United States District Court, W.D. Wisconsin
OPINION AND ORDER
STEPHEN L. CROCKER, MAGISTRATE JUDGE
se plaintiff Ivan Boyd, a prisoner at the Wisconsin
Secure Program Facility (WSPF), is proceeding in this civil
lawsuit pursuant to 42 U.S.C. § 1983, on Eighth and
First Amendment claims against multiple Wisconsin Department
of Corrections (DOC) employees. Specifically, Boyd has
brought Eighth Amendment deliberate indifference claims
against defendants Linda Corbett, Jolinda Waterman, Timothy
Bromeland, Lucas Stowell, McArdle, Mumm, and Rutherford for
their alleged failure to respond to his need for a
properly-fitting CPAP mask between August of 2016 and
November of 2017. Boyd also has brought First Amendment
retaliation claims against McArdle and Waterman related to
their alleged withholding of certain medications since he
filed the complaint in this lawsuit.
there are five motions pending. Three motions require
virtually no discussion: Boyd filed a motion for default
judgment against defendants Corbett and McArdle (dkt. 29),
and defendants Corbett and McArdle responded with motions
seeking leave of court to allow them to answer and avoid the
entry of default (dkt. 32, 38). Since Boyd has responded that
he does not object to either Corbett's or McArdle's
motion (dkt. 34, 42), I am denying his motion for default
judgment and granting Corbett's and McArdle's
motions. The two remaining motions relate to defendants'
Corbett's and McArdle's affirmative defense that Boyd
failed to exhaust his administrative remedies as required by
the Prison Litigation Reform Act (PLRA). Corbett seeks
partial summary judgment on exhaustion grounds (dkt. 45), and
McArdle seeks summary judgment on that same ground (dkt. 50).
Boyd concedes that McArdle is entitled to judgment in her
favor (dkt. 63), so I will grant that motion without further
discussion. However, I am denying Corbett's motion for
the reasons that follow.
Boyd's Claim Against Corbett
proceeding against Corbett on a claim that from about
September of 2016, through at least November 1, 2017, Corbett
knowingly failed to provide Boyd with a CPAP mask that fit.
More specifically, during a September 8, 2016, appointment at
Dodge Correctional Institution (Dodge), Boyd reported that
his CPAP mask was too tight and caused severe pain to his
nose and jaw. Boyd submitted a request for a new mask per
Corbett's instructions, but Boyd did not receive a new
mask, causing him to stop using the CPAP machine. Boyd
subsequently waited to receive a new mask, asking for a new
one when he was transferred to WSPF and then subsequently
submitting requests with the HSU. However, Boyd never
received a new mask. Boyd alleges that this led to a fainting
spell and injury on October 27, 2017. On November 1, 2017,
after Boyd received treatment for his fall, Corbett met with
him and provided him with a new CPAP mask.
Boyd's Inmate Complaint About His CPAP Mask
October 31, 2017, Boyd submitted an inmate complaint,
WSPF-2017-27731, complaining about the circumstances leading
up to his injury. (Corbett Ex. A (dkt. 48-2).) In particular,
he explained that prior to his arrival at WSPF, he had
informed the Health Services Unit (HSU) at Dodge that he
needed a properly fitting CPAP mask, but was informed that he
would have to meet with the sleep apnea
“specialist” (referring to, but not mentioning,
Corbett) to obtain one. Boyd further alleged in his inmate
complaint that he was transferred to WSPF and still did not
receive a new mask. He reported that in October of 2017 he
started telling HSU staff that he needed a new mask. Rather
than issuing Boyd a new mask, WSPF's HSU Manager Jolinda
Waterman came to his cell on October 13, 2017 and asked him
why he wasn't using his mask. When Boyd responded that it
didn't fit right, Waterman told him that WSPF would wait
for the CPAP specialist to visit the institution. Boyd
fainted two weeks later, on October 27, 2017, and his inmate
complaint was received on October 31.
November 28, 2017, the Inmate Complaint Examiner (ICE)
recommended dismissal of Boyd's complaint. The ICE
recounted that Corbett had reported to WSPF's HSU that
Boyd had not been using his CPAP machine as of October 2017,
and that after the injury, Corbett issued Boyd new CPAP
equipment. Since Boyd's concern had been addressed, ICE
recommended dismissal, and that complaint was dismissed on
December 4, 2017. (Corbett Ex. B (dkt. 48-2) at 2-3.) Boyd
appealed that decision, and on December 7, 2017, the
Corrections Complaint Examiner (CCE) accepted ICE's
recommendation. On December 18, 2017, the DOC's Secretary
dismissed Boyd's appeal, agreeing with the CCE's
42 U.S.C. § 1997e(a), “[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
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted.” Generally, a prisoner must also
“properly take each step within the administrative
process” to comply with § 1997e(a). Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). This
includes following instructions for filing the initial
grievance, Cannon v. Washington, 418 F.3d 714, 718
(7th Cir. 2005), and filing all necessary appeals,
Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir.
2005), that are “in the place . . . at the time, [as]
the [institution's] administrative rules require.”
Pozo, 286 F.3d at 1025.
purpose of this exhaustion requirement is to give the prison
administrators a fair opportunity to resolve the grievance
without litigation. Woodford v. Ngo, 548 U.S. 81,
88-89 (2006); see Turley v. Rednour, 729 F.3d 645,
650 (7th Cir. 2013) (“once a prison has received notice
of, and an opportunity to correct, a problem, the prisoner
has satisfied the purpose of the exhaustion
requirement”). If a prisoner fails to exhaust
administrative remedies before filing his lawsuit, then the
court must dismiss the case. Perez v. Wisconsin Dept. of
Corr., 182 F.3d 532, 535 (7th Cir. 1999). Because
exhaustion is an affirmative defense, defendants bear the
burden of establishing that a plaintiff has failed to
exhaust. Jones v. Bock, 549 U.S. 199, 216 (2007).
exhaust state administrative remedies in Wisconsin, inmates
must follow the inmate complaint review process set forth in
the Wisconsin Administrative Code § DOC 310. Under these
provisions, prisoners start the complaint process by filing
an inmate complaint with the institution complaint examiner
within 14 days after the occurrence giving rise to the
complaint. Wis. Admin. Code § DOC 310.09(6). The
complaint may “[c]ontain only one issue per complaint,
and shall clearly identify the issue.” Id.
§ 310.09(e). If the institution complaint examiner
rejects a grievance for procedural reasons without addressing
the merits, an inmate may appeal the rejection. Id.
§ 310.11(6). If the complaint is not rejected, the
institution examiner makes a recommendation to the reviewing
authority as to how the complaint should be resolved.
Id. § 310.11(6). The offender complaint then is
decided by the appropriate reviewing authority, whose
decision can be appealed by the inmate to a correctional
complaint examiner (“corrections examiner”).
Id. §§ 310.12, 310.13. The corrections
examiner then makes a recommendation to the Secretary of the
Department of Corrections, who takes final action.
Id. §§ 310.13, 310.14.
requests partial summary judgment on the claim against her.
Specifically she seeks to pare down the time frame of
Boyd's claim against her to the events that occurred
after October 17, 2017, 14 days before the date that
Boyd filed his inmate complaint about not ...