Compton, Elbert v. Sequin et al

Filing 106

ORDER granting in part and denying in part defendant DOC employees' 66 motion for summary judgment based on plaintiff's failure to exhaust his administrative remedies. Defendants Cox, Campbell, Waterman, Gorske, Bayer, Miller, Heido rn, and Armato are DISMISSED from the case. Defendants Thomas Grossman and Margaret Anderson's motion for summary judgment based on plaintiff's failure to exhaust his administrative remedies, Dkt. 61 , is DENIED. Plaintiff' ;s motion for the court's assistance in recruiting him counsel, Dkt. 86 , is GRANTED. Plaintiff's motion for appointment of an expert, Dkt. 101 , and his motions for an extension of time to file an opposition to defendants Grossman a nd Anderson's motion for summary judgment, Dkt. 98 , 103 , & 104 , are DENIED as moot. The DOC defendants' motion to stay the dispositive motions deadline, Dkt. 89 , is GRANTED. The schedule is STRICKEN, and a new schedule, including a new dispositive motions deadline, will be set after counsel is located. Signed by District Judge James D. Peterson on 3/8/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

ELBERT R. COMPTON,
Plaintiff,
v.
BURTON COX, JOLINDA WATERMAN,
DEBORAH CAMPBELL, BELINDA SCHRUBBE,
MARY GORSKE, PAUL SUMNICHT, ANN SLINGER,
GAIL WALTZ, BRIDGET BAYER, DONNA LARSON,
CHRISTINE DE YOUNG, JEFFREY MANLOVE,
MARY MILLER, RICHARD HEIDORN,
DOUGLAS ARMATO, THOMAS GROSSMAN,
and MARGARET ANDERSON,1

OPINION & ORDER
12-cv-837-jdp

Defendants.
In this case, plaintiff Elbert Compton, a prisoner currently housed at the Waupun
Correctional Institution, alleges that prison officials and outside medical personnel have
failed for years to provide adequate medical treatment for a finger he broke while playing
basketball.
The two sets of defendants in this case (Wisconsin Department of Corrections
officials and private medical professionals) have filed motions for summary judgment based
on Compton’s failure to exhaust his administrative remedies. Because Compton failed to
properly exhaust many of his claims, I will grant the DOC defendants’ motions in some
respects. But some of his claims against the DOC defendants and all of his claims against
private medical personnel survive this round of summary judgment. Because the substantive
issues in this case will likely boil down to expert medical testimony, I will grant Compton’s

1

I have amended the caption to reflect the full names of the defendants.

motion to recruit counsel, and strike the current schedule so that the court can find counsel
for him.
A. Claims
The court granted Compton leave to proceed on the following claims under both
Eighth Amendment and medical malpractice theories:


In June 2008, defendant Dr. Burton Cox advised Compton that nothing could be
done for him and that his finger “would have to remain in its deformed state”



The following defendants failed to take to take any action to help him after he
complained about prolonged pain from his injury: (1) defendant Nurse Deborah
Campbell, in June 2008; (2) defendant Nurse Jolinda Waterman, in June and July
2008; (3) defendant Health Services Unit manager Belinda Schrubbe, from
December 2008 to June 2011 and October 2011 to January 2012; (4) defendant
Nurse Mary Gorske, in March 2010 and March 2011; (5) defendant Dr. Paul
Sumnicht, in June, August, and September 2011; and (6) defendant nurse Ann
Slinger, in June 2012



In August and November 2013, defendant Nurse Gail Waltz did not directly treat
his infection or severe pain



In August 2013, defendant Nurse Bridget Bayer refused to see him or take other
action regarding his pain



In September 2013, defendant Nurse Donna Larson would not take action
regarding his infection



Twice in September 2013, defendant Nurse Christine De Young delayed in
treating his infection



In November 2013, Dr. Jeffrey Manlove saw him but did nothing to assess his
problems or address his pain

Compton was also granted leave to proceed on the following claims under a medical
malpractice theory only:


