Rzeplinski, James v. Tidquist, Debbie et al
ORDER denying 11 , 20 Motions for Assistance in Recruiting Counsel; denying 25 Motion to Amend Complaint; granting 29 Motion for Leave to File; granting 15 Motion for Summary Judgment based on plaintiff's failure to properly exhaust his administrative remedies; denying as moot 34 Motion for Preliminary Injunction. This case is DISMISSED without prejudice. The clerk of court is directed to enter judgment in favor of defendants and close this case. Signed by District Judge James D. Peterson on 3/11/15. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
OPINION & ORDER
CHERYL MARSOLEK, TAMMY MAASEN,
and GREGORY KREYER, 1
In this case, plaintiff James Rzeplinski, an inmate at the Jackson Correctional Institution,
is proceeding on Eighth Amendment claims against defendant prison officials Cheryl Marsolek,
Tammy Maasen, and Gregory Kreyer for removing him from a program to treat his hepatitis C.
Currently before the court are plaintiff’s motions for appointment of counsel, motion to amend
the complaint, and motion for preliminary injunctive relief, as well as defendants’ motion for
summary judgment based on plaintiff’s failure to exhaust his administrative remedies. Because I
conclude that plaintiff has failed to exhaust his administrative remedies, I will grant defendants’
motion and dismiss the case. Plaintiff’s motions will be denied.
Recruitment of counsel
Plaintiff has filed two motions for appointment of counsel. Dkt. 11, 20. The term
“appoint” is a misnomer, as I do not have the authority to appoint counsel to represent a pro se
plaintiff in this type of a case; I can only recruit counsel who may be willing to serve in that
Plaintiff was originally granted leave to proceed against a “John Doe” correctional officer.
Pursuant to procedures outlined in the June 2, 2014 preliminary pretrial conference order,
plaintiff identified Gregory Kreyer as the Doe defendant, Dkt. 28, and the caption has been
capacity. A court will seek to recruit counsel for a pro se litigant only when he demonstrates that
his case is one of those relatively few in which it appears from the record that the legal and
factual difficulty of the case exceeds his ability to prosecute it. Pruitt v. Mote, 503 F.3d 647,
654–55 (7th Cir. 2007). Plaintiff does not show that the immediate task at hand, defending
against the motion for summary judgment based on exhaustion, is a task beyond his abilities. To
the contrary, plaintiff has presented well-articulated, albeit unsuccessful, briefing on the motion.
As discussed further below, the real problem for plaintiff is that he did not file a formal inmate
grievance at the proper time. Because locating counsel would not materially alter the exhaustion
analysis, I will deny his motions.
Plaintiff has filed a motion for leave to amend his complaint, Dkt. 25, along with a
proposed amended complaint, Dkt. 26. Plaintiff seeks to (1) reinstate Debbie Tidquist as a
defendant (she was dismissed in the April 7, 2014 screening order), now alleging that she had
knowledge of the denial of his treatment; and (2) add another claim against defendant Kreyer
for violating Wisconsin statues and Administrative Code provisions by passing out medication
without being qualified to do so. 2
This court “should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P.
15(a)(2). However, there is no reason to allow plaintiff to amend his complaint at this time.
First, as stated further below, plaintiff’s claims regarding his hepatitis C treatment are being
dismissed because he failed to exhaust his administrative remedies. A new claim against Tidquist
would immediately be dismissed for the same reason. As for the claim against Kreyer for
distributing medication, a violation of state statutes or administrative code provisions does not
Plaintiff explicitly asserts this claim against “John Doe #1 Prison Guard,” Dkt. 26, at 4, but he
later identified the Doe defendant as Kreyer, Dkt. 28.
create a federal claim. See Thompson v. City of Chicago, 472 F.3d 444, 454 (7th Cir. 2006) (“the
violation of police regulations or even a state law is completely immaterial as to the question of
whether a violation of the federal constitution has been established.”). Plaintiff’s grievance
history shows that he has not exhausted his administrative remedies on this claim, so adding it
would be futile.
