Ramirez v. SULIENE et al

Filing 91

ORDER denying 46 Plaintiff's Motion for Partial Summary Judgment; granting in part and denying in part 52 Defendants' Motion for Summary Judgment. Signed by District Judge Barbara B. Crabb on 6/18/2010. (eds),(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, SANDRA SITZMAN, LORI ALSUM, LESLIE WINSLOW-STANLEY, FAYE HART, T H O M A S SCHOENEBERG, CURTIS DELONG, S TA N L EY MADAY, JR., ISAAC HART, MARK ISAACSON, V IC TO R TRIMBLE, MAURY THILL, JACOB ZIMMERMAN, W IL L IA M LEFEVRE, MICKEY PAUL PAFFORD, L U CA S WOGERNESE, and BRIAN HERBRAND, D efendan ts. --------------------------------------------Plaintiff Luis Ramirez, a prisoner at the Columbia Correctional Institution in Portage, W iscon sin, is proceeding on several Eighth Amendment deliberate indifference claims. (A ltho ugh plaintiff states in his brief in opposition to defendants' motion for summary judgm ent that he was allowed leave to proceed on a state law claim, I allowed him to proceed on ly on his Eighth Amendment claims.) First, plaintiff alleges that defendants Dr. Dahlia S uliene, Rick Raemisch, Sandra Sitzman, Leslie Winslow-Stanley, Curtis DeLong, Stanley O P IN IO N AND ORDER 0 9 - cv -3 1 4 - b b c

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M a day, Jr., Isaac Hart, Mark Isaacson, Victor Trimble, Maury Thill, Jacob Zimmerman, W illiam LeFevre, Mickey Paul Pafford, Lucas Wogernese and Brian Herbrand were deliberately indifferent to his methadone withdrawal symptoms. Second, he alleges that defendant Suliene refused to treat his foot pain with methadone. Third, he alleges that d efen dan ts Suliene and Alsum ignored the serious side effects he experienced from taking T r a m a d o l. (Although plaintiff alleged in his complaint that the correctional officer

defendants also knew about his severe Tramadol side effects, he now asserts that he told only Suliene and Alsum about them.) Plaintiff has voluntarily dismissed defendants Faye Hart an d Thomas Schoenberg. The case is before the court on the parties' cross motions for summary judgment. D kt. ##46 and 52. Defendants have moved for summary judgment on all of plaintiff's claim s, and plaintiff has moved for partial summary judgment on his claims against defendant Suliene. Because plaintiff has failed to adduce sufficient evidence from which a reasonable jury could find that defendants other than Isaacson, Trimble and DeLong were d elib erately indifferent to his serious medical needs, I will grant defendants' motion for su m m ary judgment with respect to plaintiff's claims against those defendants and deny plaintiff's motion for partial summary judgment on his claims against defendant Suliene. I find that plaintiff has adduced sufficient evidence from which a reasonable jury could determ ine that defendants Isaacson, Trimble and DeLong acted with deliberate indifference 2

to plaintiff's withdrawal symptoms and foot pain. Therefore, I am denying defendants' m otio n for summary judgment with respect to plaintiff's Eighth Amendment claims against these defendants. For the purpose of deciding this motion, I find the following facts to be material and u n d is p ute d.

U N D IS PU T ED FACTS A. Parties Plaintiff Luis A. Ramirez is an inmate incarcerated at the Columbia Correctional Institution in Portage, Wisconsin. Defendant Dr. Dahlia Suliene is a medical doctor at the i n s t i t u ti o n . C o r r e cti o n s. Defendant Rick Raemisch is Secretary of the Wisconsin Department of Defendant Sandra Sitzman was the health services unit manager at the

Co lum bia Correctional Institution in 2007. She was replaced by defendant Lori Alsum, who served in that position until December 5, 2009. At all times material to this action, defendants Lesley Winslow-Stanley, Curtis DeLong, Stanley Maday, Isaac Hart, Mark Isaacson, Victor Trimble, Maury Thill, Jacob Zimmerman, William LeFevre, Mickey Paul Pafford, Lucas Wogernese and Brian Herbrand were correctional officers at the Columbia C o rrectio n al Institution.

