Stewart, Steven v. Wall, Edward et al

Filing 218

ORDER granting 115 Motion for Summary Judgment. ; granting 119 Motion for Summary Judgment; granting in part and denying in part 124 Motion for Summary Judgment; granting 198 Motion for Summary Judgment; denying as moot 217 Motion to stay deadlines and the trial date. The clerk of court is directed to enter judgment accordingly and close this case. Signed by District Judge James D. Peterson on 6/23/2016. (jef),(ps)

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

STEVEN D. STEWART,
Plaintiff,
v.
DR. BURTON COX, JR., H.S.U. MARY MILLER,
NURSE JOLINDA WATERMAN,
NURSE SHERYL KINYON, DR. DALIA SULIENE,
DR. BRAD MARTIN, DR. KARL HOFFMANN,
H.S.U. MANAGER KAREN ANDERSON,
NURSE NATALIE NEWMAN,
NURSE TRISHA ANDERSON,
NURSE KIM CAMPBELL,
NURSE MELISSA THORNE,
NURSE ROSE DRAFAHL,
ANN PETERS-ANDERSON,
NURSE PHILLIP KERCH,
NURSE DAVID SPANNAGEL, and
SGT. RICHARD MATTI,

OPINION & ORDER
14-cv-665-jdp

Defendants.

Pro se prisoner Steven Stewart is challenging the medical treatment that he has
received while in prison. I granted plaintiff leave to proceed with claims under the First and
Eighth Amendments, and with state law claims for medical malpractice.
Plaintiff suffers from a neurogenic bladder condition that makes it difficult for him to
urinate without a catheter. At different times over the last 10 years or so, plaintiff has either
worn an indwelling catheter or inserted a single-use “straight” catheter every few hours each
day. All of plaintiff’s claims in this case essentially involve variations on a central theme:
plaintiff wants to receive narcotics each time that he catheterizes himself (or changes his
indwelling catheter), and he wants to catheterize himself privately, in his cell. Since 2005,
plaintiff has aggressively asserted these wishes, and medical personnel have generally

accommodated him. But when things have not gone plaintiff’s way, he has become agitated
and has refused to cooperate. He perceived these changes in routine to be retaliatory or below
the standard of medical care that he was entitled to receive. Thus, plaintiff filed suit alleging
that defendants violated his constitutional rights.
After a series of discovery disputes and a round of summary judgment motions based
on plaintiff’s failure to exhaust his administrative remedies, we have finally arrived at the
merits of plaintiff’s claims. All defendants move for summary judgment, contending that the
undisputed facts of the case entitle them to judgment as a matter of law. For reasons
explained in this opinion, I will grant these motions and dismiss this case.

UNDISPUTED FACTS
Plaintiff disagrees with many of the facts that defendants have proposed in support of
their motions for summary judgment. But for some of plaintiff’s disputes, he does not cite to
admissible evidence that actually contradicts the proposed fact. For other disputes, plaintiff
does not respond to the proposed fact, instead discussing other issues and other evidence. As
the preliminary pretrial conference order indicated, “[i]f a party’s response to any proposed
fact does not comply with the court’s procedures or cites evidence that is not admissible, the
court will take the opposing party’s factual statement as true and undisputed.” Dkt. 40, at
17. Thus, unless plaintiff has properly disputed a proposed finding of fact, I will accept
defendants’ proposed facts as true. Except where noted, the following facts are undisputed.
Plaintiff is an inmate in the custody of the Wisconsin Department of Corrections
(DOC). The relevant events in this case occurred between 2005 and 2014. During some of
this time, plaintiff was incarcerated at the Wisconsin Secure Program Facility (WSPF),

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located in Bascobel, Wisconsin, and during the rest of the time, he was incarcerated at the
Columbia Correctional Institution (CCI), located in Portage, Wisconsin. Defendants are
medical personnel who worked at WSPF or CCI and interacted with plaintiff. I will generally
refer to individual defendants by their titles and last names. But for organizational purposes,
I will sometimes refer to the defendants who were employed by the DOC as “the state
defendants.” This group includes:


Dr. Burton Cox, a physician at WSPF;



Mary Miller, the manager of the Health Services Unit (HSU) at WSPF;



Jolinda Waterman and Sheryl Kinyon, nurses at WSPF;



Richard Matti, a correctional officer at WSPF.



Dr. Dalia Suliene and Dr. Karl Hoffmann, physicians at CCI;



Karen Anderson, the manager of the HSU at CCI;



Kim Campbell, Natalie Newman, Melissa Thorne, Phillip Kerch, David Spannagel,
and Trisha Anderson, nurses at CCI; and



Dr. Brad Martin, a physician at a different DOC facility who filled in at CCI.

The remaining defendants were independent contractors:


Rose Drafahl is a licensed practical nurse who was assigned to work at CCI from
August 20, 2012, to August 3, 2015; and



Ann Peters-Anderson is a registered nurse who was assigned to work at CCI from
April 21, 2014, to October 31, 2014.

In August 2005, doctors at the University of Wisconsin Hospital examined plaintiff
and discussed an ongoing issue that he had been having with his bladder. In a letter
summarizing the examination, doctors informed WSPF medical staff that plaintiff should
catheterize himself to manage his condition. As the doctor explained:
I would like him to begin catheterizing much more frequently to
try to achieve catheterized volumes of 500 ml or less. This may

3

mean that the patient will need to catheterize every 2-3 hours,
at least initially. If he is unable to accommodate this at the
facility, then an indwelling Foley catheter should be placed for l
month’s time, at which point it could be removed and new
attempts at straight catheterization with a decompressed bladder
could be attempted. For now, he should continue with either
straight catheterization to achieve catheterized volumes of less
than 500 ml at a time for several months or have an indwelling
Foley placed, as mentioned previously, with resumption of
straight catheterizing after 1 month’s time.
Dkt. 127-4, at 81. Within three days of the appointment, Dr. Cox entered an order that
plaintiff was to use a straight catheter seven to eight times a day and have a follow-up
appointment at UW Hospital in six months. Doctors at UW Hospital eventually diagnosed
plaintiff with a neurogenic bladder, which is a dysfunction of the urinary bladder that occurs
because of central nervous system disease or because of disease in the nerves that control
urination. Most patients with the condition must use catheters to pass urine.
On October 8, 2005, plaintiff had his first confrontation with prison staff concerning
his catheterization. At about 11:00 a.m., Nurse Waterman received a call from a correctional
officer on plaintiff’s unit. The officer informed Nurse Waterman that plaintiff had refused his
catheter supplies twice that morning and three times the day before. Nurse Waterman went
to plaintiff’s cell and provided him with a DOC form to confirm that he was refusing
recommended treatment. The form explained the risks of refusing to catheterize, including
bacterial infection, abdominal pain, and sepsis. Plaintiff waved Nurse Waterman away (it
does not appear that he signed the refusal form). Nurse Waterman noted in plaintiff’s
medical records that she would have Dr. Cox review plaintiff’s refusal.
The next morning, Nurse Waterman received another call from a correctional officer
informing her that plaintiff had again refused his catheter kit. There is some dispute about

