United States District Court, W.D. Wisconsin
DAVID D. AUSTIN, II, Plaintiff,
G4S SECURE SOLUTIONS USA, SHANE L. PETERSON, SHANTEL L. BELOT, JOHN DOES, JANE DOES, MILWAUKEE COUNTY, DAVID A. CLARKE, JR., GARY HAMBLIN, JEFFREY PUGH, M. SAMBORSKI, and JON LITSCHER, Defendants.
OPINION & ORDER
D. PETERSON District Judge.
David D. Austin, II, a former prisoner in the custody of the
Wisconsin Department of Corrections (DOC), is proceeding on
Eighth Amendment and negligence claims against defendants
concerning a motor vehicle accident that occurred while
Austin was being transported to the Milwaukee County Jail.
sets of defendants in this case (DOC officials and private
entities that contract with the state to provide
transportation services) have filed motions for summary
judgment based on Austin's failure to exhaust his
administrative remedies. Dkt. 36 and Dkt. 39. Because
defendants have not established that administrative remedies
were available to Austin, I will deny their motions.
the following facts from defendants' submissions in
support of their motions and the court's June 1, 2016
screening order, Dkt. 13.
G4S Secure Solutions USA contracts with defendant Milwaukee
County to transport inmates. Austin alleges that on May 10,
2012, defendants Shane L. Peterson and Shantel L. Belot, two
G4S employees, picked Austin up from the Stanley Correctional
Institution (SCI) to transport him and five other inmates to
the Milwaukee County Jail. Austin and the other inmates sat,
handcuffed and shackled, on metal benches in a metal cage in
the back of a cargo van. Another car rear-ended the transport
van on the highway, and Austin was knocked unconscious.
Defendant State Highway Patrol Trooper M. Samborski responded
to the scene. Peterson, Belot, and Samborski assessed the
accident, called their supervisors (defendants John and Jane
Does), and then continued to drive to the Milwaukee County
Jail, despite some of the inmates' requests to go to a
hospital. Austin's injuries were exacerbated from
jostling around in the damaged van. It was not until almost
five hours after the accident occurred that Austin received
any medical attention.
Milwaukee County Sheriff David A. Clarke, Jr., former DOC
Secretary Gary Hamblin, and SCI Warden Jeffrey Pugh were not
personally involved in the May 10 accident. But Austin
alleges that they knew that the vans used to transport
inmates were unsafe and turned a blind eye to the risk that
the vans presented.
was transported back to SCI on May 22, 2012. He did not file
a grievance with the DOC concerning the May 10 accident.
granted Austin leave to proceed on Eighth Amendment
deliberate indifference claims against defendants G4S,
Peterson, Belot, Clarke, Hamblin, Pugh, and John and Jane
Does in their individual capacities. I also allowed Austin to
proceed against defendants Pugh, Clarke, Milwaukee County,
and current DOC Secretary Jon Litscher in their official
capacities for purposes of his injunctive relief claim. And I
allowed Austin to proceed on state law negligence claims
against defendants G4S, Peterson, Belot, Samborski, Clarke,
Hamblin, Pugh, Milwaukee County, and John and Jane Does.
succeed on a motion for summary judgment, defendants, as the
moving parties, must show that there is no genuine dispute of
material fact and that they are entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “A genuine
issue of material fact arises only if sufficient evidence
favoring the nonmoving party exists to permit a jury to
return a verdict for that party.” Brummett v.
Sinclair Broad. Grp., Inc., 414 F.3d 686, 692 (7th Cir.
2005). All reasonable inferences from the facts in the
summary judgment record must be drawn in Austin's favor,
as the nonmoving party. Baron v. City of Highland
Park, 195 F.3d 333, 338 (7th Cir. 1999).
42 U.S.C. § 1997e(a), “[n]o action shall be
brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted.” The exhaustion requirement is mandatory,
Woodford v. Ngo, 548 U.S. 81, 85 (2006), and
“applies to all inmate suits.” Porter v.
Nussle, 534 U.S. 516, 532 (2002). Generally, to comply
with § 1997e(a), 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 grievance itself need not
provide “a detailed factual narrative, articulate legal
theories, or demand particular relief to exhaust [the
prisoner's] administrative remedies, [but] must merely
‘object intelligibly to some asserted
shortcoming.'” Stewart v. Cox, No.
14-cv-665, 2015 WL 9296457, at *3 (W.D. Wis. Dec. 18, 2015)
(quoting Strong v. David, 297 F.3d 646, 650 (7th
Wisconsin, the administrative code sets out the process for a
prisoner to file a grievance and appeal an adverse decision.
Wis. Admin. Code §§ DOC 310.07 and 310.09. Section
310.09(6) requires inmate to file grievances “within 14
calendar days after the occurrence giving rise to the
complaint, except that the institution complaint examiner may
accept a late complaint for good cause.” Failure to
follow these rules may require dismissal of the
prisoner's claims. Perez v. Wis. Dep't of
Corr., 182 F.3d 532, 535 (7th Cir. 1999). Because
exhaustion is an affirmative defense, defendants bear the
burden of establishing that a plaintiff failed to exhaust his
available remedies. Jones v. Bock, 549 U.S. 199, 216
contend that because Austin did not file any grievance
concerning the May 10 accident, his federal claims must be
dismissed for failure to exhaust administrative remedies as
required by § 1997e(a). Austin argues that his failure
to file a grievance should be excused because no
administrative remedies were available to him, citing
White v. Bukowski, 800 F.3d 392 (7th Cir. 2015). In
White, the plaintiff alleged that jail officials
were deliberately indifferent to her need for prenatal care
and prompt transport to a hospital to deliver her baby, who
was born with serious birth defects due to lack of oxygen.
The jail's grievance procedure did not establish a
deadline for filing a grievance, but the plaintiff was
transferred without warning to another jail four days after
she returned from the hospital, and it was impossible for her
to file a grievance after the transfer. The Seventh Circuit
held that the four-day deadline to file a grievance ...