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Oswald v. Pollard

United States District Court, W.D. Wisconsin

January 26, 2018

DANIEL P. OSWALD, Plaintiff,
WILLIAM POLLARD, et al., Defendants.



         Pro se plaintiff Daniel P. Oswald is proceeding in this lawsuit against defendants Jeremy Brockman, Christine Deyoung, Jeffrey Manlove, Michael Charles, Leslie Baird, and Belinda Schrubbe on Eighth Amendment and state negligence law claims related to allegedly inadequate medical treatment received in 2014 while incarcerated at Waupun Correctional Institution (“Waupun”). Oswald is also proceeding against the Wisconsin Department of Corrections (“DOC”) on ADA and Rehabilitation Act claims related to an alleged denial of an elevator pass and wheelchair.

         Now before the court are: defendants' motion for partial summary judgment on exhaustion grounds (dkt. #38), and plaintiff's motions for a preliminary injunction (dkt. #44), assistance in recruiting counsel (dkt. #52), for inspection of defendants' employment records (dkt. #58) and to compel a response to his discovery requests (dkt. #60). For the following reasons, the court will grant defendant's and deny plaintiff's motions.

         I. Partial exhaustion motion (dkt. #38)

         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 speaking, a prisoner must “properly take each step within the administrative process” to comply with § 1997e(a). 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), and filing all necessary appeals, Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005), “in the place, and at the time, the prison's administrative rules require.” Pozo, 286 F.3d at 1025.

         The purpose of these requirements is to give the prison administrators a fair opportunity to resolve the grievance without litigation. Woodford v. Ngo, 548 U.S. 81, 88-89 (2006); Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013) (prison staff need notice of a problem and an opportunity to address it). 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, however, defendants bear the burden of establishing plaintiff's failure to exhaust. Jones v. Bock, 549 U.S. 199, 216 (2007).

         To exhaust state administrative remedies before the DOC, inmates must follow the inmate complaint review process set forth in the Wis. Admin. 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). Each complaint must “[c]ontain only one issue . . . and shall clearly identify th[at] issue.” Id. § 310.09(e). If the institution complaint examiner rejects a grievance for procedural reasons without addressing the merits, an inmate may appeal that rejection. Id. § 310.11(6). If the complaint is not rejected, the institution examiner makes a recommendation on the merits of 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.

         Defendants seek judgment as to Oswald's claims against Dr. Manlove, as well as his ADA and Rehabilitation Act claim about access to a wheelchair, for failure to exhaust, asserting that Oswald never filed a complaint against Dr. Manlove or with respect to being denied access to a wheelchair. In their motion, defendants acknowledge that Oswald filed multiple complaints about medical care, which involve numerous medical care providers at Waupun Correctional Institution, but he never specifically complained about Dr. Manlove. Indeed, the inmate complaint records indicate that in 2014, Oswald filed 22 inmate complaints against various staff at Waupun, but none of those complaints mention Manlove's mistreatment. (Ex. 1000 (dkt. #40-1).) Further, although Oswald filed inmate complaints related to the denial of an elevator pass (id. at 1), he never filed one related to access to a wheelchair. On the contrary, Oswald actually filed a grievance in August of 2014, WCI-2014-18326 where he complained that staff required him to participate in physical therapy despite being in serious pain and having been in a wheelchair. In short, Oswald's complaint was not being denied access to a wheelchair, but rather about having to participate in physical therapy. (Ex. 1001 (dkt. #40-2) at 10.)

         In his opposition, Oswald acknowledged never filing an inmate complaint that neither named Dr. Manlove or complained about the lack of access to a wheelchair. Nor for that matter, does Oswald assert that any prison staff prevented him from pursuing an inmate complaint about these two issues. Instead, Oswald offers different reasons for failing to file an inmate complaint: (1) he was not aware of the extent of the physical damage sustained from his July 2014 fall until a spine specialist examined him on August 1, 2014, and told him that he should use a wheelchair; (2) for a month after the fall, he was told that the stiffness and pain would go away; and (3) for a month starting August 5, 2014, he was placed in a wheelchair and “basically rendered bedridden” because of the pain he was in. Ultimately, all of these excuses are unavailing.

         Taking them in reverse order, Oswald's third numbered excuse is belied by the record, which shows Oswald repeatedly used the inmate complaint system during that same timeframe he claims to be physically unable to do so. Specifically, in July and August of 2014, while “bedridden, ” Oswald managed to file five other inmate complaints. Further, in September of 2014, Oswald submitted three more complaints about the medical treatment he was receiving. (Ex. 1000 (dkt. #40-1) at 1.) To the extent Oswald is arguing in his other two numbered excuses that he did not file inmate complaints in July or August of 2014 because he believed he would get better soon and only realized he would not after missing a 14-day DOC deadline for filing a complaint, Oswald offers no explanation for not even attempting to pursue those grievances within 14 days of realizing that earlier, rosy prognoses were inaccurate. Unfortunately for Oswald, even assuming that he genuinely misunderstood the deadlines for filing his inmate complaints (since he still could have submitted a complaint within 14 days of when he claims to have realized his long-term prognosis was not good at the end of August), that misapprehension is no excuse to circumvent the exhaustion requirement. Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 537 (7th Cir. 1999) (“There is no futility exception to § 1997e(a).”); see Smith v. Zachary, 255 F.3d 446, 452 (7th Cir. 2001) (rejecting futility and substantial compliance arguments due to the breadth of the PLRA's exhaustion requirement). Of course, Oswald's delay in complaining about being denied use of a wheelchair has no rational explanation, other than that he was willing to put up with it for a short period, which was still a conscious choice at the time. Regardless, since the record suggests that Oswald could have at least attempted to pursue his inmate complaints related to Manlove and wheelchair access, but failed to do so, he did not exhaust those claims and they are now both barred on exhaustion grounds.

         Finally, Oswald suggests that the court could stay these proceedings to permit Oswald to exhaust, but such a stay would now be fruitless since there is no question that Oswald failed to file inmate complaints on these subjects within 14 days of knowing about them. Accordingly, the court is granting defendants' motion, and Oswald's claims against Dr. Manlove will be dismissed, as will his ADA/Rehabilitation Act claim against the DOC related to access to a wheelchair.[1]

         II. Motion for preliminary injunction (dkt. #44)

         In his preliminary injunction motion, Oswald explains that he suffers from Post Traumatic Stress Disorder (“PTSD”) that causes him to urinate in his sleep. As such, he is requesting an injunction requiring defendants to: (1) place him in a single cell at Kettle Moraine Correctional Institution (“Kettle Moraine”), where he is currently incarcerated; (2) place him on a transfer list to the Wisconsin Resource Center (“WRC”) for evaluation for the PTSD program there; (3) place him in a single cell at the WRC, either permanently or until this lawsuit concludes; (4) provide him with a special medical need restriction for adult diapers, clean linens as needed and access to a secondary set of linens at all times; and (5) permit Oswald to shower when he has retention issues as a result of his PTSD. Unfortunately, the claims plaintiff is pursuing in this lawsuit are unlikely to yield the kind of immediate or permanent relief he seeks.

         To obtain injunctive relief, any party must show that: (1) he will suffer irreparable harm before the final resolution of his claim without a preliminary injunction; (2) traditional legal remedies are inadequate; and (3) his claims has some likelihood of success on the merits. BBL, Inc. v. City of Angola, 809 F.3d 317, 323-24 (7th Cir. 2015). Upon making this showing, he must further demonstrate that the balance of harms tips in his favor and that the public interest favors the injunctive relief. Id. As formidable as these factors are for a typical ...

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