Doe v. County of Milwaukee et al

Filing 189

ORDER signed by Judge J.P. Stadtmueller on 5/5/2017: DENYING 173 Defendants County of Milwaukee and David A. Clarke, Jr.'s Second Motion for Summary Judgment; GRANTING 176 Defendants' Motion to Seal Documents; and GRANTING 180 Plaintiff's Motion to Seal Documents. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JANE DOE,
Plaintiff,
v.
COUNTY OF MILWAUKEE,
DAVID A. CLARKE, JR.,
XAVIER D. THICKLEN, and
JOHN/JANE DOE,

Case No. 14-CV-200-JPS

ORDER

Defendants.
1.

INTRODUCTION
On December 1, 2016, the Court denied summary judgment to

Defendants County of Milwaukee (the “County”) and David A. Clarke, Jr.
(“Clarke”) (collectively, “Defendants”) on Plaintiff Jane Doe’s (“Doe”) sexual
assault claim. (Docket #157). In addition to that claim, Doe also pursues a
claim that Defendants instituted an unconstitutional policy for Milwaukee
County Jail (“Jail”) inmates, namely that female inmates would be shackled
during childbirth. (Docket #104 at 16). This was originally presented as a class
claim, id. at 10-14, but on March 20, 2017, Doe notified the Court that she
would not seek class certification, (Docket #172). That same day, Defendants
filed their second motion for summary judgment, this time addressing Doe’s
individual shackling claim. (Docket #173). Defendants argue that this claim
must be dismissed because Doe did not exhaust her administrative remedies
as required by the Prison Litigation Reform Act (“PLRA”). That motion is
fully briefed, (Docket #174, #183, and #185), and for the reasons stated below,
it will be denied.
2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that the court “shall grant

summary judgment if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016).
A fact is “material” if it “might affect the outcome of the suit” under the
applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute of fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. The
court construes all facts and reasonable inferences in the light most favorable
to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360
(7th Cir. 2016).
3.

RELEVANT FACTS
The following facts are gleaned from the parties’ collective factual

briefing. They have been construed, as required by the standard of review,
in a light most favorable to Doe. In February 2013, Doe began her
incarceration in the Jail. She was in the early stages of pregnancy upon her
arrival. Doe was shackled for all hospital visits while in the Jail’s custody.
This included ten pre-natal care appointments between April and October
2013, and one post-partum visit on October 25, 2013.
On October 4, 2013, she gave birth while still in Jail custody. As before,
while at the hospital, Doe was shackled. The shackling remained constant
throughout Doe’s labor, deliver, and recovery. Doe’s attending midwife
asked the Jail guards, who were in or near the delivery room, to remove the
shackles, but they refused. The guards said that the shackling was “proper
protocol” and the midwife understood that there was no way to have the
shackles removed. Nevertheless, the guards agreed to shift the shackles from
one wrist or ankle to another upon request. The leg restraint was also
removed for about ten minutes during Doe’s actual delivery at the request
of medical personnel.
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Prior to her hospitalization for the birth, Jail guard Xavier D. Thicklen
(“Thicklen”) had sexually assaulted Doe three times. When she returned to
the Jail on October 6, 2013, Doe was housed in the infirmary for a time.
Thicklen assaulted her twice while she was in the infirmary. The first was a
few days after the birth, and the second occurred in November 2013. On
December 4, 2013, Doe was transferred out of the Jail.
During Doe’s labor and delivery, the Jail’s shackling policy provided
that inmates in the hospital should be cuffed to their bed at the hand and leg.
The policy left no discretion for guards to decide whether this amount of
shackling was necessary in any particular instance. If guards received
complaints about such shackling, they were not required to document them.
The parties dispute the effect that shackling had, or potentially could have
had, on Doe’s childbirth. This is immaterial to the present motion, which
deals only with the grievance process, and does not address Doe’s
substantive complaints about the shackling policy.
The Jail’s grievance policy permits inmates to file grievances for health
issues. It states that a grievance should only be filed after “you have
addressed the problem with the dorm officer and are not satisfied with the
result.” (Docket #178-1 at 2). The policy further provides that grievances
should be completed on a standard form and deposited “in the designated
locked box located at the workstation,” which is presumably somewhere
inside the Jail. Id. at 3. The Jail’s grievance policy places no time limits on the
filing of grievances. It is also silent on how an inmate should proceed with
a grievance if they were transferred to a different facility before a grievance
form could be filed.
Doe filed a total of fifteen grievances while at the Jail, mostly for
mundane issues such as disrespectful guards or bugs in her cell. Doe did not
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file a grievance regarding being shackled during any of her hospital visits.
The only grievance Doe filed after the birth concerned Thicklen’s assaults.
She submitted the grievance on December 3, 2013, the day before she was
transferred.
4.

