Smith, Tyrone v. Fox Lake Correctional Institution et al

Filing 151

Transmission of Notice of Appeal, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 149 Notice of Appeal. (Attachments: # 1 Order, # 2 Judgment, # 3 Text Order, dkt. 148, # 4 Docket sheet) (jef),(ps)

Case: 3:17-cv-00396-jdp Document #: 144 Filed: 03/31/22 Page 1 of 4

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

TYRONE DAVIS SMITH,
Plaintiff,

OPINION and ORDER

v.

17-cv-396-jdp

CANDACE WHITMAN,
Defendant.1

Plaintiff Tyrone Davis Smith, appearing pro se, is a former state of Wisconsin prisoner.
Smith alleges that he has developed a number of medical problems from drinking contaminated
water at Fox Lake Correctional Institution (FLCI), including tingling in his hands, heart
murmur, cardiomyopathy, and low blood pressure. I granted Smith leave to proceed on an
Eighth Amendment claim against defendant Candace Whitman for ignoring the risk of harm
that the water posed to his health by refusing his requests for bottled water. Whitman has filed
a motion for summary judgment on the ground that Smith failed to exhaust his administrative
remedies for this claim. Dkt. 132. I will grant Whitman’s motion and dismiss this case without
prejudice.

ANALYSIS
The Prison Litigation Reform Act (PLRA) requires inmates to exhaust all available
administrative remedies before filing a lawsuit in federal court about prison conditions.
42 U.S.C. § 1997e(a). To comply with § 1997e(a), a prisoner must take each step in the

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I have amended the caption to reflect the proper spelling of defendant Whitman’s name, as
shown in her submissions.

Case: 3:17-cv-00396-jdp Document #: 144 Filed: 03/31/22 Page 2 of 4

administrative process, Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which
includes following instructions for filing an 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. To exhaust administrative remedies in Wisconsin, inmates
must follow the inmate complaint review process set forth in Wisconsin Administrative Code
Chapter DOC 310. The purpose of these requirements is to give the prison administrators a
fair opportunity to resolve the grievance without litigation. Woodford v. Ngo, 548 U.S. 81, 88–89
(2006). Failure to exhaust administrative remedies under § 1997e(a) is an affirmative defense
that must be proven by the defendant. Davis v. Mason, 881 F.3d 982, 985 (7th Cir. 2018).
Whitman states that Smith filed one inmate grievance relevant to his claims here: in
grievance No. FLCI-2017-10982 he alleged that his health problems were being caused by
being forced to drink water contaminated with lead. Dkt. 134-2, at 10. Smith filed that
grievance in mid-April 2017. The grievance was dismissed in early May 2017, Smith appealed
that dismissal, and the office of the secretary dismissed Smith’s appeal on June 1, 2017. See id.
at 7–8. But Smith did not wait until the dismissal of the appeal to file this lawsuit; he filed his
complaint in this court on May 24, 2017. A prisoner cannot complete the grievance process
while a lawsuit is pending. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect
to prison conditions . . . by a prisoner . . . until such administrative remedies as are available
are exhausted.”); Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004) (affirming dismissal of
lawsuit filed two days before prisoner completed grievance process).
Smith contends that it doesn’t matter whether he exhausted the ’10982 grievance
before filing his complaint because he qualifies for an exception to the exhaustion rule: an

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Case: 3:17-cv-00396-jdp Document #: 144 Filed: 03/31/22 Page 3 of 4

inmate need not exhaust the grievance process if he faces an imminent danger of serious
physical injury rendering the inmate grievance system meaningless. See Fletcher v. Menard Corr.
Ctr., 623 F.3d 1171, 1173 (7th Cir. 2010) (“administrative remedies that offer no possible
relief in time to prevent the imminent danger from becoming an actual harm can’t be thought
available.”). Smith says that he chose to file his complaint in late May 2017 because he had
open-heart surgery on June 7, 2017, and he was concerned that he would not survive the
surgery.
I agree with Whitman that Smith does not fall under the imminent-danger exception
to the exhaustion requirement. The idea behind the exception is that an inmate should not be
barred from seeking injunctive relief in a court if slow-moving prison-grievance procedures
won’t be able to give him relief from the danger he faces. See id. (“An administrative remedy
could not be thought available to a prisoner whose grievance was that he had been told that
members of the Aryan Brotherhood were planning to kill him within the next 24 hours and the
guards were refusing to take the threat seriously.”). Smith’s open-heart surgery may have been
risky but Smith did not bring a claim attempting to stop that surgery from occurring or even
to prevent any acute threat to his health from the water. Rather, Smith wanted Whitman to
stop forcing him to drink contaminated water, a problem that had been ongoing for years before
his complaint. An extra week of exposure to the contaminated water is not the type of imminent
danger to health that the court envisioned in Fletcher. I conclude that the imminent-danger
exception to the exhaustion requirement does not apply here, so Smith failed to exhaust his
administrative remedies before filing this lawsuit. I will grant Whitman’s motion for summary
judgment and dismiss this case.

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Case: 3:17-cv-00396-jdp Document #: 144 Filed: 03/31/22 Page 4 of 4

That dismissal will be without prejudice. Ford, 362 F.3d at 401. Subject to the applicable
statute of limitations, Smith remains free to file a brand-new lawsuit about inadequate medical
care for conditions that he believes were caused by the water. But if he does, he will owe another
filing fee for it. And before doing so he should consider whether his ’10982 grievance or other
later grievances exhausted his claims in the new lawsuit.

ORDER
IT IS ORDERED that:
1. Defendant Candace Whitman’s motion for summary judgment on exhaustion
grounds, Dkt. 132, is GRANTED, and this case is DISMISSED without prejudice.
2. The clerk of court is directed to enter judgment in defendant’s favor and close this
case.
Entered March 31, 2022.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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