Key, Prince v. Mashak, Meredith et al

Filing 38

ORDER granting defendants' 19 Motion for Summary Judgment. Plaintiff's motion for summary judgment, Dkt. 14 , is DENIED with respect to plaintiff's claims about the types of treatment he received for his knee injury. A summary judgment ruling on plaintiff's claim regarding a 50-day delay in pain treatment is deferred pending the submission of supplemental materials. Defendants may have until July 24, 2017, to submit supplemental proposed findings of fact and brief ing regarding this claim. Plaintiff may have until August 14, 2017, to file responsive materials. Defendant Keisha Perrenoud is DISMISSED from the case. The August 28, 2017 trial date and associated pretrial deadlines are STRUCK. Plaintiff's motion for recruitment of counsel, Dkt. 29 , is DENIED without prejudice. Signed by District Judge James D. Peterson on 7/5/2017. (jef),(ps)

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

PRINCE D. KEY,

v.

Plaintiff,

MEREDITH MASHAK, KARL HOFFMAN,
and KEISHA PERRENOUD,

OPINION & ORDER
15-cv-673-jdp

Defendants.
In this action removed from the circuit court for Dane County, plaintiff Prince D. Key
brings claims that defendant prison officials violated his Eighth Amendment right against
cruel and unusual punishment by failing to treat his injured knee. The parties have filed
dueling motions for summary judgment, and Key has filed a motion for recruitment of
counsel.
After considering the parties’ submissions, I will grant defendants’ motion and deny
Key’s regarding his claims about defendants’ treatment decision for the injury itself. But I will
require the parties to provide supplemental briefing on Key’s claim that there was a 50-day
delay in being seen by a doctor to assess his need for more effective pain medication. I will
deny Key’s motion for recruitment of counsel without prejudice to reconsidering it following
the supplemental briefing.

FINDINGS OF FACT
The following facts are drawn from the parties’ summary judgment submissions and
are undisputed unless otherwise noted.
Plaintiff Prince D. Key is a prisoner currently housed at the Wisconsin Secure
Program Facility. The events at issue in this case took place while Key was incarcerated at the
Columbia Correctional Institution.
On November 29, 2014, Key injured his right knee during a basketball game. Key
heard a loud popping sound in his knee and then felt pain, grinding, and swelling. Key
submitted a Health Service Request (HSR) stating that he thought he broke a bone in his
knee. A nurse responded, stating that he was scheduled to see a nurse.
On December 1, he was seen by Nurse Jarocki, who told Key to elevate his leg and
brace it. Jarocki noted that Key had a limping gait and that he was guarding his right lower
leg, but that it was bearing weight. Key’s right patella joint was warm and swelling. Jarocki
felt “a popping” on the anterior center of the knee above the joint with movement and pain.
Jarocki diagnosed Key with an “alteration in comfort” and impaired physical mobility. Jarocki
provided Key with an ace bandage, instructed him to use ice, rest, elevate his knee, abstain
from recreation, and take ibuprofen as needed for pain. Key was instructed on use of muscle
rub and given “special need” for ice bag and muscle rub. Key says that Jarocki told him to
“brace” his leg, but another nurse denied him a brace, instead telling him that he could
purchase one from the canteen.
On December 11, 2014, Key submitted an HSR stating that his knee was
“moving/popping,” he was in pain, and he was denied a knee brace. Nurse Campbell
responded that braces were available through canteen.

