Watkins v. Lancor

Filing 25

ORDER granting 17 Motion for Summary Judgment, signed by Chief Judge William C Griesbach on 06/06/2013. Plaintiff Watkins has failed to exhaust his administrative remedies. Accordingly, Defendants motion for summary judgment is GRANTED and Plaintiff Watkinss section 1983 case is DISMISSED. The Clerk is directed to enter judgment accordingly. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RONNIE WATKINS,
Plaintiff,
v.

Case No. 13-C-0007

TOM LANCOR,
Defendant.

DECISION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

Plaintiff Ronnie Watkins, an inmate at Green Bay Correctional Institution (“GBCI”), filed
this pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging that Defendant Tom Lancor,
a food services chef at GBCI, violated his constitutional rights. Watkins alleges that Lancor was
deliberately indifferent to his serious medical needs when he disregarded Watkins’ need for medical
assistance after Watkins fell and broke his finger while working in the prison kitchen under
Lancor’s supervision. Deliberate indifference to serious medical needs by prison staff constitutes
cruel and unusual punishment proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S.
97, 104-05 (1976). Watkins claims he was required by Lancor to continue performing his duties
in the kitchen, and was unable to obtain medical care until he was seen by the Health Services Unit
(HSU) several days later. The case is before the court on Lancor’s motion for summary judgment.
Lancor contends he is entitled to summary judgment on the ground that Watkins failed to exhaust
administrative remedies as required under the Prison Litigation Reform Act (PLRA), 42 U.S.C.
§ 1997(e)(a) (2013). For the reasons given below, Lancor’s motion will be granted and the case
dismissed.

BACKGROUND
The complaint arises out of a March 15, 2010 incident in which Watkins alleges he slipped
and fell while unloading the dish washing machine in the GBCI kitchen and suffered a broken
finger. Watkins alleged that GBCI policy required all inmates assigned to the kitchen to wear safety
overshoes. On the date in question, however, due to an alleged shortage of safety equipment,
Watkins was not wearing overshoes. He alleges that as a result he slipped in an area of the kitchen
floor on which water from the dishwasher leaked. He dropped a large silverware rack on his hand
and broke his finger. Watkins asserts he immediately informed Lancor of his injury and requested
medical attention, but Lancor failed to provide any assistance and required Plaintiff to continue
working without any medical attention until March 18, 2010 when a nurse examined Watkins’
injury.
Watkins filed a complaint regarding the March 15, 2010 incident through the Inmate
Complaint Review System (ICRS) at GBCI. Plaintiff’s complaint, dated March 31, 2010, stated:
on the above date, I were assigned to work in the dishroom to do the silverwear, As
I were carring the steel rack with the silverware in it, I slipped on the wet floor and
dropped the steel rack on my hand, I had the chef (Tom) to write up an accident
report and I went to medical a few days later and they took an x-ray and found out
that my finger is broken. A copy of the accident report were sent to security and
medical.
(ECF No. 1-2 at 6.) The complaint was returned by the Institution Complaint Examiner (ICE) on
April 1, 2010 because the complaint was unclear and was written “more as an informational piece
than a complaint.” (ECF No. 1-2 at 7.) The ICE instructed Watkins that “complaints shall contain
only one issue and that issue shall be clearly identified,” consistent with Wisconsin Administrative
Code § DOC 310.09(1)(e). (Id.) Watkins was instructed to state specifically what his complaint

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was, and further told that “[i]f it is about not receiving proper medical attention, please contact Mrs.
Zwiers in HSU prior to re-filing this complaint.” (Id.)
Watkins did not contact HSU, but per the ICE’s instructions, he filed what was classified
as Offender Complaint GBCI-2010-7242. The complaint, dated April 1, 2010, stated:
On the above date I was assigned to work in the dishroom in an unsafe working
conditions being that the floor stays slippery from it being wet, on this date I slipped
and dropped a steel rack on my hand and broke a bone in my finger, I’ve already
talked with the kitchen supervisors about this and Chef Tom [Lancor] wrote an
accident report. I’m complaining about the negligence that the kitchen staff shows
by not making my working conditions safer.
(Rose Aff. Ex. B 00021.) Although the ICE rejected the complaint on April 2, 2010 as being
beyond the fourteen-calendar-day limit pursuant to § DOC 310.11(5)(d), the reviewing authority
overturned the rejection after Plaintiff appealed. As a result, the ICE proceeded to consider his
Offender Complaint GBCI-2010-7242 on the merits. On April 21, 2010, after an investigation and
review of the accident report, the ICE recommended Watkins’ complaint be dismissed, and the
reviewing authority subsequently agreed and dismissed Watkins’ complaint on April 23, 2010.
Thereafter, Watkins appealed the dismissal of Offender Complaint GBCI-2010-7242 to the
Corrections Complaint Examiner (CCE) office. Watkins raised the issue of unsafe working
conditions in his CCE appeal, stating “you can go into the dishroom any day of the week and the
floor is very slippery. []I’ve worked in the kitchen for 1 year 5 months and were assigned to the
dishroom right up until I slipped and broke my finger during this time I have never once been given
or offered any gloves, goggles, or yellow overshoes to work in.” (Rose Aff. Ex. B 00009-10.) In
addition, Watkins noted, “I wasn’t sent to medical by the kitchen staff. I had to file a medical
request a day or two later to go to medical. And I was seen three days after my accident. Which
was March 18, 2010 and I broke my finger March 15, 2010.” (Rose Aff. Ex. B 00009-10.)

