United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
plaintiff Juan Nieto, a state prisoner incarcerated at the
Columbia Correctional Institution (CCI), is proceeding
against defendants, all CCI prison officials, on deliberate
indifference and medical malpractice claims. Nieto contends
that defendants delayed diagnosing and treating his broken
toe and bone spurs for almost two years, despite knowing that
he was in great pain. Defendants have moved for partial
summary judgment, contending that Nieto's claims
regarding events before June 2015 must be dismissed because
Nieto did not file a prison grievance regarding the lack of
medical care until July 5, 2015. Dkt. 17. Because Nieto's
July 2015 grievance complained of an ongoing lack of medical
care, I will deny defendants' motion for partial summary
alleges that on November 12, 2013, he alerted the CCI Health
Services Unit (HSU) that his foot was so injured that he had
difficulty walking. Defendant Nurse Kim Campbell told Nieto
to rest and determined that referral to a doctor was
unnecessary. Nieto continued to complain of a painful and
serious foot injury. Defendant Meredith Mashak, the HSU
manager, directed him to submit a health services request for
an appointment. Later, Mashak told Nieto that he was
scheduled for a follow-up appointment. Despite Nieto's
continued complaints of pain and requests for treatment, he
was offered only acetaminophen and was not seen by a doctor
until January 14, 2015, over a year later. That doctor,
defendant Karl Hoffman, ordered and reviewed x-rays of
Nieto's foot, which revealed that Nieto's toe was
fractured, but did nothing more.
parties agree that Nieto filed his first grievance about the
lack of treatment on July 8, 2015. The grievance complains of
“the lack of proper treatment that has been given to
[Nieto] since [he] first requested help.” Dkt. 19-2, at
11. Nieto explained in the grievance that he “most
recently” complained to defendant Meredith Mashak, the
HSU manager, about the lack of treatment for his foot.
Id. Nieto attached a copy of a letter dated June 25,
2015, that he sent to Mashak. In the letter, he explained
that he “first complained of the symptoms [he] was
experiencing way back in November 2013” and that he had
“not yet received appropriate treatment.”
Id. at 12. The grievance requests examination, pain
medication, and treatment for the underlying injury.
Nieto's grievance was dismissed, as was his appeal.
alleges that he continued to seek treatment for his foot.
More x-rays were taken in August and September 2015. On
September 11, defendant Salamullah Syed, MD, diagnosed Nieto
with a fractured toe and bone spurs, which developed because
of the delay in treating the fracture. Nieto filed this suit
on March 10, 2016.
the Prison Litigation Reform Act, “[n]o action shall be
brought with respect to prison conditions under section 1983
. . . by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as
are available are exhausted.” 42 U.S.C. §
1997e(a). To satisfy the exhaustion requirement, 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 State of Wisconsin requires prisoners to file a grievance
within 14 calendar days after the occurrence giving rise to
the complaint. Wis. Admin. Code § DOC 310.09(6). The
exhaustion requirement is mandatory, Woodford v.
Ngo, 548 U.S. 81, 85 (2006), and failure to exhaust
requires dismissal of a prisoner's case. Perez v.
Wisconsin 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 Nieto failed
to exhaust his available remedies. Jones v. Bock,
549 U.S. 199, 216 (2007). At the summary judgment stage, they
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).
facts material to the exhaustion requirement are not
disputed. Once Nieto realized that he would not get the
medical assistance he was requesting, Nieto filed a grievance
and appealed it. He properly exhausted his available
remedies. See Edwards v. Schrubbe, 807 F.Supp.2d
809, 812-13 (E.D. Wis. 2011).
contend that because Nieto did not file his grievance until
July 5, 2015, all claims concerning events occurring more
than 14 days before July 5 were not properly exhausted. Under
defendants' theory, Nieto would have had to have filed a
grievance way back in November 2013, within 14 days of the
initial denial of care. But at that point, how was Nieto to
know that a doctor visit would be delayed for so long and
that even after being seen by a doctor, it would be months
before he was properly diagnosed and treated? If Nieto's
grievance complained of a discrete event, he would have had
to file it within 14 days of that event. See Compton v.
Cox, 12-cv-837, 2017 WL 933152, at *3 (Mar. 8, 2017).
But instead, the grievance complained “about an ongoing
lack of care from prison officials.” Id. In
such an instance, proper exhaustion occurs when a plaintiff
files an “appropriate grievance through the proper
channels once he has realized that he would not be able to
resolve his grievance with the medical staff informally,
” even if it's more than 14 days after the earliest
instance of the denial of medical treatment.
Edwards, 807 F.Supp.2d at 812. That's exactly
what Nieto did.
cite Turley v. Rednour, 729 F.3d 645, 650 (7th Cir.
2013), for the proposition that “the law does not allow
a recently filed grievance to ‘retroactively
exhaust' earlier claims.” Dkt. 18, at 10. But Nieto
is not using a late-filed grievance to resurrect a stale
claim that he failed to press promptly. Turley held
that “prisoners need not file multiple, successive
grievances raising the same issue (such as prison conditions
or policies) if the objectionable condition is
continuing.” 729 F.3d at 650. Turley did not
mention retroactive exhaustion, and in fact, the
Turley court explained that grievances filed more
than a year after the condition at issue began “would
satisfy exhaustion, ” id. at 650 n.3, even
though the administrative rules applicable in that case
required grievances to be filed “within 60 days after
the discovery of the incident, occurrence or problem.”
20 Ill. Admin. Code 504.810(a). If anything, Turley
suggests that Nieto properly exhausted his administrative
remedies for all of his claims because he filed a grievance
when it became apparent to him that he was facing an ongoing
problem. He did not deprive CCI of the opportunity to address
the delay in medical care.
defendants have not shown that Nieto failed to exhaust his
administrative remedies concerning any of his claims, I will
deny their motion for partial summary judgment.
ORDERED that defendants' motion for partial summary