Frutiger v. Wisconsin Department of Corrections et al
Filing
46
DECISION AND ORDER signed by Chief Judge William C Griesbach on 12/28/2018 Granting 21 , 27 Motions for Summary Judgment. This case is DISMISSED. The Clerk is directed to enter judgment accordingly. (cc: all counsel), via US Mail to Plaintiff (Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMES FRUTIGER,
Plaintiff,
v.
Case No. 17-C-1114
DR. WILLIAM F. MCCREEDY,
DR. WILLIAM B. KELLEY,
& DR. BARBARA WEBER,
Defendants.
DECISION AND ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT
On August 11, 2017, Plaintiff James Frutiger, a prisoner currently serving a state sentence
at Kettle Moraine Correctional Institution (KMCI), filed this pro se lawsuit pursuant to 42 U.S.C.
§ 1983, alleging that Defendants were deliberately indifferent to his serious medical needs—a
rash—in violation of the Eighth Amendment. ECF No. 1. In March 2018, Defendants filed motions
for summary judgment arguing their medical care of Frutiger was not deliberately indifferent. ECF
Nos. 21, 27. These motions have been fully briefed. For the reasons expressed below, Defendants’
motions for summary judgment will be granted and the case will be dismissed.
I. CIVIL LOCAL RULE 56
Before I turn to the facts of this case, I must first address Defendants’ argument that Frutiger
has failed to properly respond to their proposed findings of fact, pursuant to Civil Local Rule
56(b)(2)(B), and their subsequent requests that all their facts be deemed admitted as uncontroverted
for the purpose of summary judgment under Civil Local Rule 56(b)(4). See Weber’s Reply Brief
in Supp., ECF No. 41 at 1; State Defs.’ Reply Brief in Supp., ECF No. 43 at 1. Rather than respond
to Defendants’ proposed findings of fact, Frutiger responded that Defendants’ findings of facts were
“inconsistent” with facts he set forth in reply to their affidavits, thus summary judgment should be
denied. Pl.’s Resp. to PFOF, ECF Nos. 35-1, 38. Frutiger also filed responses to the portions of
Defendants’ affidavits that he disagreed with. Pl.’s Resp. to Affs., ECF Nos. 36, 39, 40. Frutiger’s
responses were not factual disputes, but rather disputes about how he interpreted the facts discussed
in each affidavit. See, e.g., ECF No. 35 at 2 (“She says that I stated my rash was likely an allergic
reaction because I’ve previously experienced allergic skin reaction to laundry soaps and fabric
softeners. I don’t recall saying that. I remember telling her that I tried different deodorant, bars of
soap . . .”); ECF No. 39 at 1 (“How can he say that he is not deliberate[ly] indifferent if he reviewed
the records?”); ECF No. 40 at 1 (“Dr. Kelley states there was no rash or bumps noted. Why would
they give me anti-fungal cream?”).
Under Federal Rule of Civil Procedure 56, a party asserting a factual dispute must support
the assertion by “citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations . . . ,
admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). A court may
rigorously enforce compliance with its local rules governing summary judgment. See, e.g., Stevo
v. Frasor, 662 F.3d 880, 886–87 (7th Cir. 2011).
Because Frutiger is proceeding pro se, I will construe what he has filed as favorably as the
record and Local Rule 56 allow. Although Frutiger has offered no affidavits or declarations, he has
submitted copies of his medical records, Health Service Request (HSRs), and Inmate Requests. See
ECF Nos. 1-1; 1-2; 1-3; 1-4; 1-5; 1-6; 36-1. Thus, to the extent Frutiger’s disputes are supported
by the record or Frutiger could properly testify to the matter asserted, the fact will be considered
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disputed. However, to the extent that Frutiger’s “disputes” are unsupported by the record, I will
deem these facts admitted for the purpose of deciding summary judgment. See Civil L.R. 56(b)(4).
On June 20, 2018, Frutiger filed a letter requesting to amend his responses to the proposed
findings of fact because he was not aware that he had “messed it up” until he read Defendants’ reply
briefs. ECF No. 44. This letter, however, was sent over six weeks after Defendants filed their reply
briefs, and Frutiger gives no explanation for the delay. Additionally, Frutiger failed to reproduce
the entire findings of fact as amended, which the Civil Local Rules require when moving to amend,
or even to explain what changes he would make or what he would do differently. See Civil L.R.
