Anderson, Christopher v. Rock County Jail Medical Staff et. al.

Filing 50

ORDER denying defendants' 33 Motion for Summary Judgment for plaintiff's failure to exhaust administrative remedies. Defendants may have until July 25, 2017 to notify the court whether they wish to pursue their exhaustion defense further at a hearing under Pavey v. Conley, 528 F.3d 494 (7th Circ. 2008). Signed by District Judge William M. Conley on 7/18/2017. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CHRISTOPHER A. ANDERSON,
Plaintiff,

OPINION and ORDER

v.

14-cv-831-wmc

DR. BUTLER, et al.
Defendants.
In this pro se civil rights lawsuit, plaintiff Christopher A. Anderson is proceeding on
claims that a doctor and several nurses at the Rock County Jail violated his constitutional
and common law rights by refusing to fill prescriptions necessary to treat his mental health
conditions. Defendants have moved for summary judgment on the ground that all of
Anderson’s claims must be dismissed for failure to exhaust jail administrative remedies
before filing suit. (Dkt. #33.) Because the parties’ submissions reflect genuine factual
disputes material to defendants’ exhaustion defense, the court will deny that motion at this
time. Instead, the court will give defendants an opportunity to clarify whether they wish
to pursue their exhaustion defense at a hearing under Pavey v. Conley, 528 F.3d 494, 49698 (7th Cir. 2008).

OPINION
I.

Exhaustion of Administrative Remedies
Under 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to prison

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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.” 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). This 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 [jail’s] administrative rules require.” Pozo, 286 F.3d at 1025.
The purpose of these requirements is to give the jail administrators a fair
opportunity to resolve the grievance without litigation. Woodford v. Ngo, 548 U.S. 81, 8889 (2006). If a prisoner fails to exhaust his administrative remedies before filing his
lawsuit, then the court must dismiss the case. Perez v. Wisconsin Dept. of Corr., 182 F.3d
532, 535 (7th Cir. 1999). Because exhaustion is an affirmative defense, defendants bear
the burden of establishing that plaintiff failed to exhaust his administrative remedies.
Jones v. Bock, 549 U.S. 199, 216 (2007).
To exhaust administrative remedies at the Rock County Jail, prisoners must follow
the inmate complaint review process set forth in the jail rule book. The Rock County Jail
Inmate Grievance Procedure requires inmates to submit a written grievance within 15 days
of an alleged violation of their rights by jail staff. (Dkt. #40-1.) If a grievance concerns
medical care, it is forwarded to the on-duty, jail nurse for review. (Dkt. #40-2.) The
nurse may attempt to resolve the issue, or may refer the grievance to the responsible

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physician or other authority. If the nurse determines that the grievance is not valid or is
minor in nature, the inmate has 5 days to request review by the responsible physician.
The responsible physician’s decision is final. (Id.)
Inmates are informed that Rock County Jail has grievance procedures. Inmates
may review the grievance procedures through the jail’s “kiosk system,” which is available
in every housing unit. The kiosk system and grievance procedures were available for
review during the time in which Anderson was held at the jail.
II.

Anderson’s Claims
Anderson is proceeding on claims that defendants failed to refill his prescriptions

for Seroquel and Prazosin when he was being held at the Rock County Jail between January
11, 2013, and February 5, 2013. He alleges that as a result of not having his medications,
he suffered a “massive panic attack” with visual hallucinations and suicidal ideation.
Anderson concedes that, prior to filing suit, he did not file any grievances regarding
defendants’ refusal to refill prescription medications or any other medical treatment he
received at the Rock County Jail. He argues, however, that the reason he did not submit
any grievances regarding his medications is because he “was told by multiple members of
the jail staff . . . that medical issues could NOT be griev[ed].” (Pl.’s Br., dkt. #42 at 2.)1

