United States District Court, W.D. Wisconsin
D. PETERSON DISTRICT JUDGE
plaintiff José Soto, a prisoner at Waupun Correctional
Institution (WCI), alleges that defendants, current and
former medical providers at WCI, failed to provide adequate
treatment for his plantar fasciitis and Achilles tendonitis
in violation of the Eighth Amendment to the United States
Constitution. He says that defendants have been aware of his
medical conditions since January 2015, but they have ignored
his requests for more supportive shoes, better fitting
orthotics, and other treatment that would alleviate his pain.
are three motions currently before me: (1) defendants’
motion for summary judgment, Dkt. 84; (2) Soto’s motion
for an injunction “order[ing] defendant York’s
husband [to] stop retaliation, cease continued harassment,
and issue typewriter to type motions for summary judgment,
” Dkt. 107; and (3) Soto’s motion for an
emergency injunction directing defendants to send him to a
podiatrist and correct his orthotics, Dkt. 146. For the
reasons explained below, I will grant defendants’
motion for summary judgment, deny Soto’s motions for
injunctive relief, and dismiss the case.
following facts are undisputed except where noted.
José Soto is a prisoner at WCI. He suffers from
plantar fasciitis and Achilles tendinitis, two painful foot
conditions that he says stem from congenital foot
deformities. Defendants are current and former health care
providers in WCI’s health services unit (HSU). Dr.
Jeffrey Manlove was Soto’s treating provider for much
of the period relevant to this suit. Chrystal Marchant is the
current health services manager at WCI, which means she
monitors and manages the health services provided to
WCI’s inmate population. Soto has also named three
former WCI health services managers as defendants: Nancy
White, Belinda Schrubbe, and Ann Scarpita. Donna Larson and
Ann York are registered nurses currently employed at WCI.
Gail Waltz and Amy Gunderson are registered nurses previously
employed at WCI.
claims in this suit concern his ability to obtain treatment
to address his foot pain. I’ll summarize the policies
and procedures that govern Soto’s access to treatment
before turning to the factual allegations underlying
Relevant DOC policies
provides all inmates with state-issued shoes. But inmates may
also buy and wear “personal shoes, ” which are
shoes available for purchase from an approved vendor catalog.
As a general rule, inmates are not permitted to wear personal
shoes when housed in segregation. Instead, they are given
“plastic Croc-like shoes or canvas slip-ons” to
wear. Dkt. 141, ¶ 30.
has a policy governing medically necessary items, Policy
300.07, which has a subsection about shoes. It provides that:
(1) prisons will provide “customized special medical
orthopedic shoes” (i.e., shoes specially customized by
an orthotic company using a mold or plastic cast of the
inmate’s feet) when a treating provider submits and a
reviewing official approves the appropriate authorization
form; (2) HSU does not issue, purchase, or authorize special
shoe purchases if the inmate is able to wear regular shoes,
and it will only provide inmates with alternatives to the
regular state-supplied footwear in limited, case-by-case
circumstances when an inmate cannot wear the state-supplied
footwear due to a significant medical condition; and (3) HSU
is not involved in ordering extra pairs of personal shoes for
inmates. Dkt. 141, ¶ 28.
Soto’s 2013 settlement agreement
has long maintained that the DOC-provided treatment for his
foot conditions is inadequate. In 2011, he filed suit against
several employees of Columbia Correctional Institution (CCI),
his former institution, alleging that they violated his
rights under the Eighth Amendment. See Soto v.
Suliene, No. 11-cv-567-slc (filed Aug. 10, 2011). He
entered into a settlement agreement with those defendants and
dismissed the case in 2013. The terms of that settlement
entail certain deviations from the DOC’s standard shoe
to the agreement, DOC will provide Soto with custom orthotics
at its own expense, which he can wear in general population
at any DOC institution. If those custom orthotics are
removable rather than built into Soto’s shoes, Soto can
buy his own shoes from any vendor including vendors outside
of the canteen catalogs, so long as the vendor is approved by
the Department of Adult Institutions (DAI) and the shoes
comply with the DAI’s policy on shoes. Soto must buy
those shoes using his own funds. He may only wear them while
in general population. If Soto is housed in segregation at
any DOC institution, he is to be provided with black Velcro
shoes and arch support inserts, at DOC’s expense. Dkt.
90-3, ¶ 2.
was transferred to WCI in 2011, and in the years following
the 2013 settlement, he occasionally filed motions in the
2011 case seeking to enforce the settlement agreement against
officials at WCI who he said were violating it. See
No. 11-cv-567, Dkt. 150; Dkt. 157; Dkt. 163; Dkt. 177; Dkt.
206. Those motions have been denied by this court. Soto also
filed this lawsuit on July 17, 2017. He does not seek to
enforce his 2013 settlement through this suit, but the
settlement is necessary context for understanding
Soto’s interactions with defendants.
