United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge
plaintiff Edward Burgess is a prisoner in the custody of the
Wisconsin Department of Corrections (DOC) currently housed at
the Wisconsin Secure Program Facility (WSPF). He is
proceeding on Eighth Amendment deliberate indifference
claims, claims under the Rehabilitation Act, and state-law
medical malpractice claims concerning defendant prison
officials' alleged refusal to allow him access to shoes
that adequately treat his plantar fasciitis. Several motions
are now pending before the court. I will deny Burgess's
motion for reconsideration of my order denying preliminary
injunctive relief. As for defendants' motions for summary
judgment and Burgess's motion to exclude expert evidence,
I will order the parties to supplement their briefing on key
factual issues. Once they have done so, I will issue a
summary judgment opinion.
Motion for reconsideration
Burgess has moved for reconsideration of my order denying
preliminary injunctive relief. Dkt. 153. In a March 6, 2018
order, I denied Burgess's motion for preliminary
injunctive relief concerning his requests for medical
treatment, threats to commit suicide, and outgoing mail. Dkt.
149. I explained that Burgess's history of mental health
treatment and attempts at self-harm did not show that Burgess
would suffer future irreparable harm absent an
immediate injunction. Now, Burgess has filed a motion for
reconsideration of that order. Dkt. 153. Specifically, he
asks again that I order defendants to transfer him to another
facility. His argument focuses on the seriousness of his
mental health needs.
deny Burgess's motion for reconsideration for the same
reason I denied his original motion for preliminary
injunctive relief: Burgess still has not pointed to evidence
that he faces immediate danger unless the court acts
right now. I offer no opinion on the ultimate merits
of Burgess's claims. As I explained in my March 6 order,
if Burgess wishes to bring new claims, he may file a separate
lawsuit. He may ask for injunctive relief, including transfer
to another facility, in that separate lawsuit. But I may only
order immediate injunctive relief in this lawsuit if
Burgess shows that he “will suffer irreparable harm in
the period before final resolution of [his] claims.”
BBL, Inc. v. City of Angola, 809 F.3d 317, 323-24
(7th Cir. 2015). Burgess has not made such a showing, so I
will deny his motion for reconsideration.
Summary judgment motions
defendants have filed three motions for summary judgment in
their favor on all claims. Dkt. 77; Dkt. 94; Dkt. 100. Burgess
opposes, and he has also filed a Daubert motion
asking me to exclude some of defendants' expert evidence.
parties' submissions highlight several factual issues
that are not adequately developed. Most important, evidence
is lacking on the key issues of what type of shoe effectively
treats Burgess's serious health condition, who decided
that that type of shoe would offer effective treatment, when
they made the decision, and whether Burgess has had access to
that type of shoe while at WSPF. Rather than issue an opinion
based on an incomplete understanding of the facts, I will
allow the parties to submit additional evidence, proposed
findings of fact, and briefs addressing the following
• Were diabetic shoes ever prescribed to Burgess? If so,
when was the prescription written, who wrote it, and what
condition were the diabetic shoes prescribed to treat?
• Were other specialty shoes ever prescribed to Burgess?
If so, when was the prescription written, who wrote it, and
what condition were the shoes prescribed to treat?
• Has a medical professional ever determined that
high-top shoes do not treat Burgess's plantar fasciitis?
If so, when did they make that determination?
• Do diabetic shoes adequately accommodate Burgess's
orthotics and treat Burgess's plantar fasciitis? Why or
• Do the state-issued high-top, lace-up white shoes
adequately accommodate Burgess's orthotics and treat
Burgess's plantar fasciitis? Why or why not?
• Do high-top shoes unavailable from an approved vendor
catalog adequately accommodate Burgess's orthotics and
treat Burgess's ...