Boyd, Ivan et al v. Corbett, Linda et al

Filing 69

ORDER denying plaintiff Ivan Boyd's motion for default judgment as to Linda Corbett, Sandra McArdle (dkt. 29 ), granting defendant Sandra McArdle's motion to file answer and affirmative defense (dkt. 32 ), granting defendant Linda Corbe tt's motion for extension of time to file answer and affirmative defenses (dkt. 38 ), denying defendant Linda Corbett's motion for partial summary judgment for failure to exhaust (dkt. 45 ) and granting defendant McArdle's motion fo r summary judgment for failure to exhaust administrative remedies (dkt. 50 ). Boyd's claims against McArdle are DISMISSED WITHOUT PREJUDICE, and McArdle is DISMISSED from this lawsuit. See Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004). Signed by Magistrate Judge Stephen L. Crocker on 3/26/2019. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
IVAN BOYD,
Plaintiff,

OPINION AND ORDER

v.
17-cv-944-slc
LINDA CORBETT, et al.,
Defendants.

Pro se plaintiff Ivan Boyd, a prisoner at the Wisconsin Secure Program Facility (WSPF),
is proceeding in this civil lawsuit pursuant to 42 U.S.C. § 1983, on Eighth and First Amendment
claims against multiple Wisconsin Department of Corrections (DOC) employees. Specifically,
Boyd has brought Eighth Amendment deliberate indifference claims against defendants Linda
Corbett, Jolinda Waterman, Timothy Bromeland, Lucas Stowell, McArdle, Mumm, and
Rutherford for their alleged failure to respond to his need for a properly-fitting CPAP mask
between August of 2016 and November of 2017. Boyd also has brought First Amendment
retaliation claims against McArdle and Waterman related to their alleged withholding of certain
medications since he filed the complaint in this lawsuit.
Currently there are five motions pending. Three motions require virtually no discussion:
Boyd filed a motion for default judgment against defendants Corbett and McArdle (dkt. 29),
and defendants Corbett and McArdle responded with motions seeking leave of court to allow
them to answer and avoid the entry of default (dkt. 32, 38). Since Boyd has responded that he
does not object to either Corbett’s or McArdle’s motion (dkt. 34, 42), I am denying his motion
for default judgment and granting Corbett’s and McArdle’s motions. The two remaining
motions relate to defendants’ Corbett’s and McArdle’s affirmative defense that Boyd failed to
exhaust his administrative remedies as required by the Prison Litigation Reform Act (PLRA).

Corbett seeks partial summary judgment on exhaustion grounds (dkt. 45), and McArdle seeks
summary judgment on that same ground (dkt. 50). Boyd concedes that McArdle is entitled to
judgment in her favor (dkt. 63), so I will grant that motion without further discussion.
However, I am denying Corbett’s motion for the reasons that follow.

RELEVANT BACKGROUND
I.

Boyd’s Claim Against Corbett
Boyd is proceeding against Corbett on a claim that from about September of 2016,

through at least November 1, 2017, Corbett knowingly failed to provide Boyd with a CPAP
mask that fit.

More specifically, during a September 8, 2016, appointment at Dodge

Correctional Institution (Dodge), Boyd reported that his CPAP mask was too tight and caused
severe pain to his nose and jaw. Boyd submitted a request for a new mask per Corbett’s
instructions, but Boyd did not receive a new mask, causing him to stop using the CPAP machine.
Boyd subsequently waited to receive a new mask, asking for a new one when he was transferred
to WSPF and then subsequently submitting requests with the HSU. However, Boyd never
received a new mask. Boyd alleges that this led to a fainting spell and injury on October 27,
2017. On November 1, 2017, after Boyd received treatment for his fall, Corbett met with him
and provided him with a new CPAP mask.

II.

Boyd’s Inmate Complaint About His CPAP Mask
On October 31, 2017, Boyd submitted an inmate complaint, WSPF-2017-27731,

complaining about the circumstances leading up to his injury. (Corbett Ex. A (dkt. 48-2).) In
particular, he explained that prior to his arrival at WSPF, he had informed the Health Services
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Unit (HSU) at Dodge that he needed a properly fitting CPAP mask, but was informed that he
would have to meet with the sleep apnea “specialist” (referring to, but not mentioning, Corbett)
to obtain one. Boyd further alleged in his inmate complaint that he was transferred to WSPF
and still did not receive a new mask. He reported that in October of 2017 he started telling
HSU staff that he needed a new mask. Rather than issuing Boyd a new mask, WSPF’s HSU
Manager Jolinda Waterman came to his cell on October 13, 2017 and asked him why he wasn’t
using his mask. When Boyd responded that it didn’t fit right, Waterman told him that WSPF
would wait for the CPAP specialist to visit the institution. Boyd fainted two weeks later, on
October 27, 2017, and his inmate complaint was received on October 31.
On November 28, 2017, the Inmate Complaint Examiner (ICE) recommended dismissal
of Boyd’s complaint. The ICE recounted that Corbett had reported to WSPF’s HSU that Boyd
had not been using his CPAP machine as of October 2017, and that after the injury, Corbett
issued Boyd new CPAP equipment. Since Boyd’s concern had been addressed, ICE
recommended dismissal, and that complaint was dismissed on December 4, 2017. (Corbett Ex.
B (dkt. 48-2) at 2-3.) Boyd appealed that decision, and on December 7, 2017, the Corrections
Complaint Examiner (CCE) accepted ICE’s recommendation. On December 18, 2017, the
DOC’s Secretary dismissed Boyd’s appeal, agreeing with the CCE’s recommendation.

