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Franklin v. Hannula

United States District Court, W.D. Wisconsin

July 25, 2019

JOHNATHAN FRANKLIN, Plaintiff,
v.
JOAN HANNULA, et al., Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY, DISTRICT JUDGE

         Pro se plaintiff Johnathan Franklin, a prisoner at Stanley Correctional Institution (“Stanley”), claims that Dr. Joan Hannula and Jamie Barker violated his Eighth Amendment rights and Wisconsin law in failing to provide him adequate footwear and treat his skin condition, respectively. Now before the court are Franklin's motions seeking to file a sur-reply (dkt. #58), an extension of time, and appointment of counsel (dkt. #42), as well as defendants' motion for summary judgment (dkt. #43). The court will grant Franklin's motion to file a sur-reply and has considered it. The court will deny his motions for assistance in recruiting counsel and for an extension of time, finding Franklin's submissions demonstrate a clear understanding of the relevant legal and factual issues, as well as an ability to gather evidence in support of his claims, that make additional assistance or a further extension of time unnecessary. Finally, even construing all of the evidence in Franklin's favor, the court concludes that no reasonable juror could find in plaintiff's favor on his deliberate indifference and medical malpractice/negligence claims. Accordingly, the court will grant summary judgment in defendants' favor.

         UNDISPUTED FACTS[1]

         A. Parties

         Franklin was incarcerated at Stanley during the relevant time period, where defendants, Dr. Joan Hannula and Health Service Unit (“HSU”) manager Jamie Barker were working.

         B. Franklin's Foot Conditions

         Franklin suffers from bilateral pes planus (flat feet), which is worse in his left foot. Flat feet is a condition in which the foot has a lower arch than usual, and it may cause discomfort that can be treated with ice, over the counter orthotics, custom made orthotics and/or supportive footwear. Franklin avers that for multiple years prior to the relevant time period, doctors have recommended that he use orthotic and cushioned shoes -- more specifically air sole shoes. He also avers that in 2003 and 2004, when he was incarcerated by the Wisconsin Department of Corrections (“DOC”) at the Green Bay Correctional Institution (“GBCI”), a podiatrist named Dr. Van Beek prescribed him custom orthotics and arch supports. (Franklin Decl. (dkt. #50) ¶¶ 7-8.) According to Franklin, Dr. Van Beek told him he should wear Nike “Air Max Elite” or “Shox, ” albeit only in conversations. (Pl. Opp. Br. (dkt. #48) at 2.)

         Dr. Hannula first saw Franklin for his flat feet on December 4, 2008, at which time she authorized custom-made orthotics. Between 2009 and 2012, Franklin was incarcerated at the Cook County Jail. While there, a podiatrist also prescribed Franklin arch supports and shoe restrictions because the jail-issued shoes were extremely flat. (Pl. Opp'n Br. (dkt. #48) at 2.) While Franklin provides no specific details or documentation related to this podiatrist's recommendations either, he avers that during his time at the jail, he also was allowed to wear Nike Air Max All Conditions Gear (“ACG”) boots.

         When Franklin returned to Stanley in 2012, however, his Nike ACG boots were confiscated. Instead, all DOC prisoners received state-issued boots, and Franklin received low-top, state-issued shoes. Acknowledging Franklin's foot issues, on May 10, 2012, Dr. Hannula approved him to go to Winkley, a specialty orthotics and prosthetics clinic. As a result, Franklin received custom-made orthotics and extra depth inlay shoes, as well as ankle-foot orthosis (“AFO”) braces.

         On April 30, 2013, Franklin saw Hannula again to ask to have security allow the HSU to purchase Nike Air Max shoes, pointing out that if medical providers determine that a prisoner has a medical need for certain shoes, then DOC policy is to purchase them. However, Dr. Hannula told him there was no medical need for special shoes, which Franklin claims contradicts the opinion of the unnamed, Cook County Jail podiatrist.

         Almost a year later, on April 16, 2014, non-defendant Bentley, referred to as “APNP” made another appointment for Franklin at Winkley to have his AFOs re-fitted after Franklin refused to wear them because they were uncomfortable. Around April 23, 2014, Bentley adjusted the referral to request articulated AFOs and appropriate shoes to go with them. Articulated AFOs are custom-made from plastic and incorporate joints at the ankles, making them bendable and providing support to the ankle-foot complex.