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B . Methadone Withdrawal Symptoms Betw een 2005 and February 2007, plaintiff was incarcerated at the Waupun C orr ection al Institution, where he was prescribed methadone for complex regional pain syn d r o m e . Plaintiff was prescribed methadone on December 28, 2006 for thirty days, or un til January 28, 2007. However, plaintiff's medical records show that he took his last dose o f methadone at the Waupun Correctional Institution on the morning of February 7, 2007, ju st before he was transferred to the Columbia Correctional Institution, and that he did not h ave any methadone after that. (The parties dispute whether plaintiff had a prescription for m ethadon e at the time of his transfer.) That same day, plaintiff filed a health services requ est, stating that his methadone had been discontinued but that he did not need to see health services staff. On February 22, 2007, plaintiff submitted a health services request, stating that he had a large twitch because his methadone had been discontinued, but in dicated again that he did not wish to see health services staff. On February 7, 11 and 18 an d March 6, 7, 13 and 14, 2007, plaintiff submitted seven other health services requests, asking either that he not be fed peas because he was allergic to them or that he be given vario us medical tests for other conditions. Plaintiff did not complain about any methadone withdrawal symptoms in the health services requests that he made after being transferred to Columbia Correctional Institution. (T he parties dispute whether plaintiff informed the defendant correctional officer about his 4

m ethadone withdrawal symptoms or whether they observed such symptoms.) If plaintiff had inform ed a correctional officer about his pain or medical condition, the officer would have inform ed the health services unit, which would have advised the officer whether plaintiff had to be seen immediately. If the concern was not immediate, the officer would have given plaintiff a health services request slip to fill out. Correctional officers do not have the autho rity to schedule health services appointments. In addition to health services requests, plaintiff filed an offender complaint on Februa ry 7, 2007, stating that discontinuing his methadone posed a danger to him and left him in unbearable pain. On February 12, the inmate complaint examiner dismissed

plaintiff's complaint with modification, stating that defendant Sandra Sitzman, the health services unit manager, had indicated that plaintiff did not have a current prescription for m eth ad on e and that he would be seen by a doctor to assess his medication needs. Defendant D r . Suliene did not become aware of plaintiff's health services requests or offender complaint until mid-March 2007. (Although plaintiff attempts to dispute this fact with evidence that th e inmate complaint examiner sent an email copy of her decision to Suliene, the decision is dated March 14, 2007.) Upon the corrections complaint examiner's recommendation, d efen dan t Raemisch dismissed plaintiff's complaint on March 19, 2007.

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C . Foot Pain Plaintiff complained about foot pain in his February 7 and 22, 2007 health services requests. On March 28, 2007, plaintiff saw Dr. Suliene, complaining of shooting pain in the bottom of his foot. Plaintiff requested a prescription for methadone. Because of the n eu ro p ath ic nature of plaintiff's pain, Suliene prescribed 300 milligrams of Gabapentin for th e pain. Plaintiff filed a health services request on April 28, 2007, complaining that G abapentin did not help his pain in the past and that no one had examined his foot. On A p ril 30, 2007, Suliene noted that plaintiff was not on an adequate dose of Gabapentin and increased his prescription from 300 to 600 milligrams. On May 25, 2007, plaintiff

subm itted another health services request, stating that he needed methadone because the G abapentin was not working. Suliene responded in writing, asking plaintiff whether he was tak in g the increased dosage of Gabapentin and advising him that he had an upcoming d octo r's appointment. Plaintiff failed to respond to Suliene's question. On June 13, 2007, p lain tiff wrote in a health services request that he had not taken the Gabapentin for two and a half months. That same day, plaintiff signed a form stating that he voluntarily refused to tak e Gabapentin. O n June 21, 2007, plaintiff saw Dr. Suliene, stating that he had been told he had co m p lex regional pain syndrome. He requested a methadone prescription. Upon

exam ination , Suliene found that plaintiff did not have complex regional pain syndrome, 6

prescribed Tylenol for pain and requested a neurology consultation for plaintiff. After this appointm ent, Suliene asked the correctional officers to log plaintiff's daily activities. The activity log showed that plaintiff's daily activities did not appear to be limited by pain. On Ju ne 24, 2007, plaintiff reported in a health services request that he had severe foot pain and pain in his left lung. Suliene's request for a neurology consultation was denied because the correctional officers' documentation of plaintiff's daily activities indicated that plaintiff was in less pain than he reported. D urin g July, August and September 2007, plaintiff submitted several health services requ ests complaining about foot pain. During an August 6, 2007 sick call appointment, a nurse noted that plaintiff was continuing his previously reported exercise regimen and that his pain did not seem to affect his functioning or activities. On September 3, 2007, Dr. S uliene responded to plaintiff's health services request by asking plaintiff whether he would like to start taking Gabapentin again. On August 8 and August 14, 2007, plaintiff refused to go to medical exams that were scheduled to address his foot pain. On September 26, 20 07 , plaintiff saw Dr. Suliene and reported foot pain. Suliene concluded that the severity of plaintiff's pain did not require methadone but prescribed propoxyphene because plaintiff had stated it had helped his pain in the past. On October 2, 2007, Suliene changed the prescription to Darvocet N, which is the brand name of propoxyphene.

