Steed, Robert v. Hoffman et al

Filing 76

ORDER that Plaintiff Robert Steed's motion to compel discovery or for default judgment, Dkt. 50 , is DENIED. Defendant Springs's motion for summary judgment, Dkt. 35 , is GRANTED. The state defendants' motion for summary judgment, Dk t. 27 , is GRANTED with respect to all of plaintiff's federal claims and part of his state-law claims. Plaintiff's remaining state-law claims are DISMISSED without prejudice under 28 U.S.C. § 1367(c)(3). The clerk of court is directed to enter judgment accordingly and close this case. Signed by District Judge James D. Peterson on 1/6/2021. (lam),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ROBERT STEED,
Plaintiff,
v.

OPINION and ORDER

KARL HOFFMAN, FERN SPRINGS,
and MINDY HAMS,

19-cv-609-jdp

Defendants.
Plaintiff Robert Steed, appearing pro se, is a prisoner at New Lisbon Correctional
Institution. Steed alleges that defendant prison officials delayed in arranging for him to have
cortisone injections for his severe spinal pain that were recommended by an outside specialist.
Steed brings claims under the Eighth Amendment to the United States Constitution and
Wisconsin negligence and medical malpractice law.
Two of the defendants, Karl Hoffmann and Mindy Hams, are represented by the
attorney general’s office. These defendants, who I’ll refer to as the “state defendants,” have
filed a motion for summary judgment. Dkt. 27. The third defendant, Fern Springs, has filed
her own motion for summary judgment. Dkt. 35. I will grant those motions on Steed’s Eighth
Amendment claims and a portion of his state-law claims, because Steed released part of his
claims by signing a settlement agreement in another lawsuit, he otherwise fails to provide
evidence showing that defendants disregarded his health regarding the injection treatment, and
he failed to comply with Wisconsin’s notice-of-claim statute. I will decline to exercise
supplemental jurisdiction over Steed’s remaining state-law claims.

PRELIMINARY MATTER
I begin with a motion filed by Steed. He submitted a letter stating that the state
defendants would not provide him with imaging results from July 2018 and March 2020, which
he says would help prove the progression of his neck and back injuries. Dkt. 50. He says that
when he asked his medical provider for those records, the provider stated that he would have
to get them from his institution, but the state defendants told him that the images are not in
his prison medical file and instead he must get them from his provider. Steed asks for default
judgment.
The state defendants respond that the Department of Corrections (DOC) currently has
a CD with images from Steed’s July 2018 appointment, but at the time of its response it did
not have the images from the March 2020 appointment because they were in the hands of a
clinic that is reviewing the images for a consultation. The state defendants say that prison HSU
staff do not ordinarily have access to the program used to view those images anyway, although
they might be able to arrange to view them. They say that Steed himself would have no use for
the images, because he doesn’t have the expertise to interpret them. They argue that all parties
should rely on the written radiologists’ reports that interpret the images, just as HSU medical
staff do in providing prisoners’ treatment.
Whether I consider Steed’s motion to be one to compel discovery or for default
judgment, I’ll deny it. In theory, Steed has the right to view his medical imaging as discovery
materials under the control of the state defendants. The state defendants are correct here that
Steed would have little practical use for the actual images given that he does not have the
expertise necessary to interpret the images but he has access to radiologists’ reports interpreting

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the images. If this case were going to trial, I’d consider requiring the state defendants to give
Steed access to the images.
But the case is not going to trial. Even if Steed could use the images to prove the
progression of his injures for purposes of damages, that progression isn’t relevant to the claims
at hand: there isn’t a material dispute over whether Steed continued to feel severe pain from
his injuries, and the case ultimately comes down to issues that don’t rely on the extent of his
injuries as might be proven through imaging. So there is no reason to grant the motion to
compel or to grant default judgment against the state defendants.

