Jose Soto, Jr. v. Nancy White ( 2022 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 10, 2022 *
Decided June 13, 2022
Before
DIANE S. SYKES, Chief Judge
DIANE P. WOOD, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19-3135
JOSÉ S. SOTO, Jr., Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of
Wisconsin.
v.
No. 17-cv-551-jdp
NANCY WHITE, et al.,
Defendants-Appellees. James D. Peterson,
Chief Judge.
ORDER
José Soto, a Wisconsin prisoner with painful foot conditions, contends that prison
medical staff violated his rights under the Eighth Amendment by ignoring his need for
more supportive shoes, physical examinations, and podiatrist appointments. The
district court entered summary judgment for the defendants. Because no reasonable
jury could find that the defendants deliberately ignored Soto’s foot pain, we affirm.
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19-3135 Page 2
We relay the facts in the light most favorable to Soto, the nonmovant at summary
judgment. See Thomas v. Martija, 991 F.3d 763, 767 (7th Cir. 2021). Soto’s congenital foot
deformity leads to flareups of two painful conditions: plantar fasciitis and Achilles
tendinitis. His access to footwear is central to this case.
At his prison, Waupun Correctional Institution, most prisoners in the general
population wear state-issued shoes but may buy “personal” shoes from approved
vendors. In segregation, the default shoe is a state-issued slip-on, and prisoners have no
right to “personal” shoes; still, staff can order orthopedic shoes when medically
necessary.
For Soto, however, custom rules stem from a 2013 settlement agreement in a
prior footcare lawsuit: He may use personal funds to order general-population shoes
from vendors of his choosing; the prison must furnish his orthotics and send him to a
podiatrist for evaluations once every five years; and in segregation he receives state-
issued Velcro shoes with arch-support inserts, not the usual slip-ons.
In January 2015, while in the general population, Soto told staff that his orthotics
no longer fit his personal shoes, causing pain. Dr. Jeffrey Manlove, a prison physician
and a defendant here, referred him to a podiatrist who is not a defendant. The
podiatrist wrote that “the state issued athletic shoes are very unsupportive, flimsy, and
the orthotics seem to be sitting or sinking into the heel.” She suggested that “a better
quality shoe, such as New Balance or similar athletic shoe that can fit his orthotics, will
likely resolve the right foot pain.”
Soto took this specialist’s note as an opinion that the prison should buy better
athletic shoes for him because they were medically necessary. But Dr. Manlove took the
note to mean only that, in keeping with the settlement agreement, Soto could purchase
his own New Balance or similar athletic shoes.
Nevertheless, one defendant, Nurse Donna Larson, told Soto that she had
ordered New Balance shoes for him. But Soto never received the shoes. The record does
not show whether Larson actually ordered the shoes or why, if she did, Soto never got
them. Soto, for his part, states in a declaration that additional medical staff told him that
the shoes were ordered by someone, and that when he complained about not receiving
them, Larson and other medical staff told him to “just deal with it.”
No. 19-3135 Page 3
Along the way, Soto was transferred to another prison for three months. When
he returned to Waupun in May 2015, he was placed in segregation. He saw Dr. Manlove
again that August and September, complaining that the Velcro segregation shoes were
causing pain and that he never received any New Balance shoes. Dr. Manlove inspected
Soto’s segregation shoes, concluded that they were “in poor repair,” and asked an
unnamed health services manager to “see about replacements.”
In September 2015 Soto returned for one year to Waupun’s general population,
where he could wear personal shoes if he purchased them. Records of his several
appointments with Dr. Manlove during this time reflect no complaints of foot pain. Still,
Soto’s declaration at summary judgment states in general terms that his pain and
complaints were ongoing, and a nurse’s note in the record observes that Soto once
complained of chronic foot pain and requested new shoes.
Soto returned to segregation the next year, in September 2016. There, he again
asked for new segregation shoes, even offering to purchase them on his own. But,
according to Soto’s declaration, four nurses told him that he could not get other shoes.
And some health-services responses in the record stated that the 2013 settlement
agreement confined Soto to the shoes he already had. Soto continued to file intermittent
complaints about his shoes (both segregation and personal) through the fall of 2017.
During this time, Soto moved back and forth from segregation to the general
population, spending a total of about four months in segregation.
Then, in October 2017, according to Soto’s declaration, unnamed staff who were
handling his segregation shoes and orthotics lost them. Soto complained to a nurse who
is not a defendant here and to a health services manager who is. The health services
manager (Chrystal Marchant) took Soto to try on several replacement pairs; Soto found
none that fit; and so Dr. Manlove referred him to an orthotist to see about new custom
orthotics and shoes.
What happened in the interim is unclear, but the next summer, Soto received
new custom orthotics and orthopedic shoes that he is now permitted to wear
throughout the prison—both in general population and in segregation. Still, Soto soon
complained that the new orthotics did not fit and were causing severe pain. He met
with Dr. Manlove in October 2018, prompting another referral to an orthotist.
Ultimately, Soto sued, alleging that nine of Waupun’s medical staff—
Dr. Manlove, four health services managers (Marchant, Nancy White, Belinda Schrubbe,
and Ann Scarpita), and four nurses (Nurse Larson, plus Ann York, Gail Waltz, and
No. 19-3135 Page 4
Amy Gunderson)—were deliberately indifferent to his foot pain in violation of his
rights under the Eighth Amendment. See 42 U.S.C. § 1983. Only Dr. Manlove is named
in Soto’s appellate brief, however.
During discovery, the judge denied without prejudice Soto’s initial requests for
recruited counsel. Soto also requested help paying for deposition transcripts;
alternatively, he sought leave to pursue depositions without transcription. Cf. FED. R.
