Lacy, Johnny v. Hoftiezer, Scott et al
Filing
68
ORDER granting 45 Motion for Summary Judgment. The clerk of court is directed to enter judgment accordingly. Signed by District Judge Barbara B. Crabb on 10/21/2013. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JOHNNY LACY,
ORDER
Plaintiff,
12-cv-397-bbc
v.
DR. SCOTT A. HOFTIEZER, JAMES GREER,
DR. DAVID BURNETT and DR. BURTON COX,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Johnny Lacy, a prisoner at the Wisconsin Secure Program Facility, brought
this civil action alleging that defendant prison officials, Dr. Scott Hoftiezer, James Greer, Dr.
David Burnett and Dr. Burton Cox, have acted with deliberate indifference by failing to
adequately treat his hepatitis C, diabetes and severe pain. He contends that they should have
arranged for pancreas and liver transplants for him and should be allowing him methadone
for his severe pain. Now before the court is defendants’ motion for summary judgment.
Because plaintiff has failed to show that a reasonable jury could find that any of the
defendants were indifferent to his medical problems, he cannot state an Eighth Amendment
claim against them. Accordingly, I will grant defendants’ motion.
From the parties’ proposed findings of fact and the record, I find that the following
facts are undisputed.
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UNDISPUTED FACTS
At the outset, I note that plaintiff attempts to dispute many of defendants’ proposed
findings of fact without citing to admissible evidence in support of his assertions as required
by this court’s summary judgment procedures. I will disregard those unsupported assertions.
In addition, plaintiff objects to many statements regarding medical issues made by defendant
Cox, asserting that there is no proper foundation for his testimony.
I will disregard
plaintiff’s objections because Cox is a physician who is qualified to make assertions about
medical treatments.
A. Parties
At all relevant times, plaintiff Johnny Lacy was confined at the Wisconsin Secure
Program Facility. Defendant Burton Cox, D.O., is currently employed by the Wisconsin
Department of Corrections as a physician at the Wisconsin Secure Program Facility. David
Burnett, M.D., is employed by the Department of Corrections as medical director of the
Bureau of Health Services. As medical director, Burnett has direct supervisory authority over
the bureau’s staff physicians and psychiatrists, including those employed at the Wisconsin
Secure Program Facility. Occasionally, Burnett will participate in responding to “Class III”
offsite treatment requests and also in conference calls with practitioners to provide
recommendations for inmate patient care.
Defendant Scott Hoftiezer, M.D., is an associate medical director of the Bureau of
Health Services. Hoftiezer is also employed by the department as a physician at the Dodge
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Correctional Institution. Defendant James Greer is employed by the department as the
director of the Bureau of Health Services. He is not a medical doctor.
B. Plaintiff’s Claims
This case is limited to claims regarding plaintiff's hepatitis C, diabetes and severe
pain, including his claims that he should be put on the transplant list for liver and pancreas
transplants. Hepatitis C is an infection caused by a virus that attacks the liver and
leads to inflammation. Hepatitis C is one of several hepatitis viruses and is generally
considered to be among the most serious. Hepatitis C infection that continues over many
years can cause significant complications, such as scarring of the liver tissue (cirrhosis), liver
cancer or liver failure. Hepatitis C infection is treated with antiviral medications intended
to clear the virus from a patient's body.
In early cirrhosis, it may be possible to minimize damage to the liver by treating the
underlying cause. In this case, medications are used to control damage to liver cells caused
by hepatitis C. Liver cirrhosis makes it more difficult for a person’s liver to remove drugs
from his system. For this reason, treatment providers avoid aspirin, ibuprofen and naproxen.
Acetaminophen may be recommended in low doses for pain relief, though these types of
drugs carry some risks to the liver as well.
In advanced cirrhosis, the liver no longer works. A liver transplant is a treatment
option for people who have end-stage liver failure that cannot be controlled by using other
treatments and for some people with liver cancer. For people with the hepatitis C infection,
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a liver transplant is not a cure. Treatment with antiviral medications usually continues after
a liver transplant, since hepatitis C infection is likely to recur in the new liver. The number
of people waiting for new livers is much larger than the number of available livers, so liver
transplant is reserved for people who are critically ill. It is defendant Cox's belief that
plaintiff does not meet the criteria for a liver transplant because he is not at end-stage liver
failure.
