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Wand v. Johnson

United States District Court, W.D. Wisconsin

December 10, 2019

ARMIN G. WAND, III, Plaintiff,



         Pro se plaintiff Armin G. Wand, III, a prisoner at the Wisconsin Secure Program Facility (“WSPF”), is proceeding in this lawsuit pursuant to 42 U.S.C. § 1983, on claims that defendants CO Johnson, Becky Kramer, Jolinda Waterman, Dr. J. Patterson, Erica Brown and Sandy McArdle violated his rights under the Eighth Amendment and state law by delaying or failing to provide him with adequate medical care for his appendicitis and subsequent complications. This opinion and order resolves the following motions: (1) McArdle's motion for summary judgment on the ground that Wand failed to exhaust his administrative remedies with respect to his claim against her (dkt. #44) will be granted in part and denied in part; (2) Wand's motion to compel (dkt. #50) will be denied; (3) Wand's motion for judgment against McArdle for failure to respond to his motion to compel (dkt. #63) will be denied; (4) Wand's motion to put a hold on defendant Patterson's assets (dkt. #49) will be denied; (5) Wand's motions to amend (dkt. ##33, 42) will be granted; (6) Wand's motion for assistance in recruiting counsel (dkt. #17) will be denied without prejudice; and (7) Wand's three motions for extension (dkt. ##68, 71, 74) will be denied.


         I. Defendant McArdle's Motion for Summary Judgment on Exhaustion Grounds (dkt. #44)

         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, a prisoner also must “properly take each step within the administrative process” to comply with § 1997e(a). Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). This includes following instructions for filing the initial grievance, Cannon v. Washington, 418 F.3d 714, 718 (7th Cir. 2005), and filing all necessary appeals, Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005), that are “in the place . . . at the time, [as] the [institution's] administrative rules require.” Pozo, 286 F.3d at 1025.

         The purpose of this exhaustion requirement 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); see Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013) (“once a prison has received notice of, and an opportunity to correct, a problem, the prisoner has satisfied the purpose of the exhaustion requirement”). If a prisoner fails to exhaust administrative remedies before filing his lawsuit, then the court must dismiss the case. Perez v. Wisconsin Dept. of Corr., 182 F.3d 532, 535 (7th Cir. 1999). Because exhaustion is an affirmative defense, however, defendants bear the burden of establishing that plaintiff failed to exhaust. Jones v. Bock, 549 U.S. 199, 216 (2007).

         Defendant McArdle seeks judgment in her favor on Wand's claim that she violated his Eighth Amendment rights by (1) misdiagnosing his appendicitis as the flu, thus delaying his treatment, and (2) cancelling Wand's follow-up appointments following Wand's appendectomy. To start, however, McArdle did not need to seek judgment on a claim that she misdiagnosed Wand, since Wand did not allege in his complaint that McArdle was involved in his care before his appendectomy. Indeed, the court only granted Wand leave to proceed against McArdle with respect to her alleged involvement in cancelling Wand's appointments after his appendectomy. (4/17/19 Order (dkt. #16) 8-9.) Wand asserts in his opposition materials that McArdle was “aware of [his] pain and suffering in his stomach, and failed to treat him with adequate medical care, which put [him] in the hospital in the ER to have his appendi[x] taken out.” (Pl. Opp'n Br. (dkt. #53) 2.) However, Wand has not sought to amend his complaint to include allegations implicating McArdle in the initial delay of treatment. As such, the court will deny this aspect of McArdle's motion for summary judgment as unnecessary.

         As for Wand's claim that McArdle cancelled his follow-up appointment, McArdle raises two grounds for relief: (1) Wand's only inmate complaint relating to McArdle's treatment, WSPF-2018-6395, was untimely, and (2) the complaint complained about the delays in treatment, not that his post-surgery appointments were cancelled. McArdle's second point is well-taken: WSPF-2018-6395 included allegations that another nurse misdiagnosed him with the flu rather than appendicitis. (See Wand Ex. 1-A (dkt. #53-1).) Wand does not dispute that he failed to submit an inmate complaint about his cancelled appointments, and instead argues that he should be excused from the exhaustion requirement based on the merits of his claim. However, a good faith, but incomplete attempt at exhaustion is insufficient, Smith v. Zachary, 255 F.3d 446, 450 (7th Cir. 2001), and the potential merit of a claim is irrelevant when considering whether a prisoner adequately exhausted administrative remedies, Perez v. Wis. Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999). Accordingly, McArdle has met her burden to prove that Wand did not exhaust his claim that she cancelled his follow-up appointments following his appendectomy. Therefore, her motion for summary judgment will be granted in part and denied in part. Wand's deliberate indifference against McArdle will be dismissed without prejudice, and the court will relinquish supplemental jurisdiction over Wand's related negligence claim against her as well. See 28 U.S.C. § 1367(c)(3); Burritt v. Ditlefson, 807 F.3d 239, 252 (7th Cir. 2015).

         II. Motions to Compel and for Judgment (dkt. ##50, 63)

         Wand has also filed a motion to compel, seeking an order requiring all defendants to respond to his discovery requests. However, defendants Johnson, Kramer and Waterman respond that they were never served with discovery requests, and that Wand instead chose to file his requests for admissions despite the Clerk of Court's August 29, 2019, letter explaining that discovery should not be filed with the court. (See dkt. #37.) These defendants further represent that Wand never attempted to resolve the dispute informally, as required by Federal Rule of Civil Procedure 37(a)(1). Defendant McArdle responds that Wand sent her discovery requests that were received on September 4, 2019, and that she timely responded, having placed her responses in the mail addressed to Wand on September 30, 2019. (Dkt. #61.) McArdle also further points out that Wand never attempted to resolve the discovery dispute informally, as required by Rule 37(a)(1). Wand has not responded to defendants' representations, so the court infers that he does not dispute them. As such, Wand's motion to compel will be denied as premature. Wand is free to serve his discovery requests on defendants and re-file a motion to compel if defendants fail to respond after he attempts to resolve the dispute informally with them.

         Relatedly, Wand seeks judgment against McArdle on the ground that her response to his motion to compel was untimely. However, McArdle filed her response on October 10, 2019, the deadline set by the court. (Dkt. #61.) Moreover, absent extreme circumstances not present here, an untimely response to a motion to compel is not a valid basis to grant judgment in a party's favor. Accordingly, Wand's motion for judgment against her is denied.

         III. Motion to put a hold on Patterson's assets (dkt. #49)

         Next Wand seeks an order freezing James Patterson's bank account and placing a lien on his paychecks, house and car, on the ground that the Clerk of Court's Entry of Default against defendant Patterson (dkt. #43) entitles him to monetary damages against him. However, the entry of default does not entitle Wand to monetary damages against Patterson. Rather, Wand will need to succeed on a motion for default judgment, following the requirements of Federal Rule of Civil Procedure 55(b)(2). At this time, therefore, the court is denying this motion, subject to renewal if Wand is successful in pursuing a motion for default judgment pursuant to Rule 55(b)(2).

         IV. Motions to amend and ...

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