Page, Emmanuel v. Felber, J. et al

Filing 48

ORDER denying defendants' 28 Motion for Summary Judgment ; denying as moot plaintiff's 40 Motion for continuance; granting plaintiff's 22 Motion for Assistance in Recruiting Counsel. The remaining deadlines are stricken and proceedings stayed pending recruitment of counsel for plaintiff. Signed by District Judge William M. Conley on 1/10/2017. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
_________________________________________________________________________________
EMMANUEL PAGE,
Plaintiff,

OPINION & ORDER

v.

14-cv-889-wmc

NURSE J. FELBER and
NURSE ANTHONY HENTZ,
Defendants.
_________________________________________________________________________________
Pro se plaintiff Emmanuel Page was granted leave to proceed in this case on claims
that defendants Jean Felber and Anthony Hentz, both nurses at the New Lisbon
Correctional Institution, acted with deliberate indifference to his need for medical
treatment for serious breathing problems. Before the court is defendants’ motion for
summary judgment (dkt. #28), which will be denied based on genuine disputes of
material facts about (1) whether Page had a serious medical need for an Albuterol
inhaler; and (2) whether defendants were deliberately indifferent to that need. Further,
in light of the medical questions involved in this case, the court will grant Page’s request
for assistance in recruiting counsel (dkt. #22), for the trial on his claims. Finally, Page’s
motion for a continuance (dkt. #40) will, therefore, be denied as moot, since the trial
date and all other deadlines will be struck and this case will be stayed pending
recruitment of counsel.

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UNDISPUTED FACTS1
A. The Parties
At times relevant to this lawsuit, plaintiff Emmanuel Page was confined by the
Wisconsin Department of Corrections at the New Lisbon Correctional Institution
(“NLCI”). The defendants, Jean Felber and Anthony Hentz, were employed at NLCI as
nurse clinicians. Both are licensed registered nurses.
Page has been diagnosed with asthma and chronic obstructive pulmonary disease
(“COPD”), a lung disease that interferes with his ability to breathe properly. Asthma
involves inflammation of the airways that contribute to airway obstruction, sometimes
causing attacks of wheezing and shortness of breath. Although the symptoms vary from
individual to individual, the primary symptoms of COPD usually include shortness of
breath, wheezing, and cough with sputum production.
COPD typically worsens over time. There is no known cure for COPD, but the
symptoms may be treatable and its progression can be delayed. Inhaled bronchodilators
are the primary medications used to treat COPD. They help open airways and reduce
shortness of breath and wheezing.
B. Obtaining Medical Care and Prescription Refills at the Prison
Inmates at NLCI are given an inmate handbook that provides instructions for
obtaining medical care. The handbook instructs that when an inmate needs to refill a
prescription medication, he must complete and submit a medication/medical supply refill
Unless otherwise noted, the court finds the following facts material and undisputed for purposes
of summary judgment as drawn from the parties’ proposed findings of facts and responses and
viewed in the light most favorable to plaintiff as the non-moving party.
1

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form to HSU nursing staff. Inmates are advised to request refills 7-10 days before they
will run out in order to provide sufficient time for central pharmacy and HSU to obtain
the refill. HSU staff pick up medication refill requests and health services requests from
the units generally between 5:00 a.m. and 7:00 a.m. on weekdays and around 9:00 a.m.
on weekends/holidays or if an emergency supersedes weekday pickup.
Nursing staff fills the prescriptions themselves, taking note of when the last
medication was dispensed on the patient medication profile sheet. This helps evaluate
compliance and any misuse of the medication.

