Poyner, Matthew v. Demler, Wendy et al

Filing 53

ORDER Defendants' motions for summary judgment, Dkt. 36 and Dkt. 41 , are GRANTED. The clerk of court is directed to enter judgment for defendants and close this case. Signed by District Judge James D. Peterson on 06/03/2024. (acd),(ps)

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

MATTHEW POYNER,
Plaintiff,
v.

OPINION and ORDER

WENDY DEMLER, TARA ANDERSON,
and SANDRA ENDERS,

22-cv-199-jdp

Defendants.
Plaintiff Matthew Poyner, proceeding without counsel, is a prisoner at Wisconsin
Secure Program Facility. The events giving rise to this case occurred in 2021, while he was
incarcerated at Jackson Correctional Institution. There are two sets of defendants: Wendy
Demler, a contracted nurse practitioner who worked at the prison, and Tara Anderson and
Sandra Enders, Department of Corrections nurses. I granted Poyner leave to proceed on Eighth
Amendment claims that defendants failed to change Poyner’s pain treatment after it proved
ineffective.
Both sets of defendants have filed motions for summary judgment. Dkt. 36 and Dkt. 41.
I conclude that the undisputed facts show that defendants did not disregard Poyner’s pain, so
I will grant summary judgment to defendants and dismiss the case.

UNDISPUTED FACTS
Poyner did not file a response to defendants’ motion for summary judgment, even after
I granted him an extension of time to do so. Dkt 52. But Poyner’s complaint is verified,
meaning that I can treat it as the equivalent of an affidavit for the purposes of summary
judgment. Beal v. Beller, 847 F.3d 897, 901 (7th Cir. 2017). I will consider the defendants’

proposed findings of fact undisputed except where they differ from Poyner’s account of the
facts in his complaint.
At all times relevant, plaintiff Matthew Poyner was a prisoner at Jackson Correctional
Institution. Defendant Wendy Demler was a licensed nurse practitioner and advanced practice
nurse prescriber subcontracted to the prison, who acted as Poyner’s primary care provider.
Defendants Tara Anderson and Sandra Enders were Department of Corrections nurses who
worked at the prison.
Poyner began experiencing severe abdominal pain in August 2021. Demler assessed him
and prescribed Miralax and Lactaid pills, thinking he might be suffering from constipation and
lactose intolerance. A few days later Poyner reported an increase in his pain and Enders, the
on-call nurse, sent him to the local emergency room for evaluation. A CT scan showed a possible
bowel obstruction, which resolved by the next morning, and constipation. Poyner was
discharged with instructions to take Miralax daily. Anderson conducted a return visit when
Poyner returned from the ER and reiterated the hospital’s instructions to take Miralax.
A few days later, Demler saw Poyner for a follow-up visit and prescribed him Tylenol
for continued abdominal pain. Poyner reported pain again a few days later and the on-call
nurse sent him to the emergency room for a second time. Hospital staff conducted a full
work-up and another CT scan but found no abnormalities other than a small periumbilical
hernia. Demler saw Poyner for a follow-up after his second hospital visit and explained to him
that his results were normal. She ordered additional labs to search for the cause of his pain.
Poyner’s abdominal pain continued. On September 4, he submitted a Health Services
request saying that he had taken laxatives for two weeks but continued to have pain. He
believed that constipation was not the underlying issue and requested referral for a

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colonoscopy. Two days later, security called Anderson, who was on-call, to tell her that Poyner
had complained of abdominal pain and had vomited four times. Anderson instructed him to
sip fluids and rest and that he would be seen the next day, but to call the on-call nurse again if
vomiting worsened.
The next day, Anderson saw Poyner for a sick call visit and he told her that nothing was
making his symptoms better. Anderson reviewed Poyner’s current labs and noted that some of
them were incomplete. Anderson could not order labs or refer Poyner to specialists, so she
referred him back to Demler. Demler saw Poyner the next day and decided to refer him to a
gastroenterologist because none of his providers had yet been able to determine the cause of
his pain. She submitted an off-site service request for a gastroenterology appointment and
specified that Poyner should be put at the “top of the list” if possible. Dkt. 38-1, at 60. She
prescribed Poyner Levsin and Zofran to manage his pain and vomiting.
Poyner had to wait more than two months for his follow-up with gastroenterology,
during which time defendants continued to manage his symptoms. Demler gave him
magnesium citrate for pain and constipation twice in September. In early October, Enders
evaluated him after receiving a call from security. He reported that he was frustrated with not
finding a source of his pain but that he would “try to wait it out for now.” Dkt. 44-1, at 5. In
early November, Anderson saw Poyner for pain and constipation, noted a “great deal of facial
grimacing,” and treated him again with magnesium citrate. On November 22, Enders
responded to another call from security that Poyner was in pain; this time, she determined that
his condition might be emergent and referred him to the emergency room. At the emergency
room, Poyner again received labs and a CT scan, and the treating physician wrote: “I am unsure

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of the exact etiology of his symptoms however it does not appear to be appendicitis,
pancreatitis, AAA, or other emergent etiology.” Dkt. 38-1, at 76.
On November 23, Poyner had his gastroenterology appointment with Dr. Steven
Schlack-Haerer at Gundersen Health. Schlack-Haerer recommended that Poyner receive a
colonoscopy and Miralax, and that he take tramadol, an opioid pain medicine, every eight
hours. Dkt. 38-1, at 83. However, Demler declined to provide tramadol, filling out a change of
consultant form explaining her reasoning: “Tramadol not ordered. Last CT showed stool
burden. Patient has constipation. Tramadol has side effect of causing constipation. Patient
already taking gabapentin, MiraLAX, Tylenol, Levsin, omeprazole, Zofran.” Dkt. 38-1, at 85.
Poyner asserts that Demler’s rationale for not providing tramadol was false, because the other
medicines she provided him, including Tylenol, Levsin, and Zofran, also listed constipation as
a potential side effect. Dkt. 1, ¶ 37.

