United States District Court, W.D. Wisconsin
OPINION & ORDER
STEPHEN L. CROCKER Magistrate Judge.
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.
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.
of Administrative Remedies (dkt. 141)
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.
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.
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).
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).
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
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
to Compel and for Sanctions (dkts. 160, 178)
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.
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
for Assistance in Recruiting Counsel ...