Johnson, Ivan v. Schrubbe, Belinda et al

Filing 38

ORDER granting in part and denying in part 17 Motion for Summary Judgment. Defendants Belinda Schrubbe and Donna Larson are DISMISSED from the case. Plaintiff Ivan Johnson's motion for assistance in recruiting counsel, Dkt. 16 , is GRANTED. All remaining deadlines are STRUCK and the case is STAYED pending recruitment of counsel for Johnson. Signed by District Judge James D. Peterson on 1/23/2019. (jef),(ps)

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

IVAN JOHNSON,
Plaintiff,
v.

OPINION and ORDER

BELINDA SCHRUBBE, NANCY GARCIA,
and DONNA LARSON,

17-cv-332-jdp

Defendants.
Pro se plaintiff Ivan Johnson, a Wisconsin prisoner incarcerated at Columbia
Correctional Institution (CCI), brings Eighth Amendment deliberate indifference and First
Amendment retaliation claims against nurses at his previous prison, Waupun Correctional
Institution (WCI). While at WCI, Johnson had stomach surgery, and after the surgery his
surgeon prescribed diazepam to treat muscle spasms. Johnson alleges that defendants Belinda
Schrubbe, Nancy Garcia, and Donna Larson withheld the medication because he had a pending
lawsuit against Schrubbe.
Defendants have filed a motion for summary judgment. Dkt. 17. They contend that
Garcia made the decision to withhold diazepam not because she wanted to retaliate against
Johnson, but because it is a controlled substance and because she determined it was not
medically necessary. They say that the other defendants were not involved in the decision.
I will grant defendants’ motion in part. I will grant summary judgment for Schrubbe
and Larson on both claims because Johnson has not produced any evidence showing that they
were responsible for the denial of diazepam. And I will grant summary judgment for Garcia on
the retaliation claim because Johnson has not produced any evidence that Garcia acted with a

retaliatory intent. But I will deny summary judgment for Garcia on the deliberate indifference
claim because there is a material dispute regarding whether Garcia acted within the bounds of
accepted professional judgment when she countermanded the surgeon’s treatment orders.
Also before me is Johnson’s motion for assistance in recruiting counsel. Dkt. 16. I am
persuaded that the trial in this case will likely be too complex for Johnson to handle on his
own, so I will grant his motion.

UNDISPUTED FACTS
The following facts are undisputed except where noted.
In 2012, while incarcerated at WCI, Johnson filed a lawsuit against several prison
employees, including Health Services Unit (HSU) manager Belinda Schrubbe. See Johnson v.
Sumnicht, Case No. 12-cv-891-bbc (W.D. Wis. Dec. 6, 2012). That suit involved complications
from a stomach surgery that Johnson had in 2010. He alleged that prison staff did not follow
the surgeon’s discharge orders, which caused ulcers and stomach erosion. The case settled in
January 2015. Dkt. 87 (’891 case). The parties agree that Schrubbe never spoke to any inmates
or other staff about the lawsuit. Dkt. 36, ¶ 48.
Nancy Garcia started working at WCI as a nurse practitioner in March 2014. As a nurse
practitioner, Garcia works in collaboration with a unit physician who has overall responsibility
for treatment decisions in the prison unit. She has the authority to prescribe medications.
Unlike registered nurses, who work for the HSU and are supervised by the HSU manager,
Garcia is employed by the Bureau of Health Services and supervised by the bureau’s medical
director. Dkt. 20, ¶ 5.

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The parties dispute whether Garcia was aware of Johnson’s lawsuit against Schrubbe.
Garcia says that she had never heard of it until she received the complaint in this case. Id.,
¶ 29. But Johnson says that during his first appointment with Garcia on June 6, 2014, he spoke
at length about the lawsuit and how he “suffered at the hands of” Schrubbe and other WCI
staff.1 Dkt. 31, ¶ 26. He says that Garcia listened to him for 10 to 15 minutes before telling
him that “we are not here for that” and ending the appointment.
On August 15, 2014, while the ’891 lawsuit was still pending, Johnson had a second
stomach surgery to fix the complications from his first stomach surgery. Dr. Guilherme M.
Rocha Campos performed the surgery at UW Health Hospital.
On September 30, Campos performed an upper endoscopy to check Johnson’s progress
following surgery. Johnson says that during this appointment, he talked with Campos about
muscle spasms in his abdomen, and Campos recommended diazepam (known under the brand
name as Valium). Id., ¶ 10. But Campos received a phone call and had to leave the
appointment, so he asked his resident, Dr. Lauren Taylor, to write the prescription. Taylor
used Campos’s prescription pad to write Johnson a prescription for ten tablets of diazepam, to
be used “one time daily at bedtime as needed (muscle spasms).” Dkt. 22-1, at 87. She crossed
out Campos’s name and signed the prescription in her own name.
Campos did not mention muscle spasms or diazepam in his treatment notes. See id. at
78–81. His notes describe the results of the endoscopy and order additional follow-up
appointments. But the only medications listed are the anesthetics used during the endoscopy.
Taylor’s prescription was attached to Campos’s notes as a separate document.

