Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fisherman v. Augdahl

United States District Court, D. Minnesota

February 3, 2017

COREY E. FISHERMAN Plaintiff,
v.
LON AUGDAHL and JOAN ULWELLING, Defendants.

          Corey E. Fisherman, pro se plaintiff.[1]

          Anthony J. Novak and Mark A. Solheim, LARSON KING, LLP, for defendants.

          MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

          JOHN R. TUNHEIM Chief Judge.

         Plaintiff Corey E. Fisherman brings this action under 42 U.S.C. § 1983, alleging that defendants Lon Augdahl, M.D., and Joan Ulwelling, R.N., violated Fisherman's Eighth Amendment right to be free from cruel and unusual punishment by wrongfully interfering with Fisherman's ability to take Wellbutrin while in prison at Minnesota Correctional Facility in Stillwater. On September 30, 2016, United States Magistrate Judge Janie S. Mayeron issued a Report and Recommendation (“R&R”) recommending that the Court grant the Defendants' motion for summary judgment and that the Court dismiss Fisherman's claims with prejudice. On October 13, 2016, Fisherman filed timely objections to the R&R. Because Defendants did not violate the Eighth Amendment when, in the exercise of their professional judgment, they refused to implement Fisherman's requested course of treatment, the Court will adopt the Magistrate Judge's R&R, grant the Defendants' motion for summary judgment, and dismiss Fisherman's claims with prejudice.

         BACKGROUND

         The factual and procedural background underlying this matter has been set forth in detail by the Magistrate Judge. (See R&R at 1-8, Sept. 30, 2016, Docket No. 39.) The Court, therefore, adopts the background set forth by the Magistrate Judge and provides only a brief summary of the facts that are relevant to the Court's determination.

         Fisherman took Wellbutrin - a prescription medication - for his depression before he entered the Minnesota Department of Corrections (“MDOC”) on November 7, 2014. (Aff. of Lon Augdahl, M.D. (“Augdahl Aff.”) ¶ 2, May 27, 2016, Docket No. 26.) Because MDOC classifies Wellbutrin is a highly abused and non-formulary medication, a physician will instead prescribe a formulary medication to a new prisoner unless certain exceptions apply. (Id. ¶ 6.)

         On December 3, 2014, Fisherman saw Dr. Augdahl for a psychiatric assessment. (Id. ¶ 3.) During the assessment, Fisherman became angry that his Wellbutrin may not be continued and threatened Dr. Augdahl with legal action. (Id.) Dr. Augdahl nevertheless wrote Fisherman a tapering schedule for Wellbutrin, to end on December 20, 2014. (Id. ¶ 5.) In late January, 2015, Dr. Augdahl saw Fisherman for a follow-up visit and prescribed Effexor XR (extended release) medication, a formulary option, as an alternative to Wellbutrin. (Id. ¶ 8.)

         On March 12, 2015, Ulwelling examined Fisherman, reviewed the non-formulary policy with him, and - pursuant to Fisherman's request - she recommended a Wellbutrin prescription for Fisherman. (Aff. of Anthony J. Novak, Ex. 1, May 27, 2016, Docket No. 27.) Dr. Augdahl promptly responded to Ulwelling's request on March 16, 2015, and asked if Fisherman had first tried an SSRI[2]. (Augdahl Aff. ¶ 11.) Fisherman elected to continue with Effexor XR instead of trying an SSRI. (Id. ¶ 13.) Since July, 2015, Fisherman has received a 150 mg daily dose of Effexor XR and has met with a psychologist who has described Fisherman's condition as “stable.” (Id. ¶¶ 13-14.)

         In the instant action, Fisherman alleged that Dr. Augdahl wrongfully “cut off” his prescription for Wellbutrin “for no reason, ” and that it was cruel and unusual for a doctor to do this because he was taking the medicine to treat his depression, and because he is a Native American from the Red Lake Band of Ojibwe. (Am. Compl. at 4-5, Jan. 28, 2016, Docket No. 17.) Fisherman also asserted that Ulwelling had prescribed him Wellbutrin on March 12, 2015, but Dr. Augdahl wrongfully denied the prescription and his necessary mental health care. (Id.) Defendants moved for summary judgment, arguing that Fisherman's Eighth Amendment claim failed as a matter of law because he could not prove that they acted with deliberate indifference to his existing serious medical needs or to conditions positing a substantial risk of serious future harm.

         In recommending that the Court grant the Defendants' motion for summary judgment, the Magistrate Judge noted that “[t]he Eighth Amendment prohibition on cruel and unusual punishment protects prisoners from deliberate indifference to serious medical needs.” (R&R at 9 (quoting Laganiere v. Cty. Of Olmsted, 772 F.3d 1114, 1116 (8th Cir. 2014).) Deliberate indifference, the Magistrate Judge explained, has both an objective and a subjective component. (Id. at 10 (citing Vaugh v. Gray, 557 F.3d 904, 908 (8th Cir. 2009).)[3]

         Although the Magistrate Judge found that there was a fact issue as to whether Fisherman suffered from an objectively serious medical need due to his depression, the Magistrate Judge noted that for the subjective component, there was no evidence in the record that Defendants deliberately disregarded Fisherman's serious medical needs. (Id. at 12.) To the contrary, the Magistrate Judge found the record established that Fisherman's numerous mental health screenings during his incarceration revealed few psychological symptoms. (Id.) The Magistrate Judge found that Fisherman essentially disagreed with “the course of treatment chosen by his mental health care providers - i.e. he was prescribed Effexor XR, rather than his drug of choice, Wellbutrin - which is insufficient as a matter of law to state an Eighth Amendment claim of deliberate indifference.” (Id. at 12-13 (collecting cases).)

         Fisherman timely objected to the R&R and asserted Dr. Aughdal and Ulwelling violated Fisherman's Eighth Amendment right to be free from cruel and unusual punishment by wrongfully interfering with ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.