Baker v. Litscher et al

Filing 62

ORDER signed by Judge J P Stadtmueller on 3/15/2019. 36 Plaintiff's Third Motion to Appoint Counsel is DENIED. 38 and 44 Defendants' Motions for Summary Judgment are GRANTED. Plaintiff's claim against Defendant Paul Kempe r is DISMISSED with prejudice. Plaintiff's claims against all other defendants are DISMISSED without prejudice for failure to exhaust administrative remedies. CASE is DISMISSED. See Order. (cc: all counsel, via mail to Fontaine L. Baker, Sr. at Waupun Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
FONTAINE L. BAKER, SR.,
Plaintiff,
v.

Case No. 17-CV-1275-JPS

PAUL KEMPER, KRISTIN
VASQUEZ, LAURA FRAZIER,
MICHAEL HAGEN, KERI NACKER,
JENNIFER BAAS, PAMELA
FLANNERY-COOK, GARRETT
GROW, TRAVIS BRADY, JORI
BISHOP, MARCELO CASTILLO,
MORGAN DIX, JASON MOORE, and
JENNIFER THOMAS,

ORDER

Defendants.
1.

INTRODUCTION
On December 4, 2017, the Court screened Plaintiff’s initial complaint.

(Docket #11). Plaintiff alleged that Defendants participated in various ways
in denying him medication for his post-traumatic stress disorder (“PTSD”).
Id. at 3–7. The Court allowed Plaintiff to proceed on two claims: 1)
deliberate indifference to his serious medical needs, in violation of the
Eighth Amendment, and 2) medical malpractice claims against each of the
medical Defendants. Id. at 7–10. Plaintiff later amended his complaint to
withdraw the medical malpractice claim. (Docket #17).
All Defendants save Pamela Flannery-Cook (“Flannery-Cook”) are
represented by the Wisconsin Department of Justice (hereinafter the “State
Defendants”). Flannery-Cook has her own private counsel. Each set of
defendants filed a motion for summary judgment on August 1, 2018. (State

Defendants’ motion, Docket #38; Flannery-Cook’s motion, Docket #44). The
motions are now fully briefed, and for the reasons explained below, they
must be granted.
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.

BACKGROUND
3.1

Defendants’ Theories for Dismissal

All Defendants save Paul Kemper (“Kemper”) assert that Plaintiff’s
claim should be dismissed because he failed to exhaust his administrative
remedies as required by the Prison Litigation Reform Act (“PLRA”). If a
prisoner fails to exhaust his administrative remedies as to a particular
claim, the Court must dismiss the claim without reaching its merits. Perez
v. Wis. Dep’t of Corr., 182 F.3d 532, 535 (7th Cir. 1999). Kemper contests the
merits of Plaintiff’s claim, maintaining that he was not deliberately
indifferent to Plaintiff’s medical needs. The Court begins by addressing a
few preliminary matters, and then proceeds to discuss the facts relevant to
each of Defendants’ arguments.
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3.2

Exhaustion of Prisoner Administrative Remedies

It is helpful to review how the PLRA’s exhaustion requirement plays
out in the Wisconsin prison system prior to relating the relevant facts. 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 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); Smith v. Zachary, 255 F.3d
446, 452 (7th Cir. 2001); Burrell v. Powers, 431 F.3d 282, 284–85 (7th Cir. 2005).
Several important policy goals animate the exhaustion requirement,
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).
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). Exhaustion is a precondition to suit; a prisoner cannot file an action
prior to exhausting his administrative remedies or in anticipation that they
will soon be exhausted. Hernandez v. Dart, 814 F.3d 836, 841–42 (7th Cir.
2016); Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). A lawsuit must be
dismissed even if the prisoner exhausts his administrative remedies during
its pendency. Ford, 362 F.3d at 398.
The Wisconsin Department of Corrections (“DOC”) maintains an
Inmate Complaint Review System (“ICRS”) to provide a forum for
administrative complaints. Wis. Admin. Code DOC § 310.04. There are two
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steps an inmate must take to exhaust their administrative remedies under
the ICRS. First, the inmate must file a complaint with the Institution
Complaint Examiner (“ICE”) within fourteen days of the events giving rise
to the complaint. Id. §§ 310.07(1), 310.09(6). A complaint filed beyond that
time may be accepted by the ICE, in their discretion, if the inmate shows
good cause. Id. § 310.07(2). The inmate is required to expressly seek leave to
file a late complaint and provide reasons for their tardiness. Id.
The ICE may reject a complaint or, before accepting it, can direct the
inmate to “attempt to resolve the issue.” See id. §§ 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. § 310.11(6). 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. §§
310.07(2), 310.11.1 The reviewing authority may accept or reject the ICE’s
recommendation. Id. at § 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”). Id. §§ 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. §§ 310.07(7), 310.13, 310.14. 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. §§ 310.07(7), 310.14.
3.3

