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Voss v. Kauer

United States District Court, W.D. Wisconsin

August 13, 2019

DANTE R. VOSS, Plaintiff,
v.
NATHAN R. KAUER, JOHN R. DENOVI, SCOTT PARKS, and MARATHON COUNTY, Defendants.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Pro se plaintiff and prisoner Dante Voss is proceeding on claims that Marathon County, its sheriff, and two correctional officers violated his federal and state rights by using excessive force against him and failing to provide needed medical care when he was brought to the Marathon County jail in July 2016. Two motions are before the court: (1) defendants' motion for summary judgment on the ground that Voss failed to exhaust his administrative remedies in accordance with 42 U.S.C. § 1997e(a), Dkt. 34; and (2) Voss's motion to seal a portion of the record, Dkt. 41.

         I conclude that: (1) § 1997e(a) doesn't apply to Voss's state law claims; (2) defendants have failed to show that Voss failed to exhaust all available administrative remedies as to his claim under the U.S. Constitution for excessive force; and (3) Voss failed to exhaust his claim under the U.S. Constitution that defendants Nathan Kauer and John Denovi failed to provide medical care. So I will grant defendants' motion for summary judgment on Voss's federal medical care claim, but I will otherwise deny defendants' motion. I will also grant Voss's motion to seal medical records that defendants filed with their motion.

         ANALYSIS

         A. Exhaustion of administrative remedies

         Voss is proceeding on the following claims: (1) defendants Nathan Kauer and John Denovi used excessive force against Voss when he arrived at the Marathon County jail, in violation of the Constitution and the Wisconsin common law of assault and battery; and (2) Kauer and Denovi failed to provide medical care to Voss after the use of force, in violation of the Constitution and the Wisconsin common law of negligence. Plaintiff is also suing Scott Parks and Marathon County under the doctrine of respondeat superior.

         Defendants contend that they are entitled to dismissal of all of these claims because Voss failed to exhaust his administrative remedies. Under 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, to comply with § 1997e(a), a prisoner must “properly take each step within the administrative process, ” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which includes following instructions for filing the initial grievance, Cannon v. Washington, 418 F.3d 714, 718 (7th Cir. 2005), as well as filing all necessary appeals, Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005), “in the place, and at the time, the prison's administrative rules require.” Pozo, 286 F.3d at 1025. The purpose of these requirements 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). A failure to exhaust administrative remedies under § 1997e(a) is an affirmative defense that must be proved by the defendants. Davis v. Mason, 881 F.3d 982, 985 (7th Cir. 2018).

         One qualification in § 1997e(a) that neither side acknowledges is that it applies only to claims “under section 1983 of this title, or any other Federal law.” So § 1997e(a) doesn't apply to any of Voss's state law claims, and I will deny defendants' motion for summary judgment as to those claims. As for Voss's federal claims, I conclude that defendants have failed to show that they are entitled to dismissal of Voss's excessive force claim, but I will grant their summary judgment motion on his claim for inadequate medical care.

         1. Excessive force

         Defendants acknowledge that Voss filed a grievance in which he complained about the July 2016 use of force. See Dkt. 38-2. But they say that Voss didn't file an administrative appeal, as required by the jail grievance policy. Voss says that he didn't file an appeal because he didn't know he was supposed to. Although he was aware that he could file a grievance, he never received a copy of the grievance policy or otherwise learned about a right to appeal.

         “It is not incumbent on the prisoner to divine the availability of grievance procedures.” Hernandez v. Dart, 814 F.3d 836, 84243 (7th Cir. 2016) (internal quotations omitted). Rather, defendants must prove that jail officials informed Voss about what he was required to do to exhaust his administrative remedies. Id. In this case, defendants have not pointed to any evidence that Voss was aware of his right to appeal. They don't dispute Voss's statement that he never received a copy of the grievance policy and they don't cite testimony in their opening brief that anyone otherwise informed him that he could appeal a grievance.

         In their reply brief, defendants cite a new declaration of the jail administrator, who avers that Voss “was notified of the jail rules including the grievance procedures” and that “[i]nmates who utilize the kiosk system to file grievances at the Marathon County Jail are again informed via the kiosk system [about] the appeals procedures.” Dkt. 59, at ¶¶ 5-6.[1] The administrator also avers that Voss had been housed at the jail several times before July 2016, id., ¶ 4, which defendants say is evidence that he must have known how to complete the grievance process.

         It is well established that a party may not rely on new evidence in a reply brief when the opposing party doesn't have an opportunity to respond. Black v. TIC Investment Corp., 900 F.2d 112, 116 (7th Cir. 1990). But even if I consider the jail administrator's declaration, it doesn't show that Voss failed to exhaust his administrative remedies.

         As for the statement that Voss “was notified of the jail rules, including the grievance procedures, ” the administrator provides no foundation for it. She doesn't allege that she informed Voss personally and she doesn't identify who did. In any event, informing a detainee that a grievance procedure exists is not the same thing as providing a copy of those procedures or informing the detainee of his right to appeal a grievance. ...


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