Walker v. Baynton et al

Filing 12

ORDER signed by Judge Brett H Ludwig on 8/30/24 granting 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee. On or before September 27, 2024, Walker may file an amended complaint curing the defects in the original complaint as described in this decision. (cc: all counsel and mailed to warden & pro se party w/form & guide)(jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MONTGOMERY E. WALKER,
Plaintiff,
v.

Case No. 24-cv-0736-bhl

CHARLES M. BAYNTON,
JOSEPH A. MCLEAN,
JUSTIN S. RIBAULT,
DAVID CARINAL,
EDWARD R. NEISNER, and
JIU RUSECKI,
Defendants.
SCREENING ORDER
Plaintiff Montgomery E. Walker, who is currently serving a state prison sentence at Racine
Correctional Institution and representing himself, filed a complaint under 42 U.S.C. §1983,
alleging that his civil rights were violated. This matter comes before the Court on Walker’s motion
for leave to proceed without prepaying the full filing fee and to screen the complaint.
MOTION TO PROCEED WITHOUT PREPAYING THE FILING FEE
Walker has requested leave to proceed without prepaying the full filing fee (in forma
pauperis). A prisoner plaintiff proceeding in forma pauperis is required to pay the full amount of
the $350.00 filing fee over time. See 28 U.S.C. §1915(b)(1). As required under 28 U.S.C.
§1915(a)(2), Walker has filed a certified copy of his prison trust account statement for the sixmonth period immediately preceding the filing of his complaint and has been assessed and paid an
initial partial filing fee of $41.18. Walker’s motion for leave to proceed without prepaying the
filing fee will be granted.

SCREENING OF THE COMPLAINT
The Court has a duty to review any complaint in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity and must dismiss any
complaint or portion thereof if the prisoner has raised any claims that are legally “frivolous or
malicious,” that fail to state a claim upon which relief may be granted, or that seek monetary relief
from a defendant who is immune from such relief. 28 U.S.C. §1915A(b). In screening a
complaint, the Court must determine whether the complaint complies with the Federal Rules of
Civil Procedure and states at least plausible claims for which relief may be granted. To state a
cognizable claim under the federal notice pleading system, a plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). It
must be at least sufficient to provide notice to each defendant of what he or she is accused of doing,
as well as when and where the alleged actions or inactions occurred, and the nature and extent of
any damage or injury the actions or inactions caused.
“The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). “The tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. A complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Id. at 556. “[T]he complaint’s allegations must be enough to raise a right to relief above
the speculative level.” Id. at 555 (internal quotations omitted).
ALLEGATIONS OF THE COMPLAINT
According to Walker, he was incarcerated at Dodge Correctional Institution from April
2012 until February 2020, at which time he was transferred to Racine Correctional Institution.
Prior to being incarcerated, Walker wore orthopedic shoes and/or shoe inserts because his right leg
is shorter than his left leg. Walker asserts that, on August 27, 2012, Defendant Dr. Charles Baynton
refused to provide him with medical shoes and instead told him that insoles were available for
purchase at the canteen. About a year later, Walker developed severe hip pain. He asserts that an
x-ray was performed on July 26, 2013 that revealed that his femur head is deformed, but Dr.
Baynton did not reveal these results to anyone. According to Walker, Dr. Baynton’s failure to
address this deformity led to ongoing hip pain and injury.
In February 2020, Walker was transferred to Racine Correctional Institution, at which time
Defendant David Carinal discarded Walker’s orthotic shoes because he thought the shoes were
personal shoes. Walker asserts that he reported chronic left hip pain to Dr. Joseph McLean on
March 18, 2020. McLean allegedly prescribed Tylenol and naproxen without addressing the
underlying issue. More than a year later, on November 12, 2021, Walker asserts that he fell. He
received orthotic shoes with a one-inch lift on March 31, 2022.
According to Walker, he informed his new provider, Dr. Justin S. Ribault that he believed
the shoe lift was not the correct height and was the cause of his hip pain. He states that he was
diagnosed with end stage left hip osteoarthrosis on June 16, 2022. Walker received a total left hip
replacement on February 15, 2023. He states that Dr. Ribault cancelled two pain medications and
ordered physical therapy to begin on February 22, 2023. Walker asserts that physical therapy was

