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Marley v. Willett

United States District Court, W.D. Wisconsin

March 6, 2018

TEVON MARLEY, Plaintiff,



         Pro se plaintiff and prisoner Tevon Marley is proceeding on claims that several prison officials at the Columbia Correctional Institution acted negligently and violated his Eighth Amendment rights by refusing to allow him to have shoes that he ordered for his foot condition. Now before the court are the parties' cross motions for partial summary judgment. Dkt. ##41 and 51.

         For the reasons set out below, I am granting defendants' motion for summary judgment and denying plaintiff's motion. Plaintiff's Eighth Amendment claim fails on the merits and his state law claims must be dismissed because he failed to comply with the notice of claim requirements of Wis.Stat. § 893.82.

         From the defendants' proposed findings of fact and plaintiff's responses, I find that the following facts are undisputed unless otherwise noted. (Plaintiff did not submit his own proposed findings of fact.)


         A. The Parties and Background Information

         Plaintiff Tevon Marley is incarcerated at the Columbia Correctional Institution. Defendants Steven Willett, Peter Karna, Isaac Hart and Sandra Hautamaki work at the institution. Defendants Welcome Rose and Cindy O'Donnell work in the Department of Corrections central offices.

         On March 3, 2014, a podiatrist not employed by the Department of Corrections gave plaintiff a diagnosis of degenerative joint disease in his right ankle and recommended that plaintiff's prison medical providers send him to Aljan Company, an orthotics company with which the department contracts, so that plaintiff could get an ankle-foot orthosis device for his right ankle. The podiatrist also recommended that plaintiff get a pair of supportive athletic shoes to accommodate the orthotics device. Plaintiff asked the department to pay for the shoes but the Special Needs Committee at the prison denied the request on September 14, 2014, directing plaintiff to order his shoes through the department's approved vendor catalogs at his own expense. None of the defendants served on the prison committee.

         The Department of Corrections has established an approved vendor catalog system through which inmates may order personal property items, including athletic footwear, from certain “security-minded” vendors. This system is designed to avoid having prison staff approve each individual purchase by inmates on a case-by-case basis. The department requires that the value of an inmate's personal property (including shoes) not exceed $75, excluding tax and shipping costs. DAI Policy #309.20.03, dkt. #54, exh. #2. The reason for the rule is that owning valuable personal property items increases the risk of theft, fighting and other misconduct among inmates. Neither the approved vendor catalog nor the department rule on personal property prevents an inmate from purchasing an item valued at more than $75 if the item is deemed necessary by medical providers to accommodate an inmate's medical condition.

         B. October 2014 Medical Restriction for Orthosis and New Balance Shoes

         Plaintiff received his orthotics device on October 13, 2014. The orthotics specialist outside the prison noted that plaintiff would need size 13 New Balance shoes to accommodate the new device and wrote that “any outside vendor OK.” Dkt. #45, exh. #1 at 2. On the same day, prison staff made an entry on plaintiff's “Special Handling Summary” in the Wisconsin Integrated Corrections System database showing that he was approved for size 13 extra wide New Balance shoes “to be worn when brace is on” and that may be ordered from the approved vendor catalog or an outside vendor. (Although it is not completely clear, it appears that medical staff enters information into this database from inmates' medical records so that other prison staff have access to it and can learn about any medical restrictions inmates may have.)

         Plaintiff ordered the recommended New Balance shoes from Eastbay for $74.99 (not including tax or shipping) and received them on October 30, 2014. Although Eastbay was not an approved vendor, the orthotics specialist specifically stated that plaintiff could order from “any outside vendor.” Plaintiff continues to use these shoes when wearing his orthotics.

         C. December 2014 Medical Restriction for Athletic Shoes

         On December 17, 2014, plaintiff saw the outside podiatrist, who discussed ankle surgery and gave plaintiff a steroid shot. The podiatrist recommended that plaintiff “continue to wear AFO [ankle-foot orthosis] and athletic shoes at all times” and be allowed to wear and order “high top athletic shoes if not wearing brace” from an “outside vendor or catalog.” Dkt. #45, exh. #1 at 6. No. shoe size was specified on the form completed by the podiatrist. A Department of Corrections “Medical Restrictions/Special Needs” form dated the same day notes that as of December 17, 2014, plaintiff was approved for “high top athletic shoes from catalog or outside vendor to be worn when brace not on” and he “[m]ay purchase/wear personal high top shoes from outside vendor when not wearing brace for additional support.” Dkt. #44, exh. #3 at 15. (It is unclear who completed this form and who had access to it.) As discussed below, this information was not entered into the prison database and did not appear on plaintiff's special handling form until October 2015.

         Plaintiff had a follow-up appointment with the podiatrist on March 11, 2015, but his shoe situation was not discussed. Plaintiff later had a magnetic resonance imaging study of his right foot on May 13, 2015, and he elected to undergo surgery on October 26, 2015.

         D. Air Jordan Shoes

         1. Initial ...

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