Carter, Johnson v. Unknown Heirs/Health Service Unit et al
Filing
93
ORDER denying plaintiff Johnson Carter's 80 Motion to Amend. Signed by District Judge William M. Conley on 9/5/2019. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JOHNSON CARTER,
ORDER
Plaintiff,
v.
16-cv-252-wmc
CARLA GRIGGS,
Defendants.
Plaintiff Johnson Carter is proceeding in this civil action on Eighth Amendment and
Wisconsin negligence claims against defendant Carla Griggs for her alleged failure to treat
plaintiff’s collarbone and shoulder injury in May of 2013 when he was incarcerated at
Jackson Correctional Institution. The court recruited counsel for Carter, and on November
21, 2018, Magistrate Judge Stephen Crocker held a pretrial conference, resetting the trial
for November 4, 2019, with pretrial filings due September 27, 2019. On May 10, 2019,
Carter filed a motion to amend his complaint to add Dr. Wayne Bradford Martin as a
defendant, since Dr. Martin was involved in Carter’s care for his injury starting in
November of 2013. (Dkt. #80.) Defendant opposes the motion and has recently notified
the court, pursuant to Federal Rule of Civil Procedure 25, that Dr. Martin passed away on
July 19, 2019. The court is denying that motion because adding Dr. Martin as a defendant
at this stage would unduly prejudice defendant, and, in any event, the amendment would
be futile since Carter did not exhaust his administrative remedies with respect to his
proposed claim against Dr. Martin.
PROPOSED ALLEGATIONS
Plaintiff now seeks to proceed on a claim against Dr. Martin based on the following
allegations. On November 29, 2013, Dr. Martin examined plaintiff and determined that
Carter had a first-degree shoulder separation. That day, Dr. Martin ordered an x-ray of
Carter’s right shoulder but did not order an activity or work restriction. After Carter’s xray, Dr. Martin examined him again on December 10, 2013. Dr. Martin noted the
shoulder separation again, recommending that Carter see a physical therapist to improve
the range of motion of his right shoulder. However, Dr. Martin did not prescribe any
additional pain medications, nor did he order an activity restriction. On January 22, 2014,
Dr. Martin examined Carter again. At this point, Carter reported that there was no
progress with his shoulder and asked if he could be seen for an orthopedic evaluation.
OPINION
Under Federal Rule of Civil Procedure 15(a)(2), the court “should freely give leave
when justice so requires.” Id. “Leave to amend pleadings is left to the sound discretion of
the district court.” Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 860-61 (7th Cir.
2001). The court may deny leave to amend where there has been “undue delay, bad faith,
dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendants, or
where the amendment would be futile.” Gonzalez-Koeneke v. West, 791 F.3d 801, 807 (7th
Cir. 2015). Neither party suggests that plaintiff’s motion was brought in bad faith or with
any dilatory motive. On the contrary, it appears that plaintiff filed the motion to amend
on May 10, 2019, promptly following Dr. Martin’s deposition. Nonetheless, defendant
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opposes the addition of a claim against Dr. Martin, arguing that she will suffer undue
prejudice and the amendment would be futile.
I.
Undue Prejudice
In determining whether an amendment causes undue prejudice, the court considers
whether an amendment would “substantially alter the course of trial or effectively deny
[the opponent] the opportunity (and certainly the reason) to take discovery.” See CMFG
Life Ins. Co. v. RBS, Sec. Inc., 799 F.3d 729, 750 (7th Cir. 2015). Plaintiff’s position is that
defendant will not be prejudiced by adding Dr. Martin as a defendant since (1) there are
no new legal theories, (2) no additional discovery is necessary and (3) plaintiff does not
intend to ask for an extension of any of the trial deadlines. Defendant disagrees with
plaintiff’s second and third points, arguing that the amendment would be unduly
prejudicial because it would cause defendants to re-depose Carter then file a motion for
summary judgment, making the November 2019 trial unfeasible.
Defendant has a persuasive point; adding Dr. Martin as a defendant will
substantially change the scope of this lawsuit and require defendant to incur additional
cost. While Carter’s treatment record is already established, defendant’s focus at summary
judgment related to Griggs’ decisions as a nurse between May and November of 2013. Dr.
Martin’s addition at this point would require the court to allow additional discovery related
to his decision-making process, related to a different set of facts, which would include
allowing defendant to re-depose Carter and allowing Dr. Martin’s estate to move for
summary judgment.
Indeed, Griggs’ interactions with Carter were different than Dr.
Martin’s interactions: his claim against Griggs claim relates to her decisions in May 2013,
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and the Dr. Martin timeline starts in November 29, 2013. Thus, defendant would seek to
conduct discovery related to Carter’s subsequent treatment for his shoulder, which would
include evidence from Dr. Duelleman, an orthopedic specialist that treated Carter after Dr.
Martin. In short, adding a claim against Dr. Martin now would require defendant to incur
substantial expense, and the time it would take to conduct discovery and pursue summary
judgment would make the November trial untenable. While the court understands that
plaintiff’s counsel was recruited late in this case and appreciates how quickly efforts were
made to seek leave to add Dr. Martin as a defendant, defendant undoubtedly would be
prejudiced by the delays necessary to allowing plaintiff to litigate this claim against Martin.
II.
Futility
More problematic for plaintiff is that a claim against Dr. Martin would not survive
a motion for summary judgment on the ground that plaintiff failed to exhaust his
administrative remedies with respect to this claim, rendering the addition of Dr. Martin
futile. The parties have submitted what appears to be the undisputed record of plaintiff’s
purported efforts to exhaust his proposed claim against Dr. Martin. Having reviewed those
materials, the court finds that defendants would be able to prove that plaintiff failed to
exhaust a deliberate indifference/medical negligence claim against Dr. Martin. Accordingly,
without delving into whether plaintiff’s claim against Dr. Martin would fail on the merits
at the summary judgment phase (which would be premature on this undeveloped record),
the court concludes that the amendment would be futile, due to plaintiff’s failure to
exhaust this claim.
