United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge United States District
pro se plaintiff, Jeffrey Delane Benson, filed this
lawsuit under 42 U.S.C. § 1983, alleging that the
defendants acted with deliberate indifference to his serious
medical needs in violation of the Eighth Amendment and that
some defendants were negligent in violation of Wisconsin
state law. Benson asserts that the defendants delayed
treating his foot pain caused by diabetes. Specifically,
Benson argues the defendants failed to follow outside
specialists' recommendations that Benson receive a pair
of customized shoes and orthotics to decrease his foot pain.
He claims that the defendants' delay in ordering this
footwear resulted in ongoing pain. Before the court is
Benson's motion for a preliminary injunction ordering the
defendants to follow the orders from the specialists, to stop
putting his medical issues on hold, and to give him
medication to help with his pain and discomfort. (ECF No. 1
at 14.) For the reasons explained below, the court will deny
obtain preliminary injunctive relief, the plaintiff must show
that (1) his underlying case has some likelihood of success
on the merits, (2) no adequate remedy at law exists, and (3)
he will suffer irreparable harm without the injunction.
Wood v. Buss, 496 F.3d 620, 622 (7th Cir. 2007). If
those factors are shown, the court must then balance the harm
to each party and to the public interest from granting or
denying the injunction. Id.; see also Korte v.
Sebelius, 735 F.3d 654, 665 (7th Cir. 2013).
response to Benson's motion, the defendants provided a
declaration detailing the medical care Benson has received
relating to his diabetes and foot pain. (ECF No. 22.) The
declaration of Danielle Foster, the Oshkosh Correctional
Institution's (OSCI) health services manager, indicates
that Benson is on a diabetes treatment plan consisting of
annual diabetic foot examinations, regular follow-up
appointments to monitor his diabetes, and any additional
appointments he requests. (Id., ¶ 5.) In June
2014, Dr. Jill Migon, a podiatrist at the University of
Wisconsin podiatry clinic, diagnosed Benson with with
diabetes mellitus with neuropathy and pes planus with foot
pain. She recommended Benson wear “extra-depth diabetic
type” shoes and customized orthotics. (Id.,
¶ 10.) Benson received bilateral custom orthotic inserts
for his state-issued shoes from Aljan Company in December
2014. (Id., ¶ 13.) Along with his state-issued
shoes, Benson owned two pairs of personal shoes.
(Id., ¶ 12.) Benson requested alternative state
footwear, but a special needs committee at OSCI denied his
request in March 2015. (Id., ¶ 14.)
received a new pair of state-issued shoes in May 2015 and a
pair of state-issued boots in November 2015. (Id.,
¶ 15.) On January 19, 2016, Benson was sent to Aljan to
modify his inserts to fit his state-issued boots.
(Id., ¶ 16.) Benson returned to Aljan on May
24, 2016 to ensure his orthotics fit in his shoes.
(Id., ¶ 17.) On May 31, 2016, a special needs
committee approved Benson's request for alternative
footwear. (Id., ¶ 19.)
his alternative footwear was not actually ordered following
the special needs committee's approval. (Id.,
¶ 20.) The defendants first discovered this error in
preparing their response to Benson's motion for a
preliminary injunction. On March 2, 2017, Foster talked with
Benson about his shoe needs and explained that OSCI's
failure to order his shoes was related to the retirement of
the officer responsible for ordering inmate shoes.
(Id., ¶¶ 21-22.) Foster and Benson agreed
he should receive 12.5 Propet shoes, and Foster sent an order
for the shoes the same day. (Id., ¶ 23.)
Benson's shoes have now been ordered by OSCI.
Accordingly, Benson's motion is denied as moot.
the issue was not moot, Benson's motion would be denied
because he has failed to demonstrate a likelihood of success
on the merits. This case raises the question of whether
failing to provide orthopaedic footwear constitutes cruel and
unusual punishment. In other words, does the defendants'
failure to timely order alternative footwear for Benson rise
to the level of creating the “unnecessary and wanton
infliction of pain” that violates the Eighth Amendment?
See Duckworth v. Ahmad, 532 F.3d 675, 678-79 (7th
Cir. 2008). Based upon the record before me, it appears the
defendants have made efforts to accommodate Benson's
medical needs by providing him multiple pairs of state-issued
shoes and boots as well as sending him to foot specialists to
receive treatment and orthotics. These previous efforts show
the absence of any deliberate indifference by the defendants.
Instead, the circumstances of this case demonstrate at most
negligence that has caused him some discomfort. For these
reasons, Benson's motion for a preliminary injunction is
THEREFORE ORDERED that Benson's motion for a preliminary