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very painful, but physical therapist Edward Neiser ignored him and forced him “to injure his leg
causing it to swell and throb for days.” Walker asserts that he refused to see Neiser and received
offsite therapy after complaining about pain and balance issues.
Walker asserts that after the therapy was cancelled, he began to have low back and right
hip pain. He states that he measured his legs and discovered he needed a one-and-a-half-inch lift,
not a one-inch lift. Walker asserts that he notified Dr. Ribault, who scheduled an appointment
with Nova Care Prosthetics. Defendant Jiu Rusecki noted that Walker’s left leg length had
increased by half an inch following his hip replacement. Walker explains that even though they
corrected his shoe height, he continued to have hip pain. Dr. Ribault allegedly informed Walker
to be patient as his body adjusted to the new shoe height. Eventually, at Walker’s request, an xray was performed on January 31, 2024, at which time Walker learned about his right femur
deformity. Walker asserts that Dr. Ribault has refused to treat the deformity.
THE COURT’S ANALYSIS
“[T]he Eighth Amendment, as the Supreme Court has interpreted it, protects prisoners from
prison conditions that cause the wanton and unnecessary infliction of pain, including . . . grossly
inadequate medical care.” Gabb v. Wexford Health Sources, Inc., 945 F.3d 1027, 1033 (7th Cir.
2019) (quoting Pyles v. Fahim, 771 F.3d 403, 408 (7th Cir. 2014)) (internal quotations omitted).
The Court uses a two-part test to evaluate whether medical care amounts to cruel and unusual
punishment; it asks: 1) “whether a plaintiff suffered from an objectively serious medical condition”
and 2) “whether the individual defendant was deliberately indifferent to that condition.” Id.
(quoting Petties v. Carter, 836 F.3d 722, 727-28 (7th Cir. 2016) (en banc)). Walker’s allegations
of chronic right and left hip pain are sufficient for the Court to infer that he suffered from an

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objectively serious medical condition. But, for the reasons explained below, the Court cannot
reasonably infer that Defendants were deliberately indifferent to that condition.
Walker first asserts that Dr. Baynton was deliberately indifferent when, in 2012, he refused
to provide Walker with shoe insoles and instead informed him he could purchase insoles at the
canteen. A review of the medical records that Walker attaches to and incorporates by reference in
his complaint show that in May 2012 an order for a right shoe insert was placed to address the
difference in Walker’s leg lengths. Dkt. No. 1-1 at 6. Months later, on August 27, 2012, Walker
requested that Dr. Baynton provide him with Velcro shoes to wear at work. Dkt. No. 1-1 at 9. The
medical records reflect that Dr. Baynton evaluated Walker’s feet and determined an order for
different footwear was not warranted. He also advised Walker how to relieve his foot pain,
including but not limited to informing him he could purchase insoles at the canteen. Id. Walker
may have preferred special shoes or insoles for additional comfort, but inmates are not entitled to
their preferred treatment. See Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006). Regardless,
even if Walker’s allegations stated a deliberate indifference claim, the claim would be barred by
the applicable statute of limitations because Walker raised it more than six years after the alleged
violation. See Howard v. Ashworth, No. 20-cv-1850-pp, 2022 WL 1810715 at *6 (E.D. Wis. June
2, 2022) (citing Wis. Stat. §893.53).
Walker next asserts that Dr. Baynton was deliberately indifferent to his right hip condition
when he failed to disclose the results of a 2012 x-ray that showed Walker has a femoral head
deformity. Walker’s allegations are contradicted by his medical records. The Department of
Corrections maintains a running “Problem List” for each inmate, and Walker’s list contains a July
26, 2013 entry recording a hip x-ray showing “femoral head deformed” with right hip pain. Dkt.
No. 1-1 at 11. Therefore, the records Walker attaches to his complaint confirm that Dr. Baynton

