Nieto, Juan v. Hoffman, M.D., Karen et al

Filing 28

ORDER denying defendants' 17 Motion for Partial Summary Judgment. Signed by District Judge James D. Peterson on 8/22/2017. (elc),(ps)

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

JUAN NIETO,
Plaintiff,
v.

MICHAEL DITTMAN, KARL HOFFMAN,
ISSAC HART, ANN BOATWRIGHT,
CINDY O’DONNELL, KEISHA PERRENOUD,
KAREN ANDERSON, CANDICE WARNER,
MEREDITH MASHAK, KIM CAMPBELL,
DENISE VALERIUS, KATHY WHALEN, and
SALAMULLAH SYED,

OPINION & ORDER
16-cv-163-jdp

Defendants.
Pro se plaintiff Juan Nieto, a state prisoner incarcerated at the Columbia Correctional
Institution (CCI), is proceeding against defendants, all CCI prison officials, on deliberate
indifference and medical malpractice claims. Nieto contends that defendants delayed
diagnosing and treating his broken toe and bone spurs for almost two years, despite knowing
that he was in great pain. Defendants have moved for partial summary judgment, contending
that Nieto’s claims regarding events before June 2015 must be dismissed because Nieto did not
file a prison grievance regarding the lack of medical care until July 5, 2015. Dkt. 17. Because
Nieto’s July 2015 grievance complained of an ongoing lack of medical care, I will deny
defendants’ motion for partial summary judgment.
Nieto alleges that on November 12, 2013, he alerted the CCI Health Services Unit
(HSU) that his foot was so injured that he had difficulty walking. Defendant Nurse Kim
Campbell told Nieto to rest and determined that referral to a doctor was unnecessary. Nieto
continued to complain of a painful and serious foot injury. Defendant Meredith Mashak, the

HSU manager, directed him to submit a health services request for an appointment. Later,
Mashak told Nieto that he was scheduled for a follow-up appointment. Despite Nieto’s
continued complaints of pain and requests for treatment, he was offered only acetaminophen
and was not seen by a doctor until January 14, 2015, over a year later. That doctor, defendant
Karl Hoffman, ordered and reviewed x-rays of Nieto’s foot, which revealed that Nieto’s toe was
fractured, but did nothing more.
The parties agree that Nieto filed his first grievance about the lack of treatment on July
8, 2015. The grievance complains of “the lack of proper treatment that has been given to
[Nieto] since [he] first requested help.” Dkt. 19-2, at 11. Nieto explained in the grievance that
he “most recently” complained to defendant Meredith Mashak, the HSU manager, about the
lack of treatment for his foot. Id. Nieto attached a copy of a letter dated June 25, 2015, that
he sent to Mashak. In the letter, he explained that he “first complained of the symptoms [he]
was experiencing way back in November 2013” and that he had “not yet received appropriate
treatment.” Id. at 12. The grievance requests examination, pain medication, and treatment for
the underlying injury. Nieto’s grievance was dismissed, as was his appeal.
Nieto alleges that he continued to seek treatment for his foot. More x-rays were taken
in August and September 2015. On September 11, defendant Salamullah Syed, MD, diagnosed
Nieto with a fractured toe and bone spurs, which developed because of the delay in treating
the fracture. Nieto filed this suit on March 10, 2016.
Under the Prison Litigation Reform Act, “[n]o action shall be brought with respect to
prison conditions under section 1983 . . . 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). To satisfy the exhaustion requirement, a prisoner must “properly take each

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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 State of Wisconsin requires prisoners to file a grievance
within 14 calendar days after the occurrence giving rise to the complaint. Wis. Admin. Code §
DOC 310.09(6). The exhaustion requirement is mandatory, Woodford v. Ngo, 548 U.S. 81, 85
(2006), and failure to exhaust requires dismissal of a prisoner’s case. Perez v. Wisconsin Dep’t of
Corr., 182 F.3d 532, 535 (7th Cir. 1999). Because exhaustion is an affirmative defense,
defendants bear the burden of establishing that Nieto failed to exhaust his available remedies.
Jones v. Bock, 549 U.S. 199, 216 (2007). At the summary judgment stage, they 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).
The facts material to the exhaustion requirement are not disputed. Once Nieto realized
that he would not get the medical assistance he was requesting, Nieto filed a grievance and
appealed it. He properly exhausted his available remedies. See Edwards v. Schrubbe, 807 F. Supp.
2d 809, 812-13 (E.D. Wis. 2011).
Defendants contend that because Nieto did not file his grievance until July 5, 2015, all
claims concerning events occurring more than 14 days before July 5 were not properly
exhausted. Under defendants’ theory, Nieto would have had to have filed a grievance way back
in November 2013, within 14 days of the initial denial of care. But at that point, how was
Nieto to know that a doctor visit would be delayed for so long and that even after being seen
by a doctor, it would be months before he was properly diagnosed and treated? If Nieto’s
grievance complained of a discrete event, he would have had to file it within 14 days of that
event. See Compton v. Cox, 12-cv-837, 2017 WL 933152, at *3 (Mar. 8, 2017). But instead, the

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grievance complained “about an ongoing lack of care from prison officials.” Id. In such an
instance, proper exhaustion occurs when a plaintiff files an “appropriate grievance through the
proper channels once he has realized that he would not be able to resolve his grievance with
the medical staff informally,” even if it’s more than 14 days after the earliest instance of the
denial of medical treatment. Edwards, 807 F. Supp. 2d at 812. That’s exactly what Nieto did.
Defendants cite Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013), for the
proposition that “the law does not allow a recently filed grievance to ‘retroactively exhaust’
earlier claims.” Dkt. 18, at 10. But Nieto is not using a late-filed grievance to resurrect a stale
claim that he failed to press promptly. Turley held that “prisoners need not file multiple,
successive grievances raising the same issue (such as prison conditions or policies) if the
objectionable condition is continuing.” 729 F.3d at 650. Turley did not mention retroactive
exhaustion, and in fact, the Turley court explained that grievances filed more than a year after
the condition at issue began “would satisfy exhaustion,” id. at 650 n.3, even though the
administrative rules applicable in that case required grievances to be filed “within 60 days after
the discovery of the incident, occurrence or problem.” 20 Ill. Admin. Code 504.810(a). If
anything, Turley suggests that Nieto properly exhausted his administrative remedies for all of
his claims because he filed a grievance when it became apparent to him that he was facing an
ongoing problem. He did not deprive CCI of the opportunity to address the delay in medical
care.
Because defendants have not shown that Nieto failed to exhaust his administrative
remedies concerning any of his claims, I will deny their motion for partial summary judgment.

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ORDER
IT IS ORDERED that defendants’ motion for partial summary judgment, Dkt. 17, is
DENIED.
Entered August 22, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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