McCranie v. Sheboygan County Detention Center
Filing
117
DECISION AND ORDER signed by Magistrate Judge William E Duffin on 10/21/2020 GRANTING 97 Defendants Cindy Detienne, Paula Johnson, J Kegler, M L Newby, T Pollock, Mark Richter, K Rieck, M Russ, Paul Schneider, Robert Shaw and John Tellen's Mot ion for Summary Judgment. These defendants are DISMISSED. Defendants Marcia Bauer, Daniel P Hekman, Shelly Noel, Ashley Pfeifer and Deborah Theis's Motion for Summary Judgment 108 is GRANTED IN PART and DENIED IN PART. Summary judgment is GRANTED for Marcia Bauer, Shelly Noel, Deborah Theis and Ashley Pfeifer. These defendants are DISMISSED. Summary judgment is DENIED as to Dr Daniel P Hekman. Plaintiff's claims against Dr Hekman shall proceed. (cc: all counsel) (lz)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
NATHANIEL A. MCCRANIE,
Plaintiff,
v.
Case No. 18-CV-722
SHELLY NOEL, et al.,
Defendants.
DECISION AND ORDER
Plaintiff Nathaniel A. McCranie, a Wisconsin state prisoner, filed this pro se
lawsuit under 42 U.S.C. § 1983. The court screened the complaint and ordered
McCranie to file an amended complaint. (ECF No. 11.) McCranie filed an amended
complaint, which the court screened and allowed him to proceed on Eighth
Amendment claims against Advanced Correctional Healthcare, Inc. (“ACH”), John
and Jane Doe ACH employees, and John and Jane Doe correctional officers. (ECF
No. 13.)
After McCranie identified the parties he wished to sue, the court granted his
motion to recruit counsel. (ECF No. 60.) Recruited counsel submitted a second
amended complaint. (ECF Nos. 65 & 76.) The parties later stipulated to the dismissal
of ACH. (ECF No. 90.)
The correctional officers and ACH employees separately move for summary
judgment. (ECF Nos. 97 & 108.) McCranie, through counsel, opposes both motions,
which are now before this court for resolution.
BACKGROUND
The facts in this section are taken from the defendants’ proposed findings of
fact and declarations in support (ECF Nos. 99–101, 109 & 111); McCranie’s responses
to the defendants’ facts, proposed facts, and declaration in support (ECF Nos. 103 &
113); and the defendants’ responses to McCranie’s proposed facts (ECF Nos. 105 &
114). The court will consider each party’s proposed facts only to the extent they are
supported by evidence in the record and will deem admitted any facts not properly
contested. See Fed. R. Civ. P. 56(c)(1); Civil L. R. 56(b)(1)(C)(i), (b)(2)(B)(i)–(ii), and
(b)(4); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“We have consistently held
that a failure to respond by the nonmovant as mandated by the local rules results in
an admission.”). The court will consider arguments in the supporting memoranda
only to the extent they properly refer to each party’s statement of facts. See Civil L.
R. 56(b)(6).
A. The Parties
McCranie was a convicted felon incarcerated at the Sheboygan County
Detention Center (“SCDC”) for just over two months, from September 12, 2017, to
November 15, 2017. (ECF No. 99, ¶ 1; ECF No. 113-1, ¶ 1 (page 20).) SCDC
Correctional Officers Cindy Detienne, Paula Johnson, Robert Shaw, Paul Schneider,
Mark Richter, M.L. Newby, John Tellen, T. Pollock, J. Kegler, M. Russ, and K. Rieck
2
(collectively, the “Officer Defendants”) worked at SCDC during the time McCranie
was incarcerated there. (ECF No. 99, ¶ 8.)
SCDC consists of a detention center, jail, and juvenile facility. (ECF No. 99,
¶ 4.) McCranie was housed only in the detention center during his incarceration at
SCDC, and the Officer Defendants interacted with him only when they were assigned
to work in the detention center. (Id., ¶¶ 6 & 9.) SCDC contracts with ACH to provide
medical services to inmates. (Id., ¶ 10.) Nurses Marcia Bauer, Shelly Noel, Deborah
Theis, Ashley Pfeifer, and Dr. Daniel Hekman (collectively, the “ACH Defendants”)
worked for ACH at SCDC during the relevant period. (ECF No. 109.)
B. McCranie’s Second Amended Complaint
McCranie alleges that he suffered symptoms of kidney stones between
November 6 and 16, 2017, while an inmate at SCDC. (ECF No. 76, ¶¶ 25–26.) He
alleges he made “numerous oral requests” for treatment to the Officer Defendants
and Nurse Theis from November 5 through 14, 2017, but those defendants failed to
provide him medical attention. (Id., ¶¶ 27–28.) He alleges these defendants merely
told him to fill out a medical request form, which he did, but the forms were not
always available or answered when submitted. (Id., ¶¶ 29–30.)
McCranie further alleges that Nurses Bauer and Noel examined him between
November 6 and 14, 2017, for his complaints of abdominal pain but failed to notify a
physician of his condition and merely advised him to stay hydrated. (ECF No. 76,
¶¶ 31–33.) McCranie alleges that Dr. Hekman never examined, treated, or advised
him about his medications or symptoms. (Id., ¶ 37.) McCranie alleges that Bauer,
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Noel, and Hekman were aware of his preexisting chronic kidney disease. (Id., ¶ 36.)
