Page, Emmanuel v. Hoffman et al

Filing 22

ORDER Plaintiff Emmanuel Page's motion for reconsideration (dkt. 13 ) is DENIED as moot.Plaintiff's motion to amend (dkt. 14 ) is GRANTED.Plaintiff is GRANTED leave to proceed on Eighth Amendment deliberate indifference claims and o n Wisconsin state law negligence claims against defendants Dr. Hoffman, Dr. O'Brien, and HSU Manager Barker.The attorney general's office has until May 6, 2020, to notify the court whether it will be accepting service on behalf of Hoffman, O'Brien and Barker. Signed by District Judge William M. Conley on 4/22/2020. (rks),(ps)

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

OPINION AND ORDER

v.
17-cv-450-wmc
DOCTOR HOFFMAN, DOCTOR O’BRIEN
AND BARKER, et al.,
Defendants.
Pro so plaintiff Emmanuel Page is proceeding in this civil lawsuit against health care
employees at New Lisbon Correctional Institution (“NLCI”) on Eighth Amendment and
negligence claims for delaying or failing to provide him with adequate medical care
following an injury to his right shoulder and complaints of knee pain, including denying
his requests for pain medication. Although the court granted Page leave to proceed under
28 U.S.C. § 1915A against Nurse Koreen Frisk, Nurse Melissa Lodging and HSU Manager
Candice Warner with respect to his Eighth Amendment claims, and against Warner on a
negligence claim, the court denied Page leave to proceed against other, proposed
defendants, including Dr. Hoffman, Dr. O’Brien, Nurse Dobbert, Nurse Hentz, Nurse
Johnson, and HSU Manager Barker. (1/28/20 Order (dkt. #12) at 18, 20.)
Page has since filed two motions: the first seeks reconsideration of the dismissal of
proposed claims against Drs. Hoffman and O’Brien (dkt. #13); and the second seeks to
amend his complaint to include additional, proposed allegations with respect to Hoffman,
O’Brien and HSU Manager Barker (dkt. #14). Page having filed his motion to amend
promptly after being granted leave to proceed, the court will grant that motion. Moreover,

having reviewed Page’s additional allegations related to defendants Hoffman, O’Brien and
Baker in his proposed amended complaint (dkt. #15), the court will also allow him to
proceed under § 1915A against defendants Hoffman, O’Brien and Barker on both his
deliberate indifference and negligence claims. Finally, in light of the same, the court denies
Page’s motion for reconsideration as moot.1

ALLEGATIONS OF FACT2
Page injured his right upper body in November 2016 while lifting weights and began
to experience excruciating pain in his shoulder. In early December, he informed the HSU
of his condition and sought treatment for his right shoulder and later for his knees.
Dissatisfied with the response, Page filed this lawsuit. For purposes of screening, the court
incorporates the factual allegations pleaded in Page’s first amended complaint as set forth

1

Page concludes his motion for reconsideration by asking the court to appoint counsel if the court
requires Page to file an amended complaint. However, pro se litigants do not have a right to counsel
in civil cases, Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014); instead, district courts have
discretion to assist pro se litigants in finding a lawyer to represent them. Pruitt v. Mote, 503 F.3d
647, 649 (7th Cir. 2007). A party who wants assistance from the court in recruiting counsel must
meet certain requirements. Santiago v. Walls, 599 F.3d 749, 760–61 (7th Cir. 2010). First, he must
show that he is unable to afford counsel and that he made reasonable efforts on his own to find a
lawyer to represent him. Id. The court accepts that Page is indigent, but he has not shown that he
made reasonable but unsuccessful efforts to recruit a lawyer. Indeed, while indicating that he
previously had an attorney, he has provided no details about any subsequent, unsuccessful efforts
to recruit counsel on his own. Second, Page has not addressed why this is one of the relatively few
cases where the legal and factual difficulties exceed the litigant’s abilities to represent himself
further. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). If anything, Page’s filings to date
suggest the opposite: Page was capable of preparing a proposed amended complaint and has
otherwise adequately represented himself so far in these proceedings. If, as this case proceeds, Page
is unable to meet the demands of this lawsuit, he may file a motion for assistance in recruiting
counsel that addresses both of the required showings discussed in this footnote.
In addressing any pro se litigant’s complaint, the court must read the allegations generously,
drawing all reasonable inferences and resolving ambiguities in plaintiff’s favor. Haines v. Kerner,
404 U.S. 519, 521 (1972).
2

