United States District Court, E.D. Wisconsin
JAMAL D. BIRKLEY, Plaintiff,
DR. MANUEL JOSEPH, KATHY LEMENS, JEAN LUTSEY, and SUSAN PETERS, Defendants.
Stadtmueller, U.S. District Judge.
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.
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. The Court will also address several other
pending motions, and deny as moot Peters' motion for
summary judgment. (Docket #80).
STANDARD OF REVIEW
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).
Exhaustion of Prisoner Administrative Remedies
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).
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). 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).
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).
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.
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.
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.
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.