Patients with liver disease may develop acute or chronic pain from a variety of causes.
Management of pain in patients with liver disease raises special concerns. Methadone is not
advised in severe liver failure. Defendant Cox believes that methadone or opioids are not
appropriate because they are especially toxic in patients with impaired liver function and
chronic pain is not best treated with opiates. (I understand plaintiff to be arguing that
defendant Cox is lying when he says that methadone is inappropriate because ibuprofen, a
drug Cox prescribed plaintiff for a time, has the same harmful effects on the liver. However,
plaintiff is not qualified to say that both drugs have identical negative effects, and Cox makes
it clear that methadone has the added problem of being inappropriate for chronic pain.)
Type 2 diabetes is the most common form of diabetes. Because type 2 diabetes occurs
as a result of the body's inability to use insulin properly, rather than because of a problem
with insulin production in the pancreas, a pancreas transplant is not a treatment option for
most people with type 2 diabetes. It is defendant Cox’s belief that plaintiff does not meet
the criteria for a pancreatic transplant.
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C. Medical Treatment History
Plaintiff was transferred to the Wisconsin Secure Program Facility on January 31,
2012, where Nurse Waterman performed an intake review and transfer screening, noting
that plaintiff had hepatitis C, type 2 diabetes, diabetic neuropathy, hypertension, esophageal
varicies, and ulcerative colitis. (As stated above, this case is limited to claims regarding
plaintiff’s hepatitis C, diabetes and severe pain). Nurse Waterman further noted that he had
allergies to PCN, tramadol, and codeine. Plaintiff was placed on a treatment care plan for
his chronic pain, diabetes, and hepatitis C.
On February 1, 2012, defendant Cox ordered lab tests for monitoring diabetes and
thyroid. Cox ordered plaintiff a regular diet with a diabetes management bedtime snack on
February 9, 2012. On February 12, 2012, plaintiff filed a health service request stating that
he was in excruciating pain. Cox responded by stating, “You’re going to have to learn to live
with your pain without opiate narcotics. You were caught diverting you[r] methadone,
again.” On February 14, 2012, Cox saw plaintiff for discussion of his pain, past workups
and his requests for a “no kneel” restriction, methadone and an abdominal binder. From the
discussion and from his examination of plaintiff, Cox decided that no binder was needed.
Plaintiff disagreed with this decision. Cox prescribed 20 milligrams of pantoprazole twice
a day for one year and ordered x-rays of plaintiff’s spine and knees for review of his chronic
pain and degenerative joint disease. Cox ordered lab tests for monitoring liver function for
hepatitis C.
On February 20, 2012, x-rays showed mild degenerative changes of plaintiff’s cervical
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spine and normal knees with no fracture or dislocation seen. (Plaintiff states that “x rays do
not show soft tissue/damages, as I’ve been informed by several WDOC doctors, including
Cox, so, there would be no evidence on x rays to show the extent of damages to the cartilage
and the fluids involved in keeping the knees functional.”) Cox ordered that plaintiff be given
an extra pillow for his chronic pain, 400 milligrams of ibuprofen four times a day for one
year with food for pain and TED compression stockings to treat dependant edema.
Cox ordered analgesic cream for plaintiff’s joint and muscle discomfort on February
28, 2012.
On February 29, 2012, Cox ordered a liver ultrasound for liver cancer
surveillance. On March 12, 2012, Cox prescribed 2000 units of vitamin D four times a day
for one year.
On March 15, 2012, plaintiff refused to come out of his cell for an appointment with
Cox because he refused to kneel for escort. Cox ordered a podiatry consult with the
University of Wisconsin Hospital and Podiatry Clinic for review of plaintiff’s diabetes
management and neuropathy. (Plaintiff disputes this, stating that Cox sent him for a toenail
trimming and a check on the diabetic neuropathy in the plaintiff’s lower legs and feet. Dr.