OPINION
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 must also “properly take each step within the
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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, defendants
bear the burden of establishing that a plaintiff has failed to exhaust. Jones v. Bock, 549 U.S.
199, 216 (2007).
To exhaust state administrative remedies in Wisconsin, inmates must follow the
inmate complaint review process set forth in the Wisconsin Administrative Code § DOC
310. Under these provisions, prisoners 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 may “[c]ontain
only one issue per complaint, and shall clearly identify the issue.” Id. § 310.09(e). If the
institution complaint examiner rejects a grievance for procedural reasons without addressing
the merits, an inmate may appeal the rejection. Id. § 310.11(6). If the complaint is not
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rejected, the institution examiner makes a recommendation to the reviewing authority as to
how the complaint should be resolved. Id. § 310.11(6). The offender complaint then is
decided by the appropriate reviewing authority, whose decision can be appealed by the
inmate to a correctional complaint examiner (“corrections examiner”).

Id. §§ 310.12,

310.13. The corrections examiner then makes a recommendation to the Secretary of the
Department of Corrections, who takes final action. Id. §§ 310.13, 310.14.
Corbett requests partial summary judgment on the claim against her. Specifically she
seeks to pare down the time frame of Boyd’s claim against her to the events that occurred after
October 17, 2017, 14 days before the date that Boyd filed his inmate complaint about not
having adequate CPAP equipment. (See Corbett Exs. A, B (dkt. 48-1, 48-2).)1
In opposition to Corbett’s motion, Boyd asserts that he did not file an inmate complaint
before October 31, 2017 because he received repeated assurances from staff at WSPF that he
just had to wait for Corbett to arrive at WSPF to obtain a new mask. Therefore, Boyd’s position
is that he did not actually realize that he would need to file an inmate complaint about it until
October of 2017, when it became apparent that staff would not give him a new mask. This
argument fits within the notion that “prisoners need not file multiple, successive grievances
raising the same issue (such as prison conditions or policies) if the objectionable condition is
continuing.” Turley, 729 F.3d at 650. In Turley, the Court of Appeals for the Seventh Circuit
concluded that a prisoner who submitted a grievance challenging an ongoing lockdown policy

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One might logically ask why Corbett’s motion is for partial summary judgment, given that Boyd’s only
claim against her is her failure to provide him with a properly fitting CPAP mask between September
2016, and November, when she actually ordered him a new mask. Regardless, since Corbett has failed to
meet her burden of showing that DOC officials did not have an opportunity to address Boyd’s claim
against her, I am denying her motion.

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a year after the policy went into effect satisfied the exhaustion requirement, reasoning that “once
a prison has received notice of, and an opportunity to correct, a problem, the prisoner has
satisfied the purpose of the exhaustion requirement.” Id.
I am persuaded that the Turley principle applies to Boyd’s circumstances. While Boyd’s
inmate complaint did not specifically flag the long delay he was experiencing in obtaining a
better-fitting CPAP mask, Boyd did allege that this problem had been ongoing until his October
2017 injury and complaint. Corbett has not offered any reasonable argument that Boyd’s lack
of access to a properly fitting CPAP mask was not ongoing; even if she had, this at best raises
a factual dispute that would prevent front-end summary judgment on exhaustion grounds..
More importantly, Corbett does not suggest that the resolution of WSPF-2017-27731–which
explicitly involved a discussion of Boyd’s unsuccessful efforts to obtain a properly fitting CPAP
mask in 2016–failed to afford the institution the opportunity to address Boyd’s complaint that
he did not have a properly fitting CPAP mask. Accordingly, I conclude that Corbett has not met
her burden to prove that Boyd failed to exhaust his administrative remedies with respect to his
claims against her prior to October 17, 2017, and I am denying Corbett’s motion.

ORDER
IT IS ORDERED that:
1.

Plaintiff Ivan Boyd’s motion for default judgment as to Linda Corbett, Sandra
McArdle (dkt. 29) is DENIED.

2.

Defendant Sandra McArdle’s motion to file answer and affirmative defense (dkt.
32) is GRANTED.

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3.

Defendant Linda Corbett’s motion for extension of time to file answer and
affirmative defenses (dkt. 38) is GRANTED.

4.

Defendant Linda Corbett’s motion for partial summary judgment for failure to
exhaust (dkt. 45) is DENIED.

5.

Defendant McArdle’s motion for summary judgment for failure to exhaust
administrative remedies (dkt. 50) is GRANTED. Boyd’s claims against McArdle
are DISMISSED WITHOUT PREJUDICE, and McArdle is DISMISSED from
this lawsuit. See Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004).

Entered this 26th day of March, 2019.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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