Non-controlled medications, such as

Albuterol, are placed in a zippered bag labeled for the housing unit. Security staff is
supposed to then deliver the blue bag to the inmate’s housing unit, where the medication
is then distributed to the inmate.
The handbook instructs that if an inmate needs non-emergency medical attention,
they must place a health service request in a designated box located on his housing unit.
The request will then be forwarded to HSU. Nursing staff triage health service requests
daily and will schedule an inmate to go to “sick call” if his stated problem requires
medical attention. Sick call is held every weekday, which assures that the patient will be
seen by a nurse, who will determine if he should be seen by a doctor. If an inmate feels
he needs to be seen right away, he can contact housing unit staff, who can then notify
HSU via telephone.
C. Page’s November 2014 Requests for Medical Care and Medication Refills
During the relevant time period, Page was prescribed three inhalers to treat his
asthma and COPD: Atrovent, Ciclesenide, and Albuterol inhalers.
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Page had been

instructed that when he used his inhalers, he should use the Albuterol inhaler first in
order to open up his airways and allow the medication from the other inhalers to work
more effectively.
On November 11, 2014, Page submitted a medication/medical supply refill
request for Omeprazole (for treatment of gatroesophageal reflux disease), Meloxicam
(nonsteroidal, anti-inflammatory drug with analgesic for pain relief), Ciclesonide inhaler
(for asthma treatment) and Atrovent inhaler (used to treat the symptoms of COPD and
asthma). Nursing staff dispensed those requested medications to be delivered to Page on
November 12.
While the November 11 medication/medical supply refill request did not include a
request for an Albuterol inhaler, Page claims that he had submitted a separate request
during the same week for an Albuterol fast acting inhaler, because he had run out of
Albuterol and his airways were not opening properly without it. Defendants have no
record of such a request, and they deny receiving one. Regardless, it is undisputed that
no Albuterol inhaler was dispensed that week.
On November 14, Page sent a health services request complaining that he had
been experiencing headaches and dizziness due to elevated blood pressure and that he
needed to see the doctor.

The request also stated that he had been using several

medications lately but his “body is not responding.” An appointment was scheduled with
Nurse Felber for November 15.

On the morning of November 15, prior to his

appointment, Page submitted another health service request, stating that he made a
request for an Albuterol inhaler “days ago,” but he had not received it. He further wrote

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that he needed the Albuterol to take the Atrovent inhaler, and he was having trouble
breathing.
Page saw Felber later in the day on November 15.

Page told Felber that his

headaches and dizziness had increased since starting prescriptions of Metroprolol and
Losartan, both medications used mainly for high blood pressure treatment.

Felber

reassured Page that his blood pressure was okay but advised him that it needed to come
down. Felber further discussed the need for Page to take his medications consistently
and encouraged him to continue his relaxation techniques. Felber than scheduled an
appointment for Page to see the physician regarding his medical issues.
During his November 15 visit with Nurse Felber, the parties dispute whether Page
requested an Albuterol inhaler or made any complaints that he was having trouble
breathing. Felber specifically denies that Page asked for an Albuterol inhaler or made
complaints about breathing, stating that Page’s complaints were solely about his blood
pressure. Felber’s contemporaneous, written report of that visit further states that she
assessed Page’s respiratory functions and found no apparent abnormalities.
According to Page, however, their visit went very differently. First, Page reports
telling Felber that he had requested an Albuterol inhaler days ago, but had not yet
received it. Page also maintains that he informed Felber that he had submitted a request
form earlier that morning to be called down to HSU because he needed an inhaler to
open up his airways, so that he could use his other inhalers, and that he was having
trouble breathing. Page further represents that Felber declined to administer a peak flow
meter test to determine if he had respiratory abnormalities, air flow construction or

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worsening of lung function. Finally, Page says that Felber responded to his complaints
about breathing by telling him that his appointment was only to assess plaintiff’s high
blood pressure.
The next day, on November 16, Nurse Felber acknowledges reviewing Page’s
November 15 HSU request regarding his need for an Albuterol inhaler. According to
Felber, after receiving that request, she placed the medication in the blue bag labeled for
Page’s housing unit and gave it to a security officer to deliver to Page’s housing unit in
accordance with institution protocol. According to Page, however, when he went to the
officer’s station on the unit on the 16th, and asked whether an inhaler had been sent by
HSU staff, the officers told him no inhaler had been sent.
During this time, Page was monitoring his own breathing using a peak flow meter
he had in his cell. On November 16, the peak flow meter showed that his “number” was
“slightly above 200” and in the “yellow zone.”2 He was also having trouble breathing
and was experiencing inflammation, airway constriction, shortness of breath and
wheezing.

