United States District Court, W.D. Wisconsin
TYRONE D. ARDS, Plaintiff,
TIMOTHY CASIANA, THEODORE ANDERSON, RANDY SCHNEIDER, MICHAEL J. THOMPSON, PATRICK STELLICK, MAURY THILL, JOE REDA, KIM CAMPBELL, ANN PETERS-ANDERSON, and DAVID SPANNANGEL, Defendants.
OPINION & ORDER
D. PETERSON District Judge
plaintiff Tyrone D. Ards, a state prisoner now incarcerated
at the Wisconsin Secure Program Facility, is proceeding on
Eighth Amendment claims against prison officials at his
previous prison, the Columbia Correctional Institution. Ards
contends that defendants violated his Eighth Amendment rights
by depriving him of medical care, failing to adequately
respond to his threats of suicide, using excessive force
against him, and failing to protect him from excessive force.
Defendants' motion for partial summary judgment for
Ards's failure to exhaust available administrative
move for partial summary judgment for Ards's failure to
exhaust administrative remedies on some of his claims. Dkt.
40. Ards is proceeding on six sets of Eighth Amendment
1. deliberate indifference claims against Patrick Stellick
and Theodore Thompson for ignoring Ards's threats of
2. deliberate indifference claim against Theodore Thompson
for giving Ards a bedsheet, intending for Ards to use the
bedsheet to hang himself;
3. deliberate indifference claims against Theodore Anderson,
Patrick Stellick, and Timothy Casiana for refusing Ards's
request to see a nurse;
4. deliberate indifference claims against Joe Reda, Kim
Campbell, David Spannangel,  and Ann Peters-Anderson for
denying Ards pain medication and the opportunity to see a
5. excessive force claims against Randy Schneider and Maury
Thill for jumping on Ards's back, bending his wrist,
banging his head on a metal shower door, and shoving a metal
glove into his mouth; and
6. failure to protect claim against Anderson for failing to
protect Ards from Schneider and Thill's excessive force.
Dkt. 10, at 4-5. Defendants move for partial summary judgment
on the third, fourth, and sixth sets of claims. Dkt. 41, at
the Prison Litigation Reform Act, a prisoner must exhaust
available administrative remedies before suing in court. 42
U.S.C. § 1997e(a). To satisfy the exhaustion
requirement, a prisoner must “properly take each step
within the administrative process, ” which includes
filing grievances and appeals “in the place, and at the
time, the prison's administrative rules require.”
Pozo v. McCaughtry, 286 F.3d 1022, 1024, 1025 (7th
Cir. 2002). The exhaustion requirement is mandatory,
Woodford v. Ngo, 548 U.S. 81, 85 (2006), and failure
to exhaust requires dismissal of the prisoner's case.
Perez v. Wisconsin Dep't of Corr., 182 F.3d 532,
535 (7th Cir. 1999).
contends that defendants waived their exhaustion defense by
failing to file a summary judgment motion on the issue before
the deadline set by the court. Dkt. 48, at 9. The exhaustion
requirement under the PLRA is an affirmative defense that can
be waived. Perez, 182 F.3d at 536. “But waiver
in the true sense occurs when a party intentionally
relinquishes a known right.” Lewis v. Sternes,
390 F.3d 1019, 1029 (7th Cir. 2004) (discussing procedural
default defense in habeas context). Absent evidence of intent
to waive, whether to consider an affirmative defense untimely
raised by a party is a matter committed to a district
court's discretion. Id.
deadline for filing a motion on the issue of the exhaustion
requirement was January 13, 2017, Dkt. 20, at 4, but
defendants filed their motion three weeks later, on February
3, 2017, Dkt. 40, at 2. I asked defendants to explain why I
should consider their untimely motion. Dkt. 47. Defendants
explained that their “deadline was mistakenly
calendared for February 3.” Dkt. 49, at 2. Defendants
addressed the problem as soon as they became aware of it, and
I conclude that Ards was not prejudiced by the three-week
delay, so I will consider defendants' motion.
grant defendants' motion in part. I will deny the motion
as to Ards's claim against Anderson, but I will grant the
motion as to his claims against Stellick, Casiana, Reda,
Campbell, and Spannangel.
Failure to protect ...