Brown v. Duyoung et al

Filing 71

ORDER signed by Judge Pamela Pepper on 8/29/2018. 51 Defendant's motion for summary judgment DENIED. 67 Plaintiff's motion for order to use legal loan DENIED. 68 Plaintiff's motion for reconsideration DENIED. Stay of scheduling deadlines LIFTED. Defendant's motion for summary judgment on merits of plaintiff's claims due 10/5/2018, plaintiff's response due 11/9/2018; defendant's reply due 11/30/2018. If defendant does not intend to file summary judgment motion, he should notify the court as soon as possible so trial can be scheduled. (cc: all counsel, via mail to Ennis Brown at Waupun Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ENNIS LEE BROWN,
Plaintiff,
v.

Case No. 16-cv-1463-pp

DR. RICKY SEABUL,
Defendant.

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 51), DENYING PLAINTIFF’S MOTION FOR ORDER TO USE
LEGAL LOAN (DKT. NO. 67) AND DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION (DKT. NO. 68)

The plaintiff, who is representing himself, filed this lawsuit under 42
U.S.C. §1983, alleging that various defendants violated his constitutional rights
by failing to provide him with adequate medical care. On December 21, 2016,
the court allowed the plaintiff to proceed on Eighth Amendment deliberate
indifference claims against Dr. Ricky Seabul. Dkt. No. 8. The defendant has
filed a motion for summary judgment, arguing that the plaintiff did not exhaust
his administrative remedies. Dkt. No. 51. The plaintiff filed a motion to
reconsider the court’s order staying deadlines for filing dispositive motions,
Dkt. No. 68, and a motion asking the court to allow him to use his legal loan to
buy copies of his health records, Dkt. No. 67. The court denies these motions.

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I.

MOTION FOR SUMMARY JUDGMENT (Dkt. No. 51)
A.

Relevant Facts
1.

Background Facts

In his complaint, the plaintiff alleged that he tested positive for MRSA1
while incarcerated at Dodge Correctional Institution in October 2013. Dkt. No.
1 at 2. Staff isolated him and gave him medicine, and the swelling went down.
Id. A couple of months later, the plaintiff noticed a large knot under his left
armpit, and submitted several health requests. Id. In a response, staff
instructed the plaintiff to let the unit officer know if he experienced any
drainage. Id. at 3. He says he was later diagnosed a second time with MRSA.
Id. After the second diagnosis, the plaintiff was taken to the Health Services
Unit so that the knot could be lanced and drained, but instead of doing that,
Dr. Seabul “performed surgery” to remove the infection instead. Id. According
to the plaintiff, Dr. Seabul performed the surgery under “false pretense and
misrepresentation” because the plaintiff had been told that Dr. Seabul would
just lance the knot. Id. The plaintiff also alleges that Dr. Seabul performed the
surgery without medication to dull the pain, and that Seabul cut deeply into
his armpit to remove the infection. Id.

Methicillin-resistant Staphylococcus aureas, an infection caused by staph
infection resistant to many antibiotics. https://www.mayoclinic.org/diseasesconditions/mrsa/symptoms-causes/syc-20375336.
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2.

