Carter, Jackie v. Morgan, D. et al
Filing
87
Order GRANTING Defendants' 45 Motion for Summary Judgment. Plaintiff Jackie Carters claims are dismissed without prejudice and the clerk of the court is directed to close this case. Plaintiffs counsel Gabriel Benjamin Galloway is designated as counsel for purposes of obtaining funding from the Western District Bar Associations pro bono fund. Signed by District Judge William M. Conley on 12/16/2013. (elc),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JACKIE CARTER,
Plaintiff,
OPINION & ORDER
v.
10-cv-280-wmc
GREGORY GRAMS, JANEL NICKEL,
DYLAN RADTKE, THOMAS JAKUSZ,
MARY LEISER, AMY MILLARD, DAVID
LIPINSKI, LORI ALSUM, DR. DALIA
SULIENE, DONALE MIECHUS, MICHAEL
PIETRZAK, and JASON RHODES,
Defendants.
JACKIE CARTER,
Plaintiff,
OPINION & ORDER
v.
10-cv-510-wmc
DYLAN RADTKE, GREGORY GRAMS,
JANEL NICKEL, RICK RAEMISCH,
JOANNE LANE, MARY LEISER, and
ALICE ROGERS,
Defendants.
JACKIE CARTER,
Plaintiff,
OPINION & ORDER
v.
10-cv-520-wmc
DYLAN RADTKE, DAVID LIPINSKI,
JOANNE LANE, and MARY LEISER,
Defendants.
JACKIE CARTER,
Plaintiff,
OPINION & ORDER
v.
11-cv-110-wmc
LILLIAN TENEBRUSO, JOANNE LANE,
MARY LEISER, BRIAN NEUMAIER, DALIA
SULIENE, STEVE HELGERSON, TODD
GUNDERSON, and DONALD MEICHUS,
Defendants.
JACKIE CARTER,
Plaintiff,
OPINION & ORDER
v.
12-cv-574-wmc
MICHAEL MEISNER, JANEL NICKEL,
DONALD MORGAN, JOANNE LANE,
MARY LEISER, DALIE SULIENE, KAREN
ANDERSON, THOMAS F. SCHOENEBERG,
RICHARD DONAVAN, and RAYMOND
BANDEKO,
Defendants.
Plaintiff Jackie Carter, an inmate at Columbia Correctional Institution (“CCI”),
has five pending civil lawsuits as reflected in the caption above. In this opinion and
order, the court addresses all pending motions across these five open cases.
First,
defendants have moved for summary judgment of Nos. 10-cv-280, 10-cv-520 and 11-cv110 for failure to exhaust administrative remedies as required by the Prison Litigation
Reform Act, 42 U.S.C. § 1997e(a). The court will grant these motions in their entirety
and dismiss those three actions without prejudice. Second, defendants have also filed a
motion to compel discovery responses in the two remaining actions, Nos. 10-cv-510 and
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12-cv-574. The court will deny that motion as moot in light of plaintiff‟s representation
through counsel that he cannot supplement his responses due to his failure to remember
any additional details. Third, plaintiff still has pending a second motion for extension of
time to disclose experts in 12-cv-574. The court will grant in part and deny in the part
this motion. Plaintiff‟s deadline will be extended until December 30, 2013; defendants‟
deadline is extended to until February 14, 2014; and the dispositive motion deadline of
February 14, 2014, remains in place.
OPINION
I. Motions for Summary Judgment
As extensively detailed in defendants‟ motions for summary judgment and
supporting materials, for three of these lawsuits, plaintiff either (1) filed his complaints in
this court before a final decision was issued in the administrative process or (2) filed
complaints based on grievances which had been rejected and for which Carter failed to
appeal the rejection. In either event, the undisputed record demonstrates that Carter
failed to exhaust his administrative remedies before filing suit.
A. Overview of the Law
The Prison Litigation Reform Act states that no civil action “shall be brought with
respect to prison conditions” in federal court “until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement found in §
1997e(a) applies to all inmate suits about prison life, “whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some
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other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The Supreme Court and the
Seventh Circuit have emphasized repeatedly that § 1997e(a) mandates exhaustion of all
administrative procedures before an inmate can file any suit challenging prison conditions.
See Booth v. Churner, 532 U.S. 731, 739 (2001); Woodford v. Ngo, 548 U.S. 81, 85 (2006);
Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004) (holding that a lawsuit must be
dismissed “even if the plaintiff exhausts his administrative remedies while the litigation is
pending”); Perez v. Wis. Dept. of Corrections, 182 F.3d 532, 537 (7th Cir. 1999) (“[A] case
filed before exhaustion has been accomplished must be dismissed.”).
