United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING THE DEFENDANTS'
MOTIONS FOR SUMMARY JUDGMENT (DKT. NOS. 146, 152)
PAMELA PEPPER United States District Judge.
Tarence Banks is representing himself. 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; 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.
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.
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.
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).
The Plaintiff's Allegations
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.
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
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.
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.
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.
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
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.
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.
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
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.
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
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.
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.
Exhausting Available Administrative Remedies
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).
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.
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.”).
The Parties' Arguments
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.
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.
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.
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.
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.
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 ...