Ramirez v. SULIENE et al

Filing 32

ORDER denying 16 Motion for Preliminary Injunction. Plaintiffs request to keep certain medical information under seal is granted. Plaintiffs response to the courts July 31 order, dkt. 24 , will be under seal until otherwise ordered by the court. Signed by Chief Judge Barbara B. Crabb on 8/31/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------LUIS A. RAMIREZ, P la i n t i f f , v. D R . SULIENE, RICK RAEMISCH, S. SITZMAN, L . ALSUM, JOHN DOE 1, JOHN DOE 2, JO H N DOE 3, JOHN DOE 4, JOHN DOE 5, JO H N DOE 6, JOHN DOE 7, JOHN DOE 8, JO H N DOE 9, JOHN DOE 10, JOHN DOE 11 an d JOHN DOE 12, D efendan ts. --------------------------------------------Plaintiff Luis Ramirez, a prisoner at the Columbia Correctional Institution in Portage, W iscon sin, has moved for a preliminary injunction on his claim that defendants Dr. Suliene, R ick Raemisch, S. Sitzman, L. Alsum and John Does 1 through 12 acted with deliberate in differen ce to his serious medical needs in violation of the Eighth Amendment. Dkt. #16. A s relief, he asks that he be taken off the medication Tramadol because it has life-threatening side effects, be placed on Methadone or another effective pain medication and referred to a neurologist and pain specialist. O P IN IO N AND ORDER 0 9 - cv -3 1 4 - b b c

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O n July 31, 2009, I stayed briefing on plaintiff's motion for preliminary injunctive relief until he either returned a signed medical information release form or filed a brief with the court explaining why he will not sign it. Dkt. #23. On August 7, 2009, plaintiff resp o nd ed that the authorization allows defendants access to sensitive and embarrassing m edical information that is irrelevant to this case. Dkt. #24. Attached to the response is a signed copy of an authorization form that plaintiff limited in scope. Because it is clear that plaintiff is concerned about the privacy of specific medical information referred to in his Au gust 7 response, I will place that filing under seal. If petitioner does not wish to have this info rm ation sealed, he may so inform the court. With respect to his motion for a preliminary injunction, plaintiff must show that he has some chance of success on the merits of his Eighth Amendment claim and that the b alan ce of harms favors immediate relief. Planned Parenthood of Wisconsin v. Doyle, 162 F.3d 463, 473 (7th Cir. 1998). Because plaintiff has failed to meet that standard, I must d en y his motion for a preliminary injunction.

D I S C U S S IO N "The granting of a preliminary injunction is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it." Roland Machinery Co. v.

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D r esser Industries, 749 F.2d 380, 389 (7th Cir. 1984). The standard applied to determine w hether a plaintiff is entitled to preliminary injunctive relief is well established: A district court must consider four factors in deciding whether a preliminary injunction should be granted. These factors are: 1) whether the plaintiff has a reasonable likelihood of success on the merits; 2) whether the plaintiff will h ave an adequate remedy at law or will be irreparably harmed if the injunction does not issue; 3) whether the threatened injury to the plaintiff outweighs the threatened harm an injunction may inflict on defendant; and 4) whether the grantin g of a preliminary injunction will disserve the public interest. Pelfresne v. Village of Williams Bay, 865 F.2d 877, 883 (7th Cir. 1989). Thus, to obtain a preliminary injunction, a movant must first prove that his claim has "at least some merit." D i gru gilliers v. Consolidated City of Indianapolis, 506 F.3d 612, 618 (7th Cir. 2007) (citing C avel International, Inc. v. Madigan, 500 F.3d 544, 547 (7th Cir. 2007)). P etitio n er brings his claim under the Eighth Amendment, which prohibits prison o fficia ls from exhibiting deliberate indifference to a prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103 (1976). This right is violated when the prisoner has a serious m edical need, a prison official is aware of that need and disregards the need by failing to take reason able measures to treat it. Id. A medical need may be serious if it is life-threatening, carries a risk of permanent serious impairment if left untreated and results in needless pain an d suffering when treatment is withheld, Gutierrez v. Peters, 111 F.3d 1364, 1371-73 (7th C ir. 1997), or otherwise subjects the prisoner to a substantial risk of serious harm, Farmer v. Brennan, 511 U.S. 825, 837 (1994). "The test for deliberate indifference is a subjective 3

o ne: The official must `both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'" Sain v. W oo d, 512 F.3d 886, 894 (7th Cir. 2008) (quoting Farmer, 511 U.S. at 837). In this case, plaintiff avers that Tramadol, the pain medication that defendants have given him for his complex regional pain syndrome, is causing him harmful and even lifethreatening side effects. According to information sheets on Tramadol that plaintiff has su bm itted in support of his motion: In some situations, you should not use this medicine if you are also using . . . medicines for depression or mental illness, or other pain medications. If you are using any of these, ask your doctor if you can still use tramadol. *** M ake sure your doctor knows if you are using digoxin (Lanoxin). . . *** T his medicine can increase thoughts of suicide. . . . Make sure your caregiver kn ow s if you have trouble sleeping, get upset easily, have a big increase in en ergy, or start to act reckless. Also tell your doctor if you have sudden or strong feelings, such as feeling nervous, angry, restless, violent or scared. Let you r doctor know if you or anyone in your family has bipolar disorder (manic depressive) or has tried to commit suicide. D k t. #19, Exhs. A, B and C. Plaintiff avers that he has bipolar disorder and a history of su icid al thoughts. He states that since he began taking Tramadol, he has been feeling suicidal, angry, violent and restless. He also avers that he takes Lanoxin (which is

