United States District Court, E.D. Wisconsin
MICHAEL L. EVANS, Plaintiff,
JOSEPH MANUEL, et al., Defendants.
ORDER GRANTING DEFENDANTS LUTSEY AND PETER'S
MOTIONS FOR SUMMARY JUDGMENT BASED ON FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES (DKT. NOS. 34, 39)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, a Wisconsin state prisoner who is representing
himself, filed a complaint under 42 U.S.C. §1983,
alleging that the defendants violated his civil rights. Dkt.
No. 1. On March 27, 2018, the court screened the
plaintiff's complaint and allowed him to proceed with
deliberate indifference claims against (1) Dr. Joseph Manuel,
based on his allegations that Dr. Manuel persisted in a
course of treatment that he knew was ineffective to address
the plaintiff's complaints of pain; (2) Jean Lutsey,
based on his allegations that in July or August of 2016, she
canceled a doctor-ordered surgery; and (3) Susan Peters,
based on his allegations that in June 2017, she provided him
with pain medication that she knew was inadequate to address
his needs. Dkt. No. 12 at 6-7.
Lutsey and Peters have moved for summary judgment, arguing
that the plaintiff failed to exhaust the available
administrative remedies on his claims against them. Dkt. Nos.
34, 39. Dr. Manuel concedes that the plaintiff has exhausted
the available administrative remedies as to the
plaintiff's claim against him. Dkt. No. 35 at 1, n.1. The
court will grant Lutsey and Peters' motions for summary
judgment and will dismiss them as defendants.
plaintiff explains that he suffers from extreme pain and
numbness on the left side of his body due to degenerative
disc disease. Dkt. No. 1 at 2; Dkt. No. 46 at ¶2. He
says that sometime in July or August 2016, Dr. Sauvey (who is
not a defendant) ordered surgery to help address the
plaintiff's pain. Dkt. No. 1 at 2. The plaintiff says
that around the same time that Dr. Sauvey ordered the
surgery, defendant Lutsey (the manager of the Health Services
Unit) “denied” Sauvey's recommendation and
ordered advanced pain therapy instead. Id. This is
the only allegation the plaintiff made against Lutsey.
plaintiff also asserts that, on June 14, 2017, defendant
Peters (a nurse practitioner) treated the plaintiff's
complaint that he was in pain “as if it was a common
cold, ” and just prescribed him over-the-counter
medication. Dkt. No. 1 at 2. This is the only claim the
plaintiff made against Peters.
plaintiff filed two inmate complaints in October 2016: GBCI
2016-22640 and GBCI 2016-23857. Dkt. No. 36 at ¶2; Dkt.
No. 41 at ¶2. In inmate complaint 22640, the plaintiff
complained that “H.S.U. staff stopped [his] Gabapentin
(pain) without telling [him] . . . .” Dkt. No. 37-2 at
7. In inmate complaint 23857, the plaintiff complained that
he was not receiving physical therapy as prescribed by Dr.
Allen (who is not a defendant). Dkt. No. 37-3 at 6. Neither
inmate complaint mentions cancellation of the surgery Dr.
Sauvey had ordered, neither mentions Lutsey, and both predate
the plaintiff's allegations about Peters by about eight
months. Dkt. No. 36 at ¶2; Dkt. No. 41 at ¶2. The
inmate complaint examiner (ICE) dismissed both complaints.
Dkt. No. 36 at ¶3. The plaintiff did not appeal those
21, 2017, the plaintiff prepared inmate complaint GBCI
2017-13286, in which he stated the following:
H.S.U lack of is causing suffering and emotional confusion .
. . .
I put a H.S.U. request in to see a doctor due to my chronic
illness worsen[ing]; . . .
I was s[een] by H.S.U 5-15-17, and told there was no
medical-Doctor here no more and I would be put on the list to
see a medical Ddoctor in 3 weeks, that['s] not going [to]
work . . . .
I have been experienc[ing] numbness all this year, from my
neck, left shoulder, left arm and hands, left leg & toes,
I wake up feeling paralyze[d], and when I write, within 30
minute[s] or so my neck & whole left side go numb. On
5-13-17, I put my 3rd or 4th request in H.S.U since April,
regarding numbness experience, and H.S.U, have disregarded my
medical issue as “cry me a river, ” because of
H.S.U lack of treatment - regarding my degenerat[iv]e disc
disease, and damage[d] nerve, I have been experienc[ing]
numbness, extreme pain through out my neck, left shoulder,
left arm, left leg. I have experience[d] numbness during 2nd
shift and 1st shift, and was told by Clos that H.S.U, said
put a request in to be seen, because I am not dying, H.S.U is
depriving me of adequate medical treatment, and making me
depress[ed]. I have been patien[t] with H.S.U over a year,
and this issue happened in April 2015. I had to push the
issue with I.C.Es in late 2015 just to have M.R.Is, which
show I was suffering from far worse illness, now I'm
enclosing #3 H.S.U correspondence with H.S.U since April,
every time I see H.S.U, it the same thang, we can't do
nothing else . . . .
Dkt. No. 37-4 at 11-12.
reviewing authority dismissed that complaint on June 21,
2017. Id. at 4. The plaintiff timely appealed that
dismissal. Id. at 25-26. In his appeal, the
plaintiff wrote, “H.S.M. Lutsey stop[ped] Dr. Mary
Sauvey from sending me out for surgery to help rel[ie]ve some
of the pain in my neck . . . .” Id. at 26. He
also asserted that, “[he] never [saw] ACP til 6-14-17,
the same day, that ICE - A. DeGroot, ...