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Lockett v. Bonson

United States Court of Appeals, Seventh Circuit

August 28, 2019

Jeremy Lockett, Plaintiff-Appellant,
Tanya Bonson and Beth Edge, Defendants-Appellees.

          Argued May 17, 2019

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. l:17-cv-00691-WCG - William C. Griesbach, Chief Judge.

          Before Ripple, Manion, and Sykes, Circuit Judges.

          Ripple, Circuit Judge.

         Jeremy Lockett, an inmate at the Wisconsin Secure Program Facility ("WSPF"), brought this action under 42 U.S.C. § 1983 to recover for alleged violations of his constitutional rights under the Eighth Amendment to the Constitution of the United States, rights made applicable to the states through the Fourteenth Amendment.[1] He alleged that these rights were violated when he received inadequate medical care while incarcerated at WSPF. Mr. Lockett, who has sickle cell disease, claimed that two prison medical staff members, Tanya Bonson, a nurse practitioner ("NP"), and Beth Edge, a nurse, were deliberately indifferent to his serious medical needs. The defendants moved for summary judgment; the district court granted the motion. Mr. Lockett filed a timely appeal.

         We conclude that the record will not support a jury determination that NP Bonson was deliberately indifferent to Mr. Lockett's needs in prescribing medication. Mr. Lockett did not exhaust his administrative remedies on his claim against Nurse Edge. Accordingly, the judgment of the district court is affirmed.[2]




         Mr. Lockett has been housed at WSPF, a facility within the Wisconsin Department of Corrections ("WDOC"), since November 2014. He has a significant medical history, having been diagnosed with sickle cell disease, a chronic condition that causes pain, sometimes acutely. During certain periods called sickle cell crises, the pain becomes so severe that it requires immediate emergency medical treatment. A sickle cell crisis usually resolves within five to seven days, although a severe crisis may result in pain that persists for weeks or months.

         Other factors further complicate Mr. Lockett's health situation. His records contain a diagnosis of cannabis dependence, antisocial personality disorder, adjustment disorder, and mild depression in 2010.[3] He also has a documented history of substance abuse, including marijuana, ecstasy, and cocaine. Health care providers have prescribed various medications to treat his depression.

         The events underlying his claims occurred over a several-month period at the end of 2016. On September 2, 2016, Mr. Lockett sent a health services request, complaining that his routine pain medication, tramadol, was not working to control his back pain. In response, NP Bonson switched Mr. Lockett's pain medication to Tylenol #3, a mild opioid. Five days later, on September 7, 2016, a medical staff member (whose name does not appear in the record) evaluated Mr. Lockett. According to Mr. Lockett, during this evaluation, he told the caregiver that his Tylenol #3 was not controlling his pain. The relevant entry on his chart does not reflect, however, any discussion of the efficacy of his pain medication-only that Mr. Lockett had reported to the medical department so that laboratory work could be undertaken and his neck pain evaluated and treated. Shortly thereafter, NP Bonson renewed Mr. Lockett's prescription for Tylenol #3, first for a period of two weeks and then for another month.

         Throughout the month of September, Mr. Lockett remained on Tylenol #3, administered four times daily on what the WSPF terms medication passes.[4] From September 23 through September 25, he missed several doses, at least once because he declined it. Between September 26 and October 3, Mr. Lockett did not receive his pain medication at all. Although he filed a health services request during that time, he asked only about whether he would have an appointment with a specialist for his sickle cell disease and did not mention the lack of pain medication.

         On October 3, 2016, medical staff determined that Mr. Lockett was in sickle cell crisis. In accordance with the emergency nursing protocol, he was transferred to the local emergency room for treatment. When he returned to the WSPF the following day, another WSPF nurse, Anderson, documented in Mr. Lockett's inmate medical records a recommendation from the treating emergency room physician that Mr. Lockett be given oxycodone, a stronger, immediate-release opioid, to treat his sickle cell pain. The entry in Mr. Lockett's chart originally instructed, "Please fill the Rx in the morning, "[5] but that note was crossed out. NP Bonson wrote, "Had one time dose Oxycodone 20mg from Hospital. Admin[istered] this AM."[6] She noted that "Mr. Lockett has been successfully managed" with Tylenol #3 and concluded "we will continue his Tylenol #3 ... as ordered on 9/20/16 x 30 days."[7] In a subsequent explanation of her decision, NP Bonson stated that several factors led her to choose to continue with Tylenol #3 rather than the stronger opioid. She noted that Mr. Lockett's chronic symptoms had been managed successfully on the weaker drug prior to the crisis, that the stronger drug carried additional concerns for substance abuse, and that, in any event, long-term oxycodone use required approval from a WDOC committee, a process that would have taken time. Finally, she believed that the recommended dose itself was very high and, although appropriate to treat crisis pain, was not indicated for Mr. Lockett's chronic pain.

