Richard Redman v. Lori Doehling ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 30, 2018*
Decided September 26, 2018
Before
DIANE P. WOOD, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 18-1036
RICHARD H. REDMAN, Appeal from the
Plaintiff-Appellant, United States District Court for the
Eastern District of Wisconsin.
v.
No. 17-CV-239-JPS
LORI DOEHLING and
CHRISTINE DIETRICH, J.P. Stadtmueller,
Defendants-Appellees. Judge.
ORDER
Richard Redman, a Wisconsin prisoner, asserts in this suit under 42 U.S.C. § 1983
that two nurses at Redgranite Correctional Institution violated the Eighth Amendment
and state law by delaying care for his painful foot problems. The district court denied
his motions to recruit counsel and entered summary judgment for the defendants.
Because nothing in the record suggests that either nurse recklessly disregarded
Redman’s foot condition, we affirm.
* We agreed to decide this case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18-1036 Page 2
We construe the record in the light most favorable to Redman. His first claim
concerns the treatment of his painful bunions. To treat them, Dr. Jill Migon, a podiatrist
outside the prison, recommended that Redman use wide athletic shoes with high tops
when exercising. After Redman learned that these shoes were unavailable from the
prison’s approved vendor, he wrote to defendant Lori Doehling, a nurse who was the
health-services manager at the prison. The note that she received from him in May 2015
asked only if they could meet to discuss the shoe order. His note did not state that the
shoes were currently unavailable from the prison’s vendor, and she replied that he
should order from that vendor. The next month Redman started other medical
treatment that prevented him from exercising for several months. Redman again raised
the shoe issue with Doehling, who had the shoes purchased in September from another
vendor before doctors cleared Redman to resume physical activity.
On appeal Redman contends that Doehling violated the Eighth Amendment
because, he says, she recklessly ignored his medical needs by waiting until September
to order the athletic shoes from an alternative vendor. See Farmer v. Brennan, 511 U.S.
825, 837 (1994). But Doehling did not act recklessly. The record contains no evidence
suggesting that before June Doehling knew that the shoes were unavailable from the
prison’s vendor. And after June Redman could not use exercise shoes for several
months because of medical restrictions on his physical activity. It was therefore
reasonable for Doehling to have the shoes ordered in September.
Redman’s second claim concerns a painful degenerative condition in his right
foot—hallux rigidus (literally, “stiff big toe”). This condition was treated and ultimately
cured over the course of 18 months, during which Redman received two surgeries and
17 offsite visits with two podiatrists. Defendant Christine Dietrich, a nurse practitioner,
referred Redman for almost all of these podiatrist appointments, logged his physicians’
orders and recommendations, and sought authorizations for his recommended
treatment. She did not schedule the appointments for Redman; scheduling was the
responsibility of another staff member who is not a defendant. Days after Dr. Migon
first recommended surgery on Redman’s toe, Dietrich cleared him for it in mid-June
2015.
Redman asserts that his recovery from this surgery was unconstitutionally
delayed in three respects. The first delay occurred after Dr. Migon performed the
surgery in June. She wanted Redman to remain in a cast for only six to eight weeks, so
she recommended a follow-up exam in late July to take x-rays and decide whether to
remove the cast and have Redman use a removable boot. Dietrich referred Redman for
No. 18-1036 Page 3
this exam. But the one-month follow-up exam was never scheduled. In late August
2015, about a month after the recommended time for the exam, Redman complained
that the cast was still on his leg. In turn Dietrich immediately referred Redman to have
the cast cut, and it was removed a day later. Redman eventually met again with Dr.
Migon in October 2015. She gave Redman a shoe so that he could begin bearing weight
to help the healing process. Dr. Migon wrote that the extra time in the cast kept him
from bearing weight on his foot, causing bone shrinkage and incomplete joint fusion.
She recommended follow-up, and Dietrich made referrals for Redman to see Dr. Migon
again in November and December.
The second delay, which lasted a month, stems from a decision to get a second
opinion about the next treatment for Redman. Dr. Migon determined in December that
the bones in Redman’s foot still had not fused. She recommended a bone stimulator and
protein shakes twice a day to boost healing because Redman’s soy-based prison diet
offered limited protein. She also suggested eliminating some physical-activity
restrictions. Under this plan she was “still optimistic” that “accelerating the bone
healing” would lead to a “successful outcome.” But in an email to the prison’s medical
director, Doehling, the health-services manager, worried about these recommendations.
She wrote that lifting the restrictions on physical activity might “reinjure” Redman and
that Redman “doesn’t qualify by weight” for the protein shakes. The medical director
responded, “I would disregard all these orders as they make no sense.” He told
Doehling to have another podiatrist provide a second opinion. The next day Dietrich
referred Redman to a second podiatrist who agreed with Dr. Migon the following
month.
After the second podiatrist concurred with Dr. Migon’s plan, a third delay—
lasting one week—occurred. Dietrich signed the concurring opinion but did not request
the bone stimulator or protein shakes until a week later. She explained that she likely
was busy with other unspecified work. Redman began receiving this remedial
treatment within days of Dietrich’s request. Dietrich referred Redman for two more
appointments with podiatrists, and in May 2016 Dr. Migon opined that Redman needed
revisional surgery, a probable outcome of nutritional deficiencies after the first surgery.
Redman underwent revisional surgery and received protein shakes immediately
afterward with bone stimulation a week later. He healed completely approximately
eight months later.
