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Rivers v. Breen-Smith

United States District Court, E.D. Wisconsin

March 14, 2019




         Denzel 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.

         I. Facts [1]

         The plaintiff is a former Green Bay inmate. Dkt. No. 49 at ¶1. The defendant is a doctor at Green Bay. Id. at ¶7.

         The 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.

         At 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.

         The 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. Id.

         Five 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.

         Under 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.

         ICE 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.[2] 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.

         The 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.

         Perttu 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 ¶¶29, 55.

         The 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[3] 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 ¶¶23, 27.

         It 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. ...

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