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After reviewing Watkins’ appeal, the CCE recommended, on June 24, 2010, the complaint
be dismissed, stating, “[t]he institution’s decision reasonably and appropriately addressed the issue
raised by this inmate. In addition, the CCE notes that, on appeal, the inmate presents no new
information that would warrant recommending overturning that decision. Thus, it is recommended
this appeal be dismissed.” (Rose Aff. Ex. B 00007.) On July 24, 2010, the Office of the Secretary,
in agreement with the CCE recommendation, dismissed the appeal of Offender Complaint GBCI2010-7242.
After the final decision his appeal of the institution’s dismissal of Offender Complaint
GBCI-2010-7242, Watkins filed suit in federal court, claiming that several defendants violated his
constitutional rights because they: (1) were deliberately indifferent to the dangerous working
conditions created by a leaking dishwasher and a prolonged shortage of safety overshoes; (2) acted
contrary to policy and procedures that governed their conduct at the time of the incident by failing
to provide Watkins with the necessary safety overshoes; (3) were deliberately indifferent to his
serious medical needs, in violation of the Eighth Amendment to the United States Constitution.
After screening, Watkins was allowed to proceed only against Defendant Lancor on his claim that
Lancor was deliberately indifferent to his serious need for medical treatment. Watkins’ claims
about the allegedly dangerous working conditions were dismissed for failing to state a federal claim.
(ECF No. 7 at 5-6.) Lancor now argues that Watkins’ claim of deliberate indifference to his serious
medical needs is not properly before the court because Watkins failed to properly exhaust his
administrative remedies.

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LEGAL STANDARD
Summary judgment shall be granted if the moving party shows from “the pleadings,
depositions, answers to interrogatories, and admissions on files . . . that there is no genuine dispute
as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). A “mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment . . .,” but the
requirement for granting a motion for summary judgment is that “there be no genuine issue of
material fact.” Anderson, 477 U.S. at 248. A dispute over a fact that “might affect the outcome of
the suit” is a “material fact” and is “genuine” if the “evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. at 248. If the record as a whole, however, could not
lead a reasonable trier of fact to find for the nonmoving party, there is not genuine issue for trial and
summary judgment shall be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).

