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Benson v. Bowens

United States District Court, E.D. Wisconsin

January 24, 2018

NANCY BOWENS, et al., Defendants.


          William C. Griesbach, Chief Judge

         Plaintiff Jeffrey Benson, proceeding pro se, filed this action under 42 U.S.C. § 1983, alleging that defendants Nancy Bowens, Danielle Foster, Theresa Murphy, James Zanon, Judy Smith, Dr. Patrick Murphy, Captain Tom Tess, and Jamie Barker were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment and that defendants Bowens, Murphy, Foster, and Barker were negligent in violation of Wisconsin state law. Currently before the court is the defendants' motion for summary judgment. For the following reasons, the defendants' motion will be granted and the case will be dismissed.


         At all times relevant to this action, Plaintiff Jeffrey Benson was housed at Oshkosh Correctional Institution. Defs.' Proposed Findings of Fact (DPFOF) ¶ 1, ECF No. 45. Benson alleges a history of foot pain related to his diabetes. On June 13, 2014, Benson went to a University of Wisconsin clinic to be evaluated by a podiatrist. Id. ¶ 3. During the evaluation, the podiatrist noted Benson's diabetic foot pain was controlled in the past with appropriate Nike shoes. Id. ¶ 5. The podiatrist recommended that Benson wear “extra-depth diabetic type” shoes, such as a New Balance extra-depth shoe, with bilateral customized orthotics devices. Id. ¶ 4. She also suggested that he be allowed to wear personal shoes on a more regular basis. Id. ¶ 5. On June 17, 2014, three days after his appointment with the podiatrist, Benson received a new pair of Nike brand personal shoes. Id. ¶ 7.

         After reviewing the podiatrist's recommendation, Benson's primary care provider at the institution, Nurse Practitioner Bowens, referred Benson to an orthotics company to create bilateral custom orthotics devices. Id. ¶ 8. Because the Department of Corrections has no control over the availability of outside provider appointments, Benson was fitted for orthotics and ultimately received them in December 2014. Id. ¶ 10. The specialist who provided the orthotics noted that Benson would need larger shoes to accommodate the orthotics and recommended three kinds of shoes, including a New Balance running shoe, that could accommodate the inserts. Id. ¶ 11.

         Some time after receiving the orthotics, Benson asked Health Services Unit staff if he would receive a pair of New Balance shoes. Nurse Practitioner Bowens referred his request to the Special Needs Committee to determine whether Benson had a special need or restriction that requires special or alternative footwear. The Committee is comprised of medical staff, security staff, and other staff and is responsible for deciding whether an inmate has a need or restriction that requires an accommodation. Id. ¶¶ 12-13. In March 2015, the Special Needs Committee denied Benson's request for alternative footwear but advised Benson to contact Captain Tess to order new state-issued shoes in a different size. Id. ¶ 17-18. Benson met with Captain Tess, who measured Benson's feet and ordered state-issued wide Velco shoes with removable insoles that added depth and better accommodated the orthotics. Id. ¶ 19. Prior to receiving these state-issued shoes, Benson received a pair of Adidas personal shoes in April 2015. Id. ¶ 22. Benson ultimately received the Velcro state-issued shoes in May 2015. Id. Benson complained about the poor fit of the Velcro shoes, and as a result, Benson received a pair of extra-wide state-issued boots to accommodate his shoe needs in November 2015. Id. ¶¶ 23-24.

         Benson returned to the orthotic specialist on January 19, 2016. The specialist modified his orthotics to fit his new state-issued boots. The specialist noted his concern about the size of Benson's boots based on the bunions Benson had developed on his feet. Id. ¶ 25. After reviewing the specialist's notes, Nurse Practitioner Bowens made another appointment for Benson with the specialist so that he could receive replacement shoes and properly fitting orthotics. On May 24, 2016, the specialist indicated that the orthotics fit well and that he did not have the required authorization to provide footwear to inmates. Id. ¶ 26. Nurse Practitioner Bowens then referred Benson's shoe need to the Special Needs Committee for a second time. The Committee approved Benson's request on May 31, 2016. Id. ¶ 27.

         Unfortunately, Benson's new alternative footwear was not actually ordered for Benson after the Committee issued its decision. Id. ¶ 28. This oversight related to the retirement of Captain Tess, the individual responsible for ordering inmate shoes. Id. ¶ 30. In any event, Benson has now received the New Balance shoes, originally recommended by the podiatrist, that accommodate his orthotics. Id. ¶ 32.


         Summary judgment is appropriate when the moving party shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). All reasonable inferences are construed in favor of the nonmoving party. Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party opposing the motion for summary judgment must “submit evidentiary materials that set forth specific facts showing that there is a genuine issue for trial.” Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (citations omitted). “The nonmoving party must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. Summary judgment is properly entered against a party “who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012) (internal quotations omitted).


         The Eighth Amendment prohibits “cruel and unusual punishments.” U.S. Const. amend. VIII. It imposes a duty on prison officials to take reasonable measures to guarantee an inmate's safety and to ensure that inmates receive adequate medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994). A prison official's “deliberate indifference” to a prisoner's medical needs or to a substantial risk of serious harm violates the Eighth Amendment. Id. at 828; Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). This does not mean, however, that every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment. An inmate's claim for deliberate indifference must establish “(1) an objectively serious medical condition; and (2) an official's deliberate indifference to that condition.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012).

         The defendants argue that Benson has not established that he has a serious medical condition. What constitutes a sufficiently “serious medical need” under the first prong is “far from self-defining.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). A condition may be sufficiently serious where failure to treat the condition could “result in further significant injury or the unnecessary and wanton infliction of pain” or where the injury is one that “a reasonable doctor or patient would find important and worthy of comment or treatment.” Id. “It is clear that the Supreme Court contemplated that medical conditions far less critical than ‘life threatening' would be encompassed by the term.” Id. Seventh Circuit cases “demonstrate a broad range of medical conditions may be sufficient to meet the objective prong of a deliberate indifference claim, including a dislocated finger, a hernia, arthritis, heartburn and vomiting, a broken wrist, and minor burns sustained from lying in vomit.” King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012) (quoting Roe v. Elyea, 631 F.3d 843, 861 (7th Cir. 2011)). The question is far less clear when the inmate has a chronic condition, like diabetes or degenerative disc disease, that causes continuing problems that cannot be fully cured but only be controlled. Benson's history with foot problems related to his diabetes suggests that his pain constitutes a serious medical condition.

         Even if the court assumes Benson has a serious condition, Benson must demonstrate that the defendants were deliberately indifferent to that condition. Deliberate indifference requires more than negligence or even gross negligence; it requires that officials know of, yet disregard, an excessive risk to an inmate's health or safety. Farmer, 511 U.S. at 835, 837; see also Estelle, 429 U.S. at 104. It is not enough to show that prison officials merely failed to act reasonably. Gibbs v. Franklin, 49 F.3d 1206, 1208 (7th Cir. 1995). “A state officer is deliberately indifferent when he does nothing . . . or when he takes action that is ...

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