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Johnson does not give a date for his first appointment with Garcia. But June 6 is the first time
that her name appears in Johnson’s medical records. Dkt. 22-1 at 26.

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The next day, Johnson wrote a health services request asking to receive his prescribed
medication. Id. at 146. Nurse Donna Larson reviewed the request and responded that the
medication needed to be approved by a nurse practitioner. She explained to Johnson that the
nurse practitioner had his record, and she ordered an appointment with Garcia within the next
week. Because Larson is a registered nurse (rather than a nurse practitioner) she cannot
prescribe medication herself, and her duties are limited to documenting and reviewing orders
for medication made by advanced care providers like Garcia. Dkt. 36, ¶ 49–50.
On October 2, Garcia reviewed Campos’s treatment notes and Taylor’s prescription.
WCI treats prescriptions from offsite doctors as recommendations, and Garcia has the
authority to dismiss a recommendation based on security concerns or her review of the inmate’s
medical history. If the prescription is for a controlled substance, Garcia looks at the inmate’s
record and appointment notes to decide whether there is an actual need to distribute the
substance.
Garcia decided to deny Johnson’s prescription for diazepam. Although diazepam can be
used to treat muscle spasms, it is a controlled substance and is highly addictive. Garcia believed
that, in the past, other inmates had manipulated offsite providers to receive unnecessary
medication. Dkt. 20, ¶ 19. And in this case, Campos did not mention the prescription in his
treatment notes or sign the prescription himself. Johnson’s medical records showed that he
suffered from acid reflux and that he already had several prescriptions intended to treat acid
reflux and other stomach-related pain but refused to take those medications.2 Although none

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Johnson disputes whether he refused to take medication, and he argues that the records are
inaccurate because correctional officers were inconsistent about recording when they passed
out medication. Dkt. 36, ¶ 30. But it is undisputed that the records, whether accurate or not,
show that Johnson did not take his medication.

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of those drugs treated muscle spasms, Garcia could not find any records that said Johnson’s
pain was caused by muscle spasms. So she denied the prescription for diazepam, and she did
not prescribe an alternative drug to treat muscle spasms.
When Johnson did not receive diazepam, he sent another health service request asking
for his prescription. Dkt. 22-1, at 152–58. He explained that:
I was told by the surgeon that it will take a longer time for my
body to heal on the inside due to all the scar tissue from the
previous surgery and that the muscle spasms are due to having to
cut through scar tissue the second time and there are nerves that
will take maybe four to six months or more to heal and the pain
and spasms should go away . . .
the doctor explained that he would send some medication a low
dose that will help me for a short time and will reevaluate me on
the next visit.
Id. at 153–55. Schrubbe received this request on October 6, and she responded to it the same
day. Id. at 152. She said that she would schedule an appointment with Garcia within the next
week.
Johnson also asked his lawyer from the ’891 case for help getting the medication, and
his lawyer contacted the assistant attorney general representing Schrubbe. On October 8, the
assistant attorney general emailed the prison. A prison official responded that she talked with
HSU staff, and that HSU staff would check to see what medication Johnson might be missing.
Dkt. 31-3.
On October 9, Johnson had an appointment with Garcia. The parties dispute what
happened during the appointment.3 Garcia says that she met with Johnson only to explain the

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Johnson says that this appointment was recorded on officer Lundee’s body camera, and that
he asked defendants to save the video. Dkt. 32, ¶ 20. But neither party has provided a video,
and defendants have not responded to Johnson’s claim that a video exists. Dkt. 35, ¶ 20.