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in the court’s January 28, 2020 screening order. (See dkt. #12, at 1-8.) Page now alleges,
and the court assumes for purposes of this screening order, the following, additional
allegations related to the previously dismissed defendants Hoffman, O’Brien and HSU
Manager Barker:
•

On May 1, 2017, Page told Dr. Hoffman he was in “writhing pain” and needed
stronger pain medication. Page also stated that he believed shoulder surgery was
likely necessary, and that his knees hurt constantly. Hoffman did not prescribe
stronger medication, but he did order an MRI of Page’s shoulder.

•

Page contacted Dr. Hoffman on June 12, 2017, asserting that he was in severe
pain and that the prescribed regimen of Tylenol and Meloxicam was not
working. Page renewed these complaints during a June 23, 2017 visit with
Hoffman and added that he could not lift his right arm. Dr. Hoffman declined
to prescribe stronger pain medication at that time because he was waiting for
Page’s MRI results. Hoffman also refused to (1) administer a cortisone injection
in either of Page’s knees, (2) order an MRI of Page’s knees, or (3) approve a
lower tier restriction that would reduce the number of stairs Page had to climb.

•

On July 5, 2017, Page saw Dr. Hoffman about the MRI results, which indicated
severe glenohumeral joint osteoarthritis. Page also told Hoffman that he was
still in excruciating pain as a result of a total loss of cartilage in his shoulder joint
and bone spurs. Page noted that the MRI report supported shoulder
replacement surgery and asked for stronger pain medication. Although refusing
to prescribe stronger medication, Hoffman did arrange for Page to see Dr.
O’Brien, an orthopedic consultant for NLCI.

•

Dr. O’Brien examined Page on August 18, 2017. Page again asked for surgery
and stronger pain medication, citing the MRI report. O’Brien refused to refer
Page for a surgery consultation or prescribe stronger medication. Instead,
O’Brien “told Page that he had to suffer with the pain” until a new shoulder xray could be taken, which O’Brien ordered.

•

Page next complained to Dr. Hoffman on August 20, 2017 that O’Brien would
not prescribe stronger pain medication even though his pain was severe. He also
contacted both Hoffman and O’Brien on October 10, 2017, once again asserting
that he needed stronger pain medication and that he had been in excruciating
pain since December 2016. Page does not state whether either doctor responded
to those assertions.

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•

Page had an x-ray taken in Madison on October 24, 2017. Dr. Lisa Sienkiewicz
examined Page and concluded that he had “severe end stage DJD.” She also
noted that “all conservative treatment had failed.” If a cortisone injection also
failed to provide relief, Sienkiewicz indicated that Page’s only option would be
shoulder replacement surgery. Dr. Hoffman allegedly also signed Sienkiewicz’s
report. That same day, Page contacted Hoffman and O’Brien to tell them that
his condition had worsened, Tylenol and Meloxicam were not working, and he
needed surgery. Page does not indicate whether either doctor responded.

•

On November 27, 2017, Page received a cortisone injection in his right shoulder
from a Dr. Stevenson who allegedly agreed in his report that Page had “end stage
DJD” and opined that a steroid injection would not relieve the pain because
Page had no articular cartilage in his shoulder joint.

•

On December 5, 2017, Page wrote Dr. Hoffman that the cortisone injection had
not worked, and asked for stronger medication and surgery. Hoffman did not
respond.

•

Page also wrote HSU Manager Barker on March 5, 2018, that “the pain was
killing him” and asked that Hoffman and O’Brien refer him for a surgery
consultation.

•

Page next discussed Dr. Sienkiewicz’s report with Dr. Hoffman during a March
16, 2018, examination. He reminded Hoffman that his condition was “end
stage,” and he requested surgery given that all prior treatment options had failed.
Hoffman refused Page’s request and suggested another cortisone injection to the
shoulder.

•

Page contacted HSU Manager Barker again on April 22, 2018, and on May 12,
2018, each time asking for shoulder replacement surgery and complaining of
shoulder and knee pain. Page states that “nothing was done” in response to his
April complaint, and does not indicate whether Barker responded to his May
complaint.

