Johnson v. Watts et al

Filing 21

DECISION AND ORDER signed by Chief Judge William C Griesbach on 11/30/2017 GRANTING 13 Motion for Summary Judgment. The case is Dismissed and the Clerk is directed to enter judgment forthwith. (cc: all counsel, via US Mail to Johnson) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

TRAVIS JOHNSON,
Plaintiff,
v.

Case No. 17-C-376

TINA WATTS, GINA BUONO,
CHESTER DMYTRIY, & PATTI WOODARD,
Defendants.

DECISION AND ORDER GRANTING SUMMARY JUDGMENT

Plaintiff Travis Johnson, proceeding pro se, filed this action under 42 U.S.C. § 1983 alleging
that his civil rights were violated. He claims that Tina Watts, Dr. Gina Buono, Chester Dmytriy, and
Patti Woodard violated his constitutional rights by their deliberate indifference to his serious medical
needs. Currently before the court is defendants’ motion for summary judgment. Johnson did not
file a response to defendants’ motion for summary judgment within thirty days as required by Civil
Local Rule 56(b)(2) and has not requested additional time to file a response. This alone is grounds
to grant the motion. Civil L.R. 7(d) (“Failure to file a memorandum in opposition to a motion is
sufficient cause for the Court to grant the motion.”). For this reason, and also because on the
undisputed facts before me, it is clear they are entitled to judgment as a matter of law, the
defendants’ motion for summary judgment will be granted.

I. BACKGROUND
Johnson was housed at the Milwaukee Secure Detention Facility (“MSDF”) at all time
relevant to this case. Defs.’ Proposed Findings of Fact (DPFOF) ¶ 1, ECF No. 15.1 On February
6, 2016, before he was incarcerated, Johnson visited a Menomonee Falls emergency room, where
he was diagnosed with a dislocated left thumb but his x-ray revealed no fractures. DPFOF ¶ 13; see
also ECF No. 16-1 at 92–93. He was given a splint for his thumb and advised to follow up with
hand surgery. Id.
On May 12, 2016, a nurse performed an intake examination on Johnson as he transferred into
MSDF. Id. ¶ 8. He did not disclose or complain of his left thumb injury and was not wearing a
splint. Id. ¶ 9; see also ECF No. 16-1 at 17–19. On June 1, 2016, Doctor Gina Buono performed
a physical on Johnson, at which time Johnson claimed he had a fractured thumb but that it was not
currently painful.

Id. ¶ 10; see also ECF No. 16-1 at 20–21. Dr. Buono ordered x-rays, which

were negative, and reviewed Johnson’s emergency room records.. Id. ¶¶ 10–12; see also ECF No.
16-1 at 26. Dr. Buono determined that no immediate referral was needed because Johnson’s thumb
was stable and not painful. Id. ¶ 14; see also ECF No. 16-1 at 38.
On September 28, 2016, Johnson filed a health service request (“HSR”) and complained of
chronic pain in his left thumb. Id. ¶ 16; see also ECF No. 16-1 at 132. On September 29, 2016,
Johnson was triaged by a nurse and on October 6, 2016, Dr. Buono saw him to address his HSR.
Id. ¶¶ 18–19; see also ECF No. 16-1 at 34–35. Dr. Buono consulted with an orthopedist and then

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All of the background facts come from the defendants’ proposed findings of fact. Johnson
has failed to respond to defendants’ motion for summary judgment in compliance with Civil Local
Rule 56(b)(2). Therefore, all facts within defendants’ proposed findings of fact that are properly
supported will be deemed admitted. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“We have
consistently held that a failure to respond by the non-movant as mandated by the local rules results
in an admission.”).
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submitted a request for authorization form for Johnson for an offsite medical consultation about his
left thumb. Id. ¶¶ 20–21. This was Dr. Buono’s last visit with Johnson pertaining to his complaints
about his thumb. Id. ¶ 21.
On October 18, 2016, Johnson submitted a medication refill request for Ibuprofen 200 mg.
Id. ¶ 32; see also ECF No. 16-1 at 129. On October 20, 2016, Johnson’s request was denied and
returned to him. Id. ¶ 20; see also ECF No. 16-1 at 53–54. Nurse Clinicians within the health
services unit do not have the authority to prescribe medication to patients. Id. ¶ 33. They are
permitted to dispense one-time orders of over-the-counter medication, like ibuprofen, but are not
allowed refills on such medication. Id. Instead, the expectation is that inmates will purchase the
over-the-counter medication from the institution’s canteen once the short-term dose has been used.
Id. ¶ 34. Johnsons’ medication refill denial was signed by Patty Potts. Id. ¶ 35.
On October 24, 2016, Johnson filed an inmate complaint, alleging that his hand was injured
in a way that was unclear to the medical staff and that it was causing him continuous significant pain.
Id. ¶ 38; see ECF Nos. 17-1 (copy of Johnson’s entire inmate complaint history) and 17-2 (copy of
Johnson’s specific inmate complaint package). On December 19, 2016, Johnson’s inmate complaint
was rejected because it was untimely. ECF No. 17-2 at 4.2 An inmate must file an complaint within
fourteen days of the incident.

The institution complaint examiner noted that Johnson first

complained about pain on June 1, 2016, but did not submit the complaint until October 24, 2016.
Id. On December 23, 2016, Johnson filed a request for review of the rejected complaint. Id. at 6.
Johnson stated that he had documentation requiring him to wear a splint and have hand surgery and
that he still had not received hand surgery. Id.