Jill Migon trimmed the plaintiff’s toenails and ordered Lamisil cream to be applied two times
a day. Plaintiff states that defendant Hoftiezer called in this order to the prison that day.)
On April 9, 2012, defendant Cox ordered accuchecks of plaintiff’s blood sugar as
needed for symptoms of hypoglycemia. On April 11, 2012, plaintiff had an ultrasound of
the right upper quadrant of his abdomen for monitoring of his hepatitis C. It was noted the
ultrasound was limited by excessive bowel gas but thatno evidence of hepatic cellular disease
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except for a slightly dense liver. No ascites, renal or hepatic masses were noted either.
On April 23, 2012, Cox ordered Reguloid capsules for constipation and a chest X-ray
to evaluate complaint of shortness of breath. On April 28, 2012, Cox renewed plaintiff’s
prescription for 80 milligrams of furosemide twice a day for one year. On April 30, 2012,
plaintiff’s chest X-ray showed a normal chest examination, without tuberculosis. Also on that
date, Cox noted that he consulted with Dr. Chan of UW regarding management of plaintiff’s
type 2 diabetes. Cox further ordered plaintiff 30 milligrams of milk of magnesia at bedtime
as needed for constipation for one year.
On May 11, 2012, plaintiff was seen by the UW Podiatry Clinic. Plaintiff was
prescribed Lamisil cream to his feet twice a day for fourteen days. On May 14, 2012, Cox
continued plaintiff’s prescription for 10 milligrams phytonadione (a vitamin K supplement
to prevent bleeding in patients with cirrhosis) for one year.
On June 18, 2012, Cox updated plaintiff’s diabetes treatment care plan. On July 12,
2012, Cox discontinued his prescription for diphenhydromine because of reports of plaintiff
diverting the medication. Cox met with plaintiff on July 19, 2012, when he came to the
Health Services Unit to get his toenails clipped. Cox and plaintiff discussed the “DMCCC”
(defendants do not explain this abbreviation) and his insulin changes. Plaintiff stated to Cox
that he “adjusts” his insulin according to how active he’s going to be, usually decreasing his
evening doses.
Cox noted the accucheck log showed the “FBS” and evening checks were usually still
too high. Cox continued plaintiff’s prescription of lisinopril at 20 milligrams for one year for
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treatment of hypertension and prevention of diabetic kidney disease. Cox further ordered
labs for hepatitis C and liver function monitoring to monitor for liver failure, an abdominal
ultrasound, and prescribed 500 milligrams neomycin for six days for reducing blood ammonia
level. Cox also updated plaintiff’s chronic pain treatment care plan.
On July 19, 2012, plaintiff was seen by Lisa Cervantes of the UW GI Clinic for his
hepatitis C, cirrhosis and ulcerative colitis treatment plan.
On August 20, 2012, Cox ordered an appointment for plaintiff for his complaints of
“abdominal bloating.”
On August 27, 2012, Cox prescribed plaintiff 25 milligrams of
pregabalin three times a day for neuropathic pain from diabetes and fibromyalgia for six
months. On September 6, 2012, Cox saw plaintiff for review of his complaints of abdominal
wall swelling and his request for a binder. On exam, Cox found the abdomen had general
tenderness without masses and concluded that the pain was probably associated with the
hepatitis C and cirrhosis and a binder was not indicated. Cox ordered a “U.S. abdominal”
for plaintiff’s hepatitis C and a vital sign check every month for one year. Cox changed
plaintiff’s prescription of lisinopril to losarten 50 milligrams once a day for one year and
discontinued plaintiff’s prescription for pregabalin per his request.
On September 12, 2012, an ultrasound of plaintiff’s abdomen was taken for evaluation
of ascites regarding hepatitis C, but the test showed no evidence of ascites. A large cystic
structure in the left upper quadrant was noted to be possibly related to the kidney. As a
result, a CT scan was recommended.
On September 12, 2012, Cox prescribed plaintiff 25 milligrams of amitriptyline at
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bedtime for chronic pain/neuropathy for one year. On September 27, 2012, Cox prescribed
plaintiff 60 milliliters of lactulose once a day for one year for his complaints of abdomen
tenderness.
