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Banks v. Patton

United States District Court, E.D. Wisconsin

February 22, 2017

TARENCE BANKS, Plaintiff,
v.
LESLIE PATTON, et al., Defendants.

          DECISION AND ORDER GRANTING THE DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (DKT. NOS. 146, 152)

          HON. PAMELA PEPPER United States District Judge.

         Plaintiff Tarence Banks is representing himself.[1] On May 27, 2014, Judge Lynn Adelman screened the complaint under 28 U.S.C. §1915A. He permitted the plaintiff to proceed on Fourteenth Amendment conditions of confinement and deliberate indifference to a serious medical need claims regarding the conditions at the Racine County Jail (RCJ) and the alleged failure to treat his wound as directed; due process claims related to disciplinary hearings which resulted in segregation stays[2]; and an excessive force claim based on the allegation that defendant Koldeway shouldered the plaintiff, causing injury. Dkt. No. 8 at 5. On December 30, 2014, the clerk of court reassigned the case to this court. Almost nine months later, after the plaintiff sent the court a letter asking for clarification of Judge Adelman's screening order, dkt. no. 51, the court also allowed the plaintiff to proceed on claims under the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA). Dkt. No. 67 at 10.

         On March 21, 2016, defendants Barker, Friend, Gonzales, Koldeway, Ledezma, Moran, Noonan, Evans, Schmaling and Wearing (the RCJ Defendants) filed a motion for summary judgment. Dkt. No. 146. That same day, the remaining defendants-Coe, Gone, Mehring, and Patton (the Medical Defendants)-also filed a motion for summary judgment. Dkt. No. 152. Once the parties had fully briefed those motions, the court began to evaluate them. The court noted that both sets of defendants had argued that the court should dismiss the plaintiff's case because he had failed to exhaust the available administrative remedies before filing his lawsuit, as required by the Prison Litigation Reform Act. On August 2, 2016, the court held an evidentiary hearing to examine whether the defendants' exhaustion arguments had merit.

         As explained below, the court concludes that it must dismiss aspects of the plaintiff's conditions of confinement and ADA/RA claims, and his deliberate indifference claims, because he failed to exhaust the available administrative remedies with regard to those claims. The court also concludes that the RCJ Defendants are entitled to summary judgment on the plaintiff's remaining claims.

         I. FACTS[3]

         The plaintiff has sued fourteen defendants. The plaintiff's medical claims are directed at four of the defendants (Coe, Patton, Mehring and Gone-the Medical Defendants), who, during the relevant time, were employed by Correctional Healthcare Companies to provide healthcare services to inmates at RCJ. Dkt. No. 154 at ¶13. The plaintiff's remaining claims are directed at one or more RCJ officials (Schmaling, Koldeway, Noonan, Gonzales, Moran, Barker, Friend, Evans, Wearing, and Ledezma-the RCJ defendants).

         A. The Plaintiff's Allegations

         The plaintiff is an amputee; he lost his arm one month prior to his November 12, 2013 confinement at the RCJ. Dkt. No. 1 at 6; Dkt. No. 154 at ¶6. The plaintiff was housed in an intake cell for his first five days at RCJ. Dkt. No. 1 at 6. According to the plaintiff, the cell was not handicap-accessible; it did not have bed or wall rails. Id. As a result, the plaintiff alleges that he urinated on himself several times because he could not make it out of bed to the toilet. Id. The plaintiff pressed the cell's emergency call button numerous times for help, but never received a response. Id. Three days into his stay, the plaintiff asked how long he had to remain in the cell, and defendant Evans said they hadn't figured out where to put him yet. Id. The plaintiff told Evans that he had urinated on himself. Id.

         The plaintiff alleges that after five days in the intake cell, he was transferred to “Med/Seg, ” which also was not handicap-accessible. Id. The plaintiff's cellmate helped him with many tasks, such as putting on deodorant, cleaning the cell, putting his clothes in the laundry bag and changing the bandage on his back injury. Id. at 7. The cellmate, however, “charged” the plaintiff with food from his meal tray in exchange for the help, so the plaintiff “starved” at times. Id.; Dkt. No. 147 at ¶17.

         The plaintiff states that his mobility during this time was very limited, and he couldn't walk more than a few feet. Dkt. No. 1 at 7. He states that he needed a wheelchair for long distances. Id. The plaintiff's cellmate also had to help him get in and out of bed, and sometimes helped him get off of the toilet. Id. When the plaintiff asked Evans where the handicap-accessible cells were, Evans replied that they were on the other side of RCJ, but that “[defendant] Patrick Noonan states you will never see that side!” Id. at 8.