ANALYSIS
Defendants move for summary judgment on the ground that Doe

failed to exhaust her administrative remedies before filing the instant lawsuit.
The PLRA establishes that, prior to filing a lawsuit complaining about prison
conditions, a prisoner must exhaust “such administrative remedies as are
available[.]” 42 U.S.C. § 1997e(a). To do so, the prisoner must “file complaints
and appeals in the place, and at the time, the prison’s administrative rules
require,” and she must do so precisely in accordance with those rules;
substantial compliance does not satisfy the PLRA. Pozo v. McCaughtry, 286
F.3d 1022, 1025 (7th Cir. 2002); Smith v. Zachary, 255 F.3d 446, 452 (7th Cir.
2001).1 The exhaustion requirement is not waived merely because the
prisoner believes the grievance process will be futile, or if the process does
not offer the remedy she seeks, such as money damages. Booth v. Churner, 532
U.S. 731, 740-41 and n.6 (2001). The two primary purposes of this exhaustion
requirement are limiting frivolous lawsuits and permitting correctional
facilities to address issues prior to litigation, hopefully obviating the need for
a lawsuit. Witzke v. Femal, 376 F.3d 744, 753 (7th Cir. 2004). Failure to exhaust
administrative remedies is an affirmative defense to be proven by
Defendants. Westefer v. Snyder, 422 F.3d 570, 577 (7th Cir. 2005).

1

Doe does not dispute that she was a “prisoner” within the meaning of the
PLRA, and was therefore subject to the exhaustion requirement. See generally
(Docket #183); 42 U.S.C. § 1997e(h).

