Osborne v. Wisconsin Department of Corrections et al

Filing 45

ORDER signed by Judge J.P. Stadtmueller on 12/27/2017: GRANTING 32 Defendants' Motion for Partial Summary Judgment; DISMISSING without prejudice Plaintiff's claims for medical malpractice and for deliberate indifference to serious medical needs; and DISMISSING Defendants Elizabeth Haase, Shari Klenke, and Angela Thompson from action. See Order. (cc: all counsel, via mail to Joshua J. Osborne at Redgranite Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSHUA J. OSBORNE,

v.

Plaintiff,

WARDEN MICHAEL MEISNER,
SANDRA HAUTAMAKI, ANDREW
WESNER, CHAD KELLER, MATTHEW
FOCHS, JASON RALLS, DEANNA
TIMM, COREY HEFT, KIMBERLY
JOHNSON, TRAVIS RODER, ANGELA
THOMPSON, ELIZABETH HAASE,
SHARI KLENKE, and BRIAN SMITH,

Case No. 17-CV-754-JPS

ORDER

Defendants.
1.

INTRODUCTION
Plaintiff Joshua Osborne, a prisoner, brings this action pursuant to

42 U.S.C. § 1983 against Defendants, various employees at Redgranite
Correctional Institution, alleging that they housed him in filthy conditions
which led to him suffering a severe rash and bug bites. (Docket #22 at 2-4).
Plaintiff was allowed to proceed on three claims: “(1) inadequate conditions
of confinement. . .; (2) medical malpractice under Wisconsin state law . . .;
and (3) deliberate indifference to his serious medical needs[.]” Id. at 5-6.
Defendants filed a motion for partial summary judgment on November 16,
2017, arguing that Plaintiff failed to exhaust his administrative remedies
before filing suit as to the latter two claims. (Docket #32). The motion has
been fully briefed, and for the reasons stated below, it will be granted.

2.

STANDARD OF REVIEW
2.1

Summary Judgment

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); 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).
2.2

Exhaustion of Prisoner Administrative Remedies

The Prison Litigation Reform Act (“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 he
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); Burrell v. Powers, 431 F.3d 282, 284–85 (7th Cir. 2005). A suit must be
dismissed if it was filed before exhaustion was complete, even if exhaustion
is achieved before judgment is entered. Perez v. Wis. Dep’t of Corr., 182 F.3d
532, 535 (7th Cir. 1999). Several important policy goals animate the
exhaustion requirement, including restricting frivolous claims, giving
prison officials the opportunity to address situations internally, giving the
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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).
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).
The Wisconsin Department of Corrections maintains an Inmate
Complaint Review System (“ICRS”) to provide a forum for administrative
complaints. Wis. Admin. Code § DOC 310.04. There are two steps an inmate
must take to exhaust their administrative remedies under the ICRS. First,
the inmate must file an offender complaint with the Institution Complaint
Examiner (“ICE”) within fourteen days of the events giving rise to the
complaint. Id. §§ DOC 310.07(1), 310.09(6). The ICE may reject a complaint
or, before accepting it, can direct the inmate to “attempt to resolve the
issue.” See id. §§ DOC 310.08, 310.09(4), 310.11(5). If the complaint is
rejected, the inmate may appeal the rejection to the appropriate reviewing
authority. Id. § DOC 310.11(6).1 If the complaint is not rejected, the ICE
issues a recommendation for disposing of the complaint, either dismissal or
affirmance, to the reviewing authority. Id. §§ DOC 310.07(2), 310.11. The
reviewing authority may accept or reject the ICE’s recommendation. Id. §
DOC 310.07(3).
Second, if the ICE recommends dismissal and the reviewing
authority accepts it, the inmate may appeal the decision to the Corrections
Complaint Examiner (“CCE”) within ten days. Id. §§ DOC 310.07(6), 310.13.
The CCE issues a recommendation to the Secretary of the Department of
Corrections who may accept or reject it. Id. §§ DOC 310.07(7), 310.13, 310.14.

The ICRS defines a “reviewing authority” as “the warden, bureau director,
administrator or designee who is authorized to review and decide an inmate
complaint.” Wis. Admin. Code § DOC 310.03(2).
1

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Upon receiving the Secretary’s decision, or after forty-five days from the
date

the

Secretary

received

the

recommendation,

the

inmate’s

administrative remedies are exhausted. Id. §§ DOC 310.07(7), 310.14.
3.

RELEVANT FACTS
The material facts are as follows. Plaintiff filed one timely inmate

complaint related to his claims in this case. That complaint, submitted on
September 23, 2016, stated in pertinent part:
I am sleeping on the floor in seg[.]
...
On 9-21-16 I was told by C/O II to pack my stuff from
D-wing that I was moving to C-wing and going to have a
cellie. Since [I]’ve moved in C-6 I’ve been sleeping on the floor
and I have bug bites all over me[.] I’ve told the C/O’s and got
the response to[o] bad we’re over crowded. The rooms in seg
are set up for one person not two people. My mat[t]ress is on
the floor on top the shower drain and is right next to the toilet.
Thank you for your time in this matter.
(Docket #35-2 at 11). In the “action requested” section, Plaintiff said:
“[e]ither to be on the slab of concrete provided to us while in seg or to just
be in a cell me[a]nt for one person and only one person not two. Or let me
into gp [general population].” Id. at 12. The ICE recommended dismissal of
the complaint on October 5, 2016, and the reviewing authority accepted that
recommendation on October 9, 2016. He appealed the dismissal on October
12, 2016, stating:
On 9-22-16 I was forced out of D-wing RHU to C-wing
RHU due to work being done but was forced to double up in
a single cell and had to sleep on the floor on top [of] a shower
drain next to a toilet 2 feet from on a flat single mattress not
even 6 inch off the ground and no accommodation. I spent 2
weeks in this inhuman and unsanitary state and notif[i]ed all
possibil[ities] about this issue and was denied/dismissed on

