Barrett v. Mahaga, et al.

Filing 85

DECISION AND ORDER signed by Judge William C. Griesbach on 6/3/21. Armor Defendants' 37 motion of summary judgment on exhaustion is DENIED, the County Defendants' 41 motion for summary judgment on exhaustion is GRANTED, and Barrett's claims against the County Defendants are DISMISSED without prejudice. (cc: all counsel and mailed to pro se party)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CARL BARRETT,
Plaintiff,
v.

Case No. 20-C-1128

ARMOR CORRECTIONAL
HEALTH SERVICES INC., et al.,
Defendants.
DECISION AND ORDER
Plaintiff Carl Barrett, who is serving a state prison sentence at Green Bay Correctional
Institution and is representing himself, filed this action pursuant to 42 U.S.C. §1983, alleging that
his civil rights were violated while he was incarcerated at the Milwaukee County Jail. On March
16, 2021, Defendants Armor Correctional Health Services Inc., Mahita Gone, and Mercy Mahaga
(the Armor Defendants) moved for summary judgment on the ground that Barrett failed to exhaust
the available administrative remedies before he initiated this lawsuit. Dkt. No. 37. Two days later,
on March 18, 2021, Defendants Nancy Evans, Matthew McCoy, Janine Montoya, Devonta
Townes, and Jackeline Velez (the County Defendants) moved for summary judgment on the same
ground. The Court will deny the Armor Defendants’ motion and grant the County Defendants’
motion.
BACKGROUND
Barrett is proceeding on Eighth Amendment claims against the Armor and County
Defendants based on allegations that they were deliberately indifferent to his serious medical
needs. He also is proceeding on a First Amendment claim against the County Defendants based

on allegations that they retaliated against him by placing him on disciplinary status for reporting a
medical emergency.
Barrett, who had injuries from having been shot in his face, arm, and finger, began filing
grievances regarding his medical needs within a week of arriving at the jail. See Dkt. No. 42 at
¶2; Dkt. No. 39-2 at 2. On May 11, 2016, Barrett submitted his first grievance explaining that he
had bullets lodged in his jawbone and shoulder and was in pain. Dkt. No. 39-2 at 3. He noted that
he had been examined by “Mary” but she only took his temperature and blood pressure. Id.
According to Barrett, she told him he would receive none of the treatment or medication he had
been receiving at his prior institution due to County policy. Id. Shortly thereafter, Barrett
submitted a second grievance asserting that the doctor at his prior institution had prescribed
Tylenol 3 and gabapentin for his pain, but he had not seen a doctor or received any medication
since arriving at the jail. Id. at 2. On May 16, 2016, Barrett received an acknowledgement
informing him that his “grievance ha[d] been sent to Medical for a response.” Id. at 1. There is
no record of Barrett receiving a response from medical.
On July 15, 2016, Barrett submitted several grievances noting that he had reported a
“medical emergency” to the County Defendants, but they had ignored him and refused to contact
health services. Dkt. No. 39-2 at 9-10. Barrett asserted that they had ignored his emergency “due
to an MCJ shakedown” and had placed him in disciplinary status for reporting his shoulder pain.
Id. at 9. Two days later, Barrett received a response informing him that Armor Medical was aware
of his shoulder pain, for which he was receiving Tylenol. Id. at 8. The response also noted, “[a]s
to the discipline issue, you were a refusal to lock in your cell in Pod 5C on July 15th, 2016. That
is why you were placed on discipline.” Id. There is no record of Barrett appealing the response
or raising his complaints about the County Defendants in a subsequent grievance.

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A couple of weeks later, on July 26, 2016, 1 Barrett filed a grievance explaining that “the
inside of [his] finger (guts) is pushing out of [his] fingernail.” Dkt. No. 39-2 at 17. He stated that
the wound was bleeding and had puss, and he believed it was becoming infected. Id. Barrett
asserted that he had filed “numerous pink & white & white [sic] slips” and that medical was and
had been aware of the problem but they were refusing to address it. Id. Barrett complained of
“constant pain, tingling, numbness of [his] finger with no treatment.” Id. The next day, Barrett
received an acknowledgement informing him that his “grievance will be forwarded to Medical for
a response.” Id. at 16. That same day, the jail sent a letter to medical, explaining that Barrett had
complained that he was being refused medical attention for his finger. Id. at 15. The letter
requested medical to “read the attached grievance and provide a response in a format that can be
forwarded to the inmate by:7/31/2016.” Id. at 15. There is no record of Barrett receiving a
response from medical.
Several months later, on October 25, 2016, Barrett filed yet another grievance
complaining about being denied medical care. Dkt. No. 39-2 at 27. He explained that he spoke
with a “Dr. Maheeda” and, while she did not know why he was there, he told her he has several
rods in his body and that the rod and screw in his finger were turning green and looking rusty. Id.
He noted that he had been denied medical treatment and medication since May 6, 2016 and said
his condition was “only getting worse.” Id. The next day, Barrett received an acknowledgment
informing him that his grievance would be forwarded to medical for a response. Id. at 25. The
jail also wrote a letter addressed to the “Nursing Supervisor” informing her that Barrett had
complained he was not getting adequate medical treatment. Id. at 26. The letter requested that she

