United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District
plaintiff and prisoner Ryon Stacy Reese is proceeding on 15
claims, most of which relate to alleged failures by prison
officials to provide medical care for chronic pain, in
violation of the Eighth Amendment. Several motions are now
before the court: (1) defendants' motion for partial
summary judgment on the ground that plaintiff did not exhaust
his administrative remedies as to four of his 15 claims, dkt.
#44; (2) plaintiff's motion to “release”
defendant Ziegler from the lawsuit, dkt. #52; (3)
plaintiff's motion for assistance in recruiting counsel,
dkt. #53; (4) plaintiff's motion for leave to file a
surreply, dkt. #57; and (5) plaintiff's “motion to
accept affidavit as authentication of exhibit, ” dkt.
reasons explained below, I am granting defendants' motion
for partial summary judgment as to three of the four claims
at issue. I am dismissing the other claim because it is not
ripe for review. Because plaintiff's motion for leave to
file a surreply and “motion to accept affidavit as
authentication of exhibit” are related to the claim
that is being dismissed as unripe, I am denying those motions
as moot. Finally, I am denying plaintiff's motion
regarding defendant Ziegler and granting plaintiff's
motion for assistance in recruiting counsel.
Motion for Partial Summary Judgment
seek dismissal of the following claims, each on the ground
that plaintiff failed to exhaust his administrative remedies,
as required by 42 U.S.C. § 1997e(a):
(1) in August 2014, defendant Kim Campbell (a nurse) refused
to schedule a doctor's appointment when plaintiff
complained of severe pain and bruising in his upper arm,
which plaintiff later discovered was caused by a torn tendon
in his bicep;
(2) in January 2016, defendant Salam Syed (a doctor) refused
to give plaintiff any pain medication or other treatment;
(3) at an unspecified time, defendant Phillip Hoechst (a
physical therapist) refused to prescribe a resistance band
for plaintiff to help with his shoulder; and
(4) defendant Chad Keller (a correctional officer) destroyed
a videotape that could have supported plaintiff's claims
in this case.
cite the declaration from a records custodian, who avers that
plaintiff did not file an administrative grievance related to
any of these claims. Rose Decl., dkt. 47. Generally, if a
prisoner fails to use the grievance process for a claim
before filing a lawsuit, the court must dismiss that claim.
Perez v. Wisconsin Dept. of Corrections, 182 F.3d
532, 535 (7th Cir. 1999)(“[A] suit filed by a prisoner
before administrative remedies have been exhausted must be
dismissed.”). Because it is possible that the prisoner
still could complete the exhaustion process at a later date,
a dismissal for failure to exhaust is always a dismissal
without prejudice. Ford v. Johnson, 362 F.3d 395,
401 (7th Cir. 2004).
responsive materials, plaintiff does not deny that he failed
to file a grievance about any of the claims listed above and
he says nothing at all about claims (1), (2) and (3).
Accordingly, I will grant defendants' summary judgment
motion as to the first three claims.
the last claim, plaintiff says that he failed to file a
grievance about the destruction of the videotape for two
reasons: (1) when he first asked about the videotape, an
officer directed him to seek relief in state court; and (2)
the state court determined that the videotape had been
destroyed, so plaintiff believed that the issue was moot and
that he could be disciplined for abusing the grievance
process if he sought administrative relief. I cannot consider
whether either of these issues excuses plaintiff's
failure to file a grievance because I conclude that the
underlying claim is premature. It was a mistake to allow
plaintiff to proceed on that claim.
explained recently in another case, a plaintiff cannot bring
a claim that destruction of evidence hindered his ability to
prove another claim until he loses that other claim.
Carter v. Cummings, No. 16-cv-55-bbc, 2017 WL
519283, at *6-7 (W.D. Wis. Feb. 8, 2017). If plaintiff
prevails on his claims despite the lack of video evidence or
if he loses those claims for reasons unrelated to the lack of
video evidence, then the destruction of the videotape has not
harmed him and he has not suffered the “actual
injury” that is required to give a person standing to
sue. Marshall v. Knight, 445 F.3d 965, 969-70 (7th
Cir. 2006). Thus, plaintiff's claim that defendant Keller
denied his right to have access to the courts by destroying a
videotape is not ripe until this case is resolved.
Morales v. City of Los Angeles, 214 F.3d 1151, 1155
(9th Cir. 2000) (“[D]enial-of-access-to-the-courts
claims arising from alleged police misconduct ... are not
ripe until the trial court proceedings are concluded
adversely to the plaintiffs.”); Vallade v.
Fischer, No. 12-cv-00231 A M, 2014 WL 5481881, at *16
(W.D.N.Y. Oct. 29, 2014) (“[E]ven if the [evidence] was
willfully destroyed in an effort to cover-up defendants'
conduct, plaintiff has not established that this caused him
to lose or inadequately settle a meritorious action, since
his underlying Eighth Amendment claim arising from the March
30, 2009 accident remains pending.”); Raymond v.
Sloan, Civ. No. 1:13-423 WBS, 2014 WL 4215378, *3 (D.
Idaho, Aug. 25, 2014) (“At this stage in the
litigation, it is premature to determine whether
defendants' alleged cover-up will result in the defeat of
her negligence claim. Instead of speculating upon the fate of
that claim, the court will instead dismiss plaintiff's
§ 1983 claim without prejudice”); Parrish v.
Solis, No. 11-CV-01438, 2014 WL 1921154, at *13 (N.D.
Cal. May 13, 2014) (“Plaintiff cannot allege the
‘loss' of this claim at this point in ...