The Inmate Complaint Review System (“ICRS”) is set forth in great detail in
defendants‟ motions for summary judgment. (See, e.g., Defs.‟ Br. (11-cv-110 dkt. #46.)
In brief, to exhaust an offender complaint, a prisoner must receive a final decision from
the Secretary of the DOC or designated reviewing authority. See Wis. Admin. Code §
DOC 310.11(6) (describing appeal of rejected complaints); Wis. Admin. Code §§ DOC
310.07(4), (6), and (7) and DOC 310.13 (describing appeal of an adverse decision). An
inmate who fails to comply with ICRS rules, fails to exhaust his administrative remedies.
See, e.g., Jones v. Bock, 549 U.S. 199, 218 (2007) (“[T]o properly exhaust administrative
remedies prisoners must complete the administrative review process in accordance with
the applicable procedural rules -- rules that are defined not by the PLRA, but by the
prison grievance process itself.” (internal citation and quotation marks omitted)).
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B. Undisputed Facts
i.
No. 10-cv-280
In the No. 10-cv-280 case, Carter signed the complaint on May 23, 2010, which
was docketed on May 25, 2010.
In that complaint, Carter asserts claims under the
Eighth Amendment for (1) denial of prescribed treatment (including pain medication,
mattress and pillows), (2) denial of meals, and (3) denial of toilet paper, and (4) a claim
under the Fourth Amendment for excessive force due to defendants requiring him to
stand on his swollen feet. With respect to these four claims,
1. Plaintiff filed an offender complaint regarding withholding of medication on
May 17, 2010, with a final decision issued on July 24, 2010. (Defs.‟ Br. (10cv-280 dkt. #58) 2-3.) Final decisions in three other, similar complaints were
issued on July 21, 2010. (Id. at 3 n.2.) Plaintiff filed a complaint regarding
the removal of a mattress on June 14, 2010, with a final decision issued on July
24, 2010. (Id. at 3.) Final decisions in three other, similar complaints were
issued on July 15, 2010. (Id. at 3 n.3.)
2. Plaintiff filed a complaint concerning denial of meals on May 18, 2010. (Id. at
3-4.) The final decision in that complaint was issued on July 24, 2010. (Id. at
4.)
3. Plaintiff filed a complaint concerning denial of toilet paper on May 25, 2010.
(Id.) Unlike the other complaints discussed above, that complaint was not
accepted, but rather was returned to Carter with a letter indicating that he
should provide documentation of his attempts to resolve the issue by
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contacting Captain Radtke. (Id.) See Wis. Admin. Code § DOC 310.09(4)
(“Prior to accepting the complaint, the ICE may direct the inmate to attempt
to resolve the issue.”).
4. Plaintiff filed an offender complaint concerning being forced to stand on
March 29, 2010, with a final decision issued on June 9, 2010. (Defs.‟ Br. (10cv-280 dkt. #58) 2.) He later filed four other complaints concerning being
forced to stand, and the final decisions for those complaints occurred on or
after July 24, 2010. (Id. at 2 n.1.)
ii.
No. 10-cv-520
In the No. 10-cv-520 case, Carter signed the complaint on September 5, 2010,
which was docketed on September 10, 2010. In that complaint, Carter asserts a First
Amendment claim based on his alleged denial of telephone use. Carter filed 23 offender
complaints about telephone issues which were returned to him for failure to comply with
ICRS procedures. (Defs.‟ Br. (10-cv-520 dkt. #43) 2.) In particular, Carter failed to
follow the two offender complaints per week rule.
310.09(2).
(Id.)
See Wis. Admin. Code §
Carter did, however, file an accepted complaint on September 13, 2010.
(Id.) The final decision on that complaint was issued on October 13, 2010. (Id.)
iii.
No. 11-cv-110
In the No. 11-cv-110 case, Carter signed the complaint on February 8, 2011,
which was docketed on February 15, 2011. In that complaint, Carter asserts three causes
of action all under the Eighth Amendment for: (1) failure to protect him from a January
6, 2011, attack by a fellow inmate; (2) denial of medical care for injuries caused by the
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attack; and (3) conditions of confinement based on blood, feces and urine in his cell.
With respect to these three claims,
1. As an initial matter, Carter was issued a conduct report after the January 6,
2011, incident. (Defs.‟ Br. (11-cv-110 dkt. #46) 3.) The final decision on
that conduct report was not issued until February 23, 2011. (Id.) Carter filed
an offender complaint about his failure to protect claim on or about January 7,
2011. (Id.) That complaint was rejected because a conduct report had been
issued.
(Id.)
