United States District Court, W.D. Wisconsin
LEIGHTON D. LINDSEY, Plaintiff,
LINDSAY WALKER, MICHAEL DITTMANN, JON LITSCHER, C.O. NEUSTADER, C.O. CAMBRON, C.O. JOHNS and RICHARD GIROUX, Defendants.
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE.
plaintiff Leighton D. Lindsey filed this action under 42
U.S.C. § 1983, contending that, in 2016 and 2017, prison
staff at the Columbia Correctional Institution repeatedly
gave him the wrong medications in violation of his rights
under the Eighth Amendment and state negligence law. Now
before the court is defendants' motion for summary
judgment based on plaintiff's failure to exhaust his
administrative remedies for his federal claims and failure to
file a notice of claim required by Wisconsin law for his
state law claims. Dkt. #18. As explained below, I will grant
the motion in part and deny it in part. Also before the court
is plaintiff's motion to amend his complaint to add
additional claims and defendants. Dkt. #15. I will grant the
motion to amend his complaint as set forth below.
Defendants' Motion for Summary Judgment
Exhaustion of Eighth Amendment claims
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). This 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.
exhaust administrative remedies in Wisconsin, inmates must
follow the inmate complaint review process set forth in the
Wisconsin Administrative Code ch. DOC 310. Under these
regulations as they existed in 2016 and 2017, prisoners start
the complaint process by filing an inmate complaint with the
institution complaint examiner within 14 days of the
occurrence giving rise to the complaint. Wis. Admin. Code
§ DOC 310.09. The complaint examiner may investigate
inmate complaints, reject them for failure to meet filing
requirements, recommend a disposition to the appropriate
reviewing authority (the warden or the warden's designee)
or direct the inmate to attempt to resolve the complaint
informally. Id. §§ 310.07(2), 310.09(4),
310.11, 310.12. If the institution complaint examiner makes a
recommendation that the complaint be granted or dismissed on
its merits, the appropriate reviewing authority may dismiss,
affirm or return the complaint for further investigation.
Id. § 310.12. If an inmate disagrees with the
decision of the reviewing authority, he may appeal.
Id. § 310.13. If the institution complaint
examiner rejects a grievance for procedural reasons without
addressing the merits, an inmate may appeal the rejection.
Id. § 310.11(6). The reviewing authority's
decision on the rejection is final. Id.
is proceeding in this case on Eighth Amendment claims that
defendants acted with deliberate indifference to a serious
risk of harm to plaintiff when (1) defendant Johns delivered
the wrong medication to him and then failed to contact health
services about it on October 30 and November 22, 2016; (2)
defendant Giroux refused to contact health services on
November 2, 2016, after plaintiff told him that he had taken
the wrong medication; (3) defendant Cambron delivered the
wrong medication to plaintiff on March 31, 2017 and then
failed to contact health services about it; (4) defendant
Neustader delivered the wrong medication twice on April 23,
2017; and (5) defendants Walker, Dittmann and Litscher new
that correctional officers in the segregation unit were
routinely giving prisoners the wrong medications but they
refused to make any changes in the way medications were
filed four inmate complaints related to his claims, but
defendants argue that plaintiff failed to exhaust any of the
inmate complaints. I discuss the parties' arguments as to
each complaint below.
CCI-2016-25232 and CCI-2016-25232
first two inmate complaints that plaintiff filed were about
defendant Johns's alleged medication errors. On October
31, 2016, plaintiff filed inmate complaint CCI-2016-25232
regarding Johns's October 30, 2016 medication error. Dkt.
#21-2 at 16. The inmate complaint examiner recommended
dismissal and the warden dismissed the complaint on December
23, 2016. Id. at 2-4. Plaintiff appealed, and on
December 30, 2016, the corrections complaint examiner
recommended that the complaint be returned for a
“prioritized investigation” and recoding as a
medical complaint to be reviewed by health services, rather
than the warden. Id. at 7. The Office of the
Secretary returned the complaint on January 16, 2017 for a
“prioritized investigation.” Id. at 8.
After the complaint was returned, the inmate complaint
examiner recoded the complaint as medical and again
recommended dismissal. Id. at 9-10. This time, the
health services manager acted as the reviewing authority and
dismissed the complaint. Id. at 11. The dismissal
stated that if plaintiff was dissatisfied with a decision he
could file an appeal within 10 calendar days of the date of
the decision. Id. Plaintiff did not appeal that
dismissal to the corrections complaint examiner.
second inmate complaint plaintiff filed was CCI-2016-25232,
regarding defendant Johns's and Giroux's November 2,
2016 medication error. Dkt. #21-3 at 13-14. This inmate
complaint was handled in the same way as the previous
complaint against Johns. The inmate complaint examiner
recommended that the complaint be dismissed, and the warden
dismissed it on December 23, 2016. Id. at 2-3.
Plaintiff appealed the dismissal, and the corrections
complaint examiner recommended that the complaint be returned
for prioritized investigation and recoding as a medical
complaint for review by the correct reviewing authority.
Id. at 6. The Office of the Secretary agreed, and
the complaint was returned on January 19, 2017 for a priority
investigation. Id. at 7. The inmate complaint
examiner again recommended dismissal, and the appropriate
reviewing authority dismissed the complaint on February 9,
2017. Id. at 8-9. The dismissal stated that if
plaintiff was dissatisfied with a decision he could file an
appeal within 10 calendar days of the date of the decision.
Id. Plaintiff did not appeal that dismissal to the
corrections complaint examiner.
contend that because plaintiff did not appeal the dismissals
of his inmate complaint by the health services manager, who
was the correct reviewing authority, he failed to exhaust his
administrative remedies. In response, plaintiff contends that
he did not know he had to appeal dismissal of his inmate
complaints “twice.” He says that the regulations
require only one appeal and do not explain clearly that he
needed to appeal again.
arguments are not persuasive. Under Wis. Admin. Code §
DOC 310.13, inmates may appeal if they are dissatisfied with
the decision of the reviewing authority. Although plaintiff
appealed the warden's decisions dismissing his
complaints, the Office of the Secretary did not review the
merits of plaintiff's complaints. Instead, the secretary
returned the complaints to the prison so that they could be
investigated and reviewed by the health services manager.
After the health services manager dismissed the complaints,
plaintiff was notified that he had 10 days to appeal an
unfavorable decision. He failed to appeal and thus, deprived
the secretary of the opportunity to review the merits of his