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Northern v. Dobbert

United States District Court, W.D. Wisconsin

September 30, 2019



          JAMES D. PETERSON District Judge

         Plaintiff Lawrence Northern partially tore his Achilles tendon playing basketball at the New Lisbon Correctional Institution. This is the second case about the treatment he received both before and after he received surgery for his injury. In this case, Northern alleges that defendant nurses and “Special Needs Committee” staff gave him improper medical care, retaliated against him, and discriminated against him, in violation of the United States Constitution and Wisconsin law. He says that prison staff made him stay in a bunk assignment forcing him to painfully climb stairs and a ladder, failed to properly treat his postsurgical wound, and failed to provide him with more comfortable shoes.

         Defendants have filed two motions for summary judgment, including one based on Northern’s alleged failure to exhaust his administrative remedies. Dkt. 23 and Dkt. 68. I conclude that all of Northern’s constitutional claims should be dismissed, either because he failed to exhaust his administrative remedies or because his claims fail on the merits. Because I am dismissing all of Northern’s federal claims, I will relinquish jurisdiction over his state-law medical malpractice claims; those claims will be dismissed without prejudice to him refiling them in state court.


         The following facts are undisputed unless noted otherwise.

         Plaintiff Lawrence Northern is a state of Wisconsin prisoner who was housed at New Lisbon Correctional Institution (NLCI) during the events relevant to this case. Northern is currently incarcerated at Jackson Correctional Institution, in Eau Claire, Wisconsin.

         All of the defendants worked at NLCI for at least part of the time that Northern was housed there: Lynn Dobbert, Toni Johnson, Koreen Frisk, Angela Stetter, and Carol Walter were nurses, Mathew Martinson was a lieutenant, Lynn Washetas was a correctional management services director, and Candace Warner was the Health Services Unit (HSU) manager.

         A. Cell and bed assignment

          On January 25, 2013, Northern injured his Achilles tendon during a basketball game. He suffered pain and lack of mobility for months afterward. (Some of the treatment that Northern received at this time was the subject of his previous lawsuit). On April 1, a DOC doctor concluded that Northern probably had a partial tear of his Achilles tendon and he ordered an orthopedic consultation. An orthopedic surgeon then diagnosed Northern as having a chronic left Achilles tear and offered Northern an elective reconstruction surgery.

         On April 18, 2013, Northern submitted a health service request for approval to be moved to a lower tier at the prison with a low bunk, to avoid the pain and difficulty he had in climbing stairs to get to the cell and climbing a ladder to get to his bed. He also asked for ice. Defendant Dobbert says that she responded the next day, granting all of those requests. She filled out a “special needs form” checking boxes for first-floor and low-bunk placements, and for ice. But Northern was not immediately moved to a low-tier, low-bunk cell; that took until April 28.

         B. Wound care

          On May 9, 2013, Northern had surgery performed on his left Achilles tendon. The surgeon discovered that the Achilles tendon had healed in an elongated position. The surgeon’s postsurgical instructions directed prison staff to begin physical therapy, change the surgical dressing in 72 hours, and keep the wound dry until it healed. Defendant Frisk filed out a special-needs form providing for a daily dressing change. But over the next few weeks, Northern received dressing changes only about half of the days, despite his wound continuing to seep.

         C. Special Needs Committee

         During the summer and fall of 2013, Northern attended physical therapy to repair his Achilles tendon. He continued to experience pain and discomfort in his foot and ankle. He had difficulty walking, starting and stopping, changing directions and using stairs. At his therapy appointments he noted pain levels ranging from 3 to 6 on a 10-point scale. The tops of his low-rise state-issued boots and personal shoes chafed against his surgical scar, which had healed poorly. He made a health service request seeking approval for a high-top boot for medical reasons. Dobbert responded that health services “does not deal with shoes unless they have to be sent out to physically altered.” Dkt. 94-16, at 2. Eventually, Northern turned to the prison’s “Special Needs Committee” for help regarding his shoes.

         Under DOC Bureau of Health Services policy no. 300.07, the prison used a Special Needs Committee, a rotating group of medical and non-medical officials, to decide prisoner requests for “special needs” or “comfort” items. A prisoner’s treating medical staff are generally directed to refer requests for health-related property items or accommodations to the committee rather than write orders for particular items themselves.

         During committee meetings, the inmate’s entire medical chart is available for the medical staff members to review. Non-medical staff members of the committee do not review the medical record due to privacy concerns. The policy directs the committee to use guidelines attached in an appendix to the policy and “[established nursing protocols” to decide whether particular items or accommodations are appropriate. The appendix states the following about shoes:

[The Health Services Unit] does not issue, purchase, or authorize special purchases if the inmate is able to wear regular shoes (common shoes that can be purchased from a store or catalog). Inmates should be encouraged to purchase their own personal shoes. If a patient is not able to wear the State supplied footwear due to a significant medical condition (i.e. diabetic with foot ulcers or need for Velcro shoes due to a [stroke] . . .) and provision of an alternative off the shelf shoe is necessary, the facility shall provide an alternative. These cases are to be very limited and determined on a case by case basis through the established committee/nurse review.

Dkt. 73-1, at 3.

         Inmates are allowed to order personal property only from approved vendors. At the times relevant to this lawsuit, the DOC had three approved vendor catalogs, at least two of which had both high-top and low-top shoes available for purchase.

         On May 6, 2014, Northern wrote to the Special Needs Committee seeking approval for better footwear requesting, “much improved footwear (i.e. high-topped State issued boots that fit and tennis shoes) with greater support which effectively distributes pressure from a vend[o]r other than [the state-approved vendors], for example EastBay.” Northern stated that his “Achilles tendon is chronically painful despite aggressive and conscientious management such as rest, ice, pain medication (Meloxicam) and activity modification” Dkt. 94-17, at 2. The Special Needs Committee included defendants HSU manager Warner, security representative Martinson, and ADA coordinator Washetas. On May 14, 2014, Northern sent a very similar letter to Martinson. Dkt. 94-18.

         The Special Needs Committee met in early June 2014. Warner, as the only medical professional on the committee, reviewed Northern’s medical records and the special needs policy and determined that there was no medical need to grant Northern’s request. Northern’s record contained no recommendation or suggestion from any of his treating physicians, either onsite or offsite, that high-topped boots or a particular type of shoe would facilitate his recovery or prevent reinjury, or that special shoes were otherwise medically necessary. Warner noted the denial in Northern’s medical record on June 5. Northern was not notified.

         On June 16, 2014, Northern submitted another letter asking for the approval of his special needs request for better shoes. In his letter, Northern stated that he “urge[s] [the committee] to promptly execute the process as I believe the appropriate footwear could alleviate/prevent my chronically painful Achilles tendonosis.” Dkt. 94-20.

         On June 19, 2014, Northern submitted an offender complaint that stated he was told that his May 6 request was forwarded to the Special Needs Committee. On June 24, defendant Warner issued a memo stating that Northern’s request was denied. Dkt. 94-22. In the Comments/Explanation section, Warner wrote, “Can purchase personal shoes from approved catalogs.” Id.


         Defendants have filed two motions for summary judgment. To succeed on their motions, defendants must show that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett,477 U.S. 317, 322 (1986). “A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party.” Brummett v. Sinclair Broad. Grp., Inc.,414 F.3d 686, 692 (7th Cir. 2005). All reasonable inferences from the facts in the summary judgment record must be drawn in the nonmoving party’s favor. Baron v. City of Highland Park,195 F.3d 333, 338 (7th Cir. 1999). If the nonmoving party fails to ...

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