Defendants argue that summary judgment is appropriate in part because Anderson did not submit an
affidavit or declaration supporting his contention that jail staff told him that he could not grieve medical
care issues. However, Anderson stated in his initial pleading that he “[w]as told by jail staff, that
medical issues were exempt from the grievance process.” (Dkt. #1.) Because Anderson’s complaint
was “verified,” meaning that he swore under penalty of perjury that the facts contained therein are true,
it is admissible evidence in the context of a motion for summary judgment, so long as he has personal
knowledge of the statements contained therein. See Devbrow v. Gallegos, 735 F.3d 584, 587 (7th Cir.
2013).
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Anderson further alleges that, given the passage of time, he does not remember which jail
staff told him that he could not file grievances about medical care issues.
Prisoners are required to comply only with those grievance procedures that are
“available.” 42 U.S.C. § 1997e(a). “An administrative remedy is not ‘available,’ and
therefore need not be exhausted, if prison officials erroneously inform an inmate that the
remedy does not exist or inaccurately describe the steps he needs to take to pursue it.”
Pavey v. Conley, 663 F.3d 899, 906 (7th Cir. 2011). See also Ross v. Blake, 136 S. Ct. 1850,
1860 (2016) (grievance process “unavailable” if “prison administrators thwart inmates
from taking advantage of a grievance process through machination, misrepresentation, or
intimidation”) (emphasis added). Thus, if jail staff actually told Anderson that he could
not use the grievance procedures to file a medical care claim, the procedures were not
“available” to him, and he did not need to exhaust his administrative remedies.
Here, defendants point to several reasons why they believe that Anderson’s
allegations regarding instructions from jail staff are not credible, including that:

(1)

Anderson cannot identify any particular person who gave him the misinformation; (2) the
grievance procedures were well-established and easily accessible; and (3) Anderson knew
how to access the grievance procedures, as evidenced by his submission of grievances about
other issues. However, the court cannot resolve this dispute on a motion for summary
judgment. Rather, under Pavey v. Conley, 528 F.3d 494, 496-98 (7th Cir. 2008), the court
would need to hold a hearing to resolve factual disputes relevant to exhaustion. If, after
such hearing, the court determined that Anderson exhausted his administrative remedies,

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the case would proceed on the merits. If, however, the court found that he did not
exhaust, the case would be dismissed without prejudice. See Fluker v. County of Kankakee,
741 F.3d 787, 791 (7th Cir. 2013) (dismissals for failure to exhaust are always without
prejudice, “even if exhausting administrative remedies will prove to be impossible”) (citing
Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004)).
Here, defendants did not expressly request a hearing, but the court will give them
an opportunity to do so.

In considering whether defendants wish to pursue their

exhaustion defense further, defendants may wish to consider that because Anderson
appears to be no longer in custody, the requirements of the PLRA would not apply to him
if he chose to immediately refile this lawsuit. See Kerr v. Puckett, 138 F.3d 321, 323 (7th
Cir. 1998) (PLRA did not apply to former prisoner filing suit after his release); Witzke v.
Femal, 376 F.3d 744, 750 (7th Cir. 2004) (“[T]he status of the plaintiff at the time he
brings his suit” determines whether the plaintiff is a prisoner subject to the PLRA's
exhaustion requirements). Thus, even if this case was dismissed for failure to exhaust,
Anderson would be able to refile his lawsuit without the need to exhaust his administrative
remedies.

See Miniz v. Pazera, 2007 WL 4233455, *4 (N.D. Ind. 2007) (“Even if a

prisoner has a case dismissed for failure to exhaust available administrative remedies, they
can refile the exact same complaint once they are released from prison without having to
satisfy the exhaustion requirement.”) Further, because the events at issue occurred in
2013, Anderson’s claims would not be barred by the applicable statute of limitations. See
Reget v. City of La Crosse, 595 F.3d 691, 694 (7th Cir. 2010) (in Wisconsin, statute of

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limitations for constitutional claims is usually six years).
That being said, in this case, because Anderson was incarcerated at the time he filed
suit, he is subject to the PLRA and defendants are entitled to assert an exhaustion defense.
They should promptly notify the court whether they wish to pursue their exhaustion
defense further at a hearing.

ORDER
IT IS ORDERED that:
(1)

Defendants’ motion for summary judgment for plaintiff’s failure to exhaust

his administrative remedies (dkt. #33), is DENIED.
(2)

Defendants may have until July 25, 2017, to notify the court whether they

wish to pursue their exhaustion defense further at a hearing under Pavey v. Conley, 528 F.3d
494 (7th Cir. 2008).
Entered this 18th day of July, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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