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P lain tiff returned to see Dr. Suliene on November 8, 2007, again complaining of foot p ain . Suliene increased plaintiff's Darvocet N to four times a day. Plaintiff saw Suliene on D ecem ber 6, 2007 but did not mention any foot pain. On January 8, 2008, plaintiff told S u lien e he had had no change in his foot pain. Plaintiff wanted the Darvocet N prescription ch an ged to methadone. He also requested an ankle sleeve, which Suliene ordered. Suliene p r e s c r ib ed Tramadol, a non-narcotic analgesic, but discontinued it on January 14 because it would interfere with the amitriptyline that plaintiff was taking. Instead, she continued plaintiff on Darvocet N. On February 6, 2008, plaintiff saw Dr. Suliene and complained about pain and nu m bn ess in his foot. Between February 6 and June 26, 2008, plaintiff did not complain about foot pain. On June 26, 2008, correctional officers reported to health services staff that plaintiff appeared to be walking with difficulty because of a sore foot. A nurse saw plaintiff th e next day. Plaintiff told her that he had heel pain because he did a cartwheel in his cell an d hit his heel against the wall. At an August 29, 2008 appointment with a nurse, plaintiff com plained of heel pain because he did a "windmill" in his cell and hit his heel against the w a ll. O n October 21, 2009, plaintiff saw Dr. Stanek, a neurologist at the University of W iscon sin Hospital and Clinics. After hearing plaintiff's complaints of pain, Stanek

d iagn o sed traumatic neuropathy. He recommended prescribing Gabapentin, nortipityline 8

an d a small dose of methadone. In an October 30, 2009 telephone conversation, Dr. Suliene an d Dr. Stanek agreed that if Gabapentin and nortriptyline were ineffective, methadone w ou ld be added to the combination. Suliene ordered a podiatry consultation, which plaintiff un derw ent on November 23, 2009.

D. Tramadol A fter plaintiff stopped taking amitriptyline on February 1, 2008, Dr. Suliene prescribed Tramadol for plaintiff. On October 9, 2008, plaintiff saw Dr. Suliene and asked th at his Tramadol be increased. Suliene agreed. On November 21, 2008, a nurse on segregation rounds talked to plaintiff, who reported that he was "allergic" to Tramadol. The nu rse wrote that plaintiff "displays drug seeking behaviors." On February 23, 2009, plaintiff saw Suliene and reported that his foot hurt when it was cold and that the Tramadol was not effective. Suliene increased plaintiff's Tramadol dosage. On July 10, 2009, plaintiff reported to a nurse that the Tramadol was not working. D r. Suliene consulted with Dr. Maier, plaintiff's psychiatrist, and they concluded that p lain tiff was being treated properly with Tramadol. Plaintiff was not taking any medications that would interact with Tramadol. On January 13, 2009, plaintiff told Maier that if he stopp ed taking Tramadol, his pain would be worse. On July 8, 2009, Maier told plaintiff that because he was taking Tramadol voluntarily, he could stop taking it if he thought it was 9

causing him harm. Maier also explained to plaintiff that if he stopped Tramadol, his con dition might have improved enough that he would not need pain medication or that his d octo rs could reassess his pain situation and possibly find an alternate analgesic for his pain. Plaintiff was not interested in either of those options. When Maier asked plaintiff whether h e wanted to be taken off Tramadol, plaintiff told him that he wanted to continue Tramadol an d pursue his "legal options." Plaintiff continued to take Tramadol through October 2009. Plaintiff did not tell any co rrectio n al officer that he was experiencing severe side effects from Tramadol. Since 2008, p lain tiff frequently reported in his psychiatric sessions that he is not thinking of harming h i m s e lf .

E. Actions of Defendants Sitzman, Alsum and Raemisch D e fen dan t Sitzman's only involvement in plaintiff's health care was to (1) review and respo nd to his March 14, 2007 health services request related to tests for diabetes, p an creatitis, hyperglycemia and other conditions unrelated to methadone or his pain and (2) review his medical record and provide information to the inmate complaint examiner assigned to handle his offender complaints related to the discontinuation of his methadone. W ith respect to Offender Complaint CCI-2007-4518, Sitzman told the inmate complaint exam iner that 10

In review of Mr. Ramirez's medical record his last Methadone order was w ritten on 12/28/06 for 30 days and was not renewed by the physician or NP at WCI. Mr. Ramirez was transferred to CCI on 2/7/07, so we did not discontinue the medication as alleged. I will have the staff schedule him an appointm en t with the MD and she can assess his needs and determine if he still requires pain medication. With respect to Offender Complaint CCI-2007-13061, Sitzman told the inmate complaint exam iner that In reviewing Mr. Ramirez's medical record, he was evaluated by Dr. Suliene o n 3/28/07 for his left foot pain. After a face-to-face encounter/evaluation and r e view of Mr. Ramirez's medical record, Dr. Suliene choose to order G a b ap en tin 300 mg BID for his chronic complaints of pain, instead of restarting the Methadone. In follow-up and in response to Mr. Ramirez's c/o o f ineffective pain control, Dr. Suliene did increase the Gabapentin to 600 mg Q ID on 4/28/07. In reviewing the medical record there have been no further increases ordered, so I assume Mr. Ramirez's pain is being controlled with the G ab ap en tin dosage he was prescribed on 4/28/07, which indicates there is no need for Methadone. Dr. Suliene has decided not to renew Methadone at this time as she believes that the Gabapentin is better suited to Mr. Ramirez's ch ro n ic left foot pain. She has ordered routine follow-up appts. to monitor th e effectiveness of her treatment plan. D e fen dan t Alsum's involvement in plaintiff's health care was limited to (1) reviewing relevan t portions of his medical record and providing information to the inmate complaint exam in er after plaintiff filed Offender Complaints CCI-2007-18787, CCI-2008-1852, C C I -2 0 0 8-8 2 2 1, CCI-2008-28503 and CCI-2008-29803; and (2) reviewing and responding to health services requests that he made on January 10, 2008 (request for information on

