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Mitchell v. Dane County Sheriff Department

United States District Court, W.D. Wisconsin

August 24, 2017

ROY MITCHELL, Plaintiff,
v.
DANE COUNTY SHERIFF DEPARTMENT, Defendants.

          OPINION & ORDER

          STEPHEN L. CROCKER Magistrate Judge.

         Plaintiff Roy Mitchell is proceeding in this action under 42 U.S.C. § 1983 on Fourteenth Amendment claims that various Dane County officials, subjected her to conditions of confinement so dangerous that they violated her due process rights. In particular, Mitchell claims that she was housed in a section of the Dane County Jail that exposed her various hazards, including sewer flies, asbestos, lead, and black mold.

         There are several pending motions that I am addressing in this order: defendants' motion for partial summary judgment on exhaustion grounds (dkt. 141); Mitchell's two motions to compel (dkts. 160, 178); Mitchell's two motions for assistance in recruiting counsel (dkts. 148, 216); and Mitchell's motion to postpone her August 29 deposition until the court recruits counsel for her (dkt. 223). For the following reasons, I am denying Mitchell's motions and directing defendants to inform the court whether they wish to withdraw their motion.

         Exhaustion of Administrative Remedies (dkt. 141)

         Defendants filed a motion for partial summary judgment, seeking dismissal of Mitchell's claims related to asbestos, lead paint and black mold on the ground that she did not properly exhaust those claims. They concede that Mitchell exhausted her claim about sewer flies.

         While I will not resolve this motion, I am ordering the defendants to notify the court whether they wish to pursue it in light of the fact that Mitchell is no longer confined in jail. Under 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.

         The 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 a 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).

         Based on Mitchell's current address, it appears that she is no longer in custody at the Dane County Jail or anywhere else, so the requirements of the PLRA would not apply to her if she chose to immediately refile a new lawsuit pursuing her asbestos, lead paint, and black mold claims. See Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (PLRA did not apply to former prisoner filing suit after his release); Witzke v. Femal, 376 F.3d 744, 750 (7th Cir. 2004) (“[T]he status of the plaintiff at the time he brings his suit” determines whether the plaintiff is a prisoner subject to the PLRA's exhaustion requirements). Thus, even if the presiding judge dismisses Mitchell's claims related to asbestos, lead paint, and black mold for failure to exhaust, Mitchell would be able to refile those claims without the need to exhaust her administrative remedies. See Miniz v. Pazera, 2007 WL 4233455, *4 (N.D. Ind. 2007) (“Even if a prisoner has a case dismissed for failure to exhaust available administrative remedies, they can refile the exact same complaint once they are released from prison without having to satisfy the exhaustion requirement.”) Further, because the events at issue occurred in 2015 and 2016, Mitchell's claims would not be barred by the applicable statute of limitations. See Reget v. City of La Crosse, 595 F.3d 691, 694 (7th Cir. 2010) (in Wisconsin, statute of limitations for constitutional claims is usually six years).

         The parties have been engaging in substantive discovery related to all of Mitchell's claims in this lawsuit for several months, and dispositive motions are due at the beginning of September. Given Mitchell's active involvement in this lawsuit, as well as her demonstrated interest in pursuing claims in this court generally, it is logical to predict that in response to dismissal of these claims, Mitchell promptly would file a new lawsuit to pursue them, resulting in the parties having to litigate two lawsuits on different timelines. This outcome appears to be an unintended consequence of defendants' motion that probably would result in more work for defendants and their attorneys rather than less.

         That said, because Mitchell was incarcerated at the time she filed suit, she is subject to the PLRA and defendants are entitled to assert an exhaustion defense. They should promptly notify the court whether they wish to pursue their exhaustion defense. If they do not withdraw their partial exhaustion motion, the presiding judge will promptly resolve it.

         Motions to Compel and for Sanctions (dkts. 160, 178)

         In Mitchell's motions to compel, she seeks an order requiring defendants to produce (1) the inmate grievances she and “fellow inmate faculty body” filed at the Dane County Jail and (2) her medical records. As to her medical records, defendants respond that they produced Mitchell's medical records to her after she submitted her consent to the third-party in possession of her records. Mitchell has not indicated that she is dissatisfied with this response, or that it is untrue.

         As to the request related to her grievances, defendants responded that they have produced all of Mitchell's grievances filed at the Dane County Jail for the past five years. They further respond that they did not produce grievances filed by “fellow inmate faculty body” because that request was unduly vague and did not involve any parties to this lawsuit. Because Mitchell does not adequately explain why grievances filed by other inmates are relevant to her claims, I agree with defendants. Accordingly, both of these motions are denied.

         Motions for Assistance in Recruiting Counsel ...


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