15.
I find that granting Frutiger leave to amend his findings of facts would be prejudicial to
Defendants because Frutiger waited over six weeks to ask for leave to amend. It would also require
briefing to be reopened on two motions that were fully briefed, increasing the costs to all parties and
delaying the ultimate resolution of the case. Despite Frutiger’s allegation that he was unaware he
needed to submit findings of fact, I note that Frutiger received copies of Civil Local Rule 56 from
both Defendants, which detailed the process for presenting and responding to Defendants’ proposed
facts. ECF No. 21, 27. Therefore, Frutiger’s request to amend his findings of facts is denied. With
that in mind, I now turn to the material facts.
II. BACKGROUND
A. Frutiger’s Medical Treatment
Frutiger was an inmate at KMCI during all relevant times. State Defs.’ Proposed Findings
of Fact (SDPFOF), ECF No. 29, at ¶ 1. Dr. William Kelley is a physician at KMCI. Id. at ¶ 2. Dr.
McCreedy is the health services manager at KMCI. Id. at ¶ 3. As health services manager, Dr.
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McCreedy does not regularly or routinely provide direct treatment to inmates and did not provide
direct medical treatment to Frutiger at any point. Id. at ¶¶ 6–7. Dr. Kelley and Dr. McCreedy are
employed by the Wisconsin Department of Corrections. Dr. Barbara Weber is a locum tenens
physician with LT Medical, LLC and provides contract services to clients of LT Medical. Webers’
Proposed Findings of Fact (WPFOF), ECF No. 23 at ¶¶ 1–2. As locum tenens physician, she was
assigned to provide contract physician services at KMCI from November 21, 2016, until shortly
after March 7, 2017, when she was transferred to another state prison. Id. at ¶¶ 3–4, 50.
On May 12, 2016, Frutiger was transferred to KMCI. SDPFOF at ¶ 10. A KMCI nurse
conducted a transfer screening and no significant medical illnesses were discussed. Id. On July 12,
2016, Frutiger submitted an HSR complaining of an itchy and dry scalp and mustache. Id. at ¶ 11.
He also noted that he thought he had bites or something that itched on his leg. Id. at ¶ 12. On July
13, 2016, a nurse saw Frutiger about his HSR and noted that Frutiger had a reddened area on his
upper lip and mustache and that he had scattered red spots on his lower extremities, which appeared
to be small papules that had been scratched open. Id. at ¶ 14. Frutiger was given dry scalp
shampoo, anti-itch location, and ointment. Id. at ¶ 15. The nurse advised Frutiger to keep his
fingernails short to avoid scratching and to increase his water consumption. Id. at ¶ 16. Frutiger
made no further complaints about itching until September. Id. at ¶ 18.
On September 18, 2016, Frutiger submitted an HSR complaining that his rash was getting
worse. Id. at ¶ 18. The following day, Frutiger was seen by nursing staff, received hydrocortisone,
and was scheduled to be seen by the physician. Id. at ¶ 20. On September 28, 2016, Frutiger
submitted another HSR asking to be seen again about his rash and complaining that the anti-itch
creams were not working. Id. at ¶ 21. On September 29, 2016, Dr. Kelley met with Frutiger to
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address his rash complaint. During the examination, Dr. Kelley noted that Frutiger had tiny water
vesicles that itched on his feet, extremities, abdomen, and upper lip. Id. at ¶ 23. Dr. Kelley
observed that, while the rash was similar to scabies, the spacing between the affected areas seemed
too far apart to be scabies, since scabies usually appear in a linear fashion, approximately one
millimeter or two apart. Id. at ¶¶ 24–25. As a result, Dr. Kelley believed the rash was not scabies,
but rather a non-specific eczematoid rash of the trunk and extremities. Id. at ¶¶ 26, 28. Dr. Kelley
continued the anti-itch shampoo and conditioner and prescribed a steroid cream for the rash. Id. at
¶ 30. He also ordered selenium sulfide lotion 2.5% to treat Frutiger’s itchy, dry scalp. Id. at ¶ 33.