•

Page received another cortisone injection in his shoulder on June 12, 2018. At
that time, Dr. Kirk Davis told Page that his condition had gotten worse and that
the injection would not help because there was no articular cartilage in his
shoulder joint.

•

Page next contacted Drs. Hoffman and O’Brien on June 22, 2018, asking for a
consultation to discuss surgery because the cortisone injection had provided no
relief. On June 23, 2018, Page further filed a complaint against Hoffman,
O’Brien, and Barker asserting that Dr. O’Brien had refused to see Page for
several months, his condition had gotten worse, and Dr. Hoffman and O’Brien
were refusing to refer him for surgery. HSU Manager Barker did not respond.

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•

Page also visited Dr. Hoffman on June 27, 2018, renewing his complaint of
severe pain and his request for surgery since the cortisone injections and
prescribed pain medications were still not working. Page again referenced Dr.
Sienkiewicz’s report, noting that there was no articular cartilage, so steroid
injections would not help. Nevertheless, Hoffman again refused to prescribe
stronger pain medication or to refer Page to a shoulder replacement specialist.

•

Page filed another complaint against Drs. Hoffman and O’Brien on July 6, 2018,
after they continued to refuse to refer him for surgery or prescribe stronger pain
medication. Page visited O’Brien on August 6, 2018, and told her that his
condition had progressed to its “end stage” consistent with Dr. Sienkiewicz’s
report, and that the steroid injections and medication were not helping. Page
again asked for surgery.

•

For the next five months, Drs. Hoffman and O’Brien allegedly refused to see
Page about his complaints of severe pain.

•

Page visited Dr. O’Brien again on February 15, 2019, renewing his complaint of
severe pain and request for surgery and stronger pain medication. O’Brien
declined Page’s requests. When Page complained to Dr. Hoffman about O’Brien
on April 25, 2019, reminding him of Dr. Sienkiewicz’s conclusion that surgery
would be the only option if cortisone injections failed, Hoffman still refused to
consider surgery.

•

Page contacted a lawyer in June 2019, who shared Page’s 2017 MRI and x-ray
reports with Dr. Stephen L. Nord. Dr. Nord concluded in an August 23, 2019,
report that shoulder replacement surgery had been “the necessary treatment” for
Page’s shoulder pain in 2017, and that “it was unclear as to why Page did not
receive a referral to a shoulder replacement specialist” at that time. A steroid
injection, said Nord, would only provide temporary relief at best.

•

Page sent Hoffman and O’Brien a copy of Nord’s report in September 2019. He
does not state whether either doctor acknowledged receiving it.

•

Page contacted Drs. Hoffman and O’Brien on July 13, July 31, October 1,
October 17, and October 21, 2019, regarding his worsening condition, severe
pain, and request for shoulder surgery. Still, neither Hoffman nor O’Brien
referred Page to an orthopedic specialist.
OPINION

As noted, this court previously granted plaintiff leave to proceed on deliberate
indifference claims against defendants Frisk, Lodging and Warner, and against Warner on

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a negligence claim. As plaintiff does not include any new factual allegations in his proposed
amended complaint involving these defendants, there is no need to revisit these earlier
screening decisions.

The operative question for purposes of screening the amended

complaint is whether plaintiff should now also be allowed to proceed on deliberate
indifference and negligence claims against defendants Hoffman, O’Brien and Barker in
light of the new factual allegations summarized above. For the reasons that follow, the
court will allow plaintiff to proceed against each of them.
As previously noted, a prison official may violate an inmate’s Eighth Amendment
right to adequate medical care if the official is deliberately indifferent to a serious medical
need. Estelle v. Gamble, 429 U.S. 97, 104-05 (1979). A “serious medical need” is a
condition that a doctor would recognize as needing treatment or one for which the
necessity of treatment would be obvious to a lay person. Greeno v. Daley, 414 F.3d 645,
653 (7th Cir. 2005). “Deliberate indifference” means that the official is aware of an
inmate’s medical treatment needs but consciously disregards the risk of non-treatment by
failing to take reasonable measures. Forbes v. Edgar, 112 F.3d 262, 266 (7th Cir. 1997).
Wisconsin’s standard for proving medical negligence is less rigorous, requiring only that a
plaintiff prove a defendant breached his or her duty of care and the plaintiff suffered injury
as a result. Paul v. Skemp, 2001 WI 42, ¶ 17, 242 Wis. 2d 507, 520, 625 N.W.2d 860,
865; see also Gill v. Reed, 381 F.3d 649, 658-59 (7th Cir. 2004).
At this early stage in the proceedings, the court concludes that plaintiff’s allegations
that he suffered significant shoulder damage and pain from his medical condition is
sufficient to satisfy his obligation to show a serious medical need. See Cooper v. Casey, 97

