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Howard v. McCreedy

United States District Court, E.D. Wisconsin

January 10, 2020




         Plaintiff Derrick F. Howard, a Wisconsin state prisoner, is proceeding on claims that: (1) the defendants prescribed an ineffective course of treatment for his chronic foot injury and ignored podiatry specialists' recommendations regarding the type of boots he needs for his foot condition, in violation of the Eighth Amendment, and (2) the defendants issued him state boots in retaliation for filing this case. (Docket # 23.) U.S. District Judge Lynn Adelman has referred the case to me to handle all pretrial proceedings. (Docket # 19.) Before me now is Howard's amended motion for a preliminary injunction in which he seeks an order enjoining the defendants from preventing him from ordering ACG Air Max Boots. (Docket # 47 at 9.) For the reasons explained below, I recommend that Howard's motion be denied.


         A preliminary injunction is “an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). The purpose of such an injunction is to minimize the hardship to the parties pending the ultimate resolution of the lawsuit.” Fahenm-El v. Klincar, 841 F.2d 712, 717 (7th Cir. 1988). To obtain a preliminary injunction, the plaintiff has the burden of establishing that: (1) he is likely to succeed on the merits of his claim; (2) he has no adequate remedy at law; and (3) he is likely to suffer irreparable harm without the injunction. Planned Parenthood of Ind., Inc. v. Comm'r of Ind. State Dep't of Health, 699 F.3d 962, 972 (7th Cir. 2012) (citing Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 589-90 (7th Cir. 2012)).

         In the context of prisoner litigation, the scope of the court's authority to issue an injunction is circumscribed by the Prison Litigation Reform Act (“PLRA”). Westefer v. Neal, 682 F.3d 679, 683 (7th Cir. 2012). Under the PLRA, preliminary injunctive relief “must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2); see also Westefer, 682 F.3d at 683 (noting the PLRA “enforces a point repeatedly made by the Supreme Court in cases challenging prison conditions: prisons officials have broad administrative and discretionary authority over the institutions they manage”) (internal quotation marks and citation omitted).


         In June 2016, Dr. Corey Wesner examined Howard's foot and recommended that Howard “be allowed to purchase personal boots from an outside vendor just like the ones he currently has.” (Docket # 22-1 at 3-4.)

         On October 2, 2017, Dr. Thomas Sheridan examined Howard at Agnesian Healthcare, and diagnosed him with “chronic metatarsalgia, mainly on the right, with some synovitis, capsulitis dorsal 1st metatarsal cuneiform on the right foot.” (Id. at 6.) He noted that Howard had had the same shoes for three years and that they were “worn out and the forefoot and plantar aspect of the foot and sole are completely not providing any cushion for him.” (Id.) Dr. Sheridan recommended “the same type of shoe boot that [Howard] wears now of a new type and the orthotic combination for now.” (Id. at 7.) He did not recommend surgical intervention and he restated that “I still think he should try and stay with conservative efforts with orthotic and shoe management and we need to just give it a little bit more time.” (Id.)

         On April 16, 2019, Dr. Johnathan Stroebel examined Howard at Agnesian Healthcare. (Docket # 37-1 at 1-2.) Dr. Stroebel's Office Clinic Note states in part:

The patient stated that he has a lot of issues with shoe gear. The state-issued boots are extremely uncomfortable for him. The shoes that he has ordered from the catalogue that are allowed at his facility have broken down quite a bit. He states that 4 year ago he had an ACG Air Max boot that he ordered from the Eastbay [sic]. He states that that was the most comfortable shoe gear that he had. He still has them, but they have broken down and are no longer effective.
PLAN: The patient was able to have relief with a pair of boots that he had several years ago. The patient should be allowed to order the ACG Air Max boots from the Eastbay company provided that that is allowed at the institution. The patient's orthotics were evaluated. They are showing fairly heavy wear. His previous casts are digitally stored and so a new pair of orthotics will be fabricated from that digital copy. Lastly, he was started on naproxen 500 mg, 1 tablet twice daily for 6 weeks. I would recommend that he follow up in 3 months if there is no improvement.

(Docket # 37-1 at 2.)

         On October 16, 2019 (sixteen days after Howard filed his amended motion for preliminary injunction), Howard had a follow-up appointment with podiatrist Dr. Stroebel. (Docket # 52 ¶ 17; Docket # 52-2 at 2-4.) Dr. Stroebel noted that Howard's physical examination was “fairly unremarkable.” (Docket # 52-2 at 3.) Howard had “minimal arthritic changes to the medial aspect of the midfoot of the right foot, ” no inflammation in right or left foot, and no complaints of significant pain with palpation to the right or left foot. (Id.) Dr. Stroebel noted that the new orthotics conform well to Howard's feet. (Id.) ...

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