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Carter v. Griggs

United States District Court, W.D. Wisconsin

September 5, 2019

CARLA GRIGGS, Defendants.



         Plaintiff Johnson Carter is proceeding in this civil action on Eighth Amendment and Wisconsin negligence claims against defendant Carla Griggs for her alleged failure to treat plaintiff's collarbone and shoulder injury in May of 2013 when he was incarcerated at Jackson Correctional Institution. The court recruited counsel for Carter, and on November 21, 2018, Magistrate Judge Stephen Crocker held a pretrial conference, resetting the trial for November 4, 2019, with pretrial filings due September 27, 2019. On May 10, 2019, Carter filed a motion to amend his complaint to add Dr. Wayne Bradford Martin as a defendant, since Dr. Martin was involved in Carter's care for his injury starting in November of 2013. (Dkt. #80.) Defendant opposes the motion and has recently notified the court, pursuant to Federal Rule of Civil Procedure 25, that Dr. Martin passed away on July 19, 2019. The court is denying that motion because adding Dr. Martin as a defendant at this stage would unduly prejudice defendant, and, in any event, the amendment would be futile since Carter did not exhaust his administrative remedies with respect to his proposed claim against Dr. Martin.


         Plaintiff now seeks to proceed on a claim against Dr. Martin based on the following allegations. On November 29, 2013, Dr. Martin examined plaintiff and determined that Carter had a first-degree shoulder separation. That day, Dr. Martin ordered an x-ray of Carter's right shoulder but did not order an activity or work restriction. After Carter's x-ray, Dr. Martin examined him again on December 10, 2013. Dr. Martin noted the shoulder separation again, recommending that Carter see a physical therapist to improve the range of motion of his right shoulder. However, Dr. Martin did not prescribe any additional pain medications, nor did he order an activity restriction. On January 22, 2014, Dr. Martin examined Carter again. At this point, Carter reported that there was no progress with his shoulder and asked if he could be seen for an orthopedic evaluation.


         Under Federal Rule of Civil Procedure 15(a)(2), the court “should freely give leave when justice so requires.” Id. “Leave to amend pleadings is left to the sound discretion of the district court.” Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 860-61 (7th Cir. 2001). The court may deny leave to amend where there has been “undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendants, or where the amendment would be futile.” Gonzalez-Koeneke v. West, 791 F.3d 801, 807 (7th Cir. 2015). Neither party suggests that plaintiff's motion was brought in bad faith or with any dilatory motive. On the contrary, it appears that plaintiff filed the motion to amend on May 10, 2019, promptly following Dr. Martin's deposition. Nonetheless, defendant opposes the addition of a claim against Dr. Martin, arguing that she will suffer undue prejudice and the amendment would be futile.

         I. Undue Prejudice

         In determining whether an amendment causes undue prejudice, the court considers whether an amendment would “substantially alter the course of trial or effectively deny [the opponent] the opportunity (and certainly the reason) to take discovery.” See CMFG Life Ins. Co. v. RBS, Sec. Inc., 799 F.3d 729, 750 (7th Cir. 2015). Plaintiff's position is that defendant will not be prejudiced by adding Dr. Martin as a defendant since (1) there are no new legal theories, (2) no additional discovery is necessary and (3) plaintiff does not intend to ask for an extension of any of the trial deadlines. Defendant disagrees with plaintiff's second and third points, arguing that the amendment would be unduly prejudicial because it would cause defendants to re-depose Carter then file a motion for summary judgment, making the November 2019 trial unfeasible.

         Defendant has a persuasive point; adding Dr. Martin as a defendant will substantially change the scope of this lawsuit and require defendant to incur additional cost. While Carter's treatment record is already established, defendant's focus at summary judgment related to Griggs' decisions as a nurse between May and November of 2013. Dr. Martin's addition at this point would require the court to allow additional discovery related to his decision-making process, related to a different set of facts, which would include allowing defendant to re-depose Carter and allowing Dr. Martin's estate to move for summary judgment. Indeed, Griggs' interactions with Carter were different than Dr. Martin's interactions: his claim against Griggs claim relates to her decisions in May 2013, and the Dr. Martin timeline starts in November 29, 2013. Thus, defendant would seek to conduct discovery related to Carter's subsequent treatment for his shoulder, which would include evidence from Dr. Duelleman, an orthopedic specialist that treated Carter after Dr. Martin. In short, adding a claim against Dr. Martin now would require defendant to incur substantial expense, and the time it would take to conduct discovery and pursue summary judgment would make the November trial untenable. While the court understands that plaintiff's counsel was recruited late in this case and appreciates how quickly efforts were made to seek leave to add Dr. Martin as a defendant, defendant undoubtedly would be prejudiced by the delays necessary to allowing plaintiff to litigate this claim against Martin.

         II. Futility

         More problematic for plaintiff is that a claim against Dr. Martin would not survive a motion for summary judgment on the ground that plaintiff failed to exhaust his administrative remedies with respect to this claim, rendering the addition of Dr. Martin futile. The parties have submitted what appears to be the undisputed record of plaintiff's purported efforts to exhaust his proposed claim against Dr. Martin. Having reviewed those materials, the court finds that defendants would be able to prove that plaintiff failed to exhaust a deliberate indifference/medical negligence claim against Dr. Martin. Accordingly, without delving into whether plaintiff's claim against Dr. Martin would fail on the merits at the summary judgment phase (which would be premature on this undeveloped record), the court concludes that the amendment would be futile, due to plaintiff's failure to exhaust this claim.

         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.” The exhaustion requirement is mandatory, Woodford v. Ngo, 548 U.S. 81, 85 (2006), and “applies to all inmate suits, ” Porter v. Nussle, 534 U.S. 516, 524 (2002).

         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, 548 U.S. at 88-89.

         In Wisconsin, the administrative code sets out the process for a prisoner to file a grievance and appeal an adverse decision. Wis. Admin. Code. §§ DOC 310.07-13 (prisoner first files grievance with inmate complaint examiner; prisoner may appeal adverse decision to corrections complaint examiner and then to department secretary). A failure to follow these rules may require dismissal of the prisoners case. Perez v. Wisconsin Dept. of Corrections,182 F.3d 532, 535 (7th Cir. 1999). But a failure to exhaust ...

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