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The Seventh Circuit’s recent decision in White controls the disposition
of Defendants’ motion. White v. Bukowski, 800 F.3d 392 (7th Cir. 2015). White
was pregnant when she was arrested and taken to jail. Id. at 393. Within two
weeks she began labor and was taken to a hospital. Id. The baby was born
with severe birth defects. Id. at 394. White returned to the jail several days
later. Id. Four days after her return, White was transferred to a different
institution. Id. White sued jail officials for, inter alia, failing to provide proper
prenatal care and secure prompt transport to the hospital. Id. The defendants
argued that White had not exhausted her administrative remedies, and the
district court granted judgment to them on that ground. Id. at 393.
The Court of Appeals reversed that ruling, finding that White did not
have administrative remedies “available” to her as required by the PLRA. Id.
at 395-96; 42 U.S.C. § 1997e(a). It began by noting that “[t]he purpose of a
prisoner’s filing a grievance is to obtain a change of some sort—to obtain
better medical care, for example.” White, 800 F.3d at 394. In White’s case,
suppose the plaintiff suspected that [the birth defects] were
attributable to mistreatment that she had received in the jail,
either a lack of prenatal care during her eleven-day stay there
or excessive delay in transporting her to the hospital. Still,
what good would it have done her to file a grievance? She
wasn’t about to become pregnant again, and in fact had just a
few more days in the jail. What could she have gained from
filing a grievance? We can’t find an answer.
Id. at 394-95. The court distinguished the Supreme Court’s prior holdings in
Porter v. Nussle, 534 U.S. 516 (2002), and Booth, 532 U.S. 731, which suggested
that “as long as there is something the jail or prison could do in response to
a grievance, even if it is not the specific relief sought by the prisoner, a
grievance must be filed or the prisoner loses his right to sue.” Id. at 395. The
Court of Appeals held that in White’s scenario, jail officials could not take
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any action to remedy their alleged maltreatment because it was completed
long ago. Id. Filing a grievance post-birth for improper pre-birth care would
have been an “academic” endeavor, since “[t]here was no remedy within the
power of the jail to grant for the baby’s birth defects.” Id.
The court also addressed the rule in other circuits that “even if the jail
or prison can do nothing whatever for the complaining prisoner, and even
if that’s obvious to a prisoner who not unreasonably believes himself to be
a victim of deliberate indifference to a medical or other legitimate need—the
prisoner must file a grievance if he is to preserve his right to sue.” Id. In
White’s view, this rule is “tantamount to making prisoners who want to file
civil rights lawsuits serve as ombudsmen—as a prerequisite to suing, such
a prisoner would have to file a grievance that sought a remedy inapplicable
to his or her personal situation, though maybe helpful to other prisoners.” Id.
at 396. The court refused to follow it in White’s case because the plain text of
Section 1997e states that the “availability” of remedies must be to the
complaining prisoner herself. Id.
White applies squarely to Doe’s claim. Doe complains that Defendants’
shackling policy harmed her during her labor, delivery, and immediate postpartum care. (Docket #104 at 10-13). Defendants’ allegedly harmful shackling
thus concluded upon the birth of her daughter, and so “[s]he had no
opportunity to grieve [the shackling] until after the harm done by it was
complete and could not be undone by the defendants.” Id. at 396. As noted
in White, pregnancy and childbirth while in state custody is rare and unlikely
to be repeated. Id. at 395. Further, Doe was under no obligation to file a
grievance on behalf of any pregnant inmates who may suffer under the
shackling policy in the future, as such action would offer no benefit to Doe
herself. Id. at 396. In other words, White tied the “availability” of an
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administrative remedy to the logical efficacy of the “remedy.” If it was
impossible for a remedy to help an inmate, it could not be considered
“available.” Id. at 395. In both White’s and Doe’s cases, “[t]here was no
remedy within the power of the jail to grant for the [alleged harms],” and
thus no remedies were “available” to either within the meaning of the PLRA.
Id.
Defendants’ attempts to distinguish White are unavailing. First, they
assert that unlike White, who went into labor soon after her incarceration,
Doe had months of hospital visits prior to her labor and delivery. She was
shackled each time in the same manner as occurred during the birth. Doe did
not, however, file a grievance related to shackling at any time, including for
any of those pre-birth appointments. This argument ignores the bounds of
Doe’s shackling claim. It is limited to her hospitalization for the childbirth
itself, and does not even mention any prior pre-natal care or subsequent postpartum outpatient checkups. (Docket #104 at 10-13). The PLRA does not
require Doe to grieve issues which are not part of her lawsuit. Kaba v. Stepp,
458 F.3d 678, 685-86 (7th Cir. 2006) (exhaustion must be analyzed for each
discrete event or harm, even when those events or harms may form a
connected timeline).
Nevertheless, Doe explains why she did not file a shackling-related
grievance prior to the birth. She states that,
as a factual matter, there was no reason for Plaintiff to believe
that being shackled during a prenatal visit for an ultrasound or
blood test—however inhumane that might be—meant she
would be shackled during active labor. Shackling a woman
who is in active labor poses so many greater risks to mother
and child, and is so extreme in comparison to typical medical
care during childbirth, that few people would ever imagine the
practice even existed. . . . But even if Plaintiff had imagined or
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feared that she might be shackled during her labor, the PLRA
does not require prisoners to pre-grieve their fears.
(Docket #183 at 12-13). The Court questions whether this is entirely accurate;
Doe cites no precedent for the final sentence of the quoted passage. If Doe
had known that the shackling policy would be applied to her during the
birth, Defendants might have a good basis to argue that under White’s rule,
a viable remedy, namely changing the policy, was available to her via the
grievance process prior to suffering the alleged harm.
However interesting it may be, the Court need not dwell on the point
for two reasons. First, Defendants had an opportunity to explore this
argument in their reply brief but chose not to. John v. Barron, 897 F.2d 1387,
1393 (7th Cir. 1990) (“This court is not obligated to research and construct
legal arguments open to parties, especially when they are represented by
counsel as in this case.”); Gold v. Wolpert, 876 F.2d 1327, 1333 (7th Cir. 1989).
Second, even if they had, Defendants’ factual presentation would not carry
their burden of proof on the matter. Defendants note that all inmates are
provided a handbook when they enter the Jail. (Docket #184 at 2). The
handbook, though, says nothing about shackling during hospitalizations. See
generally (Docket #178-1). Defendants’ factual briefing does not mention the
shackling policy; instead, it is cited only by Doe. (Docket #181-5). Defendants
do not state whether Doe ever received notice of the policy, and if so, to what
extent its effect was explained to her. Without showing that Doe knew of the
policy’s strict, non-discretionary nature, Defendants cannot colorably claim
that she should have pre-grieved the policy before the birth hospitalization.
Returning to White, Defendants further contend that while White
proceeded alone, Doe posed as a class representative on the shackling issue
until the day the instant motion was filed. They maintain that if Doe had filed
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a shackling grievance, this would have afforded the Jail an opportunity to
address the shackling policy for any class members whose claims arose after
Doe’s. In that way, Doe’s grievance would be of direct value to her as the
class representative; she would not be a mere ombudsman for those other
women. Though the timing is close, it is indisputable that as of the moment
Defendants’ filed this motion, Doe abandoned the class posture of her
complaint. (Docket #172) (notice from Doe stating that she would proceed on
her shackling claim on an individual basis, filed at 12:50 p.m. on March 20,
2017); (Docket #173) (Defendants’ summary judgment motion, filed at 3:00
p.m. on March 20, 2017). Defendants’ argument is thus of no moment; as held
in White, Doe need not act in the interest of others allegedly harmed by the
shackling policy. White, 800 F.3d at 395.2
Relatedly, Defendants also claim that one of the remedies Doe desires
in this lawsuit is to change to the Jail’s shackling policy, and a grievance from
her could have effected such a change. Defendants’ position again ignores
Doe’s claim and White’s command. Doe’s complaint requests money
damages and never mentions an injunction, which would be necessary to
compel a change in Jail policy. See generally (Docket #104). And, proceeding
as an individual, White holds that Doe is not required to grieve the shackling
policy for the potential future benefit of others. White, 800 F.3d at 396.
Defendants’ other citations also fail to alter the course set by White.
Their first is Hernandez. Hernandez v. Dart, 814 F.3d 836 (7th Cir. 2016).
Hernandez, in the custody of the Cook County Sheriff’s Office, was subjected
2

