Juarez, Elpidio v. Walter, Carroll et al

Filing 50

ORDER granting 32 Motion for Summary Judgment; denying 36 Motion for Summary Judgment; denying 27 Motion for Assistance in Recruiting Counsel. The clerk of court is directed to enter judgment in favor of defendants and close this case. Signed by District Judge James D. Peterson on 7/7/2017. (jef),(ps) (Main Document 50 replaced on 7/7/2017) (jef).

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

ELPIDIO JUAREZ,
Plaintiff,
v.

OPINION & ORDER

ANTHONY HENTZ, CAROL WALTER,
and JEAN FELBER,

16-cv-181-jdp

Defendants.1
Pro se plaintiff Elpidio Juarez, a prisoner currently housed at the Redgranite
Correctional Institution, is proceeding on Eighth Amendment and state-law negligence claims
against defendant prison officials at the New Lisbon Correctional Institution for failing to
warn him about side effects of medications they gave him or otherwise help him avoid the
risk of harm he faced from those medications. After taking one of the medications, Juarez fell
down the stairs.
The parties have filed dueling motions for summary judgment. After considering the
parties’ submissions, I will grant defendants’ motion and deny Juarez’s. I will dismiss Juarez’s
Eighth Amendment claims because no reasonable jury could conclude that defendants acted
with deliberate indifference toward a substantial risk of harm, and I will dismiss Juarez’s
negligence claims because he failed to comply with Wisconsin’s notice-of-claim statute.

1

I have amended the caption to show the spelling of defendants’ names as reflected in their
briefing.

FINDINGS OF FACT
The following facts are drawn from the parties’ summary judgment submissions and
are undisputed unless otherwise noted.
Plaintiff Elpidio Juarez is an inmate in the custody of the Wisconsin Department of
Corrections (DOC) and was housed at New Lisbon Correctional Institution (NLCI) at the
times relevant to this lawsuit. Defendants Carol Walter, Jean Felber, and Anthony Hentz
were employed by the DOC as nurses at NLCI at the times relevant to this lawsuit.
On February 10, 2015, Juarez had an off-site medical appointment with a neurologist
for ongoing treatment of a hand tremor. At that appointment, the neurologist recommended
a Gabapentin prescription because Juarez had not tolerated side effects of two previous
medications. The parties dispute exactly what the neurologist told Juarez about this
medication. Defendants cite a medical note stating that the doctor told Juarez that his
prescription was being changed to Gabapentin and she told him about the “common adverse
side effects” of that medication. Juarez says that the doctors said nothing about the new
medication.
On February 13, 2015, defendant Walter told Juarez that his medication had arrived
at the prison, and she told him to take it three times a day: morning, noon, and bedtime.
Walter did not tell him about any side effects of this medication, even though Division of
Adult Institution regulations state that nurses have a duty to explain the side effects of
medications to prisoner patients.
Juarez started taking Gabapentin that evening. The next day, Juarez took a dose
around 7 a.m. Later that morning, when he went to the Health Services Unit (HSU) to
receive another dose around 11 a.m., he asked to see a nurse. Defendant Felber came to the

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HSU door. Juarez told Felber that he felt dizzy and ill after starting his new medication.
When Felber asked Juarez for the name of the medication, he told her it was Gabapentin.
Juarez told Felber that the symptoms had not subsided and he had been feeling “like this” all
morning. Felber responded, “[O]h, that’s just part of the side effects, you just need to drink
more liquids,” and she told Juarez to return to his unit. Juarez says that he asked Felber,
“[A]re you sure?” to which Felber responded, “Yes! Just go back to your unit.” Juarez took
the dose of Gabapentin and went back to his cell. Felber did not take Juarez’s vitals, conduct
any physical examination, or warn him about taking the stairs. DOC nursing protocols state
that “[v]ital signs shall be taken for inmate patient encounters.”
Juarez slept from noon to about 4:30 p.m. Juarez says he went to sleep because the
medication was making him ill. At about 4:30 p.m., there was a count of the inmates, so
Juarez stood outside of his cell for a few minutes. At that time, Juarez was groggy from his
nap, but did not feel dizzy. A few minutes later, Juarez left his cell tier to go to the dayroom
on his housing unit. When Juarez approached the top of the stairs, he either blacked out or
became dizzy and fell down the stairs. Juarez was transported to Mile Bluff Hospital for a
physical examination. The parties dispute the range of injuries he received, but the medical
records from the hospital show that Juarez suffered multiple contusions and a possible
shoulder strain. He received medication to treat muscle spasms in his back and pain. The
doctor recommended discontinuing use of the Gabapentin, which he concluded may have
been the cause of Juarez’s dizziness.
The next day, Juarez saw defendant Felber. He states that he told Felber, “I told you
that that medication was making me dizzy and ill!” and that Felber said, “I know, and I’m

