United States District Court, W.D. Wisconsin
OPINION & ORDER
JAMES D. PETERSON, DISTRICT JUDGE
Plaintiff James Turner, a prisoner in the custody of the Wisconsin Department of Corrections at the Columbia Correctional Institution, brings claims that defendant prison officials interfered with back and leg therapy ordered by a doctor. Defendants Ryan Blount, Cindy O’Donnell, and Charles Facktor, all of whom were alleged to have denied plaintiff’s grievance about the cancellation of therapy, have filed a motion to dismiss plaintiff’s claims against them, Dkt. 15. Plaintiff filed a motion to dismiss Blount from the case, Dkt. 19, but in opposing defendants’ motion to dismiss, he clarifies that he mistakenly alleged that Blount had participated in reviewing his grievances, and would like to substitute previously dismissed defendant Lucas Wogernese for Blount, Dkt. 24. Plaintiff has also filed a motion for appointment of counsel, Dkt. 26.
A. Motion to dismiss
Defendants Blount, O’Donnell, and Facktor contend that plaintiff’s claims against them should be dismissed because grievance examiners cannot be held liable for their decisions to deny plaintiff’s grievance about the cancellation of his therapy. Because I have already screened plaintiff’s complaint and allowed him to proceed with claims against these defendants, their motion is essentially one for reconsideration of the July 6, 2015, screening order. Dkt. 10. Defendants fail to persuade me that I was incorrect in allowing plaintiff to proceed on these claims.
In the screening order, I stated, “I understand plaintiff to be saying that the therapy was cancelled because plaintiff failed to show up to an August 2014 therapy appointment, but plaintiff missed the appointment through no fault of his own, because he did not receive a pass to go to the appointment.” Dkt. 10, at 2. I infer that plaintiff’s theory is that each of the examiners denied his grievance despite knowing that he missed the appointment through no fault of his own.
Defendants argue that the grievance examiners cannot be held liable under the Eighth Amendment for their actions because plaintiff “does not allege that [defendants] failed to implement their duties as part of the grievance process . . . . [or] had direct involvement in the cancellation of his therapy.” Dkt. 16, at 6. They rely on Burks v. Raemisch, 555 F.3d 592 (7th Cir. 2009), and George v. Smith, 507 F.3d 605 (7th Cir. 2007). In Burks, the Seventh Circuit stated:
The Governor, and for that matter the Superintendent of Prisons and the Warden of each prison, is entitled to relegate to the prison's medical staff the provision of good medical care. That is equally true for an inmate complaint examiner. One can imagine a complaint examiner doing her appointed tasks with deliberate indifference to the risks imposed on prisoners. If, for example, a complaint examiner routinely sent each grievance to the shredder without reading it, that might be a ground of liability. Or a complaint examiner who intervened to prevent the medical unit from delivering needed care might be thought liable. But Burks has not accused Salinas of refusing to do her job and of leaving the prisoners to face risks that could be averted by faithful implementation of the grievance machinery. He contends, instead, that Salinas should be held liable because she carried out her job exactly as she was supposed to. Burks does not contend that a 14-day time limit is unconstitutionally short-and, even if it were, a complaint examiner who applied the limit before a court declared it invalid would be entitled to qualified immunity from damages.
555 F.3d at 595 (citations omitted). In George, the court stated:
Only persons who cause or participate in the violations are responsible. Ruling against a prisoner on an administrative complaint does not cause or contribute to the violation. A guard who stands and watches while another guard beats a prisoner violates the Constitution; a guard who rejects an administrative complaint about a completed act of misconduct does not.
507 F.3d at 609-10 (citations omitted).
At least at this early stage of the proceedings, neither of these cases forecloses plaintiff’s claims against the examiner defendants. In Burks, the court concluded that the examiner’s rejection of a grievance as time-barred under the grievance rules did not show deliberate indifference. 555 F.3d at 594-95. In George, the court made clear that a grievance examiner cannot violate the constitution by denying a complaint about a completed act of harm. This makes sense because the examiner could take no action to undo the harm done to the prisoner. Any broader reading of George’s statement that “[r]uling . . . on an administrative complaint does not cause or contribute to the violation, ” 507 F.3d at 609, would seem to conflict with Burks, which allows for the possibility of a deliberate indifference claim being brought against a grievance examiner.
Here, plaintiff’s grievance and appeals were not denied on procedural grounds, and it appears that the examiners could have undone the harm to plaintiff by reinstating his therapy. If they acted with deliberate indifference in denying plaintiff’s grievance, they could have violated the Eighth Amendment. Therefore, I will deny defendants’ motion to dismiss.
This does not mean that it will be easy for plaintiff to prove these claims. At summary judgment or trial, plaintiff will have to present evidence showing that defendants acted with deliberate indifference, not merely ...