Hopkins v. Milwaukee Secure Detention Facility et al

Filing 12

ORDER signed by Judge Rudolph T. Randa on 4/28/2014. 9 MOTION for Reconsideration DENIED; 10 Amended MOTION for Reconsideration/MOTION for Discovery/MOTION for Pavey Hearing DENIED. (cc: all counsel, via US mail to Rodney Hopkins at Stanley Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

RODNEY JAMES HOPKINS,
Plaintiff,
-vs-

Case No.

13-CV-1019

MILWAUKEE SECURE DETENTION FACILITY,
JOHN DOE, JANE DOE,
DOC ICE PROCESS, and JOHN/JANE DOE,
Defendants.

DECISION AND ORDER
The plaintiff has filed a motion for reconsideration of the Court’s screening order
dismissing this case without prejudice for failure to exhaust administrative remedies. That order
states in relevant part:
The plaintiff alleges that the defendants denied him medical
treatment while incarcerated at Milwaukee Secure Detention
Facility (MSDF) in 2008. When he arrived at MSDF in midJanuary 2008, the plaintiff informed medical staff that he had just
been in the hospital with “COPD.” The plaintiff was informed that
staff could not do anything for him because they could not locate
his medical files. After three weeks, the plaintiff started coughing
up blood and was taken to the hospital where doctors told him that
they would have to remove his left lung. The operation was
scheduled for a Friday, but the State released him that Thursday to
avoid having to pay for the operation.
The plaintiff also alleges that the State denied him access
to the courts for relief because his offender complaint under the
Inmate Complaint Review System was rejected as untimely filed.
He cites to Hopkins v. Husz, Case No. 10-CV-291-WCG (E.D.

Wis.), in which he brought the same medical care claim raised in
this case. In that case, United States District Judge William C.
Griesbach granted the defendants’ motion for summary judgment
for failure to exhaust administrative remedies because the
plaintiff’s offender complaint was rejected as untimely and he did
not appeal the rejection. Hopkins, Case No. 10-CV-291- WCG,
Dkt. # 31, 2011 WL 2463549 at *2 (E.D. Wis. June 21, 2011).
Judge Griesbach stated:
In this case, Hopkins filed a complaint on
January 22, 2008 because he was not receiving
necessary medication. (Dkt. # 21–2 at 1.) For some
reason, the complaint was not acknowledged until
February 13, 2008 and rejected as untimely. (Id. at
3.) Because there is no indication that Hopkins
made any effort to appeal this decision, he failed to
exhaust his administrative remedies. See Pavey v.
Conley, 544 F.3d 739 (7th Cir. 2008) (when “the
failure to exhaust was the prisoner’s fault, [ ] the
case is over”). Hopkins argues that his admission to
the hospital on February 17, 2008 prevented him
from filing an appeal. (Dkt. # 23 at 1, ¶ 4.)
However, the ICRS allows late appeals for good
cause. In not petitioning the appropriate authority
to allow a late appeal, Hopkins failed to avail
himself of the procedures the state made available
to him.
Hopkins, 2011 WL 2463549, at *1.
Dismissals for failure to exhaust administrative remedies
are without prejudice because, among other things, states may
allow cure of failure to exhaust. Ford v. Johnson, 362 F.3d 395,
401 (7th Cir. 2004). This is what the plaintiff attempted to do
here. Attached to the plaintiff’s complaint are Inmate Complaint
Review System documents which demonstrate that he filed another
offender complaint related to his 2008 medical care claim in May
2013. The institution complaint examiner rejected the complaint
as untimely filed because it was submitted beyond fourteen
calendar days from the date of occurrence. See Wis. Admin. Code
§ DOC 310.11(5)(d). The plaintiff submitted an appeal to the
appropriate reviewing authority who determined that the institution
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complaint examiner appropriately rejected the offender complaint.
Exhaustion is an affirmative defense and a prisoner is not
required to plead that he pursued all of the prison’s internal
grievance procedures. Jones v. Bock, 549 U.S. 199, 216 (2007);
Pavey v. Conley, 544 F.3d 739, 740-41 (7th Cir. 2008). However,
a district court may dismiss a complaint where “the existence of a
valid affirmative defense, such as the failure to exhaust, is so plain
from the face of the complaint that the suit can be regarded as
frivolous.” Turley v. Gaetz, 625 F.3d 1005, 1013 (7th Cir. 2010).
This case presents that situation. The plaintiff’s 2013 offender
complaint was rejected as untimely and that decision was upheld
on appeal. Thus, the plaintiff failed to exhaust administrative
remedies as to his medical care claim. See Pozo v. McCaughtry,
286 F.3d 1022, 1025 (7th Cir. 2002) (“To exhaust remedies, a
prisoner must file complaints and appeals in the place, and at the
time, the prison’s administrative rules require.”).
(Screening Order, November 22, 2013, at 3-6.)
In his motion for reconsideration, the plaintiff asserts that he was physically
unable to pursue exhaustion of administrative remedies because he “was freed from custody in
the midst of when he would’ve been required to exhaust administrative remedies and he was in
no physical condition to proceed with any type of physical remedies because of the negligence
of the defendants.” (Motion for Reconsideration at 2.) However, the plaintiff’s arguments with
regard to his attempt to exhaust administrative remedies in 2008 were addressed by Judge
Griesbach in Hopkins v. Husz, Case No. 10-CV-291-WCG (E.D. Wis.). He may not address that
claim here. See Gleash v. Yuswak, 308 F.3d 758, 760 (7th Cir. 2002).
The plaintiff’s complaint in this case raised the same Eighth Amendment medical
care claim as the prior case but cited his 2013 attempt at the exhaustion process. As indicated,
his attempt to exhaust was unsuccessful because the inmate complaint was rejected as untimely.

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The plaintiff has not shown that the Court’s order dismissing this action for failure to exhaust
administrative remedies based on his 2013 attempt contained a manifest error of law. Therefore,
his motion for reconsideration will be denied. See Cosgrove v. Bartolotta, 150 F.3d 729, 732
(7th Cir. 1998); Fed. R. Civ. P. 59(e).
IT IS THEREFORE ORDERED that the plaintiff’s motion for reconsideration
(Docket # 9) is denied.
IT IS FURTHER ORDERED that the plaintiff’s amended motion for
reconsideration (Docket # 10) is denied.
IT IS FURTHER ORDERED that the plaintiff’s motion for discovery (Docket
# 10) is denied.
IT IS FURTHER ORDERED that the plaintiff’s motion for Pavey hearing
(Docket # 10) is denied.
Dated at Milwaukee, Wisconsin, this 28th day of April, 2014.
SO ORDERED,

HON. RUDOLPH T. RANDA
U. S. District Judge

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