Thacker, Devon et al v. All sureties which indemnify Wis. against defendants' misconduct et al
Filing
89
ORDER denying plaintiff's Motions to Strike 39 , 42 , 55 ; Motion for Assistance in Recruiting Counsel 56 ; and Motion for Sanctions 85 ; denying defendants' Motions for Summary Judgment 61 , 66 ; granting defendant Burke's Motion to Join 83 . Signed by District Judge William M. Conley on 02/28/2020. (mfh),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DEVON THACKER,
Plaintiff,
OPINION AND ORDER
v.
17-cv-624-wmc
JOLINDA WATERMAN, DR. BURTON COX,
DR. MURPHY, J. LABELLE, SANDRA
MCARDLE, and DR. BURKE,
Defendants.
Pro se plaintiff Devon Thacker is an inmate at the Wisconsin Secure Program
Facility (“WSPF”) and has been granted leave to proceed in this lawsuit on claims that
certain WSPF employees violated his rights under the Eighth Amendment and Wisconsin
law by denying him proper medical care for an arm injury. (Dkt. #18.) Defendants Sandra
McArdle and Dr. Burke have since filed a motion for summary judgment for failure to
exhaust administrative remedies with respect to Thacker’s claims against them in
particular. (Dkt. ##61, 66.) Additionally, Thacker has five motions under advisement:
three motions to strike certain defendants’ affirmative defenses (dkt. ##39, 42, 55); a
motion for sanctions (dkt. #85); and a motion for assistance in recruiting counsel (dkt.
#56). For the reasons that follow, the court is denying all pending motions.
I.
Exhaustion of Administrative Remedies (dkt. ##61, 66)
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.” Generally, a prisoner also must “properly take each step within
the administrative process” to comply with § 1997e(a). 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), and filing all necessary appeals,
Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005), that are “in the place . . . at the
time, [as] the [institution’s] administrative rules require.” Pozo, 286 F.3d at 1025.
The purpose of this exhaustion requirement 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); see Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013) (“once a prison has
received notice of, and an opportunity to correct, a problem, the prisoner has satisfied the
purpose of the exhaustion requirement”). If a prisoner fails to exhaust 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, however, defendants bear the burden of establishing that plaintiff failed to exhaust.
Jones v. Bock, 549 U.S. 199, 216 (2007).
Under the regulations applicable in 2016, prisoners were required to start the
complaint process by filing an inmate complaint with the institution complaint examiner
within 14 days after the occurrence giving rise to the complaint. Wis. Admin. Code § DOC
310.09(6). The complaint could “[c]ontain only one issue per complaint, and shall clearly
identify the issue.” Id. § 310.09(e). If the institution complaint examiner (“ICE”) rejected
a grievance for procedural reasons without addressing the merits, an inmate could appeal
the rejection. Id. § 310.11(6). If the complaint was not rejected, the institution examiner
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was to make a recommendation to the reviewing authority as to how the complaint should
be resolved. Id. § 310.11(6). The offender complaint was then to be decided by the
appropriate reviewing authority, whose decision could be appealed by the inmate to a
correctional complaint examiner (“corrections examiner”). Id. §§ 310.12, 310.13.
Prisoners were required to appeal a reviewing authority’s decision within “10
calendar days.” Wis. Admin. Code § DOC 310.13(1).
The corrections examiner then
made a recommendation to the Secretary of the Department of Corrections, who took final
action. Id. §§ 310.13, 310.14. “Upon good cause, the CCE may accept for review an
appeal filed later than 10 days after receipt of the decision.” Id. § 310.13(2).
Here, defendants McArdle and Burke concede Thacker submitted an inmate
complaint (WSPF-2016-12190) challenging how WSPF staff had been responding to his
need for medical care for an arm injury. Specifically, Thacker complained that he was
denied surgery because he was being released within a year, and also complained that
WSPF physicians Burton, Cox, Burke and Syed, and the Health Services Unit Manger
Waterman prolonged his medical treatment for his torn biceps. (See dkt. #64-1, at 13.)
That complaint was received by WSPF on June 14, 2016, and on June 28, 2016.