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T ram ado l), on March 12, 2008 (complaint about being taken off methadone), and on March 13 , 2008 (request to donate part of his liver). D e fen dan t Raemisch made the final agency decision to adopt the recommendation of the corrections complaint examiner and deny plaintiff's Offender Complaints C C I-200 7-1 87 87 , CCI-2007-13061 and CCI-2007-4518. In making his decisions,

R aem isch did not personally examine plaintiff's medical records or speak with anyone who h ad provided medical care to him. Raemisch relied upon the corrections complaint

exam iner's statement that plaintiff's medical care concerns were reviewed and decided by the Bureau of Health Service's Regional Nursing Coordinator.

D IS PU T ED FACTS Plaintiff avers that after arriving at the Columbia Correctional Institution, he experienced the following methadone withdrawal symptoms: itching, vomiting, dizziness, trem ors, cold sweats, weight loss, inability to sleep and suicidal thoughts. He avers that he told defendant Isaacson that he was in pain and defendant Thill that he needed methadone. Acc o r d in g to plaintiff, Isaacson and Thill responded only by telling him to make a health services request. When plaintiff told defendant DeLong "what was going on," DeLong bro ught him a health services request form, which he filled out and submitted. Plaintiff also

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avers that he gave an offender complaint to defendant Winslow-Stanley about not being con tinued on methadone. Plaintiff avers that on February 8, 2007, defendant Isaac Hart observed him vomiting and asked plaintiff whether he wanted to make a health services request. Plaintiff avers that he told Hart that he needed a doctor and that Hart came back with only a health services requ est form, which plaintiff ripped up. Plaintiff avers that on February 9, he informed defendan ts Trimble and Isaacson that he was sick and needed to see a nurse and that they to ld him to make out a health services request. According to plaintiff, on February 10, 2007, he told defendants Trimble, Isaacson and DeLong that he needed a doctor. Plaintiff avers that they told him that there was no doctor on duty and advised him to fill out a health services request. He avers that on February 11, 2007, he told defendants Trimble, Isaacson and DeLong that he was going through withdrawal but they told him because it was Sunday, nothing could be done. Plaintiff avers that on February 12, 2007, he told defendant LeFevre that he was going through withdrawal and needed to see a doctor but LeFevre told him to subm it a health services request. He avers that in mid-February 2007, he told defendants Z im m erm an , Pafford, Maday, Herbrand and Wogernese that he was sick, his foot hurt and he needed to see a doctor, but they did not help him. All of the defendant correctional officer deny having any knowledge that plaintiff was experiencin g pain or methadone withdrawal symptoms. 13

The parties dispute whether plaintiff admitted to a nurse on June 25, 2007, that he w as doing 1000 jumping jacks, 500 pushups, 1500 curls and running in place for two to three hours as a daily exercise routine. Defendants produced a record in which the nurse n o ted during a sick call appointment that plaintiff had reported that although his foot and lu ngs "kinda hurt," he did 1000 jumping jacks, 500 pushups, 1500 curls and ran in place for tw o to three hours. Plaintiff avers that this is an incorrect reporting of what he told the nu rse. He avers that he stated that those activities are what used to constitute his exercise rou tine when he was taking methadone. The parties dispute whether plaintiff had severe side effects to Tramadol. Plaintiff avers that Tramadol made him angry and caused him to have "strong thoughts of suicide." H e avers that he told Suliene and Alsum about those side effects but that they did nothing in response. He avers that as a result of those side effects, another doctor put him on ob servation on March 18, 2009 and on one other occasion. Plaintiff avers that after sto p pin g Tramadol in October 2009, the side effects stopped. In response, defendants point to Dr. Maier's opinion that plaintiff's behavioral problems and angry moods were attributable to his antisocial personality disorder and not to Tramadol. They have produced evidence that Maier and other psychiatrists who examined plaintiff in the past two years agreed that plaintiff was not suicidal and that plaintiff reported that he was not thinking of harm ing himself. 14