According to Page, all of these symptoms caused him to become emotionally

distressed. Moreover, he could not exert much energy, and he felt like his oxygen supply
was being cut off to the point of being suffocated.
On the morning of November 17, Page filed an inmate complaint that: (1) he still
had not received an Albuterol inhaler; and (2) his chest was tight and his airway

According to an article submitted by plaintiff from the American Academy of Allergy, Asthma
and Immunology, the peak flow meter is a portable device that measures air flow or peak
expiratory flow rate. A reading in the “yellow zone” indicates: “Caution, your asthma is
worsening. Contact your allergist to fine-tune your therapy if you do not see improvement.”
(Dkt. #36-14.)
2

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constricted. Also on November 17, Page submitted another health service request and
another medication refill form, seeking a fast acting inhaler, stating that he was having
trouble breathing, and stating that he could not correctly take his other inhalers. Page
put the request in early, around 4:00 a.m., hoping that he would get called to HSU
shortly after requests were picked up around 5:00 or 6:00 a.m. Still, he was not called to
HSU by either nurse clinician. For the majority of the day, Page had so much trouble
breathing that he had to lie down on his bed to prevent the onset of shortness of breath.
Around 4:30 p.m. on November 17, Page was sleeping in his bed when his cellmate
alerted him that he was wheezing badly. Page checked his peak flow meter test, which
registered at 150, in the “red danger zone,” indicating respiratory distress. Page then
went to the officer’s station to tell the sergeant that he could not breathe and was having
a COPD/asthma attack while waiting for an Albuterol inhaler from HSU. He also told
the sergeant that he needed a rescue inhaler immediately. The sergeant then called HSU
and reported this information to Nurse Hentz.
Page was then directed to report to HSU. Because of his difficulty breathing and
wheezing, another inmate took Page to HSU in a wheelchair. Page waited 30 to 40
minutes until a nurse was available to examine him. The parties dispute whether Page
exhibited distress while he was in the waiting area of HSU. According to Page, he could
not move, and he was wheezing and having difficulty breathing.

According to

defendants, however, Page did not appear to be in distress and did not appear to be
having trouble breathing.

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Eventually, Nurse Hentz examined Page.

Hentz took Page’s blood pressure,

which was elevated, but did not administer a peak flow meter test to assess Page’s ability
to breathe. Instead, he measured Page’s blood oxygenation with a pulse oximeter, finding
that his O2 saturation level was 100%. Initially, Hentz also declined to give Page an
Albuterol inhaler immediately, telling Page that records showed he had already received
one. After about five to ten minutes of Page insisting that he had never received the
inhaler, despite what the records might say, Hentz gave him the inhaler.

OPINION
Plaintiff claims that Nurse Clinicians Felber and Hentz violated his rights under
the Eighth Amendment of the United States Constitution, which requires the state to
“provide medical care for those whom it is punishing by incarceration.” Estelle v. Gamble,
429 U.S. 97, 103 (1976). A prison official may violate the Eighth Amendment if the
official is “deliberately indifferent” to a “serious medical need.” Id. at 104-05. A “serious
medical need” may be a condition that a doctor has recognized as needing treatment or
one for which the necessity of treatment would be obvious to a lay person. Johnson v.
Snyder, 444 F.3d 579, 584-85 (7th Cir. 2006). The condition does not have to be life
threatening. Id. A medical need may be serious if it “significantly affects an individual's
daily activities,” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997), if it causes
significant pain, Cooper v. Casey, 97 F.3d 914, 916-17 (7th Cir. 1996), or if it otherwise
subjects the prisoner to a substantial risk of serious harm, Farmer v. Brennan, 511 U.S.
825 (1994).