This finding has no effect, however, on the relevance of Defendants’
argument in the context of the new, separate class action filed on March 14, 2017
regarding the shackling issue. Hall v. County of Milwaukee et al., No. 17-CV-379-LA
(E.D. Wis.). Perhaps it would be of value there, but that is a matter for a different
court and a different day.

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to a hospital shackling policy similar to that employed by the Jail. Id. at 839.
He claimed that the shackling impeded his recovery from injuries sustained
in a car accident. Id. Hernandez orally complained about being shackled but
never filed a written grievance until after his hospitalization ended. Id. The
Cook County grievance policy required grievances to be filed within fifteen
days of the incident complained of, and provided for an appeals process. Id.
The district court held that Hernandez had not exhausted his administrative
remedies and dismissed the case. Id. at 840.
The Court of Appeals reversed. Id. Like White, the court concluded
that no administrative remedies were “available” to Hernandez regarding his
shackling claim. Id. at 842. Specifically, while hospitalized, no one told
Hernandez about the grievance process or gave him an inmate handbook
which explained it in writing. Id. at 843. The grievance policy was thus
unknown to Hernandez, and so he need not have complied with it. Id.
Defendants distinguish Doe from Hernandez because she was fully
aware of the Jail’s grievance procedure. This is not the relevant question. As
discussed above, Defendants have not shown that she knew of the full
contours of the shackling policy, including that it would be applied to her
during labor and delivery without exception. Without this knowledge, Doe
could not be expected to “pre-grieve [her] fears.” (Docket #183 at 13).
Defendants’ second citation is Ross. Ross v. Blake, 136 S. Ct. 1850 (2016).
They claim that White “purports to authorize district courts to create ‘special
circumstances’ exceptions to the exhaustion requirement under the PLRA,”
and that this “is no longer good law under Ross.” (Docket #185 at 5). A
careful reading of Ross reveals that not only is this proposition incorrect, but
if anything, Ross supports White’s theoretical approach.