He alleges that those defendants failed to provide alternative medication when his
prescribed medication caused him additional issues. (Id., ¶ 34.) He alleges that, once
released from SCDC, he had surgery to remove a kidney stone. (Id., ¶ 35.)
McCranie asserts that all defendants failed to provide him adequate medical
care and were deliberately indifferent to his medical needs. (ECF No. 76, ¶¶ 40–41.)
He alleges that, as a result of their deliberate indifference, he suffered pain,
psychological issues, and a future diagnosis of diverticulitis. (Id., ¶ 42.)
C. The Medical Slip Process at SCDC
To obtain medical care at SCDC inmates complete and submit a Medical and
Mental Health Request for Care form, also referred to as a “medical slip.” (ECF
No. 99, ¶ 13.) The medical slips are kept in all housing units at SCDC, or an inmate
may request one from a correctional officer. (Id., ¶ 14.) Medical slips allow SCDC
officers and ACH staff to document an inmate’s request for medical services and the
treatment provided. (Id., ¶ 18.) Unless there is a medical emergency, ACH doctors
and nurses handle inmate medical care. (Id., ¶ 11.) Correctional officers have only
basic first aid and CPR training. (Id., ¶ 12.)
Typically, an inmate describes the medical services desired on a medical slip
and either gives it to an officer or places it in a designated drop box. (ECF No. 99,
¶ 19a.) Officers read the slip to ensure the request is not an emergency and leave it
for ACH staff. (Id., ¶ 19b–c.) ACH staff evaluate the request and either see the inmate
for treatment and explain the treatment provided on the slip, with the date and a
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signature, or respond only in writing if no examination is necessary. (Id., ¶ 19d.)
Officers return the medical slip to the inmate after ACH staff act on it. (Id., ¶ 19e.)
Officers do not write on the medical slips, respond on behalf of ACH employees, or
determine an appropriate course of treatment on a medical slip. (Id., ¶¶ 20–21.)
Officers defer to ACH professionals’ judgment and cooperate with their orders as
needed, including providing inmates prescribed medications or taking basic vitals.
(Id., ¶ 21.)
The Officer Defendants state that an inmate’s verbal request for medical care
is not enough to receive care unless the officer believes the inmate is having a medical
emergency. (ECF No. 99, ¶ 15.) For example, a correctional officer will immediately
call medical staff and “take emergency action as necessary” for an inmate in visible
distress or complaining of chest pain or difficulty breathing. (Id., ¶ 16.) Otherwise,
SCDC officers will direct inmates who verbally request care to fill out a medical slip.
(Id., ¶ 17.) McCranie “disputes that verbal requests for medical care are not sufficient
for putting a prison official on notice of medical conditions and pain,” but he does not
cite any evidence in support of his dispute or dispute that officers will direct inmates
who verbally request care to submit a medical slip. (ECF No. 103, ¶¶ 9–10.)
D. McCranie’s Medical Slips
On October 30, 2017, McCranie submitted a medical slip stating, “IM peeing
blood my left side hurts like hell there is sum really wrong in lot of pain
EMERGENCY.” (ECF No. 99, ¶ 29; ECF No. 100-3 at 2.) The medical slip does not
state the time McCranie submitted it. (ECF No. 100-3 at 2.) A correctional officer
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provided the slip to ACH staff. (ECF No, 99, ¶ 29.) Nurse Bauer saw McCranie at
around 9:45 a.m. that day. (Id., ¶ 30.) She noted that McCranie had a history of
kidney stones and had noticed blood in his urine the day before. (ECF No. 100-5.) She
obtained a urinalysis, which confirmed the presence of blood, protein, and white blood
cells in McCranie’s urine. (Id.; ECF No. 109, ¶ 8.)
Nurse Bauer conferred with Dr. Hekman, who prescribed a one-week course of
antibiotics for a possible urinary tract infection and Tylenol twice a day for pain. (ECF
No. 99, ¶ 31; ECF No. 100-5.) Bauer also advised McCranie to “[d]rink lots of water.”
(ECF No. 99, ¶ 31; ECF No. 100-5.) ACH staff recorded on the October 30, 2017
medical slip having provided this course of treatment. (ECF No. 99, ¶ 32; ECF
No. 100-3 at 2.)
That same day McCranie submitted a second medical slip requesting a new
mattress, reiterating that he was “peeing blood (EMERGENCY),” and asking “what
antibiotics are for and what’s going on nobody talked to me.” (ECF No. 99, ¶ 33; ECF
No. 100-3 at 4.) The medical slip was provided to ACH medical staff, who responded
the next day (November 1, 2017) that no extra mattresses were available and that
the antibiotics were for treatment of a possible kidney stone and urinary tract
infection. (ECF No. 99, ¶ 34; ECF No. 100-3 at 4.)
On November 2, 2017, McCranie submitted another medical slip, stating that
his “pain has not even started to go away antibiotics really dont help [sic],” and the
Tylenol was not enough for his pain. (ECF No. 99, ¶ 35; ECF No. 100-3 at 6.) He also
stated that he was “going to talk to a lawyer making me suffer already.” (ECF
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No. 100-3 at 6.) ACH staff responded the next day (November 3, 2017) that the course
of treatment was “what the jail MD ordered,” that McCranie should complete the
course of antibiotics as prescribed, that results may take time, and that staff could
reevaluate once he had completed the course of antibiotics. (ECF No. 99, ¶ 37; ECF
No. 100-3 at 6.)
