Washington, James v. Dittman, Michael et al
Filing
35
ORDER granting in part and denying in part 23 Motion for Summary Judgment on Exhaustion Grounds and to Dismiss; dismissing plaintiff's First Amendment claim against Defendant Trish Anderson without prejudice for failure to exhaust his administrative remedies; and proceeding on plaintiff's Eighth Amendment claims against all defendants. Signed by District Judge William M. Conley on 10/23/2024. (jls),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JAMES R. WASHINGTON,
v.
Plaintiff,
MICHAEL DITTMANN, SUE NOVAK,
LARRY FUCHS, and TRISH ANDERSON,1
OPINION and ORDER
23-cv-344-wmc
Defendants.
This court granted plaintiff James Washington leave to proceed on two different
claims: (1) a First Amendment retaliation claim that defendant Trish Anderson, a nurse
at Columbia Correctional Institution (“CCI”), canceled a medical restriction allowing him
to alternate his recreation privilege with his access to the law library in July 2017, after he
complained that the restriction was not being honored; and (2) an Eighth Amendment
claim that Anderson and the other defendants (CCI Warden Larry Fuchs, and former CCI
Wardens Michael Dittmann and Sue Novak) consciously disregarded a substantial risk to
plaintiff’s health by ignoring his grievances for an alternate schedule allowing him to use
all his law library time and still exercise. Defendants have moved for summary judgment
on the grounds that plaintiff failed to exhaust his administrative remedies under the Prison
Litigation Reform Act (“PLRA”) with respect to any of his claims, and alternatively moved
to dismiss plaintiff’s complaint under Fed. R. Civ. P. 12(b)(6). (Dkt. #23.)
The court has revised the caption to reflect the correct spelling of defendant Dittmann’s last
name.
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For the reasons below, defendants’ motion for summary judgment will be granted
in part and denied in part.
The court agrees that plaintiff failed to exhaust his
administrative remedies with respect to his First Amendment claim against defendant
Anderson, but all defendants failed to meet their burden to show that plaintiff did not
exhaust his Eighth Amendment claims against them. Although defendants also argue that
plaintiff has failed to state a claim upon which relief may be granted, a motion to dismiss
under Fed. R. Civ. P. 12(b)(6) must be made before a responsive pleading is filed. Thus,
defendants’ alternative motion will be denied as untimely because the pleadings in this
case closed in November of 2023.
BACKGROUND
A. PLRA Exhaustion Requirement
Under the PLRA, “[a]n inmate complaining about prison conditions must exhaust
administrative remedies before filing suit.” Conyers v. Abitz, 416 F.3d 580, 584 (7th Cir.
2005). The PLRA’s exhaustion requirement is mandatory. Woodford v. Ngo, 548 U.S. 81,
85 (2006); Lockett v. Bonson, 937 F.3d 1016, 1025 (7th Cir. 2019) (“We take a strict
compliance approach to exhaustion.” (alteration adopted)).
“To exhaust remedies, a
prisoner must file complaints and appeals in the place, and at the time, the prison’s
administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002);
see also Lanaghan v. Koch, 902 F.3d 683, 687 (7th Cir. 2018) (“State law establishes the
administrative remedies that a state prisoner must exhaust for purposes of the PLRA.”).
Failure to exhaust requires dismissal of a prisoner’s case without prejudice. Ford v. Johnson,
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362 F.3d 395, 401 (7th Cir. 2004). However, prisoners are required to exhaust only the
administrative remedies that are available to them. Ross v. Blake, 578 U.S. 632, 642
(2016). Defendants bear the burden of proving the affirmative defense of failure to exhaust
and the availability of administrative remedies. Lockett, 937 F.3d at 1025; Kaba v. Stepp,
458 F.3d 678, 686 (7th Cir. 2006).
B. Inmate Complaint Process in Wisconsin
The Wisconsin Department of Corrections (“DOC”) maintains a complaint process
in all state adult prisons. See Wis. Admin. Code DOC § 310.01.2 A prisoner must file a
complaint with the institution complaint examiner (“ICE”) within 14 days after the
occurrence giving rise to the complaint. § 310.09 (eff. to Mar. 31, 2018). The complaint
may contain only one, clearly-identified issue and must provide sufficient information for
the department to investigate and decide the complaint. Id.; Turley v. Rednour, 729 F.3d
645, 649 (7th Cir. 2013) (quoting Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004))
(“The exhaustion requirement’s primary purpose is to ‘alert [ ] the state’ to the problem
‘and invit[e] corrective action.’”); Strong v. David, 297 F.3d 646, 560 (7th Cir. 2002)
(complaint need not lay out facts, articulate legal theories, or demand particular relief, but
it must “object intelligibly to some asserted shortcoming”).
On April 1, 2018, DOC promulgated a new rule replacing Wis. Admin. Code § DOC Ch.
