United States District Court, W.D. Wisconsin
ALLEN P. GALOWSKI, Plaintiff,
MICHAEL SHAEFER, SETH WISKOW, DENNY WOODWARD, CHENG LAO, GJIN LOR, GER LOR, KIA, DEVIN LITZA, RENE SULLIVAN, JOHN ELLENBECKER, JESSICA HINZ, DAVID LINKE, JEANNE KOHLBECK, and ANGELA M. GERMAN, Defendants.
OPINION & ORDER
D. PETERSON District Judge.
plaintiff Allen P. Galowski is proceeding on claims that
defendants, staff at the Marathon County Jail, failed to
properly treat his various serious medical needs when he was
incarcerated there from December 2013 to March
2014. Galowski alleges that he arrived at the
jail with several injuries to his spine, limbs, and hand. He
requested medical attention throughout his stay at the jail,
but defendants ignored his requests and withheld his pain
medication and hand brace. He also alleges that he requested
to be seen by a specific mental health treatment provider,
Ellen Barcker, throughout his stay at the jail, but he was
not seen by her until March 6.
groups of defendants jointly move for summary judgment based
on Galowski's failure to exhaust his administrative
remedies. Dkt. 43. Defendants bear the burden of establishing
their affirmative defense that Galowski failed to exhaust his
available remedies. Jones v. Bock, 549 U.S. 199, 216
(2007). Defendants 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., 414 F.3d 686, 692 (7th Cir. 2005).
All reasonable inferences from the facts in the summary
judgment record must be drawn in Galowski'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). Although Galowski was
released from the Marathon County Jail in March of 2014,
§ 1997e(a)'s exhaustion requirement still applies to
him because he was a prisoner (at the Jackson Correctional
Institution) at the time he filed this suit. See Kerr v.
Puckett, 138 F.3d 321, 323 (7th Cir. 1998).
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 Marathon County Jail requires inmates to submit
grievances electronically through kiosks located inside
contend that Galowski did not file a grievance concerning
defendants' failure to properly treat his medical needs.
They point to five grievances that Galowski submitted through
the kiosk system in December 2013 and January 2014 as
evidence that the grievance system was available to Galowski
and that he did not use the system to complain about the lack
of medical care. (The five grievances concern matters
unrelated to medical needs, such as canteen purchases and the
jail's water temperature.) They state that Galowski
“did not submit any inmate grievances with Marathon
County Jail between December 2013 and March 2014 relating to
the alleged deficiencies in medical care at issue in this
lawsuit.” Dkt. 44, at 3.
Galowski points to jail records, which he obtained via an
open records request, that show that he submitted many
“resident requests” through the kiosk system
between December 2013 and March 2014, some of which
do relate to the lack of medical care at issue in
this suit. See Dkt. 49-10, at 7-25. For example, on
March 3, 2014, Galowski complained about not receiving
ibuprofen that he had been requesting since December:
I was supposed to get [the ibuprofen] since I came in in
December and still waiting every time I seen nurse they said
they would send me 800 ML ibuprofen tabs since I had 5.5 ML
Vicodin when I came in for my hand and shoulders that I have
torn rotator cuffs in both from long prison time and bootcamp
P.E. messed up. Will there not be a charge since I was told
at [Lincoln County Jail] they said [Marathon County Jail]
told them they been giving and charging me for them and I
still never got any. Plus I seen them at [Lincoln County
Jail] too for this and I was to receive them last Wednesday
there too. But again I got the run around and came back here
with nothing again.
Id. at 21. And the jail records show that Galowski
submitted more than 10 requests asking for mental health
treatment by Ellen Barcker.
there is an argument to be made that these requests do not
satisfy § 1997e(a)'s exhaustion requirement because
they are not labeled “grievance, ” but defendants
have waived that argument by failing to address these
requests at all in their reply, even though Galowski
specifically pointed them out the rebut defendants'
proposed fact. Likewise, they have waived any potential
argument that these requests do not alert defendants
“to the nature of the wrong for which redress is
sought.” Strong v. David, 297 F.3d 646, 650
(7th Cir. 2002). Galowski has disproven the factual basis for
defendants' motion, so I will deny it.
ORDERED that defendants' joint motion for summary
judgment for failure to exhaust administrative remedies, Dkt.
43, is DENIED.