On appeal Redman argues that Doehling and Dietrich violated the Eighth
Amendment by causing these three delays, but no reasonable jury could conclude that
No. 18-1036 Page 4
either nurse violated the Eighth Amendment. Prison officials violate the Eighth
Amendment when they act with “deliberate indifference to serious medical needs of
prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). Deliberate indifference means that
the official was aware of the inmate’s medical needs and intentionally or recklessly
disregarded them. Farmer, 511 U.S. at 837. Negligence—even gross negligence—is not
deliberate indifference. Id.; Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009).
Redman blames Dietrich for the first delay, which occurred when the one-month
follow-up exam after his first surgery did not occur and the cast remained on his foot
beyond the time that Dr. Migon recommended. He points out that Dietrich knew
Redman needed a one-month follow-up exam to evaluate him for cast removal. But
Dietrich did all that her job required her to do by timely referring Redman for this exam
in July. She was not personally responsible for scheduling the appointments or
transporting him to them. And she cannot be held liable under § 1983 for failing to do
another prison employee’s job. See Aguilar v. Gaston-Camara, 861 F.3d 626, 633 (7th Cir.
2017) (citing Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009)). Finally, Dietrich’s swift
referral after she learned of the delayed cast removal undercuts Redman’s argument
that she was indifferent to his need to have the cast off.
Redman next contends that Doehling, the health-services manager, delayed his
receipt of bone stimulation and protein shakes for a month by emailing the prison’s
medical director her concerns over Dr. Migon’s treatment plan. An inexplicable delay in
treatment may support an inference of deliberate indifference. Petties v. Carter, 836 F.3d
722, 730 (7th Cir. 2016) (en banc). But the delay that followed Doehling’s email was not
inexplicable. As a nurse she was obliged to present to a responsible administrator any
reasonable concerns over an “inappropriate or questionable practice.” See Berry v.
Peterman, 604 F.3d 435, 443 (7th Cir. 2010) (citing Frank J. & Nancy M. Cavico, The
Nursing Profession in the 1990s: Negligence and Malpractice Liability, 43 CLEV. ST. L. REV.
557, 613–16 (1995)). No evidence suggests that her concerns were medically
unreasonable; to the contrary, the medical director agreed with them and asked for a
second opinion, which Redman reasonably received within a month.
Redman next asserts that Dietrich violated the Eighth Amendment by waiting a
week to arrange for protein shakes and the bone stimulator after the second podiatrist
confirmed Dr. Migon’s plan. But his argument has two fatal flaws. First, he has not
offered evidence that this delay was intentional or reckless, as opposed to negligent.
See Farmer, 511 U.S. at 837. Courts must examine the entire record of medical treatment,
and an isolated incident of negligence is insufficient to support an inference of
No. 18-1036 Page 5
deliberate indifference. Dunigan ex rel. Nyman v. Winnebago County, 165 F.3d 587, 591
(7th Cir. 1999). For almost a full year, Dietrich regularly referred Redman to outside
podiatrists when needed and sought timely authorizations for other required treatment.
In the context of that long-standing attentiveness, one short period of arguable
negligence is not deliberate indifference. Second, Redman lacks evidence that this delay
caused harm. By the time the second podiatrist concurred that Redman needed this
treatment, Redman had already gone six months after surgery without it—though that
was no fault of Dietrich’s. No evidence suggests that the one additional week without
protein shakes and bone stimulation caused Redman pain or exacerbated his toe
condition. See Lewis v. McLean, 864 F.3d 556, 563 (7th Cir. 2017). Thus no reasonable jury
could find that this one-week delay caused harm for which Dietrich is liable.
Redman also contests the dismissal of his negligence claims against the nurses,
but those claims fail also. His claim against Dietrich is barred because Wisconsin’s
medical malpractice statute, WIS. STAT. ch. 655, permits negligence claims against
private “health care providers” but not against the nurses they employ. See Patients
Comp. Fund v. Lutheran Hosp.–LaCrosse, Inc., 588 N.W.2d 35, 44 (Wis. 1999). The claim
against Doehling, who is employed by a state agency, fails because Redman did not
present expert testimony stating that she violated her professional standard of care, as
Wisconsin law requires. See Olfe v. Gordon, 286 N.W.2d 573, 576 (Wis. 1980). Redman
replies that “even lay people would know that disregarding” orders of a physician
“deviates from the standard of care.” But Doehling did not disregard a physician’s
order. She obeyed the prison’s medical director who instructed her to “disregard”
Dr. Migon’s orders and seek a second opinion.
Redman’s final challenge is that the district court unreasonably denied his four
motions to recruit counsel, given his sixth-grade education and reliance on a jailhouse
lawyer who had prepared his court filings and inmate grievances. But the court’s
rulings were permissible. The court denied his first motion based on its fair conclusion
that despite his limitations Redman could litigate his claims himself because they
turned on historical facts as opposed to medical evidence. See Pruitt v. Mote, 503 F.3d
647, 655–56 (7th Cir. 2007) (en banc). After review of Redman’s personally drafted
correspondence with the defendants, the judge properly based this conclusion on his
finding that Redman had “express[ed] himself coherently” and displayed “very good
knowledge of his medical issues.” See Olson v. Morgan, 750 F.3d 708, 712 (7th Cir. 2014).
Redman’s second, third, and fourth motions did not develop any new arguments
regarding his capability, and the judge reasonably denied them for that reason.
No. 18-1036 Page 6
Redman also moves this court to amend his complaint and impose sanctions
against Doehling for her representations to this court. We DENY Redman’s motion as
moot in light of the foregoing analysis.
We have reviewed Redman’s remaining arguments, none of which has merit.
AFFIRMED.