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sorry.” Defendants deny that this exchange occurred. About two weeks later, Juarez was
placed on a “lower tier/upper bunk restriction.”
On April 10, 2015, Juarez was called to HSU to start a new medication.2 Juarez met
with defendant Hentz, who gave him a blister pack of medication. Juarez says that Hentz did
not warn him about potential side effects. The blister pack of medication was a noncontrolled medication, so Juarez was able to take the medication back to his cell for storage
and self-administration. The back of the blister pack contained information about the
medication. The information included potential side effects of the medication. The parties do
not say what these side effects were. Before taking any of his new medication, Juarez read the
back of the blister pack and knew the potential side effects. An upset stomach was the only
side effect that Juarez experienced from the new medication.

ANALYSIS
I granted Juarez leave to proceed on Eighth Amendment and state-law negligence
claims against (1) defendants Walter and Felber for disregarding the risk of harm he faced in
February 2015 from the dizziness caused by his Gabapentin; and (2) defendant Hentz for
disregarding the risk of harm he faced in April 2015 from another medication he was
prescribed. The parties have filed dueling motions for summary judgment on these claims.

2

The parties do not discuss the name of this medication in their proposed finding of fact, nor
is it identified in Juarez’s deposition, which is the source for most of defendants’ proposed
findings about the second medication. In his complaint, Juarez called this medication
“Tamiramate,” but I stated in the screening order that my own research did not reveal any
drug by that name. I stated that the drug may have been Topiramate, another
anticonvulsant. See Dkt. 4, at 2.

4

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.
A. Defendants Walter and Felber
1. Eighth Amendment
In my order screening Juarez’s complaint, I stated that although the Eighth
Amendment prohibits prison officials from acting with deliberate indifference to prisoners’
serious medical needs, Juarez was not alleging that defendants were mistreating his
underlying medical condition. Dkt. 4, at 3. Instead, I took him to be saying that defendants
disregarded the risk of harm he faced from the side effects of his medications. Id. (quoting
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (prisoner states Eighth Amendment claim where
he alleges that he faced a “substantial risk of serious harm” and prison officials acted with
“deliberate indifference” to that risk)).
Juarez states that defendant Walter failed to tell him anything about the side effects
of the medication, and that although defendant Felber later mentioned that dizziness is a
side effect, she failed to take his vital signs or restrict him to a lower-tier cell, where he would

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not have to use the stairs. Juarez stresses that DOC policies required the nurses to inform
him about the side effects of his medication and take his vital signs. I take him to be saying
that if they had followed these protocols, they would have realized that he should not be
using stairs.
Defendants first argue that dizziness is not a serious medical need. But this misses the
point. The risk of harm Juarez faced was not the possibility of dizziness itself; it was the risk
that harm could come to him because of the side effects of the medication. The question is
whether defendants knowingly exposed Juarez to a substantial risk of serious harm:
If [prison officials] place a prisoner in a cell that has a cobra, but
they do not know that there is a cobra there (or even that there
is a high probability that there is a cobra there), they are not
guilty of deliberate indifference even if they should have known
about the risk, that is, even if they were negligent—even grossly
negligent or even reckless in the tort sense—in failing to know.
But if they know that there is a cobra there or at least that there
is a high probability of a cobra there, and do nothing, that is
deliberate indifference.
Billman v. Indiana Dep’t of Corr., 56 F.3d 785, 788 (7th Cir. 1995) (citations omitted).
It is easy to see why sharing a cell with a cobra creates a substantial risk of serious
harm. It is much more difficult to see a substantial risk here. The risk of injury caused by
dizziness or blacking out from the medication apparently came to fruition here.3 But the fact
that an accident happened does not necessarily mean that defendants Walter and Felber were
deliberately indifferent by failing to stop it, particularly where Felber actually did try, albeit
ineffectively, to help Juarez: she told him to drink more liquids to fight the dizziness. Juarez
focuses on defendants’ failure to follow nursing protocols to inform him about the side effects
3