On November 6, 2017, McCranie submitted another medical slip, stating that
he had “taken the meds even though they made me crap and made my stomach hurt”
and that both of his sides hurt. (ECF No. 99, ¶ 38; ECF No. 100-3 at 8.) McCranie did
not specify which “meds” made his stomach hurt. (ECF No. 109, ¶ 55; ECF No. 100-3
at 8.) He stated that he had “been told sometimes if there to big kidney stones they
would have to blast them.” (ECF No. 100-3 at 8.)
Nurse Noel responded the same day that she had discussed McCranie’s
treatment with Dr. Hekman, who prescribed Flomax to help McCranie pass the
probable kidney stone. (ECF No. 99, ¶ 39; ECF No. 100-3 at 8.) Noel noted that
McCranie refused her request that he submit to a new urinalysis and told her “you
people are playing games” after she explained that the second urinalysis could
determine whether the previous treatment had improved his condition. (ECF No. 99,
¶¶ 39–40; ECF No. 100-3 at 8; ECF No. 100-6.)
From November 7 to 15, 2017, McCranie generally refused to take the
prescribed Flomax, taking it only once. (ECF No. 109, ¶ 16; ECF No. 111-17.) On
November 8, 2017, he submitted a medical request slip stating that he had a bad
toothache, was vomiting and experiencing “hot & cold swe[a]ts,” and still had kidney
7
pain but did not want to pass his kidney stone while he was experiencing those
symptoms. (ECF No. 99, ¶ 42; ECF No. 100-3 at 9.)
The next day, November 9, 2017, Nurse Bauer saw McCranie for his
complaints of a toothache and headache. (ECF No. 99, ¶ 43.) She consulted with
Dr. Hekman, who prescribed a soft diet and ibuprofen. (Id.; ECF No. 100-7 at 1.)
Nurse Bauer recorded that prescription on the November 8, 2017 medical slip. (ECF
No. 99, ¶ 44; ECF No. 100-3 at 9.) The ACH Defendants state that McCranie did not
complain of kidney issues during the November 9, 2017 appointment. (ECF No. 109,
¶ 20.) The medical records show a checked box next to “No other complaints by
patient.” (ECF No. 111-19 at 1.) McCranie states he was seen “for his principal
complaint of a toothache and headache and Nurse Bauer did not examine or treat
Plaintiff for kidney stone complaints on this date.” (ECF No. 113-1, ¶¶ 20 & 7
(page 21).) But McCranie does not affirmatively state whether he complained to
Nurse Bauer about kidney pain during the November 9, 2017 appointment.
Sometime between midnight and 4:15 a.m. on November 10, 2017, McCranie
submitted another medical slip, stating that the nurses could not fix his issues and
he “need to be taken to hospital no joke no more feeding me meds and to drink water
antibiotics I was given made things worse.” (ECF No. 99, ¶ 45; ECF No. 100-3 at 10.)
In the section of the medical slip where the inmate is to designate the type of service
requested, McCranie scribbled a dark “X” next to “Doctor” and wrote “Not” and drew
an arrow pointing to “Nurse.” (ECF No. 100-3 at 10.) Lieutenant Detienne reported
to SCDC for duty at 2:45 a.m. (ECF No. 100-8 at 1.) During her shift change Sergeant
8
Schneider told Detienne that McCranie had verbally complained about kidney stones
but refused to move to an observation cell. (ECF No. 99, ¶ 46; ECF No. 100-8 at 1.)
Detienne received a call at 4:15 a.m. from another correctional officer that
McCranie had continued to complain of pain and believed he had kidney stones. (ECF
No. 99, ¶ 47; ECF No. 100-8 at 1.) Detienne immediately went to McCranie’s cell and
asked him about his complaints and medical history, physically examined him, and
had him provide a urine sample. (ECF No. 99, ¶ 48.) Detienne previously worked as
an Emergency Medical Technician and believed she could conduct a basic physical
examination of McCranie. (Id., ¶ 49.) McCranie told Detienne he had burning pain in
his lower abdomen and “has not voided his bladder” since the previous morning. (ECF
No. 100-8 at 1.) She noted his urine was “tea colored w/fle[cks] of a bright red
substance that looked like blood.” (ECF No. 99, ¶ 48; ECF No. 100-8 at 1.)
At around 6:00 a.m. the same day Detienne consulted with Dr. Hekman and
arranged for a Sheboygan County Sheriff’s Department patrol car to transport
McCranie to a local hospital’s emergency department. (ECF No. 99, ¶ 50.) A doctor at
the hospital (who is not a defendant) noted McCranie’s complaints of sharp pain,
inability to urinate, and hematuria (blood in his urine). (ECF No. 101-1 at 1.)
McCranie reported no other complaints but told the doctor he had vomited the day
before. (Id.) The doctor performed a CT scan on McCranie, which revealed a 9mm
kidney stone on his left side. (ECF No. 111-33 at 8.) He provided McCranie fluids,
prescribed Flomax to help him pass the stone and Toradol for pain, and concluded
that McCranie would “likely need stone retrieval.” (ECF No. 99, ¶ 51; ECF No. 101-1;
9
ECF No. 111-24; ECF No. 111-33 at 10.) The doctor scheduled McCranie for a
November 13, 2017 follow-up with Dr. Jeffrey Welsch, a urologist (also not a
defendant). (ECF No. 99, ¶ 51; ECF No. 101-1.) McCranie was not admitted to the
hospital but was sent back to SCDC. (ECF No. 99, ¶ 51.)