310. All citations are to the previous version in effect on March 31, 2018, which was in effect
when plaintiff allegedly first began experiencing the problems with the law library policy.
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If the complaint is not rejected outright, the ICE recommends affirming or
dismissing the complaint to the reviewing authority. § 310.11(11) (eff. to Mar. 31, 2018).
The reviewing authority then affirms the complaint, dismisses it, or returns it to the ICE
for further investigation. § 310.12(1)-(2) (eff. to Mar. 31, 2018). The warden acts as the
reviewing authority for inmate complaints, with the exception of complaints related to
medical issues. The prisoner may appeal the reviewing authority’s decision within 14 days
to the corrections complaint examiner (“CCE”) for a recommendation to the secretary. §
310.13 (eff. to Mar. 31, 2018). The office of the secretary makes a final decision, affirming
or dismissing the CCE’s recommendation, or returning the appeal for further investigation.
§ 310.14(2)-(3) (eff. to Mar. 31, 2018).
C. Plaintiff’s Inmate Complaints
Here, plaintiff has alleged that DOC instituted a policy effective June 1, 2017,
requiring prisoners to use all of their regular law library time before they could use any
extra time for the law library.
According to plaintiff, this policy stopped him from
exercising because he had only one block of time to use either for his regular law library
time or exercise, and he needed the law library time. Defendants argue that plaintiff failed
to exhaust these claims because he did not raise any of this alleged misconduct in the
inmate complaints that he filed related to the policy or his lack of ability to exercise.
Specifically, the parties do not dispute that plaintiff filed nine inmate complaints
related to either his medical care or his use of the law library between 2017 and 2021 (see
dkt. ##26 and 32), and plaintiff does not dispute that three of those complaints (CCI4
2017-18440, CCI-2018-11140, and CCI-2020-7093) are irrelevant to his lawsuit (see dkt.
#31, at ¶¶ 19-20). The remaining six complaints include the following:
1. CCI-2017-13785, received May 26, 2017, in which plaintiff complains that
it is unconstitutional to make inmates choose between using the law library and
recreation time. No defendant is named in the complaint, but defendant
Dittmann was the reviewing authority who dismissed the complaint on June 16,
2017. (See dkt. #26-2, at 3, 10-12; dkt. #32-5, at 1-3.)
2. CCI-2017-18931, received July 24, 2017, in which plaintiff complains that
he was denied the every-other-day exercise ordered by his doctor (i.e., alternating
daily exercise with law library time) because the law librarian enforced CCI’s
library access policy. No defendant is named in the complaint, but defendant
Dittmann was the reviewing authority who dismissed the complaint on
September 13, 2017. (See dkt. #26-3, at 5, 8-11; dkt. #32-5, at 8-11.)
3. CCI-2017-19449, received July 31, 2017, in which plaintiff complains that
at the request of the CCI education director, defendant Anderson improperly
rescinded a doctor-ordered treatment that he be allowed to alternate the days
that he used the law library and exercised because the education director did not
like the restriction and its conflict with DOC policy. (See dkt. #26-10, at 1012; dkt. #32-5, at 15-18.)
4. CCI-2017-20267, received August 9, 2017, in which plaintiff complains that
the law librarian gained access to confidential medical information about his hip
and feet problems through HSU’s head nurse and the education department
director while looking into his medical restriction regarding the law library. No
defendant is named in the complaint, but defendant Anderson appears to be the
head nurse referred to in the complaint,3 and defendant Dittmann was the
reviewing authority who dismissed the complaint on September 19, 2017. (See
dkt. #26-4, at 3 and 10-12.)
5. CCI-2020-20834, received December 1, 2020, in which plaintiff complains
about having to choose using the law library over taking recreation time, which
caused his health to suffer. No defendant is named in the complaint, but
plaintiff states in the complaint that he had previously written Deputy Warden
Olson about the issue, and defendant Warden Fuchs dismissed the complaint as
the reviewing authority on December 17, 2020. (See dkt. #26-7, at 3; dkt. #326, at 1-2.)
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Plaintiff refers to Anderson as the head nurse in complaint 2017-19449.
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6. CCI-2021-1418, received January 25, 2021, in which plaintiff complains
about having to choose between recreation and using the law library. No
defendant is named in the complaint, but defendant Fuchs was the reviewing
authority who rejected plaintiff’s appeal as untimely on February 12, 2021. (See
dkt. #26-8, at 5 and 8-9.)
OPINION
I.
Claims Against Anderson
The only complaints that mention defendant Anderson and her cancellation of the
medical order regarding alternating recreation and library time are CCI-2017-19449 and
CCI-2017-20267.
The focus of complaint 2017-20267 is the release of plaintiff’s
confidential medical information, which is not the basis of any of his claims in this lawsuit.
However, complaint 2017-19449 notifies the prison that plaintiff believed that Anderson
wrongfully terminated the doctor order regarding his use of recreation and law library time.