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Barrett dated his grievance July 28, 2016; however, based on the date on the response,
which specifically references the issue Barrett raises in his grievance, it appears that Barrett placed
the incorrect date on his grievance.
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provide a response that could be forwarded to Barrett by October 31, 2016. Id. There is no record
that Barrett received a response from the nursing supervisor.
On November 3, 2016 and again on January 23, 2017, Barrett filed grievances asserting
that he continued to receive inadequate medical treatment. Dkt. No. 39-2 at 33, 35. Barrett again
complained about the rods in his finger and leg and the bullets in his body. Id. He asserted that
he was not receiving treatment or medication for his swelling and pain. Id. He explained that his
finger condition and pain were worsening, explaining that his nail was swollen and green and the
skin was black and peeling. Id. Barrett was informed that his grievances had been forwarded to
medical for a response. Id. at 31, 34. Medical was asked to provide a response that could be
forwarded to Barrett, id. at 32, but there is no record that any response was provided.
LEGAL STANDARD
Summary judgment is appropriate when the moving party shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). In deciding a motion for summary judgment, the Court must view the evidence
and draw all reasonable inferences in the light most favorable to the non-moving party. Johnson
v. Advocate Health & Hosps. Corp., 892 F.3d 887, 893 (7th Cir. 2018) (citing Parker v. Four
Seasons Hotels, Ltd., 845 F.3d 807, 812 (7th Cir. 2017)). In response to a properly supported
motion for summary judgment, the party opposing the motion must “submit evidentiary materials
that set forth specific facts showing that there is a genuine issue for trial.” Siegel v. Shell Oil Co.,
612 F.3d 932, 937 (7th Cir. 2010) (citations omitted). “The nonmoving party must do more than
simply show that there is some metaphysical doubt as to the material facts.” Id. Summary
judgment is properly entered against a party “who fails to make a showing to establish the existence
of an element essential to the party’s case, and on which that party will bear the burden of proof at

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trial.” Austin v. Walgreen Co., 885 F.3d 1085, 1087–88 (7th Cir. 2018) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)).
ANALYSIS
The Prison Litigation Reform Act, which applies to this case because Barrett was a prisoner
when he filed his complaint, provides that an inmate cannot assert a cause of action under federal
law “until such administrative remedies as are available are exhausted.” 42 U.S.C. §1997e(1).
According to the U.S. Supreme Court, exhaustion of administrative remedies must be done
“properly” because “no adjudicative system can function effectively without imposing some
orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
To properly exhaust administrative remedies, prisoners must file their inmate complaints and
appeals in the place, at the time, and in the manner that the institution’s administrative rules
require. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
That said, a prisoner is not required to exhaust the administrative remedies if those
remedies are not “available.” Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). Administrative
remedies will be deemed “unavailable” when prison officials do not respond to a properly-filed
inmate complaint or when they prevent a prisoner from exhausting through affirmative
misconduct, such as denying a prisoner necessary forms, destroying a prisoner’s submissions, or
requiring steps not mandated by regulation or rule. See Smith v. Buss, 364 F. App’x 253, 255 (7th
Cir. 2010); Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008); Kaba, 458 F.3d at 684; Dale v.
Lappin, 376 F.3d 652, 656 (7th Cir. 2004); Strong v. David, 297 F.3d 646, 649-50 (7th Cir. 2002).
Defendants assert that the grievance procedure at the jail is straightforward. According to
the policy, an inmate “concerned about an issue” must complete a grievance form, which “will be
responded to immediately.” Dkt. No. 44-11 at 1. If an inmate is not satisfied with the response,