McCranie returned to SCDC early that afternoon, and Nurse Noel recorded his
diagnosis, examined him, and instructed him to hydrate and inform staff if his
symptoms worsened. (ECF No. 99, ¶ 52; ECF No. 100-9.) At that time McCranie did
not complain of kidney pain. (ECF No. 109, ¶ 29.) Noel contacted Dr. Hekman to
inform him of the hospital’s diagnosis. (Id., ¶ 30.) Dr. Hekman ordered medical staff
to continue the Flomax, discontinued ibuprofen, and prescribed Tylenol for pain. (Id.)
Dr. Hekman states that ibuprofen can cause ulcers and kidney damage, and the
prescribed Tylenol “was comparable in terms of pain control” to the Toradol the
hospital prescribed. (Id.; ECF No. 111-20.) Because McCranie was seen at the
hospital and by Nurse Noel the same day, ACH staff did not fill out a written response
on McCranie’s November 10, 2017 medical slip. (ECF No. 99, ¶ 53.)
McCranie continued to refuse to take the prescribed Flomax. (ECF No. 109,
¶ 32; ECF No. 111-17.) On November 13, 2017, he was taken to a clinic in Plymouth,
Wisconsin, for his urology appointment with Dr. Welsch. (ECF No. 99, ¶ 54.)
Dr. Welsch noted that McCranie previously was diagnosed with a kidney stone in
June 2017, “but he walked out of the ER and was not seen by the doctor.” (ECF
No. 101-2 at 1.) Dr. Welsch recommended surgical removal of McCranie’s kidney
stone. (ECF No. 99, ¶ 54; ECF No. 101-2 at 1.) McCranie signed a written consent to
10
the surgery, which was scheduled for November 16, 2017. (ECF No. 99, ¶¶54–55; ECF
No. 101-2 at 3.) McCranie continued to complain of pain, but Dr. Welsch did not order
additional pain medication and told McCranie, “I don’t have any control over that.”
(ECF No. 109, ¶ 33; ECF No. 101-2 at 1.)
Nurse Bauer informed McCranie of his scheduled appointment when he
returned to SCDC from the clinic. (ECF No. 99, ¶ 55; ECF No. 100-10.) She also
conferred with Dr. Hekman, who ordered that staff continue McCranie’s Tylenol
prescription until his scheduled surgery. (ECF No. 109, ¶ 35; ECF No. 111-29.)
McCranie did not complain about pain at that time. (ECF No. 109, ¶ 34.)
The next day, November 14, 2017, Nurse Noel examined McCranie for his
reports of increased pain when he yawned or breathed deeply. (ECF No. 99, ¶ 56; ECF
No. 100-11.) She told him to continue hydrating and attempted to reach Dr. Welsch
but was only able to leave a voicemail message for him. (ECF No. 99, ¶ 56; ECF
No. 100-11.) McCranie did not receive further treatment at SCDC and was released
from custody early the next morning, November 15, 2017. (ECF No. 99, ¶ 57; ECF
No. 100-1.)
Dr. Hekman testified at a deposition that, as a correctional physician, he does
not need to personally evaluate a patient in order to render appropriate care. (ECF
No. 109, ¶ 52; ECF No. 111-9 at 32:2–11.) Dr. Hekman also testified that he had been
informed that McCranie had a history of substance addiction, which he “may have
considered” in treating McCranie’s pain. (ECF No. 114, ¶ 6; ECF No. 111-9 at 41:4–
11.)
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E. McCranie’s Post-release Medical Treatment
On November 15, 2017, after his release from SCDC, McCranie went to the
emergency department at St. Nicholas Hospital in Sheboygan, where he was treated
for complaints of abdominal pain. (ECF No. 99, ¶ 58; ECF No. 101-3.) The next day,
November 16, 2017, McCranie had his scheduled surgery at Aurora Sheboygan
Memorial Medical Center, where Dr. Welsch removed the kidney stone. (ECF No. 99,
¶ 59; ECF No. 101-4.)
F. Expert Witnesses
McCranie and the ACH Defendants each submitted reports from medical
experts.
1. McCranie’s Expert
McCranie retained Dr. Justin Ngene, a board-certified physician of internal
medicine, who provided a case report reviewing McCranie’s SCDC and medical
records and summarizing his findings. (ECF No. 111-10 at 1–2.) Dr. Ngene concluded
that, given McCranie’s multiple complaints of pain, a physician should have
evaluated him sooner after he had completed the first round of antibiotics. (Id. at 2.)
He opined that McCranie should have undergone a CT scan on November 6, 2017, to
address his complaints of continued pain. (Id. at 3.) Dr. Ngene further opined that
McCranie’s pain “was not adequately or timely addressed” and “[a]ttempts should
have been made to get a surgical intervention sooner than planned” after he was
diagnosed with the 9mm kidney stone. (Id. at 3–4.) He concluded that the delay in
12
treatment and surgery “likely subjected Mr. McCranie to unnecessary and prolonged
serious pain despite the availability of obvious treatments.” (Id. at 4.)