At trial, defendants would be free to put on evidence showing that Juarez’s injury was not
actually caused by side effects from the medication. But at the summary judgment stage, I
draw the reasonable inference that Juarez’s fall was caused by his reaction to the medication.

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and check his vital signs, but the failure to follow nursing protocols does not in itself violate
the Eighth Amendment. The real question here is how substantial of a risk Juarez faced at the
time he was seen by Walter and Felber.
I conclude that Juarez fails to present facts raising a reasonable inference that the risk
was serious enough for defendants’ actions to violate the Eighth Amendment. He does not
explain why Gabapentin is so inherently dangerous that he could not be trusted to walk
around the prison while taking it. My own research into the side effects of this medication
suggests that dizziness, drowsiness, and loss of coordination are common side effects:
Gabapentin may cause vision changes, clumsiness, unsteadiness,
dizziness, drowsiness, sleepiness, or trouble with thinking. Make
sure you know how you react to this medicine before you drive,
use machines, or do anything else that could be dangerous if you
are not alert, well-coordinated, or able to think or see well. If
these side effects are especially bothersome, check with your
doctor.
See www.mayoclinic.org/drugs-supplements/gabapentin-oral-route/precautions/drg-20064011.4
Notably, blacking out is not one of the listed side effects. And moving around the prison is
inherently less dangerous than operating a car or heavy machinery. A general increase in
clumsiness might place a person at bigger risk of a fall, but there is no evidence that
defendants were aware of such a substantial risk that they were deliberately indifferent by
failing to immediately take safety steps to avoid a fall. For instance, there is no evidence that
Juarez had difficulty standing or conversing during his meetings with defendants. Rather, he
was able to walk to and from those appointments. This understandably would give
defendants reason to think that Juarez would be safe while taking Gabapentin.

4

See also http://www.webmd.com/drugs/2/drug-14208-8217/gabapentin-oral/gabapentinoral/details/list-sideeffects (naming “Clumsiness or unsteadiness” as potential side effects).

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Juarez paints himself as someone uniquely susceptible to side effects given his history
of problems “tolerating” medication, but he does not develop this issue enough to add much
to the analysis. Although his proposed findings do not explain what types of problems he had
with the previous medications, an exhibit to his deposition shows that he suffered dizziness
and shortness of breath from one medication, and abdominal cramps and vomiting from
another. Dkt. 31, at 37. Even assuming defendants knew this information when they met
with Juarez, it is not enough to transform their admittedly cursory treatment of him into
deliberate indifference of a substantial risk of harm. Given the relatively bare factual record
developed by Juarez, no reasonable jury could conclude that defendants knew of but
disregarded a substantial risk to Juarez’s safety. Defendants Walter and Felber are entitled to
summary judgment on Juarez’s Eighth Amendment claims.
2. Negligence
Juarez also brings negligence claims against Walter and Felber.5 The precise nature of
the cause of action here is somewhat unsettled under Wisconsin law. Defendants suggest that
if his claims were classified as medical malpractice claims, they would have to be dismissed
because he does not have expert testimony showing that defendants’ actions fell below the
standard of care. This is not necessarily a reason for me to dismiss the claims—it might
instead be a reason to recruit counsel for Juarez to help him obtain expert testimony. 6 But
Juarez cannot bring medical malpractice claims against defendants under Wisconsin Statutes
5

I am dismissing all of Juarez’s federal claims in this opinion. Because Juarez’s state-law
claims are so related to his federal claims and can easily be disposed of in this opinion, I will
retain jurisdiction over them.
6

Juarez does have a pending motion for recruitment of counsel, but he filed it because he
faced being deposed by the state. Dkt. 27. That alone is not a reason to recruit counsel, so I
will deny the motion.

