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Carter v. Morgan

United States District Court, W.D. Wisconsin

March 12, 2018



          WILLIAM M. CONLEY District Judge

         Pro se plaintiff Jackie Carter, an inmate housed at the Wisconsin Secure Program Facility (“WSPF”), was granted leave to proceed on a First Amendment retaliation claim against defendants Donald Morgan and Chad Keller, and an Eighth Amendment deliberate indifference claim against defendant Fern Springs. This case actually is also the latest in a remarkably long-standing dispute between plaintiff Carter and the Wisconsin Department of Corrections arising out of his medical need for specialized shoes. See Carter v. Radtke, No. 09-cv-437-wmc (W.D. Wis. July 13, 2009); Carter v. Radtke, No. 10-cv-181-wmc (W.D. Wis. Apr. 2, 2010); Carter v. Radtke, No. 10-cv-280-wmc (W.D. Wis. May 25, 2010); Carter v. Ziegler, et al., 14-cv-512-wmc (W.D. Wis. July 18, 2014). Before the court is defendants' motion for summary judgment. (Dkt. #19.) For the reasons that follow, the court will grant defendants' motion in full, enter judgment in defendants' favor and close this case.


         A. The Parties

         At all times relevant to plaintiff's claims, Jackie Carter was an inmate housed at Columbia Correctional Institution (“CCI”). Dr. Fern Springs was a physician employed by the Wisconsin Department of Corrections, who worked at CCI on an as-needed basis. Donald Morgan was CCI's Administrative Captain, and Chad Keller was a Captain at CCI.

         B. December 2013 Medical Orders

         On December 17, 2013, another doctor working at CCI, Dr. Heinzl, wrote an order in Carter's medical chart authorizing shoes from an outside vendor that exceeded a $75.00 property limit, and also directing that Carter be allowed to shower in the unit on recreation days, rather than at showers apparently closer to the recreation area. The next day, December 18, Dr. Springs modified Heinzl's original purchase order in two respects: (1) Carter could order high top tennis shoes from an outside vendor; and (2) they could exceed $75.00 provided no shoes were available in the approved vendor catalog. Dr. Springs also added in her medical order that “Purchase must be cleared with Security.” (Springs Decl., Ex. 1 (dkt. #24-1) 13.) Finally, in addition to modifying the order concerning shoes, Dr. Springs removed Dr. Heinzl's order allowing Carter to shower on the unit. (Id.)[2]

         In her declaration in support of summary judgment, Dr. Springs purports to explain the reasons for her changes. Specifically, she “was contacted by someone for clarification of the medical prescription of Dr. Heinzl, after Carter tried to purchase shoes that did not meet security standards, but rather were of a type considered to be a status symbol within the inmate population.” (Springs Decl. (dkt. #24) ¶ 8.) Springs further declares “It is my belief that I was contacted by [] someone from the nursing staff for this clarification. However, I do not recall with whom I spoke.” (Id.) For their part, the other defendants, CCI Administrative Captain Morgan and Captain Keller, both declare that they did not contact Springs to tell her to discontinue or change a medical prescription or order. (Keller Decl. (dkt. #22) ¶ 5; Morgan Decl. (dkt. #23) ¶ 5.) Despite a lack of any supporting evidence in the record, Carter maintains in his response that Morgan and Keller directed Dr. Springs to alter the prescription.

         Dr. Springs does acknowledge modifying Dr. Heinzl's original medical order without an intervening appointment with Carter. Instead, she based her modified order on review of his medical record. Specifically, Springs relied on Carter's September 17, 2012, treatment note with a podiatrist, who recommended high top tennis shoes for support for Carter's ankles to help treat his tendonitis. Dr. Springs also noted that Carter had received an order for ankle supports. Although Dr. Springs did not believe it was necessary for him to have both ankle supports and high top tennis shoes, she still authorized the purchase in an amount that could exceed $75.00, if necessary.

         As for Dr. Heinzl's original order allowing Carter to shower on the unit, Dr. Springs maintains that she modified this order because he “had no medical issues that required him to have a restriction for showers on the unit.” (Springs Decl. (dkt. #24) ¶ 21.) According to Dr. Springs, there are showers near the recreation building that inmates were allowed to use after recreation period. Moreover, inmates are allowed to shower on the unit two days a week. Otherwise, Dr. Springs concluded that Dr. Heinzl's order would have allowed Carter to shower on the unit on recreation days, even though other inmates on the unit could not do so on non-shower days. Dr. Springs also concluded that “there was nothing about the showers on the unit that was medically more significant than the showers at recreation to meet any treatment needs Carter had.” (Id. at ¶ 23.) In his submission, Carter disputes that there are showers near the recreation building, contradicting himself, since Carter also asserts the unit showers have handicap stalls, in contrast to those near the recreation area.

         C. August 2014 Placement in the Restrictive Housing Unit

         In addition claiming that Morgan and Keller instructed Dr. Springs to modify Carter's medical orders for shoes and shower privileges, plaintiff asserts a retaliation claim based on his transfer to restrictive housing in August 2014. At summary judgment, defendants propose extensive facts and attach conduct reports, which document an investigation into increased racial tension on the housing unit where Carter was being housed following an attack on an inmate and comments by inmates following the attack. As a result of that investigation, Carter was issued a conduct report for group resistance and petitions in violation of Wis. Admin. Code DOC § 303.20. He was then adjudicated guilty of that charge and given 360 days in disciplinary separation in the Restrictive Housing Unit. (Defs.' PFOFs (dkt. #21) ¶¶ 19-44.) Carter does not respond to any of these proposed findings of fact, nor does he otherwise support his retaliation claim, other than to observe, among other general statements about prison operations, that Captains Keller and Morgan have “full control” over CCI.


         I. Deliberate Indifference Claim ...

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