United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge
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.
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.
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.
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.
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.
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.
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).
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).
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.
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 ...