Plaintiff’s Failure to Dispute Most of the Material Facts

The relevant facts are largely undisputed because Plaintiff failed to
properly dispute them. In the Court’s scheduling order, entered January 4,
2018, Plaintiff was warned about the requirements for opposing a motion
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for summary judgment. (Docket #18 at 3–4). Accompanying that order were
copies of Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both
of which describe in detail the form and contents of a proper summary
judgment submission. In Defendants’ motions for summary judgment, they
too warned Plaintiff about the requirements for a response as set forth in
Federal and Local Rules 56. (Docket #38 and #44). Plaintiff was provided
with additional copies of those Rules along with the motions. Id. In
connection with their motions, Defendants filed supporting statements of
material facts that complied with the applicable procedural rules. (Docket
#40 and #48). The statements contained short, numbered paragraphs
concisely stating those facts which Defendants proposed to be beyond
dispute, with supporting citations to the attached evidentiary materials. See
id.
Plaintiff’s responses to Defendants’ statements of fact, as well as his
own proposed statements of fact, are almost entirely devoid of references
to evidence. See, e.g., (Docket #53). Rather, he simply states his disagreement
with the proposed fact (or his qualified agreement) in prose form without
citation to the record. Id. Plaintiff did provide some evidence in the form of
a ten-page affidavit and almost 250 pages of documents. (Docket #55 and
#55-1). Again, however, this information is largely unconnected with
Plaintiff’s actual responses to the statements of fact. This error is magnified
by the fact that some of the factual responses are accompanied by citations
to evidence. See (Docket #54 at 2–3). Thus, Plaintiff’s failure to cite evidence
for each of his purported disputes was a deliberate choice on his part (even
if motivated by nothing more than laziness).
Despite being twice warned of the strictures of summary judgment
procedure, Plaintiff ignored those rules by failing to properly connect his
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disputes or statements of fact with citations to relevant, admissible
evidence. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Though the Court
is required to liberally construe a pro se plaintiff’s filings, it cannot act as his
lawyer, and it cannot delve through the record to find favorable evidence
for him. Put another way, Plaintiff cannot foist his responsibility to cite
evidence onto the Court’s shoulders. Thus, the Court will, unless otherwise
stated, deem the majority of Defendants’ facts undisputed for purposes of
deciding their motions for summary judgment. See Fed. R. Civ. P. 56(e); Civ.
L. R. 56(b)(4); Hill v. Thalacker, 210 F. App’x 513, 515 (7th Cir. 2006) (noting
that district courts have discretion to enforce procedural rules against pro se
litigants). Only those few facts which are accompanied by a citation to
evidence will be assessed at all. This does not, of course, mean that such
statements will constitute a proper dispute or statement of the proposed
fact, but they will at least be considered by the Court.
3.4