On October 4, 2012, Cox directed plaintiff be scheduled for a toenail clipping at the
Health Services Unit for diabetic foot care. On October 8, 2012, Cox prescribed plaintiff
Hydrophor for his feet for diabetic foot prophyllaxis twice a day for one year and renewed his
prescriptions for 400 milligrams of mesalamine, two tablets three times a day for one year,
a multivitamin 1 tablet daily for chronic health conditions for one year and analgesic cream
to be applied to his affected joints and muscles for chronic pain for one year. Cox changed
plaintiff’s prescription of ibuprofen to 200 milligrams sulindac twice a day as needed for pain
for one year.
On October 22, 2012, plaintiff was seen in the Health Services Unit for a toenail trim
with bone snips for diabetic foot care treatment. At that time, Cox reviewed with him the
results of his lab tests. Cox noted that plaintiff stated that he was taking 24 units of insulin
in the morning and 18 units in the evening instead of the prescribed 30 units in the morning
and 18 units at bedtime. Cox ordered labs for hepatitis C and liver function monitoring,
“DMCCC” with labs and “U.S. abdominal,” and changed the Hydrophor to petroleum jelly
for his feet as needed for one year.
On November 6, 2012, Cox continued the Lobana lotion for chronic pruritis for six
months. On November 7, 2012, Cox requested a CT scan of plaintiff's abdomen due to a
large cystic structure in the lower upper quadrant. On November 19, 2012, Cox ordered a
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CBC test and an International Normalized Ratio for monitoring of plaintiff's hepatitis C and
liver treatment.
On November 26, 2012, Cox increased plaintiff's prescription of
amitriptyline to 50 milligrams at bedtime for one year. Plaintiff was seen in the Health
Services Unit on November 28, 2012, for a lab draw.
On December 5, 2012, defendant Cox asked plaintiff about his recommendation for
Cymbalta but plaintiff refused to consider it for his chronic pain issues and also requested to
be taken off the amitriptyline. Cox noted that plaintiff had further requested that Dr.
Knuppel, the psychiatrist, discontinue his prescription for mirtazapine, a psychotropic
medication.
On January 10, 2013, Cox changed the request for the CT scan of the abdomen to a
CT scan with a contrast. The CT scan with contrast of plaintiff's abdomen showed hepatic
cirrhosis and splenomegaly. Plaintiff was seen in the Health Services Unit on January 16,
2013, for a lab draw. On January 24, 2013, Cox placed plaintiff on an insulin sliding scale
for his diabetes and also changed his prescription of insulin to 32 units in the morning and
18 units at bedtime.
On February 5, 2013, Cox prescribed plaintiff 100 milligrams labetolol, twice a day
for his blood pressure for 1 month and portal hypertension secondary to cirrhosis. On
February 7, 2013, Cox continued plaintiff's prescription of 100 milligrams labetolol twice a
day for one year, continued his multivitamin for one year, and clarified that the 800
milligrams mesalamine was to be taken once a day for one year. Cox further ordered lab tests
for hepatitis C and liver function monitoring in six months with "DMCCC."
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Around this time, Cox went on leave. Physicians from other Wisconsin prisons took
over the medical treatment of the Wisconsin Secure Program Facility inmate population. Cox
returned around May 13, 2013, and resumed providing medical care. On that day, Cox
continued plaintiff's prescription for Lobana lotion for his skin for one year.
At this time, defendant Cox is treating plaintiff’s hepatitis C and cirrhosis with medical
monitoring, including exams and lab tests and referrals to the University of Wisconsin GI
clinic. Cox is treating plaintiff’s diabetes with insulin, regular monitoring by him and Dr.
Adler, a DOC physician located at the New Lisbon Correctional Institution, along with diet
and encouraging plaintiff to exercise to maintain a healthy weight. Cox is treating plaintiff’s
complaints of chronic pain with capsaicin 0.025% cream, and ibuprofen.
