Schweinert v. Mccray et al

Filing 35

ORDER denying 30 Motion for Summary Judgment; denying 31 Motion to Appoint Counsel; granting 21 Motion for Summary Judgment. Signed by District Judge William M. Conley on 8/3/2010. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN -------------------------------------------BRIAN SCHWEINERT, OPINION AND ORDER P l a i n t i ff , 09-cv-467-wmc v. M IC H EL LE McCRAY, D efendan t. -------------------------------------------Pursuant to 42 U.S.C. § 1983, plaintiff Brian Schweinert is proceeding, in forma pau peris, on his claim that defendant Michelle McCray was deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights. Now before the court are defendant's motion for summary judgment, plaintiff's motion for summary judgment and plaintiff's renewed motion to appoint counsel. For the reasons that follow, defendant's m otion for summary judgment will be granted and plaintiff's motions will be denied.

R E N E W E D MOTION TO APPOINT COUNSEL B efore taking up the parties' summary judgment motions, the court addresses p lain tiff's renewed motion to appoint counsel. In resolving a motion for appointment of

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cou nsel, a district court must consider both the complexity of the case and the pro se plaintiff's ability to litigate himself. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). A motion to appoint counsel was denied earlier in the lawsuit because the court determined that Schweinert's claim did not involve unusual complexity and Schweinert had d em o n strated that he was able to litigate the case himself. Dkt. # 19. Schweinert has not d em o n strated that circumstances have changed such that he now requires appointment of counsel. As stated in the court's order granting Schweinert leave to proceed, dkt. #6, the law governing Schweinert's deliberate indifference claim has been settled since Estelle v. G am ble, 429 U.S. 97, 103 (1976). Also, Schweinert's submissions to the court show that h e is able to comprehend the court's instructions regarding his claim and to respond accordingly. Although the summary judgment stage of the lawsuit, and what follows, can present unique challenges to pro se litigants who are unfamiliar with legal procedure, S chw einert was provided with a copy of the court's procedures in the pretrial conference o rd er, which included instructions for filing or opposing dispositive motions. Dkt. #16. Schw einert managed to comply with those instructions in opposing McCray's summary judgm ent motion and continues to demonstrate that he has the requisite skill level to represent himself in this matter. Thus, Schweinert's renewed motion to appoint counsel will be denied.

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M O T IO N S FOR SUMMARY JUDGMENT U nd isputed Facts1 A . Parties Plaintiff Brian Schweinert is a Wisconsin state prisoner who has been housed at the O akhill Correctional Institution in Oregon, Wisconsin. Defendant Michelle McCray is em ployed as a licensed nurse practitioner at the Oakhill Correctional Institution. McCray's duties include assessing, evaluating and treating prisoners in the Wisconsin prison system.

B . Schweinert's Medical Care Schweinert was transferred to the Oakhill Correctional facility in October 2008. When a prisoner arrives at that institution, he is assigned to either the physician's practice panel or the nurse practitioner's practice panel. Both a physician and nurse practitioner have the ability to prescribe medications and determine courses of treatment for prisoners. Upon arriving, a nurse completed a transfer screening for Schweinert and noted that he had special restrictions placed on him because of left shoulder pain, including a lower b un k, extra pillow and shoulder brace. The nurse noted that Schweinert was scheduled for a magnetic resonance imaging test (MRI) and, on October 21, 2008, McCray ordered a

From the parties' proposed findings of fact, the court finds that the following facts are undisputed for purposes of the parties' motions for summary judgment.

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prescription of ibuprofen for Schweinert because of his persistent shoulder pain. About a week later, Schweinert received his scheduled MRI, and McCray reviewed th e results. McCray met with Schweinert to discuss his left shoulder pain. McCray told Schw einert that the MRI showed that he had a mild degenerative joint disease. Schweinert asked to be seen by an orthopedic specialist. After discovering that Schweinert had already received approval for such a consult from the institution in which he had been housed previo usly, McCray scheduled one. On January 6, 2009, an orthopedic specialist examined Schweinert's left shoulder. T he specialist noted that Schweinert had a subacromial osteophyte that was irritating his rotator cuff, and he suggested that Schweinert see a sports medicine fellow to consider arth ro sco p ic subacromial decompression for his left shoulder pain. On February 25, 2009, M cC r ay submitted a "class III" request for a follow-up examination with a sports medicine f e ll o w . A class III request is the procedure a physician or nurse practitioner uses if he or she d eterm in es that a prisoner has a medical need requiring him to see an off-site specialist or receive a procedure that cannot be performed on-site. The physician or nurse practitioner subm its a class III request to the bureau of health services for approval and if the request is app rov ed, the submitting physician or nurse practitioner is notified. Health services staff can then make an appointment for the prisoner to be seen by the appropriate medical care

