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Franklin v. Dittman

United States District Court, W.D. Wisconsin

January 6, 2020

MICHAEL DITTMAN, et al., Defendants.



         Pro se plaintiff Harrison Franklin has been granted leave to proceed in this lawsuit against certain employees of the Wisconsin Department of Corrections on Eighth Amendment deliberate indifference claims related to alleged deficient care for his diabetes and blood pressure, as well as First Amendment claims related to their alleged harassment of Franklin for complaining about the deficient care. Twenty of the twenty-one defendants are represented by the Wisconsin Department of Justice, so the court refers to them as the “State Defendants.” The remaining defendant, Tim Deters[1] (who is no longer employed by the state and represented by separate counsel), will be referenced individually. Following an in-person hearing and multiple telephonic conferences related to Franklin's diabetes treatment and testing protocols, the court issued, and has since modified, a preliminary injunction to ensure that Franklin is permitted consistent opportunities to test his blood on a set schedule, eat breakfast following his morning glucose test, administer proper insulin dosages, and record his readings. (See 5/10/2019 Order (dkt. #54); 6/3/2019 Order (dkt. #67); 8/16/2019 Order (dkt. #86).) Moreover, the court's review of the documentation provided by the State Defendants suggest that they are complying with the terms of this now modified injunction.

         This opinion does not address the injunction, but rather resolves motions currently pending by defendant Tim Deters, for partial summary judgment (dkt. #76) and plaintiff Franklin, for appointment of a medical expert witness (dkt. #95), for assistance in recruiting counsel (dkt. #96), to compel (dkt. #100), and for sanctions (dkt. #101). For the reasons that follow, the court will deny all of these motions, but Franklin's motions for assistance in recruiting counsel and for appointment of a medical expert will be denied without prejudice.

         I. Defendant Deters' Motion for Partial Summary Judgment (dkt. #76)

         As noted above, in addition to an Eighth Amendment medical care deliberate indifference claim, Franklin is proceeding on a First Amendment retaliation claim, based on allegations that defendant Deters and others denied him access to recreation because he complained about how his insulin was being administered. Deters seeks summary judgment on this claim on the ground that Franklin failed to exhaust his administrative remedies with respect to this claim.

         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 a plaintiff failed to exhaust. Jones v. Bock, 549 U.S. 199, 216 (2007).

         On September 19, 2017, Franklin submitted inmate complaint CCI-2017-26171 against defendants Sergeant Johnson and Unit Manager Fink for denying him recreation privileges because he refused to discuss his medical needs with them. (Ex. A to Reid Decl. (dkt. #79-1) at 8.) Franklin also claimed: “Even after I repeatedly asked HSU (Nurse Deiters to supply me with Lantus at approx. 6:30 am as I had none, I was refused Lantus all that day.” (Id.) The complaint was initially rejected with instructions for Franklin to attempt to resolve his dispute informally, and Franklin later resubmitted his complaint with additional assertions that he attempted to work with staff about his concerns. Franklin's complaint then was rejected, and Franklin appealed that second rejection. The reviewing authority, Warden Dittmann, concluded that the rejection was appropriate.

         While essentially conceding that Franklin followed the ICRS procedures to exhaust his retaliation claim generally, Deters argues that Franklin's failure to list him specifically in the inmate complaint as responsible for the retaliatory denial of recreational privileges establishes that he failed to exhaust his administrative remedies. However, Wisconsin's grievance procedures do not require prisoners to specify individuals in the complaint to adequately exhaust a claim. As such, the omission of Deters' name from the inmate complaint does not amount to a failure to exhaust this claim. See Maddox v. Love, 655 F.3d 709, 721 (7th Cir. 2011) (reversing grant of summary judgment and explaining that an inmate need not provide the names or descriptions of defendants in a grievance). Accordingly, since Deters has not proven that Franklin failed to exhaust his administrative remedies with respect to his retaliation claim, the court will deny his motion.

         II. Motions to compel and for sanctions (dkt. ##100, 101)

         Since the factual predicate is the same, the court will address Franklin's motions to compel and for sanctions together. Franklin seeks to compel additional discovery responses from defendants, and he requests sanctions for their failure to comply fully with his past discovery requests. In support, Franklin explains that he served defense counsel with his first set of interrogatories, along with admissions and document requests, on August 23, 2019, but the written responses were incomplete and he did not receive responsive documents until October 28, 2019. More specifically, Franklin challenges: (1) defendants' objections to his requests for disciplinary records on the ground that courts typically uphold this type of request; (2) the State Defendants' response to his request for information about the pills he was prescribed between February 16, 2017, and February 23, 2017; (3) defendant Deters' “elusive memory”; and (4) the State Defendants' refusal to provide paperwork that was generated during his time in segregation. Finally, Franklin's motions request various forms of injunctive relief, including allowing him to purchase shoes from an outside vendor, as well as allowing him to see an eye doctor, kidney specialist and podiatrist.

         Starting with the discovery responses, the State Defendants represents that counsel timely mailed responses to plaintiff's first set of admissions and first set for requests for production on September 25, and further that Franklin agreed to a two-week extension for the responses to the first set of interrogatories, which were sent timely on October 14. While the State Defendants do object to producing defendants Lunon's and Fink's disciplinary records, those defendants also each responded substantively that they do not have any disciplinary records after receiving Franklin's letter complaining about the absence of disciplinary records from Deters, Lunon and Fink on October 4.

         As for Deters, he served his responses on Franklin on September 25, 2019, and while objecting to the disclosure of his disciplinary records, he argues that the objection was proper because that request did not seek relevant material, was overbroad and, in any event, those records are not in his possession. Finally, the State Defendants represent that the only deficiency Franklin communicated to them related to his requests for disciplinary records.

         In reply, Franklin now claims that Deters is lying about when he produced documents and counsel for the State Defendants lied in representing that the disciplinary record objection was the only deficiency he raised. At bottom, Franklin appears to acknowledge receiving Deters' document production eventually and fails to explain ...

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