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On December 13, 2014, Key submitted an HSR requesting to see a doctor because his
knee was locking up and causing him pain, and the ibuprofen was not working. Nurse
Valerius responded that Key was scheduled for an appointment soon and that “scheduling
takes time.” Due to the limited number of appointments available with physicians,
appointments are scheduled based on the need and severity of the injury.
Also on December 13, Key filed grievance No. CCI-2014-24408, stating that a nurse
denied him the brace that Nurse Jarocki had recommended, and that his pain medication was
not working. The institution complaint examiner contacted defendant Meredith Mashak, a
registered nurse who at the time was the CCI health services manager, to assist with
addressing the medical issues raised by the grievance. (I take the parties to be saying that the
examiner was not a medical professional). Mashak reviewed Key’s records and sent a memo
to the examiner on December 17, stating that Nurse Jarocki followed the prison’s
“Musculoskeletal Pain Nursing Protocol” and provided him with proper treatment remedies,
including ice, muscle rub, an ace wrap, and a recommendation for rest. She also stated that
Jarocki told him that he should file a health service request if he was not seeing improvement.
On January 6, 2015, the examiner recommended dismissing the grievance, but also stated
that if Key continued to have problems with his knee, he should ask to be seen by HSU staff.
The examiner’s recommendation was reviewed by defendant Keisha Perrenoud, a
registered nurse who was employed as the DOC’s Bureau of Health Services nursing
coordinator. On January 9, Perrenoud accepted the recommendation to dismiss the grievance,
stating that Key “was evaluated and treated appropriately per standard nursing protocol and
reported symptoms.”

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On December 23, 2014, Key filed grievance No. CCI-2014-25227, stating that he had
gone 25 days without seeing a doctor and his knee was “only getting worse.” The institution
complaint examiner contacted defendant Mashak and Assistant HSU Manager Nurse
Koopmans. Koopmans—not Mashak—reviewed the medical record and stated that Key had a
doctor’s appointment scheduled for January 7. The examiner recommended dismissing the
complaint on January 16 (apparently the examiner did not re-check Key’s records, which
would have showed that his January 7 appointment was postponed). Perrenoud accepted the
recommendation to dismiss the grievance on January 21, stating that Key “was evaluat[ed] by
nursing, intervention and education on ice, rest (no rec), elevation and use of ace wrap while
ambulating was communicated to [Key] while he waits for his appointment with the
provider.” Dkt. 24-3, at 4. That concluded Perrenoud’s involvement with the events
discussed in Key’s complaint. 1
On January 9, 2015, Key submitted an HSR asking why he had not yet been seen by
a physician when he had an appointment scheduled for January 7. A nurse responded that he
was scheduled for an appointment with a physician on January 12. But Key did not see the
doctor then either. Defendants suggest that the appointments needed to be rescheduled, but
they do not explain the reason for these particular appointments being canceled. On January
19, Key submitted another HSR asking why he had not yet seen a doctor. A nurse responded
the next day, stating that Key was scheduled for an appointment on January 21.
1

Defendants also produce a July 2016 grievance by Key that Perrenoud rejected as moot
given his transfer to another prison, and Key contends (without supporting evidence) that he
filed three other grievances that were reviewed by Perrenoud in late 2015 or 2016. But those
grievances all postdate the events mentioned in the complaint and the date given on Key’s
complaint, February 24, 2015. Even if this case did involve Perrenoud’s actions in late 2015
or 2016, Key has not produced any evidence showing that she acted with deliberate
indifference with regard to those events.

4

On January 21, 2015, Key was seen by defendant Dr. Karl Hoffmann. Key stated that
his knee would lock up and occasionally “give way.” 2 Hoffman examined Key and noted
some fluid buildup in the knee. After performing stress tests to the knee, Hoffman noted that
Key had some discomfort when exposed to “valgus” stress, or movement inward. Hoffman
concluded that Key’s right knee was actually stronger than his left. (Key had a history of pain
in his left knee.) Hoffman concluded that he had no medical limitations requiring a special
medical classification, but he suspected that Key had torn the lateral meniscus in his right
knee, and perhaps had a tendon injury or bursitis. Hoffman made the following treatment
plan:
Trial of physical therapy for the right knee injury including
modalities and possibly a brace. Also use an anti-inflammatory
in the form of naproxen and ice. If the knee does not improve
with conservative options we can consider an MRI and an
orthopedic consult.
Dkt. 23-1, at 33. Key states that his prescription for 500 mg of Naproxen proved to be
ineffective in treating his pain.
Key had an initial evaluation for physical therapy on February 2, 2015. The therapist
thought that Key’s knee was “no longer lining up as it should” but the therapist denied his
request for a brace or other form of support. The therapist instructed Key on stretches to
2

