United States District Court, E.D. Wisconsin
JAMMIE L. YERKS, Plaintiff,
PAMELA SHURPIT, and CAPT. JOSEPH FALKE, Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 16) AND DISMISSING CASE
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
Jammie L. Yerks, a state prisoner representing himself,
alleges that the defendants violated his constitutional
rights by requiring him to work despite his medical
restrictions. Dkt. No. 1. On November 26, 2018, the
defendants moved for summary judgment based on the
plaintiff's failure to exhaust his administrative
remedies. Dkt. No. 16. The court will grant the
the events he describes in the complaint, the plaintiff was
incarcerated at Dodge Correctional Institution. Dkt. No. 18
at ¶1. The defendants were employed at Dodge: Pamela
Shurpit was the Food Service Manager and Joseph Falke was the
Administrative Captain. Id. at ¶¶2-3.
September 2014, the plaintiff was working as a
“DR-Utility or “dining room utility”
worker. Id. at ¶15. On September 18, he
reported to a staff member that he'd injured his
shoulder; he said he'd heard a popping in his right
shoulder. Id. at ¶16; Dkt. No. 20-1 at 2, 4. A
few days later, the plaintiff was placed on a medical
restriction. Dkt. No. 18 at ¶18. The restriction
resulted in the plaintiff being unable to perform his
previous job duties. Id. He was off work for four
days, worked again for five days, and was off again for
almost two weeks. Id. at ¶¶19-20. He was
able to work with no restrictions for about three months.
Id. at ¶¶21-22. On February 2, 2015,
however, he was placed on a light duty restriction, which
prohibited him from working any job that required lifting or
pulling. Id. at ¶22. This meant that he could
not work in food service. Id. at ¶23.
light duty restriction was removed three months later, on May
5, 2015, and the plaintiff “was notified he was rehired
to food service for ‘any activity.'”
Id. at ¶24. The plaintiff was hired as a
“DR-Utility worker” in the food service
department on June 7, 2015, id. at ¶25, but
nine months later was returned to light duty, then to no-work
status, and so lost that position, id. at ¶26.
The no-work restriction expired a little over a month
later-April 14, 2016-and on June 27, 2016, the plaintiff was
re-hired as a kitchen relief worker with a “moderate
activity” restriction. Id., ¶29. He
maintained a medical restriction of moderate activity.
Id. at ¶¶27-29.
Health Services Unit (HSU) issues medical restrictions.
Id. at ¶13. In order to make food service
managers were aware of the medical restrictions of inmate
food service workers, HSU had inmate runners update food
service with restriction information throughout the day.
Id. Inmate worker clerks would input the information
into an access program, allowing the information to
automatically appear on the food service worker's daily
timesheet. Id. Inmate worker clerks would print the
timesheets, and defendant Shurpit, as Food Service Manager,
indicated that she checked each timesheet at the beginning of
each shift for medical restrictions. Id. at
day at issue, August 17, 2016, the plaintiff's medical
restriction was listed as “moderate duty.”
Id. at ¶33; Dkt. No. 19-2 at 3. This meant
that, among other things, he was “restricted from work
involving heavy lifting over 50 pounds.” Dkt. No. 18 at
¶30. The plaintiff started work that day at 6:30 a.m.
and worked until 8:15 a.m. Id. at ¶33. While
the defendants state that during that time no one required
the plaintiff to lift over fifty pounds, id., the
plaintiff alleges that Shurpit required him to lift over
sixty pounds or face disciplinary action, despite his
restriction and despite him telling her he had a new, more
limiting restriction in place, dkt. no. 25 at
¶¶30-31, 33. The defendants agree that the
plaintiff had a new work restriction-moderate activity,
“but with special instructions not to engage in
repetitive motion or overhead lifting with his right arm,
” and “he was to lift nothing over 5 lbs. with
his right arm, ” but they indicate that this more
limited restriction was not entered into the automated system
until 9:25 a.m.-after the plaintiff had finished his shift.
