United States District Court, W.D. Wisconsin
KWESI B. AMONOO, Plaintiff,
WASHETAS, et al., Defendants.
OPINION AND ORDER
STEPHEN L. CROCKER MAGISTRATE JUDGE.
Kwesi B. Amonoo, proceeding pro se, has been granted
leave to proceed on claims that various medical and
non-medical staff members at the New Lisbon Correctional
Institution (NLCI) violated the Eighth Amendment and state
law by denying him appropriate footwear for his foot
conditions and failing to treat injuries he claims he
sustained as a result of the denial of that footwear. Before
the court is defendants' motion for summary judgment,
dkt. 35, which I am granting in part and denying in part.
denying summary judgment as to Dr. Syed, a prison physician.
There are material facts in dispute concerning whether Amonoo
complained of severe pain when he saw Syed on December 8,
2014; if Amonoo's version of events is credited, then
Syed's failure to order any treatment for Amonoo may have
been deliberate indifference or medical malpractice.
granting summary judgment to all defendants except Dr. Syed.
Amonoo has failed to produce evidence from which a reasonable
jury could conclude that any of these defendants was
deliberately indifferent to his foot condition. Amonoo's
state law negligence claims as to the non-doctor defendants
must be dismissed because Amonoo did not comply with
Wisconsin's mandatory notice of claim statute. Finally,
Amonoo's medical malpractice claim against Dr. Hoffman
must be dismissed because Amonoo has not identified an expert
to establish the standard of care. Unlike his claim against
Dr. Syed, Amonoo's negligence claim against Dr. Hoffman
is not one in which common knowledge affords a basis for
the parties' proposed findings and evidence on the record,
I find that the following facts are material and not subject
to genuine dispute, unless otherwise indicated.
Kwesi Amonoo was incarcerated at New Lisbon Correctional
Institution (NLCI) at all relevant times.
the defendants state employees who worked at NLCI at the
relevant times. Defendant Lynn Washetas is a program director
and was a member of the prison's Special Needs Committee.
Jean Felber and Carol Walter were nurses and served on the
Special Needs Committee. Mathew Martinson is a supervisor on
the security staff and was a member of the Special Needs
Committee. Defendant James Eggers is a correctional officer.
Defendant Todd Forsythe is a lieutenant. Defendant Brendan
Ingenthron is an inmate complaint examiner. Dr. Salam Syed
and Dr. Karl Hoffman were physicians at NLCI during the
relevant time period. Candace Warner is the director of the
Health Services Unit, Diane Fladhammer is a captain, and
Sally Wess was the Corrections Management Services Director.
2004 and 2006, before he arrived at NLCI, Amonoo was
diagnosed with plantar fasciitis, an inflammation of the band
of tissue that runs across the bottom of the foot that causes
heel pain. Plantar fasciitis is most common in athletes,
overweight people and people with inadequate shoe support.
Conservative treatment options include rest, ice, stretching
and pain relievers such as ibuprofen or naproxen. More
intensive treatments include physical therapy, night splits
and orthotics, which help distribute weight and pressure more
evenly across each foot.
2011, Amonoo transferred from Red Granite Correctional
Institution to NLCI. NLCI has these rules about to shoes,
which it has set forth in its inmate handbook:
b. Inmates must wear state-issued shoes on all off-site trips
c. Inmates may order personal shoes from the approved vendor
d. The DOC does not issue, purchase or authorize special shoe
purchases if the inmate is able to wear regular, common shoes
available from one of the approved vendor catalogs . . . .
e. Customized orthotics, lifts, etc. are fabricated to go
into state shoes for which they have been fitted. If inmates
wish to have orthotics in their personal shoes, they must
order a size in which the device will fit.
