Walker-Hall v. Syed et al

Filing 55

ORDER signed by Judge J P Stadtmueller on 11/30/2018: GRANTING 35 Defendant's Motion for Summary Judgment; DISMISSING Plaintiff's Eighth Amendment claim against Defendant Dr. Salem Syed; and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Donovan Walker-Hall at Kettle Moraine Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DONOVAN WALKER-HALL,
Plaintiff,
v.
DR. SALEM SYED,

Case No. 17-CV-1032-JPS

ORDER
Defendant.

1.

INTRODUCTION
On October 17, 2017, Magistrate Judge David E. Jones screened

Plaintiff’s complaint. (Docket #12). Plaintiff alleged that various members
of the medical staff at Waupun Correctional Institution (“Waupun”) and
some private medical personnel provided constitutionally deficient
medical care with respect to his sickle cell condition. Id. at 3–5. Plaintiff was
allowed to proceed against a few of those defendants on a claim that they
were deliberately indifferent to his serious medical needs, in violation of
the Eighth Amendment. Id. at 6–7.
On March 9, 2018, some of the defendants moved for summary
judgment on the ground that Plaintiff had failed to exhaust his
administrative remedies on his claim against them, which is a necessary
precondition to suit. (Docket #20). The Court granted the motion on April
26, 2018. (Docket #34). Thus, only the current Defendant, Dr. Salem Syed,
remained in the case.
Defendant filed his own motion for summary judgment on May 1,
2018. (Docket #35). Plaintiff’s response to the motion was originally due on
or before May 31, 2018. Civ. L. R. 7(b). On May 21, 2018, Plaintiff asked for

additional time to file his responsive materials. (Docket #42). The Court
granted the request and extended the response deadline to June 15, 2018,
but informed Plaintiff that no further extensions of time would be
considered. (Docket #43). On June 11, 2018, Plaintiff sought another
extension of the response due date. (Docket #45). The Court denied this
second request. (Docket #47).
Ultimately, the Court is left without any opposition to Defendant’s
motion for summary judgment. The Court could summarily grant the
motion for that reason. Civ. L. R. 7(d). However, as explained below,
Defendant also presents a valid basis for dismissing Plaintiff’s claim. For
both of these reasons, Defendant’s motion must be granted.
2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that 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 Boss v. Castro, 816 F.3d 910, 916 (7th
Cir. 2016). A fact is “material” if it “might affect the outcome of the suit”
under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. The
court construes all facts and reasonable inferences in the light most
favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016).
3.

BACKGROUND
The relevant facts are undisputed because Plaintiff failed to dispute

them. In the Court’s scheduling order, entered November 16, 2017, Plaintiff
was warned about the requirements for opposing a motion for summary
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judgment. (Docket #18 at 3–4). Accompanying that order were copies of
Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both of which
describe in detail the form and contents of a proper summary judgment
submission. In Defendant’s motion for summary judgment, he too warned
Plaintiff about the requirements for his response as set forth in Federal and
Local Rules 56. (Docket #35). He was provided with additional copies of
those Rules along with Defendant’s motion. Id. at 3–12. In connection with
his motion, Defendant filed a supporting statement of material facts that
complied with the applicable procedural rules. (Docket #37). It contained
short, numbered paragraphs concisely stating those facts which Defendant
proposed to be beyond dispute, with supporting citations to the attached
evidentiary materials. See id.
In response, Plaintiff filed absolutely nothing—no brief in
opposition, much less a response to the statement of facts. Despite being
twice warned of the strictures of summary judgment procedure, Plaintiff
ignored those rules by failing to properly dispute Defendant’s proffered
facts with citations to relevant, admissible evidence. Smith v. Lamz, 321 F.3d
680, 683 (7th Cir. 2003). Though the Court is required to liberally construe a
pro se plaintiff’s filings, it cannot act as his lawyer, and it cannot delve
through the record to find favorable evidence for him. Thus, the Court will
deem Defendant’s facts undisputed for purposes of deciding his motion for
summary judgment. See Fed. R. Civ. P. 56(e); Civ. L. R. 56(b)(4); Hill v.
Thalacker, 210 F. App’x 513, 515 (7th Cir. 2006) (noting that district courts
have discretion to enforce procedural rules against pro se litigants).
In the absence of any factual disputes, and in the interest of brevity,
the Court will discuss the material facts as part of its analysis of Plaintiff’s

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claim, presented below. All factual discussion is drawn from Defendant’s
statement of proposed facts. (Docket #37).
4.

ANALYSIS
As noted above, Plaintiff was allowed to proceed on a single claim

against Defendant related to the medical care provided for his sickle cell
condition. Prisoners are entitled to a minimal level of healthcare while in
custody. Petties v. Carter, 836 F.3d 722, 727–28 (7th Cir. 2016). The Eighth
Amendment is violated when the prisoner shows that they “suffered from
an objectively serious medical condition,” and that “the individual
defendant was deliberately indifferent to that condition.” Id. at 728. The
Gayton case neatly summarizes the claim:
[T]he plaintiff must show that: (1) [he] had an
objectively serious medical condition; (2) the defendants
knew of the condition and were deliberately indifferent to
treating h[im]; and (3) this indifference caused h[im] some
injury. An objectively serious medical condition is one that
has been diagnosed by a physician as mandating treatment or
one that is so obvious that even a lay person would perceive
the need for a doctor’s attention. 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.
With regard to the deliberate indifference prong, the
plaintiff must show that the official acted with the requisite
culpable state of mind. This inquiry has two components. The
official must have subjective knowledge of the risk to the
inmate’s health, and the official also must disregard that risk.
Evidence that the official acted negligently is insufficient to
prove deliberate indifference. Rather, deliberate indifference
is simply a synonym for intentional or reckless conduct, and
that reckless describes conduct so dangerous that the
deliberate nature of the defendant’s actions can be inferred.
Simply put, an official must both be aware of facts from which