Subsequently, Inmate Complaint Examiner (“ICE”) Ellen Ray recommended that his
complaint be dismissed, writing that she had interviewed HSU Manager Waterman, who
reported that his treatment had not been prolonged. Ray also noted that Thacker had
been seen by medical providers and had an orthopedic consult, as well as received pain
medication, a shoulder immobilizer, and ice. Waterman further reported that: (1) Thacker
had been confrontational and refused to be evaluated for his MRI or engage with his
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treating physicians, but he did eventually undergo an MRI on February 9, 2016; and (2)
Thacker had a follow-up with an orthopedic provider on April 21, 2016.
Finally,
Waterman reported that Thacker had other appointments to reevaluate surgical
intervention, but McArdle informed him that he was too close to release for surgical
intervention. (Ex. A (dkt. #64-1) 2-3.) For these reasons, Ray recommended dismissal of
Thacker’s complaint.
On July 5, 2016, the reviewing authority accepted Ray’s
recommendation and dismissed WSPF-2016-12190.
Thacker claims he then submitted his appeal from that dismissal on or around July
13, 2016, but on July 15, 2016, he received a letter from the Corrections Complaint
Examiner (“CCE”), which advised that Thacker’s submission from July 13 was not accepted
because no complaint number was listed on the form. (Dkt. #72-1.) Thacker was further
directed “to provide to the CCE office a complaint number to identify” the appeal
submission.
(Id.)
Thacker claims he received that letter on July 18, 2016, and he
resubmitted his appeal on or about July 22, 2016.
The CCE’s office date-stamped Thacker’s re-submitted appeal as received on July
25, 2016. (Ex. A (dkt. #64-1) 52.) While Thacker’s appeal recounted his injury and
efforts to obtain treatment for his injury, he did not include any details about how CCE’s
office had returned his complaint to him for correction, nor did he explain why it took him
multiple days to resubmit his appeal. On September 26, 2016, the CCE recommended
that Thacker’s appeal be dismissed as untimely. Specifically, the CCE noted that the
appeal was received beyond the timeframe set forth in Wis. Admin. § DOC 310.13(1), and
was untimely even taking into account the prison mailbox rule. (Id. at 7.) On October 10,
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2016, the Office of the Secretary accepted that recommendation and dismissed the appeal.
(Id. at 8.)
Accordingly, defendants McArdle and Burke both seek summary judgment on the
groundsthat Thacker’s appeal of WSPF-2016-12190 was untimely and not supported by
good cause, meaning he did not and cannot satisfy all of the requirements to exhaust his
claims against them. Plaintiff Thacker argues in opposition that his appeal was timely,
citing Wis. Admin. Code § DOC 310.10(5). Under this code section, inmate complaint
examiners may return an inmate complaint to an inmate if the inmate fails to satisfy certain
requirements. Moreover, if the complaint examiner returns an inmate complaint, the
inmate “shall be given one opportunity to correct and resubmit [the] returned complaint,”
and the inmate complaint examiner “shall grant 10 days for receipt of the corrected
complaint.” Id. As Thacker sees it, this policy should have given him ten days from July
18, 2016, to resubmit his complaint, since he received the “CCE Return Letter” rejecting
his appeal on July 18, 2016.
There are two problems with Thacker’s argument. First, § DOC 310.10(5) went
into effect on April 1, 2018, while the policies in force when Thacker was pursuing his
appeal of WSPF-2016-12190 in 2016 did not afford prisoners an additional ten days to refile an inmate complaint that had been returned to them.
Second, even if § DOC
310.10(5) had been in effect in 2016, that code section explicitly addresses how prisoners
may correct inmate complaints that have been returned, rather than the CCE’s review of
inmate complaints on appeal.
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As noted above, a different code provision addresses the CCE’s review of an inmate
complaint on appeal: Wisconsin Administrative Code § DOC 310.13. As also noted
above, that policy also provides that the CCE may “[u]pon good cause, accept for review
an appeal filed later than 10 calendar days after receipt of the decision.” § DOC 310.13.
That section does not, however, afford prisoners a guaranteed extension of time to submit
their appeal to the CCE if returned for lack of information. See id.
Still, defendants are not entitled to judgment in their favor because the Wisconsin
procedures and CCE Return Letter were not sufficiently clear as to how Thacker should
have proceeded. See Vazquez v. Hilbert, No. 07-cv-723, 2008 WL 2224394, at *4 (W.D.
