Dye, John v. Bartow, Byran et al

Filing 57

ORDER denying defendants' 44 Motion for Summary Judgment for plaintiff's failure to exhaust his administrative remedies; denying defendants' 48 motion for summary judgment following plaintiff's failure to meet the original response deadline; granting plaintiff's 49 motion for an extension of time to submit his response to defendants' exhaustion motion; granting 54 , 55 motions to amend the schedule. The schedule is amended as reflected within this order. Signed by District Judge James D. Peterson on 3/4/2016. (jef),(ps)

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

JOHN L. DYE, JR.,
Plaintiff,
v.

OPINION & ORDER

MARY KLEMZ, DR. GAANAN,
THOMAS MICHLOWSKI, and EDWARD F. WALL,

13-cv-284-jdp

Defendants.
Plaintiff John Dye, a prisoner currently incarcerated at the Waupun Correctional
Institution, brings Eighth Amendment and the Rehabilitation Act claims that officials at the
Wisconsin Resource Center (“WRC”) forced him to use a short-handled or “fingertip”
toothbrush despite his suffering from a “chronic mallet deformed right thumb” and arthritis
in both hands.
Currently before the court are several motions, including a motion for summary
judgment based on plaintiff’s failure to exhaust his administrative remedies, which I will
deny.
A. Exhaustion
Defendants have filed a motion for summary judgment based on plaintiff’s failure to
exhaust administrative remedies on his claims. Dkt. 44. An initial question is whether to
allow plaintiff to submit a week-late response to the motion. After plaintiff’s deadline to file a
response passed without his submission of a response, defendants filed a letter requesting
that the court grant their exhaustion motion. Dkt. 48. Plaintiff followed with a motion for
extension of time to file his response, Dkt. 49, along with his belated response, Dkt. 51-52.
Plaintiff states that he had difficulties arranging for copies of some of his summary judgment

documents. I will grant plaintiff’s motion because he asks for only a short extension, his
affidavit shows that he worked diligently in preparing his materials, and there is no prejudice
to defendants, who followed up with a reply to plaintiff’s belated submissions. Because I will
consider plaintiff’s response and defendants’ reply, I will deny defendants’ request for entry
of summary judgment following plaintiff’s failure to meet the original response deadline.
As for the substance of their summary judgment motion, defendants bear the burden
of establishing their affirmative defense that that plaintiff failed to exhaust his available
remedies. Jones v. Bock, 549 U.S. 199, 216 (2007). Defendants must show that there is no
genuine issue of material fact and that they are entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A genuine issue of
material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a
jury to return a verdict for that party.” Brummett v. Sinclair Broad. Grp., 414 F.3d 686, 692
(7th Cir. 2005). All reasonable inferences from the facts in the summary judgment record
must be drawn in the nonmoving party’s favor. Baron v. City of Highland Park, 195 F.3d 333,
338 (7th Cir. 1999).
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 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). The purpose of administrative exhaustion is not to protect the rights of officers, but
to give prison officials a chance to resolve the complaint without judicial intervention. Perez v.

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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. In Wisconsin, the administrative code sets out the process
for a prisoner to file a grievance and appeal an adverse decision through the Inmate
Complaint Review System (“ICRS”). Wis. Admin. Code §§ DOC 310.07 (laying out fourstep review process) and DOC 310.09 (setting rules for content and timing of grievances).
Failure to follow these rules may require dismissal of the prisoner’s case. Perez, 182 F.3d at
535. 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).
It is undisputed that plaintiff did not exhaust a grievance following defendants’
actions that form the basis of his claims in this case—their refusals to provide him with a
long-handled toothbrush in early 2013. But it is also undisputed that plaintiff did exhaust
grievances about the toothbrush issue in 2008 and 2009 during a previous stint at WRC
(plaintiff was transferred out of WRC in April 2010 and then returned in January 2013).
Those grievances were resolved as follows:


On November 28, 2008, plaintiff filed grievance no. WRC-2008-31291 stating
that his arthritis made it difficult to use the toothbrushes provided him. The
institution complaint examiner (ICE) recommended dismissing the grievance
after talking to Dr. Loria, who said that there was no medical reason to provide
a normal toothbrush. Plaintiff appealed this decision through the entire
complaint review process.

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

On March 26, 2009, plaintiff filed a grievance stating that he almost
swallowed his “fingertip toothbrush.” The grievance was initially rejected as
previously addressed in the ’31291 grievance, but the reviewing authority
reversed that decision, stating that the previous grievance was not the same
issue as plaintiff’s accident with the fingertip toothbrush. The ICE then
recommended dismissal, stating that the toothbrushes were not dangerous
when used as directed and that plaintiff’s grievance seemed to be another
attempt at obtaining a long-handled toothbrush. Plaintiff unsuccessfully
appealed this ruling through the entire complaint review process.