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my ICRS complaint and got denied of all request to move
cells[.]
Id. at 13. Plaintiff’s appeal was denied on November 21, 2016.
The complaint relates only to Plaintiff’s conditions of confinement
and makes no mention of medical issues. Plaintiff addresses this failing in
two ways. First, he says that his medical conditions “should have been
obvious to [Defendants] upon even a glimps[e] into the cell” or by looking
at the rash and bug bites on his body. (Docket #38 at 3). Plaintiff also claims
that Defendants were put “on notice verbally to the living conditions and
[his] medical needs, in complaint form, contacting deputy warden
personally, the further HSU requests for medical attention, and fully
exhausting remedies all the way to Madison[.]” Id.; see also (Docket #40-1 at
6) (an “Interview/Information Request” form from Plaintiff to the deputy
warden, listing prior complaints about cell conditions and further stating
that he had “what looks like bug bites on my body.”).
Second, Plaintiff points to a second inmate complaint he filed on
November 22, 2017. (Docket #43-1 at 8). This complaint is directed at his
medical care “in September 2016 while in RHU[.]” Id. That same day, the
ICE rejected the complaint as being submitted beyond the fourteen-day
time limitation without good cause for the delay. Id. at 2-3. Plaintiff
appealed the rejection, but it was affirmed by the reviewing authority on
December 4, 2017. Id. at 5.
4.

ANALYSIS
The undisputed facts demonstrate that Plaintiff has not exhausted

his administrative remedies with respect to his medical claims in this case.
Plaintiff’s only timely inmate complaint made no mention of any medical
issues. Further, his arguments to the contrary are meritless. Plaintiff claims
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that his verbal complaints and his various other written correspondences,
like health service requests and information requests to prison authorities,
served as a substitute for following the ICRS procedures. This is incorrect.
To exhaust his administrative remedies, Plaintiff was required to follow the
straightforward ICRS procedures, a process he clearly knew how to
navigate as demonstrated by the September 23, 2016 complaint and appeal.
Similarly, most of Plaintiff’s response brief focuses on Defendants’ notice of
his medical needs as related to their liability under the Eighth Amendment.
(Docket #37 at 3-9, 11-12). This is immaterial to his compliance with the
PLRA’s exhaustion requirement. His failure to raise his medical concerns
through the ICRS process means that they cannot be heard in this Court.
Pozo, 286 F.3d at 1025 (“Prisoner[s] must file complaints and appeals in the
place, and at the time, the prison’s administrative rules require.”).
Plaintiff’s November 22, 2017 complaint does not help him either.
The complaint was filed far out of time and rejected on that basis.
Complaints rejected for their procedural failings do not serve to exhaust an
inmate’s administrative remedies. Conyers v. Abitz, 416 F.3d 580, 585 (7th
Cir. 2005) (“[A] procedural shortcoming like failing to follow the prison’s
time deadlines amounts to a failure to exhaust only if prison administrators
explicitly relied on that shortcoming.”). Even if the recent complaint had
been accepted by prison officials, and Plaintiff had carried it through the
rest of the ICRS process, it could not save the medical claims in this case.
“[A] suit filed by a prisoner before administrative remedies have been
exhausted must be dismissed; the district court lacks discretion to resolve
the claim on the merits, even if the prisoner exhausts intra-prison remedies
before judgment.” Perez, 182 F.3d at 535.

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5.

CONCLUSION
The undisputed facts demonstrate that Plaintiff failed to properly

exhaust his administrative remedies with respect to his medical claims
prior to instituting this lawsuit. Those claims, claims two and three
identified in the Court’s August 25, 2017 screening order, must be
dismissed without prejudice. (Docket #22 at 5-6).2 Defendants Elizabeth
Haase, Shari Klenke, and Angela Thompson were named only in relation
to those claims, and so they too shall be dismissed from this action.
Accordingly,
IT IS ORDERED that Defendants’ motion for partial summary
judgment (Docket #32) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s claims for medical
malpractice and for deliberate indifference to his serious medical needs,
(Docket #22 at #5-6), be and the same are hereby DISMISSED without
prejudice; and
IT IS FURTHER ORDERED that Defendants R.N. Elizabeth Haase,
Nurse Klenke, and R.N. Thompson be and the same are hereby
DISMISSED from this action.
Dated at Milwaukee, Wisconsin, this 27th day of December, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

Although it appears certain, given the rejection of his November 22, 2017
complaint, that Plaintiff will not be able to complete the ICRS process for his
unexhausted claims, dismissals for failure to exhaust are always without
prejudice. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004).
2

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