UNDISPUTED FACTS
Plaintiff Robert Steed is a prisoner at New Lisbon Correctional Institution (NLCI).
Defendants worked in the Health Services Unit (HSU) at NLCI. Defendant Karl Hoffmann is
a physician employed by the DOC. Defendant Dr. Fern Springs is a physician who was
employed by Premiere Physician Services and who worked as an independent contractor for
the DOC on a periodic basis in several prisons in northeastern Wisconsin. Defendant Mindy
Hams is a “medical program assistant–associate” employed by the state. Hams is responsible
for scheduling the offsite provider appointments for inmates. She is not a medical professional.
Steed has chronic pain in his neck and back stemming from a 2006 car accident. On
February 26, 2018, Hoffmann saw Steed for complaints of low back pain and neck pain with
numbness in his left arm. Steed did not report any pain, numbness, or tingling in his legs,
which Hoffmann would expect to see if Steed had a pinched nerve or something more serious
causing the lower back pain. Hoffmann placed an order for Steed to have a physical therapy
consultation for suspected left thoracic outlet syndrome. Hoffmann also placed an order for

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Steed to get x-rays of his cervical spine (the part of the spine in one’s neck) and to follow up
with Hoffmann in three months for the low back pain and left arm numbness. Steed’s x-rays
showed degenerative disk disease in his neck at C5 and C6.
On May 25, 2018, Hoffmann saw Steed for a follow up of his neck pain, now with right
arm numbness, and low back pain. Steed had undergone physical therapy for his neck pain
with modest improvement. He had plateaued and was discharged from physical therapy.
Hoffmann advised Steed to continue stretching and exercising his neck. Hoffmann placed an
order for Steed to get an MRI of his cervical spine for potential consideration to see a
neurosurgeon.
In July 2018, Steed went offsite for an MRI: it showed degenerative facet changes at
multiple levels, as well as neural foraminal narrowing (a reduction in size of the opening in the
spinal column through which the spinal nerve exits) at several spots in his cervical spine.
Hoffmann referred Steed to the neurosurgery clinic at Gundersen Hospital for a consultation.
On October 29, 2018, Steed had his appointment with the neurosurgeon, Dr. Douglas
Hughes. Hughes noted that Steed had “pain complaints all over his back, but the reason he is
here to see me today is his neck.” Dkt. 43-2, at 295. Hughes noted the MRI showing
degenerative disease at the C4–C7 vertebrae. Based on his examination and assessment,
Hughes did not recommend surgical intervention for Steed because Steed did not have a
specific radiculopathy and his complaint was mainly of neck pain. Hughes recommended that
Steed undergo “injections.” Id. Hughes also noted that Steed did get benefit from ibuprofen
but that Steed was worried that continued use of ibuprofen could harm his kidneys.
The injections needed to be performed by an outside specialist. For a DOC prisoner to
get an appointment with an outside provider, a DOC advanced care provider (such as a doctor

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or nurse practitioner) must make a referral. On November 6, 2018, defendant Springs
submitted a “request for prior authorization” for Steed to go offsite for “Pain Clinic
appointments for injections,” with a diagnosis of “Chronic neck pain with radicular symptoms.”
Id. at 106. On November 16, Dr. Paul Bekx, the DOC medical director, approved the request.
On November 26, 2018, Springs entered an order for Steed’s offsite appointment “for
consideration of steroid injections” for “Cervical radiculopathy.” Dkt. 40-3, at 2.
Defendant Hams then gathered Steed’s medical information and faxed the request for
appointment to Black River Memorial Hospital. In December 2018 and January 2019, Hams
communicated back and forth with hospital staff to schedule Steed’s appointment. Hams does
not have any control over the calendar of offsite providers. On January 7, hospital staff told
Hams that Steed was scheduled for an appointment on March 11, 2019.
Steed also received other medical treatment from defendant Hoffmann. On November
16, 2018, Hoffmann increased Steed’s prescription for ibuprofen to 800 mg, up to twice daily
as needed for 180 days. Hoffmann instructed Steed to try combining the ibuprofen with
Tylenol. Four days later, in response to Steed’s complaints of increasingly severe pain,
Hoffmann concluded that Steed should give the increase in ibuprofen more time to work before
trying another option.
On January 16, 2019, Hoffmann ordered menthol-methyl salicylate topical cream for
Steed’s pain. Steed could apply this cream four times a day as needed. Steed says that he had
been prescribed that medication previously, and I take him to be saying that it wasn’t effective.
On February 19, 2019, Steed sent a health services request asking to change from
ibuprofen and give naproxen a try (another anti-inflammatory medication). Steed says that he
asked for a change because of increased creatinine levels, which could indicate a potential risk

