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Ards v. Casiana

United States District Court, W.D. Wisconsin

April 27, 2017

TYRONE D. ARDS, Plaintiff,

          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 respond to his suicide threats, using excessive force against him, and failing to protect him from excessive force.

         This opinion will address four documents filed by Ards: (1) a motion for reconsideration of the partial summary judgment on Ards's failure to exhaust administrative remedies, Dkt. 60; (2) a motion for an order allowing Ards to correspond with witnesses using his legal loan, Dkt. 53; (3) a motion to compel defendants to respond to his interrogatories and to requests for admission, Dkt. 56; and (4) a declaration indicating that Ards faces imminent danger, Dkt. 65. I will deny the three motions. As for the fourth document, it is not a motion asking for a particular relief, but I will nonetheless consider whether Ards's safety is ensured. I conclude that WSPF has implemented appropriate measures for Ards's safety, but I will direct the Wisconsin Attorney General's Office to apprise prison officials of Ards's refusal to eat his meals or drink water.

         A. Motion for reconsideration

         I granted defendants' motion for partial summary judgment and dismissed Ards's deliberate-indifference claims for denial of medical care because Ards had failed to exhaust administrative remedies as to those claims. Dkt. 55, at 4-5. Ards now moves for reconsideration of that decision. Dkt. 60. For the reasons discussed below, I will deny Ards's motion for reconsideration.

         1. Timeliness

         Ards contends that I was “extremely bias[ed] because I considered defendants' motion for partial summary judgment even though the motion was filed 21 days after the deadline. Dkt. 60, ¶ 1. But as I explained in the order, defendants did not waive their right to move for summary judgment on the exhaustion issue by failing to file their motion on time. Dkt. 55, at 3. And, although defendants filed their motion late, Ards was given an adequate opportunity to respond to defendants' motion. Accordingly, the 21-day delay did not prejudice Ards.

         2. Deliberate-indifference claims against Anderson, Stellick, Casiana, Reda, Campbell, and Spannangel for denial of medical care

         Ards next contends that I erred by granting summary judgment on his claims against defendants Theodore Anderson, Patrick Stellick, Timothy Casiana, Joe Reda, Kim Campbell, and David Spannangel. I granted summary judgment as to these defendants because Ards had not filed a timely grievance. Dkt. 55, at 5. The only grievance filed on time was his grievance about being charged a co-pay for medical expenses, and that grievance did not satisfy the exhaustion requirement. Dkt. 42, ¶ 34; Dkt. 42-1; Dkt. 42-4; Dkt. 55, at 5. In his opposition brief, Ards asked me to review his inmate complaints, Dkt. 48, at 3 (Ards's opposition brief, stating, “Review complaints # 22802 [and] 22804.”), but the documents attached to his opposition brief were not his grievances: they were decisions from the reviewing authority rejecting Ards's grievances as untimely. Dkt. 55, at 5. I explained that, because Ards had not actually submitted his grievances, I could not tell what Ards wrote in his grievances and that, even if the grievances mentioned in those documents concerned denial of medical care, his grievances were untimely, as noted by the reviewing authority. Id.

         Ards now argues in his motion for reconsideration that,

The court[] also gave the defendant an opportunity to give an excuse as to why they filed for summary judgment [late], but did not give the plaintiff any opportunity to explain why he filed his I.C.E. late, even though when the plaintiff filed his rejection he explained his reason in that complaint. But for some outlandish reason [defendants' counsel] keep denying me such documents.

Dkt. 60, ¶ 1. But Ards did have an opportunity to explain why he filed his grievance late. Defendants pointed out in their opening brief that Ards had not filed a timely grievance. Dkt. 41, at 8 (“Surely if Ards had a complaint about being denied care, or access to care, he would have made it at that time. Having not timely done so, he is now barred from doing so.”). Ards could have explained in his opposition brief, Dkt. 48, why his untimely grievances should be excused, but he did not.

         I also take Ards to mean that he explained in his grievances (or some other documents) why he filed his grievances late and that defendants' counsel denied Ards access to those documents, resulting in his inability to explain why his untimely grievances should be excused. But if Ards could not respond to defendants' motion for summary judgment because he was missing those documents, he should have said so in his opposition brief. Ards did not indicate that he was missing those documents or that the missing documents contained reasons that excused his untimely grievances. I will not consider new arguments that Ards could have raised in response to defendants' summary judgment motion. See, e.g., Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 512 (7th Cir. 2007). Accordingly, Ards's claim about the missing documents does not warrant reconsideration of the summary judgment decision.

         Ards next contends that he gave a proper notice to prison officials regarding denial of medical care because he submitted numerous “request slips” for health services. Dkt. 60, at 3-4. But Ards was required to follow the grievance procedures established by the prison officials. Pozo v. McCaughtry, 286 F.3d 1022, 1024, 1025 (7th ...

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