United States District Court, E.D. Wisconsin
RODOLPH J. LANAGHAN, Plaintiff,
CO KOCH, et al., Defendants.
DECISION AND ORDER DENYING DEFENDANTS' MOTION FOR
William C. Griesbach, Chief Judge United States District
Rodolph Lanaghan, currently incarcerated at Fox Lake
Correctional Institution, brought this civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff alleges that
Defendants Officer Koch, Sergeant Chase, Nurse Woomer, Nurse
Bowen, and Unknown Health Services Unit Staff violated his
Eighth Amendment rights. The events giving rise to
Plaintiff's complaint occurred while he was incarcerated
at the Oshkosh Correctional Institution (OSCI). Plaintiff
alleges Defendants were deliberately indifferent to his
serious medical needs and were negligent regarding his severe
muscle disease, Dermatomyositis with Polymyositis. The case
is before the Court on Defendants Koch, Chase, and
Bowen's motion for summary judgment. (ECF No. 38.)
Defendant Woomer joined the motion without filing her own
memorandum of law. (ECF No. 46-1.) Defendants seek summary
judgment on the ground that Plaintiff has failed to exhaust
his administrative remedies as required under the Prison
Litigation Reform Act (PLRA). For the reasons set forth
below, the Court will deny Defendants' motion for summary
judgment and instead order a hearing pursuant to Pavey v.
Conley, 544 F.3d 739 (7th Cir. 2008).
November 2011, Plaintiff noticed a rash forming on his
forehead, back, and abdomen; experienced muscle pain in his
back and abdomen; and noticed a lump on his neck. (Pl.'s
Prop. Undisputed Facts (PPUF) ¶¶ 3-4, ECF No. 48.)
Plaintiff submitted his first request to be seen by
OSCI's health services unit (HSU) for his symptoms on
November 20, 2011. Plaintiff received treatment on November
21, 2011, but he contends Nurse Woomer indicated she would
only see him for his rash. (Id. ¶ 9.) Between
November 22, 2011 and December 6, 2011, Plaintiff's
symptoms worsened. He alleges he was in extreme pain, his
entire body was swelling up, his rash and bleeding sores
began spreading over his entire body, and he had a large
bulge on his back. He required a wheelchair to move around.
Plaintiff continued to seek treatment from the staff at HSU
during this time.
December 6, 2011, Plaintiff was taken to the hospital and
diagnosed with Dermatomyositis with Polymyositis, an
extremely severe muscle disease. He returned to OSCI on
December 12, 2011 with treatment instructions. However, when
seen at a follow up appointment on December 16, 2011, the
specialist noted Plaintiff had difficulty getting out of a
chair and was unable to raise his head off his pillow.
Shortly thereafter, Plaintiff began using a wheelchair, could
not independently perform his daily living activities, and
struggled to swallow his own saliva.
believed that he was not receiving proper treatment for his
condition at OSCI and sought to file an Offender Complaint.
Because of his deteriorating condition, Plaintiff was unable
to physically write or type a complaint. He asked a fellow
inmate, Audie Draper, to help him file one. On or around
December 20, 2011, Draper took Plaintiff to OSCI's
“dayroom” to write the complaint but the main
tables were occupied by other inmates. Plaintiff claims that
he and Draper asked Sergeant Chase if they could write the
complaint at a table in the study room. (Id. ¶
48.) Plaintiff explained to Sergeant Chase that he needed
Draper's assistance to write the complaint. (Id.
¶ 49.) He alleges that Sergeant Chase denied them access
to a table. (Id. ¶ 50.) Plaintiff knew that
inmates cannot write complaints against a wall or on the
floor. As such, he did not attempt to file a complaint that
day and returned to his cell. Plaintiff asserts that his
condition worsened, and he was unable to ask for assistance
to file a complaint before he was rushed back to the hospital
on December 28, 2011.
underwent treatment at UW Hospital and Select Specialty
Hospital for a total of six weeks. He was subsequently
transferred to the Dodge Correctional Institution infirmary
for approximately two weeks to perform physical therapy.
Plaintiff returned to OSCI without restrictions on March 6,
filed a prisoner complaint regarding OSCI's alleged
improper treatment of his condition on July 2, 2012. (ECF No.
41-2 at 8.) He listed the “Date of Incident or Denial
of Request” as “11-20-11 to present
(on-going).” (Id.) Plaintiff's complaint
was rejected on July 10, 2012. (Id. at 2.) Plaintiff
filed a request for review of the rejected complaint on July
17, 2012, but his request was denied on August 2, 2012.