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of kidney damage, but his requests at the time did not include a comment about that problem.
Dkt. 43-2, at 151. Heavy long-term use of non-steroidal anti-inflammatory drugs (NSAIDs)
can damage the kidneys. Steed’s creatinine levels were indeed elevated slightly over the high
end of the normal range, but without other symptoms, such as protein in his urine, Hoffmann
considered it unlikely that Steed was suffering loss of kidney function. On February 23, 2019,
Hoffmann placed an order for naproxen 500 mg for Steed to take for his pain twice daily as
needed for one year. (Naproxen is also an NSAID and neither party explains why or how a
change from ibuprofen to naproxen would address Steed’s concern about kidney damage).
Also on February 19, Steed submitted another request, addressed to Hoffmann, asking
to be prescribed a transcutaneous electrical nerve stimulation (TENS) unit to use on his back
until he received cortisone shots. A nurse responded to this request instead of Hoffmann,
stating that Steed should speak to the physical therapist about a TENS unit at his upcoming
appointment. Steed did not bring the issue up with his therapist; he received a TENS unit from
a nurse practitioner in March 2020.
On March 11, 2019, Steed had his appointment at the hospital pain clinic. Steed saw
Dr. Stephen Endres. In his notes, Endres stated that Steed “is very certain that his symptoms
are his low back and leg pain.” Dkt. 43-2, at 205. Endres diagnosed him with cervical
degenerative disease and degenerative lumbar spine disease. Instead of a cervical injection as
contemplated by Dr. Hughes, Endres injected Steed with local anesthetic “around the nerves
and lumbar spine.” Id. Endres said that he would “tentatively see if Dr. Hoffman[n] will have
him come back in about four weeks, and we can address his neck issues.” Id. I infer that it
would have been unsafe for Endres to give him both back and neck injections within a certain
period of time.

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On March 19, 2019, Hoffmann saw Steed, who reported that he was still active,
including running up and down the basketball court. Hoffmann concluded that Steed’s ability
to play full court basketball meant that his pain was under adequate control and that he did
not need to do anything more than continue the current course of treatment at that time.
From April to June 2019, Steed wrote a series of health service requests asking when he
would receive a neck injection. Nurses responded stating that staff was in the process of
scheduling a new appointment or that an appointment had been scheduled and that Steed
would be getting an injection soon. On June 21, 2019, Steed submitted a request stating that
he was experiencing a sharp pain near his kidney and asking for an MRI. Hoffmann responded
the same day, saying, “we will start with screening labs and reschedule the visit to the pain
clinic.” Id. at 176. Steed’s medical records show that he had a comprehensive metabolic panel
taken in late June 2019. Id. at 69–70. Neither party explains what happened next with Steed’s
treatment or how the next injection appointment was scheduled.
In June 2019, Steed asked a nurse for a replacement Velcro lumbar support brace
because the Velcro was wearing out in the one he had. The nurse asked defendant Hoffmann
about the brace, and Hoffmann referred Steed to the physical therapist to consider that item.
He ultimately received the brace in August 2019. Steed had made a request about the brace in
March 2019 but a nurse responded to that request without discussing with Hoffmann.
On July 22, 2019, Steed had another offsite appointment at the hospital pain clinic. At
this appointment, Dr. Endres gave Steed an injection at C6-C7 on the left cervical spine.
Steed filed his complaint in this lawsuit on July 25, 2019. The complaint is dated June
27, 2019. In September 2019, Steed saw Hoffmann and he requested to go back to the pain

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clinic. Hoffmann entered an order for a pain clinic consultation appointment that same day,
and in October Steed received another epidural injection in his lumbar.

