Brown, Larry v. Bellile, Doug et al
Filing
53
ORDER that plaintiff's renewed motion for preliminary injunction (dkt. # 27 ) is DENIED. (The 5/26/2021, Zoom hearing is cancelled.) Signed by District Judge William M. Conley on 5/25/2021. (kmd),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
LARRY J. BROWN,
Plaintiff,
OPINION AND ORDER
v.
20-cv-337-wmc
DOUG BELLILE, DANIEL KATTENBRAKER,
JOHN AND JANE DOE “SPECIAL NEEDS
COMMITTEE MEMBERS,” LAURA THOMAS,
LISA POUILLIE, SARA DONOVAN,
JOSEPH SCHMELZLE, and DANIEL PARK,
Defendants.
Plaintiff Larry J. Brown is a patient at Sand Ridge Secure Treatment Center who,
while still incarcerated at Columbia Correctional Institution, underwent fundoplication
surgery in 2017 to ease GERD symptoms and to address a hernia.1
In this lawsuit, Brown has been granted leave to proceed on deliberate indifference
claims under § 1983 against various center staff under the Fourteenth Amendment arising
out of:
(1) an ongoing refusal to provide Brown with cotton blankets, extra pillows,
peppermints, and a nighttime snack, all free of charge;
(2) not making certain meal-related accommodations, such as providing additional
time to eat in the cafeteria and affording him smaller, more frequent state-
Fundoplication involves reinforcing the lower part of the esophagus to help prevent stomach acid
from backing up into it. Since his surgery, Brown has reported having trouble swallowing, vomiting,
and related gastroesophageal pain, and has expressed interest in having his surgery reversed. Brown
has also been diagnosed with progressive macular hypomelanosis, a skin condition that causes white
spots and itching and irritation, although he does not appear to be as concerned about this issue
given that his submissions to date have focused on his GI symptoms.
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provided meals to ease his gastroesophageal and dermatologic symptoms; and
(3) disciplining him for eating his state-provided meals too slowly, even though he
cannot eat quickly or very much at a time. (Dkt. #21.)
Before the court is Brown’s renewed motion for preliminary injunctive relief seeking to
compel defendants to provide the items listed in No. 1 above free of charge, to make the
accommodations listed in Nos. 2 and 4. (Dkt. #27.)
The court has already declined to order Sand Ridge to provide Brown with the
requested items for free. (Dkt. #29 at 3-4.) Still at issue is whether his requested, mealrelated accommodations can and should be made now. Although the medical records
available to the court did not appear to support injunctive relief, a Zoom hearing was
nevertheless scheduled to clarify Brown’s concerns and symptoms, as well as assess what
preliminary options may be available to address them. Since then, Brown has made two
additional written submissions demonstrating both that the hearing is unnecessary, and he
is entitled to no further relief. Accordingly, the hearing is cancelled, and his renewed
preliminary injunction motion will be denied.
PROCEDURAL HISTORY
Although this case is still in the early stages of discovery, Brown has diligently
engaged in motion practice and has filed numerous letters with the court, as well as litigated
an interlocutory appeal from the court’s in forma pauperis order that has since been
dismissed for lack of jurisdiction. Relevant here, Brown renewed his motion for injunctive
relief after the court denied it without prejudice in its screening order. (Dkt. #21 at 1718.)
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In response, the court ordered the state to provide relevant medical records based
on Brown’s assertions in his renewed motion that he has been suffering from “serious pain”
every day since 2017, yet defendants “feel that they do not have to [do] anything about”
his health. (Dkt. #27 at 2.) Received on February 26, 2021, those records do not support
injunctive relief for the reasons explained in the court’s May 6 opinion and order. (Dkt.
#48 at 2-12.) Still, the court set the matter for a Zoom hearing in light of Brown’s
assertions in his May 3 letter that: he “went to the hospital on April 17, 2021,” as a result
of the medical condition underlying this lawsuit; he was suffering “a medical emergency”;
the court needed to act quickly based on the reports from the hospital, which the court did
not yet have; and his “health and life is in jeopardy.” (Dkt. #47.) More specifically, the
court was concerned based on these assertions “that [Brown’s] ongoing gastroesophageal
condition may now be worsening,” either (1) as a result of “defendants’ alleged failure to
accommodate his condition” or (2) because Brown had not yet had a consultation to
explore the possible reversal of his surgery. (Dkt. #48 at 12.) The court also ordered the
state to produce any additional medical records of Brown’s treatment for his ongoing
gastroesophageal pain since their initial February 26, 2021, response, including any
available medical records related to Brown’s alleged, recent hospitalization. (Dkt. #48.)
