Soderlin v. Doehling

Decision Date07 July 2021
Docket Number18-cv-899-wmc
CourtU.S. District Court — Western District of Wisconsin

In this pro se civil rights action brought under 42 