Carter appealed the rejection and the final decision on that
offender complaint occurred on January 20, 2011. (Id.) Final decisions on
other offender complaints concerning a failure to protect were issued on
February 8, 2011, and February 28, 2011. (Id. at 4.)
2. As for Carter‟s claim of denial of medical treatment following the January 6,
2011, incident, Carter filed four offender complaint, with final decisions issued
for three on March 2, 2011, March 7, 2011, and March 23, 2011. (Id. at 4-6.)
Carter failed to appeal the fourth complaint. (Id. at 5.)
3. Carter did not file any offender complaints regarding alleged unsanitary
conditions in a cell which could serve as the basis for his conditions of
confinement claim. (Id. at 6.)
C. Analysis
Carter does not dispute the administrative complaint record set forth above,
effectively conceding that he failed to exhaust the claims underlying these three
complaints entirely or at least before mailing his complaints. See Ford, 362 F.3d at 399
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(holding that an action is “brought” under § 1997e(a) occurs when the complaint is
mailed).
Based on this review of the record, the only claim which poses a close question is
the failure to protect claim in No. 11-cv-110. Carter received a final decision on the
offender complaint concerning a failure to protect before he filed the complaint in this
court. Defendants argue, however, that the claim is still barred because “an inmate may
not use the inmate complaint review system to challenge „any issue related to a conduct
report.‟” Lindell v. Frank, No. 05 C 003 C, 2005 WL 2339145, at *1 (W.D. Wis. Sept.
23, 2005) (quoting Wis. Admin. Code § DOC 310.08). Carter received a conduct report
for the January 6, 2011, incident, but the final decision on the conduct report was not
issued until February 23, 2011, after he brought the No. 11-cv-110 case. In Lindell, an
inmate alleged that the conduct report was due to retaliation for the inmate‟s protected
activity.
As such, the conduct report in Lindell arguably was more central to the
retaliation claim then the failure to protect claim asserted here. Still, the question of
whether another inmate attacked Carter -- as he alleges -- is relevant to evaluating an
offender complaint concerning a failure to protect.
As such, the court agrees with
defendants that Carter was required to complete his appeal of the conduct report prior to
filing the No. 11-cv-110 complaint.
Rather than dispute the record, plaintiff urges the court to deny the motions
because defendants “received notice of, and [had] an opportunity to correct, a problem”
before his filing, thereby “satisf[ying] the purpose of the exhaustion requirement.” (Pl.‟s
Combined Opp‟n (10-cv-280 dkt. #108) 8-9 (quoting Turley v. Rednour, 729 F.3d 645,
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650 (7th Cir. 2013).) In Turley, the inmate received a final decision on an offender
complaint challenging a lockdown policy. Id. at 648. The State, however, argued that
this offender complaint failed to exhaust all of his claims because it only mentioned two
specific instances. Id. at 650. The court disagreed, holding that “[i]n order to exhaust
their remedies, prisoners need not file multiple, successive grievances raising the same
issue (such as prison conditions or policies) if the objectionable condition is continuing.”
Id.
This holding does not, however, support Carter‟s argument that the filing of an
inmate complaint is sufficient to constitute exhaustion. Rather, as in Turley, Carter was
required to complete the required process before bringing suit in this court.
Plaintiff also argues -- in his pro se submission and again in his submission by
counsel -- that defendants have obstructed his access to the administrative process. (Pl.‟s
Combined Opp‟n (10-cv-280 dkt. #108).) The record belies this assertion. Carter filed
voluminous complaints during the relevant period as tracked in defendants‟ detailed
submissions.
In some instances, these complaints were returned to Carter with
instructions on required steps before he could proceed; others were rejected; and several
were accepted. Carter participated in the system by appealing dismissals through final
decisions. For most of his claims, Carter simply “jumped the gun” by filing actions in
this court before receiving final decisions from the appropriate authority. Ford, 362 F.3d
at 398. While Carter likely finds ICRS frustrating and inadequate, he is nevertheless
required to participate in that system before availing himself of the federal court system.
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Accordingly, the court will dismiss without prejudice Nos. 10-cv-280, 10-cv-520,
and 11-cv-110. See Ford, 362 F.3d at 401 (holding that all dismissals under § 1997e(a)
should be without prejudice).
II. Defendants’ Motion to Compel Discovery Responses
Also before the court is defendants‟ motion to compel complete discovery
responses in Nos. 10-cv-510 and 12-cv-574 -- the two remaining cases. (10-cv-510 dkt.