4

what happened next. Nurse Waterman contends that she noted plaintiff’s non-compliance
and indicated that he should review the August 2005 letter from doctors at UW Hospital.
Plaintiff disputes this, alleging that Nurse Waterman came to his cell, gave him a copy of the
letter from UW Hospital, and told him that he would be forced to wear an indwelling Foley
catheter. The parties’ dispute is immaterial because even accepting plaintiff’s version of
events as true, he was not forced to switch to an indwelling catheter. Indeed, medical records
confirm that plaintiff continued using straight catheters for the next several months.
In February 2006, plaintiff underwent surgery at UW Hospital to repair a rectal
prolapse. Plaintiff was hospitalized for three days, and during that time, doctors gave him a
Foley catheter. This type of catheter stays in place and is connected to a drainage bag that
can be changed without changing the catheter. When UW Hospital discharged plaintiff, his
doctors instructed that he could return to using straight catheters as needed. Upon plaintiff’s
return to WSPF, Dr. Cox wrote an order for him to continue using straight catheters.
The day after plaintiff’s discharge, he submitted a health service request for a Foley
catheter. Plaintiff wrote that:
I am in so much pain I am requesting to wear the catheter that
stays in because when I use the straight catheter this is causing
unreal pain. Plus at the UW Hospital I felt no discomfort with
the catheter staying in. Plus I want [sic] have to use the catheter,
I don’t really have much say into what goes on I am requesting
to wear the catheter, because of too many infections and way
too much pain and keeping my life out of danger. I need to
speak to Doctor Cox or Cindy Sawinski A.S.A.P.
Dkt. 127-1, at 232. Dr. Cox saw plaintiff two days later and approved his request for a Foley
catheter, to be changed weekly. The day after that, plaintiff visited the HSU and medical
personnel inserted the Foley catheter, showed plaintiff how to change the discharge bag

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(which the parties sometimes refer to as a “leg bag”), and instructed him to contact the HSU
if he had any problems. The HSU manager sent a memo to WSPF staff explaining that
plaintiff would be wearing a Foley catheter, and that medical staff would change the catheter
every week while plaintiff would change his discharge bags daily, by himself.
During April 2006, plaintiff went back and forth between wanting a Foley catheter
and wanting straight catheters. On April 6, at plaintiff’s request, Dr. Cox wrote an order
allowing him to use straight catheters seven to eight times per day, as needed. But less than
two weeks later, plaintiff requested to switch back to a Foley catheter. Dr. Cox approved the
request on April 17. Plaintiff did not request any more changes after April 2006.
Beginning in 2011, Dr. Cox ordered that plaintiff could take Vicodin one hour before
changing his Foley catheter (i.e., once a week). Dr. Cox did not feel that Vicodin was
medically necessary; in his experience, most patients who routinely changed their catheters
did not require any pain medication. But he prescribed it anyway, based on plaintiff’s
complaints of pain. Every six months, Dr. Cox reviewed and renewed his orders for Vicodin.
He issued the most recent order in November 2012, and it was valid through April 2013.
Although plaintiff’s bladder condition and difficulties with catheterization continued,
he also had an isolated medical incident in May and June 2012. On May 28, plaintiff
submitted a health service request for a urine test because he was worried that he had an
infection. The HSU did not receive this request until June 1. But plaintiff submitted a second
request two days after submitting his first request. The HSU received plaintiff’s second
request on May 31. That same day, Nurse Kinyon responded to the second request. Plaintiff
refused to come out of his cell, agreeing only to provide a urine sample. Nurse Kinyon noted
that plaintiff did not display obvious signs of distress. The results of plaintiff’s urine test

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came back positive for an infection. Dr. Cox prescribed Ciprofloxacin (Cipro), an antibiotic,
to treat the infection pending the results of a sensitivity report. Nurse Kinyon informed
plaintiff of the prescription, and he began taking the antibiotics.
A few days later, the sensitivity report indicated that plaintiff’s infection was resistant
to Cipro. On June 4, Dr. Cox changed plaintiff’s prescription to Levofloxacin, a different
antibiotic. After entering the order, Dr. Cox had no further involvement in treating plaintiff’s
infection. Despite the order changing plaintiff’s medication, unidentified staff members at
WSPF accidentally sent plaintiff Cipro and Levofloxacin on June 5. Nurses Waterman and
Kinyon were not involved in sending the medication to plaintiff.1
Plaintiff ended up taking both antibiotics. He alleges that afterward, he “became very
sleepy, and even after I had gone to sleep and awaken I still felt sleepy and strange like I
wasn’t myself.” Dkt. 24, ¶ 5. Plaintiff submitted a health service request on June 5, and
Nurse Waterman received the request the next day. Nurse Waterman went to plaintiff’s cell

1

Plaintiff contends that Nurses Waterman and Kinyon were involved. But the evidence that
he contends creates a dispute is his own declaration, which is difficult to understand. He
states that “[a]ccording to Sgt. Brinkman who return and said Nurse Shinyon [sic] said Dr.
Cox said take both until they are all gone. Nurses Waterman and Shinyon [sic] said not to
take both meds send Cipro back.” Dkt. 164, ¶ 21. If plaintiff means that Sergeant
Brinkman—who is not a party to this case—told him what Nurse Kinyon and Dr. Cox said,
then the evidence is inadmissible hearsay: plaintiff cannot rely on Sergeant Brinkman’s out of
court statements to prove the truth of what Sergeant Brinkman said. Fed. R. Evid. 801 and
802; Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009) (“A party may not rely upon
inadmissible hearsay to oppose a motion for summary judgment.”). If plaintiff means that
Nurses Waterman and Kinyon actually told Sergeant Brinkman to tell plaintiff to not take
both antibiotics but that Sergeant Brinkman lied to him, then plaintiff’s statement is
inadmissible because he has not explained how he has personal knowledge of what the nurses
actually said to Sergeant Brinkman. Fed. R. Evid. 602. Either way, plaintiff has not genuinely
disputed that Nurses Waterman and Kinyon were not involved in sending him both
antibiotics.

7

and took away the Cipro because it had been discontinued. At that time, plaintiff did not
complain to Nurse Waterman about any side effects of taking both medications.
Plaintiff’s next confrontation with WSPF staff occurred on January 1, 2013. The
parties dispute what exactly happened. According to plaintiff, his catheter had come out, and
so he asked Sergeant Matti to contact a nurse. But Sergeant Matti refused to do so, causing
plaintiff to suffer severe pain and stomach cramps. For his part, Sergeant Matti does not
remember plaintiff asking to see medical staff on January 1, nor does he remember plaintiff
making any statements about his catheter coming out.2
Plaintiff was transferred to CCI later in January 2013. He underwent an intake
screening on January 17, and Dr. Suliene saw him a few days later to assess his condition and
discuss his medical issues, including his catheter needs. Dr. Suliene noted that plaintiff had
been using a Foley catheter for six to seven years. She wrote orders allowing plaintiff to
continue using the Foley catheter and to change it monthly. Dr. Suliene did not change the
existing orders for pain medication before catheter changes. Plaintiff contends that he told
Dr. Suliene that he wanted to switch back to using straight catheters. Dr. Suliene disputes
that plaintiff ever mentioned straight catheters.3
With Dr. Suliene’s order in place, HSU Manager Anderson informed nursing staff
that she wanted plaintiff’s first catheter change at CCI to be supervised, to ensure that he was
using proper technique. Consistent with this instruction, nursing staff called plaintiff to the
2

This dispute is immaterial. As explained below, plaintiff has not exhausted his
administrative remedies for his claims against Sergeant Matti. Thus, as a matter of law, even
if the events occurred as plaintiff alleges that they did, he cannot succeed on his claims
against Sergeant Matti.
3

This dispute is immaterial because plaintiff has not exhausted his administrative remedies
for his claim that Dr. Suliene forced him to keep using a Foley catheter.