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co n train dicated for Tramadol) for his mental illness. Plaintiff wants to be placed back on m e t had on e, which he had been taking for pain before transferring to the Columbia C o rrectio n al Institution in February 2007. Although defendants appear to agree that plaintiff suffers from a serious medical condition that requires him to take some sort of pain medication, they disagree that T ram ado l is harmful to plaintiff. In opposition to plaintiff's motion, defendants submit affidavits from defendant Dr. Dalia Suliene, the prison physician, and Dr. Gary Maier, a con sulting psychiatrist for the Department of Corrections, who has treated plaintiff. Both S u lien e and Maier aver that in their professional opinions, Tramadol is a proper treatment for plaintiff. After reviewing plaintiff's medical records and evaluating plaintiff, Suliene and Maier aver that plaintiff does not have bipolar disorder and instead has a mood disorder not otherw ise specified and antisocial personality disorder. Maier also avers that plaintiff's m edical records show that he is not on Lanoxin, which is used to treat heart disease, but rather on Loxapine, which is not contraindicated with Tramadol. The doctors aver that plaintiff's behavioral problems and angry moods are attributable to his antisocial personality disorder and not Tramadol. According to Suliene, plaintiff's medical records show that each of the four psychiatrists who examined plaintiff in the last two years, including Maier, agree that plaintiff is not suicidal. In psychiatric sessions during the last two years, plaintiff has 5

repo rted frequently that he is not thinking of harming himself. Both Suliene and Maier believe that Tramadol is a good option because it is a non-narcotic analgesic. They state that m ethadone can present problems in the treatment of long-term chronic pain because the lon ger someone takes it, the greater the quantity needed for pain suppression. During a July 8, 2009 session, plaintiff told Maier that Tramadol is effective for m a n a g i n g his pain but that he believes the medication is contraindicated in terms of his m ood. Maier avers that he told plaintiff that he could stop taking Tramadol if he thought it was causing him harm. When plaintiff told Maier that he would have pain if he stopped tak in g it, Maier explained that his condition may have improved enough that he does not need to be on pain medication or that his pain situation could be reassessed and an alternate an algesic prescribed for the pain. According to Maier, plaintiff was not interested in either o f those options and stated that he wanted to continue on Tramadol. Even though the parties dispute what mental illness plaintiff suffers from, whether h e is having suicidal thoughts and the cause of his behavioral problems, plaintiff has not dem on strated that he has any likelihood of success on the merits of his claim, which is a necessar y showing for any preliminary injunction. Under the "deliberate indifference" standard, governmental officials and employees are not required to provide the specific m edical care an inmate requests. Medical providers may rely on their own professional judgm ent in responding to inmate requests and medical needs. The possibility that another 6

m edical professional would disagree with the provider's response does not mean that the respo nse is evidence of deliberate indifference. When a prisoner receives some form of medical care, he must show that the care he received was "so blatantly inappropriate as to evidence intentional mistreatment likely to serio usly aggravate" plaintiff's serious medical condition. Snipes v. DeTella, 95 F.3d 586, 5 9 2 (7th Cir. 1996). Mere disagreement with a doctor's medical judgment, inadvertent erro r, negligence, malpractice or even gross negligence in providing treatment is insufficient to establish deliberate indifference. Duckworth v. Ahmad, 532 F.3d 675, 680 (7th Cir. 2 0 0 8 ) (although later tests confirmed prisoner's fears that he had cancer, neither doctor's m istaken belief that prisoner was seeing specialist nor his decision to forgo more aggressive treatm en t plan "raise an inference of deliberate indifference"); Edwards v. Snyder, 478 F.3d 8 2 7 , 831 (7th Cir. 2007); Washington v. LaPorte County Sheriff's Dept., 306 F.3d 515, 518 (7 th Cir. 2002). "A medical professional is entitled to deference in treatment decisions un less `no minimally competent professional would have so responded under those circu m stan ces.'" Sain, 512 F.3d 894-95 (quoting Collignon v. Milwaukee County, 163 F.3d 9 8 2 , 988 (7th Cir. 1998)). Plaintiff has not shown that defendant Suliene departed from accepted practice in giving him Tramadol instead of methadone. Maier confirms this fact. S u lien e had a reasonable medical explanation for taking plaintiff off methadone and placing him on Tramadol, a non-narcotic. The information sheets on Tramadol indicate only that 7

a patient consult his doctor before using Tramadol if he suffers from mental illness, has s ui cidal thoughts or other behavioral changes or take other medications that are contraindicated. Not only did Suliene consult with plaintiff, but she reviewed his medical an d psychiatric history and consulted a psychiatrist, who approved of the treatment. Even if plaintiff is suffering side effects from Tramadol, neither Suliene or Maier believes that the d ru g's benefits outweigh any adverse effects. Further, Maier told plaintiff that he could stop taking Tramadol and explore other non-narcotic pain medications. Plaintiff chose not to p ursu e that option. In sum, plaintiff has failed to adduce evidence that defendants have acted with d elib e r a te indifference to his serious medical needs when they prescribed him Tramadol instead of methadone. Even viewing the evidence in a light most favorable to plaintiff, it do es not indicate that defendant Suliene's treatment decisions for plaintiff were not based on competent medical judgment. Accordingly, plaintiff's motion will be denied.

OR DER IT IS ORDERED that: 1. D E N IE D . Plaintiff Luis Ramirez's motion for a preliminary injunction, dkt. #16, is

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2. Plaintiff's request to keep certain medical information private, which I construe as a motion to seal, is GRANTED. Plaintiff's response to the court's July 31 order, dkt. #24, shall be placed under seal until otherwise ordered by the court. Entered this 31s t day of August, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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