Inmate Complaint Review System

At the time he filed his opening brief, the defendant asserted that the
plaintiff had not filed an inmate complaint concerning the above allegations.
Dkt. No. 53 at ¶1. The defendant alleged that the plaintiff did not file any
complaints concerning medical care until April 2017—three-and-a-half years
after these alleged incidents. Id. at ¶2. In the reply brief he filed two weeks
later, however, the defendant asserted that it had “recently” come to defense
counsel’s attention that the plaintiff had “submitted—but the Inmate Complaint
Examiner’s (ICE) Office rejected—an inmate complaint related to the claims in
this lawsuit.” Dkt. No. 61 at 2. The defendant’s proposed supplemental findings
of fact stated that the plaintiff had submitted a complaint dated January 4,
2014, which the ICE rejected and returned to the plaintiff on January 6, 2014,
along with a letter explaining why the complaint was being returned. Dkt. No.
62 at ¶¶ 8-9; see also Dkt. No. 58 at ¶4. The letter explained that the plaintiff
needed to attempt to resolve the issue with the unit head, and then provide
documentation that he had done so; the letter said that if the plaintiff could not
resolve the issue with the unit head, he could resubmit his complaint. Dkt. No.
63-1 at 1.
The defendant asserts that return letters are mailed through prison mail
the same day they are generated—in the case of this letter, it would have been
mailed January 6, 2014—and the defendant asserts that the letter never was
returned to the complaint examiner’s office as undeliverable. Dkt. No. 62 at
¶¶10-11. The defendant alleges that there is no evidence that the plaintiff wrote
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to the complaint examiner’s office to say that he didn’t receive a response to his
complaint. Id. at ¶11. The plaintiff states in his sworn declaration, however,
that he never received a reply after submitting the inmate complaint. Dkt. No.
58 at ¶11. The plaintiff’s declaration states that he did write to the Health
Services Manager, “as required prior to writing the [Corrections Complaint
Examiner],” and that he also wrote to the warden. Dkt. No. 58 at ¶¶7-8. Once
he received an answer from the Health Services Manager, he was taken to see
his medical records, “at which point [he] complained” and was instructed to file
an inmate complaint. Id. at ¶9.
On January 13, 2014—seven days after the defendant claims the return
letter would have been mailed—the plaintiff was transferred to Waupun
Correctional Institution. Dkt. No. 62 at ¶12.
B.

Summary Judgment Standard

“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 also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986); Ames v. Home Depot U.S.A., Inc.,
629 F.3d 665, 668 (7th Cir. 2011). “Material” facts are those “that might affect
the outcome of the suit.” Anderson, 477 U.S. at 248. A dispute over a “material
fact” is “genuine” if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be disputed or is genuinely disputed
must support the assertion by:
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(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
C.

The Exhaustion Requirement

According to the Prison Litigation Reform Act (PLRA) (which applies in
this case because the plaintiff was incarcerated when he filed his complaint),
“No 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.” 42 U.S.C. §1997e(a). Various important policy goals
give rise to the rule requiring administrative exhaustion, including restricting
frivolous claims, giving prison officials the opportunity to address situations
internally, giving the parties the opportunity to develop the factual record, and
reducing the scope of litigation. Smith v. Zachary, 255 F.3d 446, 450-51 (7th
Cir. 2001).
The Department of Corrections’ (DOC) Inmate Complaint Review System
(ICRS) provides the administrative process for inmates with complaints about
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prison conditions or the actions of prison officials. Wis. Admin. Code §DOC
310.01(2)(a). Before an inmate can file a lawsuit, he must exhaust all
administrative remedies that the DOC has promulgated by rule. Wis. Admin.
Code §DOC 310.05. Inmates should use the ICRS to “raise significant issues
regarding rules, living conditions, staff actions affecting institution
environment, and civil rights complaints.” Wis. Admin. Code §DOC 310.08(1).
To use the ICRS, an inmate must file a complaint with the ICE within
fourteen days after the occurrence giving rise to the complaint. Wis. Admin.
Code §§DOC 310.07(1), 310.09(6). The ICE can review and acknowledge the
complaint, then either reject or send a recommendation to the “appropriate
reviewing authority.” Wis. Admin. Code §§DOC 310.11(2), 310.11(11). Or the
ICE can review the complaint and return it to the inmate and “direct [him] to
attempt to resolve the issue.” Wis. Admin. Code. §310.09(4).
D.

