Weston, Henry v. Pollard, William et al

Filing 110

ORDER GRANTING summary judgment as to defendant Belinda Schrubbe; DENYING as moot defendant's 88 Motion in Limine. The clerk of court is directed to enter judgment and close this case. Signed by District Judge James D. Peterson on 3/28/2018. (elc),(ps)

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

HENRY WESTON,
Plaintiff,
v.

OPINION & ORDER
14-cv-306-jdp

BELINDA SCHRUBBE,
Defendant.

Pro se plaintiff and prisoner Henry Weston is proceeding on a claim that defendant
Belinda Schrubbe violated his Eighth Amendment rights by disregarding his request for medical
treatment for his back and leg pain, which was later diagnosed as sciatica. In particular, Weston
alleges that he wrote to Schrubbe (the manager of the health services unit at the prisoner where
Weston was housed), telling her that he was not receiving adequate treatment for “serious
chronic distressful pains” in his lower back and legs, Dkt. 79, ¶ 35, but she failed to schedule
a medical appointment for him despite saying that she would do so.
I denied Schrubbe’s motion for summary judgment on this claim because the only
ground she raised was that she was not “personally responsible” for scheduling an appointment.
Dkt. 84, at 14–15. Even if true, that was not dispositive because Schrubbe admitted that she
could have forwarded Weston’s request to whoever was responsible and a reasonable jury could
find that she failed to do so.
But I raised a different question, which is whether Weston suffered any harm because
of Schrubbe. Dkt. 107. “In cases where prison officials delayed rather than denied medical
assistance to an inmate, courts have required the plaintiff to offer verifying medical evidence

that the delay (rather than the inmate's underlying condition) caused some degree of harm.”
Jackson v. Pollion, 733 F.3d 786, 790 (7th Cir. 2013) (internal quotations omitted).
It was not clear from the evidence submitted at summary judgment what Weston
believed his injury to be. Medical staff at the prison treated his back and leg pain many times
both before and after he requested treatment from Schrubbe and he did not point to any
additional harm he suffered as a result of failing to receive a medical appointment at the time.
He didn’t seek a new appointment when he never heard back from Schrubbe, suggesting that
he didn’t believe he needed one. And he alleged that the treatment he received later wasn’t
helpful, suggesting that scheduling an earlier appointment wouldn’t have made a difference. In
light of the questions I had about whether Weston suffered any harm from Schrubbe’s alleged
inaction, I gave him an opportunity to come forward with additional evidence. Celotex Corp. v.
Catrett, 477 U.S. 317, 326 (1986) (“[D]istrict courts are widely acknowledged to possess the
power to enter summary judgments sua sponte, so long as the losing party was on notice that
she had to come forward with all of her evidence”).
In his response, Weston still doesn’t explain why he didn’t submit a health service
request after Schrubbe failed to make an appointment for him and he doesn’t explain how he
was harmed by Schrubbe’s inaction. Instead, he takes issue generally with the overall course of
treatment he has received for his pain and he alleges that he is still in pain today. Dkt. 109.
Weston fails to appreciate the limited scope of his remaining claim. I dismissed
Weston’s claims against the physicians treating him because Weston failed to adduce evidence
showing that they failed to use appropriate medical judgment. King v. Kramer, 680 F.3d 1013,
1018–19 (7th Cir. 2012) (holding that a health care provider violates the Eighth Amendment
when her treatment decisions are “blatantly inappropriate” or represent “such a substantial

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departure from accepted professional judgment, practice, or standards as to demonstrate that
the person responsible did not base the decision on [medical] judgment”) (internal quotations
omitted). Although they apparently were unable to eliminate Weston’s pain, they provided
various forms of medical treatment, including x-rays, an MRI, physical therapy, and pain
medication. Weston also received a TENS unit and was referred to a specialist, who gave
Weston steroid injections and again recommended physical therapy. Even now, Weston does
not explain why he believed any of that treatment was inappropriate. He says that he did not
receive an ambulatory aid, but he does not allege either that he asked Schrubbe for one or that
it was part of her responsibility to provide one.
In any event, Weston has not adduced any evidence that Schrubbe’s failure to schedule
another medical appointment for him in September 2013 caused him any harm. Accordingly,
I will grant summary judgment to Schrubbe and close the case.

ORDER
IT IS ORDERED that summary judgment is GRANTED to defendant Belinda
Schrubbe. Schrubbe’s motion in limine, Dkt. 88, is DENIED as moot. The clerk of court is
directed to enter judgment and close this case.
Entered March 28, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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