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Birkley v. Joseph

United States District Court, E.D. Wisconsin

August 27, 2019

JAMAL D. BIRKLEY, Plaintiff,


          J.P. Stadtmueller, U.S. District Judge.

         Plaintiff, a prisoner proceeding pro se, filed a complaint against Manuel Joseph (“Joseph”), Kathy Lemens (“Lemens”), Jean Lutsey (“Lutsey”) and Susan Peters (“Peters”) (collectively “Defendants”), alleging violations of his constitutional rights when he was not properly treated for an injury at Green Bay Correctional Institution (“GBCI”). (Docket #1). On October 18, 2018, Magistrate Judge William E. Duffin screened the complaint and allowed Plaintiff to proceed on his claim for deliberate indifference to a serious medical need in violation of the Eighth Amendment. (Docket #16). The case was subsequently reassigned to this branch of the Court for disposition.

         Shortly thereafter, Defendants filed motions for partial summary judgement, in which they argued that Plaintiff failed to exhaust his administrative remedies as to some of the claims in his complaint. (Docket #31, #38). Those motions are now fully briefed, and for the reasons explained below, will be granted.[1] The Court will also address several other pending motions, and deny as moot Peters' motion for summary judgment. (Docket #80).


         1.1 Summary Judgment

         Federal Rule of Civil Procedure 56 provides that the Court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016).

         1.2 Exhaustion of Prisoner Administrative Remedies

         The Prison Litigation Reform Act (“PLRA”) establishes that, prior to filing a lawsuit complaining about prison conditions, a prisoner must exhaust “such administrative remedies as are available[.]” 42 U.S.C. § 1997e(a). To do so, the prisoner must “file complaints and appeals in the place, and at the time, the prison's administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). He must do so precisely in accordance with those rules; substantial compliance does not satisfy the PLRA. Id.; Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005). A suit must be dismissed if it was filed before exhaustion was complete, even if exhaustion is achieved before judgment is entered. Perez v. Wis. Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999). Several important policy goals animate the exhaustion requirement, including restricting frivolous claims, giving prison officials the opportunity to address situations internally, giving the parties the opportunity to develop the factual record, and reducing the scope of litigation. Smith v. Zachary, 255 F.3d 446, 450-51 (7th Cir. 2001). Failure to exhaust administrative remedies is an affirmative defense to be proven by Defendants. Westefer v. Snyder, 422 F.3d 570, 577 (7th Cir. 2005).

         The Wisconsin Department of Corrections maintains an Inmate Complaint Review System (“ICRS”) to provide a forum for administrative complaints. Wis. Admin. Code § DOC 310.04. There are two steps an inmate must take to exhaust their administrative remedies under the ICRS. First, the inmate must file an offender complaint with the Institution Complaint Examiner (“ICE”) within fourteen days of the events giving rise to the complaint. Id. § DOC 310.07(2). The ICE may reject the complaint or return the complaint to the inmate and allow him or her to correct the issue(s) and re-file within ten days. See Id. § DOC 310.10(5), (6). If the complaint is rejected, the inmate may appeal the rejection to the appropriate reviewing authority within ten days. Id. § DOC 310.10(10).[2] If the complaint is not rejected, the ICE issues a recommendation for disposing of the complaint, either dismissal or affirmance, to the reviewing authority. Id. § DOC 310.10(9), (12). The reviewing authority will affirm or dismiss the complaint in whole or in part, or return the complaint to the ICE for further investigation. Id. § DOC 310.11(2).

         Second, if the ICE recommends dismissal and the reviewing authority accepts it, the inmate may appeal the decision to the Corrections Complaint Examiner (“CCE”) within fourteen days. Id. §§ DOC 310.09(1), 310.12. The CCE issues a recommendation to the Secretary of the Department of Corrections who may accept or reject it. Id. §§ DOC 310.12(2), 310.13. Upon receiving the Secretary's decision, or after ninety days from the date the Secretary received the recommendation, the inmate's administrative remedies are exhausted. Id. § DOC 310.13(4).

         2. RELEVANT FACTS

         In April 2016, Plaintiff tore his anterior cruciate ligament (“ACL”) during a basketball game while incarcerated at GBCI. The injury was never treated, and, over time, the tear worsened, resulting in extreme pain and limited mobility for Plaintiff.

         In July 2017, Plaintiff alerted medical staff at GBCI to his worsening condition by submitting complaint GBCI-2017-18761. In this complaint, Plaintiff alleged that Joseph and Lutsey denied him proper medical treatment by failing to provide a knee brace in restrictive housing, and by failing to give him effective pain medication. The complaint was rejected and appealed to the CCE, who dismissed the complaint on the grounds that the knee brace had not been deemed medically necessary in restrictive housing, and the Plaintiff had otherwise been receiving care. See (Docket #48-1 at 9). The Secretary affirmed the dismissal. Id. at 10.

         On September 5, 2017, Plaintiff submitted GBCI-2017-22633, in which he complained that as a result of his untreated ACL, his leg gave out and he fell in his cell. (Docket #34-4 at 11). After his fall, he alleged that GBCI staff, including correctional officers Greer and Howard, as well as Nurse Baier, failed to provide him with medical attention. The complaint was rejected on the grounds that Plaintiff had a plan of care, and therefore was not being denied medical attention. Plaintiff appealed the rejection to the CCE, who dismissed the complaint. (Docket #34-4 at 9). The Secretary affirmed the dismissal. Id.

         On September 13, 2017, Plaintiff submitted GBCI-2017-23334, in which he alleged that GBCI delayed in treating the pain associated with his torn ACL, and had denied him medical treatment. Specifically, he explains that Peters denied him a medical shower chair, which he needed because he could not bear weight on his leg for long periods of time. The complaint was rejected because “showers don't happen for long periods of time;” because the chair had been deemed not medically necessary for a torn ACL; and because the ACL tear was not confirmed. (Docket #34-5 at 2). Evidently, the complaint examiner believed that the ACL injury occurred before Plaintiff was in prison, which Plaintiff disputes. The reviewing authority approved the complaint examiner's rejection, but modified the rejection to include MRI results to confirm the ACL tear. Id. ...

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