United States District Court, E.D. Wisconsin
MARCUS D. HAWKINS, Plaintiff,
WILLIAM POLLARD, et al., Defendants.
DECISION AND ORDER
ADELMAN District Judge
plaintiff, Marcus D. Hawkins, who is representing himself, is
currently incarcerated at Waupun Correctional Institution. He
filed this lawsuit pursuant to 42 U.S.C. § 1983 and was
granted leave to proceed on his claims that defendants
Belinda Schrubbe, Brian Greff, Nicole Kamphuis, Lori Alsum,
and Tonia Moon were negligent and deliberately indifferent to
his medical needs because they denied his requests to
purchase shoes from a non-approved vendor. Plaintiff was also
allowed to proceed on a claim that defendant William Pollard
failed to intervene to prevent the violation of
plaintiff's rights. Before me now are parties'
cross-motions for summary judgment.
relevant facts are taken from “Defendants' Reply to
Plaintiff's Response to Defendants' Proposed Finding
of Fact” (ECF No. 48) and “Defendants'
Response to Plaintiff's Proposed Findings of Fact”
(ECF No. 44).
2006, while in the custody of the Wisconsin Department of
Corrections (DOC), plaintiff saw an orthopedic surgeon, Dr.
Lang, because of knee pain. Dr. Lang twice recommended that
plaintiff wear his own shoes rather than DOC shoes. In 2007,
Dr. Lang also recommended a heel lift for plaintiff's
right shoe because plaintiff's legs are different
time, prisoners could purchase personal property items (like
shoes) from any outside vendor but were only allowed to
receive and keep those items that met applicable security
guidelines. In December 2007, DOC implemented a new system,
under which prisoners could only order personal property
items from approved vendors. Such items were pre-approved to
meet applicable security guidelines, which ensured that
plaintiffs could receive and keep items that they purchased.
February 2008, plaintiff was given modified shoes from the
Aljan Company, an off-site provider of orthotic services with
which DOC works to provide orthopedic devices and footwear to
prisoners with special foot care needs.
was transferred to Waupun Correctional Institution (Waupun)
in July 2009. His modified shoes were discarded during the
transfer. That August, he was seen by a physician in
Waupun's Health Services Unit (HSU) for low back pain. In
December 2011, he complained of back and foot pain. He saw a
nurse practitioner in the HSU, who wrote an order for a
temporary shoe insert and a request to Aljan for
modifications to plaintiff's right shoe.
2012 to 2015, plaintiff was seen in the HSU multiple times
for complaints related to his footwear, including low back
pain, side pain, foot pain, numbness and tingling in his feet
and toes, and discomfort. Healthcare providers in the HSU
told plaintiff to reduce his physical activities (and, then,
to increase them slowly), perform stretching exercises, and
use ice. They also repeatedly referred plaintiff to Aljan for
modifications to his shoes. Despite receiving several pairs
of shoes and repeated shoe modifications, such as heel lifts
and custom orthotic inserts, from the HSU and Aljan in
response to his complaints, plaintiff continued to complain
that his footwear was causing pain and limited his ability to
engage in physical activity, particularly basketball.
December 2014, plaintiff submitted an interview/information
request, in which he asked, “Why am I not allowed to
order better shoes from an outside vendor when it's
documented that I shouldn't be wearing anything from
Corrections?” ECF No. 48, ¶ 66. The request was
forwarded to Waupun's Special Needs Committee, then made
up of defendants Belinda Schrubbe, Brian Greff, and Nicole
Kamphuis, which reviewed inmate requests for medical-needs
exceptions to the general DOC policy requiring inmates to
order personal property items from approved vendors. Such
requests were reviewed in light of medical and security
concerns. The Special Needs Committee sent plaintiff a memo
noting that there were adequate shoe options available from
approved vendors “that have the support of Aljan for
inmates with foot troubles.” Id. ¶ 67.
January 2015, plaintiff sent a letter to defendant William
Pollard, Waupun's warden, arguing that he was not allowed
to order adequate athletic shoes. Pollard referred the letter
to Schrubbe, who responded to plaintiff, saying that the
custom inserts he had would fit in any of the shoes available
from approved vendors and that there was no medical need for
him to purchase shoes from a non-approved vendor.
February 2015, plaintiff filed an official complaint, stating
that he was not allowed to order shoes from a non-approved
vendor. Defendant Tonia Moon, an Institution Complaint
Examiner, processed the complaint and found it untimely
because it was filed more than fourteen days after the
Special Needs Committee denied plaintiff's request the
previous December. Pollard reviewed the complaint and found
that it was appropriately rejected.
March and April 2015, after being seen in the HSU and by a
physician at Aljan, plaintiff received new custom orthotic
inserts and new shoes. A few weeks later, plaintiff wrote to
HSU, “I'm requesting that I be allowed to order
shoes outside of corrections. Attached is a copy of two of my
surgeons  order. I have orthopedic shoes, but I'm
limited because I can only do so much in them.”
Id. ¶ 73 (alteration in original).
2015, he again complained that his shoes did not comply with
his surgeon's 2006 recommendations. Plaintiff filed
another official complaint stating that he should be able to
order shoes from an outside vendor, which Moon again rejected
as untimely. Defendant Lori Alsum, a Health Services Nursing
Coordinator employed by the DOC's ...