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Burgess v. Boughton

United States District Court, W.D. Wisconsin

August 23, 2017

EDWARD BURGESS, Plaintiff,
v.
GARY BOUGHTON, DANIEL WINKLESKI, JOLINDA WATERMAN, TANYA BONSON, SONYA ANDERSON, CARRIE SUTTER, ELLEN RAY, JAMES LABELLE, EMILY DAVIDSON, CATHY A. JESS, LEBBEUS BROWN, REBECCA FELDMAN, BETH EDGE, and JON E. LITSCHER, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Pro se plaintiff Edward Burgess is a prisoner in the custody of the Wisconsin Department, currently housed at the Wisconsin Secure Program Facility (WSPF). Burgess filed a complaint alleging that prison officials failed to provide adequate treatment for his plantar fasciitis and bone spurs. I granted Burgess leave to proceed on Eighth Amendment deliberate indifference claims, claims under the Rehabilitation Act, and state-law medical malpractice claims. Dkt. 9 and Dkt. 42. In a July 18, 2017 order, I determined that Wis.Stat. § 893.82(3m) bars Burgess from bringing state-law intentional infliction of emotional distress (IIED) claims in this suit and gave him a short time to choose how to proceed. Dkt. 57. Burgess has responded. Dkt 60. He has also moved for a preliminary injunction, Dkt. 47; for leave to amend his complaint, Dkt. 61; and for an order compelling discovery, Dkt. 59. I will address each of Burgess's filings in turn.

         A. Preliminary injunction

         Burgess moves for a preliminary injunction under Federal Rule of Civil Procedure 65. Dkt. 47. Specifically, he asks the court to order “the prison to treat the plaintiff's ailing conditions of plantar fasciitis and plaintiff's mental health needs.”[1] Dkt. 48, at 1.

         A preliminary injunction is “an extraordinary and drastic remedy” that should be granted only when the movant carries the burden of persuasion by a “clear showing.” Boucher v. Sch. Bd. of the Sch. Dist. of Greenfield, 134 F.3d 821, 823 (7th Cir. 1998) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). To obtain injunctive relief, Burgess must show that (1) he will suffer irreparable harm before the final resolution of his claim without a preliminary injunction; (2) traditional legal remedies are inadequate; and (3) his claims have some likelihood of success on the merits. BBL, Inc. v. City of Angola, 809 F.3d 317, 323-24 (7th Cir. 2015). If Burgess makes this showing, he must further demonstrate that the balance of harms tips in his favor and that the public interest favors the injunctive relief. Id.

         The Prison Litigation Reform Act limits the scope of preliminary injunctive relief in cases challenging prison conditions. Under the PLRA, the injunctive relief to remedy prison conditions must be “narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2); see also Westefer v. Neal, 682 F.3d 679, 681 (7th Cir. 2012). The PLRA also requires the court to “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief.” § 3626.

         Here, Burgess has not shown that he will suffer irreparable harm absent the preliminary injunction he requests. Burgess alleges that defendants are denying him the proper medical care for his plantar fasciitis, but the medical records he submits in support of his motion show that he has been receiving treatment. In March 2017, Burgess was seen by a podiatrist, Michael Jacobs, DPM, who fitted Burgess for new prescription orthotics to treat his plantar fasciitis. Dkt. 48-1, at 10-11. (The medical records indicate that defendants are providing Burgess with other types of medical care, too, see Id. at 1-4, but Burgess's motion focuses on the plantar fasciitis treatment specifically.) Although defendants point this out in their response brief, Burgess does not explain in his reply how receiving new prescription orthotics is not proper treatment for his plantar fasciitis. And the medical records he submits with his reply brief only confirm that defendants are providing him with treatment. See, e.g., Dkt. 58-2, at 4 (indicating that Burgess has been permitted “[b]ilateral orthotic shoe inserts” since April 14, 2017). Perhaps defendants waited too long to treat Burgess, which could result in liability; but right now, the undisputed evidence shows that Burgess is currently receiving adequate medical care. Burgess has not shown that he will suffer irreparable harm without a preliminary injunction.

         Burgess argues that “the continuing deprivation of constitutional rights constitutes irreparable harm.” Dkt. 48, at 4. A continuing constitutional violation may constitute proof of irreparable harm, see Preston v. Thompson, 589 F.2d 300, 303 n.3 (7th Cir. 1978), but not in every case. See e.g., Wheeler v. Talbot, 770 F.3d 550, 552 (7th Cir. 2014) (concluding that a prisoner did not show irreparable harm stemming from an alleged Eighth Amendment violation); see also Back v. Carter, 933 F.Supp. 738, 754 (N.D. Ind. 1996) (reasoning that continuing constitutional violations may not constitute irreparable harm when only monetary damages are alleged). But not every allegation of a constitutional violation automatically fulfills the irreparable harm prong of the preliminary injunction analysis. And here, Burgess has not shown that the alleged constitutional violation is continuing. Instead, as discussed above, even if defendants had been violating the Eighth Amendment by recklessly or intentionally depriving Burgess of appropriate medical treatment, it appears that they are appropriately treating him now. Because Burgess has not shown that he will suffer irreparable harm, I will deny his motion for a preliminary injunction.

         B. Amended complaint

         Burgess asks for leave to amend his complaint to include new claims. Dkt. 61. I must screen Burgess's proposed claims under 28 U.S.C. § 1915A, just as I screened the claims in his original complaint. Burgess's second amended complaint repeats, word-for-word, several claims that I already denied him leave to proceed on. See Dkt. 42. For the same reasons, he still cannot proceed on those claims. I will address separately the two new claims that Burgess wishes to bring.

         First, Burgess asks for leave to bring a new Eighth Amendment claim against Mark Kartman, the security director of WSPF. Burgess alleges that in July 2017, he asked Kartman to renew his medical restriction for medical shoes. Kartman responded that Burgess “ordered medical shoes in January of 2017.” Dkt. 61, ¶ 76. When Burgess asked for clarification, Kartman responded, “per 309.06.01 state issued shoes will be w[o]rn to visitation.” Id. ¶ 78. Burgess does not state an Eighth Amendment claim against Kartman. As I've explained several times before, the Eighth Amendment prohibits prison officials from acting with deliberate indifference toward prisoners' serious medical needs. For a defendant to be deliberately indifferent to a plaintiff's serious medical need, he or she must know of the need and disregard it. Here, Burgess alleges only that he asked Kartman to renew a medical restriction and that Kartman provided him with information in response. These allegations do not establish that Kartman was deliberately indifferent to Burgess's medical need, so Burgess does not state an Eighth Amendment claim against Kartman. Nor can I think of any other federal-law claim that Burgess could bring based on these allegations.

         Second, Burgess asks for leave to bring new Eighth Amendment claims against defendant HSU manager Jolinda Waterman and Mary Lee, a WSPF client services assistant. He alleges that in July 2017, Waterman and Lee obtained Burgess's phone records from Century Link, the company that provides phone service to WSPF, “without a court order or request by the defendant's attorney.” Id. ¶ 81. Again, these allegations do not establish that Waterman or Lee was deliberately indifferent to Burgess's medical need, nor can I think of any other federal-law claim that Burgess could bring based on this allegations. So I will deny Burgess's motion for leave to amend his complaint.

         C. Compelling discovery

         Burgess moves under Rule 37(a) for an order compelling the production of an email attachment. Dkt. 59. Defendants explain that upon receiving notice that this document was missing, they produced it to Burgess. ...


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