ANALYSIS
Steed brings Eighth Amendment and Wisconsin-law negligence claims against
defendants Hoffman, Springs, and Hams for delaying the cortisone shots recommended by
Hughes in October 2018.
A. Eighth Amendment
The Eighth Amendment prohibits prison officials from acting with conscious disregard
toward prisoners’ serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103–04 (1976). A
“serious medical need” is a condition that a doctor has recognized as needing treatment or one
for which the necessity of treatment would be obvious to a lay person. Johnson v. Snyder, 444
F.3d 579, 584–85 (7th Cir. 2006). A medical need is serious if it is life-threatening, carries
risks of permanent serious impairment if left untreated, results in needless pain and suffering,
significantly affects an individual’s daily activities, Gutierrez v. Peters, 111 F.3d 1364, 1371–73
(7th Cir. 1997), or otherwise subjects the prisoner to a substantial risk of serious harm, Farmer
v. Brennan, 511 U.S. 825, 847 (1994). The parties appear to agree that Steed’s neck and back
conditions and associated pain were serious medical needs.
A defendant “consciously disregards” an inmate’s need when the defendant knows of
and disregards “an excessive risk to an inmate’s health or safety; the official must both be aware
of the facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Snipes v. Detella, 95 F.3d 586, 590 (7th Cir. 1996).
However, inadvertent error, negligence, gross negligence, and ordinary malpractice are not cruel

8

and unusual punishment within the meaning of the Eighth Amendment. Vance v. Peters, 97
F.3d 987, 992 (7th Cir. 1996).
1. Release of claims
The state defendants contend that Steed released his claims in this case by signing a
settlement agreement in an earlier case in this court, Steed v. A-Unit 3 Shift Officer,
No. 14-cv-747-jdp (W.D. Wis.). The “Mutual Release and Settlement Agreement” that Steed
signed in that case released the DOC and its employees or agents from claims “that relate to
any action or inaction—of any State of Wisconsin or DOC employee—that took place on any
date before this agreement is fully executed.” Dkt. 33-1, at 2. Steed signed the release on
February 27, 2019, it was signed by the state the next day, and Steed filed this lawsuit several
months later, on July 25, 2019.
I agree with the state defendants that the portions of Steed’s claims concerning events
occurring before the release must be dismissed because they were released by Steed under the
plain language of the settlement agreement in the ’747 case. For instance, defendant Hams’s
actions in working with hospital staff to arrange the initial March 2019 injection took place
before the signing of the settlement agreement, so those claims have been released by Steed.
It’s less clear whether the release would cover non-state defendant Springs, who was not directly
employed by the DOC. Springs does not move for summary judgment based on the release, so
I will not consider that defense for the claims against her.
Steed contends that his previous settlement doesn’t extinguish all of his claims because
at least part of the delay at issue here occurred after he signed the settlement agreement—he
received his first shot in his lumbar area in March 2019 and the first shot in his cervical spine
area in July 2019. The release explicitly states that Steed reserved his rights to pursue claims

