United States District Court, W.D. Wisconsin
WILLIAM M. CONLEY DISTRICT JUDGE.
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.
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.
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
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.
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
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.
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).
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.
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 ...