Wis. May 28, 2008) (“[W]hen prison officials fail to ‘clearly identif[y]’ the proper route
for exhaustion, they cannot later fault the prisoner for failing to predict the correct
choice.”) (quoting Westefer v. Snyder, 422 F.3d 570, 580 (7th Cir. 2005); see also Dale v.
Lappin, 376 F.3d 652, 656 (7th Cir. 2004) (dismissal inappropriate when prisoner failed
to complete grievance process due to prison officials’ misinformation).
To start, it is not apparent that Thacker failed to comply with the procedures
prisoners must follow in appealing a dismissed inmate complaint. In particular, § DOC
310.13(1) does not expressly require prisoners to include their complaint number when
they submit an appeal. The code does direct prisoners to use the “forms supplied for that
purpose,” but does not state that the CCE may return the appeal to the prisoner if the form
is not properly filled out. See id. Nor is it clear on this record why Thacker’s July 13, 2016,
appeal was not accepted.
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Furthermore, the July 15, 2016, CCE Return Letter failed to explain the exact state
of Thacker’s appeal upon return, much less what he had to do to get his appeal back on
track. In particular, while the letter noted that his submission was “not accepted,” it also
asked Thacker to provide the CCE’s office a complaint number, so that the office could
inform him of the status of his appeal. (Dkt. #72-1.) The letter also failed to mention the
10-day deadline or impose a new deadline by which Thacker had to submit a complaint
number.
Accordingly, defendants Burke and McArdle have failed to prove their timeliness
defense, particularly given: (1) there is no question that the appeal was timely when
Thacker first submitted it on July 15, 2016; (2) § DOC 310.13 does not speak directly to
what happens to a prisoner’s deadline to appeal when the appeal is returned; and (3)
Thacker followed the directions he was given in the CCE letter. If anything, it would be
unreasonable to infer that Thacker failed to follow the applicable exhaustion procedures
on this record.
Defendants’ remaining arguments are even more unavailing. Burke argues that
Thacker did not raise concerns about Burke’s treatment decisions until his appeal, but his
inmate complaint specifically complained that Burke was involved in delaying adequate
treatment for his torn biceps. McArdle argues that Thacker also failed to exhaust his claim
against her, having failed to specifically name her or challenge her decisions about his
treatment in his inmate complaint. However, Wisconsin’s grievance procedures do not
require prisoners to specify individual people by name to adequately exhaust a claim. See
Maddox v. Love, 655 F.3d 709, 721 (7th Cir. 2011) (reversing grant of summary judgment
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and explaining that an inmate need not provide the names or descriptions of defendants
in a grievance). Moreover, Thacker is proceeding on a claim that McArdle was involved in
denying him surgery, which is the exact issue he raised in his inmate complaint.
For all of these reasons, defendants Burke and McArdle have failed to meet their
burden to show that Thacker failed to exhaust his available administrative remedies, and
the court will deny their motions.
II.
Plaintiff Thacker’s Motions
A. Motions to Strike Affirmative Defenses (dkt. ##39, 42, 55)
Thacker asks the court to strike defendants McArdle’s, Waterman’s, LaBelle’s and
Burke’s affirmative defenses because they include “bare bones conclusory allegations.”1
Except in extraordinary circumstances, motions to strike are generally a pointless exercise
for the parties and the court. Here, beyond stating that these defendants’ answers included
long lists of affirmative defenses without factual underpinnings in support, Thacker in
particular provides no reason for the court to strike all of the affirmative defenses. “As the
moving party, plaintiff [has] the burden to show ‘that the challenged allegations are so
unrelated to plaintiff’s claim as to be devoid of merit, unworthy of consideration, and
unduly prejudicial.’” Pop v. Espeseth, Inc., No. 15-cv-486-jdp, 2016 WL 1715206, at *1
(W.D. Wis. Apr. 28, 2016) (quoting Kaufman v. McCaughtry, No. 03-cv-27, 2003 WL
Defendant Burke recently filed a motion to join defendant McArdle’s opposition to plaintiff’s
motion. (Dkt. #83.) That motion is granted.
1
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23095960, at *1 (W.D. Wis. May 22, 2003)). Since Thacker has not challenged the merit
of defendants’ individual affirmative defenses, he cannot meet his burden.
