United States District Court, E.D. Wisconsin
EDWARD B. BURGESS, Plaintiff,
REBECCA LENZ, SHANE BRUNNER, JEAN LUTSEY, MARY SAUVEY, KATHY LEMENS, MARY ALSTEEN, and ANA BOATWRIGHT, Defendants.
STADTMUELLER UNITED STATES DISTRICT JUDGE
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.
STANDARD OF REVIEW
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).
Plaintiff's Failure to Dispute the Material
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.
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).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).
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).
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.
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.
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 ...