(Id. at 5, 11.) Plaintiff filed his complaint in the
present action on August 3, 2015, alleging a series of
negligent medical acts by numerous medical practitioners.
judgment is proper if the moving party shows that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In determining whether summary judgment
is appropriate, a court must construe the evidence in the
light most favorable to the non-moving party. Ramos v.
City of Chicago, 716 F.3d 1013, 1014 (7th Cir. 2013).
contend that they are entitled to summary judgment because
Plaintiff has failed to exhaust his administrative remedies.
The PLRA provides that a prisoner cannot assert a cause of
action under federal law “until such administrative
remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a); see also Woodford v. Ngo, 548 U.S.
81, 93 (2006) (holding that the PLRA requires proper
exhaustion of administrative remedies). Exhaustion requires
that a prisoner comply with the rules applicable to the
grievance process at the inmate's institution. Pozo
v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). This
requirement “applies to all inmate suits about prison
life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong.” Porter v. Nussle, 534
U.S. 516, 532 (2002). The objective of § 1997e(a) is to
“permit the prison's administrative process to run
its course before litigation begins.” Dole v.
Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (quoting
Cannon v. Washington, 418 F.3d 714, 719 (7th Cir.
2005)); see also Kaba v. Stepp, 458 F.3d 678, 684
(7th Cir. 2006). The Seventh Circuit applies a “strict
compliance approach to exhaustion, ” and expects
prisoners to adhere to “the specific procedures and
deadlines established by the prison's policy.”
Dole, 438 F.3d at 809; see also Hernandez v.
Dart, 814 F.3d 836, 842 (7th Cir. 2016) (citations
has implemented the Inmate Complaint Review System (ICRS)
under which inmate grievances concerning prison conditions or
the actions of prison officials are “expeditiously
raised, investigated and decided.” Wis. Admin. Code
§ DOC 310.01. Under the ICRS, an inmate must file a
complaint with the institutional complaint examiner (ICE)
within 14 calendar days after the occurrence giving rise to
the complaint, unless good cause exists to excuse a delay.
Wis. Admin. Code § DOC 310.09(6). The ICE has the
authority to return, investigate, or recommend a decision to
an appropriate reviewing authority. Wis. Admin. Code §
DOC 310.07(2)(a)-(c). If a reviewing authority renders a
decision, the inmate may appeal that decision to the
Corrections Complaint Examiner (CCE) within 10 calendar days.
Wis. Admin. Code § DOC 310.13(1). After receiving an
appeal, the CCE shall issue a written receipt of the appeal
to the inmate within five working days, then recommend a
decision to the DOC Secretary, who adopts or rejects the
recommendation. Wis. Admin. Code §§ DOC 310.13(4),
DOC 310.14(2). The failure to properly exhaust each step of
the grievance process constitutes failure to exhaust
available administrative remedies. Pozo, 286 F.3d at
a prisoner's claim is not subject to the PLRA exhaustion
requirement when no administrative remedies are
“available” to him during the relevant exhaustion
period. Hernandez, 814 F.3d at 842 (citing 42 U.S.C.
§ 1997e(a); Woodford, 548 U.S. at 93). Prison
authorities cannot “immunize themselves from suit by
establishing procedures that in practice are not available
because they are impossible to comply with or simply do not
exist.” King v. McCarty, 781 F.3d 889, 894
(7th Cir. 2015). Exhaustion is an affirmative defense,
therefore, the defendants must establish that an
administrative remedy was available and that Plaintiff failed
to pursue it. Thomas v. Reese, 787 F.3d 845, 847
(7th Cir. 2016). When factual disputes regarding exhaustion
exist, the court must resolve those disputes through an
evidentiary hearing. Pavey, 544 F.3d at 742.
Plaintiff concedes that he did not file an ICRS complaint
regarding the treatment he received at his November 11, 2011
HSU appointment until July 2, 2012, but contends that
Defendants prevented him from exhausting his remedies by
restricting him from receiving assistance to draft his
complaint. Pursuant to Wis. Admin. Code § DOC 310.09(7),
“[i]f an inmate is unable to write a complaint, the
inmate may seek assistance in doing so.” Plaintiff
claims he was physically incapable of independently filing an
ICRS complaint within 14 days of the ...