United States District Court, W.D. Wisconsin
D. PETERSON DISTRICT JUDGE
Xavier Love, appearing pro se, is an inmate at New Lisbon
Correctional Institution. He alleges that prison medical
staff and hospital employees failed to properly treat the
torn Achilles tendon he suffered playing basketball. He
brings Eighth Amendment and Wisconsin-law negligence claims
against several prison officials. The state-employee
defendants have filed a motion for partial summary judgment,
contending that Love failed to exhaust his administrative
remedies for some of his claims. Dkt. 28.
the Prison Litigation Reform Act, “[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 . . .
until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). The exhaustion
requirement is mandatory and applies to all inmate suits.
Woodford v. Ngo, 548 U.S. 81 (2006); Porter v.
Nussle, 534 U.S. 516, 524 (2002). The exhaustion
requirement's primary purpose is to alert the state to
the problem and to invite corrective action. Riccardo v.
Rausch, 375 F.3d 521, 524 (7th Cir. 2004).
1997e(a) requires “proper exhaustion, ”
Woodford, 548 U.S. at 93; Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which
means that the prisoner must follow prison rules when filing
the initial grievance and all necessary appeals, “in
the place, and at the time, the prison's administrative
rules require.” Burrell v. Powers, 431 F.3d
282, 284-85 (7th Cir. 2005). “[A] prisoner who does not
properly take each step within the administrative process has
failed to exhaust state remedies.” Pozo, 286
F.3d at 1024. The Wisconsin Department of Corrections uses a
four-step process called the Inmate Complaint Review System
(ICRS) to review inmate grievances. See Wis. Admin.
Code Ch. DOC 310.
exhaustion is an affirmative defense, defendants bear the
burden of establishing that Love failed to exhaust his
available remedies. Jones v. Bock, 549 U.S. 199, 216
(2007). At the summary judgment stage, they must show that
there is no genuine dispute of material fact and that they
are entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
was injured on December 22, 2017, and he had surgery to
repair his Achilles tendon on January 19, 2018. He brings
claims against defendants for failing to properly assess him
and delaying in arranging for testing and surgery. He also
brings claims for his postsurgical treatment: he says that
defendants delayed in seeing him, failed to adequately treat
his pain, and disregarded his infected incision. In their
summary judgment motion, defendants contend that because Love
filed his only inmate grievance about his foot injury and
treatment on March 18, 2018, all his claims regarding times
before that grievance should be dismissed for his failure to
exhaust administrative remedies. They argue that Love failed
to comply with the DOC rule stating that an inmate must filed
a grievance within 14 days of the complained-about incident
by filing a grievance about his presurgical
issues. See Wis. Admin. Code § DOC
concedes that he filed only one relevant grievance, the March
18 grievance mentioned by defendants. That grievance discussed
both his treatment before and after his surgery. I take him
to be contending that there are two reasons to deny the
summary judgment motion: (1) all of defendants' alleged
misdeeds are part of the same continuing violation, and he
need not file a grievance at the very start of that
continuing violation to exhaust the earliest parts of it; and
(2) the grievance examiner did not actually reject his
grievance as untimely, instead ruling on the merits.
Love's first argument, case law suggests that an inmate
might be able to exhaust claims going back in time if the
complained-about problem is a longstanding pattern of
continuing misconduct. In Turley v. Rednour, 729
F.3d 645, 650 (7th Cir. 2013), the court stated that
grievances filed more than a year after the condition at
issue began “would satisfy exhaustion, ”
id. at 650 n.3, even though the administrative rules
applicable in that case required grievances to be filed
within 60 days after the problem is discovered. The problem
for Love is that the conduct here cannot be lumped together
as a “continuing violation.” Defendants'
delays in assessing his injury, scheduling surgery, or
treating his presurgical problems are simply different types
of misconduct than defendants' failure to treat his
conclude that Love's second argument is correct. The
grievance examiner would have been within her rights to
reject the portions of Love's grievance that dealt with
presurgical issues as untimely, and it appears that she
indeed started to do that. The examiner stated: “This
ICE will only address things that have happened since
03/13/18 for anything further back is well past the 14 days
and the inmate had every opportunity to file a complaint from
date of injury up until the final date that he did submit on
03/18/18.” Dkt. 30-2, at 2. But she also recounted
details of his treatment starting from the date of the
injury, and she ultimately discussed the merits of the
presurgical claims in dismissing the grievance:
Given that since the accident on 12/22/17 this inmate has
been seen and followed closely by HSU staff and outside
providers consistently. Given that the need for surgery was
found by the outside provider it had to be scheduled per
their schedules on the outside. DOC has no control on as to
how soon they schedule a patients surgery it is all based on
the surgeon's availability as well as the hospital to
accommodate a DOC patient.
Though the complainant says he is being denied appropriate
care, in regards to the time it took for surgery it is clear
from the record no such denial is, nor has taken place. He
has and continues to be seen by medical staff concerning his
problems, and there is no reason to believe his needs are not
being met. The complainant has made it clear he is not
satisfied with the care being offered to date, (surgery date,
pain medications, etc.) but what type of specific care or
treatment must be offered is a matter of professional medical
judgment. . . . Under these circumstances, the ICE has no
reason to believe the care and treatment offered is not
adequate to the demonstrated need.
Id. at 4.
well established that exhaustion cannot be predicated on a
grievance's procedural shortcomings if the grievance
examiner overlooks the shortcomings and rules on the merits
of the claim. See, e.g., Conyers v. Abitz,
416 F.3d 580, 584 (7th Cir. 2005) (“Failure to comply
with administrative deadlines dooms the claim except where
the institution treats the filing as timely and resolves it
on the merits.”); Riccardo, 375 F.3d at 524
(“[W]hen a state treats a filing as timely and resolves
it on the merits, the federal judiciary will not second-guess
that action, for the grievance has served its function of
alerting the state and inviting corrective action.”).
Because the grievance examiner here addressed the substance