On October 16, 2016, Frutiger submitted another HSR asking to be seen by the doctor for
his rash. Id. at ¶ 35. A nurse saw Frutiger the next day and recorded no indication of a rash or
bumps. Id. at ¶ 36. The nurse noted, instead, that Frutiger had significant redness from itching and
that Frutiger reported he was sweating a lot. Frutiger was given an anti-fungal cream to use until
a physician could see him. Id. at ¶¶ 36–37. On October 22, 2016, another nurse saw Frutiger about
his rash, which Frutiger suspected was related to a new medication, Lamotrigine, that he began in
June. Id. at ¶ 38. The nurse noted that Frutiger’s rash was not getting worse and that he remained
on the list to be seen by a physician for evaluation. Id. at ¶ 39. On October 25, 2016, Dr. Syed saw
Frutiger for his rash complaints. Id. at ¶ 40. Dr. Syed noted Frutiger had only a couple of small
bumps that appeared to be folliculitis or mosquito bites. Id. at ¶ 42.
In October 2016, Dr. Kelley went on medical leave and Dr. Weber took over as Frutiger’s
primary treatment provider. Id. at ¶ 44. On November 23, 2016, Dr. Weber saw Frutiger for his
continued complaints of a rash. WPFOF at ¶ 17. Frutiger complained of an itchy rash and reported
he had tried a variety of skin creams unsuccessfully. Id. at ¶¶ 17–18. Dr. Weber examined Frutiger
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and noted “excoriated eschars and pustules.” Id. at ¶ 20. She subsequently diagnosed Frutiger with
a “generalized overall pruritic rash consistent with scabies,” and prescribed a two-week dose of
Permethrin cream, a scabies treatment, and hydroxyzine cream. Id. at ¶¶ 21–22, 24.
On November 29, 2016, Dr. Weber saw Frutiger again to address his itchy skin, his request
to see a dermatologist, as well as his complaints of back pain and itchy eyes. Id. at ¶ 28. Dr. Weber
physically examined Frutiger and determined that because he had not yet completed his prescribed
scabies treatment, he was not an appropriate candidate for referral to an outside dermatologist. Id.
at ¶¶ 29, 31.
On December 12, 2016, Frutiger filed another HSR about his rash. SDPFOF at ¶ 57.
Frutiger was seen by nursing staff, who observed evidence of red raised bumps, which were irritated
from scratching in some areas. Id. at ¶ 58. On December 16, 2016, Dr. Weber saw Frutiger again
primarily for back pain. WPFOF at ¶¶ 33, 35. Dr. Weber took a medical history from Frutiger and
performed a physical examination. Id. at ¶ 34. Frutiger did not request a dermatologist referral at
this appointment. Id. at ¶ 36. Dr. Weber observed “small pin point excoriation sparsely scattered
on legs, feet, arms and torso,” which were consistent with fingernail scratch marks. Id. at ¶ 37.
Even though Dr. Weber spotted the scratch marks, the examination did not reveal any rash or
physical presentation that was similar to the rash she observed before Frutiger began scabies
treatment. Id. at ¶ 38. Frutiger suggested that the residual itching may be due to an allergic
reaction. Id. at ¶ 36. Because there were no objective signs of a skin condition meriting referral,
Dr. Weber did not believe a referral to an outside dermatologist was appropriate. Id. at ¶ 39.
On March 3, 2017, Frutiger filed an HSR asking Dr. Weber to send him to a dermatologist.
SDPFOF at ¶ 64. Dr. Weber saw Frutiger on March 7, 2017, to address Frutiger’s request for pain
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medication for his back. WPFOF at ¶ 44. During his physical examination, Dr. Weber did not
observe an objectively appreciable rash. Instead, she noted sparsely-scattered excoriated papules
similar to what she had observed at the December 12 visit, but inconsistent to the rash Frutiger
presented with on November 23. Id. at ¶ 46. Frutiger again reported that his rash “comes and
goes,” but that the rash was good right now compared to previous times. Id. at ¶ 45. Because Dr.
Weber observed no appreciable rash, and Frutiger reported the rash was fine, Dr. Weber found that
Frutiger was not an appropriate candidate for a dermatology referral. Id. at ¶ 48. This was the last
time Dr. Weber treated Frutiger. Id. at ¶ 49.
On April 19, 2017, Dr. Kelley saw Frutiger for complaints of back pain and his continued
rash. SDPFOF at ¶ 69. Dr. Kelley noted that, during his physical examination, Frutiger picked at
his hands and rubbed his hands through his hair. Id. at ¶ 74. Dr. Kelley continued Frutiger’s
prescription of selenium sulfide lotion for the itching. Id. at ¶ 75. On May 3, 2017, Frutiger filed
an HSR requesting to be seen by staff. When he was seen by the nurse, Frutiger requested a referral
to a dermatologist for his rash. Id. at ¶ 77. The nurse asked if Frutiger used the selenium sulfide
lotion, and Frutiger responded that he did not. Id. at ¶ 78. The nurse instructed him to follow the
directions provided for the lotion. Id. at ¶ 79.
