Burgess v. Eckstein et al

Filing 48

ORDER signed by Judge J.P. Stadtmueller on 4/23/2018: GRANTING 31 Defendants' Motion for Summary Judgment and DISMISSING CASE with prejudice. (cc: all counsel, via mail to Edward B. Burgess at Wisconsin Secure Program Facility) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
EDWARD B. BURGESS,
Plaintiff,

v.

REBECCA LENZ, SHANE
BRUNNER, JEAN LUTSEY, MARY
SAUVEY, KATHY LEMENS, MARY
ALSTEEN, and ANA BOATWRIGHT,

Case No. 16-CV-1147-JPS

ORDER

Defendants.
1.

INTRODUCTION
Plaintiff Edward B. Burgess, a prisoner who is representing himself,

brought this action alleging that Defendants, various medical and
correctional employees of Green Bay Correctional Institution (“GBCI”) and
the Wisconsin Department of Corrections, violated Plaintiff’s Eighth
Amendment right to adequate healthcare. See (Docket #11). After this action
was reassigned to this branch of the Court from Magistrate Judge William
E. Duffin, to whom the case was originally assigned, Defendants moved for
summary judgment. (Docket #31). That motion is fully briefed, see (Docket
#31–40 and #44–46), and for the reasons explained below, it must be
granted.
2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that the court “shall

grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th

Cir. 2016). A fact is “material” if it “might affect the outcome of the suit”
under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. The
court construes all facts and reasonable inferences in the light most
favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016).
3.

BACKGROUND
3.1

Plaintiff’s Failure to Dispute the Material Facts

The relevant facts are undisputed because Plaintiff failed to dispute
them. In the Court’s scheduling order, entered January 24, 2017, Plaintiff
was warned about the requirements for opposing a motion for summary
judgment. (Docket #20 at 3). Accompanying that order were copies of
Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both of which
describe in detail the form and contents of a proper summary judgment
submission. In Defendants’ motion for summary judgment, they too
warned Plaintiff about the requirements for his response as set forth in
Federal and Local Rules 56. (Docket #31). He was provided with additional
copies of those Rules along with Defendants’ motion. Id. at 3–13. In
connection with their motion, Defendants filed a supporting statement of
material facts that complied with the applicable procedural rules. (Docket
#33). It contained short, numbered paragraphs concisely stating those facts
which Defendants proposed to be beyond dispute, with supporting
citations to the attached evidentiary materials. See id.
Plaintiff did not respond to Defendants’ statement of facts and did
not offer his own proposed statement of facts. His only submissions were a
two-page response brief, a two-page affidavit, and four pages of exhibits.
Page 2 of 12

(Docket #44 and #45).1 None of these documents contains even a facial
attempt to meet the requirements of Federal and Local Rules 56 for
disputing factual assertions. Despite being twice warned of the strictures of
the summary judgment procedure, Plaintiff ignored those rules by failing
to properly dispute Defendants’ proffered facts with citations to relevant,
admissible evidence. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Though
the Court is required to liberally construe a pro se plaintiff’s filings, it cannot
act as his lawyer, and it cannot delve through the record to find favorable
evidence for him. Thus, the Court will, unless otherwise stated, deem
Defendants’ facts undisputed for purposes of deciding their motion for
summary judgment. See Fed. R. Civ. P. 56(e); Civ. L. R. 56(b)(4); Hill v.
Thalacker, 210 F. App’x 513, 515 (7th Cir. 2006) (noting that district courts
have discretion to enforce procedural rules against pro se litigants).
3.2

Relevant Facts

In the absence of any dispute, the facts specific to each Defendant’s
alleged liability will be discussed in the Court’s legal analysis as
appropriate. For now, the Court provides a general overview of the
circumstances of Plaintiff’s claim. All factual discussion is drawn from
Defendants’ statement of proposed facts. (Docket #33).
Plaintiff has had a history of plantar fasciitis—foot pain—going back
more than twenty years. In 2013, while he was incarcerated at Fox Lake
Correctional Institution, Plaintiff was prescribed orthotic inserts for his
shoes. He was never prescribed any special, medically necessary shoes for

Plaintiff’s brief implies that he prepared his own statement of proposed
undisputed facts, (Docket #44 at 1), but nothing like that was ever filed, either at
the time his responsive materials were due, or in the months since then.
1