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Shaidon Blake (“Blake”), the Ross plaintiff, sued two prison guards,
one for assaulting him, and the other for standing idly by while he was
beaten. Ross, 136 S. Ct. at 1855. Blake did not attempt to use the prison’s
grievance process because an internal investigation had already been opened
on the matter (which ultimately led to the assaulting guard’s resignation). Id.
The district court dismissed the case for failure to exhaust administrative
remedies, holding that internal investigation did not relieve Blake of his duty
to follow the grievance procedure. Id. The Fourth Circuit reversed, agreeing
with the Second Circuit that a “special circumstances” exception exists to the
PLRA’s exhaustion requirement. Id. at 1856. One such circumstance occurred
when a “a prisoner reasonably—even though mistakenly—believed that he
had sufficiently exhausted his remedies.” Id. (quotations omitted). As applied
to Blake, the Court of Appeals concluded that he reasonably thought the
ongoing internal investigation eliminated the need for him to file a grievance.
Id.
The Supreme Court reversed the Fourth Circuit on its holding that a
“special circumstances” exception exists. Id. The PLRA’s exhaustion language
is mandatory. Id.; 42 U.S.C. § 1997e(a) (“No action shall be brought with
respect to prison conditions under section 1983 of this title . . . until such
administrative remedies as are available are exhausted.”) (emphasis added).
Ross contrasted this language with that from the predecessor to the PLRA,
which contained a “weak exhaustion provision” subject to much
interpretation and discretion. Ross, 136 S. Ct. at 1857-58 (quoting Woodford v.
Ngo, 548 U.S. 81, 84 (2006)).
“Yet our rejection of the Fourth Circuit’s ‘special circumstances’
exception does not end this case,” Ross continued, “because the PLRA
contains its own, textual exception to mandatory exhaustion.” Id. at 1858.
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This is the “availability” provision found at the end of Section 1997e(a). Id.
Logically, “[a]n inmate . . . must exhaust available remedies, but need not
exhaust unavailable ones.” Id. In Ross’s view, “available” grievance
procedures “are ‘capable of use’ to obtain ‘some relief for the action
complained of.’” Id. at 1859 (quoting Booth, 532 U.S. at 738).
Ross then “note[d] as relevant here three kinds of circumstances in
which an administrative remedy, although officially on the books, is not
capable of use to obtain relief.” Id. The first circumstance arises when “it
operates as a simple dead end—with officers unable or consistently unwilling
to provide any relief to aggrieved inmates.” Id. This occurs, for example,
when inmates get a “run-around” by being commanded to direct their
grievances to a certain person, who then disclaims an ability to hear them. Id.
The second circumstance arises when “some mechanism exists to provide
relief, but no ordinary prisoner can discern or navigate it.” Id. This goes
beyond the invalid “special circumstances” test, allowing that “when a
remedy is . . . essentially ‘unknowable’—so that no ordinary prisoner can
make sense of what it demands—then it is also unavailable.” Id. The final
circumstance raised by Ross comes when prison officials actively “thwart
inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” Id. at 1860.
The Ross Court found all three circumstances were in play in Blake’s
scenario. The evidence before the Court suggested that the internal
investigation process cut off Blake’s ability to obtain relief via a grievance. Id.
This was made altogether more confusing because, while in Blake’s case the
state argued that this was not true, in prior prisoner litigation it had asserted
the opposite. Id. at 1860-61. Taken together, these conflicting positions
revealed the possibility that prisoners were intentionally provided vague
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information so as to hinder their progress through the grievance process. Id.
at 1861. The Court remanded the issue of the “availability” of Blake’s
remedies for further consideration in light of a more complete evidentiary
picture. Id. at 1862.
Ross confirms that White remained within the recognized bounds of
PLRA remedy exhaustion jurisprudence. White did not craft a new exception
to the exhaustion requirement apart from the PLRA’s text. As both opinions
note by citation to Booth, a remedy is only “available” when it offers “some
relief for the action complained of.” Booth, 532 U.S. at 738; Ross, 136 S. Ct. at
1859; White, 800 F.3d at 395. White concluded that no remedies were
“available” to White for potential exhaustion because a grievance would
have no effect in her circumstances. White, 800 F.3d at 394-96. As discussed
above, White applies directly to Doe’s case and so the same result must be
reached.
Defendants correctly state that Doe’s scenario does not fit neatly into
the three “unavailability” circumstances announced by Ross. The Jail’s
grievance procedures appear clear enough, and there is no evidence of prison
officials’ interference with any grievance filing (save, arguably, for Thicklen’s
actions). However, Ross held that the circumstances it discussed were “as
relevant” to Blake’s suit; it did not say that those three were the only
circumstances wherein “unavailability” could be found. Ross, 136 S. Ct. at
1859. Ross thus leaves room for White, and this Court cannot interpose itself
between the Seventh Circuit and the Supreme Court. Put differently, the
Court must take White at its word; if White says its holding is grounded in
“availability,” and not some judicially-created exception, this Court cannot

