United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING SUMMARY JUDGMENT
William C. Griesbach, Chief Judge United States District
Travis Johnson, proceeding pro se, filed this action
under 42 U.S.C. § 1983 alleging that his civil rights
were violated. He claims that Tina Watts, Dr. Gina Buono,
Chester Dmytriy, and Patti Woodard violated his
constitutional rights by their deliberate indifference to his
serious medical needs. Currently before the court is
defendants' motion for summary judgment. Johnson did not
file a response to defendants' motion for summary
judgment within thirty days as required by Civil Local Rule
56(b)(2) and has not requested additional time to file a
response. This alone is grounds to grant the motion. Civil
L.R. 7(d) (“Failure to file a memorandum in opposition
to a motion is sufficient cause for the Court to grant the
motion.”). For this reason, and also because on the
undisputed facts before me, it is clear they are entitled to
judgment as a matter of law, the defendants' motion for
summary judgment will be granted.
was housed at the Milwaukee Secure Detention Facility
(“MSDF”) at all time relevant to this case.
Defs.' Proposed Findings of Fact (DPFOF) ¶ 1, ECF
No. 15.On February 6, 2016, before he was
incarcerated, Johnson visited a Menomonee Falls emergency
room, where he was diagnosed with a dislocated left thumb but
his x-ray revealed no fractures. DPFOF ¶ 13; see
also ECF No. 16-1 at 92-93. He was given a splint for
his thumb and advised to follow up with hand surgery.
12, 2016, a nurse performed an intake examination on Johnson
as he transferred into MSDF. Id. ¶ 8. He did
not disclose or complain of his left thumb injury and was not
wearing a splint. Id. ¶ 9; see also
ECF No. 16-1 at 17-19. On June 1, 2016, Doctor Gina Buono
performed a physical on Johnson, at which time Johnson
claimed he had a fractured thumb but that it was not
currently painful. Id. ¶ 10; see also
ECF No. 16-1 at 20-21. Dr. Buono ordered x-rays, which were
negative, and reviewed Johnson's emergency room records..
Id. ¶¶ 10-12; see also ECF No.
16-1 at 26. Dr. Buono determined that no immediate referral
was needed because Johnson's thumb was stable and not
painful. Id. ¶ 14; see also ECF No.
16-1 at 38.
September 28, 2016, Johnson filed a health service request
(“HSR”) and complained of chronic pain in his
left thumb. Id. ¶ 16; see also ECF No.
16-1 at 132. On September 29, 2016, Johnson was triaged by a
nurse and on October 6, 2016, Dr. Buono saw him to address
his HSR. Id. ¶¶ 18-19; see also
ECF No. 16-1 at 34-35. Dr. Buono consulted with an
orthopedist and then submitted a request for authorization
form for Johnson for an offsite medical consultation about
his left thumb. Id. ¶¶ 20-21. This was Dr.
Buono's last visit with Johnson pertaining to his
complaints about his thumb. Id. ¶ 21.
October 18, 2016, Johnson submitted a medication refill
request for Ibuprofen 200 mg. Id. ¶ 32; see
also ECF No. 16-1 at 129. On October 20, 2016,
Johnson's request was denied and returned to him.
Id. ¶ 20; see also ECF No. 16-1 at
53-54. Nurse Clinicians within the health services unit do
not have the authority to prescribe medication to patients.
Id. ¶ 33. They are permitted to dispense
one-time orders of over-the-counter medication, like
ibuprofen, but are not allowed refills on such medication.
Id. Instead, the expectation is that inmates will
purchase the over-the-counter medication from the
institution's canteen once the short-term dose has been
used. Id. ¶ 34. Johnsons' medication refill
denial was signed by Patty Potts. Id. ¶ 35.
October 24, 2016, Johnson filed an inmate complaint, alleging
that his hand was injured in a way that was unclear to the
medical staff and that it was causing him continuous
significant pain. Id. ¶ 38; see ECF
Nos. 17-1 (copy of Johnson's entire inmate complaint
history) and 17-2 (copy of Johnson's specific inmate
complaint package). On December 19, 2016, Johnson's
inmate complaint was rejected because it was untimely. ECF
No. 17-2 at 4. An inmate must file an complaint within
fourteen days of the incident. The institution complaint
examiner noted that Johnson first complained about pain on
June 1, 2016, but did not submit the complaint until October
24, 2016. Id. On December 23, 2016, Johnson filed a
request for review of the rejected complaint. Id. at
6. Johnson stated that he had documentation requiring him to
wear a splint and have hand surgery and that he still had not
received hand surgery. Id.
January 18, 2017, the reviewing authority reviewed
Johnson's request and found that Johnson's complaint
had been inappropriately rejected by the inmate complaint
examiner and was returned to further investigation.
Id. at 8. On January 20, 2017, upon reconsideration,
the Inmate Complaint Examiner found that Johnson did not
complain about pain from June 6, 2016, through August 1,
2016. Id. at 9. The examiner found that once he did
complain, he was seen by the nurse and the provider, and was
referred to an outside provider. Id. Therefore, the
examiner found that staff responded appropriately to
Johnson's complaints and dismissed his inmate complaint.
This was reviewed by the reviewing authority, who agreed with
the dismissal and noted that “[p]atients must
understand that the timeliness of scheduling offsite
appointments is challenging and we must accept the
appointments that are provided.” Id. at 10.
There is no record that Johnson ever appealed the
reviewer's decision. Id. at 1-18.
March 14, 2017, Johnson filed this complaint pursuant to 42
U.S.C. § 1983, alleging deliberate indifference to his
left thumb injury in violation of his Eighth Amendment right.
In his complaint, Johnson alleged that the defendants were
deliberately indifferent in their treatment of his thumb
injury and in denying his medication refill request for
ibuprofen. On October 3, 2017, Defendants filed a motion for
summary judgment. Defendants argue that Johnson has failed to
exhaust his administrative remedies. ECF No. 14 at 8.
Additionally, they argue that even if Johnson had exhausted
his administrative remedies, the defendants were not
deliberately indifferent to Johnson's medical needs.
the Federal Rules of Civil Procedure, summary judgment is
proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any
affidavits, show that there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56(c). “[T]he plain language of
Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317
has failed to exhaust his administrative remedies by failing
to appeal the dismissal of his inmate complaint to the
corrections complaint examiner. The Prison Litigation Reform
Act of 1995 (“PLRA”) requires inmates to exhaust
their available administrative remedies before they may bring
a claim under 42 U.S.C. § 1983 about prison conditions.
42 U.S.C. § 1997e(a); see also Woodford v. Ngo,
548 U.S. 81, 93 (2006) (holding that the PLRA requires proper
exhaustion of administrative remedies). Exhaustion requires
that a prisoner comply with the rules applicable to the
grievance process at the inmate's institution. Pozo
v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). The
failure to properly exhaust each step of the process
constitutes failure to exhaust available administrative
remedies. Id. This requirement “applies to all
inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v.
Nussle, 534 U.S. 516, 532 (2002). The objective of
§ 1997e(a) is to “permit the prison's
administrative process to run its course before litigation
begins.” Dole v. Chandler, 438 F.3d 804, 809
(7th Cir. 2006) (quoting Cannon v. Washington, 418
F.3d 714, 719 (7th Cir. 2005)); see also Kaba ...