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the treatment of his condition. Rather, he was provided athletic shoes which
had sufficient depth to accommodate the inserts.
Plaintiff was transferred to GBCI in June 2015. At that time, Plaintiff
had permission to wear the custom orthotics. He was also permitted to wear
a number of his personal, non-state-issued shoes to any health services
appointments for treating his foot pain. When he was transferred, Plaintiff
was using high top tennis shoes to hold the orthotics. GBCI inmates are
allowed two pairs of shoes: one state-issued leather work boot, and another
pair of personal shoes the inmate could purchase from a catalogue. The
Health Services Unit (“HSU”) would also provide inmates with custom
orthopedic shoes when it was deemed medically necessary.
Plaintiff’s foot and shoe complaints began almost immediately. He
met with a Nurse Utter on June 15 and asked that he be allowed to purchase
shoes with more resistant soles that would last longer. The nurse scheduled
him for an appointment with a physician. Defendant Dr. Mary Sauvey
(“Sauvey”) saw Plaintiff on July 20. At that time, Plaintiff requested new
orthotics, and so Sauvey contacted outside orthopedic specialists. In
August, the specialists recommended that Plaintiff be provided a diabetic
shoe with orthotics. Diabetic shoes have additional support to prevent foot
deformities that can develop in those with diabetes. Plaintiff was sized for
such a shoe and a pair was ordered.
When the shoes arrived, Plaintiff said they were too big and refused
to wear them. He instead demanded a pair of high tops. Sauvey replied that
high tops were not medically necessary. Plaintiff and Sauvey met again in
September to discuss his foot issues. Plaintiff insisted that he preferred his
high tops, but Sauvey reiterated that they were not medically necessary, as
the shoes themselves did nothing to treat Plaintiff’s pain. Sauvey again
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recommended diabetic shoes. She also recommended a program of other
pain treatments, including injections, physical therapy, and medication.
Plaintiff asked that he be provided a tennis ball to roll on his feet, which
Sauvey permitted. Plaintiff continued to refuse to wear the diabetic shoes,
as well as the orthotics Sauvey ordered, so Sauvey cancelled Plaintiff’s
future appointments with the outside orthopedic specialists.
In January 2016, Plaintiff was briefly transferred to another
institution, where he was allowed to continue his various foot treatments.
When he returned to GBCI in February, Sauvey discontinued the orders
that permitted Plaintiff to wear his personal shoes and orthotics. She did so
because those items were either not medically necessary, or prohibited by
security concerns, or both. Sauvey set an appointment to see Plaintiff,
hoping to convince him to buy a pair of tennis shoes that he liked, as
opposed to the diabetic shoes he clearly disliked. Sauvey met with Plaintiff
on February 11. This appointment stemmed in part from Plaintiff’s many
requests to replace what he believed were his medically necessary high tops
and custom orthotics. Sauvey examined the high tops and found that they
were in fine condition, and so denied the request.
The pair met again on March 15. Plaintiff claimed that the new
orthotics did not fit in his high tops. He also wanted to have surgery for his
foot condition. He refused the injections that Sauvey had previously
ordered. Sauvey ordered new diabetic shoes and gel insoles for Plaintiff.
She believed that it was important for Plaintiff, diagnosed as diabetic since
January 2016, to have such shoes. Sauvey thought the gel insoles might give
Plaintiff more cushion for his feet.
On March 21, Plaintiff was measured for the new diabetic shoes. On
March 28, Sauvey ran an EMG test on Plaintiff’s feet to determine the source
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of his pain, but the results were normal. When the shoes were ready on
April 5, Plaintiff again refused to accept them in exchange for his current
state-issued shoes. The next day, Sauvey discontinued the diabetic shoes in
light of his repeated refusal to take them. She continued the order for the
gel insoles, which could fit in any shoe. In September 2016, Plaintiff was
transferred out of GBCI.
4.