O PIN IO N T o survive summary judgment on his Eighth Amendment claims, plaintiff must pro po se facts from which a reasonable jury could find that defendants' refusal to treat his M eth ad on e withdrawal symptoms, his foot pain and his severe side effects from taking Tram adol constituted "deliberate indifference" to his "serious medical needs." Estelle v. G am ble, 429 U.S. 97, 103 (1976). A medical need may be serious if it is life-threatening, if it carries a risk of permanent serious impairment if it is left untreated or if it results in needless pain and suffering when it is not treated, Gutierrez v. Peters, 111 F.3d 1364, 1371 -73 (7th Cir. 1997), or otherwise subjects the prisoner to a substantial risk of serious harm , Farmer v. Brennan, 511 U.S. 825, 837 (1994). A serious medical need may be a con dition that a doctor has recognized as needing treatment or one for which the necessity o f treatment would be obvious to a lay person. Johnson v. Snyder, 444 F.3d 579, 584-85 (7th Cir. 2006). The condition does not have to be life threatening. Id. A medical need

m ay be serious if it "significantly affects an individual's daily activities," Chance v. A rm stro n g, 143 F.3d 698, 702 (2d Cir. 1998), causes pain, Cooper v. Casey, 97 F.3d 914, 916-17 (7th Cir. 1996), or otherwise subjects the prisoner to a substantial risk of serious harm . Even if plaintiff can show that he had a serious medical need, he still must show that defendan ts were deliberately indifferent to that need. Farmer, 511 U.S. at 837. Deliberate 15

i n d ifferen ce means that prison officials were aware that the prisoner needed medical treatm ent, but disregarded the risk by failing to take reasonable measures. Forbes v. Edgar, 1 1 2 F.3d 262, 266 (7th Cir. 1997). Inadvertent error, negligence, gross negligence and o rd in ary malpractice on the part of prison officials are not cruel and unusual punishment w ithin the meaning of the Eighth Amendment. Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1 9 9 6); Snipes v. DeTella, 95 F.3d 586, 590-91 (7th Cir. 1996). Similarly, disagreement w i th a doctor's medical judgment, incorrect diagnosis or improper treatment resulting from n egligen ce is insufficient to state an Eighth Amendment claim. Gutierrez v. Peters, 111 F.3d 1364 , 1374 (7th Cir. 1997); Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 19 96 ). In other words, the treatment must have been "so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate the prisoner's condition," Sn ipes, 95 F.3d at 592 (internal quotations omitted), or so far afield of accepted professional standards as to imply that it was not actually based on a medical judgment, Estate of Cole, 94 F.3d at 262. Under these standards, therefore, the deliberate indifference prong of plaintiff's claim has three elements: 1. 2. D id plaintiff need medical treatment? D id defendants know that plaintiff needed treatment?

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3.

D espite their awareness of the need, did defendants fail to take reason able measures to provide the necessary treatment?

Because plaintiff has the burden to prove his case at trial, it is his burden on summary judgm ent to come forward with enough evidence on each of these elements to show that a reasonable jury could find in his favor. Borello v. Allison, 446 F.3d 742, 748 (7th Cir. 20 06 ); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Although it is undisputed that plaintiff had pain in his foot for which he had been tak in g methadone until his transfer to Columbia Correctional Institution on February 7, 2 0 0 7, it is unclear how severe his pain or other symptoms were after he stopped taking m ethadone. Plaintiff avers in his affidavit that for two weeks after stopping methadone, he s uffered from itching, vomiting, dizziness, tremors, cold sweats and suicidal thoughts. H ow ever, there is no medical record supporting plaintiff's averment that he experienced these symptoms. Plaintiff failed to mention his alleged methadone withdrawal symptoms in the nine health services requests that he made in February and March 2007. Further, in th e two health services requests in which he discussed his pain and need for a methadone prescription (February 7 and 22, 2007), he noted specifically that he did not need to see health services unit staff. There is similar conflicting evidence with respect to his allegedly un bearab le foot pain. It is undisputed that plaintiff was able to function normally and even d o "windmills" and other activities during certain periods of time and that he did not

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com plain of pain for significant periods of time. Finally, the parties disagree over the cause o f plaintiff's reported increase in anger and suicidal thoughts. Plaintiff avers that these sym p to m s surfaced after he started taking Tramadol and subsided when he stopped. D e fen dan ts have produced evidence that plaintiff denied suicidal thoughts while he was on Tram adol and that his psychiatrists attributed his anger to his antisocial personality disorder. B eca use the nature and severity of plaintiff's medical conditions are in dispute, I will assum e for the purpose of deciding the parties' motions for summary judgment that plaintiff's methadone withdrawal symptoms, foot pain and self-reported side effects to T ram ado l constituted serious medical needs for which he needed treatment. The next questio n is whether defendants knew about those needs and failed to take reasonable m easures in response.

