Fitzgerald v. Greer

324 F. App'x 510
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 6, 2009
DocketNo. 08-2627
StatusPublished
Cited by10 cases

This text of 324 F. App'x 510 (Fitzgerald v. Greer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fitzgerald v. Greer, 324 F. App'x 510 (7th Cir. 2009).

Opinion

ORDER

Wisconsin inmate Patrick Fitzgerald filed suit under 42 U.S.C. § 1983 claiming as relevant here that three prison doctors were deliberately indifferent to his complaints of chronic pain. The district court granted summary judgment for the defendants, and we affirm.

We construe the facts in the light most favorable to Fitzgerald. See Greeno v. Daley, 414 F.3d 645, 648 (7th Cir.2005). In October 2003 Fitzgerald was in a car accident that left him with a brain contusion, punctured lung, dislocated shoulder, shattered ankle, and fractures in his spine, humerus, and ribs. He remained hospitalized until March 2004 and afterward was referred to a pain specialist who diagnosed him with chronic pain syndrome and prescribed opioids for pain management. Fitzgerald was later convicted on an unrelated drunk-driving charge, his ninth conviction for that offense. He was also convicted of marijuana possession and bail jumping. At his sentencing in March 2005, Fitzgerald, through counsel, represented to the court that he was HIV-positive and taking an expensive “cocktail” of drugs, but medical records confirm that Fitzgerald had previously told his pain specialist that he was not HIV-positive. Fitzgerald entered Dodge Correctional Facility in April 2005 to' begin a four-year prison sentence.

At intake Fitzgerald was examined by Dr. Timothy Correll. The prison had not yet received any medical records from outside sources, but Fitzgerald reported that he was taking Naprosyn, a nonsteroidal anti-inflammatory, for chronic pain in his arms, legs, and shoulders but getting little [512]*512relief. He also reported, according to Dr. Correll, that he had been HIV-positive since 1993, but Fitzgerald insists that he simply told the doctor that he once received a false-positive result on an HIV test. In any event, Dr. Correll placed Fitzgerald on the prison’s chronic-disease list and ordered that he be scheduled to visit an immunology clinic and receive a bottom-bunk restriction, multivitamins, double meal portions, and monthly nurse visits — all standard orders for HIV-positive inmates. Dr. Correll also authorized Fitzgerald to wear sneakers instead of standard-issue work boots and prescribed Amitriptyline, which Dr. Correll describes as an anti-depressant used in low doses to manage pain, including pain associated with HIV-related peripheral neuropathy.

Dr. Correll had also ordered an HIV test, and when the result came back negative a few days later, he rescinded his earlier orders, including the Amitriptyline prescription and sneaker accommodation. Dr. Correll insists that he did so because all of his orders had been responsive to Fitzgerald’s purported HIV status. Fitzgerald counters that Dr. Correll’s motive was retaliatory; the two men argued, he says, about whether Fitzgerald had misrepresented his HIV status, and Dr. Cor-rell had ended the discussion by saying, “I could care less about your chronic pain.” Fitzgerald received no medication for eight weeks until June 17, when he was prescribed Ibuprofen, a nonsteroidal anti-inflammatory. Three days later, Fitzgerald was transferred to Kettle Moraine Correctional Institution, where a prison doctor prescribed Tylenol, Vicodin, and Ketopro-fen, another nonsteroidal anti-inflammatory, for his pain.

In November 2005 Fitzgerald was transferred again, to Oshkosh Correctional Institution, where he immediately complained of chronic pain in his back, left shoulder, and neck and asked for medical attention. About a month later, in early January 2006, Fitzgerald met with Dr. Roman Kaplan and requested medication stronger than Vicodin because, he said, it had become ineffective. Dr. Kaplan instead gradually decreased the Vicodin and then discontinued it, substituting a prescription for Ibuprofen. Fitzgerald insists that he told Dr. Kaplan that Ibuprofen was inappropriate because he suffers from stomach ulcers and that Dr. Kaplan said he did not care. Dr. Kaplan, of course, denies this statement. He also denies knowing about Fitzgerald having ulcers, and at summary judgment Fitzgerald produced no medical evidence to corroborate his assertion that he does. Dr. Kaplan insists that he switched the prescription since Fitzgerald exhibited a normal gait and full range of motion and there were no objective findings to support his self-reported pain. The doctor also insists that Vicodin was inappropriate for Fitzgerald, whom he suspected was drug dependent, because it is best reserved for short-term pain treatment and has a high risk of abuse. The proper course of treatment, in Dr. Kaplan’s opinion, was a moderate dose of a nonsteroidal drug coupled with a lower bunk and an extra mattress and pillow. Over the following week, Fitzgerald filed Health Service requests almost daily, complaining that he was in chronic pain and that the Ibuprofen was causing intestinal bleeding. He asked to see a doctor other than Kaplan, but Kaplan was the only physician on staff at that time.

The following month Fitzgerald saw a nurse for an unrelated condition and reported that he had blood in his stool and was suffering from abdominal pain. The parties dispute whether Fitzgerald ever provided the stool sample requested by the nurse, and it is unclear what tests, if any, were performed at that time. But in April he was seen by Dr. Deb Lemke, who re[513]*513placed Dr. Kaplan. Fitzgerald complained of diarrhea, and Dr. Lemke prescribed medication for gastroesophageal reflux disease and ordered stool tests, which came back negative for occult blood. Although denied by Fitzgerald, Dr. Lemke also insists that he reported having HIV, for which he was treated at a Milwaukee hospital. At summary judgment Fitzgerald did not dispute that he signed a release giving Dr. Lemke permission to obtain his hospital records, or that the records identify him as being HIV-positive since 1992 and on an “HIV cocktail” until April 2005 when he entered the Department of Corrections. Fitzgerald insists that during this visit he also complained about chronic pain, but Dr. Lemke denies this and her treatment notes support her version of events.

Fitzgerald saw Dr. Lemke again in early September when, they both agree, he reported chronic pain. In her treatment notes for this appointment, Dr. Lemke noted that Fitzgerald had misrepresented his HIV status and the recency of his car accident to department medical staff, and that his medical records reflected a history of drug and alcohol abuse. She declined to place Fitzgerald on any additional medication because, in addition to her concern about those issues, she had not observed any physical signs that Fitzgerald was in pain, the treating physician before her had not prescribed narcotic pain medication, and Fitzgerald had recently requested that his medical classification be changed to “any activity,” a fact that Fitzgerald does not dispute.

Fitzgerald filed this action pro se in February 2007, and the district court appointed counsel. His amended complaint, filed by counsel, named as defendants Drs. Correll, Kaplan, and Lemke, along with several other defendants who are mentioned only in passing or not at all in Fitzgerald’s appellate brief. After filing suit Fitzgerald was transferred twice more to other prisons, where doctors prescribed physical therapy and Gabapentin, an anti-convulsant used in treating neuropathic pain. He was also referred eventually to Dr.

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Bluebook (online)
324 F. App'x 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzgerald-v-greer-ca7-2009.