On July 6, 2017, Dr. Kelley saw Frutiger again for his skin. Id. at ¶ 80. Dr. Kelley noted
that Frutiger had an unsuccessful scabies treatment and that the skin lesions were most prominent
on Frutiger’s feet. Id. at ¶¶ 80–82. Based on his physical examination, Dr. Kelley believed the itchy
skin could have been caused by a possible fungus, such as athlete’s foot, or contact dermatitis. Id.
at ¶¶ 84–85. He prescribed Frutiger a foot fungal cream to address the issue. Id. at ¶ 86.
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On August 8 and October 11, 2017, Dr. Kelley saw Frutiger for back complaints and to
review an MRI, respectively. Frutiger did not raise any dermatological issues at either appointment.
Id. at ¶¶ 87–89. Dr. Kelley noted Frutiger continued to pick at his skin during these visits. Id. at
¶ 90.
On November 15, 2017, Dr. Kelley met with Frutiger about the dermatological issues.
Frutiger reported that the rash was comprised of nodules that tended to arise under the skin and
seeped when he scratched them open. Id. at ¶¶ 91–92. Frutiger reported that hydroxyzine helped
but did not solve the problem. Id. at ¶ 93. Dr. Kelley concluded Frutiger was now an appropriate
candidate for a dermatologist referral, as none of the conservative treatments had worked and the
scabies treatment was unsuccessful. Id. at ¶ 94. Dr. Kelley was concerned Frutiger had Prurigo
Nodularis, Picker’s disease, or some other type of neurodermatitis. Id. at ¶ 95.
On December 21, 2017, Frutiger saw Dr. James Schuster at the Fond du Lac Regional
Dermatology Clinic. Id. at ¶ 96. Dr. Schuster noted a variety of treatments had been tried
unsuccessfully and performed a skin scraping, which revealed scabies microscopically and
clinically. Id. at ¶¶ 97–98. Dr. Schuster recommended three doses of permethrin cream and a single
dose of invermectin, which was implemented by Dr. Kelley. Id. at ¶ 100. Dr. Kelley ordered
another follow up visit with Dr. Schuster, which occurred on January 23, 2018. Id. at ¶ 102. Dr.
Schuster noted that while the skin was improved the rash was not gone. Dr. Schuster noted Frutiger
had excoriations on his face, scalp, trunk, and extremities with a few pustules on his back. Id. at
¶ 103. Dr. Schuster suspected the pustules were from folliculitis, but ordered another dose of
permethrin and invermectin to eliminate any remaining possibility of scabies. Id. at ¶¶ 103–04.
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B. Frutiger’s Complaints to Dr. McCreedy
Frutiger complained about the treatment he received from Drs. Weber and Kelley to the
HSU manager, Dr. McCreedy, primarily through information and interview request forms. On
January 18 and 21, 2017, Frutiger filed information and interview requests stating he had asked Dr.
Weber for a skin biopsy or dermatology appointment, but that Dr. Weber indicated nothing more
could be done. Id. at ¶ 110. Dr. McCreedy responded that Frutiger’s physician had made a medical
determination about what the appropriate treatment was, but if Frutiger’s condition changed, he
could request a sick call appointment for reevaluation. Id. On February 24, Frutiger filed an
information and interview request, alleging a conflict of interest with Dr. Weber and asking to be
switched physicians. Id. at ¶ 111. Dr. McCreedy reviewed Frutiger’s medical file, found no conflict
of interest, and informed Frutiger that there was no medical reason to switch physicians. Id.
On April 22, 2017, Frutiger filed another information and interview request concerning an
unpleasant interaction that arose when Frutiger tried to bring up several medical issues to Dr. Kelley
that were unrelated to the medical reason the appointment was scheduled for. Id. at ¶¶ 113–14. Dr.
McCreedy reviewed Frutiger’s medical records and explained that the protocol required staff to only
address the medical problem identified in the HSR because addressing unidentified medical issues
caused delays in the physician’s schedule. Id. Dr. McCreedy advised Frutiger to request an
additional sick call so that medical staff could address any additional medical concerns. Id. at ¶ 115.