On April 24, 2007 (the date of Compton’s injury), defendant Nurse Mary Miller
did not reset his broken finger



In April 2007, defendant Dr. Richard Heidorn refused his requests to reset his
finger properly or send him to a hospital and failed to provide him adequate pain
medication

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

In April and May 2007, defendant Dr. Douglas Armato misdiagnosed his injury



In September 2011, defendant Sumnicht refused to refer him to a bone specialist



In August 2013, defendants Dr. Thomas Grossman and Nurse Practitioner
Margaret Anderson botched his surgery

B. Exhaustion
Under 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” The administrative exhaustion requirement is mandatory, Woodford
v. Ngo, 548 U.S. 81, 85 (2006), and “applies to all inmate suits,” Porter v. Nussle, 534 U.S.
516, 524 (2002). Its purpose is not to protect defendants but to give prison officials an
opportunity to resolve complaints without judicial intervention. Perez v. Wis. Dep’t of Corr.,
182 F.3d 532, 537-38 (7th Cir. 1999) (exhaustion serves purposes of “narrow[ing] a dispute
[and] avoid[ing] the need for litigation”).
Generally, to comply with § 1997e(a), a prisoner must “properly take each step within
the administrative process,” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which
includes following instructions for filing the initial grievance, Cannon v. Washington, 418 F.3d
714, 718 (7th Cir. 2005), as well as filing all necessary appeals, Burrell v. Powers, 431 F.3d
282, 284-85 (7th Cir. 2005), “in the place, and at the time, the prison’s administrative rules
require,” Pozo, 286 F.3d at 1025. However, “[i]f administrative remedies are not ‘available’ to
an inmate, then the inmate cannot be required to exhaust.” Kaba v. Stepp, 458 F.3d 678, 684
(7th Cir. 2006).

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1. DOC defendants
I begin with the exhaustion motion filed by the DOC defendants. The parties agree
that Compton filed four grievances about his finger or associated pain, and that he failed to
fully exhaust his first grievance, filed in 2007. The parties disagree whether Compton’s third
grievance (No. WCI-2012-16515) was properly exhausted.
In that grievance, Compton stated that in 2008 defendant Cox told him there was
nothing he could do to treat his finger. When he complained about continuing pain, Nurses
Waterman and Campbell asked Compton what Cox told him about the problem. Compton
reiterated Cox’s statement that he would not do anything to help him, but the nurses walked
away rather than provide any treatment. Dkt. 68-2, at 8. The grievance was rejected as
untimely because it concerned events from four years earlier. Compton appealed but the
appeal was dismissed.
Compton argues that the grievance was erroneously rejected, because “it is clear that
plaintiff was complaining about an ongoing denial of medical treatment rather than once
isolated incident,” even though the date he provided in the “date of incident” box on the
form was June 23, 2008. Dkt. 84, at 5 (emphasis added). He cites to Edwards v. Schrubbe, 807
F. Supp. 2d. 809, 812 (E.D. Wis. 2011), in which the court concluded that grievance
examiners incorrectly focused on the date mentioned in the “date of incident” box rather
than the actual details of the grievance narrative. He argues that this grievance was
improperly rejected as untimely under Edwards and this it should count to exhaust his claims
from 2008 to 2012.
Under Edwards-type cases, I could consider a grievance properly exhausted if it was
clear that grievance officials unfairly rejected it. But the facts in Edwards were much different