“Deliberate indifference” means that the officials are aware that the

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prisoner needs medical treatment, but are disregarding the risk by consciously failing to
take reasonable measures. Forbes v. Edgar, 112 F.3d 262, 266 (7th Cir. 1997).
Under this standard, therefore, plaintiff's claim has three elements:
(1) Did plaintiff need medical treatment?
(2) Did defendants know that plaintiff needed treatment?
(3) Despite their awareness of the need, did defendants consciously fail to
take reasonable measures to provide the necessary treatment?
In the face of a motion for summary judgment, plaintiff has the burden to show that a
reasonable jury could find in his favor on each of these elements. Henderson v. Sheahan,
196 F.3d 839, 848 (7th Cir. 1999). In moving for summary judgment, defendants argue
that plaintiff is unable to meet that burden with respect to two of the three elements of
his claims because:

(1) he did not have an objectively serious medical need for an

Albuterol inhaler or other treatment for his asthma and COPD on the relevant dates; and
(2) they were not deliberately indifferent to any serious medical need of which they were
aware. The court will address the evidence as to both elements separately below.
I.

Objectively Serious Medical Need
Plaintiff contends that between November 15 and 17, he had a serious medical

need for treatment of his asthma and COPD with an Albuterol inhaler and that the delay
in receiving the Albuterol inhaler caused him to experience significant pain and distress,
culminating in an asthma attack on November 17. Defendants dispute this, contending
that plaintiff has no evidence that he was suffering from an objectively serious medical
need for an Albuterol inhaler during the time he interacted with Nurses Felber or Hentz.

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As this court noted in its initial screening order, asthma “can be, and frequently is,
a serious medical condition, depending on the severity of the attacks.”

(Dkt. #22)

(quoting Board v. Farnham, 394 F.3d 469, 484 (7th Cir. 2005); see also Garvin v.
Armstrong, 236 F.3d 896, 898 (7th Cir. 2001) (“Asthma, depending upon its degree, can
be a serious medical condition.”).

Moreover, the undisputed evidence shows that

plaintiff had been formally diagnosed with asthma and COPD and had been prescribed
three inhalers, including an Albuterol inhaler, to treat his symptoms.
The relevant question for this case, therefore, is not whether plaintiff’s asthma and
COPD were serious medical conditions, but rather, whether the temporary withholding
of an Albuterol inhaler likely caused plaintiff to suffer an objectively serious medical
need. Jackson v. Pollion, 733 F.3d 786, 790 (7th Cir. 2013) (explaining that a diagnosed
medical condition does not necessarily establish a serious need, making the relevant
question whether the failure to treat the condition caused injury or serious risk of injury).
On that issue, plaintiff has submitted admissible evidence, consisting of his own
declaration and the declarations of inmate witnesses, suggesting that plaintiff had serious
breathing problems, wheezing, pain, and significant distress between November 15 and
17. There is also evidence that his Albuterol inhaler may have helped relieve some of
these symptoms, particularly given that plaintiff had been prescribed a fast-acting
Albuterol inhaler to help open his airways so that his other inhalers could work properly.
Defendants nevertheless contend that temporary denial of the Albuterol inhaler
posed no objectively serious medical risk to plaintiff, as demonstrated by the following:
(1) plaintiff did not complain about breathing problems or request an Albuterol inhaler

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from Felber during his November 15 appointment; (2) Felber’s exam did not reveal any
breathing abnormalities; (3) he exhibited no serious symptoms during the time he waited
to be seen by HSU on November 17; and (4) Hentz’s exam revealed that plaintiff’s blood
oxygenation level was 100%. Additionally, defendants argue that plaintiff offered no
evidence that he suffered harm or exacerbation of his condition because of the brief delay
in receiving a new Albuterol inhaler.
The problem with defendants’ recitation of these supporting “facts” is that they
are largely disputed. Specifically, under plaintiff’s version of events, he did complain to
Felber on November 15 about breathing problems and the need for an Albuterol inhaler,
and she refused to discuss his symptoms, administer a peak-flow test, or issue an Albuterol
inhaler to plaintiff.