8

HSU on February 1, 2013, to observe his catheter change. Plaintiff refused to change his
catheter, explaining that he did not want to be observed and that he wanted to be able to
change his catheter on his own. Plaintiff also demanded Vicodin for his catheter change. But
a nurse responded that plaintiff did not have a doctor’s order for Vicodin on file. Plaintiff left
the HSU without changing his catheter.
The state defendants do not dispute that plaintiff actually had a valid order for
Vicodin in February 2013—Dr. Cox’s November 2012 order was still in effect. But the
medical personnel who interacted with plaintiff between February and May 2013 did not see
Dr. Cox’s order because of a recordkeeping error.
Over the next several months, plaintiff essentially went through the same routine each
month: he would get called to the HSU, nurses would ask him to change his catheter so that
they could ensure that he was using proper technique, plaintiff would refuse to do so, and
nurses would provide him with a new leg bag and let him return to his cell.
On May 1, 2013, plaintiff saw Nurse Campbell for a catheter change, and he asked
for Vicodin. She checked plaintiff’s medical records and determined that he did not have a
current prescription for Vicodin (by this time, Dr. Cox’s order had expired). Nurse Campbell
contacted another nurse, who authorized her to offer plaintiff lidocaine jelly. Plaintiff refused
the lidocaine jelly and refused to change his catheter. Nurse Campbell provided him with a
leg bag, and he returned to his cell.
On June 3, 2013, plaintiff saw Nurse Thorne for a catheter change. Plaintiff explained
that he usually received two Vicodin tabs before changing his catheter and that he had
previously been allowed to change his catheter in his cell. Nurse Thorne reviewed plaintiff’s
medical records, concluded that he did not have a current prescription for Vicodin, and saw

9

that he had not yet completed a catheter change under supervision while at CCI. Plaintiff
again refused to change his catheter.
A week later, Dr. Martin—who was assisting at CCI at the time but who was not the
institution’s primary physician—ordered supplies for plaintiff to change his catheter.
Dr. Martin also wrote plaintiff a prescription for Vicodin. According to Dr. Martin, he
ordered the Vicodin because “it was a chronic routine for [plaintiff].” Dkt. 133, ¶ 14. On
June 11, 2013, plaintiff returned to the HSU, where Nurse Newman gave him two Vicodin
tablets and observed him successfully change his catheter without complaints. Nurse
Newman gave plaintiff two leg bags, and he returned to his cell.
Unfortunately, the next month did not go as smoothly. Plaintiff went to the HSU on
July 1, 2013, and Nurse Spannagel offered him Vicodin and a private exam room in which to
change his catheter. But for security reasons, Nurse Spannagel could not leave the exam room
because it contained medical equipment. He offered to not look directly at plaintiff, but
plaintiff refused to change his catheter and went back to his cell. Because plaintiff had
refused to take the Vicodin, Dr. Martin discontinued the prescription the next day. Two
weeks later, plaintiff again refused to change his catheter after asking for Vicodin (which had
been discontinued at that point).
On August 1, 2013, plaintiff went to the HSU for his catheter change. He asked for
Vicodin and showed medical personnel documents from an Institution Complaint Examiner
(ICE) stating that orders were in place for him to receive pain medication before changing his
catheter. These documents were part of an inmate grievance that plaintiff had submitted in
May 2013 to complain about not receiving Vicodin before catheter changes. In reviewing the
grievance, the ICE had contacted HSU Manager Anderson, who explained that orders were in

10

place for plaintiff to receive Vicodin (she was referring to the order that Dr. Martin had
entered on June 10, which had not been discontinued at the time that she responded to the
ICE’s inquiry). The ICE recounted HSU Manager Anderson’s response and recommended
dismissing plaintiff’s grievance with modification. By August 1, when plaintiff showed this
documentation to medical personnel, Dr. Martin had discontinued the prescription. Thus,
they refused to give plaintiff Vicodin, and he left without changing his catheter. Two weeks
later, plaintiff asked Nurse Campbell for Vicodin, which she could not provide because he did
not have a current prescription for it. Plaintiff again refused to change his catheter.
On September 6, 2013, staff informed plaintiff that he had an appointment to change
his catheter. When plaintiff arrived at the HSU, he asked to see a physician even though he
had not been scheduled to see one. Based on the medical records, it does not appear that
plaintiff saw a physician. He refused to change his catheter and returned to his cell.
On October 1, 2013, plaintiff saw Nurse Kerch in the HSU, in response to a health
service request that plaintiff had submitted. Plaintiff asked who had changed his orders for
pain medication, and Nurse Kerch responded that Dr. Martin had done so. Nurse Kerch
noted that plaintiff’s last catheter change took place in June 2013, but that plaintiff was
refusing to change it again without Vicodin. Nurse Kerch offered plaintiff catheter supplies so
that he could change his catheter on his own. Plaintiff refused the supplies. Nurse Kerch
advised plaintiff that he should change his catheter.
On November 1, 2013, plaintiff saw Nurse Thorne in the HSU. She asked him if he
was going to change his catheter that day, and plaintiff was generally unresponsive. When
plaintiff finally made eye contact with Nurse Thorne, he indicated that he was not going to
change his catheter and left.

11

A week later, plaintiff saw Dr. Steliga, who is not a party to this lawsuit. Plaintiff
reported that he ordinarily received Vicodin before changing his catheter and that he changed
the catheter on his own. He refused to submit to an exam and did not change his catheter.
Dr. Steliga wrote plaintiff an order for catheter supplies and for pre-change pain medication.
But Dr. Steliga canceled the order for Vicodin later that day, noting that plaintiff had a
history of taking Vicodin and then not changing his catheter.4
Plaintiff met with Nurses Anderson and Kerch to discuss how to proceed with his
catheter changes. Plaintiff emphasized that he had done the changes himself at WSPF and
that he wanted to do so at CCI. Nurses Anderson and Kerch informed plaintiff that he could
change his catheter in the inmate bathroom, and they contacted a physician and received
verbal consent to provide plaintiff with Vicodin that day. The physician also reviewed
plaintiff’s records and entered an order for plaintiff to receive Vicodin before future catheter
changes. But plaintiff became agitated and left before receiving the Vicodin. Later that
evening, Nurse Kerch went to plaintiff’s cell, gave him Vicodin and catheter supplies, and
told him that a nurse would come back in an hour to collect the old catheter supplies and a
urine sample. About an hour later, Nurse Anderson returned to retrieve the old supplies.
Plaintiff had successfully changed his catheter and he also provided a urine sample.
On December 6, 2013, plaintiff saw Dr. Heinzl.5 Plaintiff reported that his catheter
had come out the night before, and he asked Dr. Heinzl if he could use a balloon with 10cc

4

Based on plaintiff’s medical records, it is not clear what “history” Dr. Steliga meant. But
because plaintiff is not bringing claims against her in this case, the issue is irrelevant.
5

Plaintiff initially named Dr. Heinzl as a defendant in this case. See Dkt. 1. I have since
dismissed Dr. Heinzl because plaintiff failed to exhaust his administrative remedies for the
claims that he asserted against him. See Dkt. 107.

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of fluid to keep the catheter from coming out. When Dr. Heinzl asked plaintiff if he wanted
to switch back to using straight catheters, plaintiff was vague and did not give a straight
answer. Plaintiff asked about keeping his catheter supplies in his cell and taking Vicodin
before each change, but Dr. Heinzl responded that neither practice was medically necessary.
Dr. Heinzl eventually entered an order allowing plaintiff to insert a Foley catheter with 10cc
of fluid in the balloon. He did not change the existing order for Vicodin.
Plaintiff refused to attend his January 2014 appointment to change his catheter.
On March 10, 2014, plaintiff submitted a health service request indicating that his
catheter had fallen out. Nurse Spannagel sent plaintiff a straight catheter as a temporary fix
because the HSU was out of Foley catheters. Nurse Spannagel also scheduled plaintiff for an
appointment with the HSU the next morning. Plaintiff sent the catheter back, indicating that
it was the wrong type. Nurse Spannagel sent a message to plaintiff, through a correctional
officer, explaining that the plan was for him to use a straight catheter until morning. Plaintiff
responded that he was going to just reinsert his old Foley catheter. Nurse Spannagel
instructed plaintiff to use swabs to clean out the catheter before trying to reinsert it.
The next day, Nurse Anderson went to plaintiff’s cell and gave him the prescribed
dose of Vicodin. When she returned an hour later, plaintiff had successfully changed his
catheter in his cell, and he returned the old items to Nurse Anderson without incident.
On April 7, 2014, plaintiff came to the HSU for his monthly catheter change. Nurse
Anderson gave him Vicodin and placed the new catheter supplies into a bag for the escorting
officer to take back to plaintiff’s cell. She wrote “controlled” on the bag because it contained
supplies that could be used as weapons or for self-harm. But plaintiff contends that once he
got back to his cell, correctional officers refused to give him the supplies. Two hours later,

