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

Filing 42

ORDER denying plaintiff's 41 motion for a temporary restraining order concerning mail theft. By March 12, 2018, defendants must indicate whether it is possible to transport plaintiff to the court and provide an update about the status of plaintiff's medical records and Dr. Wieland's availability. The court will hold a hearing for plaintiff's motions for preliminary injunctive relief, Dkt. 22 and Dkt. 36 . The time, date, and location of the hearing will be scheduled after receiving defendants' response. Signed by District Judge James D. Peterson on 2/28/2018. (jef),(ps)

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

ROBERT EARL ALEXANDER,
Plaintiff,
v.
NATHAN TAPIO and ROMAN KAPLAN,

OPINION & ORDER
17-cv-861-jdp

Defendants.
Pro se plaintiff Robert Earl Alexander is an inmate in Wisconsin prison who has been
diagnosed with throat cancer. He is proceeding on Eighth Amendment deliberate indifference
claims against defendants Nathan Tapio (his previous primary care provider) and Roman
Kaplan (his current primary care provider), who he alleges have failed to treat his cancer and
given him insufficient pain medication. Alexander has requested preliminary injunctive relief
several times during the course of this lawsuit, which is still in its infancy.
In a February 8, 2018 order, I explained that defendants’ most recent response to
Alexander’s request indicated that they are currently adequately treating his cancer and
providing him with a level of pain medication similar to what he previously requested, so it
would appear that a preliminary injunction would be unnecessary. Dkt. 38. But I noted that
Alexander filed another motion for preliminary injunctive relief the day after defendants filed
their response. The newest motion did not address the current treatment and pain management
plan outlined in defendants’ response. So I gave Alexander one final opportunity to explain
what is inadequate about defendants’ current treatment and pain management plan. I warned
him that if he did not do so, I would deny his motions for preliminary injunctive relief as moot.

Alexander has replied. Dkt. 39 and Dkt. 40. He complains about the incidental care
that he is receiving, but it appears that he agrees that the cancer treatment he is currently
receiving is adequate, so a preliminary injunction is not needed on that front. As for the
incidental care, Alexander complains chiefly that staff members are not changing his soiled
linens or properly caring for his medical implements. He also complains about their delayed
response to a bleeding incident. And he asks the court to enter a temporary restraining order
concerning alleged “mail theft.” Dkt. 41. It appears that he may wish to bring claims against
these individuals. Under Federal Rule of Civil Procedure 20, multiple claims against different
sets of defendants may be joined in one lawsuit only if they arise out of the same transaction
or occurrence and present questions of law or fact that are common to them all. Alexander’s
allegations against the nurses share some commonalities with his claims against Tapio and
Kaplan, but they are sufficiently different that they do not belong in this suit, which has already
become fairly complex. And his allegations concerning mail theft are completely unrelated to
this suit. So I will not allow Alexander to amend his complaint to include these new allegations.
If he wishes to pursue these claims, he may file a new lawsuit and pay the required filing fee.
That leaves the pain management issue. Alexander continues to complain, as he has
from the beginning of this case, that he is not receiving enough oxycodone to control his pain.
He agrees with defendants that he is now receiving 20 milligrams of oxycodone every six hours.
(In fact, it appears that the dosage may have been briefly increased to 20 milligrams every three
hours, then lowered to 20 milligrams every four hours. See Dkt. 40-5, at 6.) I indicated in my
February 8 order that this dosage was similar to Dr. Wieland’s earlier prescription of 10–20
milligrams every four hours, and therefore appeared to be adequate. Alexander now argues that
Dr. Wieland actually prescribed him 40 milligrams every four hours and that anything less

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than 40 milligrams every four hours does not adequately manage his pain. He says that he has
a handwritten note from Dr. Wieland increasing his dosage to 40 milligrams every four hours,
but despite the fact that he has filed many other records and exhibits with the court, he did
not file that one.
Regardless of Dr. Wieland’s prescribed dosage, the real issue is whether Kaplan is aware
of Alexander’s current pain but refusing to provide him with adequate pain medication. To
show deliberate indifference, “a plaintiff must provide evidence that an official actually knew
of and disregarded a substantial risk of harm. . . . [E]vidence that some medical professionals
would have chosen a different course of treatment is insufficient to make out a constitutional
claim.” Petties v. Carter, 836 F.3d 722, 728–29 (7th Cir. 2016). Kaplan says he has been and
“will continue to prescribe pain medication based on all relevant factors, including Alexander’s
subjective complaints, his objective signs of discomfort (or lack thereof), my medical training
and expertise, and any recommendations of Dr. Wieland or other specialists.” Dkt. 33, ¶ 17.
Alexander disputes this and says that he is in “severe,” “excruciating,” “agonizing chronic daily
pain” and that he has communicated this to Kaplan. Dkt. 39, at 5. I will hold a hearing on
Alexander’s motion for a preliminary injunction regarding his pain medication.
Because of Alexander’s communication difficulties, a telephonic hearing is not a viable
option. A hearing at the courthouse, which has the technology to allow Alexander to view a
real-time transcript of the proceedings, is the best option. But it is unclear whether Alexander
can be safely transported to the courthouse, given his medical conditions. In that case, it may
be necessary to hold the hearing at the Dodge Correctional Institution (DCI), where Alexander
is currently incarcerated. Regardless of where the hearing takes place, Alexander must bring Dr.
Wieland’s note increasing the oxycodone dosage to 40 milligrams—if he does not present that

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note at the hearing, I will likely deny his motion for a preliminary injunction. I will also require
copies of Alexander’s relevant medical records. It appears that Alexander may not yet have
authorized release of his medical records to defendants for use in litigating this suit. He must
do so if he expects to obtain any relief in this suit. The parties must cooperate to ensure that
Alexander’s relevant medical records are available at the hearing. Finally, I will require Dr.
Wieland’s testimony at the hearing. Defendants must coordinate with Dr. Wieland to ensure
that he is available to testify, either in person or by phone, at the hearing. I will set a short
deadline for defendants to inform the court whether it is possible to transport Alexander to the
court for a hearing and to provide an update about the status of Alexander’s medical records
and Dr. Wieland’s availability.
Finally, Alexander asks against that I appoint counsel to represent him. As I have
explained several times, I do not have the authority to appoint counsel to represent a pro se
plaintiff in a civil matter. Before assisting in recruiting counsel who may be willing to serve
voluntarily, this court generally requires that a pro se plaintiff: (1) provide the names and
addresses of at least three lawyers who decline to represent him in this case; and
(2) demonstrate that his is one of those relatively few cases in which it appears from the record
that the legal and factual difficulty of the case exceeds his demonstrated ability to prosecute it.
Alexander still has not fulfilled either requirement, so I will not help him find counsel at this
point.

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ORDER
IT IS ORDERED that:
1. Plaintiff Robert Earl Alexander’s motion for a temporary restraining order
concerning mail theft, Dkt. 41, is DENIED.
2. By March 12, 2018, defendants must indicate whether it is possible to transport
plaintiff to the court and provide an update about the status of plaintiff’s medical
records and Dr. Wieland’s availability.
3. The court will hold a hearing for plaintiff’s motions for preliminary injunctive relief,
Dkt. 22 and Dkt. 36. The time, date, and location of the hearing will be scheduled
after receiving defendants’ response.
Entered February 28, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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