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Dye v. Klemz

United States District Court, W.D. Wisconsin

March 4, 2016

JOHN L. DYE, JR., Plaintiff,
v.
MARY KLEMZ, DR. GAANAN, THOMAS MICHLOWSKI, and EDWARD F. WALL, Defendants.

OPINION & ORDER

JAMES D. PETERSON District Judge

Plaintiff John Dye, a prisoner currently incarcerated at the Waupun Correctional Institution, brings Eighth Amendment and the Rehabilitation Act claims that officials at the Wisconsin Resource Center (“WRC”) forced him to use a short-handled or “fingertip” toothbrush despite his suffering from a “chronic mallet deformed right thumb” and arthritis in both hands.

Currently before the court are several motions, including a motion for summary judgment based on plaintiff’s failure to exhaust his administrative remedies, which I will deny.

A. Exhaustion

Defendants have filed a motion for summary judgment based on plaintiff’s failure to exhaust administrative remedies on his claims. Dkt. 44. An initial question is whether to allow plaintiff to submit a week-late response to the motion. After plaintiff’s deadline to file a response passed without his submission of a response, defendants filed a letter requesting that the court grant their exhaustion motion. Dkt. 48. Plaintiff followed with a motion for extension of time to file his response, Dkt. 49, along with his belated response, Dkt. 51-52. Plaintiff states that he had difficulties arranging for copies of some of his summary judgment documents. I will grant plaintiff’s motion because he asks for only a short extension, his affidavit shows that he worked diligently in preparing his materials, and there is no prejudice to defendants, who followed up with a reply to plaintiff’s belated submissions. Because I will consider plaintiff’s response and defendants’ reply, I will deny defendants’ request for entry of summary judgment following plaintiff’s failure to meet the original response deadline.

As for the substance of their summary judgment motion, defendants bear the burden of establishing their affirmative defense that that plaintiff failed to exhaust his available remedies. Jones v. Bock, 549 U.S. 199, 216 (2007). Defendants must show that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party.” Brummett v. Sinclair Broad. Grp., 414 F.3d 686, 692 (7th Cir. 2005). All reasonable inferences from the facts in the summary judgment record must be drawn in the nonmoving party’s favor. Baron v. City of Highland Park, 195 F.3d 333, 338 (7th Cir. 1999).

Under 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” The exhaustion requirement is mandatory, Woodford v. Ngo, 548 U.S. 81, 85 (2006), and “applies to all inmate suits, ” Porter v. Nussle, 534 U.S. 516, 524 (2002). The purpose of administrative exhaustion is not to protect the rights of officers, but to give prison officials a chance to resolve the complaint without judicial intervention. Perez v. Wis. Dept of Corr., 182 F.3d 532, 537-38 (7th Cir. 1999) (exhaustion serves purposes of “narrow[ing] a dispute [and] avoid[ing] the need for litigation”).

Generally, to comply with § 1997e(a), a prisoner must “properly take each step within the administrative process, ” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which includes following instructions for filing the initial grievance, Cannon v. Washington, 418 F.3d 714, 718 (7th Cir. 2005), as well as filing all necessary appeals, Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005), “in the place, and at the time, the prison’s administrative rules require, ” Pozo, 286 F.3d at 1025. In Wisconsin, the administrative code sets out the process for a prisoner to file a grievance and appeal an adverse decision through the Inmate Complaint Review System (“ICRS”). Wis. Admin. Code §§ DOC 310.07 (laying out four-step review process) and DOC 310.09 (setting rules for content and timing of grievances). Failure to follow these rules may require dismissal of the prisoner’s case. Perez, 182 F.3d at 535. However, “[i]f administrative remedies are not ‘available’ to an inmate, then the inmate cannot be required to exhaust.” Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).

It is undisputed that plaintiff did not exhaust a grievance following defendants’ actions that form the basis of his claims in this case-their refusals to provide him with a long-handled toothbrush in early 2013. But it is also undisputed that plaintiff did exhaust grievances about the toothbrush issue in 2008 and 2009 during a previous stint at WRC (plaintiff was transferred out of WRC in April 2010 and then returned in January 2013).

Those grievances were resolved as follows:

• On November 28, 2008, plaintiff filed grievance no. WRC-2008-31291 stating that his arthritis made it difficult to use the toothbrushes provided him. The institution complaint examiner (ICE) recommended dismissing the grievance after talking to Dr. Loria, who said that there was no medical reason to provide a normal toothbrush. Plaintiff appealed this decision through the entire complaint review process.
• On March 26, 2009, plaintiff filed a grievance stating that he almost swallowed his “fingertip toothbrush.” The grievance was initially rejected as previously addressed in the ’31291 grievance, but the reviewing authority reversed that decision, stating that the previous grievance was not the same issue as plaintiff’s accident with the fingertip toothbrush. The ICE then recommended dismissal, stating that the toothbrushes were not dangerous when used as directed and that plaintiff’s grievance seemed to be another attempt at obtaining a long-handled toothbrush. Plaintiff unsuccessfully appealed this ruling through the entire complaint review process.
• On September 1, 2009, plaintiff filed a grievance contending that Dr. Loria failed to thoroughly examine him and thus gave incorrect information to the ICE in the ’31291 grievance. This grievance was initially rejected as time-barred, but the reviewing authority reversed this decision. After meeting with plaintiff and reviewing medical records, the ICE recommended dismissing the grievance. Plaintiff unsuccessfully appealed this ruing through the entire complaint review process.

Usually, a grievance that predates the specific conduct alleged in the subsequent § 1983 action does not serve to exhaust administrative remedies concerning the later conduct. However, “prisoners need not file multiple, successive grievances raising the same issue (such as prison conditions or policies) if the objectionable condition is continuing.” Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013) (citing Parzyck v. Prison Health Servs. Inc., 627 F.3d 1215, 1219 (11th Cir. 2010) (prisoner “not required to initiate another round of the administrative grievance process on the exact same issue each time” a deprivation occurred); Howard v. Waide, 534 F.3d 1227, 1244 (10th Cir. 2008) (prisoner “was not required to begin the grievance process anew when the very risk to his safety that he identified during the grievance process came to pass”); Johnson v. Johnson, 385 F.3d 503, 521 (5th Cir. 2004) (“As a practical matter, [plaintiff] could not have been ...


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