United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge.
and pro se plaintiff Christopher Jones has been allowed to
proceed on claims that defendants Brian Neumaier, Jeremiah
Millard, Andrew Howell, Jonathan Vetter and Leslie Baird
violated his Eighth Amendment rights by refusing his repeated
requests for medical care and that defendants Baird and
Andrea Nelson committed medical malpractice under state law
in their efforts to treat him. Dkt. #21 at 4-8. Each claim
arises from the same set of events that occurred allegedly
between July 7 and July 11, 2010, when, according to
plaintiff, prison officials placed him in an observation cell
because of concerns that he would harm himself and then had
to rush him to a hospital several days later after he was
found lying unconscious in the cell, having suffered an
apparent seizure. Defendants have filed a motion for summary
judgment on exhaustion grounds, dkt. #26, which I am granting
because I conclude that plaintiff failed to properly exhaust
his administrative remedies before filing this lawsuit.
has also filed a motion for assistance in recruiting counsel,
dkt. #37, which I am denying because I find that plaintiff is
capable of litigating issues relating to exhaustion. His
ability to litigate any other matter is moot.
the parties' proposed findings of fact and the record, I
find that the following facts are not subject to genuine
dispute. Because defendants have moved for summary judgment
solely on exhaustion grounds, I have not included facts about
the merits of plaintiff's claims unless they are relevant
to the issue of exhaustion.
relevant times, plaintiff Christopher Jones was an inmate
housed at the Columbia Correctional Institution. Plaintiff
submitted numerous inmate grievances during his time there;
defendants' records show that prison officials received
23 grievances filed by plaintiff between May 2008 and May
11, 2010, prison staff took plaintiff to the hospital after
they found him lying in a coma in his cell. After his
discharge from the hospital on July 20, plaintiff still had
physical limitations, so he was housed in a segregation unit
and provided an inmate assistant (whose name plaintiff does
not know) to help him with his daily prison life activities.
On August 3, 2010, plaintiff asked the inmate assistant to
“get an inmate complaint form and write a grievance
about prison staff conduct between July 7-11, 2010.”
The inmate assistant responded to plaintiff that prison staff
told him “not to worry about that, right now,
[plaintiff] can handle that complaint stuff after he fully
recovers.” Dfts.' Resp. Plt.'s PFOF
¶¶ 7-16, dkt. #40.
September 7, 2010, plaintiff submitted an inmate grievance
regarding health services staff work practices, raising
privacy and sanitation concerns about nurses' alleged use
of food carts to conduct blood tests or other medical
testing. The reviewing complaint examiner noted that this
issue was already the subject of another earlier complaint
that had been addressed previously, and the grievance was
dismissed. Plaintiff did not appeal that decision.
Id. ¶ 22; dkt. #32-1, at 1-8.
September 27, 2010, plaintiff submitted a grievance regarding
an incident that he alleged had occurred on July 16, 2010. In
that grievance, plaintiff alleged that he had slipped into a
coma while in observation status after mental health services
staff had failed to respond to his requests for help, despite
knowing that plaintiff was a danger to himself. On September
30, 2010, defendant Millard, an inmate complaint examiner,
rejected the grievance because it was submitted too late,
citing Wisconsin Administrative Code § DOC 310.11(5)(d),
which states that a complaint examiner may reject a grievance
if “[t]he inmate submitted the complaint beyond the 14
calendar days from the date of the occurrence giving rise to
the complaint and provides no good cause for the ICE to
extend the time lines.” Defendant Millard noted that it
is the inmate's responsibility to insure that a properly
formatted complaint is received by the complaint
examiner's office within the appropriate time. Plaintiff
was provided a copy of the rejection of his grievance and
informed that “per DOC 310.11(6), you may appeal the
rejection of this complaint within 10 calendar days to the
appropriate reviewing authority. The reviewing authority will
only review the basis for the rejection of this complaint,
not the merits of the complaint. If you wish to appeal,
complete form DOC-2182 Request for Review of Rejected
Complaint.” Plaintiff did not appeal the rejection of
this grievance. Dfts.' Reply to Plt.'s Resp. Dfts.
PFOF ¶¶ 13-18, dkt. #39.
years later, on September 29, 2015, the complaint examiner
received another grievance from plaintiff, alleging that
On Tuesday July 7, 2010, I notified prison security staff
that [I] was going blind. I was taken to the Restrictive
Housing Unit, where I was placed in an observation cell. I
was seen by Andrea Nelson, a psychiatrist. I advised Ms.
Nelson that I was going blind and didn't feel well. Ms.
Nelson told me to “go lay down, ” without
summoning help. Later while confined in the observation cell
in the Restrictive Housing Unit at Columbia Correctional
Institution, I told security staff that I was feeling very
bad. I requested medical attention because I had blurred
vision, dizziness, fatigued, dehydrated, leg cramps, and
numbness. The security staff denied my access to medical care
and then walked away without getting any medical attention.
As a result, six to [sic] hours later, I was found comatosed,
unresponsive in my own emesis, with a blood sugar that was
too high to be recorded on Columbia Correctional Institution
glucometer and had to be hospitalized for several days.
same September 29, 2015 grievance, plaintiff also wrote:
I submit that good cause exists to accept my tardy grievance
as I was told by staff at CCI to let the matter go. For fear
of retaliation, a fragmented memory, a learning disability,
and heavily medicated (Seroquil, Metoprolol, Divalproex,
Fluoxrtine, Lisinopsol, Sirvastatm). After being able to walk
about and not bedridde[n], I made several attempts to access
the records related to my being hospitalized by contacting
the record office, the head psychiatrist at CCI, to no avail.
However, a fellow inmate at CCI suggested that I contact the
hospital that I was treated at. Following his advice, I next
wrote Divine Savor Hospital. Specifically, on August 18,
2015, I requested documents from CCI. In response, on August
19, 2015, K. Dutton-Deputy Custodian advised me that there
are no documents found pertaining to your request for any
institution investigation done pertaining to you for the time
frame of 2010. Subsequently, I wrote directly to Divine Savor
Hospital and obtained relevant medical records detailing
events which transpired in July of 2010, so it wasn't
until last week that I became fully aware that CCI acted with
gross negligence and was deliberate indifferent to my serious
medical needs, constituting good cause to excuse my tardy
examiner Isaac Hart rejected this grievance as too late,
finding no good cause to extend the time limit for filing.
Id. ¶ 19-22. On November 10, 2015, plaintiff
appealed this rejection to the reviewing authority, which
found two days later that ...