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Nelson v. Burns

United States District Court, W.D. Wisconsin

February 9, 2018

DAVID DARNELL NELSON, JR., Plaintiff,
v.
MATTHEW BURNS, ANDREW LARSON, HSU MANAGER DOE, and MICHAEL LUNDE, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON, DISTRICT JUDGE.

         Pro se plaintiff and prisoner David Darnell Nelson, Jr. is proceeding on the following claims under the Eighth Amendment related to his treatment at the Waupun Correctional Institution: (1) defendant HSU Manager Doe failed to ensure that Nelson received his medication after he transferred to WCI; (2) defendants Matthew Burns and Andrew Larson used excessive force on Nelson when he began suffering from mental health symptoms in April 2016; (3) defendants Burns, Larson, and Michael Lunde subjected Nelson to an improper strip search after the use of force.

         Several motions are now before the court: (1) defendants' motion for partial summary judgment on the ground that Nelson failed to exhaust his administrative remedies as to claims (1) and (2) above, Dkt. 26; (2) Nelson's motion for assistance in recruiting counsel, Dkt. 38; and (3) two motions by Nelson to add new claims, Dkt. 39 and Dkt. 41. For the reasons explained below, the court will deny all of these motions with the exception that the court will allow Nelson to proceed on new claims for excessive force and denial of medical care against “Supervisor Tritt.”

         ANALYSIS

         A. Exhaustion

         Under the Prison Litigation Reform Act, “[n]o action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The purpose of the exhaustion requirement 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).

         To satisfy § 1997e(a), a prisoner must complete each step in the administrative process “in the place, and at the time, the prison's administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). If a prisoner fails to exhaust his administrative remedies before filing his lawsuit, the court must dismiss the case, Perez v. Wisconsin Dept. of Corr., 182 F.3d 532, 535 (7th Cir. 1999), but the defendants have the burden to prove that the prisoner did not exhaust his administrative remedies. Jones v. Bock, 549 U.S. 199 (2007).

         Defendants contend that Nelson failed to follow the prison's rules for exhausting his claims that (1) defendant HSU Manager Doe failed to ensure that Nelson received his medication after he transferred to WCI; and (2) defendants Matthew Burns and Andrew Larson used excessive force on Nelson when he began suffering from mental health symptoms in April 2016.[1] Defendants rely on Wis. Admin. Code § DOC 310.08(2)(a), which states that a prisoner may not file a grievance to raise “[a]ny issue related to a conduct report, unless the inmate has exhausted the disciplinary process in accordance with ch. DOC 303.”

         According to defendants, the two claims identified above are “related to” a conduct report that Nelson received for assaulting prison staff and Nelson didn't challenge the conduct report, so he waived his right to bring claims related to the conduct report. Although defendants acknowledge that Nelson filed a grievance in which he “complained of not having his medication and being assaulted by staff on April 28, 2016, ” Dkt. 27, at 5, defendants note that the grievance examiner rejected the grievance on the ground that Nelson was complaining about matters related to the conduct report and that are considered in the context of the disciplinary proceedings.[2]

         Defendants have failed to meet their burden to show that Nelson failed to exhaust his available administrative remedies as to either claim. As an initial matter, neither the grievance examiner nor defendants have explained how a claim regarding a failure to provide Nelson's prescribed medication is “related to” a conduct report for assaulting staff. But even if I assume that it is, I disagree with defendants' contention that Nelson forfeited his right to bring either claim at issue by failing to challenge the conduct report in his disciplinary proceedings.

         Defendants appear to be taking the position that § DOC 310.08(2)(a) requires Wisconsin prisoners to raise in the context of the disciplinary proceedings any issue that is “related to” the conduct report, but that is not what the regulation says. Rather, the regulation prohibits a prisoner from filing a grievance related to a conduct report “unless the inmate has exhausted the disciplinary process in accordance with ch. DOC 303.” As I noted in LaBrec v. Walker, No. 16-cv-774, 2017 WL 4174918, at *3 (W.D. Wis. Sept. 20, 2017), § DOC 310.08(2)(a) must be read in conjunction with § DOC 303.82(1), which allows a prisoner to challenge the “disciplinary decision” in the context of a disciplinary appeal. The regulation does not allow a prisoner to raise grievances in the context of the disciplinary proceedings simply because they are related to a conduct report. Notably, defendants do not contend that Nelson could have challenged his disciplinary decision on the ground that staff failed to give him medication or even on the ground that staff used excessive force against him. As the court of appeals has noted in other contexts, a claim for excessive force and a disciplinary decision that the prisoner assaulted staff are not necessarily inconsistent. Navejar v. Iyiola, 718 F.3d 692, 697-98 (7th Cir. 2013) (“[A prisoner's] assault on [a guard] is not necessarily inconsistent with his sworn contention that the guards answered his assault with excessive force after they subdued him.”). See also Tolliver v. City of Chicago, 820 F.3d 237, 243-44 (7th Cir. 2016) (“[T]here is nothing inherently contradictory about pleading guilty to aggravated battery of a peace officer and bringing a claim of excessive force.”).

         In LaBrec, I raised a question that is relevant to this case:

[W]hat is a prisoner to do if he agrees that he is guilty (or simply does not believe there is any basis for appealing his disciplinary decision), but he wants to grieve an issue that may be “related to” his conduct report? The regulations do not provide a clear answer . . ., but there is only one answer that is fair and sensible. Because the disciplinary process cannot provide a remedy in that situation, it follows that the prisoner has “exhausted the disciplinary process in accordance with ch. DOC 303” within the meaning of § DOC 3010.08(2)(a). See also Ross v. Blake, 136 S.Ct. 1850, 1859 (2016) (“[W]here the relevant administrative procedure lacks authority to provide any relief, the inmate has nothing to exhaust.”) (internal quotations omitted). . . [I]t would make no sense to force a prisoner to file a pointless disciplinary appeal that can provide him no relief. . . . White v. Bukowski, 800 F.3d 392, 395 (7th Cir. 2015) (“[H]ow could a prisoner be expected to file a grievance that would be academic because no response would benefit him or her in the slightest? ... [I]f one has no remedy, one has no duty to exhaust remedies.”).

2017 WL 4174918, at *3-4. There might be a colorable argument that a prisoner's failure to challenge a disciplinary decision prevents him from later contradicting the allegations that form the basis of that decision. Navejar, 718 F.3d at 697-98 (“[The plaintiff] cannot deny that he disobeyed orders or assaulted [a guard] because those denials would ‘necessarily imply' the ...


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