Ross, Michael v. Becker, Shawn et al

Filing 63

ORDER that the motion for summary judgment filed by defendants Southern Health Partners, Inc. and Alli Nelson, Dkt. 45 , is DENIED. Signed by District Judge James D. Peterson on 1/7/2022. (lam),(ps)

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

MICHAEL T. ROSS,

v.

Plaintiff,
OPINION and ORDER

WOOD COUNTY, SHAWN BECKER,
REBECCA BAKER, THOMAS KING, ALLI NELSON,
and SOUTHERN HEALTH PARTNERS INC.,

20-cv-546-jdp

Defendants.
Plaintiff Michael T. Ross, represented by counsel, alleges that Wood County jail staff
refused to provide him prompt medical care for his broken hand and managed his opioid
addiction unreasonably. He is proceeding on claims under the Constitution and state law.
Defendants Southern Health Partners Inc. and contract-nurse Alli Nelson move for summary
judgment, arguing that Ross failed to exhaust his administrative remedies on his medical care
claims because he did not appeal his grievances to the appropriate jail authorities. Dkt. 45.
(The Wood County defendants also filed an exhaustion-based summary judgment motion,
Dkt. 48, but they withdrew it after Ross filed his opposition materials. In this opinion, I will
refer to Nelson and Southern Health Partners as “defendants.”)
I will deny defendants’ summary judgment motion. Ross says that he did not know how
to appeal his grievances and, when he asked for help, a jail sergeant told him that he could not
appeal medical grievances. Defendants argue that Ross’s testimony is self-serving and should
be rejected, but they have failed to carry their burden of showing that administrative remedies
were available to Ross.

ANALYSIS
A plaintiff who is confined in jail or prison when he files his lawsuit, and who is
challenging jail or prison conditions, must exhaust all available administrative remedies before
filing suit in federal court. 42 U.S.C. § 1997e(a). This means that the prisoner must take all
steps within the administrative process, including filing an initial grievance and all necessary
appeals. Cannon v. Washington, 418 F.3d 714, 718 (7th Cir. 2005); Burrell v. Powers, 431 F.3d
282, 284-85 (7th Cir. 2005); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). But
inmates are required to exhaust only those administrative remedies that are available to them.
Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). Courts may not hold plaintiffs to exhaustion
procedures of which they are not aware. See Lanaghan v. Koch, 902 F.3d 683, 689 (7th Cir.
2018) (“A secret grievance procedure is no procedure at all, at least absent some evidence that
the inmate was aware of that procedure.”); White v. Bukowski, 800 F.3d 392, 397 (7th Cir.
2015) (recognizing that “[p]risoners are required to exhaust grievance procedures they have
been told about, but not procedures they have not been told about”).
Wood County jail has an administrative process by which inmates can file grievances
about jail conditions. According to Wood County Sheriff’s Department Policy 215.35, inmates
can submit a grievance to a corrections officer on a grievance form. Dkt. 47-1. The corrections
officer will attempt to resolve the matter but, if unable to do so, the officer will sign the
grievance form, explain why the matter cannot be resolved, and forward the grievance to a
sergeant. If the inmate is unsatisfied with the response, the inmate may appeal the grievance
to the jail lieutenant. If the inmate is unsatisfied with the lieutenant’s response, the inmate
may appeal to the jail captain. The jail captain’s response is the final decision of the grievance
procedure. Id. at 5.

