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Jones v. Nelson

United States District Court, W.D. Wisconsin

July 24, 2017



          BARBARA B. CRABB District Judge.

         Prisoner 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.

         Plaintiff 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.

         From 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.


         At all 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 2016.

         On July 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.

         On 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.

         On 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.

         Five 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.

         In the 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 filing.

         Complaint examiner Isaac Hart rejected this grievance as too late, finding no good cause to extend the time limit for filing. Id. ΒΆ 19-22. On November 10, 2015, plaintiff appealed this rejection to the reviewing authority, which found two days later that ...

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