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he or she may appeal the response by providing additional supporting documentation including
the full names of witnesses. Id. at 2. The Captain will review and rule on an appeal. Id. Once
the Captain has ruled, an inmate may make one final appeal to the Jail Commander. Id. This final
appeal must include all previous submissions and supporting evidence. Id.
A. The County Defendants
The County Defendants concede that, on July 15, 2016, Barrett completed the first step of
the grievance process by filing multiple grievances complaining that the County Defendants had
ignored his reports of a medical emergency and had retaliated against him by placing him on
disciplinary status for persistently seeking medical treatment. Two days later, on July 17, 2016, a
lieutenant responded to Barrett, informing him that Armor Medical was aware of his shoulder pain
(the subject of the alleged “medical emergency”), that an appointment was being made for him to
see a provider, and that he was being provided Tylenol. Dkt. No. 39-2 at 8. The lieutenant also
addressed Barrett’s complaint of retaliation, explaining that Barrett had been placed on discipline
because he refused to lock in his cell. Id. Barrett did not appeal the lieutenant’s response.
Barrett asserts that he did not appeal the response because, unlike the Department of
Corrections institutions, the jail does not provide appeal forms to the inmates. This argument is a
non-starter. As the County Defendants highlight, the policies at Wisconsin state prisons are
irrelevant, and the jail’s procedure makes no mention of inmates having to use an appeal form.
Barrett’s insistence that the administrative remedies were unavailable to him because he was
prevented from complying with a non-existent requirement is meritless. See King v. McCarty, 781
F.3d 889, 896 (7th Cir. 2015) (“Prisoners are required to exhaust grievance procedures they have
been told about, but not procedures they have not been told about.”).

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Barrett also asserts that Defendant Devonta Townes told him that he could not appeal
responses related to his medical treatment because medical issues were handled by Armor, not the
jail. Townes disputes that he told Barrett that, but whether he did is irrelevant because Barrett’s
claims against the County Defendants are not based on allegations of inadequate medical
treatment. Barrett’s claims are premised on the County Defendants allegedly refusing to relay his
requests for emergency care to Armor and allegedly retaliating against him for making those
requests. These issues, which are non-medical in nature, are the ones Barrett raised in his July 15
grievances, and jail staff promptly responded to them. Barrett, however, did not pursue his
grievances any further, and he provides no evidence to support a conclusion that he was misled
regarding his opportunity to appeal grievances involving non-medical issues. Accordingly, the
Court finds that the administrative remedies were available to Barrett on his claims against the
County Defendants. And, given that the County Defendants have shown that Barrett failed to
complete every step in the grievance process in connection with his claims against them, they are
entitled to summary judgment.
B. The Armor Defendants
Like the County Defendants, the Armor Defendants assert that Barrett’s claims against
them are procedurally barred from consideration because he failed to appeal the responses to his
many grievances about inadequate medical care. The fatal flaw in the Armor Defendants’
argument is that Barrett never received responses to his many grievances about inadequate medical
care. Jail staff consistently notified Barrett that his grievances had been forwarded to medical for
a response, and jail staff even wrote letters to medical informing them of Barrett’s complaints and
setting deadlines to respond, but the Armor Defendants provide no evidence supporting a
conclusion that medical ever sent responses to Barrett (or that jail staff forwarded medical’s

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responses to Barrett). “Inmates must exhaust available administrative remedies, 42 U.S.C.
§ 1997e(a), and a remedy can be unavailable if jail officials do not respond to the grievance.”
Banks v. Patton, 743 F. App’x 690, 695 (7th Cir. 2018) (emphasis in original) (citing Pyles v.
Nwaobasi, 829 F.3d 860, 864 (7th Cir. 2016)). While the jail’s policy states that “[g]rievances
will be responded to immediately” Dkt. No. 44-11, it is silent about what an inmate should do if a
grievance is acknowledged but never responded to. As previously highlighted, prisoners are not
required to exhaust grievance procedures that they have not been told about. King, 781 F.3d at
896.
Further, the Armor Defendants do not explain why Barrett’s later-filed grievances should
not be treated as appeals. Just as the jail’s policies do not require inmates to use appeal forms,
they do not require inmates to mark or address their appeals in specific way. Nor are there time
limits regarding the filing of appeals. In Barrett’s later grievances he provides the names of the
Armor Defendants and additional details about their lack of response to his worsening condition
and he references his many prior grievances, thereby complying with the policy’s requirement that
additional information and prior writings be included.

“[P]risoners need not file multiple,

successive grievances raising the same issue,” so these later grievances, which largely restate the
same issues complained of in the earlier grievances that were never responded to, could have been
treated as appeals. See Banks, 743 F. App’x at 695-96 (quoting Turley v. Rednour, 729 F.3d 645,
650 (7th Cir. 2013)). In short, the Armor Defendants bear the burden of proving that Barrett failed
to exhaust. Because they have failed to carry that burden, the Court will deny their motion for
summary judgment.

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CONCLUSION
For these reasons, the Armor Defendants’ motion for summary judgment on exhaustion
(Dkt. No. 37) is DENIED, the County Defendants’ motion for summary judgment on exhaustion
(Dkt. No.41) is GRANTED, and Barrett’s claims against the County Defendants are DISMISSED
without prejudice.
SO ORDERED at Green Bay, Wisconsin this 3rd day of June, 2021.
s/ William C. Griesbach
William C. Griesbach
United States District Judge

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