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conclude otherwise. Further, Ross and White are so factually disparate that
the Court is unable to conclude that White has been abrogated.
Throughout their briefs, Defendants cite Supreme Court precedent
arising prior to White, asking the Court to interpret and rely directly on those
cases instead of White. See Porter, 534 U.S. 516; Booth, 532 U.S. 731. White,
however, cited those decisions and distinguished them. White, 800 F.3d at
395-96. The Court is not at liberty to reassess White’s interpretation of those
cases or question the wisdom of the rule it announces. Ross was Defendants’
only avenue to avoid White, but as described above, it does not foreclose the
Seventh Circuit’s position. White remains controlling precedent, and the
Court must therefore decline Defendants’ invitation to disagree with it.3
5.

CONCLUSION
It is important to recall that the failure to exhaust administrative

remedies is a defense Defendants’ bear the burden to prove. Westefer, 422
F.3d at 577. Through an inability to avoid White’s clear command, they did
not carry that burden. The Court must, therefore, deny their request for
summary judgment on this defense. The parties have now had more than

3

White also posed an alternative ground for finding that White’s remedies
were “unavailable.” The grievance procedure applicable to her had no deadline.
White, 800 F.3d at 396. White was transferred from the institution only four days
after returning from the hospital. Id. Without a deadline, and without knowing that
she would be transferred (grievances were not allowed post-transfer), White could
not be faulted for failing to submit a grievance in that short window. Id. at 397. The
Court of Appeals further held that even if she knew of the impending transfer, a
four-day deadline was “unreasonably short for a woman who had just given birth
to a severely impaired child.” Id.
The parties delve deeply into this alternative discussion, arguing the factual
similarities (or dissimilarities) between White’s and Doe’s situations. It is
unnecessary to follow the parties along this path, as White’s primary holding
provides ample support for the outcome here.

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ample opportunity to present dispositive motions to the Court on any issues
they desired. In light of the approaching trial date, no further dispositive
motions will be permitted. The Court will also grant the parties’ motions to
seal certain confidential records found in their summary judgment
submissions. (Docket #176 and #180).
Accordingly,
IT IS ORDERED that the motion for summary judgment of the
defendants County of Milwaukee and David A. Clarke, Jr. (Docket #173) be
and the same is hereby DENIED; and
IT IS FURTHER ORDERED that the parties’ motions to seal (Docket
#176 and #180) be and the same are hereby GRANTED.
Dated at Milwaukee, Wisconsin, this 5th day of May, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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