Defendants state that that the swelling in Key’s knee had subsided, and that Key reported
that he did not believe he had any specific limitations as far as being able to do any job at the
prison. Key disputes these proposed findings without citing admissible evidence, and the
state objects to the proposed dispute because of this failure. However, Key is allowed to
present evidence on summary judgment that might not be in the proper form, but that could
be brought in the proper form at trial. Fed. R. Civ. P. 56(c)(2); Olson v. Morgan, 750 F.3d
708, 714 (7th Cir. 2014), reh’g denied (“We note that the Federal Rules of Civil Procedure
allow parties to oppose summary judgment with materials that would be inadmissible at trial
so long as facts therein could later be presented in an admissible form.” (emphasis in
original)). Because Key could testify about these issues at trial, I will consider his proposed
findings and treat these issues as disputed.

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perform. After a few weeks, Key found that the stretches only aggravated his injury. But the
therapist still refused to give him a brace.
On February 16, 2015, Key submitted an HSR stating that during recreation, his knee
buckled and was still painful. He also stated that the therapist would not give him a sleeve,
and the therapist wanted to continue with treatment that was not working. He requested a
sleeve and an MRI. Key was seen in the HSU later that day; the parties agree that the
meeting was about Key having difficulties sleeping, but dispute whether Key said it was
because of knee pain. Key says that the nurse did not examine him other than take his blood
pressure and tell him that he had a doctor appointment in March.
On February 26, physical therapist Phil Hoechst ordered a knee sleeve for Key.
Hoffman co-signed this order. Hoffman was not involved in Key’s treatment after co-signing
the sleeve order.
In August 2015, Key went to UW Hospital for an MRI, which indicated:
Impression: Partial-Thickness cartilage loss of the lateral femoral
trochiea, Cartilage/Bone: Minimal nonspecific bone marrow
edema within the inferior pole of the patelle. There is partialthickness fissuring within the cartilage of the lateral trochiea,
with some underlying subchondral cystic change. There is linear
T2 hypointensity within the central trochlear cartilage, which
can be seen with cartilage defeats. Articular cartilage is otherwise
intact. Bone marrow is otherwise normal signal intensity without
edema or fracture. Other Intra-Articular: Physiologic amount of
fluid within the knee joint. No intra-articular body identified.
Dkt. 17-1, at 3. I take the main point of this report to be that Key had suffered cartilage
damage.
Since his injury, Key has felt his knee “practically give out from the pain.” He often
wakes up from the pain from his knee “popping” while he is asleep. His knee feels weaker
from being forced to walk around without any support aids. Since filing the lawsuit, he has

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received a knee brace, and has been prescribed Tramadol for the pain, which Key believes
shows that his prior treatment violated the Eighth Amendment. 3

ANALYSIS
Key brings claims that defendants Hoffman, Mashak, and Perrenoud violated his
Eighth Amendment right against cruel and unusual punishment by acting with deliberate
indifference to his knee injury. The parties have filed dueling motions for summary judgment
on these claims.
To succeed on a motion for summary judgment, the moving party must show that
there is no genuine issue of material fact and that he is 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). All reasonable inferences from the facts in the summary
judgment record must be drawn in the nonmoving party’s favor. Baron v. City of Highland
Park, 195 F.3d 333, 338 (7th Cir. 1999). 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,
summary judgment for the moving party is proper. Celotex, 477 U.S. at 322.
The Eighth Amendment prohibits prison officials from acting with deliberate
indifference to prisoners’ serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103-04

3

Key adds proposed findings about further treatment decisions by unnamed officials in April
2015 and beyond, but those events postdate the date on Key’s complaint, and Key does not
dispute that Hoffman’s final involvement in Key’s treatment was co-signing the order for a
knee sleeve in late February.

