McGhee, Laderian v. Suliene, Dalia et al

Filing 113

ORDER that the motions for summary judgment filed by defendants Dalia Suliene, Karen Anderson and Lon Becher, dkt. ## 30 and 67 , are DENIED with respect to plaintiff Laderian McGhee's claims that defendant Suliene interfered with plaintiff� 39;s MRI arthrogram appointment and failed to treat plaintiff's shoulder pain adequately, in violation of the Eighth Amendment and common law negligence. Defendants' motions for summary judgment are GRANTED in all other respects. Plaintiff's complaint is DISMISSED as to defendants Anderson and Becher. Signed by District Judge Barbara B. Crabb on 2/12/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - LADERIAN McGHEE,
OPINION AND ORDER
Plaintiff,
13-cv-67-bbc
v.
DALIA SULIENE, KAREN ANDERSON
and LON BECHER,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Laderian McGhee is proceeding on claims that defendants Dalia
Suliene, Karen Anderson and Lon Becher violated his rights under the Eighth Amendment
and Wisconsin negligence law, primarily by delaying surgery he needed for his shoulder and
refusing to provide adequate pain medication while he waited for surgery. Defendants have
filed two motions for summary judgment, one related to plaintiff’s federal claims and one
related to his state law claims. Dkts. ##30 and 67. I conclude that there are disputed
factual issues with respect to plaintiff’s claims that defendant Suliene, a prison physician,
violated plaintiff’s state and federal rights by interfering with plaintiff’s appointment for an
MRI arthrogram and by failing to treat his shoulder pain. I am granting defendants’ motion

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in all other respects and dismissing the complaint as to defendants Anderson and Becher.
From the parties’ proposed findings of fact and the record, I find that the following
facts are undisputed.

UNDISPUTED FACTS
Plaintiff Laderian McGhee is a prisoner in the custody of the Wisconsin Department
of Corrections at the Columbia Correctional Institution, where he was housed during the
events relevant to this case. In November 2011, plaintiff submitted a health service request
in which he complained that he was experiencing “extreme pain” in his shoulder. (Although
plaintiff wrote that he had been in pain “for months,” it is undisputed that November 2011
was the first time he complained about it. Dfts.’ PFOF ¶ 31, dkt. #32; Plt.’s Resp. to Dfts.’
PFOF ¶ 31, dkt. #82.) He asked to see a doctor, writing that “it cannot wait.” In response,
defendant Dalia Suliene, a physician at the prison, wrote that plaintiff was “scheduled to see
[a doctor] soon.” In addition, she ordered pain rub, naproxen and nortriptyline, the last of
which is a drug to make the naproxen more effective, ease muscle spasms and help with
sleep.
In a health service request dated November 23, 2011, plaintiff asked for a nurse to
be present during his visits with defendant Suliene because he was concerned that she would
not provide adequate care. In response, defendant Lon Becher, the health services nursing
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coordinator, agreed to be present at plaintiff’s next appointment. (Plaintiff says that he was
concerned because Suliene recently had refused to treat his foot pain and got upset with him,
stating, “We’re done!” and “storm[ing] out of the room” after plaintiff “pleaded with her to
help him do something about his foot pain.” McGhee Decl. ¶ 54, dkt. #85. After plaintiff
filed a grievance against Suliene, she referred plaintiff to the psychiatrist on the ground that
there “may have been a psychological component to his bunion pain.” Dfts.’ Resp. to Plt.’s
2d Set of Interr., no. 1, dkt. #97.)
In a health service request dated November 27, 2011, plaintiff complained that he
had not received any treatment for the “unbearable” pain in his shoulder and that he was
being mistreated “because of the ongoing conflict between Dr. Suliene & I.” In response,
health care staff wrote that plaintiff was “scheduled to see the doctor” and reminded plaintiff
that he had received pain rub and naproxen.
On November 30, 2011, defendant Suliene examined plaintiff with defendant Becher
present. Plaintiff stated that the nortriptyline was causing seizures and sleeping problems.
Suliene ordered x-rays and physical therapy and substituted ibuprofen for naproxen “due to
intolerance.” (Defendant Suliene does not explain what she meant by “intolerance” and she
does not identify the basis for her opinion. However, in health service requests dated August
25, 2009, October 13, 2011 and October 25, 2011, plaintiff complained that he was
“allergic” to naproxen and it made him vomit. The parties dispute whether Suliene told
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plaintiff that she would not “give him anything else” for his right shoulder pain because she
did not believe that there was a “problem with his shoulder.” McGhee Decl. ¶ 51, dkt. #85.)
On December 6, 2011 x-rays were taken of plaintiff’s right shoulder. The results were
normal.