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the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference. Even if a
defendant recognizes the substantial risk, he is free from
liability if he responded reasonably to the risk, even if the
harm ultimately was not averted.
Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010) (citations and quotations
omitted). In sum, “deliberate indifference means actual, personal
knowledge of a serious risk, coupled with the lack of any reasonable
response to it.” Ayoubi v. Dart, 724 F. App’x 470, 474 (7th Cir. 2018).
Plaintiff has chronic sickle cell disease, which is a red blood cell
disorder that impacts the amount of oxygen carried in the blood. The
disease can cause episodes of pain, called “crises,” and sometimes requires
hospitalization. Long-term treatment for sickle cell disease includes
hydration and the medication Hydroxyurea. Hydroxyurea is used to
reduce the number of crises by keeping the disease stable. During acute
crises, patients are typically offered pain medication.
Plaintiff was approved for opioid painkillers, but only for use during
acute crises. Requiring compliance with other medications and treatments
can be a part of an appropriate opioid treatment plan. If a patient is to be
prescribed potent medications like opioids, it is medically reasonable to
require participation in other pain reduction/disease treatment modalities
to ensure the best success. Plaintiff was informed that if he was noncompliant with his sickle cell medication, then his narcotics prescription
may be discontinued.
Defendant first treated Plaintiff on September 29, 2016. Plaintiff’s
disease was stable so Defendant continued his plan of care, which included
a medication regimen of Hydroxyurea, morphine, oxycodone, and folic
acid. The next contact with Plaintiff was on December 9, 2016, though
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Plaintiff had multiple appointments with other medical staff in the interim.
On that day, Plaintiff suffered a sickle cell crisis. He complained of pain and
generally feeling sick and was sent to the hospital. Defendant then saw
Plaintiff on January 24, 2017 for pain complaints. Defendant determined
that Plaintiff was dehydrated, but otherwise stable, so Plaintiff was given
IV fluids then returned to his cell. Defendant also ordered some lab tests on
Plaintiff’s blood.
By March 2017, Plaintiff began regularly refusing his Hydroxyurea
and his health care providers were notified of these refusals. Plaintiff’s
refusals exacerbated his sickle cell symptoms. As he had been warned,
Plaintiff’s noncompliance meant that his opioid prescriptions were
discontinued by a Dr. Manlove on March 10, 2017. On April 13, 2017,
Defendant told Plaintiff that his opioids would be replaced with naproxen,
on the recommendation of a blood disorder specialist. Defendant also noted
that Plaintiff appeared to be manipulating the system in an attempt to
obtain narcotics because he would purposefully refuse the medication that
had been proven to keep his disease under control, then would have a crisis
that would require narcotic pain medications, hospitalization, or both.
Defendant’s conduct falls far short of deliberate indifference to
Plaintiff’s medical needs. On the four occasions that Defendant saw
Plaintiff, Defendant evaluated Plaintiff and ordered appropriate treatment.
After Dr. Manlove discontinued Plaintiff’s opioid painkillers, Defendant
ordered naproxen as a replacement. Like Dr. Manlove, Defendant was
concerned that Plaintiff was manipulating the system, and willfully
forgoing treatment for his sickle cell condition, in order to satisfy his
craving for narcotics. This is not indifference to, but indeed careful
consideration of, Plaintiff’s medical needs. Opioid abuse is a terrible
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scourge in today’s world, and allowing freewheeling access to such
powerful narcotics without good reason would be just as damaging as
letting the sickle cell disease go untreated. In other words, Defendant was
not subjectively aware of a risk to Plaintiff’s health in stopping the opioid
prescription. Rather, he perceived a risk to Plaintiff’s health if it was not
stopped.
5.

CONCLUSION
On the undisputed facts presented, summary judgment is

appropriate in Defendant’s favor on Plaintiff’s claim against him. The Court
must, therefore, grant Defendant’s motion and dismiss this action with
prejudice.1
Accordingly,
IT IS ORDERED that Defendant Dr. Salem Syed’s motion for
summary judgment (Docket #35) be and the same is hereby GRANTED;

Plaintiff filed a letter with the Court on August 20, 2018, long after his
response period had closed on the motion for summary judgment. (Docket #49).
In the letter, Plaintiff states that he believes he was mistakenly allowed to proceed
against the wrong defendant. Id. In the screening order, Magistrate Judge Jones
dismissed Dr. Manlove because, according to Plaintiff’s allegations, it appeared
that Manlove had helped Plaintiff by restarting Plaintiff’s pain medication. (Docket
#12 at 7). Plaintiff now says this was erroneous, and that it was Manlove who
stopped his pain medication. (Docket #49). He asks that the Court substitute
Manlove as the defendant. Id. On November 6, 2018, Plaintiff filed a proposed
amended complaint naming Manlove as a defendant. (Docket #53).
1

The Court will deny Plaintiff’s attempt to sue Manlove in this lawsuit for
two reasons. First, the screening order was entered almost a year before Plaintiff’s
letter was received. Plaintiff had ample time to discover any issues with the
screening of his lawsuit and to file an amended complaint if necessary. That time
has long since passed. Second, as Defendant indicates in his reply, Manlove
properly discontinued Plaintiff’s pain medication because Plaintiff was not
complying with his treatment regimen. This fact is undisputed and would warrant
judgment in Manlove’s favor even if he was a named defendant.

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IT IS FURTHER ORDERED that Plaintiff’s Eighth Amendment
claim against Defendant Dr. Salem Syed be and the same is hereby
DISMISSED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 30th day of November, 2018.
BY THE COURT:

____________________________
J. P. Stadtmueller
U.S. District Judge

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