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(1976). 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). A medical need may be serious if it
is life-threatening, carries risks of permanent serious impairment if left untreated, results in
needless pain and suffering, significantly affects an individual’s daily activities, Gutierrez v.
Peters, 111 F.3d 1364, 1371-73 (7th Cir. 1997), or otherwise subjects the prisoner to a
substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 847 (1994). The parties do
not appear to be disputing that Key’s knee injury gave rise to a serious medical need.
To be considered “deliberately indifferent,” an official must know of and disregard “an
excessive risk to an inmate’s health or safety; the official must both be aware of the facts from
which the inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Snipes v. Detella, 95 F.3d 586, 590 (7th Cir. 1996). However,
inadvertent error, negligence, gross negligence, and ordinary malpractice are not cruel and
unusual punishment within the meaning of the Eighth Amendment. Vance v. Peters, 97 F.3d
987, 992 (7th Cir. 1996).
Key contends that prison officials were deliberately indifferent to his knee injury in
several ways: it took about 50 days for him to see a doctor, the pain medication and physical
therapy he was prescribed did not work, he should have received a knee brace, and he did not
receive an MRI sooner. Key does not actually name as defendants all the medical personnel
responsible for these asserted deprivations. 4 Even if he had, many of the deprivations cannot
support an Eighth Amendment claim because they boil down to Key’s disagreement about
4

Key seems to think that defendant Hoffman is liable for every perceived misdeed because he
was his doctor during the time in question. But there is no evidence that Hoffman actually
oversaw medical determinations made by other providers.

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specific treatments. Key does not have the right to dictate the specific treatments he should
be provided, Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008). And I cannot look at
individual treatment decisions in a vacuum: instead I must examine the totality of the care
Key received to determine whether any of the defendants were deliberately indifferent to his
needs, Walker v. Peters, 233 F.3d 494, 501 (7th Cir. 2000).
Turning to the decisions discussed in the proposed findings, I conclude that it was not
deliberate indifference for Key to be assessed physically by Hoffman, rather than with an
MRI. The Seventh Circuit has stated that “[a]n MRI is simply a diagnostic tool, and the
decision to forego diagnostic tests is ‘a classic example of a matter for medical judgment.’”
Pyles v. Fahim, 771 F.3d 403, 411 (7th Cir. 2014).
Nor could Key win a claim about the failure to provide him with a knee brace. Even if
an unnamed nurse disagreed with Jarocki about giving Key a brace, medical professionals are
allowed to disagree about the course of treatment. Jarocki ended up giving Key an ace wrap,
and the therapist later recommended a sleeve, which Hoffman approved. Whether or not
these aids were truly a more appropriate course of treatment is a question resolved under a
negligence theory, not a deliberate indifference theory under the Eighth Amendment. 5
Key says that his physical therapy did not help him, and instead caused him more
pain. Again, Key did not sue the therapist, but even if Hoffman could be held responsible for
the progress of the therapy, the failure of a particular treatment method does not in itself

5

Key says that Hoffman “ordered” a brace, and that the therapist countermanded this
decision. But the medical notes show that Hoffman stated that the trial of physical therapy
would “possibly” include a brace. No reasonable jury would think that this meant the
therapist had to immediately order a brace. Indeed, Hoffman later signed off on the
therapist’s recommendation of the sleeve instead.