Lastly, Frutiger filed an interview and information request in May 2017, asking to be sent to a
dermatologist. Id. at ¶ 120. Dr. McCreedy responded that this request would need to be considered
by a physician and advised Frutiger to submit a request for a sick call. Id.
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III. LEGAL STANDARD
Under the Federal Rules of Civil Procedure, summary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with any affidavits, show
that there is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). “[T]he plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317 (1986).
“At the summary judgment stage, the facts must be viewed in the light most favorable to the
nonmoving party only if there is ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372,
380 (2007) (citing Fed. R. Civ. P. 56(c)). However, “when the moving party has carried its burden
under Rule 56(c), its opponent must do more than simply show that there is some metaphysical
doubt as to the material facts . . . . Where the record is taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)). “The mere
existence of some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
Summary judgment is “not a dress rehearsal or practice run; it is the put up or shut up
moment in a lawsuit, when a party must show what evidence it has that would convince a trier of
fact to accept its version of the events.” Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (citing
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Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)). The court is not required
to search through the record to make an argument on behalf of a party. See Corley v. Rosewood
Care Ctr., 388 F.3d 990, 1001 (7th Cir. 2004) (citing Albrechtson v. Bd. of Regents of Univ. of Wis.
Sys., 309 F.3d 433, 436 (7th Cir. 2002) (“Judges are not like pigs, hunting for truffles buried in the
record.”)). Therefore, “the party bearing the burden of proof on an issue may not simply rest on its
pleadings, but must affirmatively demonstrate, by specific factual showings, that there is a genuine
issue of material fact requiring trial.” First Nat’l Bank v. Lewco Sec. Corp., 860 F.2d 1407, 1411
(7th Cir. 1988). “The mere existence of a scintilla of evidence in support of the plaintiff’s position
will be insufficient; there must be evidence on which the jury could reasonably find for the
plaintiff.” Liberty Lobby, 477 U.S. at 252.
IV. ANALYSIS
A. Deliberate Indifference Standard
The Eighth Amendment prohibits “cruel and unusual punishments.” U.S. Const. amend.
VIII. It imposes a duty on prison officials to take reasonable measures to guarantee an inmate’s
safety and to ensure that inmates receive adequate medical care. Farmer v. Brennan, 511 U.S. 825,
832 (1994). A prison official’s “deliberate indifference” to a prisoner’s medical needs or to a
substantial risk of serious harm violates the Eighth Amendment. Id. at 828; Estelle v. Gamble, 429
U.S. 97, 104–05 (1976). This does not mean, however, that every claim by a prisoner that he has
not received adequate medical treatment states a violation of the Eighth Amendment. An inmate’s
claim for deliberate indifference must establish “(1) an objectively serious medical condition; and
(2) an official’s deliberate indifference to that condition.” Gomez v. Randle, 680 F.3d 859, 865 (7th
Cir. 2012). A plaintiff who complains that a “delay in medical treatment rose to a constitutional
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violation must place verifying medical evidence in the record to establish the detrimental effect of
delay in a medical treatment to succeed.” Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir. 1996).
Thus, for the first element, Frutiger must show that he had an objectively serious medical
condition. Then, for the second element, Frutiger must show that each state official was
subjectively deliberately indifferent to that serious medical condition. Stated another way, Frutiger
must show that each “defendant had actual knowledge of impending harm which he consciously
refused to prevent.” Hill v. Shobe, 93 F.3d 418, 421 (7th Cir. 1996).
Deliberate indifference is a high standard. Ordinary negligence, or even gross negligence,
is not sufficient to establish deliberate indifference. McGill v. Duckworth, 944 F.2d 344, 348 (7th
Cir. 1991). “Mere differences in opinion among medical personnel regarding a patient’s appropriate
treatment do not give rise to deliberate indifference.” Estate of Cole by Pardue v. Fromm, 94 F.3d
254, 261 (7th Cir. 1996). “[D]eliberate indifference may be inferred based upon a medical
professional’s erroneous treatment only when the medical professional’s decision is such a
substantial departure from accepted professional judgment, practice, or standards as to demonstrate
that the person responsible did not base the decision on such a judgment.” Id. at 261–62.
