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Clark v. Sweeney

United States District Court, W.D. Wisconsin

November 2, 2016

JEREMY CLARK, Plaintiff,


          BARBARA B. CRABB District Judge.

         Pro se prisoner Jeremy Clark filed this civil lawsuit against various prison officials at the Wisconsin Secure Program Facility, alleging that they violated his Eighth Amendment rights by refusing his request for special shoes he says he needs to treat his painful foot condition. Defendants have filed a motion for summary judgment, which I am granting because I conclude that plaintiff has not presented sufficient evidence from which a reasonable jury could find that any of the defendants violated his Eighth Amendment rights. The undisputed facts show that defendants did not ignore plaintiff's foot condition and did not knowingly subject him to a substantial risk of serious harm or to needless pain when they denied his requests to order special personal shoes from non-approved outside vendors. Defendants are entitled to judgment as a matter of law and plaintiff's claims will be dismissed with prejudice.

         I note from the parties' submissions that plaintiff provided no response to many (more than half) of defendants' proposed findings of fact. See generally dkt. ##46, 52. I have treated the unanswered proposed findings as undisputed. Preliminary Pretrial Conference Order (entered October 17, 2015), dkt. #17, (“A fact properly proposed by one side will be accepted by the court as undisputed unless the other side properly responds to the proposed fact and establishes that it is in dispute.”). From the parties' proposed findings and evidence on the record, I find that the following facts are material and not subject to genuine dispute.


         A. Plaintiff's Foot Condition and Initial Prison Treatment

         Plaintiff Jeremy Clark is an inmate in the custody of the Wisconsin Department of Corrections. At all times relevant to this lawsuit, plaintiff was housed at the Wisconsin Secure Program Facility in Boscobel, Wisconsin. At the time of his transfer to the Boscobel facility on May 16, 2013, plaintiff had no special shoe restrictions, but he suffered from bunions and hammertoe that caused him pain in his feet. On May 18, 2013, Dr. Burton Cox of the prison's Health Services Unit wrote plaintiff a prescription for Velcro shoes as an alternative to the regular-issue prison shoes for his bunions and foot pain.

         On May 19, 2013, plaintiff submitted a request to the Health Services Unit asking that he be allowed to buy “better shoes to help support [his] knees and ankles.” The following day, a member of the Unit staff responded that plaintiff could order shoes from the approved vendor list. In accordance with prison property rules, inmates may be allowed to purchase personal shoes, which they can order from the catalogs of approved vendors. These personal shoes may be worn in place of the regular state-issued footwear or in addition to them. For security reasons, prison property rules limit inmates to ordering any such items from one of two approved outside vendors. (In July 2013, in response to a large number of requests from inmates to order athletic shoes from non-approved vendors, prison officials circulated a memorandum to remind all inmates and staff of applicable rules, policies, and procedures regarding the ordering of shoes, including for the treatment of medical conditions.)

         On May 23, 2013, plaintiff submitted another request asking that he be allowed to order personal shoes other than those in the approved-vendor catalog. Staff responded that the Health Services Unit could not approve that request. Dfts.' Reply to Plt.'s Resp. to Dfts.' PFOF, dkt. #52, at ¶¶ 33-38.

         On August 8, 2013, plaintiff saw Dr. Cox about his bunions and foot pain and complained that the Velcro shoes that he had been prescribed and was wearing were not wide enough. Dr. Cox noted that plaintiff would need to get new measurements for proper sizing, and that the Health Services Unit might need to obtain a foot measuring tool from elsewhere. Plaintiff returned to the Unit on October 2, 2013 to have his feet measured. The measurements showed that plaintiff needed a size 12A shoe for his right foot and a size 12C shoe for his left foot. Relying on these measurements, the prison's Business Office ordered plaintiff a new pair of Velcro shoes in size 12C to supplement or replace his existing pair of size 12A Velcro shoes. The new shoes were issued to plaintiff on October 18, 2013.

