United States District Court, W.D. Wisconsin
OPINION & ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE.
se plaintiff Johnson Carter claims that defendant Carla
Griggs violated his rights under the Eighth and First
Amendments by failing to treat a collarbone injury while he
was incarcerated at Jackson Correctional Institution
(“JCI”) in retaliation for writing to a senator
about his dissatisfaction with the medical care
there. Currently before the court are
plaintiff's constructive motion to amend (dkt. #22),
defendants' motion for partial summary judgment, seeking
dismissal of his First Amendment claim on exhaustion grounds
(dkt. #27), and plaintiff's motion to deny
defendants' motion for summary judgment (dkt. #34). For
the following reasons, plaintiff will be permitted to proceed
on his amended complaint in part, and defendant's motion
for partial summary judgment will be granted.
Proposed Amended Complaint (dkt. #22)
has already filed one amended complaint in this lawsuit, and
must seek leave of court to amend his complaint for a second
time. See Fed. R. Civ. P. 15(a) (providing that a
party may amend its pleading once as a matter of course
within 21 days of service or 21 days of a responsive pleading
or Rule 12 motion). Although Carter has not explained why he
failed to include these additional defendants and allegations
in either in his original or amended complaint, the court
will grant his effective motion to amend and screen it
pursuant to 28 U.S.C. § 1915A to determine whether any
portion is frivolous or malicious, fails to state a claim on
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief.
proposed amended complaint includes additional, alleged facts
as to Griggs' personal involvement in his medical
requests for a shoulder injury in May of 2013. In particular,
Carter attaches documents related to his requests for care
and Griggs' responses to them, alleging that although he
complained of pain, Griggs provided no pain medication, only
gave him Tylenol or ibuprofen, or told him he had to wait to
see a doctor. Carter also seeks leave to proceed against
Griggs on a theory of medical malpractice, which the court
will permit because his allegations that Griggs ignored his
complaints of pain and failed to provide him with proper
medical care are sufficient to permit an inference of
negligence under Wisconsin law. Paul v. Skemp, 2001
WI 42, ¶ 17, 242 Wis.2d 507, 520, 625 N.W.2d 860, 865.
Accordingly, Carter may proceed against Griggs on his Eighth
Amendment and related state law malpractice claims as alleged
in his most recently amended complaint.
Carter may not proceed against any additional defendants.
While Carter now seeks to add Mobilex USA, Dr. Reono
Bertagnolli, Debra Tidquist “and their insurance
co.” as defendants (dkt. #22, at 3), he does not
include any specific allegations about these defendants.
Instead, Carter attaches a December 4, 2013, one-page
radiology report, which appears to contain each of their
names. (See dkt. #22-1.) In the report, signed
electronically by Dr. Bertagnolli, there is a note that the
“[a]cromioclavicular joint has degenerative changes,
” but that he did not see a shoulder fracture. (Dkt.
#22-1.) Tidquist is listed as the physician on that record,
but she did not include any notes, and Carter has not alleged
that Tidquist is otherwise involved in his treatment in any
fashion. Similarly, Mobilex USA is the company listed on the
radiology report. Finally, without any detail or
justification, Carter wishes to add Bertagnolli's and
Tidquist's insurer's as defendants.
has not alleged sufficient facts to permit an inference of
deliberate indifference or negligence as to any of these new
defendants. While he appears to include them because they
were somehow involved in his care, Carter does not include
any allegations of improper medical care by any of these new
defendants. Even the February 1, 2016, x-ray report from Good
Samaritan Health Care includes no more than an impression by
another doctor of “what is likely a remote right
acromioclavicular separation.” (Dkt. #22-2, at 1.) That
note does not, however, support any reasonable inference that
Dr. Bertagnolli was actually deliberately indifferent.
Rather, Bertagnolli's notes described degenerative
changes in the joint, which indicates that his diagnosis was
consistent with the 2016 x-ray impression. As such, even at
the screening stage, Carter has not alleged facts that would
permit an inference of deliberate indifference as to Dr.
Bertagnolli or any of the other proposed, additional
defendants. See Norfleet v. Webster, 439 F.3d 392,
396 (7th Cir. 2006) (a inference of deliberate indifference
arises when a “decision [is] so far afield of accepted
professional standards as to raise the inference that it was
not actually based on a medical judgment”).
Motion for Partial Summary Judgment
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 his 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, however,
defendants bear the burden of establishing that
Carter failed to exhaust his administrative remedies.
Jones v. Bock, 549 U.S. 199, 216 (2007).
exhaust state administrative remedies in Wisconsin, inmates
must follow the inmate complaint review process set forth in
the Wisconsin Administrative Code ch. DOC 310. Under these
provisions, prisoners start the complaint process by filing
an inmate complaint with the institution complaint examiner
within 14 days after the occurrence giving rise to the
complaint. Wis. Admin. Code § DOC 310.09(6). The
complaint must “[c]ontain only one issue per complaint,
and shall clearly identify the issue.” Id.
institution complaint examiner rejects a grievance for
procedural reasons without addressing the merits, an inmate
may appeal the rejection. Id. § 310.11(6). If
the complaint is not rejected, the institution examiner makes
a recommendation on the complaint to the reviewing authority.
Id. § 310.11(6). The offender complaint is then
decided by the appropriate reviewing authority whose decision
can be appealed by the inmate to the correctional complaint
examiner (corrections examiner). Id. §§
310.12, 310.13. The corrections examiner then makes a
recommendation to the Secretary of the Department of
Corrections, who takes final action. Id.
§§ 310.13, 310.14.
Dougherty, the JCI inmate complaint examiner, has reviewed
the ICRS database for all of the complaints Carter filed.
Dougherty located a complaint Carter filed on November 7,
2013, JCI-2013-21586, in which Carter claimed that he did not
receive adequate medical treatment after he injured his
collarbone in May of 2013. Specifically, Carter complained
that: the nurses told him he did not break his shoulder when
he went to the Health Services Unit (“HSU”); they
did not give him a work restriction for his shoulder pain;
and as of November 7, he still had not seen a doctor for his
pain. (Dkt. #29-3, at 10.) Carter did not, however, include
any allegations suggesting anyone in the HSU (much less Nurse
Griggs) denied him ...