On December 7, 2011, defendant Suliene ordered six visits with a physical

therapist.
In a health service request dated January 8, 2012, plaintiff asked to see a doctor and
asked for new pain medication because his shoulder was “killing [him] at night” and the
nortriptyline was causing seizures and sleeplessness. In a response, health care staff wrote
that he was scheduled to see the doctor.
On January 17, 2012, a physical therapist ordered an extra pillow for plaintiff and an
ice bag twice a day after work and at bedtime.
On January 18, 2012, defendant Suliene examined plaintiff, noting that he showed
no muscle atrophy. (The parties dispute whether plaintiff could lift his right arm and
whether plaintiff refused a steroid injection. Plaintiff says that Suliene told him that he did
not need an injection because he had received “shock treatment” from the physical
therapist.) Suliene renewed plaintiff’s ibuprofen prescription and planned to reevaluate
plaintiff after he finished physical therapy.
In a health service request dated February 19, 2012, plaintiff wrote that he was in
pain “all the time” and that his pain medication was “not working at all.” He asked “to see
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a shoulder specialist at once!!” and for “pain meds that work.” In response, health care staff
wrote that plaintiff did not have an appointment with a specialist, but asked whether
plaintiff would like to be seen by a nurse.
On February 28, 2012, defendant Suliene examined plaintiff. (The parties do not
identify the reason for the appointment, but presumably, it was scheduled in response to
plaintiff’s February 19 request.) Plaintiff told Suliene that he had pain in his right shoulder,
which was worst at night and that the pain rub, extra pillow and ibuprofen were not working.
In addition, the nortriptyline “caused a reaction.” He could not raise his arm above his
head. (The parties dispute whether Suliene told plaintiff that there was nothing she could
do for plaintiff’s pain.) The following day, Suliene ordered an evaluation by Ellen O’Brien,
an orthopedic consultant for the department.
In March 2012, health care staff provided acetaminophen to plaintiff in response to
his complaints of shoulder pain.
On March 23, 2012, plaintiff met with the orthopedic consultant, who recommended
a right shoulder MRI arthrogram, a procedure used to check for tears in the shoulder joint.
On March 26, 2012, defendant Suliene requested the arthrogram and a followup
appointment with the orthopedic consultant; the request was approved the following day.
On April 27, 2012, the physical therapist discontinued the sessions in light of
plaintiff’s upcoming MRI arthrogram. However, the therapist concluded that plaintiff’s
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active range of motion had improved.
On May 4, 2012, defendant Suliene prescribed acetaminophen for plaintiff’s pain.
(The parties dispute whether plaintiff told Suliene that the acetaminophen he received
previously from health care staff had not been working.)
On May 24, 2012, plaintiff was scheduled for an MRI arthrogram, but it never took
place. (Defendants say that plaintiff refused the procedure; plaintiff says that defendant
Suliene never informed him of the appointment.)
On June 22, 2012, the orthopedic consultant decided not to schedule any further
appointments with plaintiff until the MRI arthrogram had been performed. The same day,
defendant Suliene requested another MRI arthrogram for plaintiff.
On June 25, 2012, plaintiff was scheduled for another MRI arthrogram. (The parties
dispute whether plaintiff verbally refused to attend the appointment. According to plaintiff,
Suliene told him to sign a refusal form without telling him what the form was. After he read
the form and told Suliene he was not refusing treatment, she told him again to sign the
form.) On the “Refusal of Recommended Health Care form,” plaintiff wrote, “I am not
refusing this treatment, I will accept this treatment anytime!”
On July 18, 2012, plaintiff had an MRI arthrogram of his right shoulder. The results
showed the following:
1. Moderate to severe glenohumeral joint degenerative changes with diffuse
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degenerative tearing of the labrum as detailed above.
2. Supraspinatus, infraspinatus and subscapularis tendinopathy without
rotator cuff tear.
3. Longitudinal split tear of the intra-articular portion of the long head biceps
tendon. Fluid is surrounding the biceps tendon sheath.
The same day, defendant Suliene ordered a followup appointment with the orthopedic
consultant.
On July 27, 2012, plaintiff met with the orthopedic consultant. (Plaintiff says that
the consultant told him that if he did not have surgery “as soon as possible,” he ran the risk
of losing the use of his right arm. The consultant says that she determined from the MRI
and her own examination that plaintiff’s condition was chronic and gradual, not acute, so
emergency treatment was not required.)