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about “future acts of negligence or deliberate indifference.” Id. at 3. The state defendants do
not limit their release argument to events occurring before the settlement in the ’747 case—
they contend that all of his claims should be dismissed. They argue that Steed’s only exhausted
administrative grievance about his claims was fully exhausted before he signed the settlement
agreement, see Dkt. 43-4, and that under state and federal law, his claims accrued at the time
of injury.
The state defendants’ exhaustion-based argument fails because the concepts of
exhaustion and release are entirely unrelated. The state defendants do not move for summary
judgment on exhaustion grounds regarding claims against them for their post-settlement
conduct. Even if they had, the fact that Steed released pre-settlement claims wouldn’t affect
the exhaustion analysis: Steed wasn’t required to re-exhaust his administrative remedies as the
delay dragged on past the release date. See Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013)
(inmate “need not file multiple, successive grievances raising the same issue . . . if the
objectionable condition is continuing”).
The state defendants’ accrual argument also largely misses the point. It’s true that
Steed’s pain continuing past the date of settlement doesn’t in itself create a new cause of action
against any defendant for misconduct occurring before the settlement. But I take Steed to be
alleging that even after the settlement date, the state defendants continued to act or fail to act
in ways that consciously disregarded his pain. The bottom line is that any misdeeds by the
state defendants after the settlement date are not covered by the release.
2. Remaining claims against state defendants
That raises the question of what Steed is alleging that Hoffmann or Hams did or failed
to do after the February 2019 release that violated his rights—keeping in mind that Steed’s

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claims in this lawsuit are limited to the delay in him receiving cortisone shots. By the time of
Steed’s settlement agreement, his March 11, 2019 appointment had already been on the books
since early January. Steed does not suggest that there was anything that Hams or Hoffmann
could have done to get an earlier appointment. Hams states that she didn’t have any control
over the calendars of offsite providers and Steed doesn’t suggest otherwise. So Steed cannot
succeed on a claim regarding delays before the March 11 injection appointment.
Steed is correct that the delay in receiving the recommended neck injections continued
beyond the March 11 appointment, because he didn’t actually receive neck injections at that
appointment. Instead, Dr. Endres and Steed discussed Steed’s back pain, Endres gave Steed an
epidural injection in his lumbar spine, and Endres planned to have Steed back for a neck
injection at a later date. So this part of the delay in neck treatment was caused by Endres’s
decision to treat Steed’s back pain instead of his neck pain, apparently encouraged to do so by
Steed himself.
After that, Steed waited until July 22, 2019, for another appointment, where he indeed
received the recommended neck injection. But Steed does not present evidence that the March
to July wait was caused by the state defendants’ conscious disregard of Steed’s needs. It’s not
clear to me that a fourth-month delay is beyond the standard of care for someone after receiving
an epidural, and most patients, prisoners and non-prisoners alike, often experience delays in
receiving treatment from specialists.
Even assuming that the delay was longer than what would usually be expected, neither
side explains the particulars of how or why the second appointment was scheduled for July, or
even whether it was scheduled in the same fashion as the March appointment. I’ll infer that
Hams was involved in the scheduling because that was her job description, but she has already

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explained that she doesn’t get to pick the dates for procedures; that’s up to the offsite providers.
At summary judgment, the plaintiff must “put up or shut up” and “show what evidence [she]
has that would convince a trier of fact to accept [her] version of events.” Johnson v. Cambridge
Indus. Inc., 325 F.3d 892, 901 (7th Cir. 2003) (citation omitted). Steed simply doesn’t present
any evidence that Hams acted with conscious disregard toward his medical problems. So I will
grant the motion for summary judgment on Steed’s Eighth Amendment claims against Hams.
Defendant Hoffmann argues that he is not responsible for making offsite appointments
and so he was not personally involved in any delay. But that is not completely accurate:
although the parties do not discuss it in detail, Hoffmann did respond to a June 2019 health
service request saying that he’d postpone the second injection appointment to instead perform
screening labs to address Steed’s complaints of acute pain. And Hoffmann was involved in
referring Steed for his third injection in October 2019 (postdating the events of Steed’s
complaint and thus not part of his claims in this lawsuit).
The problem for Steed is that Hoffmann’s decision to prioritize lab tests over the second
injection, without more, doesn’t show that Hoffmann consciously disregarded Steed’s pain. On
its face, that was a professional medical judgment that does not raise an inference of conscious
disregard. Zaya v. Sood, 836 F.3d 800, 805 (7th Cir. 2016) (“By definition a treatment decision
that's based on professional judgment cannot evince deliberate indifference because
professional judgment implies a choice of what the defendant believed to be the best course of
treatment.”).
Steed argues that various aspects of Hoffmann’s treatment, along with the delay in the
second injection, shows that Hoffmann consciously disregarded his pain. When analyzing an
Eighth Amendment medical care claim, I must consider the totality of care that Steed received,