Dr. Ngene also testified about his report and findings. He stated that
McCranie’s history as “a poly-substance drug abuser” likely made him a “difficult
patient.” (ECF No. 111-11 at 54:18–55:1.) He stated it would be difficult to rely on
McCranie’s honesty or self-reports of pain and that it was important to avoid giving
him narcotics. (Id. at 57:16–58:2.) Yet he also testified that McCranie’s “drug-seeking
behavior clouded a lot of opinions that were made during this whole process.” (Id. at
99:23–25.) For example, he testified that, given McCranie’s history, he should have
received different pain medication from November 10 to 16, 2017, and an earlier
surgical removal of the kidney stone “would have saved him a lot of pain.” (Id. at
55:5–11.) Dr. Ngene testified that he “would have prescribed Oxycodone or something
similar” for McCranie. (Id. at 97:7–9.)
Dr. Ngene testified that Dr. Hekman’s prescription of Flomax was a reasonable
treatment for kidney stones. (ECF No. 111-11 at 60:19–61:22.) He testified that
McCranie should not have refused to take Flomax but left open the possibility that
McCranie refused to take it because it had not helped in the past. (Id. at 62:4–25.)
But he testified it was unreasonable for McCranie to refuse Flomax after doctors at
both the jail and hospital prescribed it. (Id. at 84:1–5.) Dr. Ngene testified that it was
reasonable to discharge McCranie from the hospital after he was taken there on
November 10, 2017, if he were given adequate pain medication for his diagnosed
13
kidney stone. (Id. at 70:17–20.) He did not believe the surgery to remove his stone
was emergent but testified that “the pain control is the issue.” (Id. at 78:15–17.)
Dr. Ngene testified that he has no experience in correctional medicine. (ECF
No. 111-11 at 53:9.) When asked if he felt qualified to testify about the standard of
care for a physician practicing correctional medicine, he stated, “Maybe no.” (Id. at
53:19-23.) He also testified that he did not feel qualified to testify about the standard
of care for a reasonable nurse practicing in a correctional setting. (Id. at 54:7–10.)
Dr. Ngene had no opinion of the treatment Nurses Noel, Bauer, Theis, or Pfeifer
provided to McCranie between October 30 and November 15, 2017. (Id. at 52:15–
53:1.) He offered no criticism of Dr. Hekman’s initial treatment decisions of McCranie
from October 30, 2017, or ACH staff decisions in response to McCranie’s November 2,
2017 medical slip. (Id. at 58:8–59:15.) He testified that it was reasonable not to send
McCranie for immediate surgery or hospitalization and reasonable to assume he did
not need additional pain medication when he returned from the hospital on
November 10, 2017. (Id. at 81:21–82:5.) Dr. Ngene testified that Nurse Noel acted
reasonably when she called Dr. Welsch about McCranie’s reports of pain on
November 14, 2017, because he was scheduled for surgery with Dr. Welsch. (Id. at
85:5–19.) Dr. Ngene had no opinion about the actions of the Officer Defendants. (Id.
at 98:4–10.)
2. The ACH Defendants’ Expert
The ACH Defendants submitted a report from Dr. Nejd Alsikafi, a boardcertified urologist. (ECF No. 111-15.) Dr. Alsikafi agreed with Dr. Ngene that
14
McCranie has “a complicated past medical history” that includes polysubstance abuse
and narcotic-seeking behaviors. (Id. at 2.) Dr. Alsikafi summarized McCranie’s
medical slips and the treatment he received at SCDC. (Id. at 2–3.) He opined that
medical staff at SCDC upheld the proper standard of care and timely and properly
addressed McCranie’s complaints. (Id. at 3–4.) He agreed with Dr. Hekman that a
correctional physician would not need to be on site to evaluate patients “as long as a
chain of command with the physician extender and the physician be in place.” (Id.
at 4.) He stated that chain of command was in place between Nurse Bauer and
Dr. Hekman. (Id.) He noted that only when “conservative measures failed” did staff
send McCranie to a hospital, where he was diagnosed with a kidney stone but not
hospitalized and returned to the jail to continue the same course of treatment ACH
staff had provided. (Id. at 3–4.) Dr. Alsikafi disagreed with Dr. Ngene’s conclusion
that there was a delay in McCranie’s diagnosis and that he should have undergone a
CT scan on November 6, 2017. (Id. at 4.) He also disagreed that ACH staff were
deliberately indifferent to McCranie’s medical issues and stated that any delay in his
treatment “cannot be blamed on the medical providers of the jail.” (Id.)
G. Grievances
All new inmates are given an SCDC Inmate Handbook, which contains
information about procedures at SCDC, including the inmate grievance process. (ECF
No. 99, ¶ 3; ECF No. 109, ¶ 60.) The Inmate Handbook instructs inmates to attempt
to informally resolve a problem with an officer before submitting a grievance. (ECF
No. 100-12 at 5.) If that is unsuccessful an inmate may complete a grievance form,
15
which is submitted to SCDC supervisors for a formal response within ten working
days. (ECF No. 109, ¶ 60; ECF No. 100-12 at 5.) SCDC policy 701.4 provides a process
for inmates to grieve the healthcare they receive at SCDC. (ECF No. 113-5 at 9.) The
policy refers inmates to the Inmate Handbook and provides that “Inmate grievances
regarding health care issues will be investigated by the Site Manager or Corrections
Adm[in]stration.” (Id.)