The consultant recommended an operative

evaluation with an outside orthopedist, but she did not attempt to “jumpstart” the referral
process by contacting the reviewing committee or the referral provider. In addition, she
recommended that plaintiff receive two extra blankets and that his orders for ice and an
extra pillow be renewed.
The same day, defendant Suliene requested approval for a surgical orthopedic
consultation and renewed plaintiff’s orders for ice and an extra pillow. On July 31, 2012,
the request for a surgical consultation was approved.
(The parties dispute whether defendant Suliene refused to discuss plaintiff’s shoulder
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pain during an appointment on July 31 to address plaintiff’s seizures.)
In a health service request dated August 1, 2012, plaintiff asked for more pain
medication. In response, health care staff wrote that plaintiff was prescribed acetaminophen.
In a health service request dated August 14, 2012, plaintiff asked to see a specialist
for his pain. In response, health care staff wrote that an appointment was scheduled for
plaintiff.
In a health service request dated August 27, 2012, plaintiff wrote that his shoulder
was in extreme pain and his pain medications stopped working “long ago.” He asked to
know why he had not been taken for surgery yet. In response, defendant Suliene wrote that
plaintiff had not been asking for refills for his medication and recommended that he do so.
(Plaintiff says that whenever defendant Suliene prescribed a new medication, he would take
it for several weeks and then inform the health services unit when it became clear that the
medication was not effective.)
In a health service request dated August 28, 2012, plaintiff asked again about the
timing for his surgery, stating that he was in “extreme pain” at all times. In response,
defendant Suliene wrote that his surgery consultation was scheduled in a “couple of
months.” In addition, she prescribed ibuprofen for plaintiff’s pain.
In a health request dated September 11, 2012, plaintiff asked again when he was
going to have surgery, stating that he was “in so much pain [he] can’t even explain it” and
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that the pain medication was not working. In response, defendant Suliene stated that his
appointment with a specialist had been scheduled.
In a health service request dated September 30, 2012, plaintiff asked again about his
surgery, stating that he is “in extreme pain all day all the time.” In response, defendant
Suliene stated that his appointment was “coming up.”
In a health service request dated October 11, 2012, plaintiff stated again that he was
in “extreme pain,” his medication is not working “at all” and he could not sleep or use his
right arm” because of his shoulder pain. He asked for stronger pain medication “today” and
asked why he “keep[s] getting the runaround” on surgery. In response, defendant Suliene
stated that physical therapy had been scheduled for his shoulder and she prescribed
amitriptyline, acetaminophen and ibuprofen for his pain.
In a health service request directed to defendant Karen Anderson, the health services
unit manager, plaintiff complained that he was in “unbearable pain” and needed surgery and
better pain medication. In response, Anderson wrote that defendant Suliene was monitoring
plaintiff’s medical needs and that Suliene had written new orders for medication and
physical therapy on October 12. Anderson has no authority to approve a referral for surgery.
In a grievance dated October 16, 2012, plaintiff complained that his shoulder was in
extreme pain and he had been waiting for surgery for more than two months. The grievance
examiner recommended dismissal of the grievance on the ground that “[i]t is the doctor’s
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determination to make regarding what course of treatment to pursue.” On appeal, defendant
Becher, acting as the reviewing authority, dismissed the complaint with the modification that
plaintiff’s medical classification should be updated so that he would not be required to
engage in any activities that contributed to his shoulder pain.
In a health service request dated November 11, 2012, plaintiff wrote that he needed
stronger pain medication because the acetaminophen does “not work at all” and his
“shoulder is killing” him. In response, health care staff checked a box indicating that
plaintiff was scheduled to see a nurse.
In a health service request dated November 12, 2012, plaintiff stated that he “must
have a brace or sling for [his] shoulder ASAP!” because his shoulder “keeps falling out of
place, causing [him] extreme pain, [he] cannot sleep on it at all and [he] cannot use it at all,
without it causing [him] extreme pain.” In addition, plaintiff asked for stronger pain
medication because “this is affecting [his] everyday life and sleep every night.” In response,
health care staff referred plaintiff to a memorandum dated November 14, 2012, from “Dr.
Trinidad,” stating that he “went to the unit to see [plaintiff] but was informed [plaintiff was]
on a pass to HSU.”
On November 12, 2012, plaintiff was scheduled for an orthopedic consultation. The
appointment was rescheduled by “CCI” because of an “emergency trip that needed to go
out.”
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On November 13, 2012, staff in the health services unit met with plaintiff. Staff
advised plaintiff to alternate between ibuprofen and acetaminophen and continue icing his
shoulder. When plaintiff asked for stronger medication, he was referred to the doctor for
review.
In a health service request dated December 8, 2012, plaintiff stated again that his
shoulder was in extreme pain. In response, health care staff stated that plaintiff should
continue taking acetaminophen and ibuprofen.
On December 12, 2012, plaintiff met with defendant Suliene. She recommended
restarting the physical therapy “to see if we could strengthen his muscles and increase range
in motion in his shoulder. This, in turn, would reduce pain.” Suliene Decl. ¶ 70, dkt. #33.
