Greeno v. Daley

• Decision Date: 01 July 2005
• Docket Number: No. 01-4119.,01-4119.
• Citation: 414 F.3d 645
• Parties: Donald F. GREENO, Plaintiff-Appellant, v. George DALEY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 645

414 F.3d 645

Donald F. GREENO, Plaintiff-Appellant, v. George DALEY, et al., Defendants-Appellees.

No. 01-4119.

United States Court of Appeals, Seventh Circuit.

Argued November 1, 2004.

Decided July 1, 2005.

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Barry Levenstam, Amy Kobelski Trueblood (argued), Jenner & Block, Chicago, IL, for Plaintiff-Appellant.

Thomas J. Dawson (argued), Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.

Before CUDAHY, ROVNER, and WOOD, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

This is the second time we have considered Wisconsin inmate¹ Donald Greeno's Eighth Amendment claim against numerous Wisconsin Department of Corrections' employees. Greeno's claim is premised on the prison employees' failure to adequately respond to his vomiting and severe heartburn, symptoms that appeared in late 1994 and became progressively worse until he was treated in 1997 for an esophageal ulcer. The district court first dismissed Greeno's complaint for failure to state a claim. See 28 U.S.C. § 1915A(b)(1). We reversed and remanded in part, holding that Greeno's complaint stated a claim for deliberate indifference to an objectively severe medical condition. See Greeno v. Litscher, 13 Fed.Appx. 370 (7th Cir. 2001) (unpublished order). On remand, the district court granted summary judgment to a number of defendants and again dismissed Greeno's claims against the remaining defendants. The district court also denied Greeno's motion requesting the assistance of counsel. Greeno appeals, and we again affirm in part and vacate and remand in part.

I.

Because Greeno appeals from the grant of summary judgment, we construe the facts in the light most favorable to him. Greeno first began complaining of severe heartburn in December 1994, while incarcerated at Racine Correctional Institution. From January until July 1995, Greeno's symptoms persisted and intensified, despite his attempts to manage his illness by taking antacids and avoiding spicy foods as directed by Racine doctors. During this time Greeno's intestinal distress caused him to vomit occasionally.

In July 1995, Greeno was transferred to Fox Lake Correctional Institution, where he continued to complain about severe heartburn accompanied by vomiting. In August Greeno saw the prison doctor, Jose Lloren, and explained that his family had a history of peptic ulcer disease. Dr. Lloren prescribed Maalox to Greeno and noted in his chart the need to rule out the existence of a chronic peptic ulcer ("R/O PUD chronic?") or gastro-esophageal reflux disease ("R/O GER Dis?"). Despite these notations, no tests were performed, and Greeno did not visit a specialist. Instead, he took the Maalox prescribed by Dr. Lloren, but it did little for his pain. Consequently, Dr. Lloren saw Greeno again in September and October. At those visits Dr. Lloren again documented the possibility that Greeno was suffering from gastro-esophageal reflux disease ("GERD?") or a peptic ulcer ("pos PUD?"), and he prescribed Tagamet in addition to Maalox.

From October 1995 through April 1996, Greeno continued throwing up and experiencing severe heartburn. He told Dr. Lloren that the Tagamet and Maalox were ineffective, but Dr. Lloren informed him that nothing more could be done for him. In April Greeno fell and injured his back, and Dr. Lloren prescribed ibuprofen and Tylenol for the pain. Greeno put in multiple health service requests for different medication because the ibuprofen and Tylenol exacerbated his esophageal condition. In response, Dr. Lloren promised to send different pain medication, but he never did. When Greeno submitted an inmate complaint and another health services request form, he was simply told to keep taking the ibuprofen. Greeno also repeatedly requested a bland diet, but was told that such diets were reserved for diabetics. He was instructed to eat bread and potatoes and learn to live with his condition.

In May and June 1996, Greeno tried several additional avenues to get a bland diet or some other form of relief for his continued heartburn and vomiting. In a letter to Sharon Zunker, director of the Bureau of Health Services, Greeno described his condition and his repeated attempts to obtain a bland diet. Zunker told Greeno that she had referred the matter to the Bureau of Health Services sector chief, but Greeno never received a response from him. After seeing that spicy food would be served the entire week of June 10, Greeno submitted yet another health services request for a bland diet, but that request too was denied.

