Henry, Marcus et al v. Stetter et al

Filing 45

ORDER that defendants' motion for summary judgment, Dkt. 30 , is DENIED. Signed by District Judge James D. Peterson on 4/25/2019. (rks),(ps)

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

MARCUS HENRY,
Plaintiff,
v.
ANGELA STETTER and JAMIE BARKER,1

ORDER
17-cv-673-jdp

Defendants.
Plaintiff Marcus Henry, appearing pro se, is an inmate at Green Bay Correctional
Institution. He alleges that when he was incarcerated at New Lisbon Correctional Institution,
defendant nurses Angela Stetter and Jamie Barker intentionally failed to get him prompt
treatment for surgical stitches that had come undone, causing him a more painful recovery.
Defendants have filed a motion for summary judgment, stating that Henry’s stitches
remained intact until they were removed two weeks after the surgery. But Henry maintains
that both Stetter and Barker told him that some of the stitches had come undone. And it is
undisputed that his incision reopened shortly after the stitches were removed. Because I
conclude that a reasonable jury could conclude that defendants harmed Henry by ignoring the
“popped” stitches, I will deny defendants’ motion for summary judgment.

UNDISPUTED FACTS
Henry did not follow this court’s procedures by preparing a document in which he
responded to each of defendants’ proposed findings of fact. See Dkt. 17, at 14–20 (explaining

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I have amended the caption to include both defendants’ first and last names.

court’s summary judgment procedures). But the dispute here is relatively simple, and Henry
has provided a declaration explaining his version of events, Dkt. 37, so I will accept his
declaration as his response. I draw the following facts from defendants’ proposed findings and
Henry’s declaration; the facts are undisputed unless otherwise noted.
Plaintiff Marcus Henry was an inmate at the New Lisbon Correctional Institution
(NLCI) during events at issue in this lawsuit. Defendants Jamie Barker and Angela Stetter both
held the title “Nurse Clinician 2” at NLCI.
On February 8, 2013, Henry had a cyst removed from his back. The wound site was
closed with about 10 sutures.2 Two or three hours later, another prisoner told Henry that blood
was soaking through the back of his shirt. Henry returned to the Health Services Unit (HSU).
Stetter removed the dressing and looked at the wound. She says that she did not find
active bleeding or that any stitches had become loose or had broken or “popped.” But Henry
says that Stetter told him that about three stitches had popped, and that the doctor had gone
home for the day. Henry says that he told Stetter to call the doctor and tell him to come back,
but she said no.
Stetter asked Barker to look at the wound. Barker says that she looked at the wound
and also determined that no stitches had broken or popped. Henry says that Barker stated that
it “look[ed] as if a couple at the bottom popped.” Dkt. 37, at 2, ¶ 11. Henry says that he again
asked for the doctor to come back to re-stitch him, but that Stetter and Barker talked with
each other and decided that they would not call the doctor back, and that Henry could come

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The parties use “stitches” and “sutures” interchangeably, so I will too.

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back tomorrow when the doctor was in. Defendants applied new dressing and Henry was sent
back to his unit.
Defendants did not record the February 8 incident in any treatment notes. They
acknowledge that a nurse would usually record this type of meeting in the prisoner’s chart.
Defendants say that the omission was not intentional.
Henry says that he went to the HSU the next day, February 9, and Stetter and Barker
told him that it was too late to re-stitch him because doing so would risk infection; instead he
would have to have the wound packed with gauze twice a day. There is no record of this visit
in Henry’s treatment notes, and Stetter and Barker do not say anything about seeing him on
February 9. I infer that they dispute Henry’s account on this point.
On February 10, Nurse Toni Johnson saw Henry in the HSU for a dressing change.
Nurse Johnson recorded in Henry’s chart that the suture line had bruising but that the sutures
were intact. This means that there were no loose, popped, or broken stitches. Nurse Johnson
washed the area and re-dressed the wound. A plan was made to have the dressing re-checked
the next day.
On both February 11 and 14, Stetter checked Henry’s dressing and noted that the
incision site was clean, dry, and intact. Stetter did not observe any popped or broken stitches
or sign of infection.
On February 20, Henry saw Johnson for the removal of the sutures. Johnson noted that
the sutures were removed without difficulties. She found no signs or symptoms of infection.
The wound was closed and healed.
On February 21, Henry was seen by Nurse Koreen Frisk because his wound partly
opened. Henry says that he was sitting and reading when he felt the wound rip open. Frisk

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noted a 1 by 2 centimeter open area. Within an hour, Henry saw Dr. Lewandowski. Either
Lewandowski or Frisk cleaned the area, applied steri-strips to the closed part of the incision to
keep it from opening further, and packed the open area with gauze and dressed the wound.
On February 22, Henry met with Nurse Johnson. The dressing was saturated with
bloody drainage. Henry was upset about the reopening of his wound and wanted to know her
name and the names of the nurses who had seen him the day after his surgery. Johnson
contacted Dr. Lewandowski to have the dressing removed for assessment of the wound. No
signs or symptoms of infection were noted. The wound was re-dressed and HSU nurses
continued to change the dressing and monitor the wound.

