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Spates v. Sauvey

United States District Court, E.D. Wisconsin

January 17, 2017

SCOTT E. SPATES, Plaintiff,
v.
DR. SAUVEY, Defendant.

          DECISION AND ORDER GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (DKT. NO. 39), DENYING THE PLAINTIFF'S MOTION FOR MATERIAL EVIDENCE (DKT. NO. 43), DENYING THE PLAINIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 51), AND DISMISSING THE CASE.

          HON. PAMELA PEPPER United States District Judge.

         The plaintiff, a Wisconsin state prisoner who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendant violated his civil rights at the Green Bay Correctional Institution. Dkt. No. 1. There are several pending motions: the defendant's motion for summary judgment based on the plaintiff's failure to exhaust administrative remedies, dkt. no. 39; the plaintiff's motion for material evidence, dkt. no. 43; and the plaintiff's motion to appoint counsel; dkt. no. 51. This decision and order resolves the motions and dismisses the case.

         I. PROCEDURAL BACKGROUND

         The plaintiff filed his original complaint on February 12, 2016, and named only one defendant, Dr. Sauvey. Dkt. No. 1. The court screened that complaint, and allowed him to proceed on a claim that Dr. Sauvey was deliberately indifferent to his medical needs under the Eighth Amendment. Dkt. No. 15. Dr. Sauvey answered that complaint, dkt. no. 21, and the court issued a scheduling order requiring parties to file summary judgment motions no later than December 9, 2016, dkt. no. 26.

         On August 22, 2016, the plaintiff asked the court to allow him to file an amended complaint, so that he could identify the “Doe” defendants. Dkt. No. 31. Dr. Sauvey did not oppose this request. Dkt. No. 32. So on September 1, 2016, the court granted the plaintiff leave to file an amended complaint, and required him to file it by September 30, 2016. Dkt. No. 33.

         At this point, Dr. Sauvey asked the court to stay the scheduling deadlines it had earlier set-the deadlines for completing discovery and filing dispositive motions. Dkt. No. 34. The defendant's basis for this request was that she believed that the plaintiff had failed to exhaust his administrative remedies before bringing the lawsuit. Id. The defendant wanted to file a summary judgment motion on that issue alone, and asked the court to allow her to do so by October 7, 2016. Id. She asked the court to stay all other deadlines until she could bring this motion, noting that it might be dispositive on all other issues. Id. The court granted that request, staying all deadlines other than the deadline for the defendant to file a summary judgment motion on exhaustion, and set a schedule for the parties to brief that issue. Dkt. No. 36.

         A week later, the plaintiff filed his proposed amended complaint. Dkt. No. 37. The amended complaint named Lt. Van Gheems and Sgt. Kaphingst as new defendants, but otherwise re-asserted his Eighth Amendment deliberate indifference claim. Id.

         Dr. Sauvey timely filed her motion for summary judgment on the exhaustion claim. Dkt. No. 39. Some ten days later, the plaintiff filed a “Motion for Material Evidence-Rules.” Dkt. No. 43. The motion stated that the plaintiff needed a copy of the Wisconsin Department of Corrections' rules governing “Temporary Placement” in order to respond to defendant's exhaustion arguments. Id. Specifically, the plaintiff sought a copy of the rules to show that he did not have access to certain items, such as inmate grievance forms, during the time that he was in the hospital between August 15 and September 3, 2014. Id.

         Dr. Sauvey responded to the motion for material evidence by asserting that the fact that the plaintiff was in the hospital between August 15 and September 3, 2014 was irrelevant; the plaintiff didn't miss the deadline by a few days, or even a few weeks-“he missed it by over a year.” Dkt. No. 46 at 2. She argued that the plaintiff could have filed his grievance in September 2014 after his release from the hospital-he filed others during that time-but instead, he waited over a year to file it. Id.

         In response, the plaintiff told the court that he was “99.99% sure” that he didn't need to file an inmate grievance at all, given the fact that he was in the hospital during the fourteen-day grievance period mandated by D.O.C. rules. Dkt. No. 48 at 2. He explained that he had filed the complaint in December 2015 just to cover the remaining 00.01% chance. Id. He reiterated that he needed a copy of the inmate hospital rules, and that the D.O.C. wouldn't give them to him without a court order. Id. Finally, he argued that the question wasn't whether he could have filed his grievance at some other time- the D.O.C. rules restricted the grievance period to fourteen days after the incident, period. Id. at 1.

         Since then, the parties have fully briefed the motion for summary judgment on exhaustion. Dkt. Nos. 39, 44, 49. The plaintiff also filed a motion asking the court to appoint counsel to represent him at the summary judgment hearing, dkt. no. 51; a statement reiterating how much he needs the D.O.C. rules, dkt. no. 52; and letter, saying that he hasn't heard anything from the court, and wondering what he ought to be doing now, dkt. no. 53.

         II. THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES.

         A. Facts[1]

         On August 10, 2014, the plaintiff went to the Green Bay Correctional Institution's Health Services Unit ...


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