ANALYSIS
The Prison Litigation Reform Act requires all prisoners who intend to file a federal lawsuit
to first exhaust all available administrative remedies. 42 U.S.C. § 1997(e)(a). Section 1997(e)(a)
makes clear that “no action shall be brought . . . until such administrative remedies as available are
exhausted.” Moreover, “exhaustion is a precondition to suit” and thus requires a prisoner to have
taken the necessary steps in seeking an administrative remedy before filing the suit in court. See
Perez v. Wis. Dept. of Corrections, 182 F.3d 532, 535 (7th Cir. 1999). If a suit is filed by a prisoner
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before available administrative remedies have been exhausted, the suit must be dismissed because
the district court lacks the discretion to resolve the claim on the merits. Id. at 535.
In order to exhaust administrative remedies, a prisoner must follow the rules governing the
filing and prosecution of the complaint as required under state law. See Pozo v. McCaughtry, 286
F.3d 1022, 1025 (7th Cir. 2002) (“[U]nless the prisoner completes the administrative process by
following the rules the state has established for that process, exhaustion has not occurred.”). A
prisoner must not only exhaust the available administrative remedies, but also properly exhaust
those available administrative remedies in compliance with an agency’s deadlines and other critical
procedural rules. See Woodford v. Ngo, 548 U.S. 81, 91-92 (2006) (emphasis added). The court
determines whether a prisoner has properly exhausted administrative remedies. Pavey v. Conley,
544 F.3d 739, 742 (7th Cir. 2008). The PLRA exhaustion rule is “comprehensive” and “very
broad.” Smith v. Zachary, 255 F.3d 446, 451-52 (7th Cir. 2001). There is no exception to the
PLRA exhaustion requirement for substantial compliance, and a good faith attempt to exhaust is not
enough. Id. at 452.
In Wisconsin, a prisoner is required by law to file offender complaints through the Inmate
Complaint Review System (ICRS), which is set out in the Chapter DOC 310 of the Wisconsin
Administrative Code. See Wis. Adm. Code § DOC 310.01 et seq. Section DOC 310.09 outlines
the necessary steps a prisoner must take in order to properly file an offender complaint. A prisoner
must first file a complaint with the institution’s institution complaint examiner (ICE) within 14
calendar days after the occurrence giving rise to the offender complaint. § DOC 310.09(6). A
complaint filed with the ICE is to “contain only one issue per complaint, and shall clearly identify
the issue.” § DOC 310.09(1)(e). The ICE reviews complaints and either rejects and returns the
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complaint to the inmate, or makes recommendations for action to a reviewing authority. §§ DOC
310.11 and 310.12. The reviewing authority then dismisses or affirms the grievance on the merits,
or returns it for further investigation. Adverse decisions may be appealed. Complaint rejections
are reviewed by the institution reviewing authority, which reviews only the basis for the rejection.
§ DOC 310.11(5-6). When a reviewing authority dismisses a complaint on the merits, a prisoner
may appeal to the corrections complaint examiner (CCE). § DOC 310.12(3). The CCE conducts
additional investigation when appropriate and makes a recommendation. The Secretary of the
Wisconsin Department of Corrections then renders a final decision. § DOC 310.14.
Here, Watkins failed to properly exhaust the administrative remedies that were available to
him. Watkins’ original complaint was rejected by the ICE because he failed to state what his
complaint was. Watkins was instructed to re-file his offender complaint and specifically state his
complaint. He re-filed his offender complaint with the following sentence added: “I’m complaining
about the negligence that the kitchen staff shows by not making my working conditions safer.”
(Rose Aff. Ex. B. 00021.) Watkins included no mention of being refused medical care. He only
stated “I’ve already talked with the kitchen supervisors about this and chef Tom [Lancor] wrote an
accident report.” (Id.) There is no indication in Watkins’ offender complaint that Lancor or any
other staff member ignored his request for medical assistance or required him to continue working
despite his injuries.
Watkins nevertheless contends that he raised the medical attention issue in his appeal to the
CCE. However, to the extent that Plaintiff attempted to raise his medical attention claim on appeal,
the issue was not properly raised because Plaintiff never included the issue in Offender Complaint
GBCI 2010-7242 or in a timely separate complaint. The CCE only reviews decisions of the
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institution’s reviewing authority. § DOC 310.13(1). Thus, the CCE cannot review an issue never
raised and presented to the ICE or the institution’s reviewing authority. Although the administrative
rules require inmates to include only one issue per complaint, Plaintiff had the opportunity to file
more than one complaint regarding the incident that occurred on March 15, 2010. He failed to do
so. In order to properly raise an issue and exhaust administrative procedures, a prisoner must
comply with the administrative procedures as required by the ICRS. Pozo, 286 F.3d at 1023.
Watkins also relies on Bouman v. Robinson, No. 07-C-367-C; 2008 WL 2595180, *2 (W.D.
Wis. June 27, 2008), for the proposition that nothing in the ICRS appeal procedures prevents an
inmate from amending or modifying complaints on appeal to include new issues. In Bouman, the
court considered whether the prisoner properly exhausted his administrative remedies when he
raised a new issue in his administrative appeal. Id. The defendants could not point to a rule of the
federal Bureau of Prisons that prohibited the plaintiff from amending his complaint on appeal, and
therefore, the court ruled that defendants were not entitled to summary judgment. Id. But Bouman
was a federal prisoner subject to federal prison procedure under the Bureau of Prisons. Id. This
case is governed by the administrative remedies in Wisconsin’s prisons, the ICRS. Here, Lancor
relies on section DOC 310.09(1)(e), which allows an inmate to include only one issue in a
complaint. There is no provision allowing inmates to add additional issues on appeal. Thus,
Bouman is clearly distinguishable from the facts of this case.
In sum, Watkins failed to properly raise the issue of whether Lancor was deliberately
indifferent to his medical needs with the institution before filing his federal complaint. No mention
of the issue was included in Offender Complaint GBCI-2010-7242, the only complaint that was
reviewed by the institution or the CCE. The purpose of the ICRS procedure is “to afford inmates
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[ ] a process by which grievances may be expeditiously raised, investigated, and decided.” Wis.
Admin. Code § DOC 310.01. Plaintiff was afforded a process to raise the medical attention issue
and to have his complaint investigated and decided through the ICRS. The fact that he failed to
properly do so prevents this court from reviewing his claim on the merits. Because there is no
dispute to as to whether Plaintiff exhausted his administrative remedies, Defendant’s motion for
summary judgment will be granted.
Finally, it is worth noting that even if Watkins had properly exhausted his administrative
remedies, his complaint would not survive. It is clear from the record that Lancor only supervised
Watkins while he was working in the kitchen. He was not in a position to prevent Lancor from
seeking medical attention as soon as his work shift ended. Even assuming Lancor knew Watkins’
finger was swollen and in pain, requiring him to complete his shift before seeking medical attention
would not be the kind of deliberate indifference to serious medical needs required to constitute the
cruel and unusual punishment prohibited by the Eighth Amendment.

CONCLUSION
Plaintiff Watkins has failed to exhaust his administrative remedies. Accordingly,
Defendant’s motion for summary judgment is GRANTED and Plaintiff Watkins’s section 1983
case is DISMISSED. The Clerk is directed to enter judgment accordingly.
SO ORDERED this

6th

day of June, 2013.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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