969 F.3d 822 (7th Cir. 2020), 19-3009, Machicote v. Roethlisberger

Docket Nº:19-3009
Citation:969 F.3d 822
Opinion Judge:Scudder, Circuit Judge.
Party Name:Anthony J. MACHICOTE, Plaintiff-Appellant, v. Doctor ROETHLISBERGER, n/k/a Dr. Marie Herweijer, et al., Defendants-Appellees.
Attorney:Anthony J. Machicote, Pro Se. Colin Thomas Roth, Attorney, WISCONSIN DEPARTMENT OF JUSTICE, Special Litigation and Appeals, Madison, WI, for Defendants-Appellees.
Judge Panel:Before Ripple, Hamilton, and Scudder, Circuit Judges.
Case Date:August 14, 2020
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 822

969 F.3d 822 (7th Cir. 2020)

Anthony J. MACHICOTE, Plaintiff-Appellant,

v.

Doctor ROETHLISBERGER, n/k/a Dr. Marie Herweijer, et al., Defendants-Appellees.

No. 19-3009

United States Court of Appeals, Seventh Circuit

August 14, 2020

Submitted July 23, 2020.[*]

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Western District of Wisconsin. No. 3:18-cv-249 - Barbara B. Crabb, Judge.

Anthony J. Machicote, Pro Se.

Colin Thomas Roth, Attorney, WISCONSIN DEPARTMENT OF JUSTICE, Special Litigation and Appeals, Madison, WI, for Defendants-Appellees.

Before Ripple, Hamilton, and Scudder, Circuit Judges.

Scudder, Circuit Judge.

Anthony Machicote is a Wisconsin inmate who had a surgery that left him in extreme pain necessitating strong medication at regular intervals. He faced delays and interruptions in receiving those drugs and experienced significant pain as a result. That led him to invoke 42 U.S.C.

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§ 1983 and file a lawsuit against several physicians, a health services manager, and a nurse who worked at the New Lisbon Correctional Institution. The district court entered summary judgment for all defendants, concluding that Machicote had not shown that any of them were deliberately indifferent to his suffering. We agree with respect to most of the defendants and affirm the judgments in their favor. But Machicote has persuaded us that a factual issue remains as to the deliberate indifference of the nurse. We therefore vacate the judgment as to only that defendant and remand for a trial.

I

A

Anthony Machicote underwent surgery to remove damaged bone, tissue, and cartilage in his left ankle after he suffered an injury while playing basketball in the New Lisbon prison yard. The case at hand concerns his treatment upon return to the prison, the facts of which we recount in the light most favorable to him. See Hackett v. City of South Bend, 956 F.3d 504, 507 (7th Cir. 2020).

After the procedure, the surgeon supplied Machicote with oxycodone and warned that he would be in "extreme pain" when the medication wore off. He was discharged with instructions recommending narcotic-strength painkillers every six hours. Back at the prison, Dr. Marie Herweijer and Nurse Kimberly Stecker reviewed Machicote's discharge instructions. For her part, Dr. Herweijer ordered Tylenol #3, a combination of acetaminophen and codeine, for Machicote to take as needed every six hours for three days.

Nurse Stecker directed Machicote to take his first dose of Tylenol #3 at 9:30 p.m. that evening, fewer than six hours after he received the oxycodone following surgery. He refused at first, worried that taking the medication so early meant it would wear off during the night. In doing so, Machicote reminded Nurse Stecker not only of Dr. Herweijer's six-hour dosage instruction, but also the surgeon's warnings about the pain that would ensue once the effects of the oxycodone wore off. Nurse Stecker reacted by saying she "did not care" and telling Machicote he would have to "deal with the pain" because more medication would not be available until the next morning. Faced with no alternative, Machicote relented and took the pills.

Machicote's worry came true, for he found himself awake at 3:30 a.m. in "excruciating pain." He attempted to dull the pain with weaker medication, but it did not help. He passed the remaining hours of the night awake in agony until Nurse Stecker returned with more Tylenol #3 at around 6:20 a.m.

The following day, Machicote continued to have trouble accessing the medication that Dr. Herweijer had ordered for him. He went to the health services unit at around noon for his next dose of Tylenol #3, and Nurse Stecker told him to come back later and stand in the regular medication line. The prison has medication distribution scheduled for roughly 6 a.m., 12 p.m., 4 p.m., and 8 p.m. daily— a timetable that did not match the one in Machicote's prescription. When Machicote reminded Nurse Stecker of the prescribed dosage schedule, she retorted, "We will see about that!" but then gave him the pills he sought.

About an hour after that exchange, Machicote saw Nurse Stecker angrily gesturing toward him while arguing with Candace Warner, the prison's health services manager. The nurse then contacted the on-call doctor, Dr. Prapti Kuber, who revised Machicote's medication order from every six hours to four times daily to bring his dosage schedule in line with the prison's ordinary distribution hours. Warner told

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Machicote about the change, and he protested that it would result in him experiencing substantial pain overnight for even longer than before. She told him, "That's how it will go."