Additionally, plaintiff contends that he did have objective and

obvious symptoms of a severe asthma attack on November 17, causing both his cellmate
and the sergeant on duty to conclude that HSU need to be contacted immediately.
Further, the sergeant permitted plaintiff to be transported to HSU by wheelchair,
supporting an inference that plaintiff was exhibiting symptoms of severe distress. Finally,
plaintiff contends that he contacted HSU (and the ICE) on multiple occasions between
November 15 and 17 regarding his need for an Albuterol inhaler.
Notwithstanding this testimony, defendants argue that no reasonable jury could
believe plaintiff’s version of events in light of medical evidence in the record -- consisting
primarily of their own notes -- suggesting that plaintiff was not suffering from asthmatic
or COPD symptoms on November 15 and did not have an asthma attack on November
17. As defendants’ counsel is aware, however, “[c]redibility determinations, the weighing

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of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). Neither the notes from defendants’ exams, nor their declarations establish that
plaintiff’s account is physically impossible or otherwise proves fabrication.

However

persuasive the nurses’ contemporaneous medical notes may be, a jury must still
determine whether plaintiff’s account of his own symptoms and distress is believable.
Similarly, a jury must decide whether plaintiff was harmed by the delay in
receiving an Albuterol inhaler. As defendants point out, even if plaintiff is to be believed,
Felber’s actions delayed plaintiff receiving the inhaler by only a day or two, while Hentz’s
actions only delayed plaintiff’s access to the inhaler by 30 or 40 minutes. In light of
these arguably short time spans, defendants argue that plaintiff cannot prove these delays
were objectively serious, this issue, too, depends on disputed issues of material fact.
“[T]he length of delay that is tolerable depends on the seriousness of the condition and
the ease of providing treatment.” McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010)
(citations omitted).
Here, plaintiff says he suffered extreme distress during both delays, which could
have been easily reduced or eliminated by use of the Albuterol inhaler. A reasonable jury
may conclude that plaintiff’s symptoms were so extreme that even the brief delay in
receiving the Albuterol inhaler amounted to an objectively serious medical need.3

Admittedly, plaintiff’s case would be stronger with corroborating medical testimony, but a lay
jury could find an objectively serious medical need based on plaintiff’s descriptions of the
prescriptive benefit of Albuterol, the nurses claimed failure to provide it timely, the severity of his
symptoms and the apparent relief he experienced after it was provided.
3

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II.

Deliberate Indifference
The second element of plaintiff’s claim requires him to prove that defendants

Felber and Hentz were deliberately indifferent to his objectively serious medical need for
an Albuterol inhaler. Although defendants also argue that plaintiff has no admissible
evidence to prove this element of his claim, defendants again rely on a disputed version
of events.
With respect to defendant Felber, defendants argue that plaintiff cannot prove
deliberate indifference because he did not tell Felber at his November 15 appointment
that he needed an Albuterol inhaler or that he was having breathing problems.
Additionally, defendants contend that as soon as Felber was aware that plaintiff needed
an Albuterol refill -- via an HSU request dated November 15, but not seen until after she
saw plaintiff that day -- Felber promptly dispensed the inhaler.
Under plaintiff’s version of events though, Felber ignored plaintiff’s complaints
about breathing problems and his request for an Albuterol inhaler, instead insisting at the
purpose of the November 15 appointment was solely to discuss blood pressure concerns.
Therefore, a reasonable jury could believe plaintiff’s version of events, considering that
there is undisputed evidence plaintiff had submitted an HSU request earlier on
November 15 complaining of breathing problems and requesting an Albuterol inhaler.
Certainly, it is plausible that plaintiff would raise that same breathing concern at his
actual appointment given his HSU request from earlier in the day.
Additionally, although Felber insists that she dispensed the inhaler on November
16, plaintiff submitted evidence that no inhaler was ever dispensed that day. If a jury