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not just isolated decisions. Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016). Thus, even
though Steed’s claims are limited to the delay in his cervical injections, other treatment
decisions are relevant in considering a defendant’s state of mind toward treating the serious
medical need.
Steed says that the topical cream Hoffmann provided him had already proven
ineffective, that Hoffmann didn’t help him get a TENS unit, and Hoffmann risked damage to
Steed’s kidneys by continuing with NSAID medication even as Steed’s creatinine levels were
above the high end of the normal range. But the cream was only one component of Steed’s
treatment. Steed doesn’t show that Hoffmann was personally involved in delaying provision of
the TENS unit. And Hoffmann explains why he believed that the NSAID medication was not
causing Steed’s high creatinine results. The Eighth Amendment does not give prisoners the
right to demand specific treatment nor does it guarantee successful treatment.
The medical record shows that Hoffmann attempted multiple other reasonable ways to
treat Steed’s condition, including Tylenol and NSAID medications, physical therapy, x-rays
and an MRI, a referral to neurosurgery, and a referral to the physical therapist to discuss a new
back brace. He also promptly arranged for Steed’s third injection, which cuts against Steed’s
belief that Hoffmann disregarded the injection treatment. Given the totality of care that
Hoffmann provided Steed, no reasonable jury could conclude that Hoffmann consciously
disregarded his pain when he postponed the second injection appointment. Hoffmann’s
inability to completely alleviate Steed’s pain might suggest medical malpractice, or more likely
it reflects the unfortunate reality that not all chronic pain can be eliminated. But I will grant
summary judgment on the Eighth Amendment claims against Hoffmann.

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3. Defendant Springs
Defendant Dr. Springs’s involvement in Steed’s injections is limited to her role in the
process

for

approving

offsite

medical

treatment.

Springs

reviewed

Dr.

Hughes’s

recommendation for injections and submitted an authorization form of DOC approval, and
after the injections were approved, Springs wrote an order for the offsite appointment. There
were short delays involved in both of these steps: Hughes’s recommendation was received at
the prison on October 30, 2018, and Springs submitted the authorization on November 6.
Similarly, the DOC medical director approved the injections on November 16, and Springs
completed the order for offsite treatment on November 26.
These short delays by themselves are almost certainly not long enough to violate the
Eighth Amendment. Although Steed’s pain was severe, he was receiving other forms of
treatment for it and his condition is a chronic one, not an acute injury requiring emergency
treatment. In any event, there was a good reason for these delays: Springs worked part time,
and she was not working at the prison when the HSU received Hughes’s recommendation for
injections or when the medical director approved the injections. Rather, she returned to NLCI
on November 6 and she completed the authorization form the same day. Similarly, she
returned to work at NLCI on November 26 and she completed the order for an offsite
appointment the same day. No reasonable juror could conclude that Springs consciously
disregarded Steed’s problem given how promptly she completed her tasks in the offsiteauthorization process. I will grant Springs’s motion for summary judgment regarding these
actions. And given that there is no evidence that Springs was involved in Steed’s medical
treatment after those events, Steed cannot maintain any claims against Springs for later events
either.