Machicote met further difficulty in his first attempts to conform to the new medication schedule. He stood in the prison's afternoon medication line only to be rejected by Nurse Stecker because it was "too early." He explained to her that his previous dose would soon wear off and that he was trying to comply with the new order, but she replied that it was "[n]ot [her] problem." A friend of his called the prison later that day out of concern that Machicote's pain was not being managed adequately, but Nurse Stecker rebuffed the friend's plea.

For the next three days, Machicote received his medication during the prison's regular distribution hours as Dr. Kuber had ordered, and each night he laid awake in "excruciating pain." His friends called the New Lisbon staff to tell them of his suffering to no avail.

Then Machicote's medication order ran out completely, and he began experiencing agonizing ankle pain around the clock. He filed a health services request, complaining of a fever, an "extreme burning" pain around his ankle and foot, and a wet feeling in his bandages. Nurse Stecker changed his bandages but refused to contact a doctor. Two days later, Machicote complained of "unbearable pain" to a shift sergeant, who placed an emergency call to health services on his behalf. It took yet another health services request and a voicemail from his friend to Warner before Machicote was finally seen by a nurse the next day. The nurse noted that Machicote appeared sleepless and distraught and said she would consult with a doctor.

Five days after Machicote's initial medication order expired, supervising physician Dr. Karl Hoffman prescribed him another painkiller, Tramadol, to take every six hours as needed for four weeks. Machicote did not receive the medication for two more days, and his medical records show that the pain required management for several more weeks.

B

Without the assistance of an attorney, Machicote sued Dr. Herweijer, Dr. Kuber, Dr. Hoffman, Warner, and Nurse Stecker under 42 U.S.C. § 1983, claiming that they were deliberately...

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4 practice notes
  • Chapman v. Wexford of Indiana, LLC, 012121 INSDC, 1:19-cv-01897-JMS-DML
    • United States
    • Federal Cases United States District Courts 7th Circuit Southern District of Indiana
    • January 21, 2021
    ...fact as to whether the medication prescribed was sufficient to treat Mr. Chapman's pain. See Machicote v. Roethlisberger, 969 F.3d 822, 827 (7th Cir. 2020) ("Delaying necessary medication for hours of needless suffering can be sufficient for a jury to infer del......
  • Deane v. Neal, 092520 INNDC, 3:19-CV-153-PPS-MGG
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Indiana
    • September 25, 2020
    ...v. Sood, 947 F.3d 1026, 1031 (7th Cir. 2020) (citations and internal quotation marks omitted); Machicote v. Roethlisberger, 969 F.3d 822, 827 (7th Cir. 2020) (observing that delaying treatment “for hours of needless suffering can be sufficient for a jury to infer de......
  • Toran v. Wexford Health Sources Inc., 020421 INSDC, 2:19-cv-00066-JMS-DLP
    • United States
    • Federal Cases United States District Courts 7th Circuit Southern District of Indiana
    • February 4, 2021
    ...'the evidence is such that a reasonable jury could return a verdict' for the nonmovant." Machicote v. Roethlisberger, 969 F.3d 822, 827 (7th Cir. 2020) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court views the facts in the light m......
  • Knighten v. Marthakis, 012821 INNDC, 3:21-CV-64-JD-MGG
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Indiana
    • January 28, 2021
    ...prohibits a prison official's deliberate indifference to an inmate's serious medical need. Machicote v. Roethlisberger, 969 F.3d 822, 827 (7th Cir. 2020). For medical professionals to be held liable for deliberate indifference to an inmate's medical needs, they must......
4 cases
  • Chapman v. Wexford of Indiana, LLC, 012121 INSDC, 1:19-cv-01897-JMS-DML
    • United States
    • Federal Cases United States District Courts 7th Circuit Southern District of Indiana
    • January 21, 2021
    ...fact as to whether the medication prescribed was sufficient to treat Mr. Chapman's pain. See Machicote v. Roethlisberger, 969 F.3d 822, 827 (7th Cir. 2020) ("Delaying necessary medication for hours of needless suffering can be sufficient for a jury to infer del......
  • Deane v. Neal, 092520 INNDC, 3:19-CV-153-PPS-MGG
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Indiana
    • September 25, 2020
    ...v. Sood, 947 F.3d 1026, 1031 (7th Cir. 2020) (citations and internal quotation marks omitted); Machicote v. Roethlisberger, 969 F.3d 822, 827 (7th Cir. 2020) (observing that delaying treatment “for hours of needless suffering can be sufficient for a jury to infer de......
  • Toran v. Wexford Health Sources Inc., 020421 INSDC, 2:19-cv-00066-JMS-DLP
    • United States
    • Federal Cases United States District Courts 7th Circuit Southern District of Indiana
    • February 4, 2021
    ...'the evidence is such that a reasonable jury could return a verdict' for the nonmovant." Machicote v. Roethlisberger, 969 F.3d 822, 827 (7th Cir. 2020) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court views the facts in the light m......
  • Knighten v. Marthakis, 012821 INNDC, 3:21-CV-64-JD-MGG
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Indiana
    • January 28, 2021
    ...prohibits a prison official's deliberate indifference to an inmate's serious medical need. Machicote v. Roethlisberger, 969 F.3d 822, 827 (7th Cir. 2020). For medical professionals to be held liable for deliberate indifference to an inmate's medical needs, they must......