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F.3d 914, 916-17 (7th Cir. 1996) (a medical need may be serious if it causes significant
pain). Therefore, the operative question is whether Drs. Hoffman and O’Brien’s and
Barker’s alleged handling of this need support a reasonable inference of deliberate
indifference and negligence.

A. Deliberate Indifference
The court begins with plaintiff’s claims of deliberate indifference.

As for Drs.

Hoffman and O’Brien, plaintiff claims they intentionally persisted in treatment that would
be ineffective and refused his need for stronger pain medication and surgery, even after
consultation with an orthopedic specialist.

In its earlier screening order, the court

concluded that the facts then alleged could not support a finding of deliberate indifference
against either doctor. For example, as then alleged, Dr. Hoffman had ordered x-rays in
2016 and an MRI in 2017 to confirm the nature and severity of plaintiff’s condition.
Similarly, Dr. O’Brien had increased the Tylenol regimen, and she ordered physical therapy
and additional x-rays after plaintiff’s MRI. As the court noted in its initial screening order,
absent allegations that Hoffman and O’Brien had been made aware of plaintiff’s
subsequent complaints of continuing and worsening pain, and that they were indifferent
to his pain, no reasonable trier of fact could infer that their treatment decisions exhibited
deliberate indifference to plaintiff’s serious medical need. (Dkt. #12 at 14-17.)
Now, in far greater detail, plaintiff alleges in his amended complaint that defendants
Hoffman and O’Brien acted with deliberate indifference well after completion of the MRI,
x-rays and their initial examinations of the plaintiff. In particular, plaintiff alleges that
defendants continued the same pain medication regimen, as well as several cortisone

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injections, despite being advised that his condition would not improve due to a lack of
cartilage in his shoulder joint and resulting bone spurs, and that he would continue to
suffer debilitating pain absent surgery. Plaintiff further alleges that he repeatedly informed
Drs. Hoffman and O’Brien during medical visits and in formal, written complaints
throughout 2018 and 2019 that neither the steroid injections nor the medication provided
any meaningful pain relief. Plaintiff also alleges that Drs. Hoffman and O’Brien were aware
of Dr. Sienkiewicz’s 2017 report concluding that shoulder replacement surgery would be
the only remaining treatment option if cortisone injections proved ineffective and of Dr.
Nord’s 2019 opinion that surgery was indicated, as a steroid injection would only provide
temporary pain relief at best. Despite this knowledge, however, Hoffman and O’Brien
allegedly refused to vary their treatment or refer him to an orthopedic surgeon and have at
times ignored his complaints altogether.
Although prisoners are not entitled to the specific medical treatment of their choice,
Forbes, 112 F.3d at 267, plaintiff’s allegations are sufficient to permit a reasonable inference
at the pleading stage that Drs. Hoffman and O’Brien may have acted with deliberate
indifference by declining to pursue other, necessary treatment options, such as stronger or
different pain medication and an orthopedic surgery referral, particularly when they know
all of the more conservative treatments they have tried have been ineffective. Daley, 414
F.3d at 655 (deliberate indifference can include persisting in treatment “known to be
ineffective”); Gonzalez v. Feinerman, 663 F.3d 311, 314 (7th Cir. 2011) (“physicians were
obligated not to persist in ineffective treatment”). Accordingly, plaintiff may proceed on

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deliberate indifference claims against Drs. Hoffman and O’Brien.3
Whether plaintiff may also proceed against HSU Manager Barker is a closer
question. Initially, plaintiff was not allowed to proceed against Barker because his or her
role in the events giving rise to this litigation appeared limited to facilitating a March 2018
meeting between plaintiff and Dr. Hoffman in response to plaintiff’s formal complaints.
(Dkt. #12 at 18.) Plaintiff now adds that in addition to contacting Barker in January,
February and March 2018, he also wrote Barker again in April 2018 complaining of chronic
knee pain and deliberate indifference to his shoulder condition, and in May 2018, asking
for shoulder surgery and indicating that he was still in pain. It does not appear Barker
responded to either of those requests.

