Tolonen, Eric v. Heidorn, Richard et al
ORDER granting defendants' 37 Motion for Summary Judgment; denying as moot plaintiff's 78 Motion to Amend Complaint; denying plaintiff's 79 motion to stay proceedings to conduct further discovery. The clerk of court is directed to enter judgment for defendants and close this case. Signed by District Judge Barbara B. Crabb on 11/26/2013. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ERIC L. TOLONEN,
OPINION AND ORDER
DR. RICHARD HEIDORN,
DR. DAVID BURNETT,
DR. KENNETH ADLER
and LIZZIE TEGELS,
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Eric Tolonen, a prisoner at the Jackson Correctional Institution in Black
River Falls, Wisconsin, is proceeding in forma pauperis on his claim under 42 U.S.C. § 1983
that defendants are failing to treat his severe dermatitis and cystic acne. His case is before
the court on defendants’ motion for summary judgment and plaintiff’s motions to amend
the complaint and to stay the proceedings in order to conduct further discovery. After
considering the proposed findings of fact and supporting evidence submitted by the parties,
I will grant defendants’ motion for summary judgment, deny plaintiff’s motions and direct
the clerk of court to close the case.
MOTION TO STAY PROCEEDINGS
I begin with plaintiff’s motion to stay the proceedings so that he may obtain further
discovery from defendants. Plaintiff states that he would like to serve interrogatories on
defendants, asking them questions such as whether his problems constituted serious medical
needs and whether they persisted in ineffective treatment. The last-minute nature of
plaintiff’s motion is reason enough to deny it, but in any case, it is unnecessary for plaintiff
to seek this type of discovery from defendants because their summary judgment materials
already make clear their answers to these questions. They believe that plaintiff was not
suffering from a serious medical need and that they did not persist in ineffective treatment.
Instead, their position is that they have continually tried new treatments, but that plaintiff
has not taken his medications consistently. Accordingly, I will deny plaintiff’s motion for
MOTION FOR SUMMARY JUDGMENT
Plaintiff is proceeding on claims that defendants violated his Eighth Amendment right
to adequate medical care by failing to properly treat his severe dermatitis and cystic acne,
particularly in not referring him to a dermatologist. A prison official may violate this right
if the official is "deliberately indifferent" to a "serious medical need." Estelle v. Gamble, 429
U.S. 97, 104-05 (1976). A "serious medical need" may be a condition that a doctor has
recognized as needing treatment or one for which the necessity of 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 may be serious if it
"significantly affects an individual's daily activities," Chance v. Armstrong, 143 F.3d 698,
702 (2d Cir. 1998), if it causes significant pain, Cooper v. Casey, 97 F.3d 914, 916-17 (7th
Cir. 1996), or if it otherwise subjects the prisoner to a substantial risk of serious harm,
Farmer v. Brennan, 511 U.S. 825 (1994). "Deliberate indifference" means that the officials
are aware that the prisoner needs medical treatment, but are disregarding the risk by failing
to take reasonable measures. Forbes v. Edgar, 112 F.3d 262, 266 (7th Cir. 1997).
Thus, under this standard, plaintiff's claim has three elements:
(1) Did plaintiff need medical treatment?
(2) Did defendants know that plaintiff needed treatment?
(3) Despite their awareness of the need, did defendants fail to take reasonable
measures to provide the necessary treatment?
In a July 23, 2013 order, I denied plaintiff’s motion for preliminary injunctive relief,
following defendants’ submission of voluminous medical records showing the various
different ways in which they attempted to treat plaintiff’s maladies. I concluded as follows:
After considering the parties’ submissions, I will deny the motion
because plaintiff has failed to show some likelihood of success on the merits
of his § 1983 claim. . . .
. . . . Because the severity of plaintiff’s acne is a dispute of material fact,
I will not decide as a matter of law whether it is a serious medical need.
Plaintiff wants to see a dermatologist but defendants do not believe
that a referral is medically necessary. Prisoners are not entitled to receive the
particular medical treatment of their choice. Forbes v. Edgar, 112 F.3d 262,
267 (7th Cir. 1997). The undisputed facts show that although plaintiff has
not received the specific treatment he wants from defendants, they have
provided him with other treatment options. Defendants have prescribed a
series of different medications, soaps and topical ointments and continue to
try new courses of treatment. For example, plaintiff was taking ciprofloxacin,
a drug he does not allege he tried before, as recently as January 2013. Plaintiff
has not provided any expert testimony or other evidence in his submissions in
support of his motion for preliminary injunction showing that these courses
of treatment are “a substantial departure” from existing professional norms.
