Haskell v. Walls et al

Filing 31

ORDER signed by Judge J.P. Stadtmueller on 3/20/2018: GRANTING 22 Defendants' Motion for Summary Judgment and DISMISSING CASE without prejudice for Plaintiff's failure to exhaust his administrative remedies. (cc: all counsel, via mail to Wayne Haskell at Oshkosh Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WAYNE HASKELL,
Plaintiff,
v.

Case No. 17-CV-1491-JPS

KARL STRELNICK and PATRICK
MURPHY,

ORDER

Defendants.
1.

INTRODUCTION
On December 6, 2017, the Court screened Plaintiff’s complaint and

allowed him to proceed on a claim under the Eighth Amendment for
Defendants’ deliberate indifference to his serious medical needs. (Docket
#13). On February 5, 2018, Defendants moved for summary judgment on
the basis of Plaintiff’s failure to exhaust his administrative remedies as
required by the Prison Litigation Reform Act (“PLRA”). (Docket #22).
Plaintiff responded to the motion on February 27, 2018, (Docket #28), and
Defendants replied on March 12, 2018, (Docket #30). For the reasons
explained below, Defendants’ motion 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); 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

Plaintiff’s Failure to Dispute the Material Facts

The relevant facts are undisputed because Plaintiff failed to dispute
them. In the Court’s scheduling order, entered January 4, 2018, Plaintiff was
warned about the requirements for opposing a motion for summary
judgment. (Docket #20 at 2–3). 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’ motion for summary judgment, they too
warned Plaintiff about the requirements for his response as set forth in
Federal and Local Rules 56. (Docket #22). He was provided with additional
copies of those Rules along with Defendants’ motion. Id. at 3–13. In
connection with their motion, Defendants filed a supporting statement of
material facts that complied with the applicable procedural rules. (Docket
#24). It 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 did not file a document titled as a response to Defendants’
statement of facts. Instead, he filed a three-page legal brief and a three-page
declaration. (Docket #28, #29). Neither complies with the above-mentioned
procedural rules; Plaintiff does not attempt to respond to Defendants’
proposed facts with citations to evidence. Despite being twice warned of
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the strictures of summary judgment procedure, Plaintiff ignored those rules
by failing to properly dispute Defendants’ proffered facts 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. Thus, the Court will, unless otherwise
stated, deem Defendants’ facts undisputed for purposes of deciding their
motion 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).1
3.2

Exhaustion of Prisoner Administrative Remedies

It will be 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).

In the end, Plaintiff’s procedural foible does not matter much. The material
facts are not meaningfully disputed, only their legal import. Compare (Docket #24),
with (Docket #29). Relatedly, Plaintiff’s responsive materials insist that he has
raised a dispute of fact about exhaustion of his administrative remedies, and so
the question must be left to a jury. (Docket #28 at 3). Plaintiff is incorrect.
Exhaustion is a question for the Court and is never presented to a jury. Pavey v.
Conley, 544 F.3d 739, 740-41 (7th Cir. 2008).
1

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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, 255 F.3d at 450–51.
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 maintains an Inmate
Complaint Review System (“ICRS”) to provide a forum for administrative
complaints. Wis. Admin. Code § DOC 310.04. There are two steps inmates
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).2 If the complaint is not rejected, the ICE

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).
2

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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. 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.
3.3

Relevant Facts

The facts are drawn from Defendants’ proposed findings of fact
unless otherwise noted. At all times relevant, Plaintiff has been incarcerated
at Oshkosh Correctional Institution (“Oshkosh”). Plaintiff claims he suffers
from bipolar disorder and type-2 diabetes, among other conditions. In 2012,
he was prescribed lithium by a prison doctor, either Defendant Karl
Strelnick (“Strelnick”) or Defendant Patrick Murphy (“Murphy”), both of
whom are doctors who cared for Plaintiff. Plaintiff says the prescribing
doctor mistakenly prescribed too high a dosage, leading to lithium toxicity,
acute renal failure, a coma, and an eight-day stay in a hospital intensive care
unit in May 2015. Plaintiff appears to claim that these two doctors should
have discovered the alleged excessive dosage before it resulted in toxicity.
Oshkosh records reveal that Plaintiff did not file any inmate
complaints in 2015. His first complaint related to the facts of this lawsuit
was filed on January 25, 2016. Plaintiff asserted that his lithium medication
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caused his 2015 coma and he had just discovered that fact on January 23,
2016. The ICE, identified as “T. Murphy” (“Murphy”) investigated the
complaint by contacting the Health Services Manager (“HSM”). In
consultation with the HSM and upon review of Plaintiff’s medical records,
Murphy dismissed the complaint. Murphy determined that Plaintiff’s
lithium dosage and levels were not abnormal, and it was not clear precisely
what caused Plaintiff to “be so sick due to multiple medical issues going on
at the same time.” (Docket #25-2 at 2). Murphy felt that Plaintiff failed to
present a claim of deliberate indifference under the Eighth Amendment. Id.
Rather, he simply disagreed with his course of treatment. Id.
The reviewing authority, “J. Anders” (“Anders”) agreed that
Plaintiff’s complaint should be dismissed, but “with modification.” Id. at 4.
Anders stated as follows:
reviewed complaint and relevant medical records, dismiss
with modification as appears lithium levels were measured in
10/14 and was 0.8wnl.
appears that lisinopril was added to lithium between 10/14
and 5/15 without rechecking lithium levels, or reducing
lithium dose.
no evidence psychiatry was consulted or made aware of
addition of lisinopril so psychiatry would have not had
opportunity to reduce lithium dose, stop lithium, or
alternatively measure li levels closely.
lithium toxicity likely related to addition of lisinopril but not
clear if psychiatry made aware of this addition.
Id.
Although this narrative is grammatically precarious, it appears
Anders sought to clarify why Strelnick or Murphy accidentally prescribed
too high a dosage of lithium. Id. Anders reports that the medical records