During previous stays at SCDC before 2017 McCranie filed several inmate
complaints and appeals, including complaints about healthcare received. (ECF
No. 109, ¶¶ 61–62; ECF No. 113-4.) The ACH Defendants assert that McCranie’s jail
and medical files contain no grievances about the care he received between
October 30 and November 15, 2017. (Id., ¶ 63.) McCranie disputes this and states,
without citation, that his “medical file does contain grievances regarding the care he
was provided by the ACH Defendants from October 30, 2017 to November 15, 2017.”
(ECF No. 113-1, ¶ 63.)
SUMMARY JUDGMENT STANDARD
A party is entitled to summary judgment if it shows that there is no genuine
dispute as to any material fact and it 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 that “might affect the outcome of the suit.” See Anderson,
477 U.S. at 248. A dispute over a “material fact” is “genuine” if “the evidence is such
that a reasonable jury could return a verdict for the non-moving party.” Id.
16
Summary judgment is proper “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, 322 (1986). The moving party, here the defendants, need not submit
evidence negating the claims in the second amended complaint. Id. at 323. As the
plaintiff in this matter, McCranie would bear the burden at trial of establishing that
each defendant personally acted or failed to act in a way that violated his
constitutional rights. To survive the defendants’ motion for summary judgment,
therefore, McCranie must show that sufficient evidence exists that would allow a jury
to return a verdict in his favor, should the case proceed to trial. See Brummett v.
Sinclair Broad. Grp., Inc., 414 F.3d 686, 692 (7th Cir. 2005).
ANALYSIS
The court reviews McCranie’s claims that he was provided improper medical
care under the Eighth Amendment, which “protects prisoners from prison conditions
that cause the wanton and unnecessary infliction of pain, including . . . grossly
inadequate medical care.” Gabb v. Wexford Health Sources, Inc., 945 F.3d 1027, 1033
(7th Cir. 2019) (quoting Pyles v. Fahim, 771 F.3d 403, 408 (7th Cir. 2014)) (internal
quotations omitted). Not “every claim by a prisoner that he has not received adequate
medical treatment states a violation of the Eighth Amendment.” Estelle v. Gamble,
429 U.S. 97, 105 (1976). To state a valid Eighth Amendment claim the inmate must
allege both that he “suffered from an objectively serious medical condition” and that
the defendants were “deliberately indifferent to that condition.” Petties v. Carter, 836
17
F.3d 722, 728 (7th Cir. 2016) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994));
see Estelle, 429 U.S. at 103. A prison official shows deliberate indifference when he
“realizes that a substantial risk of serious harm to a prisoner exists, but then
disregards that risk.” Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015) (citing
Farmer, 511 U.S. at 837).
“A delay in treating non-life-threatening but painful conditions may constitute
deliberate indifference if the delay exacerbated the injury or unnecessarily prolonged
an inmate’s pain.” Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011) (citing
McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010)). “[E]ven brief, unexplained
delays in treatment may constitute deliberate indifference.” Lewis v. McLean, 864
F.3d 556, 563 (7th Cir. 2017) (quoting Perez, 792 F.3d at 777–78). How long of a delay
is tolerable “depends on the seriousness of the condition and the ease of providing
treatment.” Arnett, 658 F.3d at 753 (quoting McGowan, 612 F.3d at 640).
The defendants do not dispute that McCranie’s kidney stone and related
symptoms were an objectively serious medical condition. The question is whether the
defendants were aware of his issues and disregarded his need for medical treatment
or otherwise took action “that [was] so ineffectual under the circumstances that
deliberate indifference can be inferred.” Figgs v. Dawson, 829 F.3d 895, 903 (7th Cir.
2016).
A. Officer Defendants
The only Officer Defendants who were involved in responding to any of
McCranie’s complaints or medical slips were Detienne and Schneider. McCranie
18
presents no evidence that officers Johnson, Richter, Russ, Shaw, Pollock, Rieck,
Kegler, Newby, or Tellen knew about his kidney issues and disregarded his
complaints. McCranie states, without citing any evidence, that these officers should
have “undertaken” the same “investigations and actions” that Detienne took on
November 10, 2017, as early as McCranie’s October 30, 3017 complaint. (ECF No. 102
at 12.) But he does not identify any officers responsible for forwarding his medical
request slips to ACH staff from October 30 through November 15.
The officers’ schedules show that many did not even work in the detention
center at SCDC during those days. (ECF No. 100-2 at 5–11.) Nor does McCranie cite
evidence showing that the officers who interacted with him during that time were
even aware of his condition. McCranie’s insistence that these officers were aware of
his condition and should have acted in a certain way, without evidence supporting
that belief, cannot defeat summary judgment in their favor. See Ammerman v.
Singleton, 817 F. App’x 265, 268 (7th Cir. 2020) (citing Herzog v. Graphic Packaging
Int'l, Inc., 742 F.3d 802, 806 (7th Cir. 2014)); see also Colbert v. City of Chicago, 851
F.3d 649, 657 (7th Cir. 2017) (noting that, to establish liability under § 1983, “[t]he
plaintiff must demonstrate a causal connection between (1) the sued officials and (2)
the alleged misconduct”). Thus, officers Johnson, Richter, Russ, Shaw, Pollock, Rieck,
Kegler, Newby, and Tellen are entitled to judgment as a matter of law.