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from the current case, and the officials reviewing Compton’s grievance reasonably interpreted
his grievance.
In Edwards, an inmate repeatedly requested treatment for vitiligo (a disease causing
the loss of skin pigmentation), and filed a grievance stating that he had been repeatedly
turned down for treatment. Id., at 811. The inmate filled out the “date of incident” box on
the grievance with a date more than 14 days before he filed the grievance. Id. The court
concluded in part that the inmate properly exhausted his grievance because prison officials
unreasonable interpreted the scope of the grievance in rejecting it:
The institution-complaint examiner, the reviewing authority,
and the defendants here have all taken an unreasonably narrow
view of plaintiff’s inmate complaint by focusing exclusively on
the date plaintiff wrote in the box labeled “date of incident or
denial of request.” Reading the complaint as a whole, it is clear
that plaintiff was complaining about an ongoing denial of
medical treatment rather than one isolated incident that
occurred on July 6, 2010. Indeed, the complaint states that
plaintiff had made repeated efforts to resolve his grievance with
the medical staff at the prison, most recently by sending a letter
(apparently in accordance with the institution-complaint
examiner’s advice) to the manager of the health-services unit on
July 14 or 15, 2010. Plaintiff explains that he waited a few
weeks for a response from the manager, and that he filed the
inmate complaint once he concluded that the manager was
ignoring his letter. Thus, the entirety of the complaint reveals
that plaintiff promptly filed an appropriate grievance through
the proper channels once he realized that he would not be able
to resolve his grievance with the medical staff informally. This
was proper exhaustion.
Id. at 812-13 (footnote omitted).
The facts of our case are much different. Nowhere in his grievance does Compton
suggest that he was complaining about an ongoing lack of care from prison officials. Rather,
he mentioned discrete events occurring four years earlier, which would have led any
reasonable reviewer to think that Compton was complaining only about events from 2008. If

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Compton meant to complain about an ongoing lack of care, all he would have had to do was
say that in his grievance, or refer to more recent events. I conclude that the grievance was
properly rejected, and thus it could not have served to exhaust any of his claims in this
lawsuit.
This leaves Compton’s second and fourth grievances:


WCI-2011-19644—received October 5, 2011: Compton stated that he requested
to see a bone specialist because of his deformed pinky finger, which had caused
him severe pain since the injury. He also stated that his requests to see the HSU
manager were denied, that he has “been complaining since it occur[ed] on 07” and
that his pain had become unbearable. Dkt. 68-3, at 11.



WCI-2013-18211—received September 18, 2013: Compton stated that on
September 13, 2013, he told defendant De Young that he was still in severe pain
and showed her his swollen finger following his August 2013 surgery. De Young
referred Compton to HSU for X-rays. This resulted in defendant Manlove
prescribing him medication for an infection. But he continued to be in pain and
prison officials kept discontinuing his pain medication even though hospital staff
stated that he should have them until his finger was fully healed. Dkt. 68-5, at 10.

Compton contends that these grievances successfully exhausted all of his claims
(dating back to 2007) because each defendant’s conduct has been part of one long continuing
course of action. See Dkt. 84, at 6 (quoting Turley v. Rednour, 729 F.3d 645, 650 (7th Cir.
2013) (“In 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.”)). Separate complaints about particular incidents are required only
if the underlying facts or the complaints are different. Id.
But Compton misconstrues Turley to mean that an inmate could exhaust a claim
about the first act of continuing misconduct by filing a grievance about a later act of
continuing misconduct taking place years later. Nothing in Turley suggests that a relatively
recently filed grievance can retroactively exhaust claims about far earlier misconduct. Rather,

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Turley stands for the proposition that once a grievance is filed about part of a pattern of
misconduct, a prisoner may not be required to file subsequent grievances for later instances of
misconduct fitting within that pattern. Id. (“Thus, once a prison has received notice of, and
an opportunity to correct, a problem, the prisoner has satisfied the purpose of the exhaustion
requirement.”).
Because Compton did not fully exhaust a grievance until his October 2011 inmate
complaint, he failed to exhaust his claims regarding events before September 2011. I will
dismiss all of those claims without prejudice for Compton’s failure to exhaust them. Ford v.
Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (dismissal for failure to exhaust is always without
prejudice). He can refile the claims if he can successfully exhaust them, but he may now find
it impossible to file a proper grievance on those because they happened so long ago. Because
all of the claims against defendants Cox, Campbell, Waterman, Gorske, Miller, and Heidorn
pertain to events taking place before Compton’s first exhausted grievance, I will dismiss each
of them from the case.2
That leaves the claims concerning events that followed Compton’s second and fourth
grievances. The mere fact that Compton filed grievances about certain aspects of his medical
care does not mean that every claim about his care has been exhausted under Turley.
Compton was still required to “alert[] the prison to the nature of the wrong for which redress