Soto’s medical treatment
allegations relevant in this case begin in January 2015, but
understanding them requires going back to Soto’s
appointments with a University of Wisconsin podiatrist, Dr.
Jill Migon, starting in 2013.
Soto’s consultations with Migon
October 25, 2013, Migon evaluated Soto’s feet and
concluded that he had plantar fasciitis and Achillles
tendinitis. She had casts made for a pair of customized
orthotics and she gave Soto a handout on stretching exercises
for his Achilles tendon. She recommended icing and a night
splint, and if those measures proved ineffective, physical
therapy. She noted that “[i]f the PT, night splint
orthotics, stretching, and icing are not effective, then he
can return to the clinic to see me for further
assistance.” Dkt. 88-1, at 9. Per those
recommendations, Soto was given permanent medical
restrictions to (1) wear a night splint; (2) wear custom
orthotics at all times, even while in segregation; and (3)
wear black Velcro shoes while in segregation. Dkt. 141,
¶¶ 47, 48. Because the custom orthotics were
removable, they could be worn in both Soto’s black
Velcro segregation shoes and the personal shoes that Soto had
at that time. Id. ¶ 49.
saw Migon again on May 2, 2014. In her clinical notes, she
noted that Soto had been icing, stretching, using a night
splint, and wearing the custom orthotics with some mild
improvement. She noted that Soto was continuing to have pain
associated with his right Achilles tendon, but that the
plantar fasciitis in his left heel had resolved. Soto
reported that his “right orthotic cause[d] him to turn
his foot out and walk on the side of his foot, ”
causing discomfort. Dkt. 88-1, at 8. So Migon modified the
right orthotic to decrease the height of the arch. She again
recommended physical therapy for the Achilles tendon and for
the plantar fasciitis on the right side. Soto began a course
of physical therapy starting on June 20, 2014.
January 27, 2015, Soto had an appointment with Manlove at
WCI, at which he complained of foot pain due to his orthotics
no longer fitting correctly. Dkt. 88-1, at 131. That same
day, Manlove submitted a request to the Bureau of Health
Services’ medical director requesting approval for a
podiatry evaluation and repair or refitting of Soto’s
orthotics, which was approved. Id. at 238–39.
February 20, 2015, Migon saw Soto for a third time. In her
clinical notes, she stated that Soto was continuing to
complain of pain on the left side, and that he had
“tried continuing to wear his custom orthotics and has
also tried physical therapy, night splint and icing without
any improvement. . . . He relates that he believes that his
orthotic is sinking in causing him to have pressure at the
ball of the foot from the orthotic from poor shoes.”
Id. at 6. Migon applied a metatarsal pad to his
right orthotic to help diminish some of the pain. She also
noted that “the state issued athletic shoes are very
unsupportive, flimsy, and the orthotic seems to be sitting or
sinking into the heel, ” and suggested that “a
better quality shoe, such as New Balance or similar athletic
shoe that can fit his orthotics, will likely resolve the
right foot pain.” Id. Migon prescribed Soto a
“Bledsoe boot” to immobilize his foot and
directed him to wear it for six weeks and to stop all
physical activity. Dkt. 141, ¶ 56. She advised that if
Soto was continuing to have problems after six weeks,
“an MRI would likely be the next step.” Dkt.
88-1, at 6.
claims at issue in this case concern what happened after
Soto’s third appointment with Migon. Manlove did not
order new shoes for Soto following this appointment, and the
parties dispute whether Migon’s note obligated him to.
Defendants contend that per Policy 300.07, the health
services unit does not order personal shoes for inmates, and
it will get involved in personal shoe-related issues only if
the inmate is unable to wear the state-issued footwear for
medical reasons. Dkt. 141, ¶ 57. And because Soto was
housed in general population at this time, he was free under
the terms of his 2013 settlement agreement to buy personal
shoes from any outside vendor so long as they complied with
prison policies. Id. ¶ 59.
counters that Manlove “was obligated” by
Migon’s treatment note to obtain “better
supportive shoes” for him. Id. ¶ 57. He
says that defendants lied to him by telling him that they had
ordered him New Balance shoes when they hadn’t. Dkt.
140, ¶¶ 7–8. And indeed, in March 2015, Soto
did receive two written communications from Nurse Larson
indicating that shoes had been ordered for him. See
Dkt. 124-2, at 72 (in response to a March 10, 2015 health
service request from Soto asking about whether size 9.5 shoes
for his orthopedics had been ordered, Larson responded
“I will order you New Balance size 9.5 EEE per the
podiatrist recommendation”); id. at 76 (in
response to a March 17, 2015 health service request from Soto
asking when he would receive the shoes, Larson wrote
“the shoes are ordered. When they come in HSU will call
you over to get them.”). It is undisputed that Soto
never got the promised shoes. Defendants contend that,
regardless the representations Larson made on Soto’s
health service requests, as a nurse, she lacked authority to
order Soto new shoes. Dkt. 140, ¶ 8; Dkt. 141, ¶
Transfer to ...