As for Schneider and Detienne, the undisputed evidence shows that McCranie
reported pain to Schneider sometime in the evening or early morning hours between
November 9 and 10, 2017. McCranie does not present evidence establishing
19
specifically when he made those complaints. Schneider told Detienne about
McCranie’s complaints at 2:45 a.m. when they changed shifts. It is not clear how
much time passed between McCranie’s complaints to Schneider and Schneider
reporting the complaints to Detienne.
Sometime during these early morning hours McCranie submitted a medical
slip about his continued pain. It is not clear whether he submitted the medical slip
before or after complaining to Schneider, and there is no evidence that either
Schneider or Detienne saw the medical slip. Another correctional officer informed
Detienne at 4:15 a.m. that McCranie continued to complain of pain. Detienne, who
has experience as an EMT, immediately went to McCranie’s cell to discuss his issues,
examine him, and obtain a urine sample. She consulted with Dr. Hekman less than
two hours later and arranged for McCranie’s transport to a hospital for treatment.
McCranie asserts that Schneider delayed treatment for his pain, but he
presents no evidence showing that Schneider caused a delay. He does not attest to a
certain timeline. Specifically, McCranie presents no evidence establishing how much
time passed between his complaints to Schneider and when Schneider reported the
complaints to Detienne. Even if Schneider could have acted more quickly or
differently, “his action must be reckless before § 1983 liability can be found.” Cavelieri
v. Shepard, 321 F.3d 616, 622 (7th Cir. 2003). He “was not required to take perfect
action or even reasonable action.” Id. The evidence does not show Schneider was
reckless, disregarded McCranie’s condition, or failed to act to address McCranie’s
complaints.
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The evidence shows that Schneider informed Detienne of McCranie’s
complaints at 2:45 a.m., and another officer reiterated McCranie’s complaints ninety
minutes later, at 4:15 a.m. It was only after this second report that Detienne went to
McCranie’s cell, examined him, conducted a urinalysis, informed Dr. Hekman of
McCranie’s symptoms, and arranged for McCranie’s transport to a local hospital.
Although McCranie insists that it took “Detienne over four hours before investigating
the Plaintiff’s physical condition” (ECF No. 102 at 12), the evidence does not support
such a finding. But the evidence does show she waited at least ninety minutes before
addressing his complaints. The defendants do not explain why Detienne did not, or
perhaps could not, attend to McCranie immediately upon being told by Schneider that
he was in pain. But McCranie does not offer evidence suggesting that Detienne knew
or should have known that he required immediate attention, and it is his burden to
establish she acted recklessly to hold her liable under § 1983. See Cavelieri, 321 F.3d
at 622.
The evidence does not suggest that Detienne was aware before meeting with
McCranie that he had been receiving treatment for complaints of kidney pain.
Detienne’s actions, like Schneider’s, may not have been perfect. But McCranie fails
to provide evidence establishing that she acted recklessly by not evaluating him for
ninety minutes after first learning of his complaints of pain. Because no reasonable
jury could conclude that officers Schneider and Detienne deliberately disregarded
McCranie’s complaints, they are entitled to judgment as a matter of law.
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B. ACH Defendants
The ACH Defendants make several arguments why they should be dismissed.
They assert that the nurses and Dr. Hekman provided adequate medical treatment,
McCranie’s complaints amount to only a disagreement of treatment, and McCranie
failed to exhaust his administrative remedies.
1. Nurses Bauer and Noel
It is undisputed that Nurses Bauer and Noel were aware of McCranie’s medical
issues and responded to several of his medical slips. In response to his October 30,
2017 slip Nurse Bauer examined McCranie, consulted with Dr. Hekman, and
provided McCranie the course of care Dr. Hekman prescribed. In response to his
November 6, 2017 slip, Nurse Noel examined McCranie, consulted Dr. Hekman for a
modified course of treatment, and attempted to conduct another urinalysis, which
McCranie refused. Nurse Bauer responded to McCranie’s November 9, 2017 slip, but
there is a dispute about whether he complained of kidney issues during that
examination.
When McCranie returned to SCDC after his hospital visit, Nurse Noel recorded
his diagnosis, examined him, and instructed him to follow the doctors’ prescriptions
and directions. She also informed Dr. Hekman of the hospital’s diagnosis and followed
his additional directions. On November 13, 2017, Nurse Bauer reminded McCranie
of his November 16, 2017 surgery appointment and conferred with Dr. Hekman.
Nurse Noel examined McCranie on November 14, 2017, for his reports of increased
pain and reached out to Dr. Welsch for his input. There is no evidence that Nurse
22
Bauer or Nurse Noel handled or were aware of McCranie’s November 2, 2017 medical
slip requesting stronger medication or his November 10, 2017 request for emergency
treatment. McCranie’s expert witness, Dr. Ngene, offered no criticism specific to any
treatment either Nurse Bauer or Nurse Noel provided to McCranie.
McCranie takes issue with the delays before he saw a doctor or received
emergency care and the adequacy of the prescribed pain medication. But it was not
Nurse Bauer or Nurse Noel’s decision when to send McCranie for emergency
treatment or whether to prescribe him stronger pain medication. As nurses, Bauer
and Noel were allowed to defer to Dr. Hekman’s instructions so long as they did not
“‘ignore obvious risks to an inmate’s health’ in following a physician’s orders.”