13

Nurse Anderson went to plaintiff’s cell to retrieve the old supplies. She had new supplies,
which she offered to plaintiff. He refused them. Nurse Anderson told plaintiff to submit a
health service request if he changed his mind, and then she left.
The next day, plaintiff submitted a health service request. Dr. Hoffmann responded to
the request by indicating that he had discontinued plaintiff’s prescription for Vicodin.
According to Dr. Hoffmann, he discontinued the prescription because plaintiff had taken
Vicodin the day before and then refused to change his catheter.
Plaintiff submitted two health service requests in May 2014. Nurse Peters-Anderson
addressed these requests with plaintiff in the HSU on May 9. She conducted a urine test and
determined that plaintiff had a urinary tract infection. Plaintiff complained to Nurse PetersAnderson that he was not receiving Vicodin before his catheter changes. But she correctly
responded that plaintiff did not have a valid prescription for Vicodin—Dr. Hoffmann had
canceled it in April. Plaintiff also asked Nurse Peters-Anderson for a catheter kit, which the
HSU did not have at the time. There is some dispute about whether Nurse Peters-Anderson
put together catheter supplies and gave them to plaintiff right then, or whether she sent
plaintiff back to his cell and then placed an order for someone else to deliver the supplies
later. For purposes of summary judgment, I will accept plaintiff’s version: Nurse PetersAnderson put together some supplies during the exam and gave them to plaintiff. Regardless
of how and when plaintiff received the supplies, he contends that they did not include an
empty syringe, which he needed to change his catheter.
Two days later, plaintiff approached Nurse Drafahl and asked her for gloves and a
syringe. The exchange did not occur in the HSU—it happened while Nurse Drafahl was

14

passing out medication during breakfast. Nurse Drafahl responded that CCI did not give
inmates gloves and syringes.
The next month, plaintiff resumed his pattern of refusing to change his catheter
despite staff offering him new supplies. The problems persisted until August 2014, when
plaintiff saw Dr. Hoffmann. Plaintiff wanted to know why Dr. Hoffmann had canceled the
order for Vicodin without ever examining him and why the procedures that plaintiff had used
at WSPF had not continued when he was transferred to CCI. Dr. Hoffmann explained that
his decision was based on plaintiff taking Vicodin and then refusing to change his catheter in
April 2014, and he also explained that prisoners’ medical procedures did not necessarily
continue when they changed institutions. At that point, plaintiff stood up, said “then we are
through,” and left.
On September 26, 2014, plaintiff came to the HSU and received supplies to change
his catheter in his cell. Plaintiff and Nurse Thorne discussed whether plaintiff could have an
extra kit in his cell, and they agreed to discuss the issue with the manager of the HSU.
Plaintiff filed suit on September 30, 2014. Dkt. 1. I granted him leave to proceed with
claims under the First and Eighth Amendments and with medical malpractice claims under
state law. Dkt. 10. I have subject matter jurisdiction over plaintiff’s constitutional claims
pursuant to 28 U.S.C. § 1331, because they arise under federal law, and I have subject matter
jurisdiction over plaintiff’s state law claims pursuant to 28 U.S.C. § 1367, because they are
related to plaintiff’s constitutional claims and form part of the same case or controversy.

15

ANALYSIS
In total, defendants have filed four motions for summary judgment. The state
defendants move for summary judgment on some of plaintiff’s claims because he failed to
exhaust his administrative remedies. Dkt. 115. The state defendants also move for meritsbased summary judgment on all of plaintiff’s claims against them. Dkt. 124. Nurse PetersAnderson moves for merits-based summary judgment on all of plaintiff’s claims against her,
Dkt. 119, and Nurse Drafahl moves for merits-based summary judgment on all of plaintiff’s
claims against her, Dkt. 198. Plaintiff opposes all four motions.
I will address the state defendants’ exhaustion-based motion first. Then I will address
all three merits-based motions together, discussing each of plaintiff’s claims in turn. The end
result will be that I will dismiss some of plaintiff’s Eighth Amendment claims without
prejudice because he failed to exhaust his administrative remedies for these claims. I will
grant summary judgment to defendants on all remaining claims because plaintiff has not
come forward with evidence that would support a reasonable jury verdict on these claims.6
A. The state defendants’ exhaustion-based motion for summary judgment
Under the Prison Litigation Reform Act, “[n]o action shall be brought with respect to
prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). The Supreme Court has applied “the PLRA’s exhaustion requirement . . .
to all inmate suits about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534
6

The state defendants recently moved to stay all remaining deadlines until I resolved the
pending motions for summary judgment. Dkt. 217. Given that this opinion will dispose of
the case, I will deny the state defendants’ motion as moot.

16

U.S. 516, 532 (2002) (internal citations omitted). To properly exhaust a claim, “the inmate
must file a timely grievance utilizing the procedures and rules of the state’s prison grievance
process.” Maddox v. Love, 655 F.3d 709, 720 (7th Cir. 2011). “[A] prisoner who does not
properly take each step within the administrative process has failed to exhaust state remedies,
and thus is foreclosed by § 1997e(a) from litigating.” Pozo v. McCaughtry, 286 F.3d 1022,
1024 (7th Cir. 2002). Failure to exhaust is an affirmative defense, which defendants have the
burden of raising and proving. Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004).
The State of Wisconsin makes administrative remedies available to inmates through
the Inmate Complaint Review System, a four-part process. Under this system, an inmate
must file a grievance within 14 calendar days after the relevant events occur. Wis. Admin.
Code DOC § 310.09(6). An ICE reviews the grievance and recommends action to a reviewing
authority. Id. § 310.11(4), (11). The reviewing authority makes a decision within 10 working
days. Id. § 310.12. If an inmate is not satisfied with the reviewing authority’s decision, then
he may appeal that decision to the Corrections Complaint Examiner (CCE), who makes a
recommendation to the office of the secretary, which ultimately accepts, rejects, or returns
the recommendation to the CCE. Id. §§ 310.13-.14.
Defendants Dr. Cox, Nurse Waterman, Dr. Suliene, and Sergeant Matti move for
summary judgment on some of plaintiff’s claims against them, contending that he failed to
exhaust his administrative remedies for these claims. Dkt. 115.7 I will grant this motion.

7

Plaintiff objects to the state defendants’ motion as untimely. See Dkt. 40, at 4 (setting a
deadline of July 24, 2015). But I gave the state defendants permission to file an untimely
motion because the complexity of the case made their failure to notice an exhaustion issue
understandable and because Seventh Circuit precedent directs district courts to avoid
considering the merits of claims that have not been exhausted. Dkt. 146, at 2.