On June 19, 1996, Greeno was transferred to Jackson Correctional Institution, where his medical problems continued. In August Greeno requested an appointment with the Jackson physician, Dr. Rizalino Yray. Dr. Yray did not see Greeno until mid-September. In the meantime Greeno appealed to Judith Nordahl, a nurse at Jackson, for more Maalox. Noting that Greeno's Maalox usage exceeded the normal dosage, nurse Nordahl denied his request. Greeno thus had nothing to combat his pain and vomiting at the beginning of September. In mid-September Greeno's vomit was bitter, yellow, and tinged with blood. He met with Dr. Yray, who performed a rectal exam to test for blood but did not change Greeno's treatment.

Greeno's suffering thus continued. In response to continuing pain in his back, nurse Nordahl gave him more ibuprofen which she warned him to take with "CAUTION" and immediately report any bleeding. Just as before, the ibuprofen aggravated his esophageal condition. Although Greeno submitted two requests at the end of September for different pain medication, he received no response. In October, November, and December Greeno sent multiple letters to Health Services and Dr. Yray reiterating that antacid was not providing him relief and requesting additional testing or a referral to a specialist to uncover the cause of his heartburn and vomiting. Greeno told Dr. Yray that he had been diagnosed with an ulcer while at Fox Lake, but that no tests had ever been performed to verify or rule out the diagnosis.

In December Greeno wrote Sharon Bergstad, the nurse manager of the Health Services Unit, three different letters describing his ongoing pain, vomiting, and inability to receive effective treatment or additional testing. Nurse Bergstad responded by giving Greeno more Maalox.

Despite the arrival of a replacement doctor for Dr. Yray in January 1997, Greeno's situation did not improve. Dr. Nerissa Avestruz, who replaced Dr. Yray, attempted to refer Greeno to a specialist, but George Daley, the medical director for the Department of Corrections Bureau of Health Services, denied the request. Around that same time Greeno met with nurse Bergstad, who reiterated to him that he needed to "accept and live [with] his condition." Greeno then submitted an inmate complaint (one of many) and wrote letters to nurse Bergstad, Dr. Avestruz, and Dr. Yray, threatening legal action on account of his inability to see a specialist or receive effective treatment. The defendants responded by placing Greeno on a liquid diet and holding him for observation from January 14 to 17. At the end of the three days, nurse Nordahl warned Greeno that if he did not cease filing complaints and hassling Health Services staff he would be "locked up" again, but for a longer period of time.

During the remainder of January, Greeno continued to seek different treatment. He made yet another request for a bland diet, wrote Zunker about his excessive Maalox usage, and had his cell mate and several corrections officers verify that he was throwing up on a regular basis. He also wrote to Dr. Daley and asked him why he had rejected Dr. Avestruz's attempt to refer him to a specialist.

Things began looking up in February, when Greeno was transferred to Dodge Correctional Institution, where he stayed for two weeks of medical observation. During that time Greeno was given a bland diet and Prilosec (an ulcer medication), a combination that finally resolved his heartburn and vomiting.

However, when he returned to Jackson the old pattern of neglect continued. Greeno remained on the Prilosec until it ran out at the end of February. At that time, the vomiting and burning returned. When Greeno asked for further testing and more Prilosec, he was told that the Prilosec had been a temporary measure. Instead, he was given Pepto-Bismol. For the next two months Greeno went to great lengths to bring attention to his condition. He sent a number of letters to nurse Bergstad requesting further testing and explaining that he was vomiting blood. He attached statements to his letters from correctional officers confirming that they had seen him throwing up. Greeno wrote Dr. Avestruz requesting an endoscopy, and he also wrote Dr. Daley, inquiring why he refused to prescribe Prilosec when it had provided him with relief. Finally, Greeno wrote a letter to a doctor at Dodge Correctional Institution requesting that he tell the Jackson doctors to order him an endoscopy. Despite (or perhaps because of) these requests, Greeno's medical record contains the following entry made March 12, 1997: "per Dr. Daley's orders—no PT, no pain medication, no gastroscopy" (emphasis in original). During this time Greeno's symptoms continued to become more pronounced, and he vomited blood on multiple occasions.

At the end of April, Greeno saw a gastrointestinal specialist, who performed an endoscopy and diagnosed Greeno with a distal ulcer in his esophagus.² The doctor prescribed Prilosec for the ulcer, and Greeno's symptoms resolved. Although Greeno has since had difficulty obtaining Prilosec from prison officials on isolated occasions, he has for the most part been able to effectively treat the ulcer with Prilosec. However, the copious amounts of Maalox and Mylanta Greeno ingested from 1995 to 1997 have taken their toll. Greeno now suffers from severe and chronic...