Regardless, while defendants do not allege any facts to support their affirmative
defenses, and may be guilty of not culling them based on relative merit, they have satisfied
the requirements of Federal Rule of Civil Procedure 8 by putting plaintiff on notice of the
nature of those defenses. Furthermore, all of defendants’ affirmative defenses may be
related to Thacker’s claims against them.
Additionally, a number of defendants’
affirmative defenses present questions of law (such as a damages limitation and various
immunity doctrines) arising directly out of Thacker’s state law claims (comparative
negligence, intervening/superseding cause, notice of claim) and/or will depend on facts that
Thacker has and, thus, will be the subject of discovery. Accordingly, the court will deny
Thacker’s motion to strike all of McArdle’s, Waterman’s, LaBelle’s and Burke’s affirmative
defenses.
B. Motion for Sanctions (dkt. #85)
Thacker next asks that the court sanction defendants Burke and McArdle for filing
frivolous motions in an attempt to deceive the court. However, defendants represent that
Thacker failed to provide them with notice of his intent to seek sanctions or an opportunity
to cure, both as required by Federal Rule of Civil Procedure 11(c)(2). For that reason
alone, Thacker is not entitled to sanctions. Moreover, because the court’s analysis above
illustrates that defendants’ arguments do not demonstrate an attempt to mislead or deceive
the court. Accordingly, this motion will be denied.
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C. Motion for Assistance in Recruiting Counsel (dkt. #56)
Finally, the court is denying Thacker’s motion for assistance in recruiting counsel.
As previously explained, Thacker does not have a right to counsel in a civil case, Olson v.
Morgan, 750 F.3d 708, 711 (7th Cir. 2014), but a district court has discretion to assist pro
se litigants in finding a lawyer to represent them. Pruitt v. Mote, 503 F.3d 647, 649 (7th
Cir. 2007). While the court previously found that Thacker made reasonable efforts to
recruit an attorney on his own, his filings still do not suggest that the legal and factual
difficulty of this case exceed his abilities, at least at this point.
Instead, Thacker simply repeats his belief that recruitment of counsel is necessary
since the case requires him to seek out medical records related to his claims, as well as
expert testimony. Nearly all pro se litigants are untrained in the law and many of them
are raising issues about medical care.
There is no categorical rule that all prisoners
challenging the adequacy of their medical care are entitled to counsel. See Williams v.
Swenson, 747 F. App’x 432, 434 (7th Cir. 2019) (affirming district court’s denial of request
for counsel in medical care case); Dobbey v. Carter, 734 F. App’x 362, 364 (7th Cir. 2018)
(same); Romanelli v. Suliene, 615 F.3d 847, 853 (7th Cir. 2010) (same). Moreover, the law
governing Thacker’s claims is well established and was explained to him in the screening
order, and at this point, it is not clear yet whether the case will turn on questions requiring
medical expertise. See Redman v. Doehling, 751 F. App’x 900, 905 (7th Cir. 2018) (“Redman
could litigate his claims himself because they turned on historical facts as opposed to
medical evidence”). On the contrary, as the screening order explained, certain facts related
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to each defendant’s involvement will need to be fleshed out to determine their culpability
and the requirements on plaintiff to prove his claims.
As importantly, Thacker has demonstrated the ability to advocate well for himself.
If anything, his filings continue to demonstrate that he is capable of litigating this case
without the help of an attorney, at least at this stage. Indeed, Thacker continues to litigate
this case aggressively, and while he has pursued unsuccessful motions, he is clearly engaged
and studying the relevant Federal Rules of Civil Procedure and substantive case law.
Accordingly, Thacker’s motion will be denied without prejudice to his ability to renew his
motion should the legal and factual difficulty of this case ever exceed his ability to litigate
it alone.
ORDER
IT IS ORDERED that:
1) Defendant Burke’s and defendant McArdle’s motions for summary judgment
(dkt. ##61, 66) are DENIED.
2) Defendant Burke’s motion to join (dkt. #83) is GRANTED.
3) Plaintiff’s motions to strike (dkt. ##39, 42, 55) are DENIED.
4) Plaintiff’s motion for assistance in recruiting counsel (dkt. #56) is DENIED
without prejudice.
5) Plaintiff’s motion for sanctions (dkt. #85) is DENIED.
Entered this 28th day of February, 2020.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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