2

This also shows Compton’s failure to exhaust his claims against defendant “Douglas
Armato.” But Armato has not appeared in this case and thus has not raised the exhaustion
defense on his own behalf. The court told Compton that it would treat Armato as a “John
Doe” defendant because the state was unable to identify an employee by that name. Dkt. 25,
30. Compton was informed that he would have to use discovery requests to determine this
defendant’s true identity. But Compton never submitted an amended complaint renaming
this defendant. At this point, I conclude that Compton has abandoned his claims against
Armato, and I will dismiss him from the case.

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is sought.” Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). Wisconsin Administrative
Code § DOC 310.09 requires that a grievance “clearly identify the issue.” Compton’s
grievances served to exhaust only claims that are closely related to the issues discussed in
those grievances, because those are the only problems that Compton brought to prison
officials’ attention. Strong, 297 F.3d at 650 (“Prisoner must “object intelligibly to some
asserted shortcoming”). “[T]he standard is whether the offender complaint would put an
official on notice of the plaintiff’s claim.” Wille v. Pugh, No. 13-cv-1024, 2015 WL 5254532,
at *6 (E.D. Wis. Sept. 9, 2015). This does not mean that he needs to name each specific
official, but he does have to put prison staff on notice about a particular problem. Jones v.
Bock, 549 U.S. 199, 219 (2007) (exhaustion requirement is designed “to alert prison officials
to a problem, not to provide personal notice to a particular official that he may be sued”).
Defendants concede that the October 2011 grievance properly exhausted Compton’s
“limited” claims about defendant Sumnicht’s and Schrubbe’s September 2011 refusals to
seek treatment by a bone specialist, but they contend that the grievance does not exhaust
Compton’s claims against defendants Gorske and Slinger for failing to take any action to help
him after he complained about severe pain. Also, because defendants refer to his claim about
the bone specialist as “limited,” I take them to be saying that Compton exhausted only his
claim about a referral to an outside specialist, rather than his claims against Sumnicht and
Schrubbe for lack of pain treatment.
I have already concluded above that defendant Gorske should be dismissed because
her alleged involvement in failing to assist Compton predated his 2011 grievance. By the
same token, Compton’s claims against Sumnicht and Schrubbe predating September 2011
must also be dismissed. But I conclude that Compton’s grievance does exhaust the remainder

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of his claims about pre-surgery treatment of his pain. Compton was clearly complaining about
his continuing severe pain. Although he did not explicitly state that medical staff were
denying his requests for pain treatment, he did say that he had been “complaining since it
occur[ed]” and that he continued to have severe pain. The only reasonable inference from
those statements is that his complaints were about pain treatment in general, not just a
request to see a specialist. Also, the complaint examiner reviewing the grievance considered
pain treatment in his report, stating that Schrubbe told him, “‘Patient did complain of pain
when working out and writing letters or holding a fist. Patient did not want Ibuprofen, he
claimed it did nothing. Patient was given Gabapentin.’” Dkt. 68-3, at 2. Accordingly, I
conclude that he put prison staff on notice about the lack of adequate pain treatment and
thus properly exhausted those claims.
Some of the alleged lack of treatment for pain (against Schrubbe and Slinger)
postdated his grievance, so obviously those incidents were not mentioned in the grievance.
But that is where Turley comes in. It was not necessary for Compton to continue to file
grievances about his pain treatment, because they were addressed in his 2011 grievance.
Therefore, I will deny defendants’ motion for summary judgment as it pertains to Compton’s
claims from September 2011 to the date of his surgery, regarding defendants Sumnicht,
Schrubbe, and Slinger.
Compton’s fourth grievance concerned his post-surgery pain treatment, and was filed
on September 18, 2013. The grievance mentions defendant Manlove by name, and
defendants concede that the grievance serves to exhaust Compton’s claims against Manlove.
But Compton contends that this grievance exhausts all of his claims regarding his postsurgical treatment, even though many of his claims concern lack of adequate treatment well