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did not, as Walker alleges, conceal the results of this x-ray. But, even if he had, Walker fails to
explain how he was harmed by this alleged omission. See Roe v. Elyea, 631 F.3d 843, 864 (7th
Cir. 2001) (“In order to succeed in a §1983 suit, a plaintiff must establish not only that a state actor
violated his constitutional rights, but also that the violation caused the plaintiff injury or
damages.”). Everyone, including Walker, knew that Walker’s right leg was shorter than his left
leg. The x-ray merely revealed why his legs are different lengths; Walker does not allege facts that
would allow an inference that this information would have impacted how the difference should be
addressed. As was the case before and during Walker’s incarceration, the difference in his leg
lengths was addressed with orthotic shoes and/or shoe inserts. So, while it may have been startling
for Walker to learn that his legs are different lengths because his femur is deformed, there is no
basis to conclude that the information had an impact on the treatment for that condition. Given
that Walker was not harmed by Dr. Baynton’s alleged omission, he fails to state a claim against
him.
Walker also fails to state a claim against Carinal based on allegations that, when Walker
was transferred to a new institution, Carinal threw away his medical shoes “because he believed
that they were personal shoes.” Even if accurate, the mere fact that Carinal made a mistake is
unfortunate but not actionable under §1983. It has long been held that “[a]n accident, although it
may produce added anguish, is not on that basis alone to be characterized as wanton infliction of
necessary pain.” Estelle v. Gamble, 429 U.S. 97, 105 (1976). Given Walker’s concession that
Carinal did not know the shoes were prescribed to address a medical condition, the Court cannot
reasonably infer that he was deliberately indifferent to Walker’s medical needs. Further, it also
appears that, even if Walker had stated a claim against Carinal, it too would be barred by the
applicable statute of limitations.

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Nor does Walker state a claim against Dr. McLean based on allegations that, although he
provided Tylenol and naproxen to Walker in response to his complaints of pain, he failed to address
the underlying issue. Walker does not identify “the underlying issue” nor is it clear how McLean
should have addressed it. According to Walker’s medical records, Dr. McLean met with Walker
on March 25, 2020 to discuss multiple complaints, including hip pain “that waxes and wanes but
never goes away.” The record reflects that Walker received acetaminophen and naproxen to take
as needed for headaches, and, in response to his complaints of pain, he and Dr. McLean discussed
amitriptyline, which Walker decided to discontinue. Walker and Dr. McLean also discussed
duloxetine, but it is unclear whether Walker opted to pursue this option. Dkt. No. 1-1 at 27.
Although Walker may not have received the treatment he wanted, nothing suggests that Dr.
McLean was deliberately indifferent to Walker’s pain. See Snipes v. DeTella, 95 F.3d 586, 592
(7th Cir.1996) (holding that mere dissatisfaction or disagreement with a doctor’s course of
treatment is generally insufficient to support a deliberate indifference claim). Walker therefore
fails to state a claim against Dr. McLean.
Next, Walker’s allegations against physical therapist Neisner are too vague to state a claim.
Walker alleges that, after his hip replacement, Neisner required him to do painful exercises that
resulted in swelling and throbbing in his left hip. But “[t]o say the Eighth Amendment requires
prison doctors to keep an inmate pain-free in the aftermath of proper medical treatment would be
absurd.” Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996). Walker had just received a hip
replacement. It goes without saying that exercises to restore mobility in the joint following major
surgery would be accompanied by some pain. Thus, the mere fact that the exercises were painful
is not sufficient on its own for the Court to reasonably infer that Neisner was deliberately
indifferent to Walker’s condition. While Walker may have preferred less painful treatment,

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“[w]hether and how pain associated with medical treatment should be mitigated is for doctors to
decide free from judicial interference, except in the most extreme situations.” Id. Having pain
during physical therapy sessions after major hip surgery is not an extreme situation.
Walker also fails to state a claim against Rusecki, who worked for an offsite orthopedic
clinic and confirmed that Walker’s left leg length had increased following his hip surgery. Rusecki
took impressions of Walker’s feet in response to his complaints of foot arch pain and ordered the
correct sized shoe lift along with new orthopedic shoes. Dkt. No. 1-1 at 59. Given that Rusecki
addressed all of Walker’s concerns, her actions do not suggest that she was deliberately indifferent
to his condition.
Finally, Walker fails to state a claim against Dr. Ribault, Walker’s most recent (and perhaps
current) advanced care provider. It is not entirely clear why Walker believes Dr. Ribault was
deliberately indifferent to his hip condition. Walker first alleges that, after he fell in June 2022,
Dr. Ribault ignored his complaints that his shoe lift was the incorrect height. But it was not until
after Walker’s hip replacement in February 2023, when Walker’s left leg length increased, that a
higher shoe lift was needed. Walker’s medical records reflect that, when Walker complained of
continued pain following his hip replacement, Dr. Ribault referred him to an orthopedic clinic
where a new lift and new shoes were ordered and impressions of Walker’s feet were taken to
address his complaints of arch pain. Walker also alleges that Dr. Ribault cancelled two pain
medications immediately following his hip replacement. The medical records reflect that Dr.
Ribault did not allow Walker to continue with valium and oxycodone once he returned from the
hospital. Dkt. No. 1-1 at 56-57. But these are highly controlled medications that are especially
dangerous and susceptible to abuse in the prison environment. In any event, the medical records
show that, although Walker was not permitted to continue with these particular medications, he