17

I granted plaintiff leave to proceed against Dr. Cox, Nurse Waterman, Dr. Suliene,
and Sergeant Matti with claims under the Eighth Amendment. Dkt. 10, at 13-14.
Specifically, I concluded that plaintiff had stated claims against Dr. Cox, Nurse Waterman,
and Dr. Suliene for deliberate indifference to plaintiff’s serious medical needs because they
contravened the orders of UW Hospital doctors and forced him to wear a Foley catheter. Id.
at 8.8 I also concluded that plaintiff had stated a claim against Sergeant Matti for deliberate
indifference because he refused to contact a nurse in January 2013, when plaintiff showed
him that his catheter had come out. Id.
Plaintiff contends that he exhausted his claims against Dr. Cox, Nurse Waterman, and
Dr. Suliene in inmate complaints WSPF-2005-27150 and CCI-2013-9917. Dkt. 156, at 1.
But neither grievance mentioned that medical personnel had switched plaintiff from a
straight catheter to a Foley catheter. For the ’27150 grievance, this makes sense because
plaintiff submitted the grievance on September 5, 2005, a month before Nurse Waterman
(who was allegedly following Dr. Cox’s orders) allegedly forced plaintiff to switch to a Foley
catheter. See Dkt. 1, ¶ 32 (“[Waterman] told me on 10-9-05 to cath myself 8 x daily is way
too much. This is the beginning of []DOC medical forcing me to wear a Foley catheter.”).
Thus, the ’27150 grievance did not exhaust plaintiff’s administrative remedies for his claims
against Dr. Cox, Nurse Waterman, and Dr. Suliene.
In the ’9917 grievance, plaintiff addressed “[o]ne issue: violation of doctor’s orders. I
explain to several nurses at CCI that I get pain meds before I cath myself doctor’s order and
that I been catheterizing myself since 2005. Dr. Suliene knew all this!” Dkt. 157-1, at 1.
8

I also granted plaintiff leave to proceed against Dr. Suliene with a claim under the Eighth
Amendment for failing to provide him with pain medication. Dkt. 10, at 8. That claim is not
at issue in the state defendants’ exhaustion-based motion for summary judgment.

18

Dr. Cox and Nurse Waterman worked at WSPF, and this grievance did not mention them
other than to indicate that they had information about plaintiff’s complaints. As for
Dr. Suliene, plaintiff complained that she and other medical staff were not giving him pain
medication before each catheter change, not that they were disobeying a doctor’s orders
regarding the type of catheter that plaintiff was supposed to use. Although an inmate does
not need to lay out a detailed factual narrative, articulate legal theories, or demand particular
relief to exhaust his administrative remedies, he must “object intelligibly to some asserted
shortcoming.” Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). “[T]he standard is whether
the offender complaint would put an official on notice of the plaintiff’s claim.” Wille v. Pugh,
No. 13-cv-1024, 2015 WL 5254532, at *6 (E.D. Wis. Sept. 9, 2015). Here, the ’9917
grievance objected to CCI staff refusing to provide plaintiff with pain medication, not to their
decision to keep plaintiff on a Foley catheter. Thus, the grievance did not exhaust plaintiff’s
administrative remedies for his claims against Dr. Cox, Nurse Waterman, or Dr. Suliene.
Plaintiff contends that he exhausted his administrative remedies for his claim against
Sergeant Matti in inmate grievance WSPF-2006-38. But plaintiff submitted this grievance in
January 2006, and the incident with Sergeant Matti that gives rise to plaintiff’s claim against
him occurred in January 2013. Thus, the ’38 grievance could not have exhausted plaintiff’s
administrative remedies for his claim against Sergeant Matti.
Based on the analysis above, I conclude that plaintiff has failed to exhaust his
administrative remedies for his claims that: (1) Dr. Cox, Nurse Waterman, and Dr. Suliene
violated plaintiff’s Eighth Amendment rights when they contravened the orders of UW
Hospital doctors by forcing plaintiff to wear a Foley catheter; and (2) Sergeant Matti violated
plaintiff’s Eighth Amendment rights when he refused to contact a nurse in January 2013 after

19

seeing that plaintiff’s catheter had come out. I will therefore grant the state defendants’
motion for summary judgment on exhaustion grounds and dismiss these claims without
prejudice. See Teal v. Potter, 559 F.3d 687, 693 (7th Cir. 2009). Although the dismissal is
technically without prejudice, it is unlikely that plaintiff will ever be able to exhaust his
administrative remedies for these claims.
B. Defendants’ merits-based motions for summary judgment
All defendants have moved for summary judgment on plaintiff’s claims against them.9
To succeed on their motions, defendants must show that there is no genuine issue of material
fact and that they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A genuine issue of material fact arises only if
sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for
that party.” Brummett v. Sinclair Broad. Grp., Inc., 414 F.3d 686, 692 (7th Cir. 2005). I must
draw all reasonable inferences from the facts in the summary judgment record in the
nonmoving party’s favor. Baron v. City of Highland Park, 195 F.3d 333, 338 (7th Cir. 1999).
But if the nonmoving party fails to establish the existence of an essential element on which
that party will bear the burden of proof at trial, then summary judgment for the moving party
is proper. Celotex, 477 U.S. at 322.
1. Eighth Amendment claims
I granted plaintiff leave to proceed with the following Eighth Amendment claims for
deliberate indifference to his serious medical needs:

9

I will not address the merits of plaintiff’s Eighth Amendment claims against Dr. Cox, Nurse
Waterman, or Sergeant Matti, as I dismissed these claims without prejudice. Likewise, I will
not discuss plaintiff’s Eighth Amendment claim against Dr. Suliene that arises out of her
forcing plaintiff to wear a Foley catheter.

20



Dr. Suliene failed to provide plaintiff with pain medication;



HSU Manager Anderson and Nurses Campbell, Spannagel, Newman,
Thorne, Anderson, Kerch, Peters-Anderson, and Drafahl recorded false
progress notes, denied plaintiff Vicodin, and failed to provide plaintiff
with necessary medical supplies; and



Dr. Martin and Dr. Hoffmann removed plaintiff’s prescription for
Vicodin and failed to provide him with other pain relief.

Dkt. 10, at 8. These claims are part of plaintiff’s principal theory for this case: he contends
that at all relevant times, he was entitled to change his catheter in his cell, whenever he
wanted to change it, and that he was entitled to receive Vicodin beforehand.
“[D]eliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain . . . proscribed by the Eighth Amendment.” Estelle
v. Gamble, 429 U.S. 97, 104 (1976) (citations and internal quotation marks omitted). To
succeed on his Eighth Amendment claims, plaintiff must “demonstrate two elements: 1) an
objectively serious medical condition; and 2) an official’s deliberate indifference to that
condition.” Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011). For the first element of
plaintiff’s Eighth Amendment claims, “[a] medical need is considered sufficiently serious if
the inmate’s condition has been diagnosed by a physician as mandating treatment or is so
obvious that even a lay person would perceive the need for a doctor’s attention.” Roe v. Elyea,
631 F.3d 843, 857 (7th Cir. 2011) (citations, internal quotation marks, and alterations
omitted). Plaintiff’s neurogenic bladder condition qualifies as a serious medical need. Doctors
at UW Hospital diagnosed the condition and directed him to use a catheter to pass urine.
Medical personnel cooperated with plaintiff’s treatment plan by ordering catheter supplies
and, on occasion, narcotic pain medication.

