Johnson, Maurice v. Larson-Smith, Karen et al
Filing
49
ORDER denying 33 Motion for Partial Summary Judgment; granting 41 Motion for Leave to File a Sur-Reply; denying as moot 45 Motion to Stay; granting 25 Motion for Assistance in Recruiting Counsel. All deadlines in this case are STRUCK pending recruitment. Signed by District Judge William M. Conley on 6/15/2015. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MAURICE JOHNSON,
Plaintiff,
OPINION & ORDER
v.
13-cv-309-wmc
KAREN LARSON-SMITH et al.,
Defendants.
In this prisoner civil rights litigation, plaintiff Maurice Johnson claims that staff
members at New Lisbon Correctional Institution (“NLCI”) and Columbia Correctional
Institution (“CCI”) were deliberately indifferent to his mental health needs and placed him
in a filthy, cold cell for two weeks. Defendants have moved for partial summary judgment
on the grounds that Johnson failed to exhaust his administrative remedies before filing this
lawsuit, as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).
(Dkt. #33.) The court disagrees and will deny that motion. Additionally, Johnson seeks
assistance in locating pro bono counsel.
(Dkt. #25.)
After reviewing the information
Johnson has provided, and taking into account the complexity of Johnson’s claims, the court
agrees that this is an appropriate case for counsel and will attempt to locate a volunteer
willing to take this case.
OPINION
I.
Exhaustion
The PLRA provides that “[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.”
42 U.S.C. § 1997e(a). In the Seventh Circuit, exhaustion of
administrative remedies is a “condition precedent to suit.” Dixon v. Page, 291 F.3d 485, 488
(7th Cir. 2002); see also Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 535 (7th Cir. 1999)
(holding that where administrative remedies have not been exhausted, “the district court
lacks discretion to resolve the claim on the merits”). Moreover, the PLRA requires “proper
exhaustion; that is, the inmate must file a timely grievance utilizing the procedures and rules
of the state’s prison grievance process.” Maddox v. Love, 655 F.3d 709, 720 (7th Cir. 2011)
(internal quotation marks omitted). Where a grievance is rejected on procedural grounds,
rather than on the merits, the inmate has failed to exhaust. See id. at 722.
On the other hand, prison officials “may not take unfair advantage of the exhaustion
requirement.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Inmates need only
exhaust remedies that are available, 42 U.S.C. § 1997e(a), and “a remedy becomes
‘unavailable’ if prison employees do not respond to a properly filed grievance or otherwise
use affirmative misconduct to prevent a prisoner from exhausting.” Dole, 438 F.3d at 809.
There are three separate claims at issue here: (1) the alleged failure of Drs. LarsonSmith and Frodin to provide mental health care while Johnson was incarcerated at NLCI;
(2) the alleged failure of Drs. Buhr, Harris, Laurent, Suliene and Health Services Unit
Manager Anderson to force-feed Johnson while he was incarcerated at CCI; and (3) the
alleged unconstitutional conditions of confinement in his observation cell at CCI.
Defendants concede that Johnson exhausted his remedies with respect to his force-feeding
claim.
(Defs.’ Br. (dkt. #34) 3.)
The court addresses each of the other two claims
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separately to determine whether Johnson has properly exhausted his available administrative
remedies.
A. Failure to Provide Mental Health Services
With respect to the claim for failure to provide mental health care, defendants have
presented the affidavit of Corrections Complaint Examiner (“CCE”) Welcome Rose, who
claims to have no record of any offender complaints filed by Johnson “regarding lack of
mental health treatment at NLCI.” (Welcome Rose Aff. (dkt. #35) ¶ 12.) In response,
Johnson presents his own affidavit and supporting documentation suggesting that the
situation is not as clear-cut as defendants’ opening brief would suggest.
According to Johnson, on February 27, 2012, he filed a grievance describing the
repeated cancellation and rescheduling of his psychological services appointments. A true
and correct copy of that grievance is attached to his declaration as Exhibit A. (Dkt. #37-1.)
The next day, Johnson received his materials back, accompanied by a letter from Institution
Complaint Examiner (“ICE”) Lynn Washetas. Washetas indicated the materials were being
returned because “[c]omplaints shall contain only one issue and that issue shall be clearly
identified” and “[b]efore this complaint is accepted, you need to attempt to resolve the issue
by contacting PSU Supervisor, Dr. Frodin.” (Maurice Johnson Decl. Ex. B (dkt. #37-2).)
Washetas also stated that “[e]ach incident should be submitted as a separate complaint.”
(Id.)