B. Dr. Weber
Frutiger asserts Dr. Weber was deliberately indifferent in her overall treatment of him and
for failing to refer him to a dermatologist. Frutiger’s assertion that Dr. Weber was deliberately
indifferent because she refused to send him to a dermatologist fails as a matter of law. Inmates have
no constitutional right to dictate the course of treatment they receive, such as whether to be seen by
a specialist. Jackson v. Kotter, 541 F.3d 688, 697–98 (7th Cir. 2008). Dr. Weber refused to refer
Frutiger to a specialist because, after her multiple physical examinations of him, she found no
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medical reason warranted a referral. By Frutiger’s own account, his condition changed over time.
At times it improved, and at other times it became more symptomatic. Dr. Weber did not ignore
his complaints; she continued to try different therapies in an effort to provide him relief. Frutiger
offers no evidence that Dr. Weber’s medical decision was wrong or inappropriate or beyond
reasonable standards of care. Instead, he challenges her refusal to give in to his demands to see a
dermatologist. But disagreement with her medical decision is insufficient to establish a deliberate
indifference claim. Estate of Cole by Pardue, 94 F.3d at 261 (“Mere differences in opinion among
medical personnel regarding a patient’s appropriate treatment do not give rise to deliberate
indifference.”).
Frutiger argues that Dr. Weber should have known to send him to a dermatologist because
he was ultimately diagnosed with scabies. However, Dr. Weber treated Frutiger in October 2016
through March 2017. Frutiger was not ultimately diagnosed with scabies until December 2017.
Frutiger offers no evidence that he had scabies while Dr. Weber was treating him. Instead, the only
evidence in the record suggests otherwise, as Dr. Weber ordered him a scabies treatment in
November 2016 that was ultimately unsuccessful. There is no indication that Dr. Weber was aware
that Frutiger may have had scabies. Therefore, her medical decision to treat his rash without
referring him to a dermatologist was not deliberately indifferent.
Lastly, Frutiger points to Dr. Weber’s statement that there was nothing more she could do
as deliberate indifference. However, the Court must analyze Dr. Weber’s treatment of Frutiger as
a whole. Gutierrez v. Peters, 111 F.3d 1364, 1375 (7th Cir. 1997) (“[W]e must examine the totality
of an inmate’s medical care when considering whether that care evidences deliberate indifference
to his serious medical needs.”). When Dr. Weber responded there was no further treatment, she had
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physically examined Frutiger and noticed no appearances of a rash; instead, she noted only physical
markings that appeared to be fingernail scratches. The lack of noticeable rash was also noted by a
nurse in the following weeks. Frutiger, himself, suggested that the rash was caused by an allergic
reaction. Dr. Weber’s medical opinion that the rash was an allergic reaction and no further
treatment was needed or available was a medical decision. At most, Dr. Weber’s failure to
recognize the rash as something more would amount to medical malpractice. Medical malpractice,
however, is not deliberate indifference. McGill, 944 F.2d at 348.
In addition, Dr. Weber did not refuse to treat Frutiger after she made the statement. Instead,
she continued to treat Frutiger and saw him again in March 2017 to try to resolve the rash. During
the March 2017 visit, Frutiger remarked that the rash was doing well at that time compared to what
it had been in the past. In total, Dr. Weber saw Frutiger four times over her almost five month
employment at KMCI. During that time, she ordered scabies treatment. After the treatment was
performed, she observed no physical appearances of a rash and concluded the itching was from an
allergic reaction. In order for a medical professional to be liable for deliberate indifference to an
inmate’s medical needs, she must make a decision that 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 judgment.” Jackson, 541 F.3d at 698 (citation omitted).
As such, a “medical professional’s treatment decisions will be accorded deference ‘unless “no
minimally competent professional would have so responded under those circumstances.”’” Id.
(quoting Sain v. Wood, 512 F.3d 886, 895 (7th Cir. 2008)).
Frutiger has offered no evidence that Dr. Weber’s treatment was a departure from any
accepted professional judgment, or that no minimally competent professional would have responded
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likewise. In fact, the evidence submitted shows that Dr. Schuster ultimately treated Frutiger with
the same treatment that Dr. Weber prescribed—permethrin cream. Even after Frutiger underwent
Dr. Schuster’s prescribed treatment, the rash continued, and Dr. Schuster believed the rash was
likely folliculitis, not scabies. Given this evidence, no rational factfinder could conclude Dr. Weber
was deliberately indifferent because there is no evidence that her prescribed treatment was a
substantial departure from accepted medical judgment.