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results of his endoscopy. She says that she does not remember Johnson complaining about
muscle spasms or seeking medication, and that if he had, she would have written it down in
his treatment notes. Dkt. 20, ¶ 27. Johnson says that HSU made the appointment specifically
to address his complaints about not receiving medication. He points to his prior health service
requests and the emails from October 8 as evidence that Garcia knew about his complaints. He
also says that during the appointment, he told Garcia that he did not care what medication he
received, so long as it treated muscle spasms. Dkt. 31, ¶ 21. Whatever happened at the
appointment, the parties agree that Garcia did not authorize diazepam or prescribe any other
medication after the October 9 appointment.
The parties also dispute whether Nurse DeYoung, who is not a defendant in this case,
made comments to Johnson about the ’891 case. Johnson says that sometime in October, he
complained to Nurse DeYoung about not receiving his diazepam prescription. Dkt. 36, ¶ 53–
54. He says that DeYoung replied, “That’s what happens when you sue people and you haven’t
seen nothing yet!” Id. Defendants contend that there is no evidence of DeYoung’s comments
except for Johnson’s hearsay testimony. The parties agree that none of the defendants made
similar comments.
In January 2015, Johnson was transferred to CCI. On February 4, he had an
appointment with a physician’s assistant at UW Health. Johnson complained that he suffered
from muscle spasms, and that had been prescribed diazepam but never received it. The
physician’s assistant diagnosed Johnson with abdominal spasms and prescribed dicyclomine.
Dicyclomine treats muscle spasms, but it is not habit-forming like diazepam. The HSU staff at
CCI approved that prescription.

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ANALYSIS
A. Defendants’ motion for summary judgment
Defendants are entitled to summary judgment only if they can show that there is “no
genuine dispute as to any material fact.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). When ruling on a motion for summary judgment, I must view all facts and
draw all inferences in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). If no reasonable juror could find for the nonmoving party
based on the evidence in the record, then summary judgment is appropriate. Martinsville Corral,
Inc. v. Soc’y Ins., 910 F.3d 996 (7th Cir. 2018) (citations omitted). But if there is any evidence
that would allow a reasonable jury to return a verdict for the nonmoving party, then summary
judgment is not appropriate. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). (citations
omitted).
1.

Deliberate indifference claims

Johnson contends that defendants were deliberately indifferent to his need for
medication to treat muscle spasms. To succeed on a deliberate indifference claim, Johnson must
show that (1) he had a serious medical need; and (2) defendants were deliberately indifferent
to that medical need. See Estelle v. Gamble, 429 U.S. 97, 103–04 (1976). Defendants concede
that Johnson’s muscle spasms were a serious medical need. So the only issue is whether each
defendant was deliberately indifferent to Johnson’s need for treatment.
For a defendant to be deliberately indifferent to a medical need, the defendant must
know of the need and disregard it. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate
indifference is more than mere negligence. If, as here, the plaintiff challenges a decision made
by a medical professional, then the plaintiff must show that the defendant’s treatment decision

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was “‘such a substantial departure from accepted professional judgment, practice, or standards
as to demonstrate that the person responsible did not base the decision on such a judgment.’”
Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016), as amended (Aug. 25, 2016) (quoting Cole
v. Fromm, 94 F.3d 254, 261–62 (7th Cir. 1996)). An unreasonable delay in treating a non-lifethreatening but painful condition may demonstrate deliberate indifference if the delay
unnecessarily prolonged an inmate's pain. Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011)
(citing McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010)). If a specific treatment cannot
be given to a prisoner due to security concerns, then the prison’s medical staff must explore
alternative treatments that are available. Arnett, 658 F.3d at 753.
The primary dispute in this case is whether Garcia’s initial decision to deny Johnson
diazepam was based on accepted professional judgment. On one hand, Garcia, a nurse
practitioner, declined to follow a prescription from the office of Johnson’s treating surgeon, Dr.
Campos. And a prison medical professional’s refusal to administer medication prescribed by a
treating specialist is evidence that she did not base her decision on medical judgment. See Petties,
836 F.3d at 729 (citing Arnett, 658 F.3d at 753 (7th Cir. 2011) and Jones v. Simek, 193 F.3d
485, 490 (7th Cir. 1999)); Walker v. Benjamin, 293 F.3d 1030, 1040 (7th Cir. 2002). But on
the other hand, Garcia says that she carefully considered whether the prescription for diazepam
was medically necessary. The prescription was signed by Dr. Taylor, rather than Johnson’s
surgeon, Dr. Campos. And Campos’s treatment notes did not mention muscle spasms or a need
for diazepam, but they did show that Johnson had discomfort from acid reflux. Garcia says that
she believed that acid reflux was the actual cause of Johnson’s pain, and she noted that prison
records showed that Johnson had refused to take his acid reflux medication. She contends that
she exercised her medical judgment when she declined to follow Taylor’s prescription.