Johnson avers that he had already identified the issue of which he complained. (See
Maurice Johnson Decl. Ex. A (dkt. #37-1) 3 (“COMPLAINT ISSUE: That Dr. LarsonSmith
has
continuously
reschedul[ed]
my
3
appointments
concerning
my
serious
psychological problems I am having due to her constant [canceling] and rescheduling of my
appointment which has denied me the treatment I need.”) (emphasis in original).)
Furthermore, his original offender complaint indicates that on two separate occasions,
Johnson contacted the clinical services supervisor office directly.
(Id. at 2 (“I sent a[]
psychological request directly to clinical services supervisor office complaining about the
actions or inactions of Dr. Larson-Smith . . . On 11-22-11, I again sent a request directly to
Dr. Flodean-Clinical (sic)[.]”).)
Finally, Johnson argues that the separate-complaint
requirement did not make sense, as his grievance focused on a continuing pattern of
appointment cancellations and denials of treatment.
Believing he had already complied with Washetas’s instructions, Johnson simply resubmitted his materials. On February 29, 2012, however, Washetas returned Johnson’s
complaint a second time, again accompanied by a letter, which is attached to Johnson’s
declaration as Exhibit C. (Dkt. #37-3.) The letter states in part, “Your attempted filing is
being returned to you a second time for the reason(s) cited in the ICE return letter
previously sent to you. If you again attempt to file without following the direction(s) in
that letter, this office will not respond and your submissions will not be returned to you.”
Johnson avers that he chose not to re-file his complaint at this point because he
believed that Washetas would not process it and would either keep his documents or throw
them away. Instead, Johnson sent a letter to the Secretary of the DOC on March 11, 2012,
a copy of which is attached to his declaration as Exhibit D.
(Dkt. #37-4.)
Johnson
explained how he had attempted to satisfy Washetas’s directions and complained of her
continued refusal to process his complaint.
4
On March 28, 2012, having received no response to his first letter, Johnson
submitted a second letter to the Secretary of the DOC. (Dkt. #37-5.) In response, Johnson
received two letters from Welcome Rose, both declining to investigate Washetas’s decision
and instructing him to use the Inmate Complaint Review System to address his complaint.
(Dkt. #37-6, #37-7.) At that point, Johnson avers, he gave up, having “[done] all [he]
could to put them on notice and give them an opportunity to investigate.”
(Maurice
Johnson Decl. (dkt. #37) ¶ 20.)
Based on the foregoing, there is no real dispute that Johnson did not properly
exhaust the prison’s administrative remedies, at least technically -- his grievances were
returned to him without processing and never recorded in the ICRS.
To meet the
requirements of the PLRA, however, Johnson need not dot every “i” and cross every “t.”
Johnson need only exhaust those remedies that are available to him. In Johnson’s view,
when ICE Washetas improperly refused to accept his grievances not once but twice, she
rendered the ICRS unavailable to him for practical purposes.
On this record, the court finds that there are genuine disputes of fact as to whether
the grievance process was available to Johnson. This finding is supported by the Seventh
Circuit’s recent, albeit admittedly non-precedential, decision in Ajala v. Tom, 592 F. App’x
526 (7th Cir. 2015), which provides helpful guidance in ascertaining when a remedy can be
deemed “unavailable.” In that case, the plaintiff-inmate, Ajala, tried to file two complaints,
which were returned to him unprocessed on the grounds that he did not comply with the
one-issue-per-complaint rule of Wis. Adm. Code § DOC 310.09(1)(e). Id. at 527. The next
week, Ajala filed three more complaints. The first asserted that his two complaints from the
previous week were unjustly returned. The third was related to the alleged overtightening of
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his handcuffs. Id. The handcuff complaint was returned unprocessed because it violated
the two-complaints-per-week rule of Wis. Adm. Code § DOC 310.09(2).
Id.
Ajala
resubmitted it the next week, but had it returned again because it was now untimely. Id.
Ajala then filed a lawsuit on the handcuff claim, and defendants moved for summary
judgment on the grounds that he had failed to properly exhaust his remedies. This court
granted that motion. See Ajala v. Tom, No. 13-cv-102-bbc, 2014 WL 905467 (W.D. Wis.
Mar. 7, 2014).
On appeal, Ajala argued that “the prison made the grievance process unavailable by
improperly refusing to process his first two complaints from the previous week, making it
necessary for him to submit three complaints the next week.” Ajala, 592 F. App’x at 527.
The Seventh Circuit agreed that he had presented enough evidence to support a finding that
administrative remedies were unavailable:
If the district court were to find, based on the content of the
first two complaints and the one-issue rule, that prison officials
should have accepted those two complaints, Ajala would have
had one fewer complaint to submit the following week. His
handcuffs complaint would then have been only the second, and
not third, timely complaint filed that calendar week. . . . If, as
Ajala’s evidence suggests, the prison staff improperly refused to
process the first two grievances, they all but drove Ajala to
expend one of his two-per-week grievances on that issue, thereby
improperly impeding his access to the prison’s two-per-week
grievance procedure.