A. The Correctional Officer Defendants The parties dispute whether defendants Isaac Hart, DeLong, Winslow-Stanley, T rim ble, Isaacson, LeFevre, Pafford, Maday, Herbrand, Wogernese, Zimmerman and Thill k new about plaintiff's foot pain or any of his alleged methadone withdrawal symptoms and failed to get him immediate medical assistance. However, even assuming that all of

p lain tiff's averments about what he told these officers are true, a reasonable jury would not

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be able to conclude that most of these defendants acted with deliberate indifference to plaintiff's medical needs. Plaintiff provides very few details about what he told defendants Thill, WinslowStanley, Hart, LeFevre, Zimmerman, Pafford, Maday, Herbrand and Wogernese. He avers o nly generally that he told Thill that he needed methadone, handed defendant WinslowS tan ley an offender complaint to submit, told LeFevre on one occasion that he was going through "withdrawal" and needed a doctor and that he told Zimmerman, Pafford, Maday, H erbran d and Wogernese on one occasion that he was sick, his foot hurt and he needed to see a doctor. According to plaintiff, they responded by telling him to make out a health services request. Although I understand that plaintiff would have preferred that these correctional o fficers insist that he be seen by a doctor, nothing in the record indicates that they had any reaso n to do so, let alone that they had a duty to do so under the circumstances. Telling plaintiff to complete a health services request was a reasonable and appropriate response to p lain tiff's admittedly vague complaints of sickness and unspecified reports of pain and w ithdraw al. Plaintiff has not proposed any facts showing that these defendants knew the na ture or severity of his illness or that they prevented him from seeing a doctor. In fact, plaintiff made nine health services requests in February and March 2007 and filed an offender complaint on February 7, 2007. 19

Although plaintiff avers that defendant Isaac Hart actually observed him vomit, he h as no other evidence to prove that Hart knew that plaintiff was seriously ill as a result of w ithdraw ing from methadone. For all Hart knew, plaintiff's one-time vomiting was the result of an upset stomach or another minor condition. It was reasonable for Hart to con clude that plaintiff was not seriously ill because plaintiff refused to complete the health services request form that Hart brought him. Without more, a reasonable jury could not conclude that defendants Thill, WinslowS tanley, Hart, LeFevre, Zimmerman, Pafford, Maday, Herbrand or Wogernese acted with d elib erate indifference to plaintiff's complaints of methadone withdrawal symptoms or foot pain . Therefore, those defendants are entitled to summary judgment on plaintiff's Eighth A m endm ent claims against them. A lth ou gh plaintiff's averments with respect to defendants Isaacson, Trimble and D eLo ng not much more detailed, they might permit a reasonable jury to conclude that these d efen dan ts acted with deliberate indifference to plaintiff's complaints of suffering from m ethadone withdrawal by failing to contact the health services unit. Defendants concede that if plaintiff had informed a correctional officer about his severe foot pain or withdrawal sym ptom s, the officer would have informed the health services unit and someone in that unit w o u ld have told the officer whether plaintiff had to be seen immediately. According to p lain tiff's version of the facts, he repeatedly told defendants Isaacson, Trimble and DeLong 20

o ver a three-day period that he was in pain and experiencing symptoms of methadone w ithdraw al. If the jury believed plaintiff, it could conclude reasonably that these defendants acted with deliberate indifference to plaintiff's serous medical needs. Although giving plaintiff a health services form to complete may have been a reasonable response to a onetim e complaint of pain, such a response may be less reasonable after three days of repeated com plaints. I note that the fact that plaintiff failed to describe his withdrawal symptoms in his health services requests and noted on those requests that he did not need to see health services staff suggests that his symptoms were not severe or of immediate concern, but it will b e up to the jury to make the final decision both about the extent to which plaintiff was experiencing pain and what he told defendants Isaacson, Trimble and DeLong. Accordingly, d ef e n d a n ts' motion for summary judgment with respect to plaintiff's Eighth Amendment claim s against defendants Isaacson, Trimble and DeLong will be denied.

B . Defendant Suliene 1 . Lack of treatment until March 28, 2007 Plaintiff asserts that defendant Suliene exhibited deliberate indifference when she failed to see him for his complaints of methadone withdrawal symptoms and foot pain until M arch 28, 2007. Defendants contend that Dr. Suliene did not treat plaintiff for methadone w ithdraw al in February 2007 because she did not know that he had been taking it or that 21

he was suffering any symptoms after stopping it. Plaintiff alleges that he was going through m ethadon e withdrawal during the first few weeks following his transfer to the Columbia C orr ection al Institution. However, it is undisputed that plaintiff did not mention his w i th draw a l symptoms in the nine health services requests that he made in February and M arch 2007. (On February 22, 2007, plaintiff submitted a health services request stating on ly that he had a "large twitch" and specifically stated that he did not want to see health services staff.) He also fails to adduce any other evidence showing how defendant Suliene w ou ld have known about those symptoms. Accordingly, defendant Suliene is entitled to sum m ary judgment in her favor on plaintiff's claim that she acted with deliberate indifference to his methadone withdrawal symptoms. Sim ilarly, there is no evidence that defendant Suliene knew that plaintiff was suffering from foot pain until mid-March 2007. Although plaintiff points out that he made several health services requests in February and March 2007, there is no evidence showing that Suliene received those requests or had a chance to respond to them. Also in February 2 0 07, plaintiff filed an inmate complaint about the lack of treatment for his foot pain. Although plaintiff contends that Suliene received an email copy of the complaint examiner's d ecisio n , that decision was not issued until March 14, 2007. Given this evidence, no reasonable jury could conclude that defendant Suliene knew about any of plaintiff's medical n eed s until mid-March 2007. Within two weeks of learning about plaintiff's foot pain, 22