In addition, she wished to restart treatment with nonsteroidal anti-inflammatory
medications and ice. She discontinued his prescription for ibuprofen and replaced it with
naproxen.
In a health service request dated December 12, 2012, plaintiff stated that defendant
Suliene had told him during his appointment that he had not had surgery on his shoulder
“because of lack of staffing and cost.” Plaintiff asked whether he could get surgery sooner
if he agreed to pay for it. In response, health care staff stated that an appointment was
scheduled with the orthopedics department.
On December 13, 2012, plaintiff was seen in the health services unit for swelling in
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his throat after taking naproxen. As a result, the naproxen was discontinued.
On December 19, 2012, plaintiff met with defendant Suliene in response to
complaints of shoulder pain. She prescribed meloxicam (a non-steroidal anti-inflammatory
drug), acetaminophen and capsaicin cream.
On December 28, 2012, plaintiff met with the physical therapist.
In a health service request dated December 30, 2012, plaintiff stated that his
“shoulder pain is 10!” In response, health care staff wrote that plaintiff already had an order
for acetaminophen and capsaicin cream.
In a health service request dated December 31, 2012, plaintiff wrote that his shoulder
pain “keeps getting worse.” In response, health care staff told plaintiff to “discuss with MD
at your next appointment.”
On January 7, 2013, plaintiff was scheduled for an orthopedic consultation, but the
appointment was canceled and rescheduled by the health care provider, who determined that
plaintiff should be seen in the sports medicine clinic rather than orthopedics.
In a health service request dated January 15, 2013, plaintiff stated that his shoulder
had become dislocated “once again,” causing him excruciating pain. In response, defendant
Suliene stated that plaintiff was scheduled for an appointment later that month. Plaintiff
addressed a similar request to defendant Anderson and received a similar response.
On January 22, 2013, plaintiff met with defendant Suliene. (Defendants say that
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plaintiff told Suliene that he was feeling “so-so.” Plaintiff says that he told her that the
meloxicam was causing him to vomit and that his shoulder pain was so unbearable that it
prevented him from sleeping.)
On February 18, 2013, plaintiff had an appointment with the sports medicine clinic.
However, the appointment was rescheduled “by CCI” because another prisoner had to be
transported to the hospital for urgent cardiac surgery.
In a health service request dated March 2, 2013, plaintiff stated that his right
shoulder was in “more extreme pain . . . now than ever!!” and he asked again about the delay
in his surgical consultation. In response, health care staff wrote that plaintiff is “scheduled
to be seen at UW very soon.”
In a health service request dated March 15, 2013, plaintiff complained again about
extreme pain and asked why he was being refused surgery. In response, health staff wrote
that a surgical consultation was scheduled.
On March 18, 2013, plaintiff had an appointment with a doctor at the UW Hospital
Orthopedics Department. (The parties do not explain why plaintiff was taken to the
orthopedics department despite the earlier conclusion that he should be taken to the sports
medicine clinic.) After examining plaintiff, the doctor wrote:
This is a 40-year-old, right-hand-dominant inmate with right shoulder pain,
feelings of instability and mechanical symptoms for the past 3 years after an
acute dislocation. I feel that he is getting some mechanical symptoms which
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could be related to the loose body as well as some instability from his posterior
glenoid deficiency secondary to the donor site and hypoplastic glenoid in
addition to the chronic labral tears. I am going to discuss this case with Dr.
Scerpella to see if she feels that he would be a surgical candidate, and will have
the patient to [sic] return to clinic in 2 weeks for a surgical discussion.
On March 19, 2013, defendant Suliene ordered a followup appointment with the
orthopedics department in two weeks.
In a health service request dated March 19, 2013, plaintiff asked for the name of the
person who schedules appointments and the reason why his appointments were being
canceled. In response, “Ms. Felton” wrote “Appt originally scheduled for 3/18/13 cancelled
and moved to earlier date. A more urgent appt came and it was moved back to 3/18/13.”
On April 5, 2013, defendant Suliene retired from state service and was no longer
involved in plaintiff’s medical care.
In a health service request dated April 8, 2013, plaintiff stated that he was in extreme
pain and asked for pain medication and about the status of his surgery. (The parties do not
explain why plaintiff did not have a two-week followup appointment with the orthopedics
department.) In response, health care staff wrote that plaintiff’s followup appointment “is
scheduled” and that plaintiff was scheduled to see the prison doctor as well.
In a health service request dated April 9, 2013, plaintiff stated that he was in extreme
pain and he asked why he had not been sent back to UW for a followup appointment. In
addition, he asked for pain medication “that will work or at least help.” In response, health
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care staff stated, “you have an ortho appt.”
In April 2013, defendant Becher was “made aware” that plaintiff was still waiting for
shoulder surgery. Becher discussed the delay with the nursing supervisor. (The parties do
not describe the content of that discussion or what came of it, if anything.)
On April 15, 2013, plaintiff had an appointment with a doctor in the orthopedics
department. The doctor recommended shoulder surgery. On April 25, 2013, health care
staff submitted a request for approval of the surgery; on April 29, 2013, it was approved.
On June 18, 2013, plaintiff had surgery on his right shoulder.