ANALYSIS
Defendants have filed a motion for summary judgment. To succeed on their motion,
defendants must show that there is no genuine issue of material fact and that they are 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 should be granted to the moving party. 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 (1976).

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A “serious medical need” is 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 is 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,
511 U.S. at 847. 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).
Defendants concede that popped surgical stitches can be a serious medical need. But
they contend that Henry’s stitches were intact when he met with them on February 8, 2013,
and that medical staff confirmed that the stitches were intact over the next two weeks.
Henry disputes defendants’ account, saying that when he came to them, bleeding
through his shirt, they both told him that stitches had indeed popped. Dkt. 37, ¶¶ 6–11. So I
conclude that there is a genuine factual dispute over whether Henry’s stitches were intact on
February 8.
On February 10, non-party nurse Johnson recorded in Henry’s treatment notes that his
stitches were intact. Henry did not directly respond to defendants’ proposed facts, including
the facts about the February 10 visit. Dkt. 32, ¶¶ 23–24. Neither his declaration nor his brief

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directly responds to Johnson’s account of the February 10 visit and the status of his wound at
that time. But Henry could have responded that the facts in paragraphs 23 and 24 were
disputed, citing the declaration he filed for evidence that Stetter and Barker said that his
stitches were popped on February 8, and that his wound reopened shortly after his stitches
were removed. Giving Henry the leeway he is entitled to as a pro se litigant, I conclude that
the facts proposed by defendants that Henry’s stitches were intact from February 10 to
February 20 are also genuinely disputed by Henry’s declaration. Of course, Henry has his work
cut out for him at trial on this point. He does not explain why Johnson would note that the
stitches were intact when they weren’t. So, at trial, he will have to convince the jury that his
version of events is correct and defendants’ is wrong, even though defendant’s testimony could
be corroborated by Johnson and her treatment notes. This kind of credibility contest is not
appropriately decided on summary judgment, even if the odds are not in Henry’s favor.
That leaves the question of deliberate indifference. Defendants say that no reasonable
jury could conclude that they were deliberately indifferent to Henry’s serious medical need
because there is no evidence that they were aware that their actions on February 8, 2013, were
likely to aggravate Henry’s recovery or make his treatment more painful. But they have already
conceded that popped stitches can be a serious medical need. And Henry not only says that
defendants failed to call the doctor the night they both saw the popped stitches, he also says
that they misled him into thinking that he could see the doctor the next day, only to turn him
away the next day, saying that it was then too late to re-stitch him. Dkt. 37, ¶¶ 13–15. This
suggests that they intentionally chose not to pursue re-stitching. Also, it is undisputed that
defendants did not record their February 8 meeting with Henry, which could support an
inference that they attempted to conceal their response to the popped stitches. That is enough

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to raise a reasonable inference that defendants were deliberately indifferent to his serious
medical need.
Defendants don’t phrase it quite this way in their briefing, but there is also the question
of whether their actions harmed Henry. Henry says that on February 9, defendants told him
that he would have to undergo twice-daily gauze packing. I do not take Henry to be saying that
he actually received gauze packing before his wound reopened on February 21, because he does
not suggest in his declaration or brief that he received that treatment, and the medical records
do not show that treatment either. Nor do I take him to be saying that defendants were
deliberately indifferent by failing to gauze-pack the wound during this time. Rather, he says
that defendants’ deliberate indifference in failing to address the popped stitches caused his
wound to heal more painfully and more slowly, which in turn caused it to rip open on
February 21, leading to the painful gauze-packing treatment.
Defendants say that there is no evidence that they are at fault for the incision ripping
open, and that it is “not uncommon” for surgical wounds to reopen after stitches are removed.
This argument invokes expert opinion that is not properly before the court. And, in any case,
if a jury believes Henry’s version of events, then even as laypeople they could infer that
defendants’ decision to ignore the popped stitches led to an increased risk of the wound healing
poorly and reopening later.
I conclude that Henry’s declaration is enough to raise disputed issues of material fact
regarding his Eighth Amendment claims. Accordingly, I will deny defendants’ motion for
summary judgment and this case will proceed to trial.

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ORDER
IT IS ORDERED that defendants’ motion for summary judgment, Dkt. 30, is DENIED.
Entered April 25, 2019.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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