United States District Court, E.D. Wisconsin
DANIEL L. HANSON, Plaintiff,
HOLLY MEIER, et al., Defendants.
DECISION AND ORDER
LYNN ADELMAN District Judge
Plaintiff Daniel L. Hanson, who is representing himself, is currently incarcerated at Prairie du Chien Correctional Institution. He filed this lawsuit pursuant to 42 U.S.C. § 1983 and was granted leave to proceed in forma pauperis on his claims that defendants were deliberately indifferent to his foot pain in violation of the Eighth Amendment to the U.S. Constitution. On January 20, 2016, defendants filed a motion for summary judgment, which is now fully briefed. In his response to defendants’ motion, plaintiff also requested to amend his complaint to include new defendants based on information he learned only after receiving defendants’ motion. For the reasons stated below, I grant defendants’ motion and dismiss this case.
A. Parties and Claims
Plaintiff is a Wisconsin Department of Corrections (“DOC”) inmate who was confined at Fox Lake Correctional Institution during the time relevant to his claims. (Docket #45 ¶1.) Defendants are current or former employees of the DOC: Holly Meier is a Nursing Supervisor (also known as a Health Services Unit Manager) at Fox Lake (Docket #45 ¶2); Jody DeRosa was the Bureau of Health Services Nursing Coordinator at Fox Lake (Docket #45 ¶5); Scott Hoftiezer is a physician at Dodge Correctional Institution and holds the position of Associate Medical Director of the Bureau of Health Services (Docket #45 ¶10); and Randall Hepp is the Warden at Fox Lake (Docket #45 ¶12).
Plaintiff claims that defendants violated the Eighth Amendment by refusing to refer him to a podiatrist despite the allegedly debilitating pain in his feet.
B. Medical Requests at Fox Lake
Generally, if an inmate requires non-emergency medical attention, he must submit a Health Services Request Form (“HSR”) to the Health Services Unit (Health Services). (Docket #45 ¶19.) Nursing staff triage the HSRs daily and schedule inmates to go to sick call, as needed. (Docket #45 ¶20.) Sick call is held every weekday. (Docket #45 ¶20.) Meier, the Nursing Supervisor, does not review every response sent to inmates by Health Services staff. (Docket #45 ¶21.)
When an inmate makes a “special needs request” for items not normally given to an inmate in the normal course of business, the Fox Lake Special Needs Committee reviews the special needs request to determine whether the requested item is medically necessary. (Docket #45 ¶¶23-24.)
C. Hanson’s HSR Requests Answered by Meier
Plaintiff submitted numerous HSRs in connection with his foot pain (in addition to many other ailments). On March 16, 2011, he requested flat-soled shoes. (Docket #45 ¶25; Docket #1-1 at 23, 24.) That same day, Meier notified Hanson that he would be scheduled for a foot evaluation in Health Services. (Docket #45 ¶25; Docket #1-1 at 23.) In February 2012, plaintiff made a special needs request for Velcro soft-soled shoes; the Fox Lake Special Needs Committee approved this request on February 28, 2012 (they approved another new pair of Velcro shoes on April 12, 2013). (Docket #45 ¶¶26-27; 33.) On March 20, 2012, plaintiff requested gel inserts for his shoes. (Docket #45 ¶30.) Meier responded that his treating physician had not ordered foot orthotics and that Health Services did not have gel inserts. (Docket #45 ¶30-31.) She informed him that he could purchase gel inserts through the canteen. (Docket #45 ¶31.)
On April 9, 2012, plaintiff inquired about x-ray results. (Docket #1-1 at 30.) He asked, “How did the x-rays turn out on my two feet? The pain is still unbearable. ‘Please’ find out what the x-ray’s [sic] revealed about my toe’s [sic].” (Docket #1-1 at 30.) The radiology report for both feet indicated that, “The ossification is normal . . ., including the tarsal bones. There is mild degenerative joint disease seen. There is no fracture, dislocation, or soft tissue swelling. No osteomyelitis is seen.” (Docket #1-1 at 28-29.)
On April 12, 2012, plaintiff requested that he be allowed “to be fitted with a wider shoe with flat sole bottom shoe so [his] toe’s [sic] do not have to bend with every step because [t]he pain is too much.” (Docket #1-1 at 31.) A non-defendant nurse referred the request to a supervisor.
On February 27, 2013, plaintiff requested an appointment with a doctor because of pain in his big toes. (Docket #45 ¶32.) Meier informed plaintiff that he would be seen on March 14, 2013, by a Health Services physician. (Docket #45 ¶32.)