21

For the second element of plaintiff’s Eighth Amendment claims, he “must establish
that prison officials acted with a ‘sufficiently culpable state of mind.’” Id. (quoting Greeno v.
Daley, 414 F.3d 645, 653 (7th Cir. 2005)). Plaintiff does not need to establish that
defendants intended to harm him, but negligence or accident is insufficient. Id. “It is enough
to show that the defendants knew of a substantial risk of harm to [plaintiff] and disregarded
the risk.” Id. (alterations omitted). Based on the undisputed facts in the record, I conclude
that plaintiff is not able to establish this element.
Plaintiff contends that different defendants provided inadequate care in different
ways. The doctors refused to prescribe, or removed his prescription for, Vicodin. The nurses
refused to provide Vicodin, lied in plaintiff’s progress notes, and failed to provide the catheter
supplies that plaintiff wanted when he wanted them. Although these allegations describe
separate aspects of plaintiff’s concerns with the medical care that he has received, I “must
examine the totality of an inmate’s medical care when considering whether that care
evidences deliberate indifference to his serious medical needs.” Reed v. McBride, 178 F.3d 849,
855 (7th Cir. 1999) (citations and internal quotation marks omitted).
Since 2005, doctors have treated plaintiff’s condition by directing him to use a
catheter to pass urine. Medical personnel have also consistently offered pain relief, sometimes
by prescribing Vicodin, and other times by offering lidocaine jelly. Plaintiff has also had
access to Tylenol and other pain medication. Plaintiff does not contend that this general
course of treatment was inadequate; rather, he is challenging specific instances where prison
medical personnel did not provide the treatment that he wanted in the way that he wanted it.
Some of these instances involved doctors switching plaintiff to a Foley catheter.10 Other

10

As explained above, defendants are entitled to summary judgment on these claims because

22

instances involved doctors making medical judgments about plaintiff’s condition or nurses
providing the care that doctors had ordered. Plaintiff may disagree with his doctors’ orders
and his nurses’ decisions to follow those orders, but “[n]either medical malpractice nor mere
disagreement with a doctor’s medical judgment is enough to prove deliberate indifference in
violation of the Eighth Amendment.” Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010).
Plaintiff has not adduced evidence of a single time that he was denied catheter
supplies outright during the nine years that are at issue in this case. Two incidents come
close, but neither establishes that any defendants were deliberately indifferent to, or
otherwise failed to treat, plaintiff’s medical needs.
First, in April 2014, plaintiff went to the HSU at CCI, received Vicodin, and then
returned to his cell to change his catheter. Nurse Anderson placed plaintiff’s catheter supplies
in a bag, wrote “controlled” on the bag, and gave it to the correctional officer who was
escorting plaintiff. Plaintiff alleges that correctional officers (who are not defendants in this
case) later refused to give him the supplies when he asked for them. But there is no dispute
that Nurse Anderson came to his cell a few hours later and offered him catheter supplies,
which he refused. At most, plaintiff’s treatment was delayed by a few hours. This delay does
not constitute deliberate indifference to plaintiff’s medical needs.
Second, in May 2014, Nurse Peters-Anderson put together some supplies for plaintiff
because the HSU was out of catheter kits. The supplies did not include an empty syringe.
Although plaintiff contends that he could not change his catheter without the syringe, he has
plaintiff failed to exhaust his administrative remedies. But even if I were to consider the
merits of these claims, the evidence establishes that doctors switched plaintiff to a Foley
catheter only because he asked to be switched. And doctors continued accommodating plaintiff
by switching him back to a straight catheter, and then back again to a Foley catheter. This
was not deliberate indifference—it was medical treatment that plaintiff requested.

23

not adduced evidence that he told Nurse Peters-Anderson about the issue or that she knew
that the supplies were incomplete. As for plaintiff’s interaction with Nurse Drafahl a few days
later, there is no evidence that: (1) she knew that the supplies that Nurse Peters-Anderson
had assembled were incomplete and that plaintiff actually needed the missing items; or
(2) she had the supplies on hand and could have given them to plaintiff. Regardless, plaintiff
received a full set of supplies a few weeks later. It is not clear that it would have made a
difference if plaintiff had received the missing supplies from Nurses Peters-Anderson or
Drafahl because by May 2014, plaintiff had already informed CCI staff members that he was
not changing his catheter because they were withholding Vicodin. Dkt. 127-2, at 18.
Even construing the facts in plaintiff’s favor, it appears that Nurse Peters-Anderson
did the best that she could with the supplies available. Plaintiff was not in the HSU for a
catheter change, and so there was no reason for Nurse Peters-Anderson to be prepared to
address this particular medical concern. Likewise, Nurse Drafahl denied plaintiff’s request
during a chance encounter outside the HSU, as she was passing out medication to other
inmates. The evidence also demonstrates that other medical personnel tried to give plaintiff
catheter supplies in May 2014 and that he rejected those supplies because they did not come
with Vicodin. Under the circumstances, no reasonable jury could conclude that Nurses
Peters-Anderson or Drafahl were deliberately indifferent to plaintiff’s medical needs.
Plaintiff’s next category of challenges relates to his pre-procedure Vicodin. Defendants
acknowledge that plaintiff had a valid prescription in effect in February, March, and April of
2013. Dkt. 125, at 29-30. During these three months, plaintiff had contact with Dr. Suliene
and Nurse Campbell. Dr. Suliene never denied plaintiff Vicodin—she left Dr. Cox’s order for
Vicodin in place. Nurse Campbell refused to provide plaintiff with Vicodin on two occasions

24

because she did not see Dr. Cox’s order in his medical records. Dkt. 139, ¶ 7. This was an
unfortunate mix-up, but it was not a constitutional violation. There is no evidence that Nurse
Campbell knew of Dr. Cox’s order and then intentionally refused to comply with it. Cf.
Walker v. Benjamin, 293 F.3d 1030, 1040 (7th Cir. 2002) (concluding that defendants did
not have qualified immunity when there was evidence that the plaintiff’s “doctor prescribed
pain medication, and Nurse Dunbar simply refused to give it to him,” which would violate
the Eighth Amendment). Although Nurse Campbell overlooked plaintiff’s prescription for
Vicodin, she still offered plaintiff the primary treatment for his condition: catheter supplies.
Every other time that plaintiff requested Vicodin and had a valid prescription, he received it.
And every other time that nurses denied plaintiff Vicodin, it was because he did not have a
valid prescription for it (and nurses were not allowed to independently prescribe Vicodin).11
Medical personnel routinely offered plaintiff lidocaine jelly and other medication for pain
management. Under these circumstances, no reasonable jury could find that defendants were
deliberately indifferent to plaintiff’s medical needs.
Each time that doctors canceled plaintiff’s prescription for Vicodin, they had valid
reasons for doing so. After plaintiff refused to take Vicodin and change his catheter in July
2013, Dr. Martin canceled plaintiff’s prescription because he felt that it was no longer
necessary. According to Dr. Martin, most patients who routinely change their catheters do
not require pain medication, and lidocaine jelly would have been an adequate way to manage

11

In responding to plaintiff’s requests to admit, Dr. Cox denied that “[o]nly a doctor can
prescribe medication.” Dkt. 162-4, at 26. From this admission, plaintiff contends that his
nurses could have prescribed him Vicodin. But plaintiff misunderstands Dr. Cox’s response.
Just because doctors are not the only medical personnel who can prescribe medication does
not mean that nurses can prescribe medication. The nurses in this case indicate that they did
not have that authority, and plaintiff has not genuinely disputed this fact.

25

any pain associated with the change. Dkt. 133, ¶ 17. Plaintiff responds that he did not refuse
to change his catheter in July 2013, and so Dr. Martin’s real reason for canceling the
prescription was retaliation (presumably, to punish plaintiff for filing inmate grievances about
his medical care). But there is no dispute that plaintiff did not take his Vicodin or catheter
supplies in July 2013. In Dr. Martin’s opinion, this was a sufficient reason to discontinue
plaintiff’s prescription. Plaintiff’s disagreement with the decision does not mean that
Dr. Martin was deliberately indifferent to his medical condition. Holloway v. Del. Cty. Sheriff,
700 F.3d 1063, 1074 (7th Cir. 2012) (“[T]he prison physician, as the inmate’s acting
primary care doctor, is free to make his own, independent medical determination as to the
necessity of certain treatments or medications, so long as the determination is based on the
physician’s professional judgment and does not go against accepted professional standards.”).
After plaintiff took Vicodin and then refused to change his catheter in April 2014,
Dr. Hoffmann canceled plaintiff’s prescription. Plaintiff argues that he did not refuse to
change his catheter; correctional officers refused to provide him with the supplies when he
asked for them. But the undisputed facts confirm that Nurse Anderson came to plaintiff’s cell
and offered him supplies, which he refused. Plaintiff has not adduced evidence to suggest that
Dr. Hoffmann did not believe Nurse Anderson’s account of the relevant events. Based on
that account, Dr. Hoffmann reasonably decided to discontinue plaintiff’s prescription.
Plaintiff also contends that medical personnel lied in some of their entries in his
medical records. Even assuming that false progress notes would violate the Eighth
Amendment, plaintiff has failed to adduce any evidence to support his allegations. Most of
the lies that plaintiff identified in his complaint relate to entries indicating that plaintiff
refused treatment when nurses offered him catheter supplies. A recurring theme in plaintiff’s