9

before any events mentioned in the grievance. Defendants argue that Compton’s grievance
did not serve to exhaust claims about the defendant nurses because it did not mention them
by name. They also argue that he should have filed a grievance about his August 2013
treatment in August, which I take to be an argument that the grievance was untimely
concerning his August 2013 claims.
Compton was not required to list defendants by name in his grievance, Jones, 549 U.S.
at 219, and he does state that he had been suffering through an infection and that “they keep
discontinuing my pain meds.” Dkt. 68-5, at 10. That was sufficient to put prison officials on
notice that medical staff was failing to provide him with adequate infection and pain
treatment. But defendants are correct that Compton’s grievance in mid-September was filed
too late to properly exhaust claims against officials who had acted in August. Therefore, I will
grant defendants’ motion regarding Compton’s claims about Waltz’s and Bayer’s August
2013 treatment. Bayer will be dismissed from the case.
But the grievance is arguably timely regarding his claim against defendant Larson (for
failing to help Compton after he made a September 3, 2013 request),3 and definitely timely
regarding his claim against defendant De Young (for failing to help him on September 10).
Although he does not explicitly mention these events in his grievance, his statements that he
had been suffering through a painful infection since the surgery is enough to exhaust these
claims. Under Turley, I will also deny defendants’ motion regarding De Young’s failure to help
Compton on September 25, and defendant Waltz’s failure to help him in November, because
those claims involve the same continuing problem.

3

Defendants do not factually develop whether Compton’s grievance postdated his interaction
with Larson by more than 14 days, so they have failed in their burden to show that the 14day deadline should apply.

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2. Defendants Grossman and Anderson
In their exhaustion motion, non-DOC defendants Grossman and Anderson note that
that none of Compton’s four grievances mention their alleged malpractice. This matters only
if Compton is required to exhaust claims against private health care providers working
outside the prison. Defendants contend that Compton must still exhaust his claims against
them because they are agents of the DOC, as contemplated by the Wisconsin Administrative
Code:
Exhaustion of administrative remedies. Before an inmate may
commence a civil action or special proceedings against any
officer, employee or agent of the department in the officer’s,
employee’s or agent’s official or individual capacity for acts or
omissions committed while carrying out that person’s duties as
an officer, employee or agent or while acting within the scope of
the person’s office, the inmate shall exhaust all administrative
remedies that the department of corrections has promulgated by
rule.
Wis. Admin. Code. § DOC 310.05 (emphasis added). Defendants state that their employer,
Agnesian Healthcare, entered into a contract with the DOC to provide care to inmates upon
referral by DOC staff, and that Compton’s surgery was a result of that referral.
Compton responds, conceding that he is required to exhaust claims against agents of
the DOC, but argues that he had no way of knowing that a contract existed between the
DOC and Agnesian Healthcare, and thus he did not know that they were agents of the DOC.
He cites to an Eastern District of Wisconsin case considering this issue—against the same
defendants, no less—in which the court concluded that although the exhaustion requirement
applied to the healthcare providers at issue, the claims should not be dismissed because “the
circumstances effectively prevented [the inmate plaintiff] from knowing that he needed to