OPINION
I. EIGHTH AMENDMENT
All of plaintiff’s claims relate to defendants’ alleged refusal to provide medical
treatment for his shoulder. In their motion for summary judgment, defendants do not deny
that plaintiff can meet the first two elements of an Eighth Amendment claim, which are that
he had a serious medical need related to his shoulder and that they were aware of that need.
Greeno v. Daley, 414 F.3d 645, 652 (7th Cir. 2005). Rather, defendants argue that no
reasonable jury could find that they were “deliberately indifferent” to plaintiff’s health,
which means that they consciously failed to take reasonable measures to treat plaintiff. Id.
at 653. In the alternative, they argue that they are entitled to qualified immunity because,
even when the facts are viewed in the light most favorable to plaintiff, their conduct did not
violate clearly established law. Humphries v. Milwaukee County, 702 F.3d 1003, 1006 (7th

15

Cir. 2012) (“The doctrine of qualified immunity protects government officials from liability
for civil damages when their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”) (internal quotations
omitted).

Because defendant Suliene was plaintiff’s primary care provider during the

relevant time period, I will consider plaintiff’s allegations against her first.

A. Defendant Dalia Suliene
1. Delay in providing treatment
Plaintiff began complaining about his shoulder pain in November 2011, but he did
not receive surgery on his shoulder until June 2013. I understand plaintiff to be arguing that
defendant Suliene delayed his surgery in two ways. First, she failed to act promptly to obtain
appointments outside the prison that plaintiff needed before having surgery. Second, she
prevented plaintiff from keeping his medical appointments once they were made.
As an initial matter, defendants cite Langston v. Peters, 100 F.3d 1235 (7th Cir.
1996), for the proposition that “mere delay does not constitute deliberate indifference,”
Dfts.’ Br., dkt. #31, at 22, but that is an incomplete statement. In Langston, 100 F.3d at
1240, the court stated that a one-hour delay in obtaining medical care was not unreasonable
when the plaintiff had failed to provide “verifying medical evidence” showing that the delay
harmed him. The Court of Appeals for the Seventh Circuit has held on multiple occasions
that a defendant’s delay in providing medical care may violate the Eighth Amendment if the
delay caused the prisoner to suffer needless pain, which is what plaintiff alleges in this case.

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Smith v. Knox County Jail, 666 F.3d 1037, 1039-40 (7th Cir. 2012) (“[D]eliberate
indifference to prolonged, unnecessary pain can itself be the basis for an Eighth Amendment
claim.”); Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816, 832 (7th Cir. 2009)
(state employees could be liable for four-day delay in treating prisoner who complained that
his IV was causing him serious pain); Grieveson v. Anderson, 538 F.3d 763, 779-80 (7th
Cir. 2008) (delay in treating pain for day and a half could be Eighth Amendment violation);
Walker v. Benjamin, 293 F.3d 1030, 1040 (7th Cir. 2002) (delay in providing pain
medication stated claim under Eighth Amendment). Thus, the question is not whether
plaintiff adequately alleged harm, but whether he has adduced evidence that defendant
Suliene consciously failed to take reasonable steps to provide treatment more quickly.
With respect to scheduling outside appointments, it is undisputed that defendant
Suliene requested approval for an MRI arthrogram three days after the orthopedic consultant
recommended it; she requested a followup appointment with the consultant the same day
as plaintiff’s first appointment; she requested approval for a surgical orthopedic consultation
the same day that the orthopedic consultant recommended it; and one day after plaintiff’s
surgical orthopedic consultation, she requested a followup appointment. At that point,
defendant Suliene retired and was no longer involved in plaintiff’s medical care. Thus, there
is no basis for concluding that defendant Suliene was slow in making appointments for
plaintiff.
Plaintiff seems to believe that defendant Suliene should have done more to get the
outside providers to see him more quickly. However, he does not cite any evidence showing

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that Suliene had any control over the scheduling practices of outside providers. Instead, he
cites a department policy called “Consultation with Off-Site Providers,” which provides
instructions to prison doctors regarding requests for consultation with specialists. Dkt. #8547. One of these states that the referring doctor “shall indicate an appropriate timeframe
for the appointment.” Id. at 3.
Plaintiff’s reliance on this policy is misplaced. First, plaintiff has not provided any
evidence showing that defendant Suliene requested any timeframe from the hospital
providers for any of plaintiff’s appointments. Second, the portion of the policy plaintiff cites
relates to obtaining approval from the department for offsite care. Id. at 2. (“Specialty
consultations shall be approved by the Medical Director, Mental Health Director, Dental
Director, Clinical Review Committee or Nurse Reviewer, as indicated in DAI Policy
500.10.12 prior to making the appointment.”). The policy does not suggest that defendant
Suliene had authority to require an outside provider to see plaintiff at a particular time.
Plaintiff may mean to argue that Suliene should have specified that his need for care
was urgent to improve his chances of getting a faster appointment.