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show that neither doctor was informed that another medication, lisinopril,
was added to Plaintiff’s medication regimen without rechecking lithium
levels. Id. Thus, the physicians were unknowingly operating on lithium
level measurements that were inaccurate. Id.
With

that

matter

explained,

Anders

affirmed

the

ICE’s

recommendation of dismissal. Along with Anders’ dismissal, Plaintiff was
provided a notice of his right to appeal. He did not do so.
Plaintiff filed two additional complaints much later in time. The first,
filed on March 8, 2017, claimed that Strelnick was deliberately indifferent
to his medical needs with respect to the May 2015 hospitalization. The
second, submitted on July 25, 2017, asserted that Murphy was deliberately
indifferent with respect to a prescription issued on May 22, 2016. Both
complaints were rejected as untimely, and that determination was upheld
on appeal.
4.

ANALYSIS
Defendants’ submissions demonstrate that Plaintiff has failed to

exhaust his administrative remedies. Though he began the ICRS process by
filing the January 25, 2016 complaint, he failed to take it across the finish
line by appealing the complaint’s dismissal to the CCE and the Secretary.3
Plaintiff’s counters that he did not need to appeal Anders’ decision
because he thought it was favorable to him. (Docket #28 at 3). He queries,
“[why] would Plaintiff need to appeal when [Anders] acknowledge[d] that
[there was] [n]o evidence [that] psychiatry was consulted.” Id. Plaintiff cites

The two later complaints quite clearly did not achieve exhaustion, as they
were rejected for untimeliness. Pozo, 286 F.3d at 1025 (finding that prisoners must
comply with administrative rules for exhaustion, including time limits). The only
real dispute is as to the 2016 complaint.
3

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no authority in support of this contention, and Defendants likewise fail to
do so in their reply. See (Docket #28, #30).
The Court, left to conduct its own research, finds that Plaintiff’s
argument is without merit. In Toomer v. BCDC, 537 F. App’x 204, 206 (4th
Cir. 2013), the Fourth Circuit found that appealing a decision the inmate
found to be favorable was not necessary to achieve exhaustion, for there
was no other or further relief that a higher-level reviewer could be expected
to provide. Though Plaintiff likewise felt that there was no need to appeal,
(Docket #29 at 2–3), there was indeed relief that the CCE or the Secretary
could have provided Plaintiff on appeal. The dismissal of his grievance
meant that Murphy found that there was no deliberate indifference to his
medical needs. Anders agreed with this determination and affirmed the
dismissal.
The modification Anders provided was merely additional
information regarding Plaintiff’s course of treatment and a potential
explanation of the circumstances or errors leading to the lithium overdose.
Absent from Anders’ decision is a finding that these circumstances or errors
constituted deliberate indifference to Plaintiff’s medical need—or, more
specifically, a disagreement with Murphy’s conclusion to that effect. If he
had appealed, Plaintiff might have persuaded the CCE or the Secretary to
adopt his view of his medical care, even if they could not have awarded
damages. Booth v. Churner, 532 U.S. 731, 731 (2001) (holding that exhaustion
is required even if the process could not result in a prisoner’s desired form
of relief). The Court cannot forgive the failure to exhaust merely because
Plaintiff misunderstood Anders’ commentary as being favorable to him.
Another helpful comparator is the Seventh Circuit’s decision in
Dixon v. Page, 291 F.3d 485 (7th Cir. 2002). There, the inmate sought transfer
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via a grievance. Id. at 487. The prison granted his request, but then never
followed through with the transfer. Id. at 490. Although it found that the
inmate had failed to exhaust for other reasons, the Seventh Circuit observed
that “[r]equiring a prisoner who has won his grievance in principle to file
another grievance to win in fact is certainly problematic,” for it might place
the inmate in a never-ending cycle of grievances. Id.; see also Abney v.
McGinnis, 380 F.3d 663 (2d Cir. 2004) (repeated unsuccessful grievances
about failure to implement relief satisfied exhaustion requirement).
Plaintiff’s case is not of this type. He was not granted any relief at all
during review of his grievance, not even a declaration that his rights had
been violated. Thus, he was in no danger of being granted some relief
without the prison following through on effectuating it. Rather, he needed
to appeal to convince a higher authority to grant him some relief in the first
place.
Put simply, exhaustion of administrative remedies must take one of
two forms. In the first, prison officials dismiss an inmate’s complaint. The
inmate is then required to appeal that dismissal as far as the ICRS process
allows. The second form of exhaustion occurs when prison officials affirm
the inmate’s complaint. In doing so, the officials are agreeing with the inmate
that he was mistreated in some way. Affirming the complaint also normally
results in the inmate receiving some relief. While Anders’ decision is
certainly not the picture of clarity, it fits better into the first category rather
than the second. Anders agreed that Plaintiff’s rights were not violated and
attempted to explain the reason for the unfortunate overdose incident. His
words were clarification, nothing more.

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5.

CONCLUSION
Plaintiff failed to contest the facts Defendants proffered. Viewing the

undisputed facts in the light most favorable to Plaintiff, the Court is obliged
to conclude that this lawsuit must be dismissed because he failed to
properly exhaust his administrative remedies. This action will, therefore, be
dismissed without prejudice.4
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #22) be and the same is hereby GRANTED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED without prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 20th day of March, 2018.
BY THE COURT:

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

Although it seems clear that Plaintiff will not be able to complete the ICRS
process for his claims at this late date, dismissals for failure to exhaust are always
without prejudice. Ford, 362 F.3d at 401.
4

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