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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).
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. The purpose of these
requirements is to give the prison administrators a fair opportunity to resolve the grievance
without litigation. Woodford, 548 U.S. at 88–89.
In Wisconsin, the administrative code sets out the process for a prisoner to file a
grievance and appeal an adverse decision.
Wis. Admin. Code. §§ DOC 310.07–13
(prisoner first files grievance with inmate complaint examiner; prisoner may appeal adverse
decision to corrections complaint examiner and then to department secretary). A failure
to follow these rules may require dismissal of the prisoner s case. Perez v. Wisconsin Dept. of
Corrections, 182 F.3d 532, 535 (7th Cir. 1999). But a failure to exhaust administrative
remedies under § 1997e(a) is an affirmative defense that must be proven by the
defendants. Jones v. Bock, 549 U.S. 199 (2007).
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In determining whether the content of a grievance is sufficient to exhaust a claim,
the prison’s rules provide the relevant standard.
Id. at 218 (“[I]t is the prison’s
requirements, and not the PLRA, that define the boundaries of proper exhaustion.”).
Wisconsin’s policies require inmate complaints to “contain sufficient information for the
department to investigate and decide the complaint.”
Wis. Admin. Code § DOC
310.07(6). The Court of Appeals for the Seventh Circuit has adopted a similar rule, that
an inmate complaint “must contain the sort of information that the administrative system
requires.’” Keller v. Rasmussen, 90 F. App’x 949, 951 (7th Cir. 2004) (quoting Strong v.
David, 297 F.3d 646, 650 (7th Cir. 2002)). Relevant here, “[t]he Wisconsin prison
regulations limit a complaint to ‘only one issue’ and require that the inmate ‘clearly identify
the issue.’”
Id. (citing Wis. Admin. Code § DOC 310.09(1)(e)).
However, inmate
complaints need not state “facts, articulate legal theories, or demand particular relief,” nor
must a prisoner name each potential defendant, so long as the grievance “object[s]
intelligibly to some asserted shortcoming.” Strong, 297 F.3d at 650; Riccardo v. Rausch, 375
F.3d 521, 524 (7th Cir. 2004).
Here, while Carter exhausted his claim against Griggs, the record submitted by the
parties indicates that he did not follow the exhaustion procedures with respect to his
proposed claim against Dr. Martin. Carter submitted the record of the inmate complaint
and appeal that he claims served to exhaust his administrative remedies as to Dr. Martin,
JCI-2013-21586. (Pl. Ex. D (dkt. #82-4.) Those records show that Carter submitted that
complaint on November 7, 2013, writing that he broke his collarbone and informed Health
Services Unit (“HSU”) staff that he wanted x-rays and to see a doctor, but that the nurses
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told him that he did not break his shoulder, he did not need x-rays and the doctor was not
there. Carter repeated several times in the complaint that he wanted to see a doctor, given
that it had been six months since his accident and he was still in pain and his collarbone
healed wrongly, resulting in a knot on his shoulder. (Id. at DOC0059-60.) The delay was
the only issue he raised in JCI-2013-21586, and the basis for ICE’s dismissal of the
complaint was that Carter was scheduled to be seen on November 29, 2013. (Id. at
DOC0052.)
Carter submitted an appeal of that decision on December 4, 2013, writing with
respect to his treatment post-November 29, 2013, that he was not allowed a work
restriction and had to work with one hand in extreme pain; he had been in pain continually
for the past six months and had given up on the notion that the HSU would help him; and
that he wanted surgery to fix his shoulder. (Id. at DOC0065.) The Corrections Complaint
Examiner (“CCE”) summarized Carter’s appeal as a complaint that “he broke his collar
bone and kept requesting to see the doctor and never got scheduled.” (Id at DOC 0053.)
On January 10, 2014, Carter’s appeal was dismissed since he had not raised any issues
warranting reversal of the decision dismissing the complaint because he was scheduled to
be seen.
The CCE’s decision addressed the sole issue Carter raised in his original complaint:
the delay between when he first sought treatment and when Dr. Martin finally saw him.
While the delay and Dr. Martin’s treatment are related in that both issues were part of
Carter’s care for his shoulder injury, Carter’s appeal brought new facts into the proceeding
that the ICE was unable to address in November of 2013, when investigating the
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allegations of Carter’s inmate complaint.
Regardless, even if those new allegations
complaining about Dr. Martin’s treatment decisions were properly before prison
administrators, Wis. Admin. Code § DOC 310.07(5) limits each inmate complaint to one
issue. In the case of JCI-2013-21586, that one issue was the delay in being seen by a
doctor, not the doctor’s eventual approach to his care. Based on the record submitted, if
the court were to grant plaintiff’s motion, that defendant would be able to establish that
the institution did not have an adequate opportunity to address Carter’s issue with Dr.
Martin’s treatment.
Accordingly, since it appears that defendants would succeed in pursuing a motion
for summary judgment on exhaustion grounds, allowing Carter to amend his complaint at
this stage would prove futile. For that reason, and because the court is persuaded that
defendant will be unnecessarily prejudiced by further delays caused by the addition of Dr.
Martin as a defendant, Carter’s motion will be denied.
ORDER
IT IS ORDERED that plaintiff Johnson Carter’s motion to amend (dkt. #80) is
DENIED.
Entered this 5th day of September, 2019.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge
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