OPINION
Under the Eighth Amendment, prison officials have a duty to provide medical care to
those being punished by incarceration. Snipes v. De Tella, 95 F.3d 586, 590 (7th Cir. 1996)
(citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). To state an Eighth Amendment medical
care claim, a prisoner must allege facts from which it can be inferred that he had a “serious
medical need” and that prison officials were “deliberately indifferent” to it. Estelle, 429 U.S.
at 104; Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997).
A medical need may be serious if it is life-threatening, carries risks of permanent
serious impairment if left untreated, results in needless pain and suffering when treatment
is withheld, Gutierrez, 111 F.3d at 1371-73, “significantly affects an individual’s daily
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activities,” Chance v. Armstrong, 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.
Farmer v. Brennan, 511 U.S. 825, 847 (1994).
“Deliberate
indifference” means that the officials were aware that the prisoner needed medical treatment,
but disregarded the risk by failing to take reasonable measures. Forbes v. Edgar, 112 F.3d
262, 266 (7th Cir. 1997).
From plaintiff’s complaint and materials in support of his motion for summary
judgement as well as previous motion for preliminary injunctive relief, I understand that he
is seeking liver and pancreas transplants, as well as methadone or other opiate pain
medication to treat his severe pain. However, as I explained to plaintiff in the February 4,
2013 order denying his motion for preliminary injunctive relief, prison officials are not
deliberately indifferent to a prisoner's medical needs simply because they deny the prisoner
the particular medical treatment of his choice. Greeno v. Daley, 414 F.3d 645, 653 (7th Cir.
2005).
It is not enough for plaintiff to show that he disagrees with defendant Cox’s
conclusions about the appropriate treatment for his medical conditions, Norfleet v. Webster,
439 F.3d 392, 396 (7th Cir. 2006), or even that Cox could have provided better treatment.
Lee v. Young, 533 F.3d 505, 511-12 (7th Cir. 2008). “Mere differences of opinion among
medical personnel regarding a patient’s appropriate treatment do not give rise to deliberate
indifference.” Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996).
Instead, plaintiff must show that the treatment "decision [wa]s such a substantial departure
from accepted professional judgment, practice, or standards as to demonstrate that the person
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responsible did not base the decision on such a judgment." Id. at 261-62; see also Snipes, 95
F.3d at 590-91 (plaintiff must show that treatment decision was "so blatantly inappropriate
as to evidence intentional mistreatment likely to seriously aggravate his condition").
Defendants have produced records showing plaintiff’s treatment history, have offered
expert medical testimony that plaintiff’s medical conditions have been treated appropriately
and concluded that plaintiff’s preferred treatment—liver and pancreas transplants and
methadone for his pain—is not appropriate. The summary judgment record details the ways
plaintiff’s conditions are being treated by defendant Cox: conducting checks of plaintiff’s
blood sugar, monitoring his liver function and providing various medications both for pain
and for his underlying medical problems.
Plaintiff fell short of proof when he sought a preliminary injunction and he has done
no better at the summary judgment stage.
In particular, plaintiff provides no expert
testimony indicating that defendant Cox’s course of treatment is so far outside the scope of
accepted professional standards as to show deliberate indifference. Accordingly, I will grant
summary judgment to defendants on plaintiff’s claims against defendant Cox.
With regard to defendants Burnett, Hoftiezer and Greer, 42 U.S.C. § 1983 requires
“personal involvement” in an alleged constitutional deprivation for a defendant to be liable.
Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003). At most, plaintiff suggests
that these defendants may have been involved at the margins of a handful of treatment
decisions, such as Burnett’s being involved in approving off-site treatment requests. However,
even assuming that this is the case, plaintiff cannot succeed on any claims against these
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defendants now that I have already concluded that he has failed to show that the medical
treatment he has received is so far outside the scope of accepted professional standards as to
show deliberate indifference.
ORDER
IT IS ORDERED that the motion for summary judgment filed by defendants Burton
Cox, David Burnett, Scott Hoftiezer and James Greer, dkt. #45, is GRANTED. The clerk
of court is directed to enter judgment accordingly.
Entered this 21st day of October, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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