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Amonoo v. Washetas

United States District Court, W.D. Wisconsin

December 1, 2017

KWESI B. AMONOO, Plaintiff,
WASHETAS, et al., Defendants.



         Plaintiff 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.

         I am 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.

         I am 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 finding negligence.

         From the parties' proposed findings[1] and evidence on the record, I find that the following facts are material and not subject to genuine dispute, unless otherwise indicated.


         I. BACKGROUND

         Plaintiff Kwesi Amonoo was incarcerated at New Lisbon Correctional Institution (NLCI) at all relevant times.

         All of 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.

         Between 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.

         In July 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:

T. Intake
2. Shoes
b. Inmates must wear state-issued shoes on all off-site trips and visits
c. Inmates may order personal shoes from the approved vendor catalogs
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 necessary.

         For 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 director.

         Inmates 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.

         II. Medical Care for Amonoo's Plantar Fasciitis, July 2013-August 2014

         In 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.

         Amonoo 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.

         When an 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.

         On 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 rules.”

         Amonoo 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).

         At a 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.

         On 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.

         Amonoo 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.

         Defendant 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.[2]

         Amonoo 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.

         On 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 non-approved vendor.)

         On 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.

         III. March 6, 2014 Meeting with Fladhammer and Warner

         On 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.

         The 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.”[3]

         Neither Warner nor Fladhammer is authorized to issue a medical restriction for an inmate or to grant an exception to the state shoes requirement.

         IV. Special Needs Committee

         On July 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.

         Requests for special shoes are covered under Appendix 1 to BHS Policy and Procedure #300.07. Specifically, Appendix 1 states, in relevant part:

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 company.
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 committee/nurse review.
Health Services Unit will not get involved with ordering extra pairs of personal shoes. Property guidelines shall be followed.
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).

         At the 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 visits.”

         V. Eggers, Forsythe and Ingenthron

         In 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.

         Amonoo 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 boots.[4]

         VI. ...

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