         Franklin went to Winkley on July 25, 2014, at which point an orthotist provided him extra depth/width shoes -- the so-called “Drew” brand shoes -- as well as modified his left AFO brace. At that point in time, DOC policy permitted him to possess the Drew shoes. Just a few months later, in November 2014, Franklin also purchased a new pair of Nike Air Max ACG boots (“Nike boots”) for his personal shoes, which he was not allowed to wear while working. (Barker Supp. Decl. (dkt. #57) ¶ 6.)

         In November 2015, and again in August 2016, the DOC changed the regulatory policy related to how prisoners could purchase shoes. See DAI 309.20.03. Consistent with that change, Franklin's Drew brand extra depth/width and Nike boots shoes were no longer approved footwear. Nevertheless, Franklin was approved to keep the Drew brand shoes until 2017, since they were deemed medically necessary between July 2014 and August 2015, as well as from July 2016 to July 2017. Since there was no medical order for them in August of 2015, security staff confiscated them at that point. While Franklin had the ability to wear the Drew shoes again, the evidence of record indicates that he never actually wore them, at least during the relevant time period.

         Franklin claimed that his AFOs did not fit properly and was made from plastic that rubbed his skin. Combined with the low state-issued boots, he further claimed this caused him to develop large skin lesions and suffer foot, ankle, knee, hip and back pain. The evidence of record shows that Dr. Hannula started treating Franklin for lesions on his legs in February 2016, examining Franklin again on February 18, March 18 and June 2, 2016. Franklin told Hannula that he believed the plastic AFOs had caused the lesions. So in March 2016, Hannula referred Franklin to Winkley to have his AFOs altered again.

         As for his lesions, Dr. Hannula diagnosed Franklin with lichen simplex chronicus, and her diagnosis was confirmed by the Gunderson Dermatology Clinic on April 26, 2016. Lichen simplex chronicus is a localized well-circumscribed area of thickened skin that is caused by repeated scratching of the skin. In Dr. Hannula's opinion, the lesions were not caused by the AFOs; instead, she surmised, they were caused by Franklin's scratching. For this reason, according to Hannula, the lesions were present regardless of whether Franklin was wearing his AFOs. For his part, Franklin avers that the lesions did not occur until he started wearing the hard plastic AFO strap.

         Regardless of the cause, the parties agree Franklin was seen daily for dressing changes for his lesions between February and June of 2016. While Hannula claims that the HSU never reported any swelling or bleeding, only blisters, Franklin insists that his lesions bled. Moreover, Hannula continued to refer Franklin to Winkley for adjustments to the AFO and orthotics during this time period.

         On April 20, 2016, a Winkley orthotist saw Franklin for a consultation. The orthotist added more arch support to the left AFO brace and noted Franklin's interest in custom-made arch supports. On June 10, Dr. Hannula referred Franklin to Winkley for custom arch supports, and Franklin was fitted for them on June 13. In July of 2016, however, Franklin's request to wear his Nike boots in the kitchen when he was working was denied. (Ex. 1000 (dkt. #46-1) at 117.) The denial explained that he had to wear his state-issued shoes for security reasons.

         On August 8, 2016, Hannula referred Franklin to Winkley's for his final fitting, at which point he received bilateral custom-made arch supports. Franklin went to that appointment wearing his Nike boots (his personal shoes), but he also brought along his state-issued boots. The HSU's progress note about that visit indicates that Franklin wanted the supports to be fitted to the Nike boots rather than his state-issued low boots. (Ex. 1000 (dkt. #46-1) at 46.) However, Dr. Hannula wrote in a progress note following that same visit that Franklin was expected to wear his supports in his state-issued boots, since his Nike boots were not approved as a medical necessity. (Id.) Hannula further avers that those custom supports fit into Franklin's state-issued low boots, and that if they did not fit, HSU and security staff would have found a different type of support or shoe for Franklin. Franklin's position is that the supports did not fit his shoes; he claims that his low, state-issued shoe exposed too much ankle.

         On August 26, 2016, Franklin was seen by HSU staff, and he reported blisters on the large toe of his left foot. This prompted Dr. Hannula to refer Franklin back to Winkley to adjust the inserts. Also that day, Hannula added a note to the prescriber's orders clarifying that Franklin did not have “special boots from Winkley's, ” despite Franklin referring to his Nike boots as his being from Winkley, obviously wanting to clarify that Franklin's Nike boots were not deemed medically necessary.[2]

         At that point, according to Franklin, HSU Manager Barker required Franklin to wear his state-issued boots with the AFOs when he went to the HSU, when he worked as a maintenance clerk, and when he worked in technical support. (Pl. Opp'n Br. (dkt. #48) at 3.) Franklin further claims that when he was engaging in any of these activities, his state-issued boots caused his feet to ache, swell and bleed, and so Franklin was again sent to Winkley on September 26, 2016, where an orthotist added arch supports to Franklin's inserts. Even then, Franklin claims the added supports provided no comfort; they only stretched his state-issued boots wider and added plastic to the supports. Franklin also apparently believed that he would be getting arch supports for his Nike boots, but the supports were fit for his state-issued boots.[3]

