United States District Court, W.D. Wisconsin
CHRISTOPHER A. ANDERSON, Plaintiff,
DR. BUTLER, Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY District Judge
pro se civil rights lawsuit, plaintiff Christopher
A. Anderson is proceeding on claims that a doctor and several
nurses at the Rock County Jail violated his constitutional
and common law rights by refusing to fill prescriptions
necessary to treat his mental health conditions. Defendants
have moved for summary judgment on the ground that all of
Anderson's claims must be dismissed for failure to
exhaust jail administrative remedies before filing suit.
(Dkt. #33.) Because the parties' submissions reflect
genuine factual disputes material to defendants'
exhaustion defense, the court will deny that motion at this
time. Instead, the court will give defendants an opportunity
to clarify whether they wish to pursue their exhaustion
defense at a hearing under Pavey v. Conley, 528 F.3d
494, 496-98 (7th Cir. 2008).
Exhaustion of Administrative Remedies
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.” Generally, to comply with § 1997e(a),
a prisoner must “properly take each step within the
administrative process.” Pozo v. McCaughtry,
286 F.3d 1022, 1025 (7th Cir. 2002). This includes following
instructions for filing the initial grievance, Cannon v.
Washington, 418 F.3d 714, 718 (7th Cir. 2005), as well
as filing all necessary appeals, Burrell v. Powers,
431 F.3d 282, 284-85 (7th Cir. 2005), “in the place,
and at the time, the [jail's] administrative rules
require.” Pozo, 286 F.3d at 1025.
purpose of these requirements is to give the jail
administrators a fair opportunity to resolve the grievance
without litigation. Woodford v. Ngo, 548 U.S. 81,
88-89 (2006). If a prisoner fails to exhaust his
administrative remedies before filing his lawsuit, then the
court must dismiss the case. Perez v. Wisconsin Dept. of
Corr., 182 F.3d 532, 535 (7th Cir. 1999). Because
exhaustion is an affirmative defense, defendants
bear the burden of establishing that plaintiff failed to
exhaust his administrative remedies. Jones v. Bock,
549 U.S. 199, 216 (2007).
exhaust administrative remedies at the Rock County Jail,
prisoners must follow the inmate complaint review process set
forth in the jail rule book. The Rock County Jail Inmate
Grievance Procedure requires inmates to submit a written
grievance within 15 days of an alleged violation of their
rights by jail staff. (Dkt. #40-1.) If a grievance concerns
medical care, it is forwarded to the on-duty, jail nurse for
review. (Dkt. #40-2.) The nurse may attempt to resolve the
issue, or may refer the grievance to the responsible
physician or other authority. If the nurse determines that
the grievance is not valid or is minor in nature, the inmate
has 5 days to request review by the responsible physician.
The responsible physician's decision is final.
are informed that Rock County Jail has grievance procedures.
Inmates may review the grievance procedures through the
jail's “kiosk system, ” which is available in
every housing unit. The kiosk system and grievance procedures
were available for review during the time in which Anderson
was held at the jail.
is proceeding on claims that defendants failed to refill his
prescriptions for Seroquel and Prazosin when he was being
held at the Rock County Jail between January 11, 2013, and
February 5, 2013. He alleges that as a result of not having
his medications, he suffered a “massive panic
attack” with visual hallucinations and suicidal
concedes that, prior to filing suit, he did not file any
grievances regarding defendants' refusal to refill
prescription medications or any other medical treatment he
received at the Rock County Jail. He argues, however, that
the reason he did not submit any grievances regarding his
medications is because he “was told by multiple members
of the jail staff . . . that medical issues could NOT be
griev[ed].” (Pl.'s Br., dkt. #42 at
further alleges that, given the passage of time, he does not
remember which jail staff told him that he could not file
grievances about medical care issues.
are required to comply only with those grievance procedures
that are “available.” 42 U.S.C. § 1997e(a).
“An administrative remedy is not ‘available,
' and therefore need not be exhausted, if prison
officials erroneously inform an inmate that the remedy does
not exist or inaccurately describe the steps he needs to take
to pursue it.” Pavey v. Conley, 663 F.3d 899,
906 (7th Cir. 2011). See also Ross v. Blake, 136
S.Ct. 1850, 1860 (2016) (grievance process
“unavailable” if “prison administrators
thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or
intimidation”) (emphasis added). Thus, if jail staff
actually told Anderson that he could not use the grievance
procedures to file a medical care claim, the procedures were
not “available” to him, and he did not need to
exhaust his administrative remedies.
defendants point to several reasons why they believe that
Anderson's allegations regarding instructions from jail
staff are not credible, including that: (1) Anderson cannot
identify any particular person who gave him the
misinformation; (2) the grievance procedures were
well-established and easily accessible; and (3) Anderson knew
how to access the grievance procedures, as evidenced by his
submission of grievances about other issues. However, the
court cannot resolve this dispute on a motion for summary
judgment. Rather, under Pavey v. Conley, 528 F.3d
494, 496-98 (7th Cir. 2008), the court would need to hold a
hearing to resolve factual disputes relevant to exhaustion.
If, after such hearing, the court determined that Anderson
exhausted his administrative remedies, the case would proceed
on the merits. If, however, the court found that he did not
exhaust, the case would be dismissed without prejudice.
See Fluker v. County of ...