United States District Court, W.D. Wisconsin
TERRY L. JACKSON, Plaintiff,
BRIAN FOSTER, HSU MANAGER STADTMUELLER, HSU MANAGER MARKUS, GWENDOLYN A. VICK, AMY GUNDERSON and N. KAMPHUIS, Defendants.
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE.
plaintiff Terry L. Jackson is proceeding on claims that
defendants Brian Foster, Stadtmueller, Markus, Gwendolyn A.
Vick, Amy Gunderson and N. Kamphuis violated his rights under
the Eighth Amendment by failing to provide him adequate
treatment for his foot problems and that defendants Foster,
Stadtmueller, Markus and N. Kamphuis violated plaintiff's
right to equal protection under the Fourteenth Amendment by
discriminating against him on the basis of his race. Now
before the court are plaintiff's motion for a preliminary
injunction, dkt. #19, and motion to strike defendants'
affirmative defenses. Dkt. #22. For the reasons set out
below, I am denying both motions.
Motion for Preliminary Injunction
has filed a motion for a preliminary injunction asking that
the court issue an order requiring defendants to send
plaintiff to a podiatry specialist or permit him to order
shoes from an outside vendor such as Eastbay. However,
plaintiff's motion does not comply with this court's
procedure for obtaining preliminary injunctive relief, a copy
of which will be provided to plaintiff with this order. Under
these procedures, a plaintiff must file and serve proposed
findings of fact that support his claims, along with any
evidence that supports those proposed findings. Plaintiff has
neither submitted proposed findings of fact nor cited any
evidence to support those findings.
even if plaintiff's motion was not flawed on its face, I
would have to deny it on the merits at this time. To prevail
on a motion for a preliminary injunction, plaintiff must
show: (1) a likelihood of success on the merits of his case;
(2) a lack of an adequate remedy at law; and (3) an
irreparable harm that will result if the injunction is not
granted. Lambert v. Buss, 498 F.3d 446, 451 (7th
Cir. 2007). Plaintiff has yet to show a likelihood of success
on the merits of his claims.
contends that defendants violated his Eighth Amendment rights
by refusing to allow him to order shoes from an outside
vendor, even though none of the shoes in the approved vendor
catalogs are adequate for his specific needs. However, his
only evidence in support of this claim is a 2014 order from a
podiatrist recommending that plaintiff be permitted to order
shoes with a removable insole from an outside vendor. This is
not sufficient to show that he is likely to succeed on of
success on the merits of his claim. The exhibits attached to
plaintiff's complaint show that since 2014, defendants
contacted plaintiff's podiatrist and determined that
plaintiff's foot problems could be accommodated without a
special order or non-vendor-approved shoes. Dkt. #1-1 at 38.
Although plaintiff disagrees with defendants' assessment,
he has not submitted any evidence to show that
defendants' conclusions are wrong. In particular,
plaintiff has not shown that the shoes available in the
vendor catalogs would not accommodate his orthotics, foot
size or other special needs. Nor has he adduced evidence that
defendants acted with deliberate indifference in concluding
that plaintiff should try his orthotics with shoes available
from the approved vendors. Without such evidence, plaintiff
has not shown a likelihood of success on his Eighth Amendment
respect to his equal protection claim, plaintiff submits the
declaration of Jose Soto, who states that he has been
“allowed to purchase and receive shoes from any outside
vendor” to accommodate his plantar fasciitis. Dkt. #20.
However, the fact that one other inmate is permitted to
purchase shoes from an outside vendor is not sufficient to
show a likelihood of success on plaintiff's claim that
non-black inmates are permitted to order special shoes and
black inmates are not. Moreover, in light of the fact that
Mr. Soto has filed at least two lawsuits challenging the care
he has received for his plantar fasciitis and his access to
special shoes, Soto v. Morgan, Case No.
11-cv-567-slc (W.D. Wis. filed Aug. 10, 2011); Soto v.
White, Case No. 17-cv-551-jdp (W.D. Wis. filed July 17,
2017), Soto's declaration does not provide much support
for plaintiff's claim that he is not receiving equal
treatment from defendants.
although plaintiff's allegations were sufficient to pass
the screening stage, his submissions fall far short of
showing that he needs the extraordinary relief that he seeks.
he is not entitled to injunctive relief.
Motion to Strike Affirmative Defenses
has moved to strike defendants' affirmative defenses
(1) All or portions of Plaintiff's Complaint must be
dismissed to the extent that Plaintiff failed to exhaust
administrative remedies. Dfts.' Ans., dkt. #21, ¶ 1.
(2) To the extent that Defendants are named in their personal
capacities, all or portions of Plaintiff's Complaint must
be dismissed pursuant to the doctrine of qualified ...