Galowski, Allen v. La Du-Ives, Sandra et al

Filing 51

ORDER denying defendants' joint 43 Motion for Summary Judgment for failure to exhaust administrative remedies. Signed by District Judge James D. Peterson on 5/15/2017. (jef),(ps)

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

ALLEN P. GALOWSKI,
Plaintiff,
v.
MICHAEL SHAEFER, SETH WISKOW,
DENNY WOODWARD, CHENG LAO, GJIN
LOR, GER LOR, KIA, DEVIN LITZA, RENE
SULLIVAN, JOHN ELLENBECKER, JESSICA
HINZ,
DAVID LINKE, JEANNE KOHLBECK, and
ANGELA M. GERMAN,

OPINION & ORDER
15-cv-780-jdp

Defendants.
Pro se plaintiff Allen P. Galowski is proceeding on claims that defendants, staff at the
Marathon County Jail, failed to properly treat his various serious medical needs when he was
incarcerated there from December 2013 to March 2014.1 Galowski alleges that he arrived at
the jail with several injuries to his spine, limbs, and hand. He requested medical attention
throughout his stay at the jail, but defendants ignored his requests and withheld his pain
medication and hand brace. He also alleges that he requested to be seen by a specific mental
health treatment provider, Ellen Barcker, throughout his stay at the jail, but he was not seen
by her until March 6.
Two groups of defendants jointly move for summary judgment based on Galowski’s
failure to exhaust his administrative remedies. Dkt. 43. Defendants bear the burden of

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Although Galowski remained in the legal custody of Marathon County Jail throughout this
time, he was physically transferred to the Lincoln County Jail from January to February or
March 2014. He does not bring claims against Lincoln County Jail staff.

establishing their affirmative defense that Galowski failed to exhaust his available remedies.
Jones v. Bock, 549 U.S. 199, 216 (2007). Defendants must show that there is no genuine dispute
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
Galowski’s favor, as the nonmoving party. 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, 532 (2002). Although
Galowski was released from the Marathon County Jail in March of 2014, § 1997e(a)’s
exhaustion requirement still applies to him because he was a prisoner (at the Jackson
Correctional Institution) at the time he filed this suit. See Kerr v. Puckett, 138 F. 3d 321, 323
(7th Cir. 1998).
Generally, to comply with § 1997e(a), a prisoner must “properly take each step within
the administrative process,” which includes filing grievances and appeals “in the place, and at
the time, the prison’s administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1024,
1025 (7th Cir. 2002). The Marathon County Jail requires inmates to submit grievances
electronically through kiosks located inside cells.

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Defendants contend that Galowski did not file a grievance concerning defendants’
failure to properly treat his medical needs. They point to five grievances that Galowski
submitted through the kiosk system in December 2013 and January 2014 as evidence that the
grievance system was available to Galowski and that he did not use the system to complain
about the lack of medical care. (The five grievances concern matters unrelated to medical needs,
such as canteen purchases and the jail’s water temperature.) They state that Galowski “did not
submit any inmate grievances with Marathon County Jail between December 2013 and March
2014 relating to the alleged deficiencies in medical care at issue in this lawsuit.” Dkt. 44, at 3.
But Galowski points to jail records, which he obtained via an open records request, that
show that he submitted many “resident requests” through the kiosk system between December
2013 and March 2014, some of which do relate to the lack of medical care at issue in this suit.
See Dkt. 49-10, at 7-25. For example, on March 3, 2014, Galowski complained about not
receiving ibuprofen that he had been requesting since December:
I was supposed to get [the ibuprofen] since I came in in December
and still waiting every time I seen nurse they said they would send
me 800 ML ibuprofen tabs since I had 5.5 ML Vicodin when I
came in for my hand and shoulders that I have torn rotator cuffs
in both from long prison time and bootcamp P.E. messed up. Will
there not be a charge since I was told at [Lincoln County Jail] they
said [Marathon County Jail] told them they been giving and
charging me for them and I still never got any. Plus I seen them
at [Lincoln County Jail] too for this and I was to receive them last
Wednesday there too. But again I got the run around and came
back here with nothing again.
Id. at 21. And the jail records show that Galowski submitted more than 10 requests asking for
mental health treatment by Ellen Barcker.
Perhaps there is an argument to be made that these requests do not satisfy § 1997e(a)’s
exhaustion requirement because they are not labeled “grievance,” but defendants have waived

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that argument by failing to address these requests at all in their reply, even though Galowski
specifically pointed them out the rebut defendants’ proposed fact. Likewise, they have waived
any potential argument that these requests do not alert defendants “to the nature of the wrong
for which redress is sought.” Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002). Galowski has
disproven the factual basis for defendants’ motion, so I will deny it.

ORDER
IT IS ORDERED that defendants’ joint motion for summary judgment for failure to
exhaust administrative remedies, Dkt. 43, is DENIED.
Entered May 15, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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