Tisher v. Tannan

Filing 33

ORDER signed by Judge J.P. Stadtmueller on 8/21/2018: GRANTING 19 Defendant's Motion for Summary Judgment; DENYING as moot 23 Defendant's Motion to Stay; DENYING 27 Plaintiff's Motion to Appoint Counsel; and DISMISSING CASE without prejudice. (cc: all counsel, via mail to Thomas R. Tisher) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THOMAS R. TISHER,
Plaintiff,

v.

Case No. 18-CV-197-JPS

DR. DILIP TANNAN,
Defendant.
1.

ORDER

INTRODUCTION
On March 21, 2018, the Court screened Plaintiff’s amended

complaint and allowed him to proceed on a claim under the Eighth
Amendment for Defendant’s deliberate indifference to his serious medical
needs. (Docket #9). On July 5, 2018, Defendant 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 #19). While Plaintiff has filed some materials in the time allowed
for his response, as explained below, none are meaningfully responsive to
the motion. See (Docket #27, #28, and #29). Defendant replied on August 9,
2018. (Docket #31). For the reasons explained below, Defendant’s 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); 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

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 April 6, 2018, Plaintiff was
warned about the requirements for opposing a motion for summary
judgment. (Docket #13 at 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 Defendant’s motion for summary judgment, he too warned
Plaintiff about the requirements for a response as set forth in Federal and
Local Rules 56. (Docket #19). He was provided with additional copies of
those Rules along with Defendant’s motion. Id. at 3–12. In connection with
his motion, Defendant filed a supporting statement of material facts that
complied with the applicable procedural rules. (Docket #21). It contained
short, numbered paragraphs concisely stating those facts which Defendant
proposed to be beyond dispute, with supporting citations to the attached
evidentiary materials. See id.
Plaintiff filed nothing which could be considered a response to
Defendant’s statement of facts. See infra Part 4. Despite being twice warned
of the strictures of summary judgment procedure, Plaintiff ignored those
rules by failing to properly dispute Defendant’s proffered facts with
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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 Defendant’s 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).
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).
Failure to exhaust administrative remedies is an affirmative defense to be
proven by Defendant. 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

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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
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). 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.

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3.3

Relevant Facts

At all times relevant, Plaintiff was an inmate at Oshkosh
Correctional Institution and Defendant was a physician employed by the
DOC. Plaintiff alleges that on August 29, 2017, Defendant prescribed him
codeine for back pain, despite knowing that Plaintiff was allergic to
codeine. (Docket #9 at 1). This caused Plaintiff to have an allergic reaction
which required hospitalization. Id.
Upon review of DOC records, Defendant located only one grievance
filed by Plaintiff that is arguably relevant to this case. See (Docket #22-1).
The complaint was filed on August 3, 2017, substantially before the
complained-of event, and expressed a general desire for increased
treatment of Plaintiff’s back and leg pain. See (Docket #22-2 at 11–12). The
ICE recommended dismissal of the complaint because Plaintiff’s pain issues
were being well-handled by the medical staff. Id. at 2–4. The reviewing
authority accepted that recommendation. Id. at 5. Plaintiff did not appeal
the dismissal.
4.

ANALYSIS
Plaintiff did not file a brief in opposition to Defendant’s motion. The

Court could thus simply grant the motion summarily. Civ. L. R. 7(d).
Nevertheless, taking Defendant’s facts as undisputed, he is correct that
Plaintiff has not exhausted his administrative remedies. Plaintiff did not file
a grievance about Defendant’s specific conduct on August 29. There is no
reason to treat the August 3 grievance as an appropriate attempt to exhaust
administrative remedies for an issue that had not yet occurred. Further, the
August 3 complaint says nothing about an allergic reaction to codeine.
Finally, assuming none of this mattered, Plaintiff nevertheless failed to
appeal the August 3 grievance and thus complete the ICRS process. On the
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face of Defendant’s submissions, this lawsuit must be dismissed for want
of exhaustion.
On August 6, 2018, the deadline for responding to Defendant’s
motion, Plaintiff filed three documents. None of them change the Court’s
conclusion. One is captioned as “Plaintiff’s proposed undisputed facts.”
(Docket #29). The document does not attempt to respond to Defendant’s
statement of facts. Id. Indeed, most of the proposed facts are irrelevant to
Defendant’s motion. Id. The only fact of note is Plaintiff’s assertion that he
“continued to exhaust all remedies through Jackson Correctional and Black
River Fall Correctional Center.” Id. at 2.
Though this statement appears to create a dispute about the
exhaustion issue, it is fatally flawed and must therefore be disregarded.
First, the statement is not followed by a citation to any evidence. Id.; Civ. L.
R. 56(b)(2)(B)(i); Fed. R. Civ. P. 56(c)(1)(A). Second, and more importantly,
the statement is not actually supported by any of the evidence Plaintiff
submitted. Plaintiff does not swear to the truth of the statement. See
generally (Docket #29) (the “proposed undisputed facts” document is not
sworn, nor is it accompanied by an affidavit). Even if he had, he lacks
documentary evidence to buttress his assertion. Most of the twenty-four
pages of exhibits Plaintiff provided are irrelevant to exhaustion. See id. at 3–
26. Plaintiff does include a few documents related to his inmate complaints,
but nothing which is not accounted for in Defendant’s records. See id. at 6–
13; (Docket #22-1). Without any evidence that he did indeed continue to
attempt to exhaust his administrative remedies, the Court cannot accept
Plaintiff’s assertion as true.
Plaintiff’s two other submissions are entirely non-responsive to
Defendant’s motion. The first is a motion “for leave to retain a[n] attorney.”
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(Docket #27). Plaintiff states that he is undergoing medical treatment which
will inhibit his ability to litigate, and so wants to find a lawyer to continue
pursuing this action on his behalf (Plaintiff has apparently been released
from prison). Id. The motion will be denied. Plaintiff’s lawsuit fails for
reasons which no lawyer could help him avoid; no one can go back in time
and properly complete the ICRS process for him. In any event, the request
comes far too late in the pendency of this action. Plaintiff chose to bring this
lawsuit without counsel and must accept the consequences of that decision.
Plaintiff’s second filing is a set of discovery requests directed to Defendant.
(Docket #28). Not only should these have been sent to Defendant directly,
not filed with the Court, see Fed. R. Civ. P. 5(d), the requests have nothing
to do with exhaustion of administrative remedies, (Docket #28 at 3).
5.

CONCLUSION
Plaintiff failed to properly contest the facts Defendant proffered or

offer any valid legal or factual argument against the propriety of summary
judgment. 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.1
Defendant’s pending motion to stay will be denied as moot. (Docket #23).
Accordingly,
IT IS ORDERED that Defendant’s motion for summary judgment
(Docket #19) be and the same is hereby GRANTED;

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.
1

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IT IS FURTHER ORDERED that Defendant’s motion to stay
(Docket #23) be and the same is hereby DENIED as moot;
IT IS FURTHER ORDERED that Plaintiff’s motion for leave to
retain an attorney (Docket #27) be and the same is hereby DENIED; 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 21st day of August, 2018.
BY THE COURT:

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

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