Holloway v. Delaware Cty. Sheriff, 700 F.3d 1063, 1075 (7th Cir. 2012) (quoting Rice
ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 683 (7th Cir. 2012)). The nurses
followed Dr. Hekman’s orders to prescribe McCranie pain medication and antibiotics
and his modification to include Flomax to address McCranie’s continued complaints.
When McCranie returned from the hospital, Nurse Bauer and Nurse Noel followed
the orders given by the hospital’s doctor and Dr. Hekman’s modified treatment.
Because the evidence does not show that either Nurse Bauer or Nurse Noel
disregarded McCranie’s complaints or ignored obvious risks to his health,
no reasonable jury could conclude that either of them was deliberately indifferent to
McCranie’s medical issues.
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2. Dr. Hekman
District courts do not interfere with a doctor’s chosen course of treatment
unless the chosen treatment represents a significant “departure from accepted
professional standards or practices.” Pyles, 771 F.3d at 409 (citing Roe v. Elyea, 631
F.3d 843, 857 (7th Cir. 2011)). Dr. Ngene did not criticize Dr. Hekman’s initial
treatment for McCranie’s pain and kidney stones. He opined that Dr. Hekman’s
prescribing Flomax to treat McCranie’s pain and presumed kidney stone was a
reasonable treatment. But Dr. Ngene also testified that McCranie’s pain was not
effectively managed. He testified that a physician should have evaluated McCranie
sooner and that effort should have been made earlier to take McCranie for surgery.
Dr. Ngene opined that delay likely caused McCranie “unnecessary and prolonged
serious pain despite the availability of obvious treatments.”
The ACH Defendants’ expert, Dr. Alsikafi, disagreed with Dr. Ngene’s
conclusions. He opined that it was appropriate for Dr. Hekman to provide offsite
treatment because the nurses were available to treat McCranie at SCDC. He further
opined that it was reasonable to prescribe McCranie conservative treatment first
before sending him to the hospital. Dr. Alsikafi concluded that the ACH Defendants
were not responsible for any delay in McCranie’s treatment.
It is disputed whether Dr. Hekman should have sooner examined McCranie,
sooner sent him to a hospital for evaluation or surgery, or provided stronger pain
medication. Given that dispute, a reasonable jury could conclude that Dr. Hekman
24
was deliberately indifferent to McCranie’s medical issues. The court will deny
summary judgment for Dr. Hekman.
3. Nurses Theis and Pfeifer
There is no evidence showing that Nurses Theis or Pfeifer reviewed
McCranie’s medical slips, were aware of his serious medical issues, or failed to
provide him appropriate treatment. It is undisputed that Nurse Theis merely
distributed pain medication to McCranie on November 9 and 13, 2017; and Nurse
Pfeifer did the same on November 7 and 8, 2017. (ECF No. 113 at 9.) McCranie does
not assert that either of these two nurses delayed or improperly distributed his
medication. Dr. Ngene offered no criticism specific to Nurse Theis or Nurse Pfeifer.
(Id.) Because no evidence shows that Nurses Theis or Pfeifer were aware of and
deliberately indifferent to McCranie’s kidney issues, no reasonable jury could find
them liable under the Eighth Amendment. They are entitled to judgment as a matter
of law.
4. Exhaustion of Administrative Remedies
The ACH Defendants assert that the claims against them should be dismissed
because McCranie failed to exhaust his administrative remedies. Under the Prison
Litigation Reform Act, a prisoner in any jail or prison may not assert a cause of action
under federal law about “prison conditions . . . until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81,
93 (2006). Exhaustion requires that an inmate comply with the rules applicable to
the grievance process at the inmate’s institution. Pozo v. McCaughtry, 286 F.3d 1022,
25
1025 (7th Cir. 2002). This requirement “applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether they
allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
McCranie has presented no evidence that he submitted a grievance form about
his kidney issues or treatment through the Jail’s system before his release from
SCDC on November 15, 2017. But McCranie was released before his kidney stone
issues had resolved. He attempted to resolve his issues informally and by submitting
several medical slips while at SCDC in which he complained that the treatment he
was receiving was inadequate and that he continued to experience pain. The purpose
of a grievance is “to give prison administrators an opportunity to address a
shortcoming.” Glick v. Walker, 385 F. App’x 579, 582 (7th Cir. 2010) (citing Jones v.
Bock, 549 U.S. 199, 218 (2007)). SCDC officials had this opportunity before
McCranie’s release. Once released, McCranie could not have been expected to
continue using SCDC’s grievance system to address his medical issues or treatment.
It is not clear what more McCranie could have done within the SCDC’s
grievance system given the timeline of his medical issues and treatment. It would be
inappropriate in these circumstances to conclude that he failed to exhaust his
administrative remedies or to dismiss his claims on that basis.
CONCLUSION
IT IS THEREFORE ORDERED that the Officer Defendants’ motion for
summary judgment (ECF No. 97) is GRANTED. The Officer Defendants are
DISMISSED.
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IT IS FURTHER ORDERED that the ACH Defendants’ motion for summary
judgment (ECF No. 108) is GRANTED in part and DENIED in part. Summary
judgment is GRANTED for ACH Defendants Bauer, Noel, Theis, and Pfeifer. These
defendants are DISMISSED. Summary judgment is DENIED for ACH Defendant
Dr. Hekman. McCranie’s claims against Dr. Hekman shall proceed.
Dated at Milwaukee, Wisconsin this 21st day of October, 2020.
WILLIAM E. DUFFIN
U.S. Magistrate Judge
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