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violate the Eighth Amendment. Key argues that his rights were violated because prison
officials persisted in a course of treatment known to be ineffective, which can support an
Eighth Amendment claim see, e.g., Petties v. Carter, 836 F.3d 722, 730 (7th Cir. 2016), as
amended (Aug. 25, 2016), but the facts do not fit that theory here. Key complained about a
few weeks’ worth of what he believed to be ineffective therapy, but physical therapy rarely
fixes a problem overnight. Without stark allegations that the therapist demanded Key
perform movements that he knew were harming him, Key cannot show that the decision to
continue therapy was deliberately indifferent.
That leaves the relatively long delay—about 50 days—Key faced in meeting with
Hoffman. Key does not show that the wait itself exacerbated his knee injury. But he does say
that he suffered in severe pain for most of this time, yet his appointment kept being pushed
back. Key made clear through his various grievances and HSRs that his ibuprofen was not
effective in treating his pain. Prolonged severe pain is a serious medical need. Smith v. Knox
Cnty. Jail, 666 F.3d 1037, 1039-40 (7th Cir. 2012).
But even assuming that the delay in providing pain treatment would be enough to
violate the Constitution, it is less clear who would have acted with deliberate indifference
toward this problem by scheduling Key with such a delay. Key says that defendant Hoffman
is responsible because he was “the physician in charge of the overall treatment Key received.”
Dkt. 26, at 1. But plaintiffs in actions brought under 42 U.S.C. § 1983 cannot bring claims
under a respondeat superior theory holding a supervisor liable for the acts of subordinates.
Hoffman can only be liable for decisions in which he was personally involved. Unfortunately,
defendants’ proposed findings do not provide much clarity about these decisions. Hoffman
states the following:

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Due to the limited number of appointments available with
physicians, appointments are scheduled based on the need and
severity of the injury. Key’s knee pain was appropriately
addressed by Jarocki and did not present an immediate need. To
the best of my knowledge, the January 7, 2015 and January 12,
2015 appointments had to be rescheduled.
Dkt. 23, at 4. What does he mean by this? Perhaps the nurses responding to Key’s HSRs
weighed his injury against other patients’ needs and scheduled the January 7 appointment
with Hoffman without his knowledge and then kept pushing the date back. Perhaps Hoffman
had some input in scheduling decisions, particularly once he canceled the original
appointment. Or perhaps none of the individuals involved in these severity assessments and
scheduling decisions were deliberately indifferent because they faced a crush of patients and
limited resources. In that event, the prison staffing polices themselves may be the actual
culprit. See Collins Bey v. Haines, No. 13-cv-618-jdp, 2016 WL 5718251, at *9 (W.D. Wis.
Sept. 30, 2016) (claims for injunctive relief against state could proceed because defendant
dentists’ testimony showed delays were caused by inadequate staffing).
I am not willing to grant summary judgment to defendants solely on the basis that pro
se litigant Key did not ascertain though the discovery process exactly who made these
decisions. Key has renewed his previously dismissed motion for recruitment of counsel, but I
am not convinced that counsel is necessary to resolve this issue either. I will give the state a
short time to supplement its proposed findings with an explanation of how his appointments
were scheduled, and who determined that his pain management needs did not require more
prompt attention. Defendants are also free to explain in greater detail why they believe the
Key’s pain was not severe enough to warrant more prompt treatment. Key will be given a
chance to respond. I will deny the motion for recruitment of counsel for the time being, but
should the supplemental briefing reveal that the remaining issues are too complex for Key to

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handle, I will consider recruiting counsel. Because this supplemental briefing schedule will
run close to the August 28 trial date, I will strike the trial date and associated pretrial
deadlines, and I will reset them if any of Key’s claims survives the supplemental briefing. 6
That leaves Key’s claims against defendants Mashak and Perrenoud. Key’s claim
against Mashak has two aspects: (1) she was responsible for his medical care because she was
the Health Services Unit manager, and (2) she was involved in one of his grievances. But as
stated above, plaintiffs in § 1983 actions cannot bring claims under a respondeat superior
theory holding a supervisor liable for the acts of subordinates. The only claim I can consider
here is a claim that Mashak was personally involved in his first grievance about his knee
problem: she was contacted by the institution complaint examiner for guidance concerning
Key’s medical issues.
Key’s claims against Perrenoud are that she failed to intervene in his care when he
filed grievances about his ongoing problems. Instead she accepted the complaint examiner’s
recommendation to deny his grievances. Because I have already concluded that prison
officials’ treatment decisions—excluding the 50-day delay in pain treatment—did not violate
the Eighth Amendment, any claims regarding Mashak or Perrenoud’s involvement in those
treatment decisions must also be dismissed.
This still leaves the delay in pain treatment. Defendants contend that neither Mashak
nor Perrenoud can be liable under the Eighth Amendment for this problem because they were
not personally involved in Key’s treatment, and they cannot countermand treatment
decisions made by other medical staff or prescribe drugs themselves. But they were still
6

Defendants raise a qualified immunity defense, but it is clearly established that prison
officials cannot act with deliberate indifference toward treatment of inmates’ pain, so
qualified immunity is not available here.