         The plaintiff states that he was on a shower restriction. Id. The RCJ Defendants explain that the plaintiff's doctor did not want him to get his bandages wet. Dkt. No. 147 at ¶24. Once the doctor approved the plaintiff for showers, the RCJ Defendants told him to use the dayroom shower, which is available daily from 6:00 a.m. to 8:00 a.m. and from 8:00 p.m. and 10:00 p.m. Dkt. No. 147 at ¶26. The plaintiff complained that the dayroom shower had no handrails or bars, so the RCJ Defendants provided the plaintiff with a chair. Dkt. No. 1 at 8; Dkt. No. 147 at ¶27. The plaintiff states that he fell off the chair staff gave him to use. Dkt. No. 1 at 8. After the plaintiff requested the use of a handicap-accessible shower, the RCJ Defendants began to escort him downstairs to use the intake shower, which had handrails. Dkt. No. 1 at 8; Dkt. No. 147 at ¶28. A chair was placed in that shower at the plaintiff's request, but it was the same type of chair from which he had fallen when he was upstairs. Dkt. No. 1 at 8; Dkt. No. 147 at ¶29. After about two months, the plaintiff received a medical shower chair, but staff removed the handrails from the chair, which the plaintiff says rendered it useless. Dkt. No. 1 at 9.

         The plaintiff also states that he was not allowed to shower regularly. Id. The RCJ Defendants explain that they offered him a shower at least three times each week in the handicap accessible shower, and that he went, at most, five days without a shower. Dkt. No. 1 at 9; Dkt. No. 147 at ¶30-31. They also explain that the plaintiff often would refuse the opportunity to shower. Dkt. No. 147 at ¶31. The plaintiff states that he developed a rash as a result of the infrequent showers. Dkt. No. 1 at 9.

         The plaintiff also states in his complaint that an outside doctor ordered that the plaintiff needed “wet to dry dressing change[s].” Id. He says the gauze was supposed to be wetted, the wound wiped, and the wet gauze fitted into the wound, but that this did not happen on a regular basis. Id. The Medical Defendants disagree, stating that during the eighteen days in November 2013 that the plaintiff was at RCJ, medical staff changed his dressings at least fourteen times; and that during December 2013, they changed his dressing at least twenty-two times. Dkt. No. 154 at ¶27-28.

         The plaintiff alleges that as a result of the infrequent bandage changes, he developed an infection in his arm and back, dkt. no. 1 at 9, but the Medical Defendants maintain that the plaintiff's arm and back were infected when he arrived at RCJ, dkt. no. 154 at ¶15-16. Regardless of when the infection developed, the plaintiff states that, when he asked defendant Patton, who had been assigned to help him wash his arm and back, for assistance, she refused, causing him to develop a rash (in addition to the infection) on his arm and back. Dkt. No. 1 at 10. The plaintiff states that he was given a cream for the rash, but that he couldn't put it on, so he had to rely on his cellmate. Id. Patton, on the other hand, states that on November 20, 2013, she notified Gone that the plaintiff's wound was draining, and that she cleaned the wound and applied ointment with a bandage. Dkt. No. 154 at ¶29. Gone prescribed antibiotics on November 20 and again on December 4, 2013, after Patton reported that the wound was still draining. Id. at at ¶30.

         On January 2, 2014, the plaintiff refused to let defendants Patton or Coe look at or treat his arm and back. Dkt. No. 1 at 12; Dkt. No. 154 at ¶32. The Medical Defendants state that they provided the plaintiff with bandages and told him how to change the dressing himself. Dkt. No. 154 at ¶35. The plaintiff states that, because of his refusal to let them change his bandages, he was placed in intake and all of his personal belongings were removed. Dkt. No. 1 at 12. He states that a few days later, he let them see the area, but they did not provide any treatment. Id.

         The plaintiff eventually told RCJ staff that he felt healthy enough to be transferred to general population, so on January 13, 2014, RCJ staff transferred him to a cell in a Level 3 maximum security pod (according to the RCJ Defendants, the plaintiff was classified at the highest custody classification because of his criminal history and past confinement). Dkt. No. 147 at ¶44, 49. The plaintiff's new cell was not handicap-accessible. Dkt. No. 1 at 11; Dkt. No. 154 at ¶36. The RCJ Defendants explain that cells and dayroom showers for Level 3 Maximum inmates do not contain grab rails for safety and security reasons, including suicide concerns. Dkt. No. 147 at ¶46.

         In the plaintiff's new cell, the plaintiff did not have assistance from an inmate. Dkt. No. 1 at 11. He had trouble opening the Ziploc food bag for meals, and his food went flying to the floor. Id. After this happened numerous times and the plaintiff wasn't given replacement food, the RCJ staff began to give him Styrofoam food trays. Id.; Dkt. No. 147 at ¶42. The plaintiff also had trouble tying his laundry bag and making his bed. Dkt. No. 1 at 12; Dkt. No. 147 at ¶20, 22. The plaintiff asked defendant Wearing when he could be fitted for a prosthetic arm, but Wearing responded only that RCJ would not pay for it. Dkt. No. 1 at 11. The RCJ Defendants explain that no medical professional ever prescribed a prosthetic for the plaintiff because his other (dominant) arm was functioning. Dkt. No. 147 at ¶37.

         The plaintiff began to request that he be transferred to E-wing, which is a low security dormitory portion of RCJ that is newer and has more handicap accommodations, including shower grab rails. Id. at ¶50. RCJ denied the plaintiff's movement request for security reasons; however, it continued to let him use the showers in that area. Id.

