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Soto v. White

United States District Court, W.D. Wisconsin

September 25, 2019

JOSÉ SOTO, Plaintiff,



         Pro se 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.

         There 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.


         The following facts are undisputed except where noted.

         A. The parties

         Plaintiff 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.

         Soto’s 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 Soto’s claims.

         B. Relevant DOC policies

         WCI 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.

         The DOC 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.

         C. Soto’s 2013 settlement agreement

         Soto 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 policy.

         According 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.

         Soto 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.

         D. Soto’s medical treatment

         The 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.

         1. Soto’s consultations with Migon

         On 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.

         Soto 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.

         On 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.

         On 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.

         The 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.

         Soto 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, ¶ 24.

         2. Transfer to ...

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