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Lindsey v. Walker

United States District Court, W.D. Wisconsin

September 4, 2019

LEIGHTON D. LINDSEY, Plaintiff,
v.
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.

         Pro se 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.

         OPINION

         A. Defendants' Motion for Summary Judgment

         1. Exhaustion of Eighth Amendment claims

         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). 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.

         To 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.

         Plaintiff 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 distributed.

         Plaintiff 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.

         a. CCI-2016-25232 and CCI-2016-25232

         The 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.

         The 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.

         Defendants 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.

         Plaintiff's 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 complaints. ...


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