Exhaustion of administrative remedies
To succeed on a motion for summary judgment, the moving party must show that there
is no genuine issue of material fact and that he is 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
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. 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 four-step 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). Because exhaustion is an affirmative defense,
defendants bear the burden of establishing that a plaintiff failed to exhaust his available
remedies. Jones v. Bock, 549 U.S. 199, 216 (2007).
In the present case, the facts are not disputed. Defendants argue that plaintiff did not file
an inmate grievance about his hepatitis C treatment before filing this lawsuit. They note that in
his complaint, plaintiff acknowledged that he never filed a formal grievance through the ICRS
procedure but rather sent a letter he terms a “complaint by law” directly to the DOC secretary. 3
Dkt. 1, at 16. The secretary’s office received this letter on December 5, 2013. DOC Bureau of
Health Services staff member Jodi DeRosa responded to plaintiff in a letter dated January 13,
2014, stating in part as follows:
In his opposition brief, plaintiff states that he has filed a grievance, No. JCI-2014-11035. Dkt.
23, at 5; Dkt. 24-1, at 3. However, he filed this grievance months after filing this lawsuit, which
means that the grievance cannot serve to exhaust his remedies for the purposes of this suit. Ford
v. Johnson, 362 F.3d 395, 398-99 (7th Cir. 2004).
In an effort to review your concerns, I have reviewed the Inmate
Complaint Tracking System and it is noted that you have not filed an Inmate
Complaint regarding your concerns. It is important health care concerns are
addressed by inmate patients through the Health Services Unit. (Security
concerns are to be addressed accordingly by contacting the appropriate
security supervisor). You are encouraged to work with the health staff at JCI
to address your health concerns. If your health concerns are not resolved at
this level they should be routed through the Inmate Complaint System (ICS)
following the complaint system guidelines. This is the formal grievance process
available to you and utilizing this system ensures each health care related
complaint is recorded for tracking and trending purposes and is reviewed by
the assigned Nursing Coordinator or the appropriate Reviewing Authority.
Additionally, inmate patients also have the right to appeal the complaint
decision if they do not agree with the first level decision within the required
Dkt. 17-2 at 13.
Plaintiff’s failure to file an administrative grievance through the ICRS procedure even
after being told to do so by DeRosa suffices to show that he failed to exhaust his administrative
grievances. Plaintiff contends that he either exhausted his remedies, or should be excused from
the requirement, because he filed a “complaint of law” under Article I, Section 4 of the
Wisconsin Constitution (“The right of the people peaceably to assemble, to consult for the
common good, and to petition the government, or any department thereof, shall never be
abridged.”); and Wis. Stat. §§ 227.10(2) (“No agency may promulgate a rule which conflicts
with state law.”); and 301.29(3) (“The department [of corrections] shall investigate complaints
against any institution under its jurisdiction or against the officers or employees of the
institutions.”). But it is well-settled that the state can dictate the process for administrative
exhaustion and failure to comply with that process results in a failure to exhaust. See, e.g., Pozo,
286 F.3d at 1025 (“To exhaust remedies, a prisoner must file complaints and appeals in the
place, and at the time, the prison’s administrative rules require.”). Plaintiff’s “complaint of law”
did not follow the state’s procedures and is thus did not serve to exhaust plaintiff’s
I understand the main thrust of plaintiff’s arguments to be that the administrative
process should not have been considered “available” to him within the meaning of 42 U.S.C.
§ 1997e(a). 4 In his complaint, plaintiff seems to acknowledge that his “complaint of law” did
not follow the normal DOC procedures, but then argues that he was forced to abandon the
formal grievance process as “flawed, biased, unreliable, and interfere[ing] with Due Process
Rights” because prisoners are required to go “through [the] chain of command” before initiating
a grievance. Dkt. 1 at 16. It is true that if plaintiff had filed a formal grievance rather than his
unauthorized letter to the secretary, it is possible he would have been told to attempt to resolve
his problem informally first. See Wis. Admin. Code § 310.09(4) (“Prior to accepting the [inmate
grievance], the [complaint examiner] may direct the inmate to attempt to resolve the issue.”).