f. Special shoes, such as diabetic shoes, are only issued if
an inmate is unable to wear regular shoes as deemed medically
security reasons, NLCI requires inmates to wear state-issued
shoes during all offsite trips and when they meet with
visitors at the institution. Inmates who wear prison clothes
and shoes are more easily identified on offsite trips. Also,
if an inmate's personal property is lost or stolen while
he is offsite, then NLCI would incur the cost of replacing
the item. When inmates have visitors, NLCI is concerned that
contraband might be introduced into the facility by a covert
shoe-swap, a possibility that is minimized if inmates must
wear their state-issued shoes. Because of these security
concerns, an inmate can be excused from wearing state-issued
shoes on visits and offsite trips only if he has a documented
medical restriction or written permission from the security
may buy shoes from outside NLCI, but prison rules require
that they order them (and all personal property) from vendors
pre-approved by the Wisconsin Department of Corrections
(DOC). The DOC provides catalogs for three approved vendors:
Union Supply, JL Marcus and Access. These vendor catalogs
provide an array of athletic shoe options in various widths,
sizes and brands, including Nike and New Balance. Although
inmate purchases from non-approved vendors can be authorized
on a case-by-case basis, property so purchased still must
conform to NLCI's security guidelines.
Medical Care for Amonoo's Plantar Fasciitis, July
2013, Amonoo was seen by Dr. Lewandoski, one of NLCI's
advanced care providers. Dr. Lewandoski noted that
Amonoo's orthotics had worn out. Dr. Lewandoski, who is
not a defendant in this lawsuit, referred Amonoo to
Dr. John Finnell, an offsite consulting podiatrist, for
consultation and replacement of the orthotics.
saw Dr. Finnell on September 9, 2013. Dr. Finnell diagnosed
him with plantar fasciitis, bunion deformities and flat feet
in both feet. Dr. Finnell had Amonoo casted for new orthotics
and provided him with plastic night splints. Dr. Finnell also
recommended that Amonoo order a pair of extra depth shoes to
accommodate the orthotic devices and his bunion deformities.
Dkt. 38-1, exh. 1000-201. The orthotics were designed to be
approximately the same thickness as the removable insoles in
commercial athletic style shoes. Decl. of John Finnell, dkt.
39, at ¶12.
offsite specialist like Dr. Finnell makes a medical
recommendation for an inmate's treatment, it is reviewed
by the inmate's treating physician at the institution. If
the prison physician agrees with the recommendation, then he
or she will write an order implementing the recommendation.
The treating physician is not bound by the recommendations of
the consulting physician or therapist. The treating physician
may adopt or reject any or all of the recommendations in
light of the treating physician's own medical judgment
and security and other institutional concerns.
September 12, 2013, Dr. Lewandoski approved Dr. Finnell's
prescription for bilateral night splints and custom
orthotics. Dr. Lewandoski wrote an order stating that
“Patient is to order extra-depth shoes to accommodate
orthotics.” The next day, a nurse from NLCI's
Health Services Unit (HSU) sent Amonoo a memo telling him to
“order an extra-depth pair of shoes to accommodate your
orthotic devices and your bunion deformities. You can order
these out of the vendor catalogues following property
returned to see Dr. Finnell on October 7, 2013. Amonoo had
not yet purchased extra-depth shoes to accommodate his
orthotics. Dr. Finnell wrote an order stating that Amonoo
“is to wear athletic style shoe (i.e. New Balance or
Nike) to accommodate orthotics.” Dkt. 38, exh.
1000-200. In Dr. Finnell's transcribed note from that
visit, a copy of which was sent to NLCI, Dr. Finnell stated
that he had advised Amonoo to stop wearing state-issued shoes
and to wear an “athletic style shoe, such as a
New Balance or Nike, to accommodate the orthotics.”
Id. at exh. 199 (emphasis added).
follow up visit on December 23, 2013, Amonoo told Dr. Finnell
that the orthotics were helping, but that he still had pain
with activity and especially when he was wearing the
state-issued boots. Dr. Finnell again advised Amonoo to stop
wearing the state-issued boots and to wear an athletic-style
shoe. Id. at 197. That same day, Amonoo filed a
request to see a prison doctor about Dr. Finnell's
recommendation. On December 24, 2013, a nurse responded that
an appointment to discuss the recommendation had been
scheduled for the following month.