CIV. P. 30(b)(3)(A) (party seeking deposition must bear recording cost). Soto reasoned
that written discovery (e.g., written interrogatories and requests for admission) would
be inadequate because the counseled defendants were sure to be evasive and use
lawyers’ tricks to blur the facts. Live depositions, he said, would force more candor.
But in a thoughtful written decision, the district court denied this request
without prejudice to renewal: No federal rule required financial assistance for
depositions; too-easy access to subsidized depositions before written discovery could
increase unwarranted prisoner litigation and reduce incentives to use written discovery
efficiently; and it was too early to speculate that the defendants would not faithfully
comply with written discovery. Soto v. White, No. 17-CV-551-JDP, 2018 WL 6338753, at
*1–3 (W.D. Wis. Dec. 5, 2018); see McNeil v. Lowney, 831 F.2d 1368, 1373 (7th Cir. 1987)
(holding that the district court had no statutory authority to waive witness fees for
plaintiff proceeding in forma pauperis); Johnson v. Hubbard, 698 F.2d 286, 289 (6th Cir.
1983) (“[T]here is no constitutional requirement to waive costs of transcripts, expert
witness fees, and fees to secure depositions.”). Still, the judge explained, if Soto tried his
hand at written discovery and could show that the defendants’ responses were
inadequate, the judge would again consider recruiting counsel or permitting un-
transcribed depositions.
Yet Soto made no such showing. Neither side took depositions. Nurse Larson, in
particular, did not supply a declaration or affidavit, and the record does not suggest
that Soto served her with interrogatories or requests for admissions. And so the
defendants moved for summary judgment, citing a lack of evidence from which jurors
could infer deliberate indifference. In response, Soto did not suggest that the record
needed to be expanded through additional discovery under Rule 56(d) of the Federal
Rules of Civil Procedure. Instead, he contended that the existing record would permit
jurors to find that the named defendants were reckless to the point of deliberate
indifference. The judge, however, concluded that a jury could not so find. Thus, despite
concerns that the overall handling of Soto’s footcare was at times troublesome, the
judge entered summary judgment for the defendants.
No. 19-3135 Page 5
On appeal, Soto does not contest the adequacy of discovery or denials of
recruited counsel; instead he renews his contention that the record would permit jurors
to infer medical mistreatment so reckless that it counts as unwarranted punishment
under the Eighth Amendment. See Farmer v. Brennan, 511 U.S. 825, 836 (1994); Jones v.
Mathews, 2 F.4th 607, 612–13 (7th Cir. 2021); see also Stewart v. Wexford Health Sources,
Inc., 14 F.4th 757, 763 (7th Cir. 2021) (opining that defendants’ mental state must
approach criminal recklessness). Collective failures of care are not enough; to prevail
against any defendant at trial, Soto would need jurors to find that the individual
defendant acted with the requisite deliberate indifference. See Mitchell v. Kallas, 895 F.3d
492, 498 (7th Cir. 2018). He has not done so.
Soto first argues that Dr. Manlove was reckless for not buying him new shoes on
the podiatrist’s recommendation. But, for Soto's time in the general population,
Dr. Manlove’s interpretation—that although better athletic shoes were advisable, the
settlement agreement made it Soto’s personal responsibility to buy them—makes sense.
Regardless of whether that interpretation is ultimately correct, any misunderstanding
on the doctor’s part would not permit jurors to infer that he recklessly disregarded
Soto’s pain. The same goes for Dr. Manlove’s assumption that the podiatrist’s reference
to “athletic” shoes did not mean special medical shoes (for which the prison ordinarily
would pay).
As for segregation shoes, Soto points to Dr. Manlove’s admission that his set was
in poor repair. Yet the doctor’s declaration attests that he spoke to health services about
replacing Soto’s shoes with a newer version. The lack of follow-up may be concerning,
but it would not be enough for jurors to conclude that the doctor was “essentially
criminally reckless.” See Stewart, 14 F.4th at 763.
Nor has Soto created a triable issue for his theory that other nurses and health
services managers were deliberately indifferent by not ordering him more supportive
shoes. Soto’s most robust theory on this point concerns Nurse Larson, who told Soto in
March 2015 that New Balance athletic shoes had been ordered on his behalf and, when
at some point Soto complained to Larson about not receiving them, told him to “deal
with it.” Her reassurance that the shoes were on the way might have deterred him from
ordering his own (though, again, his persistent view has been that the prison must buy
them). And from the summary judgment record, Nurse Larson’s interactions with Soto
are puzzling. But this puzzlement does not add up to a triable deliberate-indifference
claim. The record is so unclear about whether Larson actually ordered the shoes, what
her shoe-ordering duties might have been, and why (if she ordered them) Soto did not
receive them, that a reasonable factfinder could not infer that her conduct went beyond
No. 19-3135 Page 6
negligence or simple recklessness. See Jones, 2 F.4th at 612–13. Regarding the
segregation shoes, the nurses and health services managers explained to Soto that they
thought his settlement agreement did not allow different shoes. A reasonable factfinder
could not infer that this interpretation, even if mistaken, was deliberately indifferent.
Next, Soto contends that a jury could find that the defendants were deliberately
indifferent to his foot pain because they did not physically examine his feet or send him
back to a podiatrist after his last appointment with one in 2015. Yet Soto did not provide
any evidence that a medical professional would typically order another examination or
appointment to treat his foot conditions. Without more, a jury could not find that the
defendants’ failure to order that course of treatment grossly deviated from acceptable
professional judgment. See Lockett v. Bonson, 937 F.3d 1016, 1024 (7th Cir. 2019).
Finally, Soto points to the poor fit of the orthotics he received in summer 2018
and the lengthy process for acquiring new orthotics. But the summary judgment record
does not permit an inference that any named defendant was reckless or worse in the
ordering process and follow-up care.
AFFIRMED