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Doe v. County of Milwaukee

United States District Court, E.D. Wisconsin

May 5, 2017

JANE DOE, Plaintiff,
v.
COUNTY OF MILWAUKEE, DAVID A. CLARKE, JR., XAVIER D. THICKLEN, and JOHN/JANE DOE, Defendants.

          ORDER

          J.P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         On December 1, 2016, the Court denied summary judgment to Defendants County of Milwaukee (the “County”) and David A. Clarke, Jr. (“Clarke”) (collectively, “Defendants”) on Plaintiff Jane Doe's (“Doe”) sexual assault claim. (Docket #157). In addition to that claim, Doe also pursues a claim that Defendants instituted an unconstitutional policy for Milwaukee County Jail (“Jail”) inmates, namely that female inmates would be shackled during childbirth. (Docket #104 at 16). This was originally presented as a class claim, id. at 10-14, but on March 20, 2017, Doe notified the Court that she would not seek class certification, (Docket #172). That same day, Defendants filed their second motion for summary judgment, this time addressing Doe's individual shackling claim. (Docket #173). Defendants argue that this claim must be dismissed because Doe did not exhaust her administrative remedies as required by the Prison Litigation Reform Act (“PLRA”). That motion is fully briefed, (Docket #174, #183, and #185), and for the reasons stated below, it will be denied.

         2. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 56 provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016).

         3. RELEVANT FACTS

         The following facts are gleaned from the parties' collective factual briefing. They have been construed, as required by the standard of review, in a light most favorable to Doe. In February 2013, Doe began her incarceration in the Jail. She was in the early stages of pregnancy upon her arrival. Doe was shackled for all hospital visits while in the Jail's custody. This included ten pre-natal care appointments between April and October 2013, and one post-partum visit on October 25, 2013.

         On October 4, 2013, she gave birth while still in Jail custody. As before, while at the hospital, Doe was shackled. The shackling remained constant throughout Doe's labor, deliver, and recovery. Doe's attending midwife asked the Jail guards, who were in or near the delivery room, to remove the shackles, but they refused. The guards said that the shackling was “proper protocol” and the midwife understood that there was no way to have the shackles removed. Nevertheless, the guards agreed to shift the shackles from one wrist or ankle to another upon request. The leg restraint was also removed for about ten minutes during Doe's actual delivery at the request of medical personnel.

         Prior to her hospitalization for the birth, Jail guard Xavier D. Thicklen (“Thicklen”) had sexually assaulted Doe three times. When she returned to the Jail on October 6, 2013, Doe was housed in the infirmary for a time. Thicklen assaulted her twice while she was in the infirmary. The first was a few days after the birth, and the second occurred in November 2013. On December 4, 2013, Doe was transferred out of the Jail.

         During Doe's labor and delivery, the Jail's shackling policy provided that inmates in the hospital should be cuffed to their bed at the hand and leg. The policy left no discretion for guards to decide whether this amount of shackling was necessary in any particular instance. If guards received complaints about such shackling, they were not required to document them. The parties dispute the effect that shackling had, or potentially could have had, on Doe's childbirth. This is immaterial to the present motion, which deals only with the grievance process, and does not address Doe's substantive complaints about the shackling policy.

         The Jail's grievance policy permits inmates to file grievances for health issues. It states that a grievance should only be filed after “you have addressed the problem with the dorm officer and are not satisfied with the result.” (Docket #178-1 at 2). The policy further provides that grievances should be completed on a standard form and deposited “in the designated locked box located at the workstation, ” which is presumably somewhere inside the Jail. Id. at 3. The Jail's grievance policy places no time limits on the filing of grievances. It is also silent on how an inmate should proceed with a grievance if they were transferred to a different facility before a grievance form could be filed.

         Doe filed a total of fifteen grievances while at the Jail, mostly for mundane issues such as disrespectful guards or bugs in her cell. Doe did not file a grievance regarding being shackled during any of her hospital visits. The only grievance Doe filed after the birth concerned Thicklen's assaults. She submitted the grievance on December 3, 2013, the day before she was transferred.

         4. ANALYSIS

         Defendants move for summary judgment on the ground that Doe failed to exhaust her administrative remedies before filing the instant lawsuit. The PLRA establishes that, prior to filing a lawsuit complaining about prison conditions, a prisoner must exhaust “such administrative remedies as are available[.]” 42 U.S.C. § 1997e(a). To do so, the prisoner must “file complaints and appeals in the place, and at the time, the prison's administrative rules require, ” and she must do so precisely in accordance with those rules; substantial compliance does not satisfy the PLRA. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002); Smith v. Zachary, 255 F.3d 446, 452 (7th Cir. 2001).[1] The exhaustion requirement is not waived merely because the prisoner believes the grievance process will be futile, or if the process does not offer the remedy she seeks, such as money damages. Booth v. Churner, 532 U.S. 731, 740-41 and n.6 (2001). The two primary purposes of this exhaustion requirement are limiting frivolous lawsuits and permitting correctional facilities to ...


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