ANALYSIS
As noted above, Plaintiff was allowed to proceed on a single claim

against all Defendants for an alleged violation of his Eighth Amendment
rights. Plaintiff maintains that each Defendant knew his foot pain was being
inadequately addressed and did nothing to correct this.
Prisoners are entitled to a minimal level of healthcare while in
custody. Petties v. Carter, 836 F.3d 722, 727–28 (7th Cir. 2016). The Eighth
Amendment is violated when the prisoner shows that he “suffered from an
objectively serious medical condition,” and that “the individual defendant
was deliberately indifferent to that condition.” Id. at 728. As the Court noted
at screening, the Gayton case neatly summarizes the claim:
[T]he plaintiff must show that: (1) [he] had an
objectively serious medical condition; (2) the defendants
knew of the condition and were deliberately indifferent to
treating h[im]; and (3) this indifference caused h[im] some
injury. An objectively serious medical condition is one that
has been diagnosed by a physician as mandating treatment or
one that is so obvious that even a lay person would perceive
the need for a doctor’s attention. A medical condition need
not be life-threatening to be serious; rather, it could be a
condition that would result in further significant injury or
unnecessary and wanton infliction of pain if not treated.
With regard to the deliberate indifference prong, the
plaintiff must show that the official acted with the requisite
culpable state of mind. This inquiry has two components. The
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official must have subjective knowledge of the risk to the
inmate’s health, and the official also must disregard that risk.
Evidence that the official acted negligently is insufficient to
prove deliberate indifference. Rather, deliberate indifference
is simply a synonym for intentional or reckless conduct, and
that reckless describes conduct so dangerous that the
deliberate nature of the defendant’s actions can be inferred.
Simply put, an official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference. Even if a
defendant recognizes the substantial risk, he is free from
liability if he responded reasonably to the risk, even if the
harm ultimately was not averted.
Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010) (citations and quotations
omitted). In sum, “deliberate indifference means actual, personal
knowledge of a serious risk, coupled with the lack of any reasonable
response to it.” Ayoubi v. Dart, No. 17-1561, 2018 WL 671152, at *2 (7th Cir.
Feb. 2, 2018).2
The Court will address each Defendant in turn, beginning with
Sauvey. Far from ignoring Plaintiff, Sauvey engaged with him extensively
to address his foot pain. Plaintiff himself exacerbated his condition by
refusing the treatments she proposed. Plaintiff would not wear the diabetic
shoes or the new orthotics. His insistence on using his high tops was based
on nothing more than his own belief about their efficacy, unsupported and
indeed contradicted by Sauvey’s judgment and that of outside orthopedic
specialists. See Perez v. Fenoglio, 792 F.3d 768, 778 (7th Cir. 2015) (prison
medical staff can exhibit deliberate indifference when they do not follow a
specialist’s recommendation). Further, Plaintiff had an option to purchase

Defendants concede, for the purposes of summary judgment, that
Plaintiff’s plantar fasciitis is a sufficiently serious medical condition. (Docket #32
at 11 n.1).
2

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athletic shoes to accommodate his old orthotics but did not do so. Finally,
Plaintiff was provided with medication, injections, physical therapy, and
other treatment devices, such as gel insoles and a tennis ball. When viewing
his care holistically, Plaintiff was provided far more than the minimal level
of care the Eighth Amendment requires. Plaintiff’s disagreement with that
treatment cannot form the basis of a deliberate indifference claim. Snipes v.
DeTella, 95 F.3d 586, 591 (7th Cir. 1996) (“[A] mere disagreement with the
course of [the inmate’s] medical treatment [does not constitute] an Eighth
Amendment claim of deliberate indifference.”) (quotations omitted).
The remaining Defendants require even less discussion. Defendant
Mary Alsteen (“Alsteen”) was a nurse at GBCI who responded to one of
Plaintiff’s HSU requests. In April 2016, Alsteen denied Plaintiff’s demand
for surgery and other foot treatments, as his medical file showed that he
was being treated by Sauvey, and that she had not ordered surgery. Plaintiff
suggests that Alsteen should have done more, but she had neither the
training nor authority to overrule Sauvey’s treatment decisions. Alsteen
was entitled to defer to Sauvey’s care plan as long as she did not “ignore
obvious risks to [Plaintiff’s] health.” Rice ex rel. Rice v. Corr. Med. Servs., 675
F.3d 650, 683 (7th Cir. 2012). Plaintiff has presented no evidence that
Sauvey’s care was so abhorrent that it should have been obvious to Alsteen
that Sauvey was causing him harm.
Defendants Rebecca Lenz (“Lenz”) and Shane Brunner (“Brunner”)
were GBCI correctional officers. In May 2016, Brunner confiscated
Plaintiff’s high tops because he was being placed in temporary lockup in
the restrictive housing unit. Plaintiff had no medical order to wear his high
tops, and so Brunner could not let Plaintiff keep them. Brunner issued
Plaintiff a conduct report for having the shoes, which were considered
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contraband. Lenz was the hearing officer for the conduct report. Without a
valid medical order for the high tops, Lenz had no choice but to find
Plaintiff guilty of possessing contraband.
Brunner and Lenz were not deliberately indifferent to Plaintiff’s foot
pain. Plaintiff never told them that his high tops were medically necessary.
That would have been untrue even had he said it. Further, their actions
were circumscribed by prison rules. Without a valid medical order, neither
could allow Plaintiff to keep the shoes. As non-medical correctional staff,
who are “not responsible for administering medical care to [prisoners],”
they were “entitled to defer to the judgment of [prison] health professionals
so long as [they] did not ignore [the prisoner].” King v. Kramer, 680 F.3d
1013, 1018 (7th Cir. 2012). The officers were clearly entitled to rely on GBCI’s
medical professionals, as they had no role at all in Plaintiff’s medical care.
Plaintiff also levels criticism at Defendants Jean Lutsey (“Lutsey”),
the HSU manager, and Kathy Lemens (“Lemens”), another GBCI nurse. In
June, Lemens addressed an HSU request in which Plaintiff complained that
his high tops had been confiscated. Lemens reviewed Plaintiff’s file and
found no order for the high tops. She told Plaintiff that he would need to
see a physician to address the concern with his high tops. Later that month,
Lutsey responded to additional complaints from Plaintiff about his high
tops. She gave Plaintiff the same answer as Lemens; he had no present order
indicating that the shoes were medically necessary. Like Alsteen, Lutsey
and Lemens were entitled to rely on Sauvey’s ongoing care and could not
override her treatment decisions. Also like Alsteen, there is no evidence that
Lutsey and Lemens knew that Plaintiff was being blatantly mistreated. Rice,
675 F.3d at 683.

