United States District Court, W.D. Wisconsin
ARMIN G. WAND, III, Plaintiff,
CO JOHNSON, BECKY KRAMER, JOLINDA WATERMAN, DR. J. PATTERSON, ERICA BROWN, and SANDY MCARDLE, Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE
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.
Defendant McArdle's Motion for Summary Judgment on
Exhaustion Grounds (dkt. #44)
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.
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).
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.
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).
Motions to Compel and for Judgment (dkt. ##50, 63)
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.
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.
Motion to put a hold on Patterson's assets (dkt.
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
Motions to amend and ...