January 8, 2014, Amonoo was seen by a nurse in HSU. Amonoo
was wearing his personal shoes without his orthotics and the
nurse observed that he walked without difficulty. Amonoo told
the nurse that he changed his shoes between his state-issued
boots and his personal shoes two or three times a day, and
that he had ordered a second pair of personal shoes. Amonoo
reported that his feet hurt when he wore the state boots. The
nurse ordered a physical therapy evaluation and advised
Amonoo to alternate his sets of personal shoes when the
second pair arrived and to wear his orthotics. After
consulting with Dr. Lewandoski, the nurse told Amonoo that
the doctor would not be issuing a directive to discontinue
Amonoo's state-issued boots because, for security
reasons, Amonoo was required to wear state-issued boots when
Amonoo had visitors and when Amonoo was transported offsite.
Id., dkt. 38-1, Exh. 1000-73-74, 227.
saw Dr. Lewandoski the next day, January 9, 2014. Amonoo
reported that his plantar fasciitis pain had gotten worse
because he didn't have any shoes, state or personal, that
accommodated his custom orthotics. He said the orthotics
raised his foot too high in regular state boots so he needed
the high top ones. Amonoo reported that he had ordered a pair
of personal shoes that had not yet arrived. Dr. Lewandoski
wrote an order directing the property department “to
issue high top boots to fit orthotics” and gave Amonoo
lace-up ankle supports. Dkt. 38-1, Exh. 1000-71.
James Eggers is the intake officer in charge of distributing
inmate property. Per Dr. Lewandoski's order, Eggers
issued a pair of high top state boots to Amonoo. Although it
is the institution's policy to distribute good, useable
shoes before new ones are issued, Eggers issued new boots to
Amonoo because no used boots were available.
had a follow up visit with Dr. Finnell on February 3, 2014.
Amonoo reported that he had been wearing orthotics daily,
performing stretching exercises and receiving physical
therapy. Dr. Finnell again recommended that Amonoo
“discontinue wearing the state-issued boots and only
wear athletic style shoes with his orthotics at the
correctional facility.” Decl. of Candace Warner, dkt.
38-1, Exh. 1000-186.
February 6, 2014, Amonoo received a pair of Nike high top
shoes that he had ordered from Eastbay, a non-approved
vendor. The property receipt includes a notation stating
“okay per special needs.” Dkt. 57-1, Exh. 3. It
is unclear who wrote this notation or who authorized the
purchase. (The evidence of record does not contain any notes
or records from the Special Needs Committee showing that it
had granted Amonoo permission to order shoes from a
March 31, 2014, April 3, 2014, June 12, 2014 and August 19,
2014, Dr. Finnell administered injections into Amonoo's
feet to reduce the pain.
March 6, 2014 Meeting with Fladhammer and Warner
March 6, 2014, Amonoo had an appointment with Dr. Lewandoski
to discuss Dr. Finnell's recommendation that he
discontinue wearing state-issued boots. Amonoo said the state
boots were too tight and the heels too high for his
orthotics. Once again, Dr. Lewandoski noted that state boots
were required for visits and offsite appointments. Dr.
Lewandoski called Candace Warner, the HSU manager, to join
this meeting to discuss the security policy with Amonoo,
noting that “this discussion was beyond [her] medical
purview.” Dkt. 38-1, exh. 1000-071. Because the
footwear policy implicates security concerns, Warner called
Diane Fladhammer, the HSU security liaison, into the meeting.
parties dispute what was said at this meeting. According to
Warner and Fladhammer, they simply told Amonoo that
institution policy required inmates to wear state boots
during visits and during offsite trips, unless the inmate had
a medical restriction or had permission from the security
director. Amonoo, however, alleges that Fladhammer and Warner
asked him how many visits he goes on a weekly basis and then
told him, “You're a big guy. Deal with the pain and
wear the state boots.”
Warner nor Fladhammer is authorized to issue a medical
restriction for an inmate or to grant an exception to the
state shoes requirement.