Id. at 528 (emphasis in original). Accordingly, the Seventh Circuit vacated the judgment
and remanded for fact-finding through Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008).
As in Ajala, Johnson has presented sufficient evidence to support a finding that
administrative remedies were rendered unavailable by Washetas’s refusal to accept and
process his complaints. In particular, Johnson submits an uncontroverted declaration, as
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well as a copy of one of his two complaints to support his contention that, contrary to
Washetas’s letters, his complaint: (1) clearly identified the issue he intended to raise (the
repeated cancelation of his appointments, resulting in the denial of mental health care); and
(2) noted his two previous attempts to resolve the issue informally by contacting Dr. Frodin.
Furthermore, the second letter he received from Washetas warned him not to re-submit his
materials, unless he first corrected alleged “mistakes” that, according to Johnson, were never
wrong in the first place. This evidence would appear to raise sufficient genuine disputes of
fact as to whether Washetas “improperly refused to process the first two grievances.” Ajala,
592 F. App’x at 528.
Moreover, in their reply, defendants do not dispute Johnson’s version of events.
Rather, they argue that once his complaint was rejected, he could have appealed that
rejection to the warden pursuant to Wis. Adm. Code § DOC 310.11(6). As Johnson points
out, however, while an officially “rejected” complaint is appealable under this section, a
complaint that is informally returned unprocessed is not.1 Indeed, the Administrative Code
itself distinguishes between the two concepts, discussing return without processing in one
section and rejection in another. Compare Wis. Adm. Code § DOC 310.09(3), with Wis.
Adm. Code § DOC 310.11(6). Accordingly, the evidence and regulations would support a
finding that an appeal process was unavailable to Johnson once Washetas had twice
returned his complaint without processing it. See Naseer v. Belz, No. 13-cv-821-jdp, 2014
WL 5494440, at *4 (W.D. Wis. Oct. 30, 2014) (recognizing that “there does not appear to
be an appeals process” for the decision of an ICE to return grievances unprocessed).
1
Johnson moved to file a short sur-reply to address the difference between grievances that are
rejected and those that are returned without being processed. (Dkt. #41.) That motion will be
granted.
7
Regardless, defendants have failed to “establish affirmatively that the evidence is so
one-sided that no reasonable fact finder could find that the plaintiff was prevented from
exhausting his administrative remedies.” Santiago v. Anderson, 496 F. App’x 630, 636 (7th
Cir. 2012).
Because defendants bear the affirmative burden of establishing a failure to
exhaust administrative remedies, Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999), this
means that summary judgment on this claim will be denied.
II.
Conditions of Confinement
Next, defendants have moved to dismiss in part Johnson’s conditions of confinement
claim. Defendants concede that Johnson has exhausted with respect to claims that he did
not receive a blanket or mattress while on observation status, but they contend that because
Johnson made no mention of being forced to sleep on a blood-covered concrete floor, the
court should dismiss that portion of his claim. Reviewing the grievance that Johnson filed
and appealed, defendants are correct: while he complains of a denial of a mattress and
observation blanket, Johnson does not allude to blood on the floor. (See Welcome Rose Aff.
Ex. B (dkt. #35-2) 011.)
Johnson responds that defendants expect too much in the
grievance process and that his grievance broadly objected to “conditions of confinement
while in observation status.” That, he argues, is enough.
Johnson is correct that the standard as to the required content of administrative
grievances is forgiving. The Seventh Circuit has held that as a general matter, grievances
“must contain the sort of information that the administrative system requires.” Strong v.
David, 297 F.3d 646, 649 (7th Cir. 2002). “When the administrative rulebook is silent, a
grievance suffices if it alerts the prison to the nature of the wrong for which redress is
8
sought.” Id. at 650. “As in a notice-pleading system, the grievant need not lay out the
facts, articulate legal theories, or demand particular relief.
All the grievance need do is
object intelligibly to some asserted shortcoming.” Id.; see also, e.g., Westefer v. Snyder, 422
F.3d 570, 580-81 (7th Cir. 2005) (substantive complaints about conditions at new facility
were enough to place officials on notice that inmates challenged the transfers themselves);
Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004) (although grievance was at “the
border of intelligibility,” it “did complain that Garcia had committed a rape and that ‘the
administration don’t do there (sic) job.’ A generous construction of this grievance would
have induced the prison to consider the possibility that the guards could have prevented this
assault.”).
On the other hand, defendants are correct that the grievance makes no mention of
blood on the floor. There is no way that prison officials could infer that particular condition
from the grievance that Johnson filed, even if they recognized that he challenged the
conditions in observation as a broader principle.
