United States District Court, E.D. Wisconsin
SCOTT E. SPATES, Plaintiff,
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.
PAMELA PEPPER United States District Judge.
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.
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.
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.
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.
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.
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.
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.
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.
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.
THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT FOR FAILURE
TO EXHAUST ADMINISTRATIVE REMEDIES.
August 10, 2014, the plaintiff went to the Green Bay
Correctional Institution's Health Services Unit