11

exhaust his remedies as against the Agnesian defendants.” Saddy v. Agnesian Health Care,
No. 13-CV-519-JPS, 2014 WL 4656117, at *2 (E.D. Wis. Sept. 16, 2014).
In reply, defendants argue that the case is not relevant because the claims in Saddy
involved federal law Eighth Amendment claims rather than state law malpractice claims, and
the broader scope of the Wisconsin version of the Prison Litigation Reform Act dooms
Compton’s claims.4 Dkt. 70 at 2-3 (citing State ex. rel. Cramer v. Wisconsin Court of Appeals,
2000 WI 86, 236 Wis. 2d 473, 490-91, 613 N.W. 2d 591 (2000) (“Although litigation
about prison conditions served as the original impetus for passage 1997 Wis. Act 133, the
final version of the bill illustrates that the legislature intended to address the costly problems
caused by prisoner litigation more expansively than the federal law.”)).
But Compton is free to use federal PLRA case law in analyzing the Wisconsin version.
When it suited them in their brief-in-chief, defendants did so as well. See Dkt. 62 at 8-9 (“In
interpreting Wisconsin’s PLRA on the issue of exhaustion, courts may take guidance from the
United States Supreme Court’s interpretation of the Federal PLRA (42 USC 1997e), upon
which the Wisconsin PLRA is based.”) (citing State ex. rel. Hensley v. Endicott, 2001 WI 105,
245 Wis. 2d 607, 618, 629 N.W. 2d 686). The point in Saddy was that the inmate’s
administrative remedies were not truly “available” because he had no reason to know that
there was an agency relationship between the state and the outside medical professionals.
2014 WL 4656117, at *2. The Wisconsin PLRA, just like the federal version, requires that a

4

The federal PLRA’s exhaustion requirement does not apply to state law claims. See 42
U.S.C. § 1997e (“No action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.”)

12

prisoner exhaust “available” administrative remedies, so there is good reason to consider
Saddy on this issue. Compare Wis. Stat. § 801.02(7)(b) with 42 U.S.C. § 1997e.
Defendants argue that the Wisconsin PLRA is broader than the federal version with
respect to the barriers it raises against prisoner litigation, but the case they cite for that
proposition, State ex. rel. Cramer, 2000 WI 86, is not a case about exhaustion principles. In
Cramer, the Wisconsin Supreme Court noted that the Wisconsin PLRA’s restrictions cover
more types of cases than the “conditions of confinement” typically seen under the federal
PLRA. Defendants do not cite to any authority for the proposition that the Wisconsin
PLRA’s exhaustion requirements differ in any meaningful way from the federal PLRA other
than to reiterate that complaints against agents of the state must also be exhausted.
Rather, defendants note that “Wisconsin case law on the issue of whether exhaustion
requirements apply to private healthcare providers in Wisconsin is sparse,” Dkt. 62, at 9, and
instead go on to apply federal cases in an effort to show that claims against private medical
providers must be exhausted. See West v. Atkins, 487 U.S. 42 (1988); Rodriguez v. Stevie, 2:11CV-515, 2013 WL 1194720 (W.D. Mich. Mar. 22, 2013); Hallock v. Ill. DOC, 10-CV-0060DRH, 2010 WL 2574163 (S. D. Ill. June 23, 2010); Giampaolo v. Bartley, 07-526-DRH, 2010
WL 2574203 (S.D. Ill. June 23, 2010). But from the face of these opinions it is not clear that
any of them involve private medical staff performing procedures outside the prison walls,
which is the main reason an inmate might think that the grievance process does not apply to
those medical professionals’ actions. It is defendants’ burden to show that exhaustion applies
in our case, and without further development of these cases’ relevance to Compton’s
circumstances, I conclude that the Saddy court’s analysis is closer to the mark: Compton’s

13

administrative remedies were unavailable to him because he had no reason to think he
needed to file a grievance about private, outside medical staff.
Also in their reply brief, defendants cast aside their earlier argument, stating that their
contract with the state is irrelevant, because under Wisconsin authorities the hospital should
be considered part of the Waupun Correctional Institution for legal purposes, and they were
operating as “statutory adjuncts of the prison staff.” Dkt. 79, at 5 (citing Wis. Stat.
§ 302.02(1m) (“Every activity conducted under the jurisdiction of and by any institution or
facility listed under this section, wherever located, is a precinct of the prison, and each
precinct is part of the institution.”); State v. Cummings, 153 Wis. 2d 603, 606, 451 N.W.2d
463 (Ct. App. 1989) (applying predecessor to § 302.02) (“The medical treatment Cummings
received at the hospital was an activity conducted under the jurisdiction of the Waupun
Correctional Institution. Accordingly, the hospital became a ‘precinct’ of the prison and ‘part
of the institution.’ A prisoner remains ‘confined’ to a state prison when he is kept under
guard while receiving medical treatment at a hospital.”)).
I would usually disregard this line of argument because it was raised for the first time
in a reply brief. But Compton has filed a sur-reply, Dkt. 83, which I will accept. He argues
that defendants’ reliance on statutes outside the PLRA make his point for him: prisoners did
not have notice that they were supposed to file grievances about this type of claim. I agree
with Compton.
Defendants cite to no authority applying § 302.02 or Cummings to the exhaustion
context, and at some point, the lack of clarity in the exhaustion regulations renders them
unavailable to inmates. See Ross v. Blake, 136 S. Ct. 1850, 1859 (2016) (“[A]n administrative
scheme might be so opaque that it becomes, practically speaking, incapable of use. In this