Ultimately, the court concludes that dismissing a “portion” of Johnson’s conditions
of confinement claim does not make sense in light of the PLRA’s lenient requirements for
the content of grievances.
Defendants were undisputedly on notice that Johnson was
unhappy with the conditions in observation; they could also infer, from his complaints that
he lacked a mattress and blanket, and presumably they would have known that he was
being forced to sleep on a concrete floor.
To hold that Johnson cannot support his
allegations of unconstitutional conditions of confinement with additional facts that were not
expressly mentioned in the grievance would be akin to requiring that he “lay out the facts” - a position that the Seventh Circuit rejected in Strong. The court declines to impose such a
9
stringent standard, particularly when the Wisconsin Administrative Code contains no such
requirement. Cf. Strong, 297 F.3d at 650 (“Strong’s two grievances were comprehensible
and contained everything that Illinois instructed him to include.
Defendants can’t
complain that he failed to do more.”).
III.
Motion for Assistance in Recruiting Counsel
Finally, Johnson has moved for assistance in recruiting pro bono counsel. (Dkt. #25.)
Before deciding whether it is necessary to recruit counsel, a court must find that the
plaintiff has made reasonable efforts to find a lawyer on his own and has been unsuccessful,
or that he has been prevented from making such efforts. Jackson v. Cnty. of McLean, 953
F.2d 1070, 1072-73 (7th Cir. 1992). With his motion, Johnson includes rejection letters
from three different law firms, all of which declined to assist him. (See dkt. #25-1.) This
satisfies the threshold requirement that Johnson make reasonable efforts to find counsel on
his own, which leaves the merits of Johnson’s request.
The touchstone of a volunteer counsel inquiry is “whether the difficulty of the case -factually and legally -- exceeds the particular plaintiff’s capacity as a layperson to coherently
present it to the judge or jury himself.” Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007).
Said another way, the question is, “given the difficulty of the case, [does] the plaintiff
appear to be competent to try it himself and, if not, would the presence of counsel [make] a
difference in the outcome?” Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995) (quoting
Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993)).
Here, Johnson submits with his motion a psychological evaluation dated February
11, 2014, which details his lengthy history of psychiatric problems, including diagnoses of:
10
adjustment disorders; substance abuse; personality disorder not otherwise specified with
paranoid, borderline and passive-aggressive features; and major depressive disorder.
Johnson has attempted suicide on numerous occasions, and the examining psychologist
described his “psychiatric presentation” as “quite complex,” noting his limited ability to
process information. (See generally dkt. #25-2.) Furthermore, Johnson argues, and the court
agrees, that his case is complex and will almost certainly require expert testimony,
particularly with respect to his claims of deliberate indifference to mental health needs and
the need to force-feed him during a hunger strike. See Dewitt v. Corizon, Inc., 760 F.3d 654,
658 (7th Cir. 2014) (district court abused its discretion by failing to recruit counsel where
case presented “complicated medical matters, involve[d] varying recommended courses of
treatment by numerous physicians, and required discovery into what constitutes reasonable
care for medical professionals.”). The force-feeding claim, in particular, will require inquiry
into whether Johnson’s hunger strike was a product of his mental illness. See Freeman v.
Berg, 441 F.3d 543, 546-47 (7th Cir. 2006).
Finally, Johnson has now survived summary judgment based on a failure to exhaust
his administrative remedies. Accordingly, this case will now proceed to the merits, meaning
there are undoubtedly a number of ways in which counsel could assist. Although Johnson
has done an able job litigating this case on his own thus far, he represents that he has done
so only with the aid of a jailhouse lawyer who has since been transferred to a different
institution. Thus, the court concludes that this case may well exceed Johnson’s ability to try
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it on his own, and present it coherently to the court or a jury, and it will exercise its
discretion to recruit a volunteer willing to represent Johnson pro bono.2
ORDER
IT IS ORDERED that:
1) Plaintiff Maurice Johnson’s motion for assistance in recruiting counsel (dkt. #25)
is GRANTED; all deadlines in this case are STRUCK pending recruitment.
2) Defendants’ motion for partial summary judgment (dkt. #33) is DENIED.
3) Plaintiff’s motion for leave to file a sur-reply (dkt. #41) is GRANTED.
4) Defendants’ motion to stay dispositive motion deadline (dkt. #45) is DENIED
AS MOOT.
Entered this 15th day of June, 2015.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge
2
Obviously, if the court is successful, plaintiff’s counsel will need some relief from the current
schedule. Accordingly, all remaining deadlines will be struck in this case and a scheduling conference
will be held promptly following an appointment of counsel to get this case back on track.
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