which he says is evident from his “abnormal high blood
pressures: 170/120, 197/127, 148/103, 133/92, 154/104 and 161/104.” Dkt.
23
No. 86 at 5. The plaintiff argues that Durrani “was deliberately indifferent to
Plaintiff’s serious medical needs by not prescribing him his legal medication
(Lisinopril and Hydrochlorothiazide) until 20 months later, and then
prescribing him the wrong medications (Metroprolol, Spironolactone and
Clonidine).” Dkt. No. 95 at 2. He states that Durrani should have provided him
Lisinopril and Hydrochlorotiazide from January to April 4, 2017. Id. at 2-3.
At the plaintiff’s physical on January 12, 2017, his blood pressure was
high. That same day, Swenson ordered Clonidine, Lisinopril 20,
Hydrochlorothiazide and Metoprolol; she also ordered that the plaintiff’s
pressure and pulse be taken daily until his blood pressure fell below 140/90.
Finally, she ordered lab tests in two to three weeks, or sooner. The next day,
she ordered his pressure to be checked three times. On January 16, Swenson
adjusted the plaintiff’s medications, ordered daily pressure tests with a cuff
and ordered that the Marshal be contacted to approve lab tests. The lab tests
were performed on January 17, and Swenson reviewed them the next day. On
January 23 and 25, Swenson again adjusted the plaintiff’s medication, based
on results of blood pressure tests. On February 4, the plaintiff reported the
strange feeling in his chest and his light-headedness. The plaintiff had his
pressure checked the next day, at which time he said he didn’t need to go to
sick call. The staff encouraged him to contact the Health Services Unit if he
needed help. Five days later, on February 9, Swenson adjusted the plaintiff’s
medication, drafted his six-page history and treatment plan and discussed the
possibility of statins with him.
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No reasonable jury could conclude from this evidence that Swenson
knew of, but disregarded, the risk presented by the plaintiff’s hypertension
after January 12, 2017. She began treatment the same day the plaintiff had
the elevated reading, and she continued monitoring and treatment over the
next two months. The real kernel of the plaintiff’s claim is not that Swenson
didn’t do anything to treat his hypertension. It is that he disagrees about what
Swenson did—in particular, he disagrees with the medication she ordered for
him. But “the Eighth Amendment does not reach disputes concerning the
exercise of a professional’s medical judgment, such as disagreement over
whether one course of treatment is preferable to another.” Cesal, 851 F.3d at
721 (citing Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996)). Even if
Swenson was the one who chose the medications, and even if there was
evidence that she was negligent, or committed malpractice, in choosing to do
so—and there is no evidence of that—“[d]eliberate indifference is not medical
malpractice . . . .” Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008).
The plaintiff has not raised a genuine issue of material fact as to whether
Swenson was deliberately indifferent to his objectively serious medical need,
and the court will grant summary judgment in favor of Swenson.
Durrani is the one who actually prescribed the medications, and the
plaintiff does not dispute that the three medications he challenges—Metoprolol
(a beta blocker), Spironolactone (a high blood pressure and heart medication),
and Clonidine (a hypertension medication)—are listed in the Physician’s Desk
Reference as approved medications for treating hypertension. The plaintiff
25
believes that he should have been prescribed only Lisinopril and
Hydrochlorothiazide, the medications he’d taken for years without trouble. In
other words, he disagrees with Durrani’s choice of treatment. But “a mere
disagreement with a doctor’s medical judgment” does not amount to deliberate
indifference. Greeno, 414 F.3d at 653 (citing Estelle, 429 U.S. at 106). Durrani
did not disregard the plaintiff’s condition; he prescribed medication for it. A
reasonable jury could not conclude that Durrani was deliberately indifferent to
the plaintiff’s serious medical condition. The court will grant Durrani’s motion
for summary judgment.
IV.
Conclusion
The court GRANTS defendant Durrani’s motion for summary judgment.
Dkt. No. 57.
The court GRANTS defendant Butler’s motion for summary judgment.
Dkt. No. 64.
The court GRANTS defendant Swenson’s motion for summary judgment.
Dkt. No. 71.
The court ORDERS that this case is dismissed and will 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
26
excusable neglect for not being able to meet the 30-day deadline. See Federal
Rule of Appellate Procedure 4(a)(5)(A).
Under limited 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).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 23rd day of September, 2019.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge
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