C. Dr. Kelley
Frutiger asserts Dr. Kelley was also deliberately indifferent in his treatment. Dr. Kelley saw
Frutiger once in September 2016 when Frutiger first complained of his rash. Dr. Kelley diagnosed
Frutiger’s condition as a non-specific eczematoid rash because he believed the marks were too far
apart to be scabies. Based on this diagnosis, Dr. Kelley prescribed a steroid cream and selenium
sulfide 2.5% lotion. Even if Dr. Kelley was wrong in his diagnosis, Frutiger has offered no
evidence that this was anything more than a mis-diagnosis, which rises to the level of medical
malpractice, not deliberate indifference. McGill, 944 F.2d at 348 (explaining that neither medical
malpractice nor negligence is sufficient to state a claim for deliberate indifference). Nor has he
offered any evidence that this treatment was inappropriate or a substantial departure from
professional judgment. Nothing in his initial treatment of Frutiger supports a claim that he was
deliberately indifferent to his condition. Shortly thereafter, Dr. Kelley left the institution.
When Dr. Kelley returned, Frutiger alleges his treatment was deliberately indifferent because
he underwent a variety of different treatments that had already been tried and were unsuccessful,
including a variety of lotions, creams, hydrocortisone, and anti-fungal creams. Essentially Frutiger’s
argument is that Dr. Kelley was deliberately indifferent because the treatments did not work and
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because he failed to diagnose scabies or refer him to a dermatologist earlier. As already noted,
Frutiger’s disagreement with Dr. Kelley’s course of treatment, alone, is insufficient to establish a
claim of deliberate indifference. Rather, Frutiger needed to adduce evidence that Dr. Kelley’s
treatment was a substantial departure from medical judgment, and he has failed to do so. Frutiger
argues that his ultimate diagnosis of scabies shows that Dr. Kelley was deliberately indifferent in
his treatment of Frutiger.
But Frutiger had already undergone scabies treatment that was
unsuccessful in treating his condition. Given that history, it is not unreasonable for Dr. Kelley to
suspect that there was another cause of Frutiger’s rash. Dr. Kelley’s attempts to treat Frutiger’s rash
through a variety of methods was reasonable, and Frutiger has offered no evidence that it was
inappropriate or a substantial departure from professional judgment. For these reasons, Frutiger’s
claim against Dr. Kelley also fails.
D. Dr. McCreedy
Frutiger asserts Dr. McCreedy was deliberately indifferent to his rash because McCreedy
failed to intervene despite Frutiger’s repeated complaints about the treatment he received. This
claim also fails for several reasons. First, Frutiger has offered no evidence that Dr. McCreedy had
subjective knowledge that Frutiger had a serious medical condition. Although, Frutiger did
repeatedly complain of an itchy rash, Frutiger’s interview requests did not complain of anything
more serious than a rash and did not indicate that he suspected the rash was scabies. Dr. McCreedy
never physically examined Frutiger. While Frutiger was ultimately diagnosed with scabies, which
assuming for argument’s purpose is a serious medical condition, there is no evidence that Dr.
McCreedy had any subjective knowledge that Frutiger had such a condition.
16
Second, Frutiger offers no evidence that Dr. McCreedy was deliberately indifferent to
Frutiger’s complaints. Dr. McCreedy responded to each request, reviewed Frutiger’s medical
records, and deferred to Frutiger’s treating physicians’ treatment plans. Frutiger has offered no
evidence that Dr. McCreedy “had actual knowledge of impending harm which he consciously
refused to prevent.” Hill, 93 F.3d at 421. At most, Frutiger offers evidence that Dr. McCreedy
investigated and responded to Frutiger’s requests, but that Frutiger disagreed with Dr. McCreedy’s
responses. Frutiger’s mere disagreement is insufficient to establish that Dr. McCreedy was
deliberately indifferent.
IV. CONCLUSION
In sum, Frutiger has failed to offer evidence on which a reasonable jury could find that any
of the defendants were deliberately indifferent to his serious medical needs. The State Defendants’
motion for summary judgment (ECF No. 27) and Weber’s motion for summary judgment (ECF No.
21) are therefore GRANTED and this case is DISMISSED. The Clerk is directed to enter
judgment accordingly.
SO ORDERED this 28th day of December, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
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