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B. Wisconsin-law claims
Steed also brings Wisconsin-law medical malpractice or negligence claims against
defendants alongside his Eighth Amendment claims. But a federal court generally does not have
jurisdiction over a state-law claim unless it is related to a federal claim that is pending in the
same case, 28 U.S.C. § 1367, or the plaintiff and defendants are citizens of different states and
the amount in controversy is greater than $75,000, 28 U.S.C. § 1332. Nothing in Steed’s
complaint suggests that he meets the diversity-of-citizenship standard.
Although I am dismissing Steed’s federal claims, I will retain jurisdiction to decide the
portions of Steed’s state-law claims that are clearly meritless because it would be inefficient to
leave those claims open for a later state court action. See Korzen v. Local Union 705, 75 F.3d
285, 288–89 (7th Cir. 1996) (“The normal practice of course is to relinquish jurisdiction over
a supplemental claim when the main claim is dismissed before trial, but if the supplemental
claim is easily shown to have no possible merit, dismissing it on the merits is a time saver for
everybody.”).
Steed’s state-law claims about the state defendants’ actions before he signed the release
of claims in the ’747 lawsuit will be dismissed for the same reasons I dismissed Steed’s Eighth
Amendment claims about those actions. He also does not provide any evidence supporting
post-release medical malpractice claims against defendant Springs, so I will dismiss his claims
against her.
The state defendants contend that Steed’s negligence claims against defendant Hams
should be dismissed because Steed failed to comply with Wisconsin’s notice-of-claim statute,
Wis. Stat. § 893.82. That statute provides that a claimant bringing a civil action against a state
employee must serve written notice of the claim on Wisconsin’s attorney general within 120

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days of the event giving rise to the action. Wis. Stat. § 893.82(3). The notice must include the
names of each state employee involved. Id. The statute requires strict compliance. Riccitelli v.
Broekhuizen, 595 N.W.2d 392, 399, 227 Wis. 2d 100 (1999).1
Steed sent the Wisconsin attorney general a notice of claim on April 30, 2019, regarding
Hams’s role in delaying the injections. See Dkt. 34-1. But Steed sent this notice by first-class
mail, not certified mail, which was the only approved method at the time of the events of this
case. Because Steed failed to strictly comply with the notice-of-claim statute, I must dismiss
his negligence claims against Hams. See Sorenson v. Batchelder, 2016 WI 34, ¶ 46, 368 Wis. 2d
140, 885 N.W.2d 362 (affirming dismissal of action after concluding that personal service did
not comply with certified mail requirement of Wis. Stat. § 893.82(5)); Kelly v. Reyes, 168 Wis.
2d 743, 744, 484 N.W.2d 388, 388 (Ct. App. 1992) (affirming dismissal of action where
plaintiff used “regular mail, not certified mail to serve notice of his claim upon attorney
general”); Thomas v. Mashak, No. 16-cv-496-bbc, 2017 WL 5195252, at *4 (W.D. Wis. Nov.
9, 2017), aff’d, 743 F. App’x 702 (7th Cir. 2018) (notice sent by first-class mail did not satisfy
§ 893.82).
That leaves Steed’s post-release medical malpractice claims against Hoffmann. I decline
to continue to exercise jurisdiction over these claims, which will be dismissed without prejudice.

1

The notice-of-claim statute applies only to Steed’s claims against non-medical-professional
Hams—and not the claims against Hoffmann and Springs—because medical malpractice claims
are exempt from the statute. See Wis. Stat. § 893.82(5m).

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ORDER
IT IS ORDERED that:
1. Plaintiff Robert Steed’s motion to compel discovery or for default judgment,
Dkt. 50, is DENIED.
2. Defendant Springs’s motion for summary judgment, Dkt. 35, is GRANTED.
3. The state defendants’ motion for summary judgment, Dkt. 27, is GRANTED with
respect to all of plaintiff’s federal claims and part of his state-law claims as discussed
in the opinion above.
4. Plaintiff’s remaining state-law claims are DISMISSED without prejudice under 28
U.S.C. § 1367(c)(3).
5. The clerk of court is directed to enter judgment accordingly and close this case.
Entered January 6, 2021.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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