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While he was incarcerated at Wood County jail, Ross filed a grievance complaining
about medical treatment for his broken hand, Dkt. 47-3. Defendant Nelson, a nurse, responded
to his grievance about his hand, stating that he had Tylenol for pain and had been scheduled
for an x-ray. According to Ross, he was not satisfied with Nelson’s response, but he did not
know whether he could appeal. He asked a jail sergeant, Sergeant Joe Keena, about how to
appeal, but Keena told him that he could not appeal grievances regarding medical conditions.
Ross did not try to file an appeal.
A few weeks later, Ross filed a grievance complaining about how his opioid addiction
was being managed, Dkt. 47-4. A jail sergeant responded to the grievance, stating that medical
staff was managing his withdrawals according to protocol. Because the sergeant wrote “medical”
at the top of the grievance about his withdrawals, Ross assumed he could not appeal that
grievance based on Sergeant Keena’s instructions. Ross did not try to file an appeal.
Defendants argue that Ross failed to exhaust his administrative remedies because he
did not appeal the responses to either of the grievances he filed relating to his claims in this
lawsuit. They argue that Ross’s self-serving declaration regarding Sergeant Keena’s statement
is insufficient to create a genuine factual dispute because it comes too late, and because it
contradicts the assertion in his complaint that he fully exhausted his administrative remedies.
But neither argument is persuasive. It was not untimely or improper for Ross to explain in a
declaration why he did not appeal his grievances. Nor does it contradict his assertion that he
fully exhausted his remedies—Ross’s position is that he did exhaust his remedies, because the
appellate process was unavailable to him. See Kaba, 458 F.3d at 684 (inmates are required only
to exhaust those remedies that are available to them).
Ross suggests that the court could hold an evidentiary hearing to resolve the parties’

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factual disputes about whether Ross should be excused from appealing his grievances. See Pavey
v. Conley, 544 F.3d 739 (7th Cir. 2008). But a Pavey hearing is not necessary in this case.
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). And
defendants have failed to meet their burden in this case.
First, defendants have not shown that Ross was aware of the grievance procedures for
filing appeals. Defendants submitted a copy of Wood County Sheriff’s Department Policy
215.35, but they did not submit evidence showing that Ross was provided a copy of that policy
or that he knew of its existence. In many cases, inmates are given an inmate handbook that
describes grievance procedures, or the grievance form itself provides information about how to
appeal. But defendants did not submit evidence showing that Ross received a handbook. A
review of Ross’s booking sheet, which defendants also submitted, states that Ross was not
provided a copy of the “jail rules” at booking. Dkt. 47-2, at 4. And even if Ross had been
provided with the jail rules, defendants submitted no evidence that the rules describe how to
appeal a grievance. (The “Grievance Procedure” section of the “Jail Rules and Policies” that is
included on Wood County’s website includes no information about filing appeals. See
https://www.co.wood.wi.us/Departments/Sheriff/JailRules.aspx#Grievance-Procedure

(last

visited Jan. 7, 2022)). Nor did the grievance forms that Ross used say that Ross could file an
appeal, let alone provide instructions on how to do so.
Second, defendants have submitted no evidence that would create a genuine factual
dispute about Ross’s version of events, including Ross’s sworn statement that Sergeant Keena
told him that he could not appeal medical grievances. For example, defendants did not submit
a statement from Keena contradicting Ross’s statement. They did not submit evidence

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suggesting that Ross knew he could appeal medical grievances, or that he had done so in the
past, despite what Keena told him. It is not sufficient for defendants to object to Ross’s
declaration without submitting any evidence that would call his assertions into doubt. The
argument that the court should reject Ross’s declaration because it is “self-serving” is frivolous.
Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir. 2013).
Third, although defendants argue that Ross should be held to the procedures set forth
in Policy 215.35, neither of Ross’s grievances were handled by jail staff in accordance with that
policy. The policy states that a corrections officer will respond in writing to initial grievances.
But neither of Ross’s grievances appear to have been handled by a corrections officer. A nurse
responded to his grievance regarding his broken hand, and a sergeant responded to his
grievance about his withdrawal symptoms. These facts bolster Ross’s version of events: if jail
staff did not follow the official grievance policy when handling grievances, it makes it more
plausible that a jail sergeant provided Ross with incorrect information about grievance
procedures.
In sum, defendants have failed to meet their burden of proving that Ross failed to
exhaust the administrative remedies that were available to him. Their motion for summary
judgment must be denied.

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ORDER
IT IS ORDERED that the motion for summary judgment filed by defendants Southern
Health Partners, Inc. and Alli Nelson, Dkt. 45, is DENIED.
Entered January 7, 2022.

BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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