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Ards v. Casiana

United States District Court, W.D. Wisconsin

March 15, 2017

TYRONE D. ARDS, Plaintiff,
v.
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

          JAMES D. PETERSON District Judge

         Pro se 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.

         A. Defendants' motion for partial summary judgment for Ards's failure to exhaust available administrative remedies

         Defendants 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 claims:

1. deliberate indifference claims against Patrick Stellick and Theodore Thompson for ignoring Ards's threats of suicide;
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, [1] and Ann Peters-Anderson for denying Ards pain medication and the opportunity to see a physician;
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 3-4, 10.[2]

         Under 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).

         Ards 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.

         The 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.

         I will 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.

         1. Failure to protect ...


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