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

Filing 90

ORDER that by July 27, 2018, defendant Roman Kaplan must file a report on the status of plaintiff Robert Earl Alexander's pain medication dosage. If Kaplan continues to discount Alexander's subjective reports of pain, Kaplan must explain his reasons for doing so. Signed by District Judge James D. Peterson on 7/9/2018. (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 at the Dodge Correctional Institution
(DCI) 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), whom he alleges have failed
to treat his cancer and given him insufficient pain medication. I held a hearing on July 6, 2018,
on Alexander’s motions for preliminary injunctive relief regarding his pain medication dosage,
Dkt. 22 and Dkt. 36, and Alexander’s current treatment options. Alexander appeared pro se;
defendants Nathan Tapio and Roman Kaplan appeared by counsel, Samuel Berg and Brandon
Flugaur. For reasons stated during the hearing and summarized here, I will order defendants to
update the court on the status of Alexander’s pain medication dosage in 21 days, and I will
hold open Alexander’s motions for preliminary injunctive relief until then.

FINDINGS OF FACT
Two individuals testified at the hearing: Aaron Wieland, a doctor at the University of
Wisconsin who has provided treatment to Alexander, and Roman Kaplan, a defendant and
DCI doctor who is in charge of Alexander’s day-to-day treatment and medication.

Wieland testified that Alexander underwent a tonsillectomy, one of the most painful
surgical procedures for an adult, and that he routinely prescribes high levels of oxycodone to
patients after this procedure. Alexander has active cancer in his throat. The amount of pain
medication prescribed to a patient, according to Wieland, depends on the patient’s level of
pain and prior exposure to opioids. Too high a dose of oxycodone can cause constipation,
sedation, and a decrease in the drive to breath. The goal is to find the lowest effective level of
dosage by “titrating” the dose up or down. Wieland believes that at one point, he may have
recommended to DCI that Alexander receive 10–20 milligrams of oxycodone every two hours,
and at another point, he may have recommended 5–20 milligrams of oxycodone every three
hours. He testified that these dosages are reasonable and not so high as to cause the negative
side effects listed above. Alexander indicates that these dosages relieve his pain. Wieland had
no reason to believe that Alexander is seeking intoxication, rather than pain relief, through his
use of oxycodone.
Kaplan testified that his current prescription for Alexander allows for 20 milligrams of
oxycodone every six hours, in combination with long-acting morphine. Kaplan had previously
prescribed Alexander 10–20 milligrams of oxycodone every four hours, in combination with a
fentanyl patch. (Wieland indicated that this dosage is also reasonable.) But when Alexander
removed the fentanyl patch (because, according to Alexander, it didn’t relieve his pain and
interfered with his breathing), Kaplan reduced the oxycodone dosage because, according to
Kaplan, if Alexander doesn’t need the fentanyl patch, he must not be in that much pain. Kaplan
testified that he suspects that Alexander is seeking intoxication, rather than pain relief, through
his use of oxycodone. Kaplan also explained that he believes the fentanyl patch is a better painrelief option for Alexander because, unlike oxycodone, it is long-acting and can be used without

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swallowing, which will be difficult or impossible for Alexander if he undergoes additional cancer
treatment.

ANALYSIS
To obtain injunctive relief, Alexander must show that (1) he will suffer irreparable harm
before the final resolution of his claim without a preliminary injunction; (2) traditional legal
remedies are inadequate; and (3) his claims has some likelihood of success on the merits. BBL,
Inc. v. City of Angola, 809 F.3d 317, 323–24 (7th Cir. 2015). If Alexander makes this showing,
he must further demonstrate that the balance of harms tips in his favor and that the public
interest favors the injunctive relief. Id.
Here, Alexander’s motions hinge on whether his claims have some likelihood of success
on the merits. Alexander brings Eighth Amendment claims against Kaplan. To succeed on his
claims, he must show that Kaplan is aware of Alexander’s serious medical need—severe pain—
but is disregarding it. Farmer v. Brennan, 511 U.S. 825, 834 (1994). As I indicated at the
hearing, it would be a stretch to say that Kaplan is disregarding Alexander’s pain. Kaplan has
prescribed pain medication to Alexander at a dosage level that Wieland says is reasonable. But
Alexander has consistently complained that Kaplan’s dosage doesn’t adequately relieve his
pain. Wieland also testified that a reasonable dosage is one that is effective—and according to
Alexander’s subjective complaints, Kaplan’s dosage isn’t effective, but Wieland’s is. Kaplan
discounts Alexander’s subjective complaints because he believes that Alexander is lying in an
effort to obtain more oxycodone than necessary. Precautions against drug-seeking behavior are
reasonable, particularly in the prison context, but they may be misplaced here, where Alexander
hasn’t asked for any more than the dosage that Wieland recommended. And after all, Alexander

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has had a painful surgery and has a potentially terminal cancer, so concerns over drug-seeking
behavior may well be completely unwarranted here.
So I will order Kaplan to report to the court in 21 days on the status of Alexander’s
pain medication dosage. If he continues to discount Alexander’s subjective reports of pain, he
must explain, in writing, his reasons for doing so. I will reserve ruling on Alexander’s
preliminary injunction motions until I receive Kaplan’s report.
I turn now to Alexander’s current treatment options, which are not the subject of any
formal motion but were the subject of significant discussion at the hearing. Alexander’s health
care providers have presented him with two options: (1) chemotherapy and radiation
treatment, which will be difficult but may cure Alexander’s cancer; or (2) palliative care, which
will not cure Alexander’s cancer, but will make him comfortable while the cancer eventually
takes his life. Alexander has delayed choosing between these two options because he was
confused about his prospects. But after hearing from Dr. Wieland, Alexander indicated that he
is ready to proceed with chemotherapy and radiation treatment. This is an understandably
difficult decision, but at this point, Alexander has all of the information he needs. To proceed
with treatment, he will have to sign his health care provider’s consent form acknowledging the
risks associated with the treatment. He should not delay in doing so. Kaplan will arrange for
reassessment and treatment as soon as Alexander indicates that he will consent to treatment.
Defendants indicated that they will coordinate with Alexander’s brother, Bobby, to ensure that
Bobby is able to attend future medical appointments with Alexander and assist Alexander in
making decisions about his health care.
Finally, as I mentioned during the hearing, it appears that distrust between Alexander
and DCI staff members is interfering with Alexander’s medical care. I encourage everyone

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involved to take this opportunity to reset. Cooperation, respect, and trust will go a long way in
accomplishing the parties’ ultimate goal of providing quality health care to Alexander.
One final point. I am still attempting to locate counsel willing to represent Alexander
pro bono. This case remains stayed aside from the motions for preliminary injunctive relief.
Once counsel is located, the court will schedule a preliminary pretrial conference to set the
litigation schedule. Until then, the parties should focus on Alexander’s medical care, not
litigation.

ORDER
IT IS ORDERED that by July 27, 2018, defendant Roman Kaplan must file a report
on the status of plaintiff Robert Earl Alexander’s pain medication dosage. If Kaplan continues
to discount Alexander’s subjective reports of pain, Kaplan must explain his reasons for doing
so.
Entered July 9, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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