26

submissions is that he could not technically “refuse” supplies because doctors at UW
Hospital initially ordered him to change his catheter “as needed.” But by the time that
plaintiff arrived at CCI, those orders were seven years old. Medical personnel at CCI were
operating under Dr. Suliene’s more recent order that plaintiff replace his Foley catheter once
a month, not “as needed.” And even if plaintiff was entitled to receive supplies as needed,
nurses did not lie when they reported that plaintiff refused catheter supplies by not accepting
them when they were offered to him—that is what “refuse” means.
In response to defendants’ motions for summary judgment, plaintiff has identified
only four specific lies that he contends violated his Eighth Amendment rights. Plaintiff has
therefore waived opposition to defendants’ motions as they pertain to the other lies alleged in
the complaint. Walton v. U.S. Steel Corp., 497 F. App’x 651, 655 (7th Cir. 2012); Laborers’
Int’l Union of N. Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999). The lies that plaintiff
addresses include: (1) Nurse Spannagel lied about offering plaintiff catheter supplies in
March 2014, Dkt. 161, at 6; (2) Nurse Anderson lied about plaintiff refusing to change his
catheter in April 2014, id.; (3) Nurse Thorne lied about sending plaintiff catheter supplies in
May 2014, id.; and (4) Nurses Campbell and Anderson lied about plaintiff’s history of taking
Vicodin and not catheterizing himself, id. at 5, 8. But plaintiff has failed to adduce evidence
that the nurses actually lied—he either misreads or misunderstands the relevant progress
notes. For example, Nurses Campbell and Anderson did not lie about plaintiff’s history: on at
least one occasion, plaintiff did take Vicodin and then refuse to change his catheter.
Plaintiff’s Eighth Amendment claims essentially boil down to his desire to manage his
bladder condition as he sees fit. He wants to receive Vicodin before each catheter change and
he wants to change his catheter in his cell whenever he wants. Over the past 10 years, doctors

27

and other medical personnel sometimes accommodated plaintiff. Sometimes they did not
accommodate him. But defendants were not deliberately indifferent to plaintiff’s serious
medical needs: they consistently responded to his requests for care and provided him with
treatment. Because plaintiff cannot establish the second element of his Eighth Amendment
claims, I will grant defendants’ motions for summary judgment.
2. First Amendment claims
I granted plaintiff leave to proceed with First Amendment claims for retaliation
against defendants Dr. Martin and Nurses Campbell, Spannagel, Newman, Thorne,
Anderson, and Kerch. Dkt. 10, at 10. Plaintiff’s retaliation claims arise out of his allegations
that these defendants withheld pain medication and catheter supplies in response to
plaintiff’s inmate grievances regarding their treatment. To succeed on these claims, plaintiff
must demonstrate that “(1) he engaged in activity protected by the First Amendment; (2) he
suffered a deprivation that would likely deter First Amendment activity in the future; and
(3) the First Amendment activity was at least a motivating factor in the [d]efendants’
decision to take the retaliatory action.” Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)
(internal citations and quotation marks omitted).
Plaintiff engaged in protected activity by filing inmate grievances complaining about
the medical care that he was receiving. See DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir.
2000) (“[A] prison official may not retaliate against a prisoner because that prisoner filed a
grievance.”). But defendants contend that plaintiff did not suffer an adverse action, and that
even if he did, there is no evidence that plaintiff’s grievances motivated those actions. For the
most part, plaintiff does not respond to these arguments in opposing summary judgment. See
generally Dkt. 161. He has therefore waived his opposition. Walton, 497 F. App’x at 655;

28

Laborers’ Int’l Union of N. Am., 197 F.3d at 1197. But even on the merits, I agree with
defendants that they are entitled to summary judgment on plaintiff’s retaliation claims
because he has not adduced evidence of a causal connection between his protected activity
and their adverse actions.
From plaintiff’s summary judgment submissions (and from the allegations in the
complaint), he appears to allege that the following events were retaliatory:


In July 2013, Nurses Campbell, Spannagel, Newman, and Thorne said
something to Dr. Martin to convince him to discontinue plaintiff’s
prescription for Vicodin. Then they recorded false progress notes to
indicate that plaintiff had refused his catheter supplies. Dkt. 1, ¶¶ 51-53
and Dkt. 161, at 5.



Nurses Spannagel, Campbell, Kerch, and Thorne refused to give plaintiff
Vicodin from July 2013 to November 2013. And the nurses convinced
Dr. Heinzl to cancel plaintiff’s prescription for Vicodin. Dkt. 1, ¶ 55 and
Dkt. 161, at 5.



Nurse Anderson wrote “controlled” on the bag of catheter supplies that she
sent with plaintiff in April 2014 because she knew that correctional officers
would not give the supplies to plaintiff and that she could “set up” plaintiff
for refusing his catheter supplies. Dkt. 1, ¶¶ 74-75 and Dkt. 161, at 6.



In April 2014, Nurses Anderson, Campbell, Newman, Thorne, and
Spannagel encouraged Dr. Hoffmann to discontinue plaintiff’s prescription
for Vicodin. Dkt. 161, at 6.

Based on the summary judgment evidence, the events listed above did not happen
exactly as plaintiff has described them. But the basics are undisputed: after plaintiff
complained about his medical care, doctors discontinued his prescriptions for Vicodin. Under
these circumstances, a jury could certainly conclude that defendants’ actions would dissuade
an inmate from filing additional grievances. Cf. Rowe v. Gibson, 798 F.3d 622, 631 (7th Cir.
2015) (plaintiff stated a retaliation claim when he alleged that medical personnel deprived

29

him of prescription medication to “make him think twice about bringing lawsuits about
inadequate medical care” (internal quotation marks omitted)).
Although plaintiff has identified protected conduct and adverse actions, there is no
evidence of a causal connection between the two. The Seventh Circuit has adopted a two-part
test for analyzing causation in the context of First Amendment retaliation claims. A plaintiff
must first make a prima facie showing of causation by demonstrating that “the defendant’s
conduct was a sufficient condition of the plaintiff’s injury. The defendant can rebut, but only
by showing that his conduct was not a necessary condition of the harm—the harm would
have occurred anyway.” Greene v. Doruff, 660 F.3d 975, 980 (7th Cir. 2011). If defendants
show that they would have taken the allegedly retaliatory action anyway, plaintiff “must then
demonstrate that the defendant’s proffered reasons for the decision were pretextual and that
retaliatory animus was the real reason for the decision.” Zellner v. Herrick, 639 F.3d 371, 379
(7th Cir. 2011). “At the summary judgment stage, this means that a plaintiff must produce
evidence upon which a rational finder of fact could infer that the defendant’s proffered
reason is a lie.” Id. (citing Vukadinovich v. Bd. of Sch. Trs., 278 F.3d 693, 699 (7th Cir. 2002)).
Plaintiff contends that the nurses at CCI were essentially on a mission to convince
doctors to take away his prescription for Vicodin. At the pleading stage, these bare allegations
were sufficient to state retaliation claims. But now we are at summary judgment, and plaintiff
does not have any evidence that nurses lied to Dr. Martin or Dr. Hoffmann to trick them into
discontinuing plaintiff’s prescriptions. See Sierra Club v. Franklin Cty. Power of Ill., LLC, 546
F.3d 918, 925 (7th Cir. 2008) (To survive a defendant’s motion for summary judgment . . . a
plaintiff cannot rely on mere allegations but must support each element by specific facts via
affidavits or other evidence.”). As I have already concluded, the nurses did not lie when they