On April 16, 2013, plaintiff submitted four HSRs in which he described an “on-going pain issue.” (Docket #1-1 at 17, 18, 20, 21.) He asked to be fit for a “special shoe” and explained that both big toes were “bad with arthritis.” (Docket #1-1 at 17.) He also said, “Both feet & big toe’s [sic] pain [Cortisone] shot’s [sic] not working.” (Docket #1-1 at 18; Docket #49-1 at 12.)
On April 20, 2013, plaintiff submitted an HSR in which he stated, “The prison shoe is not helping my feet at all-they are making it worse. I can hardly walk anymore. ‘The pain is excruciating’!” (Docket #1-1 at 16.) A non-defendant nurse responded about a week later, referring the complaint to an Health Services supervisor. (Docket #1-1 at 16.)
Hanson followed up on a special needs request on May 4, 2013, which Meier responded to that same day. (Docket #45 ¶34.) In that request he indicated he was having pain issues in both big toes and over-swelling of his joints. (Docket #1-1 at 15.) On June 6, 2013, Hanson requested different sized insoles because the one previously given to him were too small. (Docket #45 ¶35.) Meier responded on June 11, 2013, and informed him that the correct size was being ordered. (Docket #45 ¶35.)
In May 2014, Meier began an extended medical leave; she did not return to the institution until August 11, 2014. (Docket #45 ¶36.) During her leave she did not have access to inmate medical records, and she was not informed of any inmate complaints concerning Health Service. (Docket #45 ¶36.)
E. Hanson’s Class III Request
On May 14, 2014, the plaintiff’s treating physician at Fox Lake (not a defendant) submitted a Prior Authorization for Therapeutic Level of Care form, otherwise known as a Class III request, to the Bureau of Health Services Class III Utilization Review Committee (the “Committee”). (Docket #45 ¶37.) The treating physician, who was also a member of the Committee, asked the Committee to refer plaintiff to a podiatrist based on plaintiff’s reported foot pain, his complaints about his treatment options at Fox Lake, and his request to see a podiatrist. (Docket #45 ¶37.) The treating physician noted in his request that plaintiff “states he is missing out on the benefits of regular walking because he can’t tolerate the pain in his MTP joints. He states his shoes do not have enough support.” (Docket #1-1 at 1.) The treating physician also noted that plaintiff’s “gait was not guarded and he seems to bear weight well. Past x-ray findings have been consistent with osteoarthritis.” (Docket #1-1 at 1.)
On May 14, 2014, the Committee consisted of the following medical providers: Dr. William Kelley, Dr. Burton Cox, Dr. Mary Suavey, Dr. Charles Larson (plaintiff’s treating physician), Dr. Jeffrey Manlove, Dr. Meena Joseph, Nurse Practitioner Dmitriy Chester, and Nurse Practioner Nancy Garcia. (Docket #45 ¶45.) Hofteizer chairs the Committee along with Dr. Kelly O’Brien. (Docket #45 ¶47.)
The Committee discussed the Class III request with the treating physician, who made a verbal presentation and answered questions from the Committee. (Docket #45 ¶48.) Hoftiezer recalls that plaintiff presented with bilateral degenerative arthritis of his big toes. (Docket #45 ¶49.) However, his toes lacked more concerning signs or symptoms such as inflammation, infection, or other disease processes that could threaten plaintiff’s health. (Docket #45 ¶49.) Hoftiezer states that plaintiff’s “feel” showed minimal to no dysfunction and plaintiff was able to carry out the acts of daily living. (Docket #45 ¶49.) The Committee unanimously decided not to refer plaintiff to a podiatrist because plaintiff had a fairly normal physical exam and was functional and there was no medical need for orthotics. (Docket #45 ¶53.) Defendants state that the cost of the treatment was not a factor in the Committee’s decision to deny the Class III request. (Docket #45 ¶ 56.)
Plaintiff disputes this characterization. He argues that defendants knew his condition was degenerative (based on x-rays that were taken in March 2012) and therefore worsening over time and causing him pain. (Docket #59 at 7, 14; Docket #1-1 at 28-29.) He states that the pain was so bad that he cried at times and so constant that he had trouble sleeping. (Docket #59 at 7.) He explains that “this activity of walking every step, every day became a challenge to endure the pain from walking.” (Docket #59 at 8.) He claims that the Committee knew of his pain because they had access to the many HSRs he filed. (Docket #59 at 7.) Plaintiff also states that, after the Committee denied the request, his treating physician told him that “the prison is trying to save money on medical expenses.” (Docket #1 at 7.) (The treating physician denies making this statement. (Docket #45 at 57.))
The Committee decided to allow plaintiff to obtain his own personal shoes to see if that resolved his pain. (Docket #45 ¶51.) Defendants state that plaintiff “had the capacity to obtain his own shoes.” (Docket #45 ¶51.) Although not clear, it appears that defendants mean plaintiff had adequate funds to purchase his ...