         Plaintiff continued to complain that his shoes did not fit properly and were causing him pain. On December 2, 2013, Dr. Cox made a request for plaintiff to be seen by a podiatrist at the University of Wisconsin Hospitals and Clinics. Dr. Cox's request was approved later that month. (The parties do not say whether any appointment was scheduled or any further action taken at that time.)

         On December 18, 2013, plaintiff filed a grievance in which he complained that he should be allowed to order personal shoes from a non-approved vendor because of his bunions and his belief that the shoes he had received after the October sizing were too small. The office of the prison complaint examiner, where defendants William Brown and Welcome Rose worked, investigated plaintiff's grievance by contacting the Health Services Unit. Unit staff informed the examiner's office that the problem appeared to be that plaintiff's feet were two different sizes: his right foot was a 12A and his left was a 12C. There was no need for plaintiff to order his own shoes; instead, Unit staff stated, they had contacted the Business Office, which was ordering new shoes for plaintiff. After receiving this information from the Health Services Unit, the examiner's office dismissed plaintiff's grievance. Another new pair of shoes was issued to plaintiff on or around February 9, 2014. (The parties do not say whether or how this pair of shoes differed from those that plaintiff had received previously.)

         After further complaints of foot pain and requests for new shoes in size 12.5, plaintiff returned to the Health Services Unit to have his feet re-measured on March 15, 2014. Prison health records indicate that on that date plaintiff had both feet measured, and that his right foot measured size 13 and his left foot measured size 12. However, plaintiff still insisted that he needed to have size 12.5 shoes. The Health Services Unit did not have any shoes in size 12.5, and plaintiff was offered a new pair of size 13 shoes, but refused them, electing to keep his size 12 shoes instead, even though they appeared to be too small. Plaintiff generally disputes “[t]hat his feet measured at 12 and one 13, they were both 12 ½ EE that's why [plaintiff] insisted on the 12 ½ EE, ” but he does not cite any evidence to support that statement and he does he not allege specifically that prison officials' account of events and measurements is inaccurate. Dfts.' Reply to Plt.'s Resp. to Dfts.' PFOF, dkt. #52, at ¶¶ 41-42; Waterman Decl. Ex. 118, dkt. #42-1, at 16-17, 55.

         B. The Special Needs Committee's Response to Plaintiff's Requests

         At some point prior to April 18, 2014, plaintiff submitted a request to the prison's Special Needs Committee that he be allowed to purchase personal shoes from a non-approved outside vendor. (Neither side has submitted a copy of plaintiff's request or summarized his request with any specificity or identified the date on which it was submitted.)

         The Special Needs Committee is a group of prison officials whose members include health, administrative, security and other prison staff and are appointed by the warden. The committee meets monthly to determine whether an inmate requires a medical restriction or has a special need based on a medical necessity. Membership changes, but the following defendants served on the committee at times relevant to this case: Security Director Jerry Sweeney, Supervising Officer Joni Shannon-Sharpe, Human Resources Director Shirley Gates, Financial Program Supervisor Carrie Sutter, Nurse Kelsey Lund and Nurse Leo Hammer.

         On April 18, 2014, the members of the Special Needs Committee (who at the time were defendants Sweeney, Shannon-Sharpe, Gates, Sutter and Lund) notified plaintiff that his request would be denied. (They did not provide a reason for the denial, but the record suggests that the committee reviewed plaintiff's health records described above on April 18, 2014.) The committee advised plaintiff to order any personal shoes from one of the approved vendors. At that time, the prison allowed two different vendor catalogs that included several different shoe options, styles, and sizes--including sizes 12, 13 and 14, and some wide and extra-wide options.