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Defendant Ana Boatwright (“Boatwright”), the final defendant, was,
among other things, a corrections complaint examiner. In this capacity, she
reviewed inmates’ appeals from denials of their formal written grievances.
One such appeal she reviewed was Plaintiff’s. He filed a grievance claiming
that Sauvey’s medical decisions were improper, and Boatwright
recommended denial of his appeal. The Seventh Circuit holds that
complaint examiners like Boatwright cannot be held to have acted with
deliberate indifference so long as they do their jobs and do not “routinely
send each grievance to the shredder without reading it.” Burks v. Raemisch,
555 F.3d 592, 595 (7th Cir. 2009). There is no evidence of such misconduct
here. Boatwright investigated Plaintiff’s appeal and determined that he was
receiving

substantial

medical

treatment.

Like

other

non-medical

correctional staff, she was entitled to defer to the medical providers’
judgment. King, 680 F.3d at 1018.
The reader may wonder why the Court has said nothing about
Plaintiff’s contentions up to this point. This is because his brief contains
only one paragraph with any meaningful argument. (Docket #44 at 2). The
statements therein do not aid his claim, however, but rather confirm that
summary judgment is appropriate. Plaintiff says that he “is not disputing
that he was never provided any medical care at all.” Id. Rather, he asserts
that his “medical shoes that helped mitigate the pain . . . were unduly
confiscated for no reason.” Id. Plaintiff contends that he “made incessant
attempts to try to remedy the issue by giving the [Defendants] ample
opportunity to provide [him] with the adequate shoes.” Id. Finally, Plaintiff
argues that his diabetes diagnosis was “illegal” and was used to confiscate
his shoes. Id.

Page 10 of 12

Some of Plaintiff’s statements are not supported by the facts. None
of his shoes, other than the diabetic shoes, were ever deemed medically
necessary. Further, Sauvey’s concerns about Plaintiff’s diabetes were based
on her medical judgment, against which Plaintiff has no contrary medical
evidence. More importantly, Plaintiff’s concerns reveal that he simply
disagrees with the course of treatment ordered by Sauvey. This cannot
support a claim for deliberate indifference. Berry v. Peterman, 604 F.3d 435,
441 (7th Cir. 2010) (“Neither medical malpractice nor mere disagreement
with a doctor’s medical judgment is enough to prove deliberate
indifference.”); King, 680 F.3d at 1019 (“In evaluating the evidence, we must
remain sensitive to the line between malpractice and treatment that is so far
out of bounds that it was blatantly inappropriate or not even based on
medical judgment.”).
5.

CONCLUSION
On the undisputed facts presented, summary judgment is

appropriate in favor of each Defendant. The Court must, therefore, grant
Defendants’ motion and dismiss this action with prejudice.3

One final matter remains. As the Court noted at the outset of this Order,
this case was originally assigned to a magistrate judge, and it was reassigned to
this branch of the Court after Defendants refused to consent to magistrate judge
jurisdiction. See (Docket #15). Prior to reassignment, the magistrate judge entered
a screening order dismissing seven defendants named in Plaintiff’s complaint.
(Docket #11).
3

Until all parties have an opportunity to consent to magistrate judge
jurisdiction, a magistrate judge presiding over a case may not enter an order that
disposes of an entire case. See Coleman v. Labor & Indus. Review Comm’n, 860 F.3d
461, 475 (7th Cir. 2017). “Rather than entering final judgments, they must issue
proposed findings of fact and conclusions of law to be reviewed de novo by the
district court.” Id. (quotation omitted). District courts in this circuit have
interpreted Coleman to apply not only to a magistrate’s proposed dismissal of an
entire case, but to dismissal of a single claim or defendant as well. See, e.g., Jones v.

Page 11 of 12

Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #31) be and the same is hereby GRANTED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 23rd day of April, 2018.
BY THE COURT:

____________________________
J. P. Stadtmueller
U.S. District Judge

Marcus, No. 17–C–1265, 2017 WL 5032719, at *1 (E.D. Wis. Oct. 31, 2017)
(considering magistrate judge’s recommendation that one of the three claims in
the plaintiff’s complaint be dismissed).
In light of Coleman, and out of an abundance of caution, this Court has
reviewed de novo the magistrate’s screening order as if it were a recommendation.
See (Docket #11). The Court concurs entirely with that order.

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