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Voss v. Marathon County

United States District Court, W.D. Wisconsin

October 31, 2019

DANTE R. VOSS, Plaintiff,
v.
MARATHON COUNTY, SCOTT R. PARKS, SANDRA LA DU-IVES, LINCOLN COUNTY, JEFF JAEGER, DAVE MANNINEN, CORRECT CARE SOLUTIONS, JORGE DOMINICIS, BABATUNDE OKULEYE, RUSSELL CREEL, HOLLY MARON, KRISTIN GAICHE, JESSE BORCHARDT, JOHN MEXNER, and AMY KUBISIAK, Defendants.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Pro se plaintiff and prisoner Dante Voss is proceeding on several claims about his medical care at the Marathon County and Lincoln County jails between 2015 and 2017. Two motions are before the court: (1) a motion for summary judgment filed by defendants Correct Care Solutions, Marathon County, and several individual defendants that Voss failed to exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a), Dkt. 82; and (2) Voss's motion to seal Exhibit 2 to the affidavit of Sheila Westcott, Dkt. 95. Voss concedes that he didn't exhaust his claim under federal law that staff at the Marathon County jail refused to prescribe valium for him, so I will dismiss that claim. But I will deny defendants' motion for summary judgment in all other respects. I will also deny Voss's motion to seal because Voss hasn't overcome the presumption that documents filed with the court shouldn't be sealed when the court relies on them in a decision.

         ANALYSIS

         A. Exhaustion

         1. Overview of the claims and the law

         Voss is proceeding on the following claims:

1. As a result of policies by defendants Marathon County, Correct Care Solutions, Jorge Domincis, Scott Parks, Sandra La Du-Ives, and Russel Creel denied Voss narcotic pain medication on June 2, and June 16-30, 2015, in violation of the Due Process Clause and Wisconsin common law.
2. As a result of policies by defendants Marathon County, Lincoln County, Correct Care Solutions, Jorge Domincis, Jeff Jaeger, Scott Parks, Dave Manninen, Sandra La Du-Ives, and Russell Creel denied Voss's requests for an MRI of his hip, neck, and shoulder, and failed to provide any effective treatment for that pain from 2015 to 2017, in violation of the Due Process Clause and Wisconsin common law.
3. As a result of policies by defendants Marathon County, Lincoln County, Correct Care Solutions, Jorge Domincis, Jeff Jaeger, Scott Parks, Dave Manninen, and Sandra La Du-Ives, Babatunde Okuleye, and Russell Creel refused to prescribe Voss valium to help with nerve pain and post-traumatic stress disorder, in violation of the Due Process Clause and Wisconsin common law.
4. As a result of policies by defendants Marathon County, Correct Care Solutions, Jorge Domincis, Scott Parks, and Sandra La Du-Ives between July 31 and August 3, 2017, and between December 14 and December 18, 2017, defendants Kristin Gaiche, Jesse Borchardt, John Mexner, Holly Maron, and Amy Kubisiak denied Voss migraine and muscle relaxer medications, in violation of the Due Process Clause and Wisconsin common law.
5. Between July 31 and August 3, 2017, and between December 14 and December 18, 2017, defendant Holly Maron failed to provide Voss a second mattress to help with his pain.

         In their opening brief, defendants asked the court to dismiss the first four claims for Voss's failure to exhaust his administrative remedies. Some of those claims include conduct at both Marathon County and Lincoln County jails, but defendant Lincoln County didn't file its own motion for summary judgment, so I will not consider whether Voss has exhausted his administrative remedies as to events that occurred in Lincoln County. In their reply brief, defendants withdrew their challenge to claim (1) about narcotic medication. This leaves defendants' challenge to claims (2), (3), and (4) based on events at the Marathon County jail.

         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), 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 v. Ngo, 548 U.S. 81, 88-89 (2006). A failure to exhaust administrative remedies under § 1997e(a) is an affirmative defense that must be proved by the defendants. Davis v. Mason, 881 F.3d 982, 985 (7th Cir. 2018). But “[i]f administrative remedies are not ‘available' to an inmate, then the inmate cannot be required to exhaust.” Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).

         As I recently pointed out in Voss's other case proceeding in this court, the text of § 1997e(a) makes it clear that the statute applies only to federal claims. See Voss v. Kauer, No. 18-cv-848-jdp, 2019 WL 3802480, at *2 (W.D. Wis. Aug. 13, 2019). Although Voss makes the same point in his opposition brief, defendants don't respond to it. So I will deny defendants' motion as to all of Voss's state-law claims. This leaves federal law claims about three issues: (1) the failure to provide an MRI or to otherwise treat Voss's neck, back, and hip pain; (2) the refusal to prescribe valium; and (3) the refusal to provide migraine medication or muscle relaxers. In his opposition brief, Voss concedes that he didn't exhaust his federal claim related to a valium prescription in Marathon County, see Dkt. 98, at 10, so I will grant defendants' motion as to that claim and dismiss the claim without prejudice. See Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (“[A]ll dismissals under § 1997e(a) should be without prejudice.”). But Voss alleges that staff at ...


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