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Washington v. Schueler

United States District Court, W.D. Wisconsin

September 10, 2019

JAMES WASHINGTON, Plaintiff,
v.
RENEE SCHUELER, TRISHA ANDERSON and JAMIE GOHDE, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB DISTRICT JUDGE

         Pro se plaintiff James Washington is incarcerated at the Columbia Correctional Institution. He is proceeding on the following claims under the Eighth Amendment and state negligence law: (1) defendant Trisha Anderson failed to order Nike athletic shoes that had been recommended by plaintiff's podiatrist and later told plaintiff that he would have to make do with prison-issued shoes in which his orthotics did not fit; and (2) defendants Renee Schueler (in both her individual and official capacities) and Jamie Gohde failed to address three health services unit policies that affected plaintiff's ability to get appropriate foot care. (I have amended the caption to reflect defendants' full names and the correct spelling of their names. As noted below, Cindy Buchanan replaced Schueler as the health services unit manager in December 2018 and would be the appropriate defendant for purposes of injunctive relief. However, it is not necessary to revise the caption to reflect the proper defendant for plaintiff's official capacity claim because plaintiff has not shown that he is entitled to such relief.)

         Before the court is defendants' motion for summary judgment. Dkt. #22. Plaintiff also has filed a motion to strike the declarations submitted by defendants in support of their motion, dkt. ##27-29, on the grounds that they are not signed and contain factual errors. Dkt. #42. For the reasons below, I am denying plaintiff's motion to strike and granting defendants' motion for summary judgment with respect to plaintiff's Eighth Amendment claims. Plaintiff's state law claim against Schueler must be dismissed because he failed to comply with the notice of claim requirements under Wis.Stat. § 893.82 with respect to that claim. Finally, I decline to exercise supplemental jurisdiction over plaintiff's negligence claims against defendants Anderson and Gohde and will dismiss those claims without prejudice so that plaintiff can refile them in state court if he chooses to do so.

         From the parties' proposed findings of fact, I find the following facts to be undisputed unless otherwise noted.

         UNDISPUTED FACTS

         A. The Parties

         Plaintiff James Washington has been incarcerated at the Columbia Correctional Institution in Portage, Wisconsin since January 5, 2016. All of the defendants worked at Columbia during the events at issue in this case. Defendant Renee Schueler worked as a nurse and the health services manager from August 21, 2017 to August 21, 2018; defendant Jamie Gohde was the health services manager from July 25, 2016 until May 15, 2017; and defendant Trisha Anderson was a nurse clinician 2 from September 26, 2011 to January 21, 2018. Cindy Buchanan became the health services manager at Columbia on December 10, 2018.

         (Plaintiff proposes several facts related to the alleged reasons defendants left Columbia. Dkt. #35 at ¶¶ 1-2, 6, 8. However, I have not considered them because the only evidence that plaintiff proposes in support of these facts is his own unsupported opinion that defendants Schueler and Gohde were incompetent managers and that defendant Anderson had become “disillusioned with the health services unit” because security staff were injecting themselves into decisions about shoes. In addition, these facts are not material to plaintiff's claims in this case.)

         B. Prison Practices and Policies Regarding Shoes and Podiatry Appointments

         Inmates at Columbia are given one pair of state-issued shoes. Inmates may buy up to two pairs of personal shoes from an approved vendor catalog that contains shoes and other gear that have been reviewed and pre-approved for use in a maximum-security prison. The catalog includes shoes that are commonly worn by inmates to accommodate an orthotics device or insole, but it does not offer shoes that cost more than $75 because valuable property presents a risk of theft and other disruptive behavior in prison. (Plaintiff unsuccessfully attempts to dispute defendants' stated reason for the $75 limit. The only evidence he cites in support of his contention is his own unsupported opinion that former Governor Tommy Thompson had declared that it was wrong to allow prisoners to walk around in $300 to $400 shoes.) An inmate may request alternative shoes if he believes that he needs them for a medical condition.

         Requests for alternative shoes are reviewed by a special needs committee, which is a multi-disciplinary committee made up of medical, security and other staff. If necessary, the medical staff member on the committee independently reviews the inmate's medical records to offer medical expertise on the inmate's particular request. If an inmate has a legitimate medical condition affecting the shoes he can wear, the special needs committee may authorize an alternative pair of state-issued shoes at no cost to the inmate. At the time relevant to this case, the alternative shoe was known as the “Apex shoe.” The committee also may authorize an inmate to order shoes from outside the approved vendor catalog, and it may authorize an inmate to order shoes that exceed the $75 limit.

         There is no policy or practice limiting the number of podiatry appointments an inmate may have. There also is no policy or practice requiring inmates to wait months to schedule podiatry appointments. Rather, health services unit staff schedules offsite consultations for inmate patients when ordered to do so by Department of Corrections providers and such consultations are subject to the offsite providers' availability.

         C. Plaintiff's Shoes and Foot Problems

         Plaintiff has a history of foot problems for which he has ordered and received several pairs of personal shoes in 2016 and 2017: white Adidas brand shoes in April 2016; black and white Nike shoes in October 2016; white, black and grey Nike shoes on January 11, 2017; black, grey and white Nike shoes on June 23, 2017; and black and white Nike shoes on August 30, 2017. (Neither side has proposed any findings of fact explaining how plaintiff was able to order those shoes or whether the special needs committee approved them.)

         On January 9, 2017, plaintiff was referred to an off-site podiatry clinic to be evaluated for bilateral bunions with inflammation and bilateral hammertoes. The podiatrist recommended several things, including that plaintiff wear custom-made orthotics or insoles in his shoes, use toe foam and order new extra-wide athletic shoes, such as New Balance shoes, from an outside vendor. Dkt. #36-1 at 11. On January 27, defendant Anderson entered a note in plaintiff's prison medical record, stating that he was allowed to wear personal shoes at all times until he received Apex shoes, but she did not refer to the January 9 recommendation.

         The podiatrist recommendation from January 9, 2017 was either misplaced or overlooked by health services staff at Columbia because plaintiff was not provided orthotics or toe foam. Dkt. #36-1 at 22. On January 30, plaintiff returned to the podiatrist, who again recommended that plaintiff wear insoles and athletic shoes, but specified that he was recommending a Nike athletic shoe for plaintiff. Id. at 21-22. (At that time, ...


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