         Two days after his return to WSPF, Mr. Lockett filed a health services request. He stated that he was in constant pain and asked why he was not receiving the medication prescribed by the emergency room physician. Nurse Edge responded to his request by noting that he was receiving pain medication, although it was the Tylenol #3 he had received in the prior month, not the oxycodone recommended by the external physician. Mr. Lockett responded on October 6 with an administrative complaint. He claimed that NP Bonson was denying him "the correct medication."[8] His complaint was rejected.

         Just two days later, on October 8 and 9, Mr. Lockett refused his doses of Tylenol #3 during medication pass. Although the nurse "educated [him] about [the] importance of pain control and taking pain medication on [a] regular basis/' Mr. Lockett "reported he just didn't need the medication at that time."[9]

         On November 11, Mr. Lockett did not receive his medication during two of his four daily medication passes. Four days later, he filed an administrative complaint against Nurse Edge for failing to deliver the medication. He claimed that he had asked WSPF staff to call for the medication, but because the call was not received until after the second missed pass, Nurse Edge informed him that he would have to wait for the third pass to receive the medication. After investigation, his complaint was dismissed. Mr. Lockett contends that he took a timely appeal of this dismissal by placing the appeal in an outgoing box, but also admits that he never received a receipt or a response. The record contains no copy of Mr. Lockett's appeal, and, according to the WDOC complaint examiner, the WDOC has no record of having received it.[10]

         On November 17, Mr. Lockett requested to be seen by a nurse. During that visit, he reported "unbearable" pain and that the pain medication was not doing anything.[11] The nurse documented that Mr. Lockett declined his pain medication because it was ineffective. He was sent to the emergency room and treated. When he returned two days later, another WSPF nurse, Bethel, documented the treating physician's medication order for APAP, another form of acetaminophen, on a short-term basis, and a long-term change from acetaminophen with codeine to one with hydrocodone. NP Bonson countersigned, accepting the recommendation. She prescribed the new medication as recommended by the physician first for a one-week period, and then for a one-month period. Her follow-up notes indicate that Mr. Lockett reported that it was working well.

         Just days later, however, he ran out of his supply of the hydrocodone. When he called for pain medication for the night, he was given tramadol by a separate on-call doctor, and a subsequent doctor switched him to Tylenol #3. When he filed a health services request with NP Bonson, she indicated that she had put in an order for his hydrocodone. Two weeks later, anticipating that he would run out over a holiday, he again filed a health services request with NP Bonson, who replied the same day that it would be refilled because she did not "want [him] to run out either!"[12]


         On May 17, 2017, Mr. Lockett initiated this action by filing a pro se complaint under 42 U.S.C. § 1983 against NP Bonson and Nurse Edge. He alleged that the defendants had acted with deliberate indifference in treating his sickle cell disease, in violation of the Eighth Amendment. His specific allegations with respect to NP Bonson included her failure to provide him with medication for several days from September 26 to October 3, 2016, and her decision to continue him with his regimen of Tylenol #3 following his October 3, 2016 hospitalization, when his treating physician recommended a stronger opioid. With respect to Nurse Edge, his allegations concerned the day on which he received no medication at the first two pass times and then had to wait until the next pass time to receive the medication.

         Following discovery, the defendants moved for summary judgment, which the district court granted in full. Although it was undisputed that Mr. Lockett's sickle cell disease is a serious medical condition as contemplated by the Eighth Amendment, the court concluded that the evidence did not establish deliberate indifference on the part of either NP Bonson or Nurse Edge.

         Addressing the claim, the court found that there was no evidence that NP Bonson was aware that Mr. Lockett had not been receiving his medication over the several-day period in September and October 2016. Therefore, she could not have known of a substantial risk of serious harm. With respect to her October 4, 2016 decision to continue treating Mr. Lockett with Tylenol #3, instead of the oxycodone, which had been recommended by the emergency room physician, the court determined that her decision "was a justified exercise of professional judgment given the information before her."[13] The court found that NP Bonson "based her decision on Lockett's medical record and history, her concern about opioid use and substance abuse in prison, the high amount of Oxycodone prescribed, and the fact that prior to the October incident, Lockett's long-term pain appeared to have been successfully managed by the Tylenol #3."[14] The court also found that Mr. Lockett's assertion that he had notified NP Bonson on September 7, 2016, that the Tylenol #3 was not helping his pain was "not supported by the record."[15] Further, even if this allegation were true, her decision did not constitute deliberate indifference because Mr. Lockett had made no other complaint over a month-long period, "indicating that the Tylenol #3 was sufficient to treat his long-term pain."[16] Therefore, the court ruled, NP Bonson was entitled to summary judgment.

         Turning to Mr. Lockett's claim against Nurse Edge and her delay in providing him with medication in November 2016, the district court found that he had failed to exhaust his administrative remedies within the WDOC. Mr. Lockett asserted that he had filed a timely appeal from the Reviewing Authority's decision but never had received a response. However, he presented no evidence of the Corrections Complaint Examiner's receipt of his appeal. Because the WDOC rules provide that the Corrections Complaint Examiner "shall, within 5 working days after receiving an appeal, issue a written receipt of the appeal to the inmate," Wis. Admin. Code DOC §310.13(4), the court ruled that, "[a]bsent a receipt, ... an inmate's administrative ...

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