United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB, DISTRICT JUDGE.
and pro se plaintiff Christopher Jones brought this lawsuit
against defendants Brian Neumaier, Jeremiah Millard, Andrew
Howell, Jonathan Vetter and Leslie Baird, contending that
defendants violated his Eighth Amendment and state rights by
failing to provide him adequate medical care. On July 24,
2017, I granted defendant's motion for summary judgment
and dismissed plaintiff's claims without prejudice
because defendants had proven that plaintiff failed to
exhaust his administrative remedies before filing suit. Dkt.
#42. Now before the court is plaintiff's motion for
reconsideration under Rule 59(e) of the Federal Rules of
Civil Procedure, in which he argues that the court erred in
rejecting his argument that the grievance system was
unavailable to him. Dkt. #44. Because plaintiff's motion
lacks merit, I am denying it. Plaintiff has also filed a
notice of appeal and a motion to proceed in forma
pauperis on appeal, dkt. #46, which I will grant.
Motion for Reconsideration
opposition to defendants' motion for summary judgment,
plaintiff argued that one of the reasons that he did not
submit a timely inmate complaint relating to his underlying
claims in this lawsuit was because the “inmate
assistant” assigned to help him after he returned from
the hospital told him that “prison staff” had
said “not to worry about that, right now, [plaintiff]
can handle that complaint stuff after he fully
recovers.” Jones Decl. ¶16, dkt. #35. I concluded
that these vague allegations that prison officials misled
plaintiff about his deadline for filing a grievance were not
sufficient to create a genuine dispute about whether the
grievance process was available. Dkt. #42 at 10. Moreover,
even if plaintiff had delayed because of the inmate
assistant's statement, the evidence showed that plaintiff
was able to file other grievances before he submitted a
grievance relevant to his claims in this lawsuit.
Id. at 11. Finally, it was undisputed that plaintiff
failed to appeal the rejection of the untimely grievance he
had ultimately filed, which alone was grounds for dismissal
for failure to exhaust his administrative remedies.
Id. at 11-12 (citing Pozo v. McCaughtry,
286 F.3d 1022, 1025 (7th Cir. 2002)).
motion for reconsideration, plaintiff argues that defendants
thwarted his attempts to provide evidence confirming the
alleged statement from the inmate assistant. Specifically,
plaintiff argues that defendant refused to identify the
inmate assistant and failed to provide plaintiff copies of
the regulations relating to inmate assistants. Dkt. #44 at
1-2. Defendants respond that they have no record of the
inmate assistant and that plaintiff could have found the
regulations on his own.
discovery-related arguments would not change my conclusion
that plaintiff failed to exhaust his administrative remedies
before filing suit. Even if plaintiff had produced a
declaration from an inmate assistant confirming that the
assistant had told plaintiff to wait until he felt better to
file a grievance, plaintiff has no evidence justifying the
length of his delay or his failure to appeal the rejection of
the untimely grievance. In sum, plaintiff has identified no
error in the previous decision granting summary judgment to
Motion for Leave to Proceed In Forma Pauperis on
district court has authority to deny a request for leave to
proceed in forma pauperis under 28 U.S.C. § 1915 for one
or more of the following reasons: the litigant wishing to
take an appeal has not established indigence, the appeal is
taken in bad faith or the litigant is a prisoner and has
three strikes. 28 U.S.C. § 1915(a)(1), (3) and (g).
Sperow v. Melvin, 153 F.3d 780, 781 (7th Cir. 1998).
Plaintiff has established indigence and does not have three
strikes. I will not certify that his appeal is taken in bad
faith. Therefore, I will grant his motion for leave to
proceed in forma pauperis.
plaintiff may proceed in forma pauperis, the Prison
Litigation Reform Act requires indigent inmates to make an
initial partial payment under 28 U.S.C. § 1915(b)(1).
From his inmate trust fund account statement, I conclude that
plaintiff's initial partial filing fee is $12.38, which
is due no later than December 27, 2017. Plaintiff must pay
the remainder of the $505 appellate docketing fee in monthly
installments under 28 U.S.C. § 1915(b)(2).
1. Plaintiff Christopher Jones's motion for
reconsideration, dkt. #44, is DENIED.
2. Plaintiff's motion for leave to proceed in forma
pauperis on appeal, dkt. #46, is GRANTED. The court certifies
that plaintiff's appeal is not taken in bad faith ...