Suliene saw and treated plaintiff. Because defendant Suliene did not delay unreasonably the treatm ent of plaintiff's foot pain, she is entitled to summary judgment on plaintiff's deliberate indifference claim related to that issue.

2 . Refusal to prescribe methadone P lain tiff takes issue with the fact that after seeing him on March 28, 2007, defendant S uliene chose not to treat his foot pain by putting him back on methadone. Because plaintiff received some medical care, it is his burden to show that the care he received was "so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate" his medical condition. Snipes, 95 F.3d at 592. The undisputed facts show that D r . Suliene saw plaintiff numerous times for his pain, prescribed several different m edications and recommended neurology and podiatry consultations for plaintiff. Dr. Suliene chose to treat plaintiff with Gabapentin, a pain medication that addresses neuro path ic pain. Although plaintiff contends that the Gabapentin was completely

ineffective and that he remained in unbearable pain as a result, he stopped taking it before it could start working. After plaintiff complained to Suliene on April 28, 2007, Suliene in creased the dosage of the Gabapentin. When plaintiff complained again on May 25, 2007, S uliene asked plaintiff in writing whether he was taking the increased dosage of Gabapentin an d advised him that he had an upcoming doctor's appointment. However, plaintiff failed 23

to respond to Suliene's question and wrote in a June 13, 2007 health services request that he had not taken the Gabapentin for two and a half months (or since the end of April 2007). That same day, plaintiff signed a form stating that he voluntarily refused to take G ab ap en tin. As an alternative, Suliene prescribed Tylenol. neu rology consultation at that time. B etw een July and September 2007, plaintiff submitted several health services requests com plaining about foot pain. However, during an August 6, 2007 sick call appointment, the nurse noted that plaintiff was continuing his previously reported exercise regimen and that h is pain did not appear to affect his functioning or activities. On August 8 and August 14, 2 0 0 7, plaintiff refused to go to medical exams that were scheduled to address his foot pain. N on etheless, on September 3, 2007, Dr. Suliene asked plaintiff whether he would like to start taking Gabapentin again. On September 26, 2007, she prescribed propoxyphene b ecau se plaintiff had stated it had helped his pain in the past. On October 2, 2007, Suliene chan ged the prescription to Darvocet N, which is the brand name of propoxyphene. After plaintiff again complained of foot pain on November 8, 2007, Suliene increased plaintiff's Darvocet N to four times a day. On January 8, 2008, Suliene ordered plaintiff an ankle sleeve at his request and prescribed Tramadol, a non-narcotic analgesic, but discon tinued it on January 14 because it would interfere with the amitriptyline that plaintiff She also recommended a

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w a s taking. Instead, she continued plaintiff on Darvocet N. After plaintiff stopped taking am itrip tylin e on February 1, 2008, Suliene prescribed Tramadol for plaintiff again. B etw e en February 6 and June 26, 2008, plaintiff did not complain about foot pain. Although correctional officers reported to health services staff on June 26, 2008 that plaintiff appeared to be walking with difficulty because of a sore foot, plaintiff reported that he had do ne a cartwheel in his cell and hit his heel against the wall. In August 2008, plaintiff com plained of heel pain because he did a "windmill" in his cell and hit his heel against the w a ll. O n October 21, 2009, plaintiff saw Dr. Stanek, a neurologist at the University of W isco nsin Hospital and Clinics, who recommended Gabapentin, nortipityline and a small do se of methadone. However, soon thereafter, Dr. Suliene and Dr. Stanek agreed to

prescribe only Gabapentin and nortriptyline and if these proved ineffective, they would add m ethadon e to the combination. Suliene also ordered a podiatry consultation, which plaintiff un derw ent on November 23, 2009. Although other doctors may have prescribed methadone for plaintiff's pain, it is well established that a difference of opinion among medical personnel regarding treatment does no t give rise to a finding of deliberate indifference. Estelle, 439 U.S. at 19; Estate of Cole, 9 4 F.3d at 261. Without more, plaintiff cannot show that defendant Suliene's treatment decisions with respect to his foot pain were unreasonable or blatantly inappropriate. After 25

learn ing of his foot pain, Suliene responded to plaintiff's requests for examinations, prescribed pain medication and consulted with various specialists. Further, although

plaintiff avers that he was in unbearable pain without methadone, there is evidence that he refu sed some of the treatment he was given, canceled doctor's appointments, went for m on ths without complaining of pain and was able to engage in physical activity. Therefore, defendan t Suliene is entitled to summary judgment on plaintiff's claim that her failure to treat his foot pain by prescribing methadone constituted deliberate indifference.

