Swanson v. White

E.D. Wisconsin

Swanson v. White

District Court, E.D. Wisconsin·Decided August 20, 2021·No. 2:20-cv-01675·Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

CHRISTOPHER SWANSON,

Plaintiff,

v. Case No. 20-CV-1675

NANCY GARCIA, NANCY WHITE, MICHELLE BURTON, and JEFFREY MANLOVE, MD,

Defendants.

DECISION AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Plaintiff Christopher Swanson, who is incarcerated and representing himself, brings this lawsuit under 42 U.S.C. § 1983. (ECF No. 1.) Swanson was allowed to proceed on three claims under the Eighth Amendment for deliberate indifference to medical needs: (1) a claim against Nancy Garcia for performing surgeries on his infected toe instead of referring Swanson to a specialist (Claim 1); (2) a claim against Dr. Manlove for failing to ensure Swanson was provided with the appropriate amount of antibiotics to treat his infected toe (Claim 2); and (3) a claim against Nancy White and Michelle Burton for failing to ensure Swanson received proper follow-up care after his surgery and for delaying Swanson’s follow-up appointment with the specialist after he had surgery on his toe (Claim 3). The defendants have moved for partial summary judgment on exhaustion grounds, arguing that Swanson failed to exhaust his available administrative remedies for Claim 1, Claim 2 and the part of Claim 3 concerning ensuring Swanson received the proper follow-up care after his surgery. (ECF No. 51.) The motion is ready for a

decision.1 1. Summary Judgment Standard The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

“Material facts” are those under the applicable substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A dispute over a “material fact” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In evaluating a motion for summary judgment the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). However, when the nonmovant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would

1 The briefing schedule for this motion took a unique path. Swanson filed a preemptive motion arguing that he exhausted his administrative remedies (ECF No. 47) a month before the defendant’s filed their motion for partial summary judgment. In a telephonic hearing held on March 15, 2021, the court stated that it would construe Swanson’s motion as his response to the defendant’s motion for partial summary judgment because Swanson indicated that his motion contained the necessary responsive evidence. (ECF No. 55 at 21:45-22:15.) 2 support a reasonable jury verdict. Celotex Corp., 477 U.S. at 324. Evidence relied upon must be of a type that would be admissible at trial. See Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009). To survive summary judgment, a party cannot

rely on his pleadings and “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248. “In short, ‘summary judgment is appropriate if, on the record as a whole, a rational trier of fact could not find for the non-moving party.’” Durkin v. Equifax Check Servs., Inc., 406 F.3d 410, 414 (7th Cir. 2005) (citing Turner v. J.V.D.B. & Assoc., Inc., 330 F.3d 991, 994 (7th Cir. 2003)).

1.1 Exhaustion Standard The Prison Litigation Reform Act states in part that “[n]o action shall be brought with respect to prison conditions under §1983 of this title, or any other Federal law, by a prisoner . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. §1997e(a). The exhaustion requirement gives prison officials an opportunity to resolve disputes before being hauled into court and produces a “useful administrative record” upon which the district court may rely.

See Jones v. Bock, 549 U.S. 199, 204 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 94- 95 (2006)). The exhaustion rule also promotes efficiency because claims generally are resolved more quickly by an agency than through litigation in federal court. Woodford, 548 U.S. at 89. Accordingly, exhaustion must be complete before filing suit. Chambers v. Sood, 956 F.3d 979, 984 (7th Cir. 2020) (finding that an inmate failed to exhaust his administrative remedies when he filed suit instead of taking

3 his grievance to the appropriate review board). The United States Court of Appeals for the Seventh Circuit “has taken a strict compliance approach to exhaustion.” Dole v. Chandler, 438 F.3d 804, 809 (7th

Cir. 2006). A prisoner is required to “properly use the prison’s grievance process prior to filing a case in federal court.” Id. “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). An inmate can overcome his failure to exhaust his administrative remedies only where he can demonstrate that the grievance process was unavailable to him. Ramirez v. Young,

906 F.3d 530, 538 (7th Cir. 2018). An inmate can show that a grievance process was unavailable when “(1) prison officials are ‘consistently unwilling to provide any relief to aggrieved inmates’; (2) the administrative scheme is ‘so opaque that it becomes, practically speaking, incapable of use;’ or (3) prison administrators take affirmative action to thwart use of the grievance process,” but these are “only examples, not a closed list.” Id. (quoting Ross v. Blake, 136 S. Ct. 1850, 1859-60 (2016)).

1.2 Relevant Procedure for Exhausting Administrative Remedies Because Swanson submitted the relevant inmate complaints in 2015 and 2017, the 2014 version of the Wisconsin Administrative Code Chapter DOC 310 applies instead of the current version, which was amended in 2018. The Wisconsin Department of Corrections uses an inmate complaint review system “to afford inmates in institutions a process by which grievances may be expeditiously raised,

4 investigated, and decided.” Wis. Admin. Code § DOC 310.01; § DOC 310.04(1).

Free access — add to your briefcase to read the full text and ask questions with AI