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Shaw v. Wall

United States District Court, W.D. Wisconsin

January 6, 2017

TERRANCE J. SHAW, Plaintiff,


          WILLIAM M. CONLEY District Judge

         In retaliation for a lawsuit he filed against prison staff at Oshkosh Correctional Institution, pro se plaintiff Terrance Shaw claims that he was transferred to Racine Correctional Institution, as well as subjected to other adverse actions. Shaw also claims that his Eighth Amendment rights were violated when he was denied a wheelchair. Before the court are cross motions for summary judgment. After reviewing the parties' submissions, the court concludes that defendants are entitled to summary judgment on all of plaintiff's claims.


         In addition to the cross motions for summary judgment, there are several additional motions that have essentially been rendered moot by the court's ruling. To avoid any argument that either motion might have changed the outcome, however, the court will briefly address them. First, plaintiff filed two motions for assistance in recruiting counsel. (Dkt. #30, 34, 94.) Those motions will be denied because the complexity of this case did not exceed plaintiff's ability to litigate it on his own. See Pruitt v. Mote, 503 F.3d 647, 654, 656 (7th Cir. 2007). Plaintiff has been a strong advocate for himself and demonstrated a clear understanding of applicable law and court procedures. His claims are being dismissed solely because the undisputed evidence does not support his legal theories. Legal representation would not have changed that.

         Second, plaintiff filed several motions seeking assistance with obtaining and/or certifying medical exhibits relating to treatment and tests he received. (Dkts. ##84, 89, 94). Those motions will simply be denied as moot because none of the information contained from those medical exhibits would affect the outcome of the court's decision on the merits. The court is not dismissing plaintiff's claims based on his failure to prove serious medical need or injury. Rather, plaintiff's claims fail because he has failed to prove that any defendant acted with retaliatory motive or deliberate indifference to his medical needs.


         I. Parties and Background

         Plaintiff Terrance Shaw is an inmate at Racine Correctional Institution, where he has been housed since October 13, 2015. Before his transfer, Shaw had been housed at Oshkosh Correctional Institution since April 2004. While at Oshkosh, Shaw was housed in a few different units, including the W Building, where he was housed from December 6, 2012 until his transfer to Racine.

         Defendants include several DOC employees who worked at Oshkosh during this relevant time period: Sandy DeYoung, a social worker; Kathy Sabel and Jennifer Delvaux, unit managers of the W Building; Michael Turner, a correctional officer; Christopher Hunt, a correctional sergeant; and Keith Cook, a correctional sergeant.

         II. Shaw's 2012 Lawsuit

         Oshkosh maintains a canteen, which is an in-house store, where inmates can purchase approved items, such as snacks, personal hygiene products, and writing supplies. Inmates access the canteen according to where they are housed. For those in the W Building, where Shaw was housed from 2012 to 2015, inmates are sent to the canteen in groups of approximately 10 to 12 inmates. The first group to visit the canteen consists of inmates who require special medical accommodations, such as a wheelchair, walker or assistance of an inmate aide, based on medical directives from the Health Services Unit (“HSU”).

         In 2012, Shaw filed a lawsuit against certain Oshkosh staff, Case No. 12-cv-497-wmc, alleging that he was inappropriately put in one of the last groups to go to the canteen because of an alleged disability (“2012 lawsuit”). At the time, Shaw used a wheelchair and an inmate aide to access the canteen, though he did not have medical clearance from HSU for either. None of the defendants in this case were named as defendants in the 2012 lawsuit, although defendant Sabel became aware of that lawsuit in early 2014, when she was asked to provide affidavits regarding some of the issues involving the movement of inmate groups from the W Building to canteen.

         III. Shaw's Excess Legal Documents

         In late 2014, while the 2012 lawsuit was still pending, Shaw's cellmate complained to defendant Sabel that Shaw had too many legal materials and other property in his cell.[2]At that time, according to Shaw, he had about 30 years' worth of property in his cell. Nonetheless, his cell had been searched approximately once per month, and he had never been required to get rid of excess property.

         Under DOC policy, however, there are limitations on the amount of property an inmate can possess for both security and space reasons. With respect to legal property in particular, regulations limit an inmate to that which can fit into a receptacle no larger than 20”x20”x20” or 8000 cubic inches, though the warden can authorize additional storage space on a temporary basis for any inmate who establishes a need for the additional space based on on-going litigation.

         Sabel concluded that she could not allow Shaw to keep his excess legal materials in his cell, because doing so would be unfair to his cellmate and posed a risk to the safety and security of the unit. She also wanted to avoid a situation in which Shaw's cellmate or other inmates became hostile to Shaw because of the excess materials, as permitted space and property are common areas of contention among inmates.

         On September 3, 2014, Sabel, DeYoung and Turner met with Shaw in Sabel's office and advised him that he had too many legal documents in his cell. Shaw was given 5 days to come into compliance with Oshkosh's property policies or receive a conduct report. Although defendants could have given him a conduct report at that point, they decided not to do so because they believed Shaw would make efforts to reduce his property on his own. For his reference, Shaw was even given a 20”x20”x20” legal box to use in determining the permissible amount of legal materials.

