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Smith v. Martin

United States District Court, W.D. Wisconsin

July 12, 2016

RICHARD THOMAS SMITH, JR., Plaintiff,
v.
DR. MARTIN, TAMMY MAASSEN, DEBRA TIDQUIST, NURSE KOJTHORYZ, and DR. HEFTIEZER, Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE.

         Pro se plaintiff Richard Thomas Smith, Jr. is proceeding in this case on claims that medical staff at the Jackson Correctional Institution (“JCI”) violated his rights under the Eighth Amendment by denying him medical care for pain in his left foot. Now before the court is defendants’ motion for summary judgment on the ground that Smith failed to exhaust his administrative remedies before filing suit, as required by 42 U.S.C. § 1997(e)(a). (Dkt. #22.) Also pending is Smith’s motion for assistance in recruiting counsel. (Dkt. #25.) Because the undisputed facts establish that Smith failed to exhaust his administrative remedies before filing suit, defendants’ motion for summary judgment will be granted and Smith’s motion for assistance in recruiting counsel will be denied.

         OPINION

         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.” 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). This 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.

         The purpose of these requirements is to give the prison administrators a fair opportunity to resolve the grievance without litigation. Woodford v. Ngo, 548 U.S. 81, 88-89 (2006). If a prisoner fails to exhaust his administrative remedies before filing his lawsuit, the court must dismiss the case. Perez v. Wisconsin Dept. of Corr., 182 F.3d 532, 535 (7th Cir. 1999). Because exhaustion is an affirmative defense, defendants bear the burden of establishing that plaintiff failed to exhaust. Jones v. Bock, 549 U.S. 199, 216 (2007).

         To exhaust administrative remedies in Wisconsin, inmates must follow the inmate complaint review process set forth in the Wisconsin Administrative Code ch. DOC 310. Under these provisions, prisoners start the complaint process by filing an inmate complaint with the institution complaint examiner within 14 days after the occurrence giving rise to the complaint. Wis. Admin. Code § DOC 310.09. The complaint examiner may investigate inmate complaints, reject them for failure to meet filing requirements, recommend a disposition to the appropriate reviewing authority (the warden or the warden's designee) or direct the inmate to attempt to resolve the complaint informally. Id. §§ 310.07(2), 310.09(4), 310.11, 310.12. If the institution complaint examiner makes a recommendation that the complaint be granted or dismissed on its merits, the appropriate reviewing authority may dismiss, affirm or return the complaint for further investigation. Id. § 310.12. If an inmate disagrees with the decision of the reviewing authority, he may appeal. Id. § 310.13. If the institution complaint examiner rejects a grievance for procedural reasons without addressing the merits, an inmate may appeal the rejection. Id. § 310.11(6). The reviewing authority's decision on the rejection is final. Id.

         Plaintiff was granted leave to proceed on claims that defendants Dr. Martin, a physician, Tammy Maassen, the HSU manager, Debra Tidquist, a licensed practical nurse, Ms. Kojthoryz, a registered nurse, and Dr. Heftiezer, a medical director, failed to provide him adequate medical treatment for his chronic plantar fasciitis in violation of the Eighth Amendment. He alleged in particular that defendants (1) persisted in providing him only with Ibuprofen, which was inadequate; (2) cancelled a foot surgery that had been recommended by doctors at the University of Wisconsin; and (3) denied his requests for an “ultra sound guided injection” for his foot. Defendants submitted plaintiff’s complete inmate complaint history report (dkt. #24, Exhs. 101-104), which shows that plaintiff filed three inmate grievances relevant to his claims. Defendants contend, however, that plaintiff failed to exhaust his administrative remedies because plaintiff’s first grievance was properly rejected as untimely, and he never appealed the second and third grievances. The undisputed facts support defendants’ contentions.

         A. December 15, 2013 Offender Complaint Regarding Cancelled Surgery.

         On December 15, 2013, plaintiff filed offender complaint JCI-2013-24254, alleging that defendants Tidquist and Kojthoryz improperly cancelled his foot surgery on November 20, 2013, after guards reported to HSU that he was playing basketball. (Dkt. #24, Ex. 102.) Plaintiff explained in his offender complaint that he was playing basketball because he had been directed to continue exercising despite the pain in his foot. (Id.) The complaint examiner rejected plaintiff’s complaint as untimely since it was not filed within the 14-day deadline imposed by Wis.Stat. § DOC 310.09 after plaintiff learned his surgery had been cancelled. (Id.) Specifically, the complaint examiner found that plaintiff had known about the cancellation no later than November 23, 2013, when he reviewed his medical record, which meant the last day for plaintiff to file his offender complaint was December 7th, rather than the 15th. (Id.) Plaintiff appealed this rejection, arguing that the 14-day deadline should be waived because his complaint was “serious.” (Id. at 009). The warden affirmed the rejection, however, concluding that plaintiff had not provided any evidence that he was prevented from filing a timely complaint. (Id. at 012).

         Unfortunately for plaintiff, a grievance properly “rejected solely on the basis of untimeliness” does not satisfy the PLRA’s exhaustion requirement. Conyers v. Abitz, 416 F.3d 580, 584 (7th Cir. 2005). Therefore, whether plaintiff exhausted his administrative remedies regarding his claim about the surgery turns on whether his complaint was properly rejected as untimely by the complaint examiner. If the institution complaint examiner properly rejected plaintiff’s complaint as untimely, then plaintiff has failed to exhaust his administrative remedies and he may not proceed on any claim arising out of cancellation of his original surgery.

         In his response brief, plaintiff concedes that he failed to file a grievance regarding cancellation of his surgery within 14 days of learning that the surgery had been cancelled, [1]but argues that this delay should be excused for two reasons. First, he asserts “good cause” for the delay, because he was attempting to resolve his complaint informally. Second, he asserts that because he was complaining about an ongoing medical issue, the 14-day deadline was never trigged. Neither argument is persuasive.

         1. Plaintiff’s Attempt at Informal Resolution Did Not Toll the Filing Deadline.

         As for having “good cause” for filing late, plaintiff represents that the reason for his delay in filing a complaint about the cancellation of his surgery was that he was trying to resolve the dispute informally. In support, plaintiff points out that on December 2, 2013, he sent a letter to Tammy Maassen, the HSU manager, explaining his reasons for playing basketball and his need for the surgery. (Dkt. #24, Ex. 102 at 003.) He also requested that Maassen respond within 10 days. (Id.) When she did not respond, he submitted the inmate complaint, but by that time the 14-day deadline had expired. (Pl.’s Br., dkt. #27, at 7.)

         As a initial matter, even if plaintiff’s letter to defendant Maasenn could be considered “good cause” for his delay in filing a complaint under § 310.096(6), as plaintiff argues, that is not a decision for the court to make in the first instance. On the contrary, Wisconsin’s regulations give complaint examiners discretion to determine whether an untimely filing should be accepted for good cause. Wis.Stat. § DOC 310.096(6). Thus, the place for making arguments about “good cause” ...


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