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Because of this dispute, I will deny summary judgment on Johnson’s deliberate
indifference claim against Garcia. I cannot simply credit Garcia’s stated rationale for her
decisions and dismiss the case. The rationale behind her decision to countermand Johnson’s
treating surgeon, and whether that decision was based on professional medical judgment, are
issues of fact that will need to be decided by the jury. See Walker, 293 F.3d at 1040 (whether
defendants chose to deny plaintiff’s painkiller prescription because of a good-faith belief that
he was malingering was an issue for the jury). Garcia may have been confused about why the
prescription was signed by Taylor, rather than Campos. But a jury could conclude that she
should have consulted with Campos, Taylor, or the unit physician before denying the
prescription without providing an alternative.
Likewise, a reasonable jury could conclude that even if Garcia’s initial decision to deny
diazepam was reasonable, she should have reassessed that decision after her appointment with
Johnson on October 9. Garcia says that she decided that diazepam was medically unnecessary
in part because she did not know that Johnson had muscle spasms. But Johnson produces
evidence that he repeatedly complained about muscle spasms before and during his October 9
appointment with Garcia. Dkt. 22-1, at 153–55; Dkt. 31-3; Dkt. 31, ¶ 21. So a jury could
conclude that Garcia became aware of Johnson’s need for a drug to treat muscle spasms after
that appointment.
Defendants contend that even if Garcia was deliberately indifferent, she is entitled to
qualified immunity. But as Johnson points out, this case is one of the many Eighth Amendment
cases where the merits of the claim and the question of qualified immunity “effectively collapse
into one.” See id. at 1037. And defendants seem to agree, as their only argument in support of
qualified immunity is that “there is nothing in the record to establish that defendants . . . were

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deliberately indifferent in their medical treatment of Johnson.” Dkt. 18, at 21. But there is a
genuine dispute regarding whether Garcia was deliberately indifferent, and that dispute equally
applies to defendants’ assertion of qualified immunity. So Garcia is not entitled to summary
judgment on the basis of qualified immunity.
But I will grant summary judgment for Schrubbe and Larson. Johnson has not produced
any evidence that Larson was involved in the decision to deny him medication, and he concedes
that Larson had no authority to countermand Garcia’s decisions. Larson’s only involvement in
this case was to review the complaint that Johnson wrote on October 1, before Garcia decided
to deny the medication. And Larson did not turn a blind eye to Johnson’s complaint. She
responded by directing his concerns to Garcia so that Garcia could make an initial
determination.
As for Schrubbe, Johnson argues that because Schrubbe is a licensed nurse practitioner,
she could have intervened and written her own prescription for Johnson. But even if Schrubbe
had the authority to override Garcia’s decisions (defendants say she didn’t), Johnson has not
produced evidence that Schrubbe responded to his complaints with deliberate indifference.
When Johnson complained to Schrubbe that he had not yet received his medication, she
forwarded his complaints to Garcia. There is nothing to suggest that Schrubbe had reviewed
Johnson’s medical records or knew that Garcia was countermanding Dr. Campos’s prescription.
Even viewing all facts in the light most favorable to Johnson, it was reasonable for Schrubbe to
defer to Garcia regarding his treatment.
2. Retaliation claims
Johnson contends that defendants denied him medication in retaliation for his pending
lawsuit against Schrubbe. To prevail on his retaliation claims, Johnson must prove three

