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Reese v. Dittman

United States District Court, W.D. Wisconsin

March 22, 2017

RYON STACY REESE, Plaintiff,
v.
MICHAEL DITTMAN, KAREN ANDERSON, MEREDITH MASHAK, KARL HOFFMAN, SALAM SYED, KATHLEEN WHALEN, EMMA STARCK, KRISTEN DEYOUNG, DENISE VALERIUS, BARB HARRIS, NICOLE FELTON, KIM CAMPBELL, CHAD KELLER, PHILLIP HOECHST, LUCAS VOLDEN, PAUL BAUMGARTEN, JEFF REWEY, STEPHEN WILLETT, TIMOTHY ZIEGLER, Defendants.[1]

          OPINION AND ORDER

          BARBARA B. CRABB District

         Pro se 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. #59.

         For the 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.

         OPINION

         A. Motion for Partial Summary Judgment

         Defendants 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.

         Defendants 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).

         In his 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.

         As to 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.

         As I 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 ...


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