United States District Court, E.D. Wisconsin
JOSHUA J. OSBORNE, Plaintiff,
MICHAEL MEISNER, SANDRA HAUTAMAKI, ANDREW WESNER, CHAD KELLER, MATTHEW FOCHS, JASON RALLS, DEANNA TIMM, COREY HEFT, KIMBERLY JOHNSON, TRAVIS RODER, and BRIAN SMITH, Defendants.
Stadtmueller U.S. District Judge.
who is incarcerated at Redgranite Correctional Institution,
filed a pro se complaint claiming his civil rights
were violated. See (Docket #21). Before the Court
are two motions from Plaintiff. The first requests
reconsideration of the Court's recent order granting
partial summary judgment to Defendants. (Docket #50). The
second is Plaintiff's fourth motion requesting the
appointment of counsel. (Docket #55). The Court will deny
Plaintiff's Motion for Reconsideration
filed a motion on January 4, 2018 asking that the Court
reconsider its December 27, 2017 order granting partial
summary judgment to Defendants. (Docket #45). In that order,
the Court found that Plaintiff failed to exhaust his prison
administrative remedies with respect to his claim of
deliberate indifference to his serious medical needs.
Id. at 5- 6. His initial inmate complaint, filed
around the time of the relevant events in 2016, did not raise
the issue of allegedly inadequate medical care, id.
at 4-5, and while a subsequent inmate complaint in late 2017
did mention medical care, it was rejected because it was
submitted nearly a year outside the permissible time period,
id. at 6. As a result, the medical deliberate
indifference claim had to be dismissed. Id.;
Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.
2002); Smith v. Zachary, 255 F.3d 446, 452 (7th Cir.
seeks reconsideration of that order, arguing that his 2016
inmate complaint, considered alongside his contemporaneous
healthcare requests and other actions, put Defendants on
notice of his medical claim. (Docket #50 at 2). Although he
cites no authority supporting his motion, Federal Rule of
Civil Procedure 60(b) permits a court to revisit orders in
civil cases. Fed.R.Civ.P. 60(b). That Rule allows the Court
to vacate an order based on, inter alia, a mistake,
newly discovered evidence, or “any other reason that
justifies relief.” Fed.R.Civ.P. 60(b). Relief under
Rule 60 is an “extraordinary remedy and is granted only
in exceptional circumstances.” Wickens v. Shell Oil
Co., 620 F.3d 747, 759 (7th Cir. 2010). The Court's
determination is constrained only by its sound discretion.
Venson v. Altamirano, 749 F.3d 641, 656 (7th Cir.
60(b) affords Plaintiff no relief here. First, and most
importantly, Plaintiff's argument is one he made in
opposition to Defendants' motion for partial summary
judgment. See (Docket #38 at 3); (Docket #47 at 2).
The Court considered and rejected it, finding that the
September 2016 inmate complaint and Plaintiff's appeal
thereof raised issues only regarding the conditions of
Plaintiff's cell, not improper medical care. (Docket #45
at 5-6). A motion for reconsideration is not to be used as a
second bite at the apple. See Oto v. Metro. Life Ins.
Co., 224 F.3d 601, 606 (7th Cir. 2000). For that reason
alone, the Court declines to revisit its prior ruling.
sure, were it to reach the merits, the Court would find
Plaintiff's argument no more persuasive now than it was
when first offered. As the Court previously explained, the
inmate complaint in question stated, in pertinent part:
I am sleeping on the floor in seg[.] . . . On 9-21-16 I was
told by C/O II to pack my stuff from D-wing that I was moving
to C-wing and going to have a cellie. Since [I]'ve moved
in C-6 I've been sleeping on the floor and I have bug
bites all over me[.] I've told the C/O's and got the
response to[o] bad we're over crowded. The rooms in seg
are set up for one person not two people. My mat[t]ress is on
the floor on top the shower drain and is right next to the
toilet. Thank you for your time in this matter.
(Docket #35-2 at 11). In the “action requested”
section, Plaintiff said: “[e]ither to be on the slab of
concrete provided to us while in seg or to just be in a cell
me[a]nt for one person and only one person not two. Or let me
into [general population].” Id. at 12. After
his complaint was dismissed, Plaintiff appealed, arguing that
On 9-22-16 I was forced out of D-wing RHU to C-wing RHU due
to work being done but was forced to double up in a single
cell and had to sleep on the floor on top [of] a shower drain
next to a toilet 2 feet from on a flat single mattress not
even 6 inch off the ground and no accommodation. I spent 2
weeks in this inhuman and unsanitary state and notif[i]ed all
possibil[ities] about this issue and was denied/dismissed on
my ICRS complaint and got denied of all request to move
Id. at 13. The dismissal was affirmed on appeal.
argues that he adequately notified prison officials of his
lack of medical care for purposes of exhaustion. He reasons
that first, prior to submitting his 2016 complaint, he warned
several prison officials verbally, in health services
requests, and by letter of the bug bites he received as a
result of sleeping next to the floor drain, as well as the
body-covering rashes that the bites caused. (Docket #50 at 2,
6). Next, Plaintiff contends that his inmate complaint and
appeal highlighted the medical aspect of his concerns, as he
mentioned both bug bites occurring all over his body and, on
appeal, that he was living in an “unsanitary
state.” (Docket #35-2 at 11-13); (Docket #50 at 2-3,
6-7). Thus, prison officials, reflecting on his pre-complaint
warnings together with his inmate complaint, should have
concluded that he was in need of medical care. (Docket #50 at
argument is about the scope of his inmate complaint, and the
Seventh Circuit has offered guidance on this question. To
adequately notify prison officials of a particular claim, an
inmate's complaint must contain the information required
by the prison's administrative rules. Strong v.
David, 297 F.3d 646, 649 (7th Cir. 2002). Where those
rules are silent, “a grievance suffices if it alerts
the prison to the nature of the wrong for which redress is
sought.” Id. at 650; Riccardo v.
Rausch, 375 F.3d 521, 524 (7th Cir. 2004). An inmate
need not state “facts, articulate legal theories, or
demand particular relief, ” nor must he name each
potential defendant, so long as the grievance
“object[s] intelligibly to some asserted
shortcoming.” Strong, 297 F.3d at 650;
Riccardo, 375 F.3d at 524. In this way, the approach
to interpreting inmate complaints is akin to the federal
notice pleading system. Dye v. Kingston, 130
Fed.Appx. 52, 55 (7th Cir. 2005). Wisconsin's
administrative rules provide little guidance as to the
required contents of an inmate complaint; however, those
rules do require that offender complaints “[c]ontain
only one issue per complaint, and  clearly identify the
issue.” Wis. Admin. Code § DOC 310.09(1)(e).
complaint falls short of satisfying these lenient standards.
At the outset, the Court rejects Plaintiff's contention
that prison officials are required to interpret inmate
complaints using other knowledge they might have, from
whatever source. As the Court made clear in its summary
judgment order, Plaintiff's verbal complaints, health
services requests, and other notification efforts, however
robust, have no bearing whatsoever on the scope of his inmate
complaint. (Docket ...