United States District Court, W.D. Wisconsin
MICHAEL D. TERRELL, Plaintiff,
PAUL LYNCH, ROBERT CHAUSE, JOAN M. HANNULA, LON BECHER, SCOTT R. BASSUENER, ANDREW B. ROSS, JOSEPH R. DEMARTINI, DR. DAN WOLBRINK, and DR. BAER, Defendants.
OPINION AND ORDER
D. PETERSON, District Judge.
plaintiff and former prisoner Michael Terrell alleges that
while he was incarcerated at the Stanley Correctional
Institution, he was forced to perform hard physical labor
despite being disabled. He also alleges that after he harmed
himself, he received inadequate medical care that ultimately
resulted in his kneecap being surgically removed without his
consent. He is proceeding on claims under the Eighth
Amendment, Fourteenth Amendment, and Wisconsin law.
motions are before the court. First, a subset of the state
defendants--Paul Lynch, Robert Chause, and Joan
Hannula--filed a motion for summary judgment on the ground
that Terrell failed to exhaust his administrative remedies
for his claims against them. Dkt. 35. These defendants have shown
that Terrell failed to exhaust his administrative remedies
for his claims against them, so I will grant the motion.
Terrell filed a motion to add claims against two new
defendants who were involved in his medical treatment. Dkt.
40. I will grant that motion.
Terrell filed a motion requesting assistance in obtaining his
medical records from UW Hospital. I will grant that motion as
the Prison Litigation Reform Act, prisoners must exhaust all
available administrative remedies before filing a lawsuit in
federal court about prison conditions. 42 U.S.C. §
1997e(a). To comply with 1997e(a), a prisoner must take each
step within the administrative process, Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which
includes following instructions for filing an 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. The
purpose of these requirements is to give the prison
administrators a fair opportunity to resolve the grievance
without litigation. Woodford v. Ngo, 548 U.S. 81,
88- 89 (2006). Failure to exhaust administrative remedies
under § 1997e(a) is an affirmative defense that must be
proven by the defendants. Davis v. Mason, 881 F.3d
982, 985 (7th Cir. 2018).
state defendants contend that Terrell failed to exhaust his
administrative remedies as to his claims that: (1) Lynch and
Chause violated his Eighth Amendment rights by making him
sleep on a top bunk despite knowing about his medical
problems; (2) Lynch violated his Eighth Amendment rights by
forcing him to work as a cart pusher despite knowing that his
medical conditions made it extremely difficult for him to
perform such work; and (3) Hannula did not excuse him from
work despite knowing that he had a serious injury.
have submitted evidence showing that Terrell did not file any
inmate complaint regarding the top bunk issue, as required by
Wis. Admin. Code. DOC § 310.07. See Dkt. 37-1
(Terrell's inmate complaint history report). Terrell has
not submitted contrary evidence showing that he did file an
inmate complaint about being forced to sleep on the top bunk,
so I will dismiss that claim for Terrell's failure to
exhaust his administrative remedies.
filed an inmate complaint relating to his claim that Lynch
forced him to work as a cart pusher, but the complaint was
rejected by the prison inmate complaint examiner as untimely.
Dkt. 37-2 at 2. Under Wis. Admin. Code DOC § 310.07, an
inmate must file a complaint within 14 days after the
occurrence giving rise to the complaint. Terrell was hired as
a cart pusher in January 2015, and was removed from the
position on April 8, 2015. But he did not file his inmate
complaint until May 18, 2015. Because Terrell filed his
inmate complaint more than 14 days after his removal from the
position, Terrell failed to file his complaint “in the
place, and at the time, the prison's administrative rules
require.” Pozo, 286 F.3d at 1025. Therefore, I
will dismiss his claim against Lynch regarding the cart
pusher position for Terrell's failure to exhaust his
did not file any inmate complaint alleging that defendant
Hannula, or anyone else, failed to excuse him from work
despite knowing that he had a serious injury. Defendants'
evidence shows that Terrell filed several inmate complaints
about Hannula and about the medical treatment he had received
for his knee, Dkt. 37-3; Dkt. 37-4; Dkt. 37-5, but none of
these complaints alleged that Hannula refused to excuse
plaintiff from work. Plaintiff argues in his opposition brief
that he exhausted his administrative remedies by
“making [his] medical restriction known to prison
staff, timely reporting [his] knee injury after symptoms of
pain appeared to the proper prison authorities and requesting
medical attention.” Dkt. 39 at 1. He also submits
several pages from his medical records. But Terrell's
arguments and his medical records show only that Terrell
reported his injury and medical restrictions to staff through
health service requests or inmate complaints about inadequate
medical care. The records do not show that Terrell filed an
inmate complaint regarding Hannula's failure to excuse
him from work. Therefore, I will dismiss that claim for
Terrell's failure to exhaust his administrative remedies.
Terrell's motion to amend his complaint
filed a motion to add claims to his complaint against two new
defendants associated with UW Hospital: Dr. Dan Wolbrink and
Dr. Baer. Dkt. 40. He alleges that on December 23, 2015, Dr.
Dan Wolbrink intentionally injected a higher dose of
corticosteroid into Terrell's knee than had been ordered.
The higher dose caused Terrell's knee cartilage to
deteriorate and led to the removal of Terrell's knee cap.
He also alleges that on May 9, 2016, Dr. Baer was responsible
for approving the surgery to remove Terrell's kneecap. I
will permit Terrell to proceed against Dr. Wolbrink and Dr.
Baer on claims under the Eighth Amendment and Fourteenth
Amendment for the same reasons I permitted Terrell to proceed
against the other UW doctors involved in treating
Terrell's knee problem. Terrell's allegations suggest
that these doctors gave him treatment that he did not want
and that their treatment was so far outside the scope of
accepted medical practice that their decision was not ...