         C. Fall 2016 Inmate Complaint

         In September 2016, Franklin submitted Inmate Complaint SCI-2016-19919, claiming that security staff had denied him pre-approved shoes. Apparently, in August of 2016, Franklin had ordered a new pair of Nike's -- the Nike Air Max 90 Essential -- but a property sergeant declined to deliver them. (Ex. 1002 (dkt. #47-2).) On September 15, 2016, an inmate complaint examiner (“ICE”) recommended dismissal of the complaint, explaining that, while Franklin had ordered new Nike Air Max boots, he had no prior approval to receive them to address a medical issue. Further, ICE noted DAI Policy 309.20.03, which requires prisoners to obtain prior approval for items from unapproved vendors and for the cost not to exceed $75. ICE observed that: (1) Franklin's proposed vendor, Finish Line, was not an approved vendor; (2) he had not received prior approval for those shoes; and (3) the Nike Air Max boots cost more than $75. The warden accepted the dismissal recommendation on September 20, and Franklin's appeal was denied on November 19, 2016.

         Since the record indicates that Franklin continued to wear his “personal shoes” during this time frame, the court presumes that Franklin still had possession of and continued to wear the Nike boots that he had purchased back in 2014. Despite the result of his grievance, Franklin also attempted to get the new Nike boots back via the HS U.Specifically, on October 19, 2016, he submitted a Health Services Request (“HSR”), reporting that he had met with Barker and security staff about his shoe needs but was unclear whether he could have his Nike boots that had been withheld by property. (See dkt. #1-2 at 33.) He received a response on November 22 that HSU would see him again for his foot and ankle issues.

         Four days later, on November 26, 2016, Franklin arrived in the HSU wearing his personal 2014 Nike boots, and told staff that he had turned over his orthotics to HSU because they did not work. Franklin also reported that he did not want the orthotics because they did not fit in either his state-issued or personal shoes, complaining that Winkley did not use technology in forming his supports. During HSU staff's examinations, they further noted that Franklin's left foot and leg had “thickened indurated areas, scaly in appearance, has four of these areas from foot to knee, located anteriorly, ” and that he has a blister on his left foot, but no signs of infection. (Ex. 1000 (dkt. #46-1) at 44.) Finally, staff noted that Franklin's right shin had raised, scaly lesions, and they encouraged him to continue using cream to treat his lesions. However, Franklin declined the offer to have his inserts reissued. (Id. at 43.)

         Dr. Hannula next met with Franklin on November 29, 2016, along with HSU Manager Barker and Franklin's housing unit manager, to address his shoe needs. At that time, Franklin was required to wear his low-top boots with custom orthotics when he was working in the kitchen. Franklin complained that the orthotics needed adjustments and the low state-issued boots were uncomfortable, especially in the kitchen, where he has to stand all day. In contrast, Franklin reported that when he was allowed to wear his 2014 Nike Air Max ACG boots with his orthotics, they are very comfortable. Therefore, it was proposed that Franklin use those boots as his state shoe, and HSU Manager Barker agreed to follow up to get them approved to be his state-issued shoes. (Ex. 1000 (dkt. #46-1) at 43.) According to Barker, however, Franklin changed his mind at the end of the meeting and refused to have the Nike Air Max ACG designated as his medically-necessary, state-issued boot. (Barker Decl. (dkt. #47) ¶ 7.) Franklin disputes this, claiming that he never refused the Nike boot as his medical state-issued shoe. (Franklin Decl. (dkt. #50) ¶ 19; Pl. Opp'n Br. (dkt. #48) at 3.) Indeed, he claims that Barker's assertion must be false, because he never signed a “medical refusal form” used when a prisoner declines medications.

         D. Early 2017 Inmate Complaint

         In December of 2016, Dr. Hannula referred Franklin to Winkley once again for adjustments to his orthotics, and Franklin had adjustments made on December 20, 2016.[4]In January of 2017, Franklin submitted inmate complaint SCI-2017-2859, again complaining that he had been denied use of the new Nike Air Max 90 Essential boots he had ordered, but this time adding that Finish Line would not give him a cash refund for the shoes. ICE recommended dismissal of this complaint because he had ordered the shoes from a non-approved vendor, citing back ...


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