ANALYSIS
I granted Poyner leave to proceed on Eighth Amendment claims that Demler, Anderson,
and Enders failed to change his pain treatment when it had proven ineffective, and that Demler
ignored a specialist’s recommendation that he receive tramadol for his pain.
The Eighth Amendment prohibits prison officials from consciously disregarding the
serious medical needs of prisoners. Estelle v. Gamble, 429 U.S. 97, 103–04 (1976). The parties
agree that Poyner’s severe abdominal pain was a serious medical need, so the question is
whether defendants consciously disregarded his pain. Conscious disregard of a prisoner’s
serious medical need involves intentional or reckless conduct, not mere negligence. Berry v.

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Peterman, 604 F.3d 435, 440 (7th Cir. 2010). Even gross negligence is not enough to establish
conscious disregard. Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996).
Defendants in this case did not ignore Poyner’s abdominal pain or refuse him care. Over
the course of several months, they repeatedly monitored him, administered treatment for his
pain and constipation, and referred him to the emergency department and to a gastroenterology
specialist. The receipt of some medical care does not automatically defeat a claim for
constitutionally inadequate care, but Poyner would have to show that the treatment he received
was “‘so blatantly inappropriate as to evidence intentional mistreatment likely to seriously
aggravate’ a medical condition.” Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir.
2007) (quoting Snipes, 95 F.3d 586 at 592). Two circumstances in which a jury can infer
conscious disregard is if a provider “persists in a course of treatment known to be ineffective”
or a provider’s decision is “such a substantial departure from accepted professional judgment,
practice, or standards as to demonstrate that the person responsible did not base the decision
on such a judgment.” Petties v. Carter, 836 F.3d 722, 729–30 (7th Cir. 2016).
No reasonable juror could find that Demler, Anderson, or Enders consciously
disregarded Poyner’s pain. As nurses, Anderson’s and Enders’s job was to triage prisoner
complaints, examine prisoners at sick call visits, refer them to advanced care providers or to
the emergency room if needed, and provide, on a short-term basis, certain medicines like
constipation-relieving substances, anti-acids, or over-the-counter pain medicines. Dkt. 43, ¶¶ 5,
12–13, 16–19. They could not prescribe medications, override the decisions of advanced care
providers, or request visits with specialists. Dkt. 43, ¶¶ 21–22. Within this framework,
Anderson and Enders tried a variety of treatments to address Poyner’s pain. Each time Poyner
complained of abdominal pain, Anderson and Enders triaged his complaints and suggested

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solutions to make him more comfortable, such as rest, fluids, over-the-counter pain medicines,
and constipation treatments. They repeatedly referred him to Demler, the advanced care
provider, so that his condition could be better addressed. When his pain levels were highest or
there were other indicators that he might be suffering from an emergency condition, they sent
him to the emergency room. No jury could find that Anderson and Enders ignored Poyner’s
pain or deviated so substantially from accepted medical standards that their treatment could
form the basis for an Eighth Amendment violation.
The same is true for Demler. As an advanced care provider, Demler could prescribe
medications and refer prisoners to outside specialists. She did both these things to diagnose
and treat Poyner’s pain. She initially prescribed Miralax and Lactaid for suspected constipation
and lactose intolerance. When Poyner continued to experience pain, she prescribed Tylenol.
After Poyner reported that the laxatives had been unsuccessful and that he was experiencing
vomiting, she prescribed Levsin and Zofran, which are used to treat stomach conditions and
vomiting. And on September 8, after initial treatments had been unsuccessful, Demler
submitted a referral for Poyner to see a gastroenterologist, noting in the request that Poyner
should be put at the “top of the list” if possible. Dkt. 38-1, at 60. Poyner did not actually see
a gastroenterologist until November, but that delay was not due to any failure by Demler. No
jury could find from these facts that Demler ignored Poyner’s pain or “persist[ed] in a course
of treatment known to be ineffective.” Petties, 836 F.3d at 730. The only reasonable inference
is that Demler did not know the source of Poyner’s pain but was taking measures within her
professional judgment to diagnose and treat it.
Poyner’s strongest potential claim is that Demler consciously disregarded his pain
because she refused to provide him with tramadol as recommended by his gastroenterologist.

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A provider’s refusal to take instructions from a specialist is a “hint” that the provider’s action
might have been due to conscious disregard rather than honest professional judgment. Petties,
836 F.3d at 729. But if a medical provider gives a cogent medical explanation for her decision
to deviate from a specialist’s recommendation, the plaintiff cannot survive summary judgment
without adducing evidence that would allow a reasonable jury to determine that the provider’s
explanation was false. Zaya v. Sood, 836 F.3d 800, 806 (7th Cir. 2016).
Poyner has not done so. Demler’s reasoning for not giving Poyner tramadol was that
she believed an opioid might worsen his constipation. This is a cogent medical explanation,
and Poyner has not adduced evidence from which a reasonable jury could find that it was false.
Poyner asserts in his complaint that Demler had prescribed him other medications, including
Tylenol, Levsin, and Zofran, that listed constipation as a possible side effect. Dkt. 1, at 6, 8.
But medications often list many side effects with varying likelihood and severity, so no
reasonable jury could find that Demler’s explanation was false from the mere fact that these
other medicines might cause constipation.

ORDER
IT IS ORDERED that:
1. Defendants’ motions for summary judgment, Dkt. 36 and Dkt. 41, are GRANTED.
2. The clerk of court is directed to enter judgment for defendants and close this case.
Entered June 3, 2024.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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