United States District Court, W.D. Wisconsin
THOMAS D. HARRIS, Plaintiff,
v.
BRIAN SCHALLER, GREG HEITZKEY, CHRIS STEVENS, BRIAN VANLOO, CHAD FRAPPIER, MARILYN VANTERKINTER, WARDEN WILLIAM POLLARD, MICHAEL DELVAUX, WILLIAM SWIEKATOWSKI, TODD KAZIK, STEVE SCHILLER, ALAN DEGROOT, MICHAEL RHODES, and ESTATE OF STEPHANIE SEQUIN, Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE.
Plaintiff
Thomas D. Harris was granted leave to proceed on a variety of
constitutional claims against various correctional officers,
nurses and others at Green Bay Correctional Institution.
(8/1/17 Op. & Order (dkt. #8).) Before the court are two
motions by defendants: (1) a motion by defendants Schaller,
Heitzkey, Stevens, Frappier, Vanloo, Rhoades, Delvaux,
Swiekatowski, Pollard and Vanterkinter, and joined by the
Estate of Sequin, seeking partial judgment as to
plaintiffs' claims of excessive force, deliberate
indifference and retaliation arising out of incidents that
occurred between February and May of 2007, as time-barred
(dkt. ##18, 33); and (2) a motion for partial summary
judgment for failure to exhaust administrative remedies as to
plaintiff's claims for First Amendment retaliation and
denial of access to court based on 2013 incidents asserted
against defendants Schiller, Kazik and DeGroot (dkt. #20).
For the reasons that follow, the court will grant both
motions and direct the entry of final judgment.
BACKGROUND
Collectively,
these two motions seek judgment in defendants' favor as
to all claims asserted by the plaintiff. As noted above, the
underlying plaintiff's claims concern two distinct
periods of time: (1) a 2007 incident giving rise to his
claims for excessive force, denial of medical treatment and
retaliation; and (2) 2013 incidents giving rise to his claims
for retaliation and denial of access to courts claim.
Accordingly, the factual summaries below are similarly
divided, with the first derived from plaintiff's
pleadings, and the second from the parties' summary
judgment submissions, both viewed in a light most favorable
to plaintiff.
A.
2007 Incidents
Plaintiff
alleges that he was subjected to excessive force on February
20, 2007. (Compl. (dkt. #1) ¶¶ 1-30.) He filed a
grievance about this use of force on March 7, 2007, which was
forwarded to the Warden on April 24, 2007, who denied his
request for relief. On May 2, 2007 the Warden also informed
plaintiff that he was being written up for lying about staff.
Plaintiff appealed that conduct report to the Corrections
Complaint Examiner, with the final decision issued June 15,
2007. (Pl.'s Opp'n (dkt. #41) 2 (citing Exs. 2-11
(dkt. #41-1)).)
Plaintiff's
deliberate indifference claim is asserted against certain
defendants for failure to provide medical care for injuries
allegedly incurred during the February 20, 2007, use of
force. (Compl. (dkt. #1) ¶¶ 35-42.) In his present
complaint, he specifically alleges that he suffered from
extreme pain due to the denial of medication from February 20
until his last date of pain on May 23, 2007. (Id. at
¶ 42.) Plaintiff filed a grievance about the lack of
medical care on May 14, 2007; and in his opposition brief in
his case, plaintiff represents that the administrative
process for matters in his complaint was completed on June 4,
2007. (Pl.'s Opp'n (dkt. #41) 3 (citing Exs. 12-21
(dkt. #41-2).)
As for
plaintiff's retaliation claim, plaintiff alleges that the
February 20, 2007, physical assault was in retaliation for
his threat to file a complaint against defendant Schaller and
that the subsequent disciplinary action was in retaliation
for his actually filing an inmate grievance about the
February 20th attack. (Compl. (dkt. #1) ¶¶ 43-56.)
Plaintiff filed his grievance for the retaliation on July 23,
2007, and the administrative process was completed on
September 25, 2007. (Pl.'s Opp'n (dkt. #41) 4 (citing
Exs. 23, 27-30 (dkt. #41-3)).)
Plaintiff
pursued his first lawsuit arising out of the February 20th
attack on June 11, 2013.[1] Harris v. Schaller, No.
13-cv-408-wmc (W.D. Wis. June 11, 2013). In an order dated
July 30, 2013, the court dismissed plaintiff's complaint
for failure to pay the initial partial fee payment.
Id. (dkt. #7). The order also provided “Harris
may seek leave to reopen this case only if he makes
the initial partial filing fee payment of $149.50 within ten
days. Otherwise, Harris must re-file his complaint as a new
case.” Id. In his present complaint, plaintiff
acknowledges that on August 3, 2013, he received two letters
from the district court, one requiring him to pay a partial
filing fee of $149.50 by July 12, 2013, and the second dated
July 30, 2013, ordering plaintiff's action dismissed for
failure to pay the filing fee. (Compl. (dkt. #1) ¶¶
72-75.)
B.
Exhaustion of Claims Concerning 2013 Incidents
As set
forth in his complaint as well as in this court's order
granting him leave to proceed, plaintiff also alleges
retaliation and access to court claims based on certain
defendants' taking and failing to return his legal
materials. Specifically, plaintiff alleges that on June 18,
2013, he was placed in temporary lock-up (“TLU”)
and his property, including his legal materials, were packed
up and supposedly stored. (Compl. (dkt. #1) ¶ 59.) He
was not given his legal materials -- which included the June
11, 2013, complaint filed in this court and the evidence in
support of that complaint -- while on TLU status.
(Id. at ¶ 60.) Plaintiff was transferred from
TLU to the general population on August 3, 2013, but his
legal materials were not returned. (Id. at ¶
72.) Beginning on August 6, 2013, and continuing into 2015,
plaintiff filed a number of inmate complaints and sent
letters to DOC officials complaining about destruction of his
legal materials and/or seeking their return. (Id. at
¶¶ 64-71, 81-99.)
OPINION
I.
Statute of Limitations of Claims Based on 2007
Incident
As for
the first motion -- seeking judgment on the pleadings of
plaintiffs' claims arising out of the 2007 incident as
time-barred -- defendants persuasively argue that
plaintiff's claims premised on this incident would have
had to have been filed in 2013 to be timely. (See
Defs.' Br. (dkt. #19) 3 (citing Wis.Stat. § 893.53
(six-year statute of limitations for tort claims); Wudtke
v. Davel, 128 F.3d 1057, 1061 (7th Cir. 1997) (applying
§ 893.53 period to § 1983 claims)).) Specifically,
with respect to plaintiff's excessive force claim,
defendants content that the claim accrued at the time of the
force, February 20, 2007, and, therefore, the deadline for
filing the claim was February 20, 2013, six years
later.[2] As for the deliberate indifference claim,
defendants allege that plaintiff's claim accrued on May
23, 2007, the date plaintiff claims his pain ended, and
therefore the deadline for filing that claim ...