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Although Defendants do not offer a specific proposed finding of fact, the court may
consider other materials in the record. Fed. R. Civ. P. 56(c)(3).
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On January 18, 2017, the reviewing authority reviewed Johnson’s request and found that
Johnson’s complaint had been inappropriately rejected by the inmate complaint examiner and was
returned to further investigation. Id. at 8. On January 20, 2017, upon reconsideration, the Inmate
Complaint Examiner found that Johnson did not complain about pain from June 6, 2016, through
August 1, 2016. Id. at 9. The examiner found that once he did complain, he was seen by the nurse
and the provider, and was referred to an outside provider. Id. Therefore, the examiner found that
staff responded appropriately to Johnson’s complaints and dismissed his inmate complaint. This was
reviewed by the reviewing authority, who agreed with the dismissal and noted that “[p]atients must
understand that the timeliness of scheduling offsite appointments is challenging and we must accept
the appointments that are provided.” Id. at 10. There is no record that Johnson ever appealed the
reviewer’s decision. Id. at 1–18.
On March 14, 2017, Johnson filed this complaint pursuant to 42 U.S.C. § 1983, alleging
deliberate indifference to his left thumb injury in violation of his Eighth Amendment right. In his
complaint, Johnson alleged that the defendants were deliberately indifferent in their treatment of his
thumb injury and in denying his medication refill request for ibuprofen. On October 3, 2017,
Defendants filed a motion for summary judgment. Defendants argue that Johnson has failed to
exhaust his administrative remedies. ECF No. 14 at 8. Additionally, they argue that even if Johnson
had exhausted his administrative remedies, the defendants were not deliberately indifferent to
Johnson’s medical needs.
II. LEGAL STANDARD
Under the Federal Rules of Civil Procedure, summary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with any affidavits, show
that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
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of law. Fed. R. Civ. P. 56(c). “[T]he plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
III. ANALYSIS
Johnson has failed to exhaust his administrative remedies by failing to appeal the dismissal
of his inmate complaint to the corrections complaint examiner. The Prison Litigation Reform Act
of 1995 (“PLRA”) requires inmates to exhaust their available administrative remedies before they
may bring a claim under 42 U.S.C. § 1983 about prison conditions. 42 U.S.C. § 1997e(a); see also
Woodford v. Ngo, 548 U.S. 81, 93 (2006) (holding that the PLRA requires proper exhaustion of
administrative remedies). Exhaustion requires that a prisoner comply with the rules applicable to the
grievance process at the inmate’s institution. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.
2002). The failure to properly exhaust each step of the process constitutes failure to exhaust
available administrative remedies. Id. This requirement “applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes, and whether they allege excessive
force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The objective of
§ 1997e(a) is to “permit the prison’s administrative process to run its course before litigation
begins.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (quoting Cannon v. Washington, 418
F.3d 714, 719 (7th Cir. 2005)); see also Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). The
Seventh Circuit applies a “strict compliance approach to exhaustion,” and expects prisoners to
adhere to “the specific procedures and deadlines established by the prison’s policy.” Dole, 438 F.3d
at 809; see also Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir. 2016).

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Wisconsin has implemented the Inmate Complaint Review System (ICRS) under which
inmate grievances concerning prison conditions or the actions of prison officials are “expeditiously
raised, investigated and decided.” Wis. Admin. Code § DOC 310.01. Under the ICRS, an inmate
must file a complaint with the institutional complaint examiner (ICE) within 14 calendar days after
the occurrence giving rise to the complaint, unless good cause exists to excuse a delay. Wis. Admin.
Code § DOC 310.09(6). The ICE has the authority to return, investigate, or recommend a decision
to an appropriate reviewing authority. Wis. Admin. Code § DOC 310.07(2)(a)–(c). If a reviewing
authority renders a decision, the inmate may appeal that decision to the Corrections Complaint
Examiner (CCE) within 10 calendar days. Wis. Admin. Code § DOC 310.13(1). After receiving an
appeal, the CCE shall issue a written receipt of the appeal to the inmate within five working days,
then recommend a decision to the DOC Secretary, who adopts or rejects the recommendation. Wis.
Admin. Code §§ DOC 310.13(4), DOC 310.14(2). The failure to properly exhaust each step of the
grievance process constitutes failure to exhaust available administrative remedies. Pozo, 286 F.3d
at 1025.
Johnson never appealed the reviewing authority’s amended report to the CCE. ECF No. 172. Therefore, Johnson has failed to exhaust his available administrative remedies. Johnson does not
dispute that he never appealed the reviewing authority’s decision to the CCE. Nor does he provide
any explanation for why he failed to appeal and to exhaust his administrative remedies. When “the
failure to exhaust was the prisoner’s fault . . . the case is over.” Pavey v. Conley, 544 F.3d 739, 742
(7th Cir. 2008).
Therefore, the court finds that Johnson has failed to exhaust his administrative remedies and
his claims must be dismissed. Although the defendants also assert several other grounds upon which
they contend they are entitled to summary judgment, there is no need to address them since Johnson
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has failed to exhaust his administrative remedies. This is enough to doom his case. Accordingly, the
defendants’ motion for summary judgment (ECF No. 13) is GRANTED and the case is
DISMISSED. The Clerk is directed to enter judgment forthwith.

SO ORDERED this 30th

day of November, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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