United States District Court, E.D. Wisconsin
MICHAEL F. HEKENBERGER, Plaintiff,
JEFFREY MEKASH, et al., Defendants.
DECISION AND ORDER DENYING DEFENDANTS' MOTION FOR
William C. Griesbach, Chief Judge
Michael F. Hekenberger, who is currently incarcerated at
Redgranite Correctional Institution, brought this civil
rights action pursuant to 42 U.S.C. § 1983 alleging that
Defendants Jeffrey Mekash, Jennifer Von Haden, Edward Bowden,
Matthew West, Amanda Sonnenberg, Brigit O'Connor, Heather
Rogers, and Kim Velleman violated his constitutional rights
while he was incarcerated at the Brown County Jail. Plaintiff
alleges Defendants were deliberately indifferent to his
serious medical needs stemming from his heroin withdrawal.
The case is before the court on Defendants Velleman,
Sonnenberg, Rimmer, and O'Connor's motion for summary
judgment. Defendants Mekash, Von Haden, Bowden, and West
joined the motion. Defendants seek summary judgment on the
ground that Plaintiff failed to exhaust his administrative
remedies as required by the Prison Litigation Reform Act
(PLRA). For the reasons set forth below, the court will deny
Defendants' motion for summary judgment and instead order
a hearing pursuant to Pavey v. Conley, 544 F.3d 739
(7th Cir. 2008).
15, 2014, Plaintiff was arrested in Oneida, Wisconsin on
suspicion of conspiracy to deliver heroin and was booked into
the Brown County Jail. Pl.'s Proposed Findings of Fact
¶¶ 8-9, Dkt. No. 66. Plaintiff informed booking
officers of his history of heroin abuse and dependency,
reported that he had used heroin the night before, and
indicated that he would soon be entering withdrawal and would
need medical assistance. Id. ¶ 11. After
Plaintiff was booked and placed in his cell, Plaintiff claims
that he began experiencing nausea, vomiting, agitation,
sweating, diarrhea, anxiety, panic attacks, restlessness,
cold sweats, hallucinations, seizures, incontinence, and
significant physical pain. Id. ¶ 12. He called
for help using the emergency call button located in his cell
and requested help from officers performing rounds in his
unit. Id. ¶ 13. An inmate in a neighboring cell
also called for help after hearing “gurgling”
sounds from Plaintiff's cell. Id. ¶ 14.
When help arrived, Plaintiff was found on his cell floor
unconscious and foaming at the mouth. Id. ¶ 15.
He was subsequently brought to Aurora BayCare Medical Center
for emergency medical treatment. Id. ¶ 16.
Plaintiff went into cardiac arrest and had to be resuscitated
multiple times. Id. ¶ 17. He ultimately
underwent a surgical procedure in which a
pacemaker/defibrillator was implanted in his chest.
Id. ¶ 18. After the surgery, Plaintiff was
placed in the hospital's Intensive Care Unit for
approximately ten days. Id. ¶ 19.
was discharged from the hospital on July 29, 2014.
Id. ¶ 20. He was rebooked into the Brown County
Jail later that day and was placed in segregation where he
remained for approximately 20 days. Id. ¶ 21.
Plaintiff was an inmate at the Brown County Jail for about
one year before being transferred to Dodge Correctional
Institution. Id. ¶ 22.
judgment is proper of the moving party shows that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In determining whether summary judgment
is appropriate, a court must construe the evidence in the
light most favorable to the non-moving party. Ramos v.
City of Chicago, 716 F.3d 1013, 1014 (7th Cir. 2013).
contend they are entitled to summary judgment on the ground
that Plaintiff failed to exhaust his administrative remedies.
The PLRA provides that an inmate cannot assert a cause of
action under federal law “until such administrative
remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a); see also Woodford v. Ngo, 548 U.S.