         In February 2014, the plaintiff was placed in disciplinary segregation for twenty-five days, during which time his mattress was removed from 8:00 a.m. until 8:00 p.m. daily, pursuant to RCJ policy. Dkt. No. 1 at 10, 16; Dkt. No. 147 at ¶39-40. He complained (it is unclear to whom) about the pain from having to sit on concrete during the day, but was told (again, it is unclear by whom) that he needed to pay $7.00 for Tylenol. Dkt. No. 1 at 10. The plaintiff also inquired of defendants Patton, Coe, Wearing, Gonzales, Moran, Friend and Barker about the removal of his medically-approved extra mattress, extra blanket, and compression socks, but he received no response. Dkt. No. 1 at 10, 15, 16, 19. The RCJ Defendants explain that inmates in segregation are allowed to retain hygiene items, including a blanket, and that, when the plaintiff was in segregation, he was not prescribed an extra blanket or compression socks. Dkt. No. 147 at ¶40-41.

         At some unspecified point, while an officer (not a defendant) escorted the plaintiff to his shower, defendant Koldeway was walking nearby. Dkt. No. 1 at 12. The plaintiff told the officer that Koldeway was the reason his bandages weren't getting changed. Id. At that point, the plaintiff alleges, Koldeway threw his shoulder into the plaintiff and tried to knock him down. Id. The plaintiff states that the officer stopped the plaintiff from falling. Id. The plaintiff states that he was taken to medical and prescribed antibiotic cream for an abrasion and ibuprofen for pain. Id. at 13.

         II. DISCUSSION

         A. Exhausting Available Administrative Remedies

         According to the PLRA, “No 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.” 42 U.S.C. §1997e(a). Various important policy goals give rise to the rule requiring administrative exhaustion, including restricting frivolous claims, giving prison officials the opportunity to address situations internally, giving the parties the opportunity to develop the factual record, and reducing the scope of litigation. Smith v. Zachary, 255 F.3d 446, 450-51 (7th Cir. 2001).

         The RCJ Inmate Handbook provides that, when prisoners have a basis for a grievance or complaint and informal resolution is not possible, a prisoner should submit a written complaint to the jail administrator. Dkt. No. 147 at ¶3. If a prisoner is dissatisfied with a response, he may submit an appeal in writing to the jail administrator within fifteen days of receiving the response. Id. at ¶5.

         If a court determines that an inmate failed to complete any step in the exhaustion process prior to filing a lawsuit, the court must dismiss the plaintiff's complaint. Perez v. Wis. Dept. of Corrs., 182 F.3d 532, 535 (7th Cir. 1999) (“[A] suit filed by a prisoner before administrative remedies have been exhausted must be dismissed; the district court lacks discretion to resolve the claim on the merits.”).

         1. The Parties' Arguments

         According to the RCJ Defendants, the plaintiff filed at least sixty inmate grievances from November 12, 2013, until April 3, 2014 (the day he filed his federal lawsuit). Dkt. No. 147 at ¶6. They state that the plaintiff did not appeal any of his grievances. Id. at ¶7.

         The court held the evidentiary hearing on August 2, 2016, to determine whether the defendants could carry their burden and establish that the plaintiff had not exhausted the available administrative remedies. At the hearing, the plaintiff conceded that he had not appealed many of his grievances, and testified that there were a couple of reasons for this.

         First, the plaintiff testified that he did not receive responses to the majority of his grievances. The plaintiff explained that Wearing was the only RCJ Defendant who ever responded, and that he responded only to some, not all, of the grievances the plaintiff addressed to him. The plaintiff did not know how many responses he had received or when exactly he had received them, but he said the first time he saw many of the responses in his jail file was after he filed this lawsuit and he requested a copy of the file through discovery. In short, the plaintiff argued that he could not appeal decisions or responses that he never received.

         Second, the plaintiff argued that he was unaware of the appeal process. He explained that, when he arrived at RCJ, he was in bad physical shape. His arm recently had been amputated, and because of a bone graft (done in an attempt to save his arm), he had long incisions on his arm, back and legs. He said he could not get out of bed without significant assistance. At that time, the pages of the RCJ Handbook explaining the grievance and appeal procedures were posted on the dayroom windows. The plaintiff explained that he was unable to leave his cell to get to the dayroom. The plaintiff argued that he could not take advantage of an appeal procedure that he did not (and could not) know about.

         The RCJ Defendants responded that, even if the plaintiff was in bad shape when he arrived at RCJ this time, he had been housed at RCJ at least forty-five times since 1997. The handbook was available on the dayroom walls on each of those occasions. In addition, they argued that the plaintiff's mobility issues resolved long before he filed his lawsuit, as evidenced through his reassignment to general population and his lengthy disciplinary history while at RCJ, which included physical altercations with other inmates.

         The RCJ Defendants also argued that the plaintiff had filed multiple, redundant complaints to various people. The RCJ Defendants contend that they responded to every topic the plaintiff complained about (either in writing or by giving the plaintiff what he requested), if not to every complaint. They argued that it would have been a waste of time and resources to address each and every complaint, because in many ...


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