8

Chapter 655, because nurses are not “health care providers” within the meaning of that
chapter. See Patients Comp. Fund v. Lutheran Hosp.-La Crosse, Inc., 216 Wis. 2d 49, 573
N.W.2d 572, 575 (Ct. App. 1997) (“nurses employed by a hospital to participate in the care
of a hospital’s patients, with the exception of nurse anesthetists, are not defined as health
care providers”).
Assuming that there are other negligence-based causes of action Juarez might be able
to bring against defendants, there is no question that he fares better on the substance of a
negligence theory than on a deliberate indifference theory: defendants’ failures to follow their
procedures for informing about side effects and taking vital signs suggest that they breached a
duty toward Juarez. But as defendants point out, any negligence claims Juarez brings must be
dismissed because he did not fully comply with the notice-of-claim statute, Wisconsin Statute
§ 893.82.
Among other requirements, the statute mandates that the notice of claim includes
“the names of persons involved, including the name of the state officer, employee or agent
involved.” Section 893.82(3). Juarez filed a notice of claim in March 2015 discussing his
February fall, but he does not name Walter, Felber, or any other state official in that notice.
Dkt. 35-1. This is fatal to Juarez’s negligence claims because a plaintiff must strictly comply
with the notice-of-claim statute to proceed with his claim. Section 893.82(2m) (“No claimant
may bring an action against a state officer, employee or agent unless the claimant complies
strictly with the requirements of this section.”); Kellner v. Christian, 197 Wis. 2d 183, 194-95,
539 N.W.2d 685, 689-90 (1995) (“We read [subsection (2m)] to indicate that a claimant
must adhere to each and every requirement in the statute.”). This includes identifying the
state officials who violated the plaintiff’s rights. Protic v. Castle Co., 132 Wis. 2d 364, 369,

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392 N.W.2d 119, 122 (Ct. App. 1986); abrogated on other grounds by Bicknese v. Sutula, 2003
WI 31, 260 Wis. 2d 713, 660 N.W.2d 289. Because Juarez has not complied with the
notice-of-claim statute, I will dismiss his negligence claims.
B. Defendant Hentz
Juarez’s support for his claims against defendant Hentz regarding the second
medication is thinner than his claims against Walter and Felber. In his complaint, Juarez
stated that Hentz’s lack of warning about the second medication led to a “serious physical
injury,” Dkt. 2, at 9, but the summary judgment record does not bear that out. Rather, the
only harm Juarez says he suffered was an upset stomach, which is a common minor side
effect of medications and not one that could reasonably support a claim for relief.
Moreover, Juarez admits that the side effects of that medication were printed on the
blister pack he was given by Hentz, and that he read those instructions. Neither party
explained whether upset stomach was listed as a potential side effect of this medication. If it
was listed, Juarez’s theory of relief is contradicted by the record: Hentz provided him with
that information. If it was not listed, Juarez has failed to show that Hentz had any knowledge
that the medication could harm him. Either way, defendants are entitled to summary
judgment on his claims against Hentz. And any negligence claim he has against Hentz will be
dismissed because he did not file a notice of claim about the second medication.

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ORDER
IT IS ORDERED that:
1. Defendants’ motion for summary judgment, Dkt. 32, is GRANTED.
2. Plaintiff Elpidio Juarez’s motion for summary judgment, Dkt. 36, is DENIED.
3. Plaintiff’s motion for the court’s assistance in recruiting him counsel, Dkt. 27, is
DENIED.
4. The clerk of court is directed to enter judgment in favor of defendants and close
this case.
Entered July 7, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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