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Yerks v. Shurpit

United States District Court, E.D. Wisconsin

July 29, 2019

JAMMIE L. YERKS, Plaintiff,



         Plaintiff 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 defendants' motion.

         I. Facts

         During 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.

         In 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.

         The 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.

         The 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 ¶¶12, 14.

         On the 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.

         In his 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.

         The 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. at ¶45.

         The 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.

         The 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.

         II. Standard of Review

         Summary 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 ...

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