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were to believe plaintiff’s version of events, it may reasonably conclude that Felber
deliberately ignored plaintiff’s requests for an Albuterol inhaler to treat his asthmatic and
COPD symptoms, thus acting with deliberate indifference to a serious medical need.
Since these material, factual disputes cannot be resolved at summary judgment, the court
must deny defendants’ motion for summary judgment with respect to plaintiff’s claim
against Felber.4
The same is true with respect to Hentz. Defendants argue that Hentz was not
deliberately indifferent to plaintiff because, when Hentz saw plaintiff in HSU, he was
relaxed and had no obvious signs of trouble breathing. Thus, defendants argue, Hentz
was neither deliberately indifferent in requiring plaintiff to wait 30 or 40 minutes before
being examined nor for making him wait an additional few minutes before giving him a
rescue inhaler.
Again, however, the material facts are disputed. Plaintiff says he was sent to HSU
because he was wheezing and was having trouble breathing, so severely that he was
allowed a wheelchair and the assistance of another inmate to get there.

He also

maintains that he had conducted his own peak flow test earlier, which revealed
significant respiratory distress. If a jury believed plaintiff’s version of events, it could
Defendants also argue briefly that Felber is entitled to qualified immunity. Qualified immunity
protects government officials “from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Defendants contend that it was
not clearly established that Felber’s actions in filling and disbursing medication in accordance
with institution protocol violated plaintiff’s rights. Under plaintiff’s version of events, however,
Felber did not simply follow institution protocols for dispensing medication; rather, Felber would
have completely ignored plaintiff’s complaints about breathing problems and requests for an
Albuterol inhaler. Because it is well established that prison officials cannot ignore a prisoner’s
serious health problem, plaintiff’s version of events, if believed, would preclude a finding of
qualified immunity.
4

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conclude that Hentz acted with deliberate indifference by refusing to quickly provide
plaintiff with a rescue inhaler and instead allowing plaintiff to suffer needlessly in the
HSU waiting room for 30-40 minutes.

Accordingly, defendants are not entitled to

summary judgment.
III.

Recruitment of Counsel
The final issue pending before the court is whether to grant plaintiff’s renewed

motion for assistance in recruiting counsel. Plaintiff previously requested assistance in
recruiting counsel, but the motion was denied as premature. As this case has proceeded,
plaintiff has shown that he is at least as capable as the average pro se litigant in
representing himself.

His summary judgment materials complied with this court’s

procedures and were well-supported by legal research and evidentiary submissions.
With a jury trial on the horizon, however, the court now agrees with plaintiff that
it may be difficult for him to proceed with a trial on his own and that court assistance in
finding counsel may appropriate. This is particularly true since plaintiff’s claims involve
medical issues, and plaintiff has not been able to retain any medical expert on his own. A
medical expert may be particularly useful in addressing whether a temporary delay in
receiving an Albuterol inhaler could cause the types of symptoms described by plaintiff or
constitute deliberate indifference. That being said, the court also thinks this case may be
appropriate for mediation.

Plaintiff’s claims are discrete and his alleged injuries are

limited. Accordingly, the court will stay this case while the court looks for counsel to
represent plaintiff at trial and/or mediation. After counsel has been recruited, the court
will set a status conference to establish a schedule for the remainder of this case.
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ORDER
IT IS ORDERED THAT:
(1)

Plaintiff’s motion for a continuance (dkt. #40) is DENIED as moot.

(2)

Defendants Nurse J. Felber and Nurse Anthony Hentz’s motion for
summary judgment (dkt. #28) is DENIED.

(3)

Plaintiff Emmanuel Page=s motion for assistance in recruiting counsel (dkt.
#22) is GRANTED.

(4)

The remaining deadlines in this case are STRUCK and proceedings
STAYED pending recruitment of counsel for plaintiff. Once counsel agrees
to represent plaintiff, the court will schedule a status conference to
reestablish a trial date and related deadlines.

Entered this 10th day of January, 2017.
BY THE COURT:
/s/
__________________________________________
WILLIAM M. CONLEY
District Judge

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