Alexander, Robert et al v. Foster, Brian et al

Filing 104

ORDER denying plaintiff Robert Earl Alexander's 99 , 101 motions for reconsideration. Signed by District Judge James D. Peterson on 8/13/2018. (jef),(ps)

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

ROBERT EARL ALEXANDER,
Plaintiff,
v.

OPINION & ORDER

NATHAN TAPIO and ROMAN KAPLAN,

17-cv-861-jdp

Defendants.
Pro se plaintiff Robert Earl Alexander is an inmate at the Dodge Correctional Institution
(DCI) who has been diagnosed with throat cancer. In a July 26, 2018 order, I denied
Alexander’s motions for preliminary injunctive relief regarding his pain medication dosage.
Dkt. 98. Now, Alexander asks me to reconsider the denial. Dkt. 99 and Dkt. 101.
I may reconsider my previous decisions, but I should do so only “if there is a compelling
reason, such as a change in, or clarification of, law that makes clear that the earlier ruling was
erroneous.” Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 572 (7th Cir. 2006). Alexander
has not presented a compelling reason, so I will deny his motions.
Alexander describes his cancer treatment and the amount of pain he is in. See Dkt. 99,
at 6–8 and Dkt. 101, at 2. But I was already aware of this information when I ruled on his
preliminary injunction motions. I appreciate the difficult medical condition and treatment that
Alexander has had to endure, and I sympathize with his discomfort. But the evidence presented
at the July 6, 2018 hearing indicated that despite Alexander’s subjective reports of pain, Roman
Kaplan’s decisions about his pain medication dosage are reasonable. Alexander’s reiterated
description of his pain doesn’t affect my conclusion.

Alexander argues that Kaplan is not a real doctor. Dkt. 99, at 8–9. But Kaplan has stated
under penalty of perjury that he is licensed to practice medicine, see, e.g., Dkt. 33 ¶ 3, and
records from the Wisconsin Department of Health Services confirm that this is true.1 Alexander
points to no evidence to the contrary.
Alexander also argues that the fact that Kaplan prescribed Alexander a higher pain
medication dosage at one point, but lowered it when Alexander refused to wear a fentanyl
patch, shows that Kaplan doesn’t really believe that Alexander is seeking intoxication rather
than experiencing genuine pain. Dkt. 99, at 14. But as I previously noted, Kaplan explained
that he “reduced the oxycodone dosage because . . . if Alexander doesn’t need the fentanyl
patch, he must not be in that much pain.” Dkt. 90, at 2. Kaplan’s explanation is reasonable.
Finally, Alexander points to several opinions by the Court of Appeals for the Seventh
Circuit. See Dkt. 99, at 1–5, 14–15. These opinions may be relevant to the ultimate
determination of Alexander’s claims, but they do not call for reconsideration of my decision to
deny Alexander’s preliminary injunction motions. For example, Arnett v. Webster concerned a
10-month delay in providing any treatment for a known medical condition. 658 F.3d 742,
752–53 (7th Cir. 2011). The facts of Arnett match up with Alexander’s allegations in this case—
that defendants failed to provide any treatment for his throat cancer for several months, despite
knowing of his diagnosis—but they don’t touch on the narrow question presented by
Alexander’s preliminary injunction motions: is the pain medication dosage currently prescribed
by Kaplan completely ineffective or so unreasonable that no minimally competent professional
would prescribe it? I determined that the answer to that question is no, because Aaron Wieland

1

See Wisconsin-Licensed Physicians, Wis. Dep’t of Health Servs., 512 (Oct. 25, 2016),
https://www.dhs.wisconsin.gov/wcrs/reporterinfo/physbyname.pdf.

2

testified that although he recommended a higher dosage of pain medication than Kaplan
prescribed, he believes that Kaplan’s prescription is reasonable. See Dkt. 90, at 3. Wieland’s
testimony that Kaplan’s prescription is reasonable distinguishes this case from opinions holding
that a complete refusal to follow a specialist’s orders may constitute deliberate indifference.
See, e.g., Jones v. Simek, 193 F.3d 485, 488 (7th Cir. 1999). And Arnett confirms that I used the
correct standard in my analysis. See 658 F.3d at 759 (“Dr. Webster took measures to address
Arnett’s pain, and although prescribing pain medication may not have been effective in treating
Arnett’s RA, the summary judgment record doesn’t reveal that no minimally competent
professional would have provided this regime of treatment in the short term . . . .”).
To be clear, my denial of Alexander’s motions for preliminary injunctive relief is not the
end of this case. I have only determined that I will not order defendants to provide Alexander
with a higher dosage of pain medication before Alexander’s claims are fully litigated. I have not
made a final determination about whether defendants have violated Alexander’s constitutional
rights. Litigation of that ultimate question is stayed pending recruitment of counsel for
Alexander.

ORDER
IT IS ORDERED that plaintiff Robert Earl Alexander’s motions for reconsideration,
Dkt. 99 and Dkt. 101, are DENIED.
Entered August 13, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

3