The court has since received two more correspondence from Brown. The first, a
letter received on May 10 and dated May 5, appears to have been sent before Brown
received the court’s order setting a Zoom hearing. (Dkt. #49.) In it, Brown provides
greater, but materially different details regarding the events in April, as well as attaches
relevant records. Brown also complains that he has again been issued conduct reports
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because of his medical condition. (Dkt. #49 at 2.) However, the attached conduct reports
indicate that Brown was twice disciplined in late April because he berated staff when his
Ramadan meals were delayed (dkt. #49-3) -- not because he kept food from his trays past
meal time due to difficulty finishing, which was the alleged basis for the conduct-report
claim on which he was allowed to proceed, or for another medical reason (see dkt. #21 at
6, 13-14.) As punishment, Brown asserts that he cannot eat in his room for several weeks,
and has one hour to eat each meal, which he asserts makes his condition “worse,” although
it is unclear how this is specifically affecting him medically. (Dkt. #49 at 2.) Moreover,
if Brown wishes to bring a claim based on this latest round of conduct reports, he will need
to include the relevant allegations in an amended complaint.
Brown also now explains that (1) he went to a medical center on April 16, 2021, for
a previously scheduled modified barium swallow study to investigate why he had allegedly
been gagging on liquids and food; and the attached records indicate that the referral for
this consultation was made in March 2021 “[t]o establish the safest, least restrictive diet
and to determine compensatory strategies to prevent dehydration, malnutrition, and/or
pneumonia.” (Dkt. #49-2 at 1-2.) At the April 16 appointment, Brown further reported
that: food felt like it was stuck in his throat; he would experience a sore throat after eating
unless he ate slowly; and he would feel full very quickly; although Brown acknowledged
not vomiting for three months and denied suffering any significant weight loss. (Dkt. #492 at 2.) Brown also gave a pain rating of “0.” (Dkt. #49-2 at 2.) Finally, while the medical
provider again recommended that Brown eat smaller, more frequent meals, Brown asserts
that defendants are still refusing to make necessary accommodations to allow this, making
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his medical condition worse.
Even so, the attached, after-visit summary does not support Brown’s assertions that
he is suffering a “medical emergency,” nor does the medical provider indicate a physical
cause for the swallowing difficulties, attributing these difficulties to patient anxiety. (Dkt.
#49-2 at 3.)
Results of the Modified Barium Swallow Study revealed an
essentially normal oral pharyngeal swallow. No aspiration or
penetration occurred during this evaluation. Piecemeal
deglutition occurred with solid consistencies. The cause of
piecemeal deglutition is thought to be anxiety prior to the
swallow as there is no apparent structural cause. During the
evaluation, Mr. Brown did show visible signs of extra effort
prior to and during the swallow of solid consistencies.
However, there was no evidence of food in the pharynx during
that time. The cause of Mr. Brown’s globus sensation was
unable to be determined. Mr. Brown’s history of esophagitis
may be contributing to the sensation. Following the Modified
Barium Swallow Study, an Esophagram was completed by the
radiologist. Per the radiologist, results of the Esophagram were
normal. During the Esophagram, a 13 mm barium tablet was
presented, which Mr. Brown swallowed without difficulty. The
tablet readily passed through the esophagus and into the
stomach. Please see the radiologist’s report for complete results
of the Esophagram.
(Id.) Even more to the point, the medical provider does not recommend further diagnostic
testing or surgery beyond repeating the swallow study if Brown’s symptoms worsen. (Id.)
As Brown now stresses, the provider does recommend that Brown eat more frequent,
smaller meals or snacks to “aid with the feeling of early satiety,” and thus, ensure that
Brown is eating enough. (Dkt. #49 at 3.)
Based on the results of this evaluation, it is recommended that
Mr. Brown continue to consume a regular-consistency diet
with thin liquids. It is recommended that Mr. Brown consume
frequent small meals or snacks in order to aid with the feeling
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of early satiety. It is recommended that he continue to follow
basic reflux precautions and take reflux medication as
prescribed. He was advised to add extra moisture to dry or
dense foods in order to aid with motility and globus sensation.
Mr. Brown should alternate bites of solid and sips of liquids
during meal time to aid with the globus sensation.
(Id.)
As for Brown’s second letter received on May 14 (dkt. #52), he apparently drafted
this second letter without realizing that the court’s May 6 order was issued before it had
received his first letter on May 10. In it, Brown chastises the court for concluding that he
had been hospitalized when he never made such representations in his previous letter.
(Dkt. #52 at 1.) Brown further asserts that the “argument before the court is NOT the
defendants is not giving plaintiff enough time to eat, the argument is each time the
defendants write a conduct report for disciplinary action against plaintiff, [w]hich is in
State Court under Petition for Writ of Certiorari Review[,] they use his medical condition
as a weapon to punish him.” (Dkt. #52 at 1.) Finally, Brown complains that the court
denied his motion to compel defendants to identify certain Doe defendant special needs
committee members, as well as his repeated requests for a lawyer. (Dkt. #52 at 2.)
As of the date of this opinion, defendants have not responded to the court’s request
for any additional relevant medical records.
OPINION
To begin where Brown has left off, his submissions and diligent motion practice
continue to demonstrate that he is more than capable of advocating for himself, and he
understands the factual bases for his claims, as well as the applicable legal standard.