Relevant Facts
3.4.1

Overview of Events

As to the majority of Defendants, the merits of Plaintiff’s claims are
not at issue in this Order. Thus, the Court provides only a brief discussion
of the conduct underlying this action. At all times relevant, Plaintiff was
incarcerated at Racine Correctional Institution (“RCI”). Kemper is RCI’s
warden, and the other Defendants are doctors, nurses, and guards.
On October 5, 2016, Plaintiff attempted to retrieve his medication
from Defendant Jason Moore (“Moore”). Moore initially gave Plaintiff the
wrong medication. When Plaintiff pointed this out, Moore looked at
Plaintiff’s medication sheet and noted that Plaintiff should not be receiving
any medications. The medications had apparently been stopped by
Plaintiff’s doctor, who believed that Plaintiff was being non-compliant with
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his course of medical treatment. Plaintiff disputes that he was
noncompliant. In any event, Moore sent him away empty-handed. Over the
remainder of October 2016, Plaintiff then repeatedly complained to the
other Defendants that he needed medical attention and the resumption of
his medications, but they were either slow to respond or entirely
nonresponsive. Eventually, Plaintiff was seen by a doctor on November 9,
2016, and his prescriptions were resumed.
Plaintiff contends that all Defendants except Kemper were
deliberately indifferent to his PTSD, depression, and insomnia because they
failed to remedy his lack of medication. He also alleges that some of the
defendant correctional officers made false entries in his medical records. As
to Kemper, Plaintiff maintains that his policy of allowing guards to
distribute medication and make medical file notations, rather than medical
staff, exhibited deliberate indifference.
3.4.2

Plaintiff’s Inmate Complaints

Plaintiff has filed numerous inmate complaints and is familiar with
the ICRS process. He filed two such complaints with respect to the events
of this case, both on November 27, 2016. In the first, RCI-2016-26906
(“26906”), Plaintiff complained that on October 5, 2016, he was given the
wrong medication by a correctional officer. Plaintiff refused to take the
medication, but the officer did not then supply the allegedly correct
prescription. The ICE rejected the complaint as untimely without
considering its merits. 26906 was submitted fifty days after the date of the
incident. Plaintiff tried to explain his delay by claiming that he had only
recently learned that his constitutional rights had been violated. The ICE
was apparently unmoved. Two days later, the ICE met with Plaintiff and

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confirmed that he had been provided his medication since the beginning of
November.
The second complaint, RCI-2016-26913 (“26913”), alleged that the
staff of the Health Services Unit (“HSU”) and Psychological Services Unit
(“PSU”) were ignoring Plaintiff’s medical conditions by abruptly
discontinuing his PTSD medication. In 26913, Plaintiff said that the issue
began on October 5 and continued through October 27 or November 9, 2016
(it is not entirely clear), and that various guards and medical staff failed to
respond to his requests for treatment.
As with 26906, the ICE rejected 26913 as untimely, being submitted
fifty-three days after the date of the incident. The ICE further noted that the
complaint came eighteen days after the issues were resolved; Plaintiff met
with a doctor on November 9, 2016 and was given new prescriptions. And
as before, the November 29, 2016 meeting confirmed that Plaintiff had been
provided with his medication since the beginning of November. The ICE
also checked with the HSU Manager, Defendant Laura Frazier (“Frazier”),
about Plaintiff’s concerns.1
3.4.3

Medication Distribution Policy

Plaintiff wrote to Kemper on November 16 and 21, 2016, outlining
his complaints with how his medication issues were being handled.
Plaintiff wrote again on December 9, 2016, wherein he specifically stated
that correctional officers should not be handling his medications or medical
records. Kemper delegated the investigation into Plaintiff’s complaints to
Frazier. He did not view Plaintiff’s complaints as emergent, as they related

Plaintiff filed another complaint around this time, RCI-2016-27117, but he
admits that it is not relevant to the claims in this case. (Docket #53 ¶ 35).
1

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to issues which arose two months prior. Kemper did write a curt response
to Plaintiff thanking Plaintiff for sharing his opinion. (Docket #55-1 at 37).
At most Wisconsin prisons, including RCI, the medication
distribution policy allows correctional officers to deliver most medications
directly to inmates. This excludes narcotic pain medication which is
handled by the nursing staff. Inmates who are in the general population can
receive their medications in a designated area in their unit, while those in
segregation are given the pills directly at their cell.
Psychotropic medications are distributed by officers to ensure that
the medicine is taken, avoid overdosing, and to limit the inmates’ ability to
sell the prescribed medications to other prisoners. These medications come
in blister packs. DOC policy directs that when delivering medication,
officers must compare the label on the blister pack to the relevant medical
record, to confirm that the correct medicine is being given to the correct
inmate at the proper time and in the right dosage. If the officer finds a
discrepancy between the medical record and the medication label, they
must contact a nurse before dispensing the pills.
Once the officer confirms that the information is consistent between
the record and the pack, the inmate is allowed to view the medication label
to verify the officer’s conclusion. Medication is only dispensed once both
parties have agreed that the information is correct. The officer then records
whether the inmate took the medication, refused it, or was otherwise
unable to take it during the medication pass. No inmate can be forced to
take medication, and so a refusal is simply noted in the medical record.
HSU is likewise responsible for ensuring that the medication labels
and medical record match for each prescription. HSU also educates
prisoners on the medical aspects of their medications, as well as the names,
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dosages, and times for taking those medications. The correctional officers
receive training on medication delivery both before they begin working,
and annually while employed. In addition to the DOC’s medication
policies, each institution’s inmate handbook describes the medication
delivery process.
A “medication occurrence” happens when medication is dispensed
inappropriately. HSU is required to document medication occurrences.
Correctional staff must report such occurrences to HSU staff, who then
complete the necessary paperwork to document the event.
4.