The medical staff wouldn't have sent the restriction form
to food services until after they'd entered it into the
automated system. Id. at ¶35. They also
indicate that no one from HSU contacted Shurpit to tell her
about the change. Id. at ¶36. The plaintiff
disagrees-he says he told Shurpit about the change
in the restriction. Dkt. No. 25 at ¶¶33-34.
complaint, the plaintiff alleged that he wrote to defendant
Captain Falke to complain about what Shurpit had done, but he
did not state when he did this. Dkt. No. 1 at p. 2, ¶B5.
Falke asserted that although he looked for it, he could not
find the plaintiff's letter. Dkt. No. 18 at ¶39.
Falke says that if the plaintiff had complained “about
something that happened during an earlier work shift, he
would not have been able to do anything to change it;”
he says he would have told the plaintiff to contact HSU or to
file an inmate complaint. Id. at ¶40.
plaintiff was terminated from food service on August 18,
2016; the stated reason was because the plaintiff had
received an “unsatisfactory work evaluation”
within the first sixty days. Dkt. No. 21-2 at 9-10. Prison
policy at Dodge required all inmates in general population to
have jobs. Dkt. No. 18 at ¶41. The plaintiff had thirty
days from the date he was terminated to find a new job.
Id. at ¶42; Dkt. No. 21-2 at 10. The plaintiff
applied for a new job (as a custodian) on September 28,
2016-over thirty days from the date he was terminated from
food service. Dkt. No. 18 at ¶44. On October 27, 2016,
the programs review committee decided to transfer the
plaintiff to the Wisconsin Secure Program Facility in
Boscobel, partly because he hadn't found a job in thirty
days and partly because he had received a major conduct
report in the days after his job was terminated. Id.
plaintiff filed two inmate complaints about losing his job
and being transferred to Boscobel. Id. at ¶4.
The first was inmate complaint DCI-2016-17910, filed on
August 22, 2016. Dkt. No. 21-3 at 11. In that complaint, the
plaintiff said that on August 16, 2016, he had asked his unit
officer to check to see whether he had any medical
restrictions noted in the computer system. Id. After
learning that he did not, the plaintiff stated that he wrote
to Dr. Hoftiezer on August 17, 2016, asking to have his
medical restrictions entered into the system. Id.
The complaint indicated that Dr. Hoftiezer “promptly
placed in the computer system” those work restrictions.
Id. The complaint indicated that on August 18, 2016,
the plaintiff was “called to the kitchen and given a 12
evaluation.” Id. The complaint asserted that
the plaintiff received the low evaluation as a “direct
result of the doctor posting [his] work restrictions, ”
that he never had received a low evaluation previously and
that he was fired once the medical restrictions “were
brought to light.” Id. at 12. The plaintiff
argued that it was not “appropriate or right
that” he was fired because he was injured.”
Id. The plaintiff's inmate complaint was
dismissed, id. at 3, and his appeal was dismissed,
id. at 8.
second inmate complaint was DCI-2016-24492 filed on November
8, 2016. Dkt. No. 21-4 at 6. This complaint alleged that the
plaintiff was transferred to Boscobel from Dodge in
retaliation and discrimination “due to [his] medical
work restrictions  as well as being punished for the
Adminstrated Complaint that [he] filed against Mrs. Pamela
Shurpit, and Jeffery Cappelle for the termination of [his]
position as a Kitchen Relief because of [his] medical
restrictions.” Id. at 6-7. That complaint was
dismissed, id. at 3, and the plaintiff did not
appeal the dismissal, dkt. no. 18 at ¶7. The plaintiff
asserts that this second complaint “is not relevant to
the claims herein.” Dkt. No. 25 at ¶6.
Standard of Review
judgment is appropriate when 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). All reasonable inferences are construed
in favor of the nonmoving party. Foley v. City of
Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party
opposing the motion for summary judgment must “submit
evidentiary materials that set forth specific facts showing
that there is a genuine issue for trial.” Siegel v.
Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010)
(citations omitted). “The nonmoving party must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Id. Summary judgment is
properly entered against a party “who fails to make a
showing sufficient to establish the ...