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was prescribed many other medications to address his post-surgery pain. The mere fact that
Walker was not given the pain medication of his choice, does not support a claim that Dr. Ribault
was deliberately indifferent to his pain. Finally, Walker alleges that Dr. Ribault has failed to
address his femoral head deformity, but, again, this allegation is undermined by the medical
records that demonstrate Walker has consistently been prescribed shoe lifts and orthopedic shoes
to address the difference in leg lengths due to the deformity.
Indeed, Walker’s medical records reflect that Dr. Ribault made numerous efforts to respond
to Walker’s hip issues, including ordering an extra pillow and a low bunk restriction, prescribing
various pain medications including Tylenol, Motrin, tramadol, and meloxicam, referring Walker
to an offsite clinic for new inserts/medical shoes and to a specialist for a left hip replacement, and
referring him to onsite and offsite physical therapy. Considering the totality of the care Walker
received, the Court cannot reasonably infer that Dr. Ribault was deliberately indifferent to
Walker’s hip condition. See Lockett v. Bonson, 937 F.3d 1016, 1023 (7th Cir. 2019). Accordingly,
without more specific allegations supporting an inference of deliberate indifference, Walker fails
to state a claim against Dr. Ribault.
The Seventh Circuit has explained that the norm is to afford a plaintiff at least one
opportunity to amend his complaint. See Zimmerman v. Bornick, 25 F.4th 491, 494 (7th Cir. 2022).
Accordingly, if Walker believes he can cure the deficiencies identified in this decision, he may file
an amended complaint by September 27, 2024. He is advised that an amended complaint will
replace the original complaint and must be complete in itself without reference to the original
complaint. See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054,
1056–57 (7th Cir. 1998). If an amended complaint is received by the deadline, the Court will
screen it as required by 28 U.S.C. §1915A. If an amended complaint is not received, the Court

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will dismiss this action based on Walker’s failure to state a claim in the original complaint. If
Walker does not believe he can cure the deficiencies identified in this decision, he does not have
to do anything further. The Court will enclose an amended complaint form along with this
decision.
IT IS THEREFORE ORDERED that Walker’s motion for leave to proceed in forma
pauperis (Dkt. No. 2) is GRANTED.
IT IS FURTHER ORDERED that on or before September 27, 2024, Walker may file an
amended complaint curing the defects in the original complaint as described in this decision. If
Walker does not believe he can cure the defects, he does not have to take any further action.
IT IS FURTHER ORDERED that the Clerk’s Office mail Walker a blank prisoner
amended complaint form and a copy of the guide entitled “Answers to Prisoner Litigants’ Common
Questions,” along with this order.
IT IS FURTHER ORDERED that the agency having custody of Walker shall collect
from his institution trust account the $308.82 balance of the filing fee by collecting monthly
payments from Walker’s prison trust account in an amount equal to 20% of the preceding month’s
income credited to the prisoner’s trust account and forwarding payments to the Clerk of Court each
time the amount in the account exceeds $10 in accordance with 28 U.S.C. §1915(b)(2). The
payments shall be clearly identified by the case name and number assigned to this action. If Walker
is transferred to another institution, the transferring institution shall forward a copy of this Order
along with Walker’s remaining balance to the receiving institution.
IT IS FURTHER ORDERED that copies of this order be sent to the officer in charge of
the agency where Walker is located.

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IT IS FURTHER ORDERED that plaintiffs who are inmates at Prisoner E-Filing
Program institutions must submit all correspondence and case filings to institution staff, who will
scan and e-mail documents to the Court. The Prisoner E-Filing Program is mandatory for all
inmates of Green Bay Correctional Institution, Waupun Correctional Institution, Dodge
Correctional Institution, Wisconsin Secure Program Facility, Columbia Correctional Institution,
and Oshkosh Correctional Institution. Plaintiffs who are inmates at all other prison facilities must
submit the original document for each filing to the Court to the following address:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.
Walker is further advised that failure to make a timely submission may result in the
dismissal of this action for failure to prosecute. In addition, the parties must notify the Clerk of
Court of any change of address. Failure to do so could result in orders or other information not
being timely delivered, thus affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin on August 30, 2024.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge

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