30

recorded progress notes indicating that plaintiff refused his catheter supplies—this is merely
another result of plaintiff’s mistaken belief that it was impossible for him to “refuse” supplies
that he believed should have been offered on an “as needed” basis. Likewise, the evidence
confirms that the nurses did not give plaintiff pain medication from July 2013 to November
2013 because he did not have a valid prescription for it.
As for Dr. Martin and Dr. Hoffmann, they have explained why they discontinued
plaintiff’s prescriptions for Vicodin in 2013 and 2014. Dr. Martin canceled the prescription
because plaintiff had refused Vicodin and a catheter change, and so he felt that plaintiff no
longer needed Vicodin. Dkt. 133, ¶ 15. Dr. Hoffmann canceled the prescription because
plaintiff had taken Vicodin and then refused to change his catheter. Dkt. 134, ¶ 14. Plaintiff
speculates that the real reasons for the doctors’ actions were retaliatory animus or collusion
with nurses at CCI who wanted to retaliate against him. But plaintiff has not adduced
evidence to support his speculation. No reasonable jury could doubt that Dr. Martin and Dr.
Hoffmann sincerely believed the reasons that they gave for their decisions.
This leaves plaintiff’s allegation that Nurse Anderson “set it all up” in April 2014,
when she wrote “controlled” on the bag of catheter supplies. Dkt. 161, at 6. Plaintiff
contends that the supplies were not actually supposed to be controlled, relying on a medical
staff member’s response to an inmate grievance that plaintiff filed to address the issue.
Dkt. 162-6, at 10 (“The item was not controlled, it was meant to be exchanged one for
one.”). Nurse Anderson explains that she wrote “controlled” because the supplies in the bag
could have been used as weapons or for self-harm. Dkt. 138, ¶ 12. But even assuming that
Nurse Anderson incorrectly wrote “controlled” on the bag, there is no dispute that she went
to plaintiff’s cell a few hours later and offered him catheter supplies, which he refused. Based

31

on these facts, no reasonable jury could conclude that Nurse Anderson was setting plaintiff
up or falsely recording that he had refused to change his catheter.
Plaintiff has not adduced evidence of a causal connection between his protected
activity and defendants’ adverse actions. Thus, defendants are entitled to summary judgment
on plaintiff’s Frist Amendment retaliation claims.
3. Medical malpractice claims
I granted plaintiff leave to proceed with state law medical malpractice claims against
defendants Dr. Cox, HSU Manager Miller, and Nurses Kinyon and Waterman. These claims
arise out of plaintiff’s allegations that defendants directed him to take two different
antibiotics at the same time in 2012. Under Wisconsin law, “[a] claim for medical
malpractice, as all claims for negligence, requires the following four elements: (1) a breach of
(2) a duty owed (3) that results in (4) an injury or injuries, or damages.” Paul v. Skemp, 2001
WI 42, ¶ 17, 242 Wis. 2d 507, 625 N.W.2d 860.
Defendants first contend that they are entitled to summary judgment because plaintiff
does not have an expert witness who will establish the applicable standard of care. Dkt. 125,
at 14 (citing Carney-Hayes v. Nw. Wis. Home Care, Inc., 2005 WI 118, ¶ 37, 284 Wis. 2d 56,
699 N.W.2d 524 (“Medical malpractice cases require expert testimony to establish the
standard of care.”)). I will not grant defendants summary judgment on this ground. If this
case turned on disputes about the level of care that plaintiff should have received, then I
would appoint counsel to represent plaintiff and pursue an expert opinion on the issue. But I
have not appointed counsel because this case comes down to a few basic non-medical facts.
For example, plaintiff cannot succeed on his Eighth Amendment claims because the evidence
confirms that defendants did not lie in their progress notes, regularly offered plaintiff

32

treatment for his bladder condition, and handled plaintiff’s requests for Vicodin in
accordance with orders from doctors who had valid reasons for their decisions. The same is
true for plaintiff’s medical malpractice claims: defendants are entitled to summary judgment
for basic factual reasons.
Defendants also contend that plaintiff did not experience an “injury” from taking two
antibiotics. They argue—without citing to supporting authority—that feeling sleepy and “like
I wasn’t myself” for a brief period of time does not legally qualify as an injury. Id. at 15. This
argument is not persuasive. Plaintiff has adduced evidence that he suffered side effects from
taking two antibiotics. His injuries were certainly minor. But a jury could reasonably
conclude that plaintiff is entitled to at least modest compensation for those injuries. Thus,
defendants’ contention that plaintiff did not suffer an injury does not entitle them to
summary judgment.
Despite rejecting some of defendants’ arguments, I will still grant their motion for
summary judgment. The evidence confirms that WSPF staff overlooked Dr. Cox’s order
changing plaintiff’s prescription from Cipro to Levofloxacin. But it appears that plaintiff has
identified the wrong defendants for this claim. Even assuming that plaintiff could establish
the other elements of his medical malpractice claim, Dr. Cox, HSU Manager Miller, and
Nurses Kinyon and Waterman were not the individuals who allegedly breached the
applicable standard of care. These defendants are therefore entitled to summary judgment.
Dr. Cox was not involved in the situation beyond ordering a change in plaintiff’s
prescription. HSU Manager Miller did not get involved until after the incident occurred,
when she responded to an ICE who was investigating an inmate grievance that plaintiff filed.
Likewise, Nurses Kinyon and Waterman were not the staff members who overlooked that

33

Dr. Cox had changed plaintiff’s prescription, nor did they prepare the medication for prison
guards to distribute to plaintiff that day. Plaintiff initially alleged that at his request, prison
guards contacted Nurse Kinyon and reported that she said that he was to take both
antibiotics. See Dkt. 1, ¶ 3. But plaintiff has not adduced admissible evidence to support this
allegation, and as the record stands at summary judgment, Nurses Kinyon and Waterman did
not get involved until after plaintiff had taken the antibiotics.
Based on these facts, plaintiff cannot succeed on medical malpractice claims against
Dr. Cox, HSU Manager Miller, and Nurses Kinyon and Waterman. These defendants are
entitled to summary judgment.

ORDER
IT IS ORDERED that:
1. Defendants Burton Cox, Jolinda Waterman, Dalia Suliene, and Richard Matti’s
motion for partial summary judgment on exhaustion grounds, Dkt. 115, is
GRANTED. Plaintiff’s Eighth Amendment claims against Burton Cox, Jolinda
Waterman, and Richard Matti are DISMISSED without prejudice. Plaintiff’s
Eighth Amendment claim against Dalia Suliene, arising out of her forcing plaintiff
to wear a Foley catheter in violation of the orders of doctors at UW Hospital, is
DISMISSED without prejudice.
2. Defendant Ann Peters-Anderson’s motion for summary judgment, Dkt. 119, is
GRANTED.
3. Defendants Karen Anderson, Trisha Anderson, Kim Campbell, Burton Cox, Phillip
Kerch, Sheryl Kinyon, Brad Martin, Richard Matti, Mary Miller, Natalie
Newman, David Spannagel, Dalia Suliene, Melissa Thorne, and Jolinda
Waterman’s motion for summary judgment, Dkt. 124, is GRANTED in
substantial part. The motion is DENIED as unnecessary with regard to plaintiff’s
unexhausted claims.
4. Defendant Rose Drafahl’s motion for summary judgment, Dkt. 198, is
GRANTED.

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5. The state defendants’ motion to stay all pretrial deadlines and the trial date
pending resolution of summary judgment, Dkt. 217, is DENIED as moot.
6. The clerk of court is directed to enter judgment accordingly and close this case.
Entered June 23, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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