12

charged with assessing the treatment Key received in considering his two December 2014
grievances. It is true that they did not directly treat Key, but prison officials may still be
liable if they knew about unconstitutional conduct yet “facilitate[d] it, approve[d] it,
condone[d] it, or turn[ed] a blind eye.” Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.
1995) (internal quotation omitted). And it is reasonable to assume that an examiner could
have ordered more prompt appointment. Otherwise, it is unclear what the point of the
grievance process for medical problems could be.
Defendants go on to argue that claims against complaint examiners fail as a matter of
law because “‘[r]uling against a prisoner on an administrative complaint does not cause or
contribute to’ any alleged constitutional violation.” Dkt. 20, at 7 (quoting George v. Smith,
507 F.3d 605, 609 (7th Cir. 2007)). But this court has previously considered this type of
argument and rejected it. See, e.g., Turner v. Hoechst, No. 15-cv-23-jdp, 2016 WL 492323, at
*2 (W.D. Wis. Feb. 5, 2016). In George, the court made clear that a grievance examiner
cannot violate the constitution by denying a complaint about a completed act of harm. This
makes sense because the examiner could take no action to undo the harm done to the
prisoner. But the Seventh Circuit has also suggested at a grievance examiner could violate the
Eighth Amendment:
One can imagine a complaint examiner doing her appointed
tasks with deliberate indifference to the risks imposed on
prisoners. If, for example, a complaint examiner routinely sent
each grievance to the shredder without reading it, that might be
a ground of liability. Or a complaint examiner who intervened to
prevent the medical unit from delivering needed care might be
thought liable.
Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009) (citations omitted). Nonetheless, the
court also noted, “The Governor, and for that matter the Superintendent of Prisons and the

13

Warden of each prison, is entitled to relegate to the prison’s medical staff the provision of
good medical care. That is equally true for an inmate complaint examiner.” Id. Despite being
a medical professional herself, Perrenoud had the right to rely on medical staff’s decisions and
the assessments examiners sought from Mashak and Koopmans. No reasonable jury would
think that Perrenoud was deliberately indifferent by upholding the denial of his grievances.
On the other hand, Mashak was one of the medical professionals to whom the
grievance examiners deferred. She was tasked with assessing Key’s treatment. Presumably she
could have said that it was taking too long for him to receive more care for his pain. But she
did not. Although Mashak’s involvement was at the early end of the 50-day delay, I cannot
conclude at this point that summary judgment should be granted to Mashak on this claim.
The parties are free to develop this aspect of Key’s claim in their supplemental materials.

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ORDER
IT IS ORDERED that:
1. Defendants’ motion for summary judgment, Dkt. 19, is GRANTED, and plaintiff’s
motion for summary judgment, Dkt. 14, is DENIED with respect to plaintiff’s
claims about the types of treatment he received for his knee injury.
2. A summary judgment ruling on plaintiff’s claim regarding a 50-day delay in pain
treatment is deferred pending the submission of supplemental materials.
Defendants may have until July 24, 2017, to submit supplemental proposed
findings of fact and briefing regarding this claim. Plaintiff may have until August
14, 2017, to file responsive materials.
3. Defendant Keisha Perrenoud is DISMISSED from the case.
4. The August 28, 2017 trial date and associated pretrial deadlines are STRUCK.
5. Plaintiff’s motion for recruitment of counsel, Dkt. 29, is DENIED without
prejudice.
Entered July 5, 2017.
BY THE COURT:
/s/
JAMES D. PETERSON
District Judge

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