         Although Shaw disputes it, defendants also told Shaw he could either (a) send out or dispose of his excess legal documents, or (b) contact the warden for a waiver. Defendants further aver telling Shaw that they would identify a location within the unit to place the “overflow” legal documents on a temporary short term basis if the warden approved a waiver. Shaw denies being told that he could contact the warden for a waiver, but concedes that this option is set forth in the prison's property policies and that those policies were available for his review. He also concedes that DeYoung, Sabel and Turner did not tell him that he had to destroy his documents.

         Within the next few days after the September 3 meeting, Shaw started disposing of legal property on his own. By September 10, Shaw had removed and discarded the excess legal materials from his cell in prison trashcans. Shaw ultimately claims he destroyed 36, 000 pages of legal papers. Shaw later filed a document in the 2012 lawsuit claiming that Sabel and DeYoung had forced him to destroy his litigation documents. Neither Sabel nor DeYoung found out about Shaw's filing, however, until after Shaw settled that lawsuit and filed this one.

         IV. Settlement of the 2012 Lawsuit and Shaw's Access to the Unit Wheelchairs

         The W Building has 4 wheelchairs that inmates with documented medical needs may use to travel to and from other areas of the prison, including the library and canteen. In order for an inmate to be assigned an inmate aide and/or a wheelchair under prison policy, he must be disabled or have a special need as determined by HSU. If HSU further determines that an inmate needs assistance with the wheelchair, the inmate who is employed on the unit as an aide will push the inmate's wheelchair. The disability and/or special need must be documented in the inmate's medical records.

         During the course of the 2012 lawsuit, Oshkosh Warden Judy Smith, who is not a party to this action, found out that unit staff permitted Shaw to use a wheelchair and an aide occasionally without proper medical authorization. According to Shaw, he used the wheelchair and inmate aide to assist him whenever he had to travel long distances or carry his canteen purchases. Defendant Hunt, who worked on Shaw's unit, was aware that Shaw occasionally used the wheelchair. Hunt never denied Shaw access to the wheelchair.

         To settle the 2012 lawsuit, Warden Smith and others sought to put Shaw in the disabled group of inmates that use a walker or wheelchair, and accordingly were allowed to go first to canteen. The easiest way to qualify Shaw for that group was to get medical clearance from HSU for his use of a walker or wheelchair. That way, Shaw would be in compliance with prison policy and it would not look to other inmates like Shaw was receiving special treatment. Shaw was thus asked to be assessed by the HSU in order to get the appropriate medical clearance that would qualify him to go to the canteen with the first group of disabled inmates. Shaw agreed to this.

         The HSU manager then asked Nurse Nancy Bowens to evaluate Shaw to determine if he needed any adaptive devices. Such evaluations -- regarding whether inmates need any type of special accommodation or adaptive devices based on medical needs -- were a regular part of Nurse Bowens' duties. Nurse Bowens was not told that that the evaluation was relevant to a lawsuit.

         Nurse Bowens evaluated Shaw on June 23, 2015. Shaw told Bowens that he walked approximately one-half mile each day for exercise and that he was able to walk from the W Building to the library without chest pain. Shaw also reported that he would have a twinge in the middle of his chest if he had to make multiple trips back and forth from his unit, but that he responded well to one tablet of sublingual nitroglycerin. Based on the examination and information she received, Nurse Bowens concluded that Shaw needed adaptive devices in the form of state-issued Velcro closure footwear, because he was having difficulties tying his shoes. Bowens also recommended that Shaw see an occupational therapist for a consultation regarding the need for additional adaptive devices.

         Shaw declined the latter recommendation, saying he had multiple pending cases and did not want to risk not being able to attend court on the days that cases were scheduled. Nurse Bowens informed him, and Shaw acknowledged that he understood, that his refusal to see the occupational therapist limited her ability to determine what adaptive devices would be beneficial.

         On June 24, 2015, the day after the assessment, the Unit Manager for the W Building, Jennifer Delvaux, was informed by the HSU manager that Shaw had been evaluated and determined not to need a wheelchair, and that as a result there remained no documented medical reason in his chart for such an accommodation. That same day, Delvaux informed staff on her unit that Shaw should no longer be permitted to use the wheelchair, including Sergeant Hunt. That was the first time Hunt was ordered by a superior not to allow Shaw to use the wheelchair.

         Warden Smith was surprised by Nurse Bowens' determination that Shaw did not need a wheelchair. She nonetheless decided to put Shaw with this first group of disabled inmates for the canteen in order to resolve the 2012 lawsuit. That lawsuit settled on June 25, 2015. The same day, Delvaux informed unit staff that Shaw could go to the canteen with the first group of inmates and that he was to be assisted by an aide in ...

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