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elements: (1) he engaged in activity protected by the First Amendment; (2) he suffered a
deprivation that would likely deter a person of “ordinary firmness” from engaging in the
protected activity; and (3) the First Amendment activity was at least a “motivating factor” in
defendants’ decisions to take those actions. McGreal v. Village of Orland Park, 850 F.3d 308,
312 (7th Cir. 2017).
Johnson concedes that he cannot prove that defendants refused to treat him in
retaliation for his lawsuit. Dkt. 28, at 7. But he argues that their actions still had the effect of
pressuring him to end his lawsuit. But this does not save his claim from summary judgment.
Even if defendants’ actions did in fact cause him to settle his lawsuit, Johnson still must prove
that defendants were motivated at least in part by a retaliatory intent.
There are only two pieces of evidence that connect Garcia to Johnson’s lawsuit, and
neither would allow a reasonable jury to conclude that Garcia was motivated by a retaliatory
intent. First, Johnson says that he told Garcia about his lawsuit during his first appointment
with her, about five months before he received the prescription for diazepam. But Garcia’s
alleged knowledge of the lawsuit does not necessarily mean that it motivated her decision to
deny him diazepam. And although there may be times when a protected activity and an adverse
reaction are so close in time that a jury may reasonably infer that the two are linked, those
situations are typically limited to when the two events are “no more than a few days” apart.
Kidwell v. Eisenhauer, 679 F.3d 957, 966 (7th Cir. 2012). Five months is far too long for a jury
to infer that Garcia was motivated by her conversation with Johnson about the lawsuit.
Second, Johnson says that when he complained to Garcia’s coworker, Nurse DeYoung,
she told him, “That’s what happens when you sue people and you haven’t seen nothing yet!”
Dkt. 36, ¶ 53–54. But even if this statement were admissible at trial (defendants object that

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it’s hearsay), it still wouldn’t tell the jury anything about how Garcia felt. There is no evidence
that Garcia knew about this statement, let alone endorsed it.
As for Schrubbe and Larson, they are entitled to summary judgment for the same
reasons that I granted them summary judgment on the deliberate indifference claims. Johnson
has not produced any evidence showing that either of them were involved in the decision to
deny him medication, nor is there evidence that they somehow influenced Garcia’s decision
making. Although Schrubbe may have had a motive to retaliate against Johnson, she was not
Garcia’s supervisor and she did not talk to Garcia about the lawsuit.
So I will grant summary judgment for all defendants on the retaliation claims. And
because I have granted summary judgment for all claims against Schrubbe and Larson, they
will be dismissed from the case.
B. Recruitment of counsel
Johnson moves for assistance in recruiting counsel. Dkt. 16. For me to grant his motion,
Johnson must show that (1) he has made reasonable efforts to find counsel on his own; and
(2) this is one of those relatively few cases in which it appears from the record that the legal
and factual difficulty of the case exceeds the plaintiff’s ability to prosecute it. Pruitt v. Mote,
503 F.3d 647, 654, 655 (7th Cir. 2007) (en banc).
Johnson satisfies the first requirement because he has attached three letters that he
wrote asking lawyers to represent him. And I am persuaded that he has met the second
requirement, because this case involves the types of issues that the Court of Appeals for the
Seventh Circuit has suggested would benefit from recruitment of counsel or appointment of a
medical expert. See, e.g., Perez v. Fenoglio, 792 F.3d 768, 785 (7th Cir. 2015) (litigation is “even

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more challenging in cases, like Perez’s, where complex medical evidence (including expert
testimony) is needed to assess the adequacy of the treatment received”).
So I will grant Johnson’s motion and strike the remaining schedule. A new schedule will
be set after counsel is located.

ORDER
IT IS ORDERED that:
1. Defendants’ motion for summary judgment, Dkt. 17, is DENIED with respect
to Johnson’s Eighth Amendment claim against Nancy Garcia. The motion is
GRANTED in all other respects.
2. Defendants Belinda Schrubbe and Donna Larson are DISMISSED from the
case.

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3. Plaintiff Ivan Johnson’s motion for assistance in recruiting counsel, Dkt. 16, is
GRANTED. All remaining deadlines are STRUCK and the case is STAYED
pending recruitment of counsel for Johnson. If I find counsel willing to represent
Johnson, I will advise the parties of that fact. Soon thereafter, a status conference
will be held to set a new schedule. Johnson is advised that because of the large
number of requests for counsel that the court receives, the search for counsel
may take several weeks or even months and there is no guarantee that the court
will find counsel willing to represent him.
Entered January 23, 2019.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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