Accordingly, the court will not reconsider its decision (dkt. #48 at 13-16) to deny Brown’s
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request for help recruiting counsel. See Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir 2007)
(the “question is not whether a lawyer would present the case more effectively than the pro
se plaintiff” but instead whether the pro se litigant can “coherently present [his case] to the
judge or jury himself”). As for his motion to compel, Brown appears to be confusing his
two, discovery-related motions. The court denied Brown’s March 29, 2021, motion to
compel and sanction defense counsel (dkt. #39) because defendants’ discovery responses
were held at the post office due to insufficient postage. (See dkt. #47 at 1 n. 1.) Defense
counsel explained the error and sent Brown another copy of the discovery responses. (Dkt.
#40.)
As for Brown’s latest motion to compel (dkt. #42), it was filed on April 12, and is
not yet under advisement with the court. Regardless, Brown asks the court to compel
defendants to identify certain special needs committee members and to produce certain
documents, and objects to several of defendants’ responses (dkt. #42 at 1), but the court
does not yet have a copy of these responses to review, nor a response brief from defendants,
and for good reason, since on April 27, the court granted defendants a 30-day extension to
respond to the motion because defense counsel was experiencing a family emergency and
had to travel out of state. (Dkt. ##44, 45.) While Brown has repeatedly objected to that
extension in his most recent letters (dkt. ##47, 49), to the extent he is concerned about
filing an amended complaint identifying his Doe defendants, the court will extend that
deadline if necessary, once his motion is ripe.
Finally, the medical records available to the court as well as plaintiff’s increasingly
unjustified and belligerent tone with the court, do not support his request for preliminary
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injunctive relief at this time.
The court’s May 6, 2021, order summarizes Brown’s
treatment at Sand Ridge through February 2021 (dkt. #48 at 2-13), and the additional
records Brown provided from his last outside medical consultation indicate that while
Brown has difficulty swallowing and experiences discomfort when he eats, there appears to
be no physical cause for these sensations. (Dkt. #49-2.) Nor does Brown continue to
report frequent vomiting, constant pain, significant weight loss, or other related declines
in overall health.
To this point, defendants have twice referred him for outside
consultations: with a nurse practitioner in November 2019, and in April 2021 with a
speech pathologist. There is currently no recommendation among the records before the
court for additional referrals or diagnostic testing, and many of the pathologist’s
recommendations are within Brown’s control, such as avoiding acidic foods, standing up
for thirty minutes after eating, taking his reflux medication, adding extra moisture to dry
foods, and alternating bites of food with sips of liquid. (Dkt. #49-2 at 3.) It also appears
that this visit with a speech pathologist and swallow study is meant to satisfy the nurse
practitioner’s recommendation that Brown have a surgical consult to explore the possibility
of fundoplication reversal. (Dkt. #33-2 at 102-03.)
What apparently remains a primary sticking point for the parties are the size and
frequency of Brown’s state-provided meals: Brown now receives three meals a day, and
has a set amount of time to eat, but would rather receive several, smaller meals a day or
snacks, while always being allowed to eat in his room. On one hand, Brown’s latest
disciplinary issues apparently stem from his own disruptive behavior, not a difficulty eating
or swallowing, and he appears to have some control over how often and how much he eats.
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For example, he can keep certain food items, such as fruit, from his state-provided trays to
eat later, and he purchases additional food items from the canteen. On the other hand,
outside medical providers have consistently recommended that he eat smaller, more
frequent meals to reduce the risk of regurgitation, ease throat pain, and ensure that he does
not feel full too quickly.
It remains unclear why defendants cannot make any
accommodation in response to this recognized medical recommendation, although likely
cost and administrative reasons are involved, but again, there is no indication in the
medical records that Brown is malnourished.
Further confusing the record is Brown’s latest letter, asserting that the question
before the court is not the amount of time he has to eat his meals, but rather (1) how often
and how much he eats and (2) his latest conduct reports. (Dkt. #52 at 1.) As noted, why
defendants cannot provide an additional snack, or smaller, more frequent meals remains a
disputed issue of fact, but not one justifying immediate relief on this record. See Roland
Mach. Co. v. Dresser Indus., 749 F.2d 380, 389 (7th Cir. 1984) (granting a preliminary
injunction is “an exercise of very far-reaching power, never to be indulged except in a case
clearly demanding it”). As for Brown’s most recent letters, Brown would do better focusing
his energy on the discovery process, and clearly and consistently articulating any specific
relief he would request under the applicable legal standard, than lambasting the court for
confusion some of his own, inaccurate submissions have created.
Accordingly, the court will cancel the Zoom hearing and deny preliminary injunctive
relief. Although Brown is undoubtedly experiencing some GI discomfort, there does not
appear to a danger of imminent, irreparable harm. See Lambert v. Buss, 498 F.3d 446, 451
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(7th Cir. 2007) (to succeed on a motion for a preliminary injunction, a plaintiff must show,
among other requirements, that an irreparable harm will result if the injunction is not
granted).
ORDER
IT IS ORDERED that plaintiff’s renewed motion for preliminary injunction (dkt.
#27) is DENIED.
Entered this 25th day of May, 2021.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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