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Compton v. Cox

United States District Court, W.D. Wisconsin

March 8, 2017

ELBERT R. COMPTON, Plaintiff,
v.
BURTON COX, JOLINDA WATERMAN, DEBORAH CAMPBELL, BELINDA SCHRUBBE, MARY GORSKE, PAUL SUMNICHT, ANN SLINGER, GAIL WALTZ, BRIDGET BAYER, DONNA LARSON, CHRISTINE DE YOUNG, JEFFREY MANLOVE, MARY MILLER, RICHARD HEIDORN, DOUGLAS ARMATO, THOMAS GROSSMAN, and MARGARET ANDERSON, [1]Defendants.

          OPINION & ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         In this case, plaintiff Elbert Compton, a prisoner currently housed at the Waupun Correctional Institution, alleges that prison officials and outside medical personnel have failed for years to provide adequate medical treatment for a finger he broke while playing basketball.

         The two sets of defendants in this case (Wisconsin Department of Corrections officials and private medical professionals) have filed motions for summary judgment based on Compton's failure to exhaust his administrative remedies. Because Compton failed to properly exhaust many of his claims, I will grant the DOC defendants' motions in some respects. But some of his claims against the DOC defendants and all of his claims against private medical personnel survive this round of summary judgment. Because the substantive issues in this case will likely boil down to expert medical testimony, I will grant Compton's motion to recruit counsel, and strike the current schedule so that the court can find counsel for him.

         A. Claims

         The court granted Compton leave to proceed on the following claims under both Eighth Amendment and medical malpractice theories:

• In June 2008, defendant Dr. Burton Cox advised Compton that nothing could be done for him and that his finger “would have to remain in its deformed state”
• The following defendants failed to take to take any action to help him after he complained about prolonged pain from his injury: (1) defendant Nurse Deborah Campbell, in June 2008; (2) defendant Nurse Jolinda Waterman, in June and July 2008; (3) defendant Health Services Unit manager Belinda Schrubbe, from December 2008 to June 2011 and October 2011 to January 2012; (4) defendant Nurse Mary Gorske, in March 2010 and March 2011; (5) defendant Dr. Paul Sumnicht, in June, August, and September 2011; and (6) defendant nurse Ann Slinger, in June 2012
• In August and November 2013, defendant Nurse Gail Waltz did not directly treat his infection or severe pain
• In August 2013, defendant Nurse Bridget Bayer refused to see him or take other action regarding his pain
• In September 2013, defendant Nurse Donna Larson would not take action regarding his infection
• Twice in September 2013, defendant Nurse Christine De Young delayed in treating his infection
• In November 2013, Dr. Jeffrey Manlove saw him but did nothing to assess his problems or address his pain

         Compton was also granted leave to proceed on the following claims under a medical malpractice theory only:

• On April 24, 2007 (the date of Compton's injury), defendant Nurse Mary Miller did not reset his broken finger
• In April 2007, defendant Dr. Richard Heidorn refused his requests to reset his finger properly or send him to a hospital and failed to provide him adequate pain medication
• In April and May 2007, defendant Dr. Douglas Armato misdiagnosed his injury
• In September 2011, defendant Sumnicht refused to refer him to a bone specialist
• In August 2013, defendants Dr. Thomas Grossman and Nurse Practitioner Margaret Anderson botched his surgery

         B. Exhaustion

         Under 42 U.S.C. § 1997e(a), “[n]o 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.” The administrative exhaustion requirement is mandatory, Woodford v. Ngo, 548 U.S. 81, 85 (2006), and “applies to all inmate suits, ” Porter v. Nussle, 534 U.S. 516, 524 (2002). Its purpose is not to protect defendants but to give prison officials an opportunity to resolve complaints without judicial intervention. Perez v. Wis. Dep't of Corr., 182 F.3d 532, 537-38 (7th Cir. 1999) (exhaustion serves purposes of “narrow[ing] a dispute [and] avoid[ing] the need for litigation”).

         Generally, to comply with § 1997e(a), a prisoner must “properly take each step within the administrative process, ” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which includes following instructions for filing the initial grievance, Cannon v. Washington, 418 F.3d 714, 718 (7th Cir. 2005), as well as filing all necessary appeals, Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005), “in the place, and at the time, the prison's administrative rules require, ” Pozo, 286 F.3d at 1025. However, “[i]f administrative remedies are not ‘available' to an inmate, then the inmate cannot be required to exhaust.” Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).

         1. DOC defendants

         I begin with the exhaustion motion filed by the DOC defendants. The parties agree that Compton filed four grievances about his finger or associated pain, and that he failed to fully exhaust his first grievance, filed in 2007. The parties disagree whether Compton's third grievance (No. WCI-2012-16515) was properly exhausted.

         In that grievance, Compton stated that in 2008 defendant Cox told him there was nothing he could do to treat his finger. When he complained about continuing pain, Nurses Waterman and Campbell asked Compton what Cox told him about the problem. Compton reiterated Cox's statement that he would not do anything to help him, but the nurses walked away rather than provide any treatment. Dkt. 68-2, at 8. The grievance was ...


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