Northern, Lawrence v. Baumgart, A. et al

Filing 113

ORDER denying as moot Lawrence Northern's motion for reconsideration of the court's order screening his claims in case no. 16-cv-277-jdp, Dkt. 5 in the 2016 case. Defendants' motion to dismiss plaintiff's medical malpracti ce claims, Dkt. 14 in the 2016 case, is GRANTED. Plaintiff may have until October 19, 2017, to respond to this order indicating whether he wishes to withdraw his proposed amended claims in the 2016 case regarding his pre-surgery treatment. Defe ndants may have until November 15, 2017, to supplement their summary judgment motion based on exhaustion in the 2016 case. Plaintiff may have until December 6, 2017, to file a response. Defendants may have until December 13, 2017, to file a reply. Signed by District Judge James D. Peterson on 10/12/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LAWRENCE NORTHERN,
Plaintiff,
v.

ORDER
13-cv-367-jdp

KOREEN FRISK,
Defendant.
LAWRENCE NORTHERN,
Plaintiff,
v.

ORDER

LYNN DOBBERT, TONI JOHNSON,
KOREEN FRISK, and ANGELA STETTER,

16-cv-277-jdp

Defendants.
Plaintiff Lawrence Northern injured his Achilles tendon playing basketball at the New
Lisbon Correctional Institution (NLCI). Both of the above-captioned cases concern the medical
treatment Northern received following the injury. His deliberate indifference claim against
defendant Nurse Koreen Frisk for failing to properly examine his Achilles and provide him with
pain medication is set for trial in case no. 13-cv-367-jdp. Northern is also proceeding on
deliberate indifference, retaliation, and Wisconsin-law medical malpractice claims against Frisk
and other NLCI nurses in case no. 16-cv-277-jdp, mostly concerning later events regarding
defendants’ failure to provide him with prescribed wound dressing changes following his
surgery.
Trial in the 2013 case is scheduled for November 27, 2017. The trial in the 2016 case
is set for September 24, 2018. Defendants in both cases have filed a motion to consolidate the

cases to fit the 2016 case’s schedule, stating that the cases share common questions of law and
fact, parties, and counsel. Northern opposes consolidation, stating that the 2013 case is “ripe
for resolution” and that the cases are not that similar: the 2013 case is about Frisk’s actions
soon after Northern’s injury, and the bulk of the claims in the 2016 case concern events
occurring after Northern had surgery, months after the injury.
Viewing the claims in both cases as they are presently constructed, I am inclined to side
with Northern for reasons similar to those I articulated in ruling against him when he attempted
to amend his complaint in the 2013 case to include medical malpractice claims against other
defendants shortly before the then-scheduled trial date: it was simply too late to greatly expand
the scope of the case. See Dkt. 91 in the 2013 case, at 2-3. The 2013 case is indeed ripe for
resolution, and it would be unfair to Northern to stay the 2013 case ten more months just to
join it with claims that are related but mostly have to do with a later, post-surgical set of
defendants’ treatment decisions.
But this issue gets more complex. In the 2016 case, Northern has filed a motion to
amend his complaint to include a series of Eighth Amendment, equal protection, and state-law
medical negligence claims about events that occurred both before and after his surgery. 1 He
alleges the following:

1

In my order screening Northern’s original complaint in the 2016 case, I stated, “Although
Northern provides additional facts about the medical treatment for his Achilles injury that
might support other claims, I limit the discussion here to the claims below . . . . If Northern
believes that I am misconstruing his complaint and there are other claims he is attempting to
assert, he should seek reconsideration of this screening order and explain what other alleged
misdeeds he means to bring claims about in this lawsuit.” Dkt. 4 in the 2016 case, at 3.
Northern filed a motion for reconsideration stating that he indeed wished to bring additional
claims and that he sought the recruitment of counsel. Dkt. 5 in the 2016 case. But he followed
with a proposed amended complaint and later obtained counsel. I will deny his motion for
reconsideration as moot.

2



Right after his injury, Nurse Adrienne Baumgart failed to adequately examine
him, refer him to a doctor, immobilize his ankle, or give him pain medication,
low-bunk restriction, or crutches.



Dr. Kenneth Adler failed to immobilize his ankle and give him a low-bunk
restriction.



After his surgery, Carroll Walters threatened him with discipline if he didn’t sign
a form stating he was refusing further medical treatment.



The Special Needs Committee, comprised of Lieutenant Martinson, Lynn
Washetas and Candace Warner, rejected his requests for high-top boots to
accommodate his recovery, even though other inmates with less serious problems
were allowed to have them.

See Dkt. 12. I take the claims against Baumgart and Adler to be referring to pre-surgery
deprivations, roughly contemporaneous with his original claim against defendant Frisk.
Not all of these claims survive screening under 28 U.S.C. § 1915A. As I stated in the
2013 case, Northern cannot maintain a medical malpractice claim under Wisconsin Statutes
Chapter 655 against defendant Nurse Baumgart because that chapter does not allow claims
against nurses. See Dkt. 107 in the 2013 case; see also Patients Comp. Fund v. Lutheran Hosp.-La
Crosse, Inc., 216 Wis. 2d 49, 573 N.W.2d 572, 575 (Ct. App. 1997) (“nurses employed by a
hospital to participate in the care of a hospital’s patients, with the exception of nurse
anesthetists, are not defined as health care providers”).2 But he may proceed on the rest of his
claims.
The problem with allowing Northern to add those claims is that the 2016 case would
then include more pre-surgery claims that are intertwined with the claim against Frisk in the
2013 case. This significantly undercuts my rationale above for allowing the 2013 case to go to

2

Defendants have filed a motion to dismiss the already-existing medical malpractice claims
against defendant Nurses Dobbert, Johnson, Frisk, and Stetter in the 2016 case on the same
rationale. Dkt. 14. I will grant that motion for the reasons stated above.

3

trial immediately. If Northern wants to litigate a host of pre-surgery treatment decisions,
including his original claim against Frisk, they should be litigated at the same time.
So I will give Northern a choice: he can amend his 2016 complaint to include his new
claims against Baumgart and Adler, in which case I will consolidate the 2013 and 2016 cases
together on the 2016 case’s schedule. Or he can withdraw those claims, and I will allow the
2013 case to go to trial now and the 2016 case will be litigated separately.
Regardless of the choice Northern makes about the pre-surgery claims, I will allow him
to amend his 2016 complaint to include his new post-surgery claims. I will issue a formal order
on the motion to amend once Northern responds to this order. Defendants have filed a motion
for summary judgment based on Northern’s alleged failure to exhaust his administrative
remedies. Once defendants are clear on what claims will be included in the 2016 case, they
may file a supplement to their exhaustion motion to include the new claims if they so desire.

ORDER
IT IS ORDERED that:
1. Plaintiff Lawrence Northern’s motion for reconsideration of the court’s order
screening his claims in case no. 16-cv-277-jdp, Dkt. 5 in the 2016 case, is DENIED
as moot.
2. Defendants’ motion to dismiss plaintiff’s medical malpractice claims, Dkt. 14 in the
2016 case, is GRANTED.
3. Plaintiff may have until October 19, 2017, to respond to this order indicating
whether he wishes to withdraw his proposed amended claims in the 2016 case
regarding his pre-surgery treatment.

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4. Defendants may have until November 15, 2017, to supplement their summary
judgment motion based on exhaustion in the 2016 case. Plaintiff may have until
December 6, 2017, to file a response. Defendants may have until December 13,
2017, to file a reply.
Entered October 12, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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