ANALYSIS
4.1

Failure to Exhaust Administrative Remedies

The failure to follow the procedural rules of a prison’s grievance
process constitutes a failure to exhaust administrative remedies. Or, more
precisely, a failure to properly exhaust administrative remedies. Woodford v.
Ngo, 548 U.S. 81, 90–91 (2006). Here, both of Plaintiff’s relevant inmate
complaints were rejected by the ICE as untimely. A rejected inmate
complaint does not achieve exhaustion, as it means that the prisoner failed
to follow all steps in the grievance process. Conyers v. Abitz, 416 F.3d 580,
584 (7th Cir. 2005); Edmonson v. McCaughtry, 157 F. App’x 908, 910 (7th Cir.
2005). Thus, Plaintiff’s administrative remedies remain unexhausted and he
cannot proceed on his claims against all Defendants save Kemper.
Plaintiff offers a number of arguments as to why the ICE should have
excused his tardiness, but they are not persuasive. He says the delay in
filing was due to his attempted compliance with RCI’s informal resolution
requirement. The RCI inmate handbook states that inmates are “expected”
to attempt to resolve their issues informally before filing a formal ICRS
complaint. (Docket #42-3 at 8). The handbook further states that if “the issue
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remains unresolved, [the inmate] can file a complaint[.]” Id. at 9. Plaintiff
explains that he proceeded through this informal resolution process from
the date of the incident, October 5, through November 22, 2016. Only after
the process was completed did he file his formal complaint.
Plaintiff’s argument fails to account for what was actually included
in his inmate complaints. In 26906, he listed the “date of incident” as
October 5, 2016. He cannot fault the ICE, then, for using that date to assess
timeliness. Plaintiff later supplemented 26906 to state, among other things,
that the “date of incident” spanned from October 5 to November 9, 2016.
Even calculated from November 9, Plaintiff’s complaint was still late. In
both his initial complaint and his appeal of the ICE’s rejection of the
complaint, Plaintiff’s primary excuse for lateness was that he had only
recently been told by a jailhouse lawyer that his rights may have been
violated. He also mentioned that he had been in segregation and not “in my
right state of mind.” (Docket #41-2 at 12).
In 26913, Plaintiff did not mention any excuse for his tardiness.
Instead, he listed the “date of incident” as October 5 through November 22,
2016. But in the “details” section of the complaint, the final date he
mentioned was November 9, 2016. This makes sense, as November 9 was
the day that Plaintiff’s prescriptions were resumed. In his appeal of the
rejection of 26913, Plaintiff again states that he filed the complaint after
being given legal advice, and that “this is a health and safety issue that is
ex[e]mpt from the time limit.” (Docket #41-3 at 13).
At no point in either complaint or appeal did Plaintiff explain that
he was late because he was busy completing the informal resolution
process. “This Court cannot second-guess the reviewing authority as to the
application of the ICRS’s procedural rules,” and certainly will not do so for
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reasons which were not presented to the ICE in accordance with those
procedural rules. Vanpietersom v. Peterson, Case No. 18-CV-60-JPS, 2018 WL
4178182, at *3 (E.D. Wis. Aug. 30, 2018); See Lindell v. O’Donnell, No. 05-C04-C, 2005 WL 2740999, at *17 (W.D. Wis. Oct. 21, 2005) (“This court cannot
re-examine [procedural] defaults and second-guess the application of state
procedures by state agencies and courts. For that reason, when the record
of an inmate’s use of the prison complaint system arrives in federal court,
it is what it is.”); Ford v. Johnson, 362 F.3d 395, 397 (7th Cir. 2004) (dismissal
of prisoner grievance for procedural reasons gives rise to procedural
default, which “blocks later attempts to litigate the merits”). Because
Plaintiff did not cite the informal resolution process to the ICE as a basis for
good cause to accept his late complaints, this Court cannot now consider
that position.
Plaintiff further argues that November 22, 2016 should be used as
the last “date of incident” for his complaints, because that is when he
completed the informal resolution process. The Court cannot accept this
reasoning. Complaints, and their associated “date of incident,” relate to the
underlying issue the inmate presents, such as an instance of excessive force,
failure to provide medical care, or the like. The informal resolution process
is not part of the “incident” and so cannot be counted to extend the time for
filing an ICRS complaint. To find otherwise would gut the timeliness
requirement entirely; an inmate would be free to decide when he believed
the informal process had been completed, and then file his complaint, even
if this were months or years after the incident. In any event, the ICE knew
all of this at the time she rejected Plaintiff’s complaints. This Court cannot
second-guess her decision.