If that is plaintiff’s

argument, he has not adduced any evidence that a request by Suliene would have guaranteed
speedier treatment. In any event, it is difficult to see how Suliene could be blamed for not
identifying plaintiff’s need for surgery as an emergency when she was simply following the
recommendations of the specialists that plaintiff saw. Smego v. Mitchell, 723 F.3d 752, 758
(7th Cir. 2013) (“Doctors may rely on the representations of their colleagues absent clear
evidence that those representations are known to be false.”). Although plaintiff says that

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the orthopedic consultant told him that he needed surgery “as soon as possible,” he does not
cite any evidence that the consultant communicated the same thing to Suliene. Rather, the
consultant averred in her declaration that she took no action to speed up the process because
she did not believe that plaintiff required emergency treatment.
With respect to appointments that were postponed, the undisputed facts show that
some of these were postponed by the outside provider and others were postponed because
transportation was not available for plaintiff. Although plaintiff says in his brief that
defendant Suliene “allowed” the delays, dkt. #84 at 4, he has not adduced any evidence that
Suliene caused them or could have prevented them.
The two exceptions are the delays in his scheduled appointments for an MRI
arthrogram. According to plaintiff, Suliene failed to tell him about the first appointment and
then tried to get him to sign a refusal form for the second appointment. As a result, his MRI
arthrogram was delayed by two months. From plaintiff’s testimony, a jury could infer that
Suliene gratuitously delayed plaintiff’s treatment despite knowing that it would prolong his
pain.
Of course, defendant Suliene denies that she delayed plaintiff’s care. Her version is
that plaintiff refused to attend his appointments on both occasions. Although it may seem
unlikely that Suliene would schedule plaintiff’s appointments promptly and then attempt
later to prevent him from attending those appointments, I may not weigh the evidence or
make credibility determinations on a motion for summary judgment.
Haupert, 481 F.3d 543, 550 (7th Cir. 2007).

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Washington v.

Alternatively, defendants argue that Suliene is entitled to qualified immunity, but
they do not develop the argument; all but one paragraph of this section of their brief is
boilerplate.

They do not say anything at all about the delay in obtaining an MRI

arthrogram. In any event, the Court of Appeals for the Seventh Circuit has stated that the
merits of an Eighth Amendment claim and qualified immunity “effectively collapse into one”
question in many circumstances. Walker, 293 F.3d at 1037. Because the legal standard for
an Eighth Amendment medical care claim has been clearly established for many years and
the disputes raised in such claims largely are factual rather than legal, “[i]f there are genuine
issues of fact concerning th[e] elements [of the claim], a defendant may not avoid trial on
the grounds of qualified immunity.” Id. See also Hayes v. Snyder, 546 F.3d 516, 528 (7th
Cir. 2008) (“It has been established for decades that prison physicians violate inmates'
constitutional rights when they deliberately disregard an inmate's serious medical condition,
and only a trial can resolve the facts that are in dispute.”). Accordingly, I am denying
defendants’ motion for summary judgment as it relates to plaintiff’s claim that defendant
Suliene delayed his MRI arthrogram.

2. Pain medication
I understand plaintiff to be arguing that defendant Suliene violated the Eighth
Amendment by continuing to prescribe ineffective medication for him, even when he
reported that it made him sick. He relies on the well-established proposition that “medical
personnel cannot simply resort to an easier course of treatment that they know is