On September 1, 2009, plaintiff filed a grievance contending that Dr. Loria
failed to thoroughly examine him and thus gave incorrect information to the
ICE in the ’31291 grievance. This grievance was initially rejected as timebarred, but the reviewing authority reversed this decision. After meeting with
plaintiff and reviewing medical records, the ICE recommended dismissing the
grievance. Plaintiff unsuccessfully appealed this ruing through the entire
complaint review process.

Usually, a grievance that predates the specific conduct alleged in the subsequent
§ 1983 action does not serve to exhaust administrative remedies concerning the later
conduct. However, “prisoners need not file multiple, successive grievances raising the same
issue (such as prison conditions or policies) if the objectionable condition is continuing.”
Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013) (citing Parzyck v. Prison Health Servs.
Inc., 627 F.3d 1215, 1219 (11th Cir. 2010) (prisoner “not required to initiate another round
of the administrative grievance process on the exact same issue each time” a deprivation
occurred); Howard v. Waide, 534 F.3d 1227, 1244 (10th Cir. 2008) (prisoner “was not
required to begin the grievance process anew when the very risk to his safety that he
identified during the grievance process came to pass”); Johnson v. Johnson, 385 F.3d 503, 521
(5th Cir. 2004) (“As a practical matter, [plaintiff] could not have been expected to file a new
grievance . . . each time he was assaulted”). “[O]nce a prison has received notice of, and an
opportunity to correct, a problem, the prisoner has satisfied the purpose of the exhaustion
requirement.” Turley, 729 F.3d at 650.

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Plaintiff contends that the earlier grievances served to exhaust his current claims. On
the face of it, this makes sense under Turley; plaintiff’s arthritis and the pain it caused him to
use the fingertip toothbrush in 2013 were the same problems he had in 2008-09. Plaintiff’s
belief that he had done all he needed to do to exhaust is bolstered by the response he
received from the DOC Bureau of Health Services nursing coordinator in March 2013, which
stated in part,
I now understand this issue has already been addressed though
the inmate complaint system in 2009 and a decision was made.
Because you have already filing a complaint regarding your
health concerns and it was decided upon though the inmate
complaint system there is nothing additional that I will be
addressing through correspondence.
Dkt. 51-2, at 24. This response gave plaintiff reason to believe that there was nothing to be
gained by filing a new grievance.
In their brief-in-chief, defendants focus on the “continuing violation doctrine.” They
argue that “[t]he . . . doctrine does not apply to [plaintiff’s] claims” because “the violation
ends when the matter is resolved or treatment is provided,” and the 2008-09 violations ended
when plaintiff was transferred out of WRC in 2010. Dkt. 7, at 8 (citing Heard v. Sheahan,
253 F.3d 316 (7th Cir. 2001)). Plaintiff argues that the doctrine should apply in a way that
exhausts his claims. But the continuing violation doctrine relates to the accrual of claims,
Heard, 253 F.3d at 319, not the proper way to exhaust a claim where a continuing violation is
occurring. This difference is illustrated in Turley, where the Seventh Circuit specifically
discussed the continuing violation doctrine as it applied to the defendants’ argument that
some of the prisoner’s claims were time-barred, see 729 F.3d at 651, but did not cite
continuing violation doctrine cases in the section of the opinion discussing exhaustion for
claims based on a series of alleged constitutional violations, id. at 650.

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But even construing defendants’ argument to be that I should import concepts from
the continuing violation doctrine into the Turley standard, they fail to show that this dooms
plaintiff’s claims. Defendants focus on plaintiff’s 2010 transfer; they state that “the violation
ends when the matter is resolved or treatment is provided,” and that the 2010 transfer
mooted his claims. Dkt. 45 at 8 (citing Heard, 253 F.3d 316, and Wis. Admin. Code § DOC
310.03(13) (defining “moot” for purposes of inmate grievances). But a DOC regulation
about mootness does not supersede Turley’s exhaustion analysis, and defendants do not
explain why Heard should apply to the facts at issue here. Although the Heard court stated
that defendants’ alleged violations continued “until [plaintiff] left the jail,” 253 F.3d at 318,
that case did not involve a prisoner who was later returned to the same facility to encounter
the same mistreatment, and defendants do not cite to any cases discussing such a scenario.
Defendants go on to argue that plaintiff did not exhaust his 2013 claims because the
2008-09 violations formed different claims than the 2013 violations. They point out two
ways the sets of claims are different. First, they note that the 2013 claims are against a
different set of defendants. Defendants Gaanan, Klemz, and Michlowski were not the
subjects of plaintiff’s claims regarding his treatment in 2008-09. But the 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.” Jones v. Bock, 549 U.S. 199, 219 (2007). A
prisoner need not name any particular defendant in a grievance in order to properly exhaust
his claim. Id. Defendants’ position would undermine the purpose of Turley by forcing a
prisoner to file a new grievance every time a new defendant joined in a pattern of continuing
mistreatment.