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pro vider. The committee reviewed McCray's class III request and in light of Schweinert's dem on strated range of motion and ability to work, the committee recommended continued "conservative treatment," including anti-inflammatory medicine, joint supplements, physical therapy and rest. On March 12, 2009, McCray spoke to Schweinert about the committee's recom m endations. Schweinert wanted to undergo surgery because of his pain, but McCray did not submit a request for surgery. McCray did tell Schweinert that if he was not satisfied w ith her care, he could submit a request for a different medical care provider. In April 2009, McCray renewed Schweinert's order for ibuprofen and supplements. M cCray noted that Schweinert continued to have pain, even after receiving physical therapy, stero id injections, medications and special restrictions so she increased Schweinert's dose of i b upro fen and prescribed a capsaicin cream. In the same visit, McCray observed that S ch w ein ert had full range of motion. She ordered that Schweinert return to work with no r e s t r ic t io n s . On June 10, 2009, McCray reviewed Schweinert's health services requests, past exam inations and doctors' notes. She submitted a class III request for Schweinert to be evaluated by an orthopedic surgeon. When the request was approved, McCray forwarded Schw einert's medical information to the orthopedic surgeon. A couple weeks later, an orthopedic surgeon examined Schweinert and recommended elective left shoulder surgery.

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At this point, Dr. Bridgwater was assigned to oversee Schweinert's medical case. Dr. Bridgw ater submitted a class III request for surgery, noting that because more conservative treatm ent had failed, he recommended surgery. The committee asked Dr. Bridgwater to discuss the option with the orthopedic surgeon, who had previously examined Schweinert and recommended an examination by a sports medicine fellow. After consulting with the o r th o p edic surgeon, Dr. Bridgwater submitted a new class III request for surgery and the co m m ittee approved the request on September 30, 2009. McCray ordered ibuprofen for S chw einert for an additional three months. O n November 12, 2009, Schweinert received surgery on his left shoulder. Following the surgery, McCray ordered vicoden for Schweinert to help alleviate his pain. In December, M cCray wrote an order for Schweinert to receive an x-ray of his left clavicle. Shortly after, D r. Bridgwater submitted a class III request for exploratory surgery on Schweinert's left sh ou ld er due to post operative shoulder hematoma. S ch w ein ert received a second surgery in February 2010. The request was approved and

O p i n io n Based upon the above, there is insufficient evidence to support a factual finding that M cC ray provided inadequate medical care in violation of the Eighth Amendment. While a jury could find that Schweinert has a serious medical need, no reasonable jury could find

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that McCray was so reckless in her conduct that she acted with deliberate indifference to S ch w ein ert's needs in refusing to submit a request for surgery and providing other treatment in s tead . Therefore, McCray's motion for summary judgment will be granted and

Schw einert's motion will be denied.2

A . Summary Judgment Standard U n d er Fed. R. Civ. P. 56, summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In decidin g a motion for summary judgment, the court must view all facts and draw all inferences from those facts in the light most favorable to the non-moving party. Schuster v. L ucent Technologies, Inc., 327 F.3d 569, 573 (7th Cir. 2003). Nonetheless, the party that bears the burden of proof on a particular issue may not rest on its pleadings but must affirm atively demonstrate through the proposal of specific facts that there is a genuine issue o f material fact that requires a trial. Hunter v. Amin, 583 F.3d 486, 489 (7th Cir. 2009) (internal quotation omitted); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). T he applicable substantive law will dictate which facts are material. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). Further, a factual dispute is "genuine"

Standing alone, Schweinert's motion for summary judgment could also be denied on the grounds that it was filed late and did not include proper support.

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o n ly if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248; Roger Whitmore's Automobile Services, Inc. v. Lake County, Ill., 4 2 4 F.3d 659, 667 (7th Cir. 2005). The court's function in a summary judgment motion is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue of material fact left for trial. Anderson, 477 U.S. at 249; Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 490 (7th Cir. 2007). Here, there is not.

B. Deliberate Indifference to a Serious Medical Need T h e Eighth Amendment prohibits prison employees from showing deliberate indifference to prisoners' serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103 (1976). T o defeat defendant's motion for summary judgment, Schweinert must present facts from w hich a reasonable jury could infer that he had a serious medical need and that McCray was deliberately indifferent to that need. Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 19 97 ).