20

ineffective.” Johnson v. Doughty, 433 F.3d 1001,1013 (7th Cir. 2006). See also Gonzalez
v. Feinerman, 663 F.3d 311, 314 -15 (7th Cir. 2011) (“[P]hysicians [a]re obligated not to
persist in ineffective treatment.”); Arnett v. Webster, 658 F.3d 742, 754 (7th Cir. 2011)
(“[A] medical professional's actions may reflect deliberate indifference if he chooses an easier
and less efficacious treatment without exercising professional judgment.”); Berry v.
Peterman, 604 F.3d 435, 441 (7th Cir. 2010) (“[A] doctor's choice of the easier and less
efficacious treatment for an objectively serious medical condition can still amount to
deliberate indifference for purposes of the Eighth Amendment.”); Greeno, 414 F.3d at 655
(noting that persistence in a course of treatment "known to be ineffective" violates the Eighth
Amendment).
Defendants make three arguments in support of their motion for summary judgment
on this claim. First, they say that defendant Suliene did not persist in providing plaintiff
ineffective treatment; rather, “when Dr. Suliene was told by McGhee that the pain
medication was not working, she willingly prescribed different medications.” Dfts.’ Br., dkt.
#31, at 24. Although it is true that defendant Suliene did not keep plaintiff on the same
medication for the entire year and a half that she treated him, it is also true that she would
treat him with the same medication for several months despite plaintiff’s continuous protests
that it was ineffective and in some cases made him sick. This is inconsistent with Suliene’s
own opinion that a patient should not continue taking the same medication for more than
30 days if it is not providing relief. Dfts.’ Resp. to Plt.’s PFOF ¶ 34, dkt. #105. According
to plaintiff, the reason Suliene gave for sticking to the same medications was that she simply

21

refused to help plaintiff with his pain. That testimony supports the drawing of inference
that defendant Suliene knew that her treatment would be ineffective, but she refused to
consider other options.
Further, when defendant Suliene did change plaintiff’s medications, sometimes she
prescribed the same medication again that had been tried unsuccessfully before. She does not
deny that plaintiff was in severe pain from November 2011 until she retired in April 2013
and she does not provide any medical reason for refusing to prescribe stronger medication
or even for choosing the medications that she did. Although Suliene was acting within her
discretion under the Eighth Amendment in treating plaintiff’s pain conservatively at first,
on the current record, a reasonable jury could find that Suliene disregarded plaintiff’s pain
by failing to use medical judgment when it became clear her treatment was not providing any
relief.
Defendants’ second argument is that it is impossible to tell whether the medication
defendant Suliene prescribed might have been effective because plaintiff refused to take it.
However, defendants’ proposed finding of fact on this issue is vague, stating that plaintiff
was “frequently noncompliant with his medications,” Dfts.’ PFOF ¶ 124, dkt. #32, without
identifying particular dates or medications. In any event, plaintiff avers in his declaration
that he always took the medication he received for several weeks until it became clear to him
that it was ineffective. Plt.’s Decl. ¶ 92, dkt. #85. Particularly because defendant Suliene
has admitted that plaintiff should not take ineffective pain medication for more than a
month, I cannot resolve this issue as a matter of law.

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Finally, defendants say that doctors “must take caution before prescribing opioids .
. . in the prison setting” because prisoners “often have substance abuse problems” and there
is a risk of “diversion of medications.” Dfts.’ Br., dkt. #31, at 24. The risk of substance
abuse is a valid concern, which I have recognized in previous cases. E.g., Banks v. Cox, No.
09-cv-9-bbc, 2010 WL 693517, *7 (W.D. Wis. 2010); DeBoer v. Luy, No. 01-C-382-C,
2002 WL 32345414, *4 (W.D. Wis. 2002).

However, in the context of this case,

defendants’ argument has several problems.
First, it is not clear whether opioids were the only other option defendant Suliene
could have tried as opposed to stronger doses of other types of medication. Second, even
if opioids were the next step, defendant Suliene does not suggest that she declined to
consider prescribing them for plaintiff because of a concern that she had about plaintiff’s
potential to abuse the drug or a belief that plaintiff was exaggerating his pain. Even now,
defendants do not suggest that plaintiff has a history of substance abuse and they identify
no reason specific to plaintiff for denying him a stronger medication. Because defendants
concede that it is appropriate under some circumstances to use stronger medications to treat
chronic pain conditions, Dfts.’ PFOF ¶ 26, dkt. #32, there must be some explanation for not
considering them when other medications are not effective. To the extent that defendant
Suliene has a personal view that it is never appropriate to prescribe stronger medication for
long-term pain, that view would be inconsistent with the rule that a medical professional
must “consider an individual inmate's condition in making treatment decisions.” Roe v.
Elyea, 631 F.3d 843, 862-63 (7th Cir. 2011).

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With respect to qualified immunity, it is clearly established that prison physicians
may not continue to prescribe treatment that they know is ineffective. Because there are
genuine disputes on the question whether defendant Suliene violated that rule, I am denying
defendants’ motion for summary judgment as to this claim.