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Fundamentally, any attempt to avoid the time limit based on the
informal resolution process is contrary to the plain language of the RCI
inmate handbook. As noted above, the handbook directs inmates to follow
the informal process before submitting a formal complaint. However, it
then reiterates that complaints “must be filed within 14 calendar days of the
original incident date.” (Docket #42-3 at 9). Critically, the handbook
explains that “[i]f you were directed by the ICE office to contact staff about
your issue, and do not receive a response, contact the ICE within fourteen
calendar days of the date of incident/denial or as directed by the ICE office.”
Id. Thus, the handbook confirms that, regardless of the status of an inmate’s
informal resolution process, they are required to begin the formal process
within fourteen days. Plaintiff did not do so.
Finally, Plaintiff contends that in his November 29, 2016 meeting
with the ICE, she invited him to file his complaints out-of-time. But this
cannot be true; the ICE promptly rejected the complaints for being untimely.
To the extent there is a dispute about the content of their conversation, the
written record is clear: Plaintiff failed to timely file his complaints, his
assertions of good cause for his tardiness were rejected, and the additional
arguments regarding good cause that he now offers in his legal briefs were
not presented to the ICE. Thus, Plaintiff has failed to exhaust his
administrative remedies and all Defendants save for Kemper are entitled to
summary judgment on that basis.
4.2

Medication Distribution Policy

The Eighth Amendment entitles prisoners to adequate medical care.
A prison official violates this entitlement when they exhibit deliberate
indifference to an inmate’s medical needs. Ordinarily, to establish a
violation of an inmate’s right to medical care, they must show that: 1) the
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inmate had a serious medical condition, 2) the prison official was
deliberately indifferent to addressing the condition, and 3) the official’s
indifference caused the inmate some injury. Gayton v. McCoy, 593 F.3d 610,
620 (7th Cir. 2010). Applying those elements to Kemper in this case, Plaintiff
must show that Kemper was deliberately indifferent to the dangers posed
by the policy of having correctional officers distribute medications.
Deliberate indifference is an exceedingly high level of culpability.
Negligence, even gross negligence, is not enough. Id. Rather, “deliberate
indifference is simply a synonym for intentional or reckless conduct, and
that ‘reckless’ describes conduct so dangerous that the deliberate nature of
the defendant’s actions can be inferred.” Id. (quotation omitted). Showing
deliberate indifference requires proof that the official was “aware of facts
from which the inference could be drawn that a substantial risk of serious
harm exists,” and proof that the official actually drew that inference. Id.
(quotation omitted).
Kemper’s conduct falls far short of deliberate indifference to a risk
of serious harm to Plaintiff. Detailed policies exist to control how
correctional officers go about distributing medication. Their conduct is
overseen by the medical staff, who are also responsible for checking forms
and educating inmates about their medications. Finally, the inmates
themselves have a say in their medications; no inmate is forced to take any
medication, and they are permitted to check the medication labels to ensure
that they are receiving the correct medicines.
The central bases of Plaintiff’s claim against Kemper are the
interaction on October 5, 2016, and the allegation that certain Defendants
made erroneous notations in his medical file. Absent evidence of consistent
danger to Plaintiff from the medications policies, these few mistakes cannot
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support Kemper’s liability in this case. See Richmond v. Dart, Case No. 12-C0954, 2012 WL 567245, at *2 (N.D. Ill. Feb. 17, 2012) (isolated errors in
medication distribution, though potentially harmful, cannot support
constitutional liability, and collecting cases in agreement). This assumes
that Plaintiff has any evidence of actual incorrect notations in his medical
file, which is not clear from the record.
Further, Plaintiff did not notify Kemper of these issues until well
after they had been resolved. By that time, Kemper could no longer do
anything directly to alleviate Plaintiff’s concerns. Instead, he directed
Frazier to investigate Plaintiff’s allegations. Burks v. Raemisch, 555 F.3d 592,
595 (7th Cir. 2009) (wardens can delegate tasks to medical personnel where
appropriate, because “[t]he division of labor is important not only to
bureaucratic organization but also to efficient performance of tasks; people
who stay within their roles can get more work done, more effectively”).
In sum, even though distribution of medication by correctional
officers may not be ideal, Plaintiff has failed to raise a triable issue as to
whether Kemper was deliberately indifferent to a serious risk of harm
posed by the relevant policies. Kemper is, therefore, entitled to summary
judgment.
5.

