Jackson v. Hepp

558 F. App'x 689
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 7, 2014
DocketNo. 13-2484
StatusPublished
Cited by5 cases

This text of 558 F. App'x 689 (Jackson v. Hepp) 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
Jackson v. Hepp, 558 F. App'x 689 (7th Cir. 2014).

Opinion

ORDER

Sylvester Jackson, a Wisconsin inmate, brought this action under 42 U.S.C. § 1983 claiming that a doctor, nurses, and other staff at Jackson Correctional Institution (“JCI”) violated the Eighth Amendment by failing to adequately treat his chronic back pain and disregarding an outside podiatrist’s instructions for postoperative care after foot surgery. On three occasions Jackson asked the district court to recruit counsel. The court denied each request and eventually granted summary judgment for the defendants, despite characterizing the many gaps in the evidence as troubling. On appeal Jackson challenges the grant of summary judgment as well as the refusal to enlist a lawyer to assist him. Because we conclude that the district court abused its discretion in refusing Jackson’s requests for a lawyer, and that Jackson was prejudiced by those refusals, we vacate the judgment and remand for further proceedings.

We recount the evidence at summary judgment in the light most favorable to Jackson. See Arnett v. Webster, 658 F.3d 742, 749 (7th Cir.2011); Gil v. Reed, 381 F.3d 649, 651 (7th Cir.2004). Jackson, who is in his late forties and diabetic, first complained about hip and back pain shortly after his transfer to JCI in November 2009. Kenneth Adler, a prison physician, prescribed ibuprofen and authorized Jackson to have an extra mattress. Dr. Adler later ordered hip X-rays, which showed degenerative disease in the right hip, and prescribed naproxen, a pain reliever. But afterward Jackson complained repeatedly of worsening back pain. In one request for health services, he said that at night the pain was so severe that often he could not walk to the toilet in time. His back pain, says Jackson, kept him awake at night, made sitting for long periods difficult, and sometimes made standing to walk unpleasant.

Over the course of the following year, Jackson saw Dr. Adler several times for his back pain, but the plaintiff insists that the doctor misrepresented in his medical records what transpired during those visits. (At summary judgment Dr. Adler submitted an affidavit, but his account of Jackson’s visits appears to rest entirely on the plaintiffs medical records and not the doctor’s independent recollection. Dr. Adler does not vouch for the accuracy of the information in Jackson’s medical records. Nor does the doctor confront the plaintiffs accusations that statements attributed to him in those records — including records signed by Dr. Adler — are false.) For example, after Jackson’s first visit in March 2010, Dr. Adler wrote in the medical records that Jackson was “not taking pain medicines,” which Jackson says is untrue. Dr. Adler then prescribed more ibuprofen and an evaluation by a physical therapist. That evaluation did not result in actual therapy (apparently the therapist recommended that Jackson perform exercises on his own), yet Dr. Adler wrote after Jackson’s next visit in April that his symptoms had improved with physical therapy. And then after a visit in October, Dr. Adler wrote that ibuprofen was helping Jackson’s back pain, yet the plaintiff insists that he never said this and, in fact, [691]*691told the doctor that his pain was worsening and the ibuprofen was not helping. The doctor even noted in Jackson’s medical records that he lifts weights and plays basketball daily, which Jackson denies having said and explains would have been impossible since JCI inmates are not granted daily recreation privileges.

Meanwhile, in December 2010, Debra Tidquist, a nurse practitioner, ordered a back X-ray that showed, according to Jackson’s medical records, degenerative changes. Tidquist declared, however, that “additional treatment” was unnecessary. Jackson disagreed and continued complaining that his back pain was “severe” and sometimes “unbearable.” Around the same time Tidquist also ordered a second evaluation by a physical therapist and prescribed gabapentin, a drug used to reheve pain from nerve damage. Not until April 2011 did Jackson see the physical therapist, and, as before, he did not receive therapy after the evaluation. And when Jackson told Tidquist that the gabapentin was not working, her response was to substitute prescription-strength acetaminophen.

As far as this record shows, Dr. Adler and Nurse Practitioner Tidquist did not investigate other treatment options or consider sending Jackson to a specialist. And though the plaintiff requested care for his back pain at least 14 times during 2011, there is scant indication in the record that anything was done before October, not even after Jackson had reported that his back condition caused him to fall against the sink in his cell. Indeed, on eight occasions from May to October he was told that a medical appointment had been scheduled but then was not called to the infirmary. Eventually, in November 2011, Tidquist ordered another back X-ray; this time she diagnosed mild osteoarthritis but again declared that treatment was not indicated.

Jackson’s back pain was not his only ailment during this time. Since late 2009 the medical staff also had been treating recurring infections in his big toes, which led to surgical removal of both nails at a hospital in April 2011. The podiatrist instructed that Jackson’s feet be soaked in soapy water daily for four to six weeks. After the surgery Jackson was taken back to JCI, where a defendant nurse — he does not say which — refused to bring a wheelchair or provide open-toe shoes and instead forced him to don heavy boots and hustle a significant distance to his cell on foot.

For the next two days, Jackson was called to the infirmary, where nurses Georgia Kostohryz and Cheryl Marsolek soaked his feet as directed. But then two days passed without a call from the infirmary, so on the fifth day after his return from the hospital Jackson complained to Nurse Practitioner Tidquist. That complaint prompted Kostohryz and Marsolek to give Jackson a foot tub, soaking solution, ointment, and dressing and tell him to tend to his feet himself in his cell. He did for 13 days until the tub and supplies were taken away when he was moved to a segregation cell. Jackson notified Tidquist that he needed infirmary staff to resume performing the daily soaks, and after hearing nothing for three days, he complained to Tammy Maassen, the manager of the Health Services Unit at JCI. That same day, May 5, Kostohryz told him that additional soaks were unnecessary. On May 6, after Jackson had replied that Kostohryz and Marsolek were not authorized to disregard the podiatrist’s instructions, the plaintiff was taken to the infirmary. Dr. Adler entered the room and declared— after a quick glance at his feet, says Jack[692]*692son — that further soaks were unnecessary because his toes were healed.

This was 22 days after Jackson’s surgery. During those three weeks his feet had been soaked as prescribed on only 15 days, and all but five of those days by Jackson himself. Moreover, by the time Dr. Adler countermanded the podiatrist’s instructions on May 6, five days had passed since staff last followed those instructions. Then on May 8, two days after the doctor’s appearance, Jackson requested medical attention because both toes were seeping blood and pus and the right toe was causing him throbbing pain. Nurse Betty Peterson refused to schedule an exam, explaining that Jackson, who still was in segregation, had just seen Dr. Adler two days before.

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Bluebook (online)
558 F. App'x 689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-hepp-ca7-2014.