#62; 12-cv-574 dkt. #61.) As described in defendants‟ submissions, defendant served
discovery in these two cases on July 25, 2013. Plaintiff‟s counsel entered an appearance
on August 13, 2013, and defendants sent the discovery requests to plaintiff‟s counsel the
following day -- August 14, 2013 -- requesting responses no later than August 27, 2013.
After agreeing to extensions, defendants received incomplete or inadequate responses on
October 15, 2013.
Defendants‟ counsel described the deficiencies in an email to
plaintiff‟s counsel the next day. Plaintiff‟s counsel agreed to supplement the response by
October 25, 2013, but had still failed to do so by the time defendants filed their motion
to compel on November 27, 2013.
Plaintiff effectively concedes the inadequacy of his initial responses, but contends:
(1) plaintiff‟s counsel encountered great difficulty in contacting Carter to obtain
information relevant to the responses; and (2) once counsel was able to speak with Carter
on November 4, 2013, he “was largely unable [to] recall the information requested (for
example, specific dates when certain grievances or administrative complaints were filed)
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and stated that the information would be in records that Defendants maintain.” (Pl.‟s
Opp‟n (10-cv-510 (dkt. #66).)
In light of this representation, it appears plaintiff is unable to supplement his
responses further. The court will, therefore, deny defendants‟ motion, although plaintiff
is obviously bound by his responses to date and the representation made through counsel
in his brief. If Carter attempted to change, revise or provide more extensive responses
during his deposition on December 6, 2013, the court will consider an appropriate
sanction, including, but not limited to, requiring Carter to sit for an additional telephonic
deposition.
III. Plaintiff’s Second Motion to Extend Expert Deadline Disclosures
Finally, on December 2, 2013, instead of serving his expert disclosure, plaintiff
filed a second motion to extend the deadline until January 17, 2014. (12-cv-574 dkt.
#64.)1
Magistrate Judge Crocker had already extended the deadline, which in turn
required an extension of the dispositive motion deadline. In that order, Judge Crocker
explained:
Having heard from both sides on plaintiff's motion to extend
his deadline to disclose experts, plaintiff‟s deadline to disclose
experts is moved to December 2, 2013, defendants‟ deadline
to disclose experts is moved to January 31, 2014, and the
deadline to file dispositive motions is moved to February 14,
2014, with responses due within 21 days and replies due
within 10 days after the filing of any response(s). No further
1
Plaintiff filed this motion in three cases: Nos. 10-cv-280, 10-cv-520 and 12-cv-574.
This motion is moot as to the two cases dismissed above: Nos. 10-cv-280 and 10-cv-520.
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extensions of any of these deadlines are possible on this schedule, so
none will be given.
(12-cv-574 dkt. #57 (emphasis added).)
In response, defendants propose that (1) the court extend plaintiff‟s deadline until
December 16, 2013, (2) similarly extend defendants‟ deadline two weeks until February
14, 2014, and (3) keep the dispositive motion deadline in place. The court finds this
approach reasonable -- indeed, it is the only solution in light of the dispositive motion
deadline which cannot move in order to accommodate the July 7, 2014, trial date, which
will not be moved. In light of the court‟s own delay in ruling on this request, however,
plaintiff‟s motion will be granted in part and denied in part: the new (and final) deadline
is December 30, 2013, with defendants‟ disclosure deadline now February 14, 2014.
ORDER
IT IS ORDERED that:
1) Defendants‟ motion for summary judgment in No. 10-cv-280 (dkt. #57) is
GRANTED. Plaintiff Jackie Carter‟s claims are dismissed without prejudice
and the clerk of the court is directed to close this case.
2) Defendants‟ motion for summary judgment in No. 10-cv-520 (dkt. #42) is
GRANTED. Plaintiff Jackie Carter‟s claims are dismissed without prejudice
and the clerk of the court is directed to close this case.
3) Defendants‟ motion for summary judgment in No. 11-cv-110 (dkt. #45) is
GRANTED. Plaintiff Jackie Carter‟s claims are dismissed without prejudice
and the clerk of the court is directed to close this case.
4) Defendants‟ motion to compel discovery responses (No. 10-cv-510 dkt. #62;
No. 12-cv-574 dkt. #61) is DENIED.
5) Plaintiff‟s motion for extension of time to disclose experts (No. 12-cv-574 dkt.
#64) is GRANTED IN PART AND DENIED IN PART. Plaintiff‟s expert
disclosures are now due on or before December 30, 2013. No further
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extensions will be granted. Defendants‟ disclosures are now due February
14, 2014.
6) Plaintiff‟s counsel Gabriel Benjamin Galloway is designated as counsel for
purposes of obtaining funding from the Western District Bar Association‟s pro
bono fund.
Entered this 16th day of December, 2013.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
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