Banks v. Adler et al

Filing 50

ORDER denying 40 Motion for Preliminary Injunction. Signed by Chief Judge Barbara B. Crabb on 4/14/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN ---------------------------------------------C EA SA R R. BANKS, P l a i n t i ff , OPINION AND ORDER v. 09-cv-09-bbc D R . BURTON COX and MARY BARTELS, D efendan ts. --------------------------------------------P lain tiff Ceasar Banks, an inmate at Waupun Correctional Institution, has moved for a preliminary injunction on his claim that defendants Dr. Burton Cox and Mary Bartels are not permitting him to undergo surgery on his left shoulder, as recommended by an orthopedic specialist in June 2008. To prevail on this motion, plaintiff must show that he has some chance of success on the merits and that the balance of harms favors immediate relief. Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463, 473 (7th Cir. 1998). Because he has failed to meet that standard, I must deny his motion for a preliminary injunction . A prisoner's right to medical care has been violated when he has a serious medical nee d, a prison official is aware of that need and disregards the need by failing to take 1

reason able measures to treat it. Estelle v. Gamble, 429 U.S. 97 (1976). In support of his allegatio n that he suffered a grade 1 AC separation and chip fracture of his left scapula in a 20 05 motor scooter accident, plaintiff relies on a 2005 radiology report from St. Joseph's H osp ital in Milwaukee. However, that report does not state definitively that he sustained these injuries. Instead, it states that he has "relative widening at the AC joint, which may represent a grade 1 AC separation" and a "questionable chip fracture of the scapula." Dkt. # 42 , Exh. #2. Following plaintiff's incarceration in 2008 at the Prairie du Chien Correctional Institution , he saw Dr. James Pearson at Prairie du Chien memorial Hospital for his shoulder pain . In a report dated June 18, 2008, Dr. Pearson recommended Tramadol for plaintiff's p ain and that a magnetic imaging scan be performed on plaintiff's left shoulder. Dkt. #42, E xh . #3. After reviewing plaintiff's imaging scan results on July 16, 2008, Dr. Pearson reco m m en ded that plaintiff undergo arthroscopy with depingement to include a resection o f the outer end of the clavicle, with possible acromioplasty and labral repair. Id. at Exh. #4. Plain tiff avers that the surgery was never done and, as a result, he does not have full ran ge of motion in his left shoulder and arm, is in pain and cannot sleep at night. Dkt. #42, ¶¶ 3-4. Plaintiff avers that his AC joint worsens each day and that continued injury will preven t him from regaining full use of his shoulder and arm. Id. at ¶¶ 5-6. He asks that

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defendan ts be ordered to provide him with the appropriate surgery and have him examined by a qualified orthopedic specialist. In their response to plaintiff's motion, defendants submitted the affidavit of defendan t Cox, who is plaintiff's treating physician at the prison. Dr. Cox avers that within tw o weeks of plaintiff's placement at the institution, he examined plaintiff and reco m m en ded six physical therapy sessions for plaintiff's shoulder. Exh. #48, ¶¶ 8 and 23. O n May 15, 2008, the physical therapist recommended that plaintiff should see an orthopedist because he was not gaining range of motion in his shoulder. Id. at ¶ 32. Dr. C ox avers that on July 16, 2008, he requested authorization for the surgery recommended by Dr. Pearson. Id. at ¶ 44 and Exh. #110. Because Dr. Pearson could not perform the surgery at his hospital, Dr. Cox sought and received approval for plaintiff to go to the U n iversity of Wisconsin Hospital for evaluation and surgery. Id. at ¶¶ 45-46. An off-site service request and report shows that on September 5, 2008, plaintiff saw Dr. Michael Shin, w h o diagnosed plaintiff with mild adhesive capsulitis, or "frozen shoulder." Id. at ¶¶ 47 and Exh. #111. Plaintiff objects to Dr. Shin's opinion on the ground that Dr. Shin was not given the J u ly 2008 magnetic imaging scan to review. In his affidavit, Dr. Cox admits that this m istak e occurred but avers that he corrected it by providing Dr. Shin with the most recent im aging study. Dkt. #48, ¶ 48, 52. Clinic notes dated January 19, 2009 show that Dr. Shin 3

review e d the 2008 study and reevaluated plaintiff. Id. at Exh. #115. Dr. Shin noted no sign ifican t change from plaintiff's 2004 study and stated the opinion that plaintiff did not need surgery. Id. He wrote, "As per his last visit, I told him that a few visits of physical th erapy is not the treatment for his adhesive capsulitis and that he needs extremely aggressive and continuous physical therapy, which he has not been compliant with." Id. Although Dr. Shin offered plaintiff a corticosteroid injection, plaintiff refused it. Id. In sum, plaintiff has not adduced any evidence that he has a grade 1 AC separation. M edical records show that his condition is less severe than he alleges and that he requires on ly extensive physical therapy. I understand that plaintiff believes that Dr. Shin

m isdiagn osed him because defendants failed to provide him with his current test results. H ow ever, defendants have remedied that situation, and Dr. Shin's recommendations have no t changed. As defendants point out, differences of opinion among medical personnel regard in g appropriate treatment do not demonstrate deliberate indifference. Estelle, 429 U .S. at 107; Estate of Cole v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996). Further, plaintiff has failed to show that he will be harmed if he does not undergo surgery immediately. T herefore, his motion for a preliminary injunction will be denied.

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OR DER IT IS ORDERED that plaintiff Ceasar Banks's motion for a preliminary injunction, dkt. #40, is DENIED. E n tered this 14t h day of April, 2009.

B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ B AR B AR A B. CRABB D istrict Judge

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