81, 93 (2006) (holding that the PLRA requires proper
exhaustion of administrative remedies). Exhaustion requires
that an inmate comply with the rules applicable to the
grievance process at the inmate's institution. Pozo
v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). This
requirement “applies to all inmate suits about prison
life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong.” Porter v. Nussle, 534
U.S. 516, 532 (2002). The objective of § 1997e(a) is to
permit the institution's “administrative process to
run its course before litigation begins.” Dole v.
Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (quoting
Cannon v. Washington, 418 F.3d 714, 719 (7th Cir.
2005)); see also Kaba v. Stepp, 458 F.3d 678, 684
(7th Cir. 2006). The Seventh Circuit applies a “strict
compliance approach to exhaustion” and expects inmates
to “adhere to “the specific procedures and
deadlines” established by the institution's policy.
Dole, 438 F.3d at 809; see also Hernandez v.
Dart, 814 F.3d 836, 842 (7th Cir. 2016) (citations
omitted). Because exhaustion is an affirmative defense,
Defendants must establish that an administrative remedy was
available and that Plaintiff failed to pursue it. Thomas
v. Reese, 787 F.3d 845, 847 (7th Cir. 2016). When
factual disputes regarding exhaustion exist, the court must
resolve those disputes through an evidentiary hearing.
Pavey, 544 F.3d at 742.
Brown County Jail implemented a grievance procedure which
allows inmates to express and resolve any issues related to
their conditions of confinement. Defs.' Proposed Findings
of Fact ¶ 5, Dkt. No. 57. The grievance procedure, which
is contained in the Jail's Inmate Handbook, requires that
any grievance must be filed within 48 hours of the incident
giving rise to the complaint. The Handbook provides that any
grievances filed beyond the 48-hour time limit may be honored
if good cause is shown for the delay. Dkt. No. 57-4 at 10.
concedes that he did not file a grievance relating to his
treatment on July 15, 2014, but asserts that he could not
exhaust administrative remedies because they were not
available to him. Indeed, an inmate's claim is not
subject to the PLRA exhaustion requirement when no
administrative remedies are “available” to him
during the relevant exhaustion period. Hernandez,
814 F.3d at 842 (citing 42 U.S.C. § 1997e(a);
Woodford, 548 U.S. at 93). Jail authorities cannot
“immunize themselves from suit by establishing
procedures that in practice are not available because they
are impossible to comply with or simply do not exist.”
King v. McCarty, 781 F.3d 889, 894 (7th Cir. 2015);
see also Lanaghan v. Koch, 902 F.3d 683, 689 (7th
Cir. 2018) (“A secret grievance procedure is no
procedure at all, at least absent some evidence that the
inmate was aware of that procedure.”).
asserts that he was not made aware of the administrative
procedure for filing a grievance because he was not provided
with a copy of the Brown County Jail's Inmate Handbook,
did not participate in a classification interview with Jail
staff while an inmate at the Jail, and was not informed of
the grievance process by Brown County Jail staff or
administrators. Instead, he learned about the inmate
grievance process by talking with other inmates long after he
was booked into the Jail. Defendants dispute that Plaintiff
was never provided with a copy of the Handbook, noting that
it is Jail policy to provide all inmates with a copy of the
Handbook even if the inmate does not receive a copy during
the initial classification interview. Defendants assert that
Plaintiff should have filed a grievance once he became aware
of the grievance procedure in accordance with the Jail's
“good cause” exception.
record, Defendants have failed to show that the
administrative grievance process was available to Plaintiff
and that he simply failed to take advantage of it. Although
Plaintiff may have received a copy of the Handbook and became
aware of the grievance procedure at some point during his
incarceration at the Jail, the record must be developed
further to determine whether Plaintiff was aware of the
grievance process and the “good cause” exception
during the relevant exhaustion period. The court therefore
denies Defendants' motion for summary judgment and will
schedule a Pavey hearing in this matter.
foregoing reasons, Defendants' motion for summary
judgment (Dkt. No. 56) is DENIED. Due to a
genuine issue of material fact being present as to whether
Plaintiff exhausted his administrative remedies, the court
will schedule a Pavey hearing. The Clerk is directed
to set the matter ...