1. Schweinert's Serious Medical Need T he Court of Appeals for the Seventh Circuit has held that "serious medical needs" enco m pass not only conditions that are life-threatening or that carry risks of permanent, serio us impairment if left untreated, but also those in which the deliberately indifferent

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w ithholding of medical care results in needless pain and suffering. Gutierrez, 111 F.3d at 1371 . A condition meets this standard if it is "one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would perceive the need for a doctor's attention." Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). In light of the evidence, a reasonable jury could find that Schweinert had an ob jectively serious medical need. It is undisputed that Schweinert had substantial left sh ou ld er pain, even after receiving physical therapy, steroid injections, special restrictions a n d pain medications. While Schweinert had full range of motion, he had a degenerative jo in t disease for which all "conservative treatments" had failed. Indeed, he ultimately received multiple surgeries to treat the disease.

2. McCray's Deliberate Indifference W here Schweinert's claim falls short is with respect to the deliberate indifference co m po nent, which requires him to establish that McCray acted with a sufficiently culpable state of mind. Gutierrez, 111 F.3d at 1369. Because Schweinert received some medical treatm ent from McCray, the question is whether that treatment was "so blatantly inap pro priate as to evidence intentional mistreatment likely to seriously aggravate" S chw einert's serious medical condition. Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (inte r n a l quotation omitted). Mere disagreement with a doctor's medical judgment,

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in ad verten t error, negligence, malpractice or even gross negligence in providing treatment is insufficient to establish deliberate indifference. Edwards v. Snyder, 478 F.3d 827, 831 (7th C ir. 2007); Washington v. LaPorte County Sheriff's Dept., 306 F.3d 515, 518 (7th Cir. 2002). Ad dition ally, a prisoner has no right to a specific course of treatment under the Eighth Am endm ent. Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997) ("[The plaintiff] is not entitled to demand specific care. She is not entitled to the best care possible. She is entitled to reasonable measures to meet a substantial risk of serious harm."). Under the facts presented, no reasonable jury could find that McCray's decision to have Schweinert wait to receive shoulder surgery was "so blatantly inappropriate as to evid en ce intentional mistreatment likely to seriously aggravate" his medical condition. Snipes, 95 F.3d at 592. Schweinert may not have agreed with McCray's recommendation, w hich ultimately proved inadequate as a permanent remedy, but McCray did not ignore Schw einert's medical complaints, nor did she refuse to provide treatment. McCray

prescribed pain medications, met with him to review examination results, asked him if he w ould like to take off work, arranged an evaluation by an orthopedic surgeon, submitted a request for a follow up examination by a sports medicine fellow, followed through with the com m ittee's alternative recommendation of "conservative treatment," and when that failed arran ged for another examination by the orthopedic surgeon. While Dr. Bridgwater recommended surgery after others had not, Schweinert has not

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presented any evidence that McCray failed to provide the medical care required of her. Indeed, after both the committee and an orthopedic surgeon recommended that Schweinert pursu e treatment other than surgery, McCray lacked the authority to pursue any course other than conservative treatment, at least until that proved ineffective. Moreover, a medical provider does not demonstrate deliberate indifference merely by u sin g a method of treatment that other medical providers do not prefer or even find inap pro priate. See, e.g., Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996). In this case, it does not seem that McCray and Dr. Bridgwater even had a difference of o p in io n . Dr. Bridgwater recommended surgery only after the more conservative treatment had not worked and the orthopedic surgeon ultimately recommended surgery, and Dr. Bridgw ater relied on those facts when he made his recommendation. Nothing suggests that D r. Bridgwater or any other medical professional would have followed a different course. On the contrary, McCray seemed on board even after the surgery, writing out pain m edication and ordering a shoulder x-ray. Finally, Schweinert states repeatedly that McCray had negative personal feelings to w a rd him and belittled his medical condition. But a medical provider's bad attitude is not en o ugh to give rise to a deliberate indifference claim. While accepting for purposes of su m m ary judgment that McCray could have had a better "bedside manner," there is no evidence that she provided inadequate medical care in violation of the Eighth Amendment.

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T herefore, McCray is entitled to summary judgment.3

OR DER IT IS ORDERED that 1. Plaintiff Brian Schweinert's renewed motion to appoint counsel, dkt. #31, is D E N IE D . 2. Plaintiff's motion for summary judgment, dkt. #30, is DENIED. 3. Defendant Michelle McCray's motion for summary judgment, dkt #21, is G R AN T ED . 4. The clerk of court is directed to enter judgment in favor of defendant and close this case.

E n tered this 3r d day of August, 2010. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ W IL L IA M M. CONLEY D istrict Judge

Because McCray is entitled to summary judgment, there is no need to address her qu alified immunity defense.

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