3. Tramadol side effects Plain tiff asserts that one of the medications that Dr. Suliene prescribed, Tramadol, caused him to be angry and have strong thoughts of suicide. Aside from his own affidavit, plaintiff has submitted no evidence showing that these side effects were attributable to the T ram ado l that he was taking. However, even assuming that they were, plaintiff's claim fails because he has submitted no evidence that defendant Suliene was deliberately indifferent to th ose side effects. Suliene took the initiative to consult with plaintiff's psychiatrist and together they agreed that Tramadol was not harming him. Further, it is undisputed that S uliene would have considered other options for plaintiff if he had wanted them. Plaintiff w a s informed that he was taking Tramadol voluntarily and was given the option of discontinuing it if he believed it to be causing him harm. However, he chose to continue 26

tak in g it. Therefore, with respect to this claim, defendants' motion for summary judgment w ill be granted and plaintiff's motion for summary judgment will be denied.

C . Defendants Sitzman, Aslum and Raemisch B y moving for summary judgment in this case, defendants challenged plaintiff to p ro du ce evidence from which a reasonable jury could find in his favor on his retaliation claim . Johnson v. Kingston, 292 F. Supp. 2d 1146, 1152-53 (W.D. Wis. 2003). To survive su m m ary judgment, plaintiff must adduce sufficient evidence that would allow a reasonable jury to find defendants were deliberately indifferent to his serious medical needs. Plaintiff has failed to do this with respect to defendants Sitzman, Alsum and Raemisch. In his complaint, plaintiff alleged that defendant Sandra Sitzman, the health services un it manager at the institution, took no action when he told her that he was in pain after D r . Suliene had stopped his methadone. However, plaintiff has failed to propose any findings of fact in response to defendants' summary judgment motion to support his claim. In his brief opposing summary judgment, plaintiff states that defendant Sitzman told the in m ate complaint examiner in February 2007 that plaintiff did not have a current p rescrip tio n for methadone and that he would be seen by a doctor to assess his medication needs. The only other evidence with respect to Sitzman's involvement was adduced by

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d efen dan ts and shows that Sitzman merely reviewed plaintiff's medical records and respo nd ed to an inmate complaint examiner about the treatment he had received. Similarly, plaintiff avers but does not propose as a finding of fact that he told defendant Alsum about the side effects that he was experiencing while on Tramadol. H ow ever, it is undisputed that Alsum's involvement in plaintiff's health care was limited to review ing relevant portions of his medical record and providing information to the inmate com plaint examiner and reviewing and responding to three of his health services requests. Finally, the only evidence adduced against defendant Raemisch is that he accepted the recom m enda tion of the corrections complaint examiner to deny three of plaintiff's offender com plaints. In responding to the complaints and requests filed by plaintiff, both Sitzman and Alsum relied on the clinical judgment of Dr. Suliene, who had evaluated plaintiff. Raemisch relied on the recommendation of the corrections complaint examiner, who relied on the independent medical assessment of the regional nursing coordinator. No reasonable jury could find from these facts that Sitzman's, Alsum's and Raemisch's failure to do more am o un ted to deliberate indifference. Johnson v. Snyder, 444 F.3d 579, 586 (7th Cir. 2006) ( affirm in g summary judgment for health administrator who relied on plaintiff's medical record and doctor's treatment decisions); Johnson v. Doughty, 433 F.3d 1001, 1015 (7th C ir. 2006) (affirming directed verdict for health care administrator who responded 28

ap pro p riately to inmate's complaints of worsening symptoms and relied reasonably on do ctor's professional opinions).

OR DER IT IS ORDERED that 1. D E N IE D . 2. Defendants Faye Hart and Thomas Schoenberg are DISMISSED. 3. The motion for summary judgment of defendants, dkt. #52, is GRANTED with resp ect to plaintiff's claims against defendants Dr. Suliene, Rick Raemisch, Sandra Sitzman, L ori Alsum, Leslie Winslow-Stanley, Faye Hart, Thomas Schoenberg, Stanley Maday, Jr., Isaac Hart, Maury Thill, Jacob Zimmerman, William LeFevre, Mickey Paul Pafford, Lucas W ogern ese and Brian Herbrand and DENIED with respect to plaintiff's claims against defendan ts Mark Isaacson, Victor Trimble and Curtis DeLong. Entered this 18th day of June, 2010. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge Plaintiff Luis Ranirez's motion for partial summary judgment, dkt. #46, is

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