Special Needs Committee
26, 2014, Amonoo submitted a Health Services Request
(“HSR”) form and asserted that his rights were
being violated because he was being “forced” to
wear state boots even though he had a medical condition that
prevented him from wearing them. The HSR was referred to the
Special Needs Committee. The Special Needs Committee is
comprised of one or more staff members from the prison's
Health Services Unit, one staff member from prison security
and one non-security staff member. The Committee's
purpose is to determine whether a particular medical
restriction or special need requested by an inmate or a
practitioner is medically necessary, taking into account,
among other things, the security level and physical
environment of the facility. Prescribing practitioners at the
institution are supposed to refer items to the committee for
review rather than write orders for specific items. When the
committee receives a special needs request, each committee
member reviews the request and makes a recommendation based
upon his or her role at the prison. If the requested item is
not medically necessary, it will be denied. Bureau of Health
Services Policy and Procedure #300.07, attached to Decl. of
Candace Warner, dkt. 38, at exh. 1001.
for special shoes are covered under Appendix 1 to BHS Policy
and Procedure #300.07. Specifically, Appendix 1 states, in
Bureau of Health Services/Health Services Unit provides
customized special medical orthopedic shoes (one that require
special customization and fabrication that are made from a
mold or plastic cast specifically for the individual at an
orthotic company). Customized orthopedic shoes shall be
replaced as determined necessary when showing signs of heavy
wear, or no longer cover the foot. A Class 3 authorization
submitted from the requesting medical provider to the
appropriate Bureau of Health Services reviewer is required
for all medical orthopedic shoes obtained from an orthotic
Health Services Unit does not issue, purchase, or authorize
special purchases if the inmate is able to wear regular shoes
(common shoes that can be purchased from a store or catalog).
Inmates should be encouraged to purchase their own personal
shoes. If a patient is not able to wear the State supplied
footwear due to a significant medical condition (i.e.
diabetic with foot ulcers or need for Velcro shoes due to a
CVA for independent ADL) and provision of an alternative off
the shelf shoe is necessary, the facility shall provide an
alternative. These cases are to be very limited and
determined on a case by case basis through the established
Health Services Unit will not get involved with ordering
extra pairs of personal shoes. Property guidelines shall be
Tennis shoes shall not be ordered by the Health Services
Unit. Inmates/youths can order tennis shoes according to the
property rules. Facility accommodations and exceptions can be
made at the facility level and not through Health Services
Unit if special situations arise (intake facilities).
time of Amonoo's request, the Special Needs Committee
members were nurses Jean Felber and Carol Walter, Lt. Mathew
Martinson, a security staff supervisor, and Lynn Washetas, a
non-security program supervisor. Felber and Walter had access
to Amonoo's medical records and provided information
about his medical condition to the other committee members.
The committee determined that Amonoo's medical chart did
not have either a medical restriction or a justification for
a special accommodation that would require Amonoo to wear
personal shoes at all times or that would excuse Amonoo from
wearing state-issued footwear for visits and for offsite
trips. The only restrictions regarding Amonoo's foot
condition as of August 2014 was Dr. Lewandoski's order
for custom-made orthotics, for night splints for Amonoo to be
allowed to order extra-depth athletic style shoes to
accommodate his orthotics. Accordingly, on August 21, 2014,
the committee denied Amonoo's request. Addressing Amonoo,
the committee wrote: “Your orthotics were designed to
fit in your state issued shoes and should work fine in other
sets. There is no need to wear pers[onal] shoes offsite or to
Eggers, Forsythe and Ingenthron
October 2014, Amonoo's state-issued boots were stolen.
Eggers contacted Amonoo to come to intake to pick up
replacement boots. Eggers offered Amonoo a pair of used
boots, but Amonoo refused. Amonoo demanded a new pair,
asserting that he had to have new boots because of his foot
problems. Eggers responded that Amonoo would be charged for a
new pair if he did not accept a used pair in good condition.
Amonoo took a new pair but refused to sign the form accepting
responsibility to pay for the boots.
was charged $59.66 for the new boots. Upon receiving the
charge, he filed an offender complaint, which was
investigated by defendant Ingenthron. Ingenthron and Eggers
met with Amonoo, who said he wanted to speak with a
supervisor about his request for new boots because he had a
medical restriction. Forsythe was the supervisor on duty.
Amonoo was told he had to take used boots if he wanted the
charge for new boots reversed and also was told that he had
to wear state boots during visits. Amonoo was told that he
would have to conduct his visits through a video monitor if
he did not have state boots. Amonoo capitulated and took the
used boots. NLCI reversed the charge for new