Similarly, on June 23, 2018, plaintiff filed a

complaint against Barker, Hoffman and O’Brien alleging that O’Brien had been refusing
to see plaintiff for the previous six months. Plaintiff claims that he also indicated his
condition had gotten worse, that he was experiencing pain, and that Hoffman and O’Brien
were refusing to refer him for an orthopedic surgery consult. Again, Barker allegedly did
nothing.
Ambiguities remain regarding the extent of Barker’s personal knowledge of and
involvement in plaintiff’s medical treatment, as well as whether and how Barker responded
to each of plaintiff’s complaints and follow up requests for intervention in light of

Even so, plaintiff should be aware that at summary judgment or trial, it may not be enough to
show that he and other doctors disagreed with Hoffman’s and O’Brien’s conclusions about the
appropriate treatment, Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006), or even that they
were mistaken, Lee v. Young, 533 F.3d 505, 511-12 (7th Cir. 2008). Rather, plaintiff will have to
show that any medical judgment by these defendants was “so blatantly inappropriate as to evidence
intentional mistreatment likely to seriously aggravate” his condition. Snipes v. DeTella, 95 F.3d 586,
592 (7th Cir. 1996) (internal quotations omitted).
3

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seemingly conflicting medical opinions.

Ultimately, fact-finding may well reveal that

Barker was justified in failing to do more, that Barker was reasonably deferring to the
medical judgments of Drs. Hoffman and O’Brien, or that Barker did take reasonable
measures in response to plaintiff’s complaints. However, each of those factual issues is for
another day, since at this stage the court construes all ambiguities and draws all inferences
in plaintiff’s favor.

Finally, plaintiff’s additional allegations about Barker permit a

reasonable inference that he or she was not only aware of plaintiff’s ongoing debilitating
pain and worsening medical condition -- and of a lack of urgency on the part of Drs.
Hoffman and O’Brien to provide treatment -- but also that Barker failed to take any steps
to ensure that plaintiff received adequate treatment after facilitating an initial meeting with
Dr. Hoffman, despite being in a position to do so and even after receipt of conflicting
opinions by medical specialists. Accordingly, the court will allow plaintiff to proceed past
the screening stage against defendant Barker on an Eighth Amendment claim.

B. Wisconsin state law negligence claims
Finally, plaintiff seeks to proceed on state law negligence claims against Dr.
Hoffman, Dr. O’Brien and HSU Manager Barker. Jurisdiction is proper over these claims
under 28 U.S.C. §1367(a), which states that “district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within such
original jurisdiction that they form part of the same case or controversy under Article III
of the United States Constitution.” As noted above, the standard of proof for a Wisconsin
common law negligence claim is lower than that for an Eighth Amendment deliberate
indifference claim. The specific elements of a cause of action in negligence are: (1) a duty

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of care or a voluntary assumption of a duty on the part of the defendant; (2) a breach of
the duty; (3) a causal connection between the conduct and the injury; and (4) an actual
loss or damage as a result of the injury. Green Spring Farms v. Kersten, 136 Wis. 2d 304,
319, 401 N.W.2d 816, 822 (1987).
For the same reasons that plaintiff is being granted leave to proceed on deliberate
indifference claims against defendants Hoffman, O’Brien and Barker, he may proceed on
his negligence claims against them. More specifically, all three defendants owe plaintiff a
duty of care, and their alleged failure to treat his condition adequately (or at all) supports
a reasonable inference that they breached their duty of care, which led plaintiff to suffer
unnecessarily.

ORDER
IT IS ORDERED that:
1) Plaintiff Emmanuel Page’s motion for reconsideration (dkt. #13) is DENIED
as moot.
2) Plaintiff’s motion to amend (dkt. #14) is GRANTED.
3) Plaintiff is GRANTED leave to proceed on Eighth Amendment deliberate
indifference claims and on Wisconsin state law negligence claims against
defendants Dr. Hoffman, Dr. O’Brien, and HSU Manager Barker.
4) The attorney general’s office has until May 6, 2020, to notify the court
whether it will be accepting service on behalf of Hoffman, O’Brien and Barker.
Entered this 22nd day of April, 2020.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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