But this is not legitimate reason for plaintiff to ignore the ICRS procedures. Because the
informal resolution step is part of the grievance procedure, he must follow it in order to fully
exhaust his grievance. See Pozo, 286 F.3d at 1025.
Plaintiff’s other major argument is that the grievance process was not truly available to
him because the ICRS examiners could not have granted him the relief he wanted: being placed
back in the hepatitis C program. He believes this is so because he “was previously informed by
HSU staff, that once a person is on the program, and stops, they cannot restart.” Dkt. 23, at 2. I
understand plaintiff to be saying that medical staff outside the prison system have concluded
Plaintiff has filed a motion for leave to file a sur-reply, Dkt. 29, as well as a proposed sur-reply,
Dkt. 30. Although this court generally looks upon sur-replys with disfavor, I will grant his
motion. However, the arguments plaintiff raises in his sur-reply largely overlap with those raised
in his brief in opposition, and nothing in the sur-reply persuades me that the ICRS procedure
was “unavailable” to him.
that plaintiff cannot restart the program, a three-drug regimen, “due to drug resistance,” and
that a grievance would be futile because the DOC cannot force outside medical professionals to
put him back on the program. Id. at 3, Dkt. 24-1, at 1. Plaintiff cites to several out-of-circuit
cases for the proposition that this makes the grievance process “unavailable.” See, e.g., Hemphill v.
New York, 380 F.3d 680, 690-91 (2d. Cir. 2004) (administrative remedies may be unavailable
where prison official’s threats stop inmate from filing grievance); Farnworth v. Craven, No. CV05493-S-MHW, 2007 U.S. Dist. LEXIS 19412, at *14 (D. Idaho Mar. 14, 2007) (unpublished)
(prisoner seeking new parole hearing need not exhaust grievance system because it had no
authority over Parole Commission); Bumgarden v. Wackenhut Corrections Corp., 645 So. 2d 655,
657-58 (La. App. 1994) (prisoner no longer in custody need not exhaust; exhaustion “only
required when the procedures have a realistic chance of resolving the dispute.”).
None of those cases are binding authority. More important, none of them are factually
on point either. For instance, plaintiff is not alleging that he was coerced into not filing a
grievance or that he is no longer in DOC custody. The case law binding in this circuit makes
clear that the mere unavailability of a particular remedy does not render the grievance process
unavailable. Booth v. Churner, 532 U.S. 731, 741 (2001) (prisoner must exhaust even though
money damages not available in grievance system); Perez, 182 F.3d at 537 (same). Even though
it is unfortunate for plaintiff that he may not be able to restart the exact treatment plan he was
on before, he must still go through the administrative process to give prison officials notice of
the problem and give them a chance to rectify it. Perez, 182 F.3d at 536. (“No one can know
whether administrative requests will be futile; the only way to find out is to try.”).
Because plaintiff has failed to properly exhaust his administrative remedies, the case
must be dismissed without prejudice. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004)
(dismissal for failure to exhaust is always without prejudice). If plaintiff believes that his ongoing
hepatitis C treatment is inadequate, he remains free to file a new lawsuit after fully exhausting
the grievance process.
Because I am dismissing the case, plaintiff’s motion for preliminary injunctive relief will
be denied as moot.
IT IS ORDERED that:
Plaintiff James Rzeplinski’s motions for the court’s assistance in recruiting him
counsel, Dkt. 11, 20, are DENIED.
Plaintiff’s motion for leave to amend his complaint, Dkt. 25, is DENIED.
Plaintiff’s motion for leave to file a sur-reply opposing defendants’ motion for
summary judgment, Dkt. 29, is GRANTED.
Defendants’ motion for summary judgment based on plaintiff’s failure to properly
exhaust his administrative remedies, Dkt. 15, is GRANTED. This case is
DISMISSED without prejudice.
Plaintiff’s motion for preliminary injunctive relief, Dkt. 34, is DENIED as moot.
The clerk of court is directed to enter judgment in favor of defendants and close
Entered March 11, 2015.
BY THE COURT:
JAMES D. PETERSON
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