United States District Court, E.D. Wisconsin
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 45)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
Rivers, who represents himself, filed a lawsuit under 42
U.S.C. §1983, alleging that the defendant violated his
civil rights at the Green Bay Correctional Institution. Dkt.
No. 1. Magistrate Judge William E. Duffin screened the
complaint and allowed the plaintiff to proceed on an Eighth
Amendment claim that the defendant showed deliberate
indifference to the plaintiff's health and safety when
she saw him cutting himself on November 19, 2014 and
“walked off” without intervening or providing
medical care. Dkt. No. 16 at 5. The defendant filed a motion
for summary judgment, asserting that the plaintiff had not
exhausted his administrative remedies before filing the case.
Dkt. No. 45. The court denies the motion.
plaintiff is a former Green Bay inmate. Dkt. No. 49 at
¶1. The defendant is a doctor at Green Bay. Id.
complaint alleges that on November 19, 2014, the plaintiff
was housed in “clinical observation” because he
threatened self-harm. Dkt. No. 1 at ¶1. Clinical
Observation is a “very restrictive” status used
for the purpose of preventing an inmate from harming himself
or someone else. Dkt. No. 49 at ¶41. Any property that
an inmate could use to injure himself is removed from his
cell, and this can include his mail. Id. at
¶43. Unit staff conduct rounds every fifteen minutes to
make sure that the inmate is not harming himself or otherwise
distressed. Id. at ¶42. If an inmate in
restrictive status is on a “mail restriction, ”
the staff collect his mail and hold it until the restriction
is lifted or he's removed from observation status.
Id. at ¶44. While the defendant does not say so
directly, she implies that inmates on clinical observation
status also can be subject to “a paper and/or pen
restriction.” Id. at ¶¶53, 55. An
inmate who is on such a restriction “is allowed to come
out of his cell to fill out forms and write letters upon
request.” Id. at ¶55. An inmate who is
not on a restriction and wants to complete a form can ask
staff for a blank form, and fill it out with any supplies he
has on hand; he can hand it back to staff to submit to an
Inmate Complaint Examiner (ICE). Id. at ¶53.
around 4:00 p.m. on November 19, 2014, the plaintiff asked
prison staff to contact a psychologist because he was having
suicidal thoughts. Id. at ¶¶1-2. The
plaintiff took a piece of yellow metal, cut himself and
smeared blood on the windows. Id. at ¶3.
defendant arrived at the plaintiff's cell about
twenty-five minutes later, around 4:25 p.m. Id. at
¶4. The plaintiff “immediately” told the
defendant that he was suicidal, had a sharp piece of metal
and had been cutting himself. Id. at ¶4. The
plaintiff states that he showed the defendant the piece of
metal and his lacerations, and asked to be placed in
mechanical bed restraints. Id. at ¶5. The
defendant did nothing and simply “walked off”
without notifying anyone. Id. at ¶¶6-7.
The defendant didn't confiscate the yellow piece of metal
that the plaintiff was using to cut himself. Id. at
¶7. The plaintiff's suicidal thoughts got worse and
he continued to cut himself. Id. at ¶8. He bled
out and had a three-inch laceration on his left forearm.
days later, on November 24, 2014, the plaintiff submitted two
offender complaints, one alleging that Dr. Harris-Forbes (not
a defendant) refused to place him in restraints, and the
other alleging that prison staff did not give him his
nebulizer treatment upon request. Dkt. No. 49 at ¶22;
Dkt. No. 50-1 at 1. Four days after that, on November 28,
2014, the plaintiff submitted a third offender complaint,
asserting that the defendant had been aware on November 19,
2014 that the plaintiff was at risk of harm, but failed to
protect him by putting him in restraints. Dkt. No. 49 at
¶¶19-21; Dkt. No. 57 at ¶7.
the Inmate Complaint Review System (ICRS), an inmate must
file a complaint with an ICE within fourteen days of the date
the event that gives rise to the complaint occurs.
Id. at ¶10 (citing Wis. Admin. Code
§310.09). When the ICE receives an inmate complaint, he
or she must review it; if it does not meet the requirements
if Wis. Admin. Code §DOC 310, the ICE may return the
complaint to the inmate. Id. at ¶¶11-12.
An ICE may accept late-filed complaints for good cause shown.
Id. at ¶14.
Jodie Perttu reviewed the plaintiff's November 28, 2014
complaint, but she considered it a complaint about staff, not
a complaint “raising health and safety issues.”
Id. at ¶23. As Perttu saw it, at the time the
plaintiff submitted the complaint, his health and safety were
no longer at risk. Id. She returned the
plaintiff's offender complaint with a letter informing
him that he could not file more than two offender complaints
per calendar week. Dkt. No. 49 at ¶24. She stated that
although there were exceptions to the two-complaint rule, the
plaintiff's November 28, 2014 complaint did not meet
either exception. Id.
defendant asserts that the plaintiff could have re-submitted
this complaint the following week; she says that the
“new calendar week” started on December 1, 2014,
which would have been within the fourteen days after the
November 19, 2014 incident. Id. at ¶26. The
plaintiff did not resubmit the complaint until January 9,
2015. Id. at ¶27. The plaintiff explained at
that time that the complaint was late because he had been on
observation status from November 28, 2014 until January 7,
2015. Id. at ¶28.
contacted Captain Jay Van Lanen (not a defendant) about the
plaintiff's claim that his re-submitted complaint was
late because he'd been on observation status.
Id. at ¶29. Van Lanen told Perttu that
“when inmates are on paper and/or pen restrictions,
they are allowed to come out of their cells to fill out forms
and write letters upon request.” Id. at
defendant asserts that on December 5, 2014, the plaintiff was
“allowed” a book, two sheets of paper and a
crayon during regular rounds. Id. at ¶56. The
defendant alleges that at this time, the plaintiff would have
been allowed to keep the crayon as property. Id. at
¶¶56-57. The defendant says that the
plaintiff's mail restriction was lifted December 12,
2014. Id. at ¶¶58-59. He would have been
issued his retained mail at that time, and “would have
had full access to his mail after December 12, 2014.”
Id. According to the plaintiff, his mail restriction
was lifted on December 16, 2014. Dkt. No. 57 at
¶¶20-22. He states that he could have only
“personal mail” at that time, which included
letters from friends and family only. Id. The
plaintiff states that he did not receive Perttu's return
notice until January 8, 2014, the day after prison staff
released him from clinical observation. Id. at
appears that after speaking to Van Lanen, Perttu reviewed the
Inmate Complaint Tracking System (“ICTS”). Dkt.
No. 49 at ¶30; see also Dkt. No. 50-1 at 1. She
noted that the plaintiff had submitted six other offender
complaints while he was in clinical observation between
November 28, 2014 and January 7, 2015. Id. Because
the plaintiff had demonstrated that he was able to file
offender complaints while in clinical observation, Perttu
rejected the plaintiff's offender complaint as untimely;
she concluded that the plaintiff did not have “good
cause” for his untimely filing under Wis. Admin. ...