MOTION FOR APPOINTMENT OF COUNSEL
Prior to Defendants’ summary judgment filings, Plaintiff submitted

his third motion for appointment of counsel. (Docket #36). It is
substantively identical to his two previous such motions. Compare (Docket
#13 and #34) with (Docket #36). For the reasons previously explained, the
Court continues to conclude that appointment of counsel is not necessary
in this case. See (Docket #17 and #35).

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This conclusion is not altered by the fact that this case has reached
the summary judgment stage.2 Plaintiff has shown that he was able to
gather some evidence via discovery requests and present cogent arguments
in his briefs. The fact that he did not present his evidence in the proper
manner—by appropriately responding to Defendants’ statements of fact—
was due to his own willful flaunting of the procedural rules. Additionally,
unless appointed counsel possessed a time machine, they could do nothing
to help Plaintiff remedy his failure to exhaust his administrative remedies.
Finally, even with help from a lawyer, it seems clear that no construction of
the record evidence would result in constitutional liability for Kemper for
the medication distribution policy. Thus, the Court will deny Plaintiff’s
third motion for appointment of counsel.
6.

CONCLUSION
The bulk of Plaintiff’s claims must be dismissed because he failed to

properly exhaust his administrative remedies. Those claims will be
dismissed without prejudice.3 Plaintiff’s sole remaining claim against
Kemper fails because he has not shown that Kemper was deliberately
indifferent to a risk of harm posed by using correctional officers to dispense
medication. That claim will be dismissed with prejudice. With all of the
claims disposed, the Court will close this case.

The Court of Appeals directs district courts to be mindful of the advancing
stages of litigation when considering counsel appointment. McCaa v. Hamilton, 893
F.3d 1027, 1032 (7th Cir. 2018). But if, as here, Plaintiff repeatedly submits form
motions which contain no argument about any newfound difficulties based on the
stage of the case, this Court should bear no obligation to consider the issue. The
Court has nevertheless generously done so here; it does not alter the result.
2

Although it seems unlikely that Plaintiff will be able to complete the ICRS
process for his claim at this late date, dismissals for failure to exhaust are always
without prejudice. Ford, 362 F.3d at 401.
3

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Accordingly,
IT IS ORDERED that Plaintiff’s third motion for appointment of
counsel (Docket #36) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Defendants’ motions for summary
judgment (Docket #38 and #44) be and the same are hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s claims against
Defendants Kristin Vasquez, Laura Frazier, Michael Hagen, Keri Nacker,
Jennifer Baas, Pamela Flannery-Cook, Garrett Grow, Travis Brady, Jori
Bishop, Marcelo Castillo, Morgan Dix, Jason Moore, and Jennifer Thomas
be and the same are hereby DISMISSED without prejudice;
IT IS FURTHER ORDERED that Plaintiff’s claim against Defendant
Paul Kemper be and the same is hereby DISMISSED with prejudice; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 15th day of March, 2019.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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