But none of plaintiff’s complaints mention retaliation or otherwise alert the prison that he
engaged in protected conduct that caused Anderson to cancel the order. See Lockett v. Goff,
No. 17-cv-93, 2017 WL 4083594, at *2 (W.D. Wis. Sept. 13, 2017) (citations omitted)
(a grievance concerning retaliation must identify both the retaliatory act and the protected
conduct that provoked the retaliation).
Here, plaintiff’s only relevant complaint merely states that Anderson, the librarian,
and CCI’s education director did not want to enforce the doctor’s order because it
conflicted with DOC policy, which is insufficient to put the prison on notice of the nature
of the wrong. While plaintiff represents that he raised the issue of retaliation in his appeal
of complaint 2017-18931, a review of that appeal does not support his contention. (See
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dkt. #26-3, at 18-19; dkt. #32-5, at 13-14). In any event, raising the issue of retaliation
for the first time on appeal fails to comply with DOC’s complaint process. See Price v.
Friedrich, 816 F. App’x 8, 10 (7th Cir. 2020) (While plaintiff mentioned “retribution” and
“abuse for filing complaints” in grievance appeals, he “failed to apprise the complaint
examiner of his [retaliation] claim by first mentioning it in any of his underlying
grievances.”).
Accordingly, the court concludes that defendants have met their burden of showing
that plaintiff failed to exhaust his First Amendment retaliation claim against Anderson and
will dismiss that claim without prejudice for lack of exhaustion. However, defendants’
motion will be denied as to plaintiff’s Eighth Amendment claim against Anderson because
plaintiff’s complaint 2017-19449 meets the threshold requirement of putting the prison
on notice that she allegedly disregarded a substantial risk to plaintiff’s health by rescinding
his medical restriction for an invalid, non-medical reason.
II.
Claims Against Wardens Dittmann, Novak, and Fuchs
Defendants have submitted evidence that: Dittmann was the warden at CCI from
March 23, 2008 through July of 2018; Novak was the warden from August 19, 2018 to
May 23, 2020; and Fuchs has been the warden since May 24, 2020. While defendants
admit that plaintiff filed at least seven claims related to the enforcement of the law library
policy at CCI between 2017 and 2021, and that defendants Dittmann and Fuchs acted as
the reviewing authority on plaintiff’s appeals of the denial of those complaints, they argue
that plaintiff never mentioned any wrongdoing by the wardens in particular. However,
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plaintiff’s Eighth Amendment claims against the wardens are based on their continued
enforcement of a law library policy despite their knowledge that the policy led to health
complications for plaintiff. Thus, plaintiff’s numerous complaints about the policy served
their function by providing prison officials, including each of the wardens, a fair
opportunity to address the allegedly harmful policy. See Maddox v. Love, 655 F.3d 709, 722
(7th Cir. 2011) (holding similar with respect to complaint about administrative decision
to cancel certain religious services). The fact that plaintiff did not specifically name the
wardens in his inmate complaints does not mean that he failed to exhaust his
administrative remedies. Id. Indeed, plaintiff regularly complained about the enforcement
of a DOC policy at CCI, and “it belies reason to suggest that prison administrators . . .
were unaware of who was responsible for that decision” or what needed to be investigated.
Id.; see also Turley, 729 F.3d at 650 (“[P]risoners need not file multiple, successive
grievances raising the same issue (such as prison conditions or policies) if the objectionable
condition is continuing.”); Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002) (“[T]he
grievant need not lay out the facts, articulate legal theories, or demand particular relief. All
the grievan[t] need do is object intelligibly to some asserted shortcoming.”).
In fact, defendants Dittmann and Fuchs were directly involved in denying plaintiff’s
complaints, and defendant Novak personally responded to plaintiff’s family member in
2019, with regard to his and other inmates having to choose between recreation and library
time. (See dkt. #32-6, at 7.) Accordingly, the court finds that plaintiff’s inmate complaints
meet the threshold requirement of putting the prison on notice of the Eighth Amendment
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claims against defendants Dittmann, Novak, and Fuchs as well, and will deny their motion
for summary judgment with respect to those claims.
ORDER
IT IS ORDERED that the motion for summary judgment filed by defendants Trish
Anderson, Michael Dittman, Sue Novak, and Larry Fuchs (dkt. #23) is GRANTED IN
PART and DENIED IN PART:
1) Plaintiff’s First Amendment claim against defendant Trish Anderson is
DISMISSED without prejudice for his failure to exhaust his administrative
remedies.
2) Defendants’ motion is DENIED in all other respects, and this case will proceed
on plaintiff’s Eighth Amendment claims against the four named defendants.
Entered this 23rd day of October, 2024.
BY THE COURT:
/s/
_________________________________
WILLIAM M. CONLEY
District Judge
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