Without such evidence, plaintiff’s claim amounts to a disagreement with
defendants about his treatment. Because plaintiff has not adduced any
evidence showing that defendants acted below the minimal standard of
competence, I conclude that he has failed to show some likelihood of success
on his claim of deliberate indifference.
Nothing has changed now that I am considering defendants’ motion for summary
judgment. The parties rely on essentially the same record that was before the court on
plaintiff’s motion for preliminary injunction, which I set out in detail in the July 23 order
and will not reiterate here. I need not consider whether plaintiff’s conditions constitute
serious medical needs; the record is clear that even if the conditions are serious medical
needs, defendants have not been deliberately indifferent to them.
Defendants have submitted a voluminous medical history showing that they provided
plaintiff with more than a dozen different topical or oral medications for acne and
dermatitis, including antibiotics and hydrocortisone cream, and have given him special
antiseptic soap and an allowance for daily showers. They provide expert medical testimony
to the effect that plaintiff’s conditions were not getting progressively worse, but rather that
he had frequent flare-ups, common to his conditions, and that trial and error is often the
only way to find effective acne medications. Defendant doctors Richard Heidorn, Kenneth
Adler and David Burnett did not send plaintiff to a dermatologist because they did not think
that a referral was medically necessary; different treatment options remained open and
plaintiff had stopped taking the prescribed treatments on many occasions, making it more
difficult to tell whether certain treatments were working.
For his part, plaintiff states that he stopped taking many of the medications because
he believed they were not working and argues that defendants “must experiment to progress,
but this does not give the doctor a license to use him as a lab rat, only to discover that the
medicine prescribed is ineffective in treating acne” and that “the proper standard of care
should have been to send him to a dermatologist, so he could receive a proper diagnosis . .
. . or at least [receive a ] culture sample in order to find out the most effective oral antibiotic
in treating his cystic acne.” However, plaintiff is not a medical expert and has not provided
any medical testimony to support his claims about the alleged ineffectiveness of the
prescribed medications (particularly given his repeated decisions to stop taking them) or his
proposed standards of care or expert testimony that the defendant doctors’ decisions were
“such a substantial departure from accepted professional judgment, practice, or standards
as to demonstrate the person responsible did not base the decision on such a judgment.”
Estate of Cole v. Fromm, 94 F.3d 254, 261-62 (7th Cir. 1996). No doubt plaintiff is
frustrated about defendants’ inability to find a medication or other treatment that would end
his cystic acne, but their failure does not mean that they were deliberately indifferent to his
discomfort. Much as he might wish it otherwise, medicine is not an exact science. I
conclude that no reasonable jury hearing the facts presented by the parties could find that
defendants Richard Heidorn, Kenneth Adler and David Burnett acted with deliberate
Moreover, regarding non-physician defendants Health Services Unit Manager
Jeananne Zwiers and Warden Lizzie Tegels, plaintiff concedes that they did not make
medical determinations about his acne or dermatitis and neither of them had authority to
approve a referral to a dermatologist. Plaintiff has shown no reason why they could be held
responsible for the treatment decisions. Accordingly, I will grant defendants’ motion for
MOTION TO AMEND COMPLAINT
Finally, plaintiff has filed a motion to amend the complaint to reduce the amount of
damages he is seeking. Because I am granting defendants’ motion for summary judgment,
I will deny this motion as moot.
IT IS ORDERED that
1. Plaintiff Eric Tolonen’s motion to stay proceedings to conduct further discovery,
dkt. #79, is DENIED.
2. The motion for summary judgment filed by defendants Richard Heidorn, Kenneth
Adler, David Burnett, Jeananne Zwiers and Lizzie Tegels, dkt. #37, is GRANTED.
3. Plaintiff’s motion to amend his complaint to change the amount of damages
requested, dkt. #78, is DENIED as moot.
4. The clerk of court is directed to enter judgment for defendants and close this case.
Entered this 26th day of November, 2013.
BY THE COURT:
BARBARA B. CRABB
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