Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burgess v. Lenz

United States District Court, E.D. Wisconsin

April 23, 2018




         1. INTRODUCTION

         Plaintiff Edward B. Burgess, a prisoner who is representing himself, brought this action alleging that Defendants, various medical and correctional employees of Green Bay Correctional Institution (“GBCI”) and the Wisconsin Department of Corrections, violated Plaintiff's Eighth Amendment right to adequate healthcare. See (Docket #11). After this action was reassigned to this branch of the Court from Magistrate Judge William E. Duffin, to whom the case was originally assigned, Defendants moved for summary judgment. (Docket #31). That motion is fully briefed, see (Docket #31-40 and #44-46), and for the reasons explained below, it must be granted.


         Federal Rule of Civil Procedure 56 provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016).

         3. BACKGROUND

         3.1 Plaintiff's Failure to Dispute the Material Facts

         The relevant facts are undisputed because Plaintiff failed to dispute them. In the Court's scheduling order, entered January 24, 2017, Plaintiff was warned about the requirements for opposing a motion for summary judgment. (Docket #20 at 3). Accompanying that order were copies of Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both of which describe in detail the form and contents of a proper summary judgment submission. In Defendants' motion for summary judgment, they too warned Plaintiff about the requirements for his response as set forth in Federal and Local Rules 56. (Docket #31). He was provided with additional copies of those Rules along with Defendants' motion. Id. at 3-13. In connection with their motion, Defendants filed a supporting statement of material facts that complied with the applicable procedural rules. (Docket #33). It contained short, numbered paragraphs concisely stating those facts which Defendants proposed to be beyond dispute, with supporting citations to the attached evidentiary materials. See id.

         Plaintiff did not respond to Defendants' statement of facts and did not offer his own proposed statement of facts. His only submissions were a two-page response brief, a two-page affidavit, and four pages of exhibits. (Docket #44 and #45).[1]None of these documents contains even a facial attempt to meet the requirements of Federal and Local Rules 56 for disputing factual assertions. Despite being twice warned of the strictures of the summary judgment procedure, Plaintiff ignored those rules by failing to properly dispute Defendants' proffered facts with citations to relevant, admissible evidence. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Though the Court is required to liberally construe a pro se plaintiff's filings, it cannot act as his lawyer, and it cannot delve through the record to find favorable evidence for him. Thus, the Court will, unless otherwise stated, deem Defendants' facts undisputed for purposes of deciding their motion for summary judgment. See Fed. R. Civ. P. 56(e); Civ. L. R. 56(b)(4); Hill v. Thalacker, 210 Fed.Appx. 513, 515 (7th Cir. 2006) (noting that district courts have discretion to enforce procedural rules against pro se litigants).

         3.2 Relevant Facts

         In the absence of any dispute, the facts specific to each Defendant's alleged liability will be discussed in the Court's legal analysis as appropriate. For now, the Court provides a general overview of the circumstances of Plaintiff's claim. All factual discussion is drawn from Defendants' statement of proposed facts. (Docket #33).

         Plaintiff has had a history of plantar fasciitis-foot pain-going back more than twenty years. In 2013, while he was incarcerated at Fox Lake Correctional Institution, Plaintiff was prescribed orthotic inserts for his shoes. He was never prescribed any special, medically necessary shoes for the treatment of his condition. Rather, he was provided athletic shoes which had sufficient depth to accommodate the inserts.

         Plaintiff was transferred to GBCI in June 2015. At that time, Plaintiff had permission to wear the custom orthotics. He was also permitted to wear a number of his personal, non-state-issued shoes to any health services appointments for treating his foot pain. When he was transferred, Plaintiff was using high top tennis shoes to hold the orthotics. GBCI inmates are allowed two pairs of shoes: one state-issued leather work boot, and another pair of personal shoes the inmate could purchase from a catalogue. The Health Services Unit (“HSU”) would also provide inmates with custom orthopedic shoes when it was deemed medically necessary.

         Plaintiff's foot and shoe complaints began almost immediately. He met with a Nurse Utter on June 15 and asked that he be allowed to purchase shoes with more resistant soles that would last longer. The nurse scheduled him for an appointment with a physician. Defendant Dr. Mary Sauvey (“Sauvey”) saw Plaintiff on July 20. At that time, Plaintiff requested new orthotics, and so Sauvey contacted outside orthopedic specialists. In August, the specialists recommended that Plaintiff be provided a diabetic shoe with orthotics. Diabetic shoes ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.