3. Other issues
Plaintiff raises two other issues in his summary judgment brief: (1) defendant Suliene
refused to prescribe a brace or sling for him; and (2) Suliene refused to discuss his shoulder
problems during appointments for other medical concerns. Both of these claims fail for
multiple reasons.
First, I did not allow plaintiff to proceed on either of these claims because they were
not included in his complaint. It is well established that plaintiffs may not raise new claims
in response to a motion for summary judgment. EEOC v. Lee's Log Cabin, Inc., 546 F.3d
438, 443 (7th Cir. 2008). Second, with respect to the brace or sling, plaintiff has not
adduced any evidence that defendant Suliene was aware that plaintiff even wanted a brace
or sling (another health care staff member responded to plaintiff’s request on this issue) or
that a brace or sling would have been helpful to someone in his situation. Third, with
respect to the alleged refusal to discuss plaintiff’s shoulder, plaintiff does not explain how
this harmed him. To the extent that plaintiff is alleging that Suliene refused to address his
complaints of shoulder pain, he is free to raise this issue in the context of his claim regarding
the lack of adequate pain medication, but it cannot survive as a standalone claim.

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B. Defendants Karen Anderson and Lon Becher
Defendants Anderson’s and Becher’s involvement in plaintiff’s medical care was
limited. Anderson was the health services unit manager; Becher was the nursing coordinator.
Neither is a physician.
Defendant Anderson responded to two health service requests in which plaintiff
complained about his shoulder. In both responses, Anderson deferred to the judgment of
defendant Suliene. Becher was present at one of plaintiff’s earlier appointments with
defendant Suliene in November 2011; he was the reviewing authority on one of plaintiff’s
grievances about his shoulder in October 2012; and he had a discussion with a nursing
supervisor about the delay in surgery in April 2013.
Plaintiff has not adduced any evidence showing what authority defendants Becher
and Anderson had to require defendant Suliene or an outside health care professional to give
plaintiff different or faster treatment. Even if they had such authority, plaintiff does not
explain in any detail why Becher and Anderson would not be entitled to rely on the other
providers’ opinions regarding the appropriate treatment.

Smego, 723 F.3d at 758.

Accordingly, I am granting defendants’ motion for summary judgment on plaintiff’s Eighth
Amendment claim as to defendants Becher and Anderson.

II. NEGLIGENCE
I allowed plaintiff to proceed on claims that defendant Suliene acted negligently by
delaying his surgery and refusing to provide him stronger pain medication and that

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defendants Becher and Anderson acted negligently by failing to supervise Suliene.
Defendants have moved for summary judgment with respect to all of these claims.
Initially, defendants argue that the negligence claims must be dismissed as to
defendant Becher because plaintiff did not name that defendant in the notice of claim, as
required by Wis. Stat. § 893.82(3) (“[N]o civil action . . . may be brought against any state
. . . employee . . . on account of any act . . . committed in the course of the discharge of the
. . . employee’s duties . . . unless . . . the claimant in the action . . . serves upon the attorney
general written notice of a claim stating . . . the name of the state . . . employee . . .
involved.”). See also Modica v. Verhulst, 195 Wis. 2d 633, 647, 536 N.W.2d 466, 473
(Ct. App. 1995) (dismissing claim for failure to identify defendant by name in notice).
Plaintiff does not respond to this argument, so he has conceded it. Bonte v. U.S. Bank,
N.A., 624 F.3d 461, 466 (7th Cir. 2010) (“Failure to respond to an argument—as the
Bontes have done here—results in waiver.”). With respect to defendant Anderson, plaintiff
has not adduced any evidence that Anderson had supervisory authority over Suliene, so his
negligent supervision claim fails at the outset.
With respect to plaintiff’s negligence claims against defendant Suliene, I conclude
that the result is the same as plaintiff’s Eighth Amendment claims. Because plaintiff has not
adduced any evidence that Suliene could have scheduled his appointments with outside
providers more quickly, no reasonable jury could find that she was negligent in that respect.
However, construing the facts in favor of plaintiff, a reasonable jury could find that Suliene
was negligent in failing to insure that plaintiff received an MRI arthrogram and failing to

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provide adequate pain medication. Although defendants argue that plaintiff’s negligence
claims must be dismissed because he does not have a medical expert, I conclude that “no
expert testimony is needed [in this case because] the symptoms exhibited by the plaintiff are
not beyond a layperson's grasp.” Gil v. Reed, 381 F.3d 649, 659 (7th Cir. 2004).

ORDER
IT IS ORDERED that the motions for summary judgment filed by defendants Dalia
Suliene, Karen Anderson and Lon Becher, dkt. ##30 and 67, are DENIED with respect to
plaintiff Laderian McGhee’s claims that defendant Suliene interfered with plaintiff’s MRI
arthrogram appointment and failed to treat plaintiff’s shoulder pain adequately, in violation
of the Eighth Amendment and common law negligence. Defendants’ motions for summary
judgment are GRANTED in all other respects. Plaintiff’s complaint is DISMISSED as to
defendants Anderson and Becher.
Entered this 12th day of February, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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