The Court’s Analysis

Whether the plaintiff exhausted his administrative remedies depends on
one thing: whether he received the January 6, 2014 return letter instructing
him to try to resolve the issue on his own with the unit head. If the plaintiff did
not receive that letter, the ICRS process was not “available” to him, Towns v.
Holton, 346 Fed. Appx. 97, 99 (7th Cir. 2009), and a plaintiff needs only to
exhaust “available” remedies, Woodford v. Ngo, 548 U.S. 81, 84 (2006).
Exhaustion is an affirmative defense, Jones v. Bock, 549 U.S. 199, 211
(2007), and the burden to prove a plaintiff did not exhaust available remedies
is on the defendant, Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006) (internal
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citation omitted). The court concludes that the defendant has not met that
burden. The evidence shows that the plaintiff submitted his complaint on
January 4, 2014, and that the ICE reviewed it. Docket No. 62 at ¶9. Instead of
filing the complaint, however, the ICE returned it to the plaintiff on January 6,
2014, and instructed him to try to resolve the issue with the head of the HSU.
Id.; Docket No. 63-1. The defendant alleges that return letters are mailed
through the prison mail system the same day they are generated. Docket No.
62 at ¶10. Therefore, the plaintiff should have received his returned complaint
within a couple of days of January 6, 2014. Id. The defendant states that there
is no record that the letter came back to the complaint examiner’s office, or
that the plaintiff wrote to the ICE saying he never received a response. Id. at
¶11. The plaintiff swears under penalty of perjury that he never received the
returned complaint and letter from the ICE. Docket No. 58 at ¶11.
There is no evidence that the return letter actually was mailed to the
plaintiff on January 6, 2014; the defendant alleges only that this was the
practice. There is no evidence that the letter was mailed, period. There is no
evidence showing that the plaintiff received the letter, and the plaintiff swears
that he did not.
The court also notes that the time frame is tight here. The date on the
return letter is January 6, 2014. Even assuming the letter did go into the
institution mail sometime that day, it is possible that it could have encountered
delays. The plaintiff was transferred to Waupun only seven days after the date
the return letter was written; even if the ICE mailed the letter, any delay could
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mean that it might not have reached the plaintiff before he left Dodge. It might
have gotten lost. Both the plaintiff and the defendant could be right: the ICE
could have sent the complaint and letter, but because of delay or loss or
destruction, the plaintiff did not receive them. Only if the defendant could
demonstrate that the plaintiff received the return letter can he show that the
plaintiff’s administrative remedy of trying to work things out (which the plaintiff
swears he did) was available to him. The defendant has not met his burden to
show that the plaintiff received the letter. The court will deny the defendant’s
motion for summary judgment on exhaustion grounds. The court will extend
the deadline for the defendant to file a motion for summary judgment on the
merits of the plaintiff’s claims.
II.

MOTION FOR ORDER TO USE LEGAL LOAN (Dkt. No. 67)
The plaintiff has asked the court to allow him to use his “approved legal

loan” to buy copies of all his medical records. Dkt. No. 67. He says that the
defendant has refused his request to provide him with copies, and says that he
was “instructed”—he does not say by whom—to get an order from the court to
use the loan to pay for the copies. He is not asking the court to order the
prison to give him a legal loan (and the court is unlikely to grant such a
motion); he asserts that the Waupun staff refuses to allow him to use the legal
loan process to purchase these copies, and asks the court to order the prison
to allow him to use his legal loan to do so. Id.
As the plaintiff knows, courts are hesitant to interfere with the
procedural rules of a correctional institution. The court defers to the institution
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on the use of the plaintiff’s legal loan, just as it defers to the institution for
other administrative matters. If the institution has a rule or procedure that
requires an inmate to obtain a court order to use a legal loan in a particular
way, the plaintiff can provide the court with a copy of that rule or procedure (or
a letter from a staff member), and the court will reconsider. At this point, the
court will deny the motion.
III.

MOTION FOR RECONSIDERATION AND RECUSAL
The plaintiff also filed a motion asking the court to reconsider its