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Defendants also argue that his current claims must be treated as separate from the
2008-09 claims because I did exactly that in denying plaintiff leave to proceed on the older
set of claims. See Dkt. 32, at 5-7. But the reason plaintiff was not allowed to proceed on his
2008-09 claims is that he has “struck out” under 28 U.S.C. § 1915(g) and cannot proceed in
forma pauperis on any claim unless that claim shows that he is in imminent danger of serious
physical harm. Under § 1915(g), plaintiff could not bring claims for actions taken in 200809, because those specific actions did not place him in imminent danger of serious physical
harm at the time he filed his complaint. The imminent danger question is irrelevant to the
Turley analysis of whether plaintiff’s grievances about the 2008-09 events served to put
prison officials on notice about the toothbrush problem.
Because defendants have failed to show that plaintiff failed to exhaust his
administrative remedies, I will deny their motion for summary judgment.
B. Medical Authorization
The parties have each filed submissions discussing the scope of medical records
plaintiff will allow defendants to access. Dkt. 37, 39, 41. Plaintiff states that he understands
that he will have to allow defendants access to relevant medical records so that they can
defend against plaintiff’s claims, but he argues that defendants’ proposed release
authorization form is too broad. I do not consider the parties’ current submissions to be
formal discovery motions, but I will provide guidance on what defendants should reasonably
be able to discover after hashing out an authorization form.
Defendants have submitted a new proposed form that appears to rectify at least some
of some of plaintiff’s concerns. For instance, defendants have met plaintiff’s request that the
authorization expire upon the conclusion of the litigation. Defendants also limit the scope of

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the time periods for which records must be released to records from 2004 and after (plaintiff
alleges that he has suffered from arthritis since then). Plaintiff asks that the records be
limited to the precise “dates, month(s), and/or years of the present matter at issue,” Dkt. 37,
at 2, but it is unrealistic to pick and choose records out of plaintiff’s medical file based on
individual days, and the entire scope of his treatment for his hand problems should be
discoverable by defendants. I conclude that plaintiff will have to authorize the release of
records from 2004 to the present.
But I agree with plaintiff that the proposed authorization form is unnecessarily broad
regarding the types of medical records subject to release. It authorizes the disclosure of “all
records, reports, documents . . .” specifically including “[c]ounseling, psychological, and/or
psychiatric records, . . . alcohol and/or drug treatment records, and HIV and/or AIDS test
results.” It is unclear how these types of records could be relevant to plaintiff’s claim that
defendants were deliberately indifferent to his arthritis and deformed thumb. Defendants are
not entitled to medical records that are irrelevant to the issues in this case, so they should
amend the form to remove the irrelevant categories of documents.
The parties should work quickly to come to an agreement on the release of medical
records. This court will not force plaintiff to release medical information, even if that
information is relevant to his claims. Rather, I will dismiss the case if plaintiff will not allow
access to the relevant information. If the parties continue to dispute the scope of the
authorization, defendants should file a motion to dismiss based on plaintiff’s withholding of
information, and the parties can explain precisely what records are in dispute.

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C. Remaining schedule
Defendants have filed motions to stay their expert disclosure deadline and the
dispositive motion deadline. Dkt. 54 & 55. These deadlines have passed, so I will construe
the motions as motions to amend the schedule. There is enough time remaining before the
August 1, 2016, trial date to amend the schedule as follows. Defendants have already
submitted a provisional expert report to plaintiff, Dkt. 56, but I will give them until April 4,
2016, to supplement that version if they so choose. The new dispositive motions deadline
will be April 25, 2016.

ORDER
IT IS ORDERED that:
1. Plaintiff John Dye’s motion for an extension of time to submit his response to
defendants’ exhaustion motion, Dkt. 49, is GRANTED, and defendants’ motion
for summary judgment following plaintiff’s failure to meet the original response
deadline, Dkt. 48, is DENIED.
2. Defendants’ motion for summary judgment based on plaintiff’ failure to exhaust
his administrative remedies, Dkt. 44, is DENIED.
3. Defendants’ motions to amend the schedule, Dkt. 54 & 55, are GRANTED. The
schedule is amended as reflected in the opinion above.
Entered March 4, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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