Kirk, James v. Tegels, Lizzie et al

Filing 72

ORDER that Plaintiff James Kirk's motion to terminate counsel, dkt. # 69 , is GRANTED. Plaintiff's motion for reconsideration, dkt. # 70 , is DENIED. Signed by District Judge Barbara B. Crabb on 9/7/2021. (kmd),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - JAMES L. KIRK,
OPINION AND ORDER
Plaintiff,
18-cv-110-bbc
v.
TAMMI MAASSEN, W. BRAD MARTIN,
DEBRA TIDQUIST, CHERYL MARSOLEK
AND GEORGIA KOSTOHYZ,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - Plaintiff James Kirk filed this lawsuit pro se, contending that he was denied adequate
treatment for a serious heart condition while incarcerated at Jackson Correctional
Institution. I granted plaintiff leave to proceed on claims under the Eighth Amendment, and
recruited counsel to represent him. On July 2, 2021, I granted defendants’ motion for
summary judgment, concluding that plaintiff could not show that defendants acted with
deliberate indifference to his heart problems. Dkt. #67.
Now plaintiff has filed two pro se motions. First, he filed a motion to terminate
counsel. Dkt. #69. I will grant the motion. When the court recruited counsel, I explained
that counsel’s representation extended only to proceedings in this court, including the filing
of a notice of appeal. Dkt. #36. Counsel represented plaintiff throughout discovery and
summary judgment proceedings, and plaintiff states that he does not want or need the
assistance of counsel to file a notice of appeal. Therefore, counsel has fulfilled its obligation
to plaintiff and the court.
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Second, plaintiff filed a motion for reconsideration of the summary judgment
decision. Dkt. #70. Plaintiff argues that the court erred by misinterpreting several of the
medical records, that defendants and others falsified some of plaintiff’s medical records and
test results, and that plaintiff’s counsel and the court ignored evidence that supported
plaintiff’s claims. Plaintiff’s arguments are not persuasive. Many of plaintiff’s arguments
are based on alleged out-of-court statements made by non-defendants that cannot be
considered by the court.

For example, the court cannot consider alleged statements by

doctors stating that plaintiff’s heart had blockages or that his problems required more serious
interventions, because those doctors did not submit sworn declarations verifying the
accuracy of the statements. MMG Fin. Corp. v. Midwest Amusements Park, LLC, 630 F.3d
651, 656 (7th Cir. 2011) (“A party may not rely on inadmissible hearsay to avoid summary
judgment.”).
Plaintiff also relies on his own interpretation of medical records and symptoms to
argue that defendants ignored a heart attack and other problems. However, plaintiff is not
qualified to provide an opinion about the whether he experienced a heart attack or
something else. And, in a case such as this, in which it is undisputed that plaintiff received
medical care, plaintiff must show that the care he received was “blatantly inappropriate,” and
amounted to “so significant a departure from accepted professional standards or practices
that it calls into question whether the doctor actually was exercising his professional
judgment.” Pyles v. Fahim, 771 F.3d 403, 408 (7th Cir. 2014). Plaintiff’s own opinion
about what treatment he should have received is not sufficient to create a genuine dispute

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of material fact at the summary judgment stage. Norfleet v. Webster, 439 F.3d 392, 396
(7th Cir. 2006).
Moreover, the court considered the records on which plaintiff relies, and concluded
that the records did not show that defendants acted with deliberate indifference to his heart
condition. Accordingly, plaintiff’s motion for reconsideration will be denied.

ORDER
IT IS ORDERED that
1. Plaintiff James Kirk’s motion to terminate counsel, dkt. #69, is
GRANTED.
2. Plaintiff’s motion for reconsideration, dkt. #70, is DENIED.

Entered this 7th day of September, 2021.
BY THE COURT:
/s/
__________________________________
BARBARA B. CRABB
District Judge

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