         On April 17, 2014, plaintiff was approved for a visit to an outside podiatrist to examine his feet and make recommendations. (The parties do not say why plaintiff was not taken to see a podiatrist more quickly, after the earlier request that had been submitted by Dr. Cox and apparently approved in December 2013.) On May 2, 2014, plaintiff was seen by Dr. Jill Migon, a podiatrist at the University of Wisconsin Hospital and Clinics. Dr. Migon's notes indicated that Dr. Cox had asked her for a consultation on plaintiff's bunions and hammertoes. In her recommendation, Dr. Migon stated that plaintiff needed size 12.5EE wide shoes, and wrote: “Please allow him to purchase personal shoes from an outside vendor other than institutional catalog. This should avoid surgery.” Dkt. #42-1, at 42. Dr. Migon also noted that plaintiff's feet had been bothering him for approximately 13 years and that he had been taking several medications for pain. She added that the prison had size 12 or 13 shoes in triple wide, but recommended that plaintiff be allowed to wear size 12.5 double wide, citing plaintiff's own concern that he “be able to purchase a pair of shoes that are 12.5EE as he feels that this would significantly help his foot pain. Currently, he is in the institution shoes that are slightly too wide and he feels fit inappropriately.” Id. at 44. Therefore, Dr. Migon found, “it is appropriate for him to be able to purchase a pair of personal shoes from an outside vendor other than the institution catalog for him to have a bigger selection.” Id.; Dfts.' Reply to Plt.'s Resp. to Dfts.' PFOF, dkt. #52, at ¶¶ 46-50. (Other than plaintiff's stated preference, Dr. Migon did not provide a reason why she was recommending size 12.5EE shoes.)

         On May 23, 2014, plaintiff filed another grievance in which he complained that prison officials were not complying with Dr. Migon's recommendation. Plaintiff also noted that the approved vendors did not carry size 12.5EE shoes, and that he therefore could not obtain his proper size from an approved vendor. The examiner's office rejected plaintiff's grievance, but forwarded a copy to the Special Needs Committee for consideration. Plaintiff also appealed the examiner's decision and it was reviewed by defendant Lori Alsum, a Health Services Nursing Coordinator with the Department of Corrections Bureau of Health Services. Defendant Alsum reversed the examiner's decision and affirmed plaintiff's grievance. She concluded that the prison had an obligation to provide plaintiff a proper-sized shoe, which, according Dr. Migon, was a size 12.5EE. However, defendant Alsum noted, that the recommendation did not necessarily mean that plaintiff was entitled to order extra personal shoes from a non-approved outside vendor. (The parties do not say what, if anything, happened in response to defendant Alsum's decision.)

         On May 29, 2014, plaintiff again saw Dr. Cox, who noted that the Special Needs Committee would be reviewing plaintiff's renewed request to order shoes from a non-approved outside vendor. On June 3, 2014, the committee (now made up of defendants Sweeney, Gates, Sutter, Shannon-Sharpe and Hammer) met again to discuss plaintiff's request. The committee denied plaintiff's request to purchase shoes from a non-approved vendor (again, without providing a reason), and informed plaintiff that the Health Services Unit would provide him appropriately-sized shoes.

         Following the committee's decision, prison officials attempted to find size 12.5EE shoes for plaintiff, but the prison's usual vendors carried shoes in half sizes only up to size 11. In an effort to find the appropriate size, the Business Office ordered shoes in sizes 12EE, 12EEE, 13E and 13EE. Plaintiff refused all of these shoes without trying them on, because they were not the size 12.5 that he believed he needed.

         On July 14, 2014 Health Services Manager Jolinda Waterman received a fax message from Dr. Migon stating that plaintiff “can wear a size 13 shoe.” Dkt. #42-1, at 43. Plaintiff was shown a copy of Dr. Migon's fax message, and after initially objecting and refusing to wear a size 13 or any of the new shoes that had been ordered for him, he eventually agreed at sometime between July 16 and July 18, 2014 to accept and wear the new size 13EE shoes.

         C. Plaintiff's Subsequent Grievances and the ...

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