14

situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or
navigate it. As the Solicitor General put the point: When rules are ‘so confusing that . . . no
reasonable prisoner can use them,’ then ‘they’re no longer available.’”). Prisoners should not
need a law degree and an understanding of every corner of Wisconsin statutes and case law to
understand what claims need to be exhausted. If the DOC wants prisoners to exhaust claims
against outside medical professionals, they should say so in their prison handbooks or the
DOC exhaustion regulations.
C. Remaining motions
There are several other pending motions. Defendants Grossman and Anderson have
filed a substantive motion for summary judgment on Compton’s malpractice claims against
them, largely arguing that Compton cannot prove his claims because he does not have an
expert medical testimony to support his claims. Dkt. 94. Compton has filed a series of
motions for an extension of time to file a response. Dkt. 98, 103, & 104. He has also filed a
motion for the court’s assistance in recruiting him counsel, Dkt. 86, and a motion to appoint
an expert to provide medical testimony, Dkt. 101. The DOC defendants have filed a motion
to stay the dispositive motions deadline pending a ruling on the exhaustion motions. Dkt. 89.
I agree with defendants Grossman and Anderson that at present, Compton almost
certainly cannot succeed on his malpractice claims without expert medical testimony. Rather
than dismiss the case for this reason, I conclude that the appropriate course of action is to
recruit counsel for Compton who can in turn attempt to locate an expert for the purposes of
opposing Grossman and Anderson’s motion for summary judgment and an eventual motion
filed by the remaining DOC defendants. I will strike the remaining deadlines, and after
counsel is located for Compton, reset a dispositive motions deadline and trial date.

15

ORDER
IT IS ORDERED that:
1. Defendant DOC employees’ motion for summary judgment based on plaintiff
Elbert Compton’s failure to exhaust his administrative remedies, Dkt. 66, is
GRANTED IN PART and DENIED IN PART. The following claims against DOC
defendants survive summary judgment:


Belinda Schrubbe (for her actions from October 2011 to January 2012
only)



Paul Sumnicht (for his actions in September 2011 only)



Ann Slinger



Donna Larson



Gail Waltz (for her actions in November 2013 only)



Christine De Young



Jeffrey Manlove

The remainder of plaintiff’s claims against the DOC defendants are DISMISSED
without prejudice.
2. Defendants Cox, Campbell, Waterman, Gorske, Bayer, Miller, Heidorn, and
Armato are DISMISSED from the case.
3. Defendants Thomas Grossman and Margaret Anderson’s motion for summary
judgment based on plaintiff’s failure to exhaust his administrative remedies, Dkt.
61, is DENIED.
4. Plaintiff’s motion for the court’s assistance in recruiting him counsel, Dkt. 86, is
GRANTED.
5. Plaintiff’s motion for appointment of an expert, Dkt. 101, and his motions for an
extension of time to file an opposition to defendants Grossman and Anderson’s
motion for summary judgment, Dkt. 98, 103, & 104, are DENIED as moot.
6. The DOC defendants’ motion to stay the dispositive motions deadline, Dkt. 89, is
GRANTED.

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7. The schedule is STRICKEN, and a new schedule, including a new dispositive
motions deadline, will be set after counsel is located.
Entered March 8, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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