January 22, 2018 order staying the dispositive motion deadline. Dkt. No. 68.
He also asks the court to recuse itself from all the cases he has pending. Id. at
4. The court will deny both requests.
A motion for reconsideration is “an extraordinary remedy” that is
“granted only in exceptional circumstances[.]” 3SM Realty & Dev., Inc. v.
F.D.I.C., 393 Fed. App’x 381, 384 (7th Cir 2010) (quoting McCormick v. City of
Chi., 230 F.3d 319, 327 (7th Cir. 2000)). The plaintiff alleges that the court
stayed the case deadlines to give the defendant a chance to file motions on
issue he forfeited, and to prejudice the plaintiff. Dkt. No. 68 at 1. That is not
why the court granted the defendant’s motion to stay the deadlines. The court
granted the motion because, if the court had agreed with the defendant that
the plaintiff did not exhaust his administrative remedies, the court would have
had to dismiss the plaintiff’s case, and there would have been no reason for
either side to do all the work of briefing motions. The court does not agree with
the defendant, however; the defendant has not demonstrated that the plaintiff
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failed to exhaust his remedies, and the court is going to lift the stay and allow
the case to continue. There is no reason for the court to reconsider its order
staying the deadlines.
The court also will deny the plaintiff’s request that the court recuse itself.
The plaintiff alleges it has come to his attention that because he is an African
American male who is in custody and convicted of a crime, the court has been
biased and racially motivated to deny him relief. Dkt. No. 68 at 2. He states
that Judge Pepper’s former job as a prosecutor shows that she is biased, and
that she should have recused herself. Id. The plaintiff says that he objects to
the court’s erroneous rulings and racially-motivated acts to deny him relief. Id.
at 5.
Section 455(a) of Title 28 of the United States Code requires a federal
judge to “disqualify [herself] in any proceeding in which [her] impartiality might
reasonably be questioned.” However, “judicial rulings alone almost never
constitute a valid basis for a bias or partiality motion.” Liteky v. United States,
510 U.S. 540, 555 (1994). In order to succeed on a recusal claim under
§455(a), a plaintiff must show that the judge relied upon knowledge acquired
outside the case or displayed deep-seated and unequivocal antagonism that
would render fair judgment impossible. See id. at 556.
Section 144 of Title 28 says that if a party “makes and files a timely and
sufficient affidavit that the judge before whom the matter is pending has a
personal bias or prejudice either against him or in favor of any adverse party,”
the judge cannot proceed with the case. “The affidavit shall state the facts and
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the reasons for the belief that bias or prejudice exists . . . .” If the plaintiff is
seeking disqualification of Judge Pepper under 28 U.S.C. §144, he must file an
affidavit stating facts that are “sufficiently definite and particular to convince a
reasonable person that bias exists; simple conclusions, opinions, or rumors are
insufficient.” United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) (citation
omitted). See also, Hoffman v. Caterpillar, Inc., 368 F.3d 709, 718 (7th Cir.
2004). Again, judicial rulings alone almost never constitute a valid basis for
disqualification under §144. Hoffman, 368 F.3d at 718 (citing Liteky, 510 U.S.
at 555).
The court understands that the plaintiff strongly disagrees with a
number of its rulings, and that he is very frustrated with the fact that the court
has not moved his cases along as quickly as he would like (and frankly, as
quickly as the court would like). But the plaintiff has not presented any
evidence that the reason the court has ruled against him, or that it has not
ruled as quickly as he would like, is because of his gender or his race or the
fact that he is incarcerated. He says that facts have recently come to his
attention, but does not explain what those facts are. The only evidence the
plaintiff has presented is the fact that the court has not always ruled in his
favor. That is not enough to require a judge to disqualify herself. The court will
deny the plaintiff’s request that it recuse itself.
The plaintiff also takes issue with the fact that his cases all have been
assigned to Judge Pepper. The Clerk of Courts randomly assigns cases among
the judges in the Eastern District. Once a pro se plaintiff has a case open
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before one judge, however, the clerk’s office assigns any subsequent case the
plaintiff may file while that case is pending to the same judge; that is court
policy for all pro se cases, and the policy was in place when Judge Pepper
joined the district court.
III.

CONCLUSION
The court DENIES the defendant’s motion for summary judgment. Dkt.

No. 51.
The court DENIES the plaintiff’s motion for order to use legal loan. Dkt.
No. 67.
The court DENIES the plaintiff’s motion for reconsideration and recusal.
Dkt. No. 68.
The court ORDERS that the January 22, 2018 stay of scheduling
deadlines, dkt. no. 66, is LIFTED. If the defendant wishes to file a motion for
summary judgment on the merits of the plaintiff’s claims, he must do so by the
end of the day on October 5, 2018. If the defendant does not intend to file a
summary judgment motion on the merits, he should alert the court as soon as
possible so that it can schedule a trial. If the defendant does file a motion for
summary judgment, the plaintiff shall file his opposition brief (or a motion
asking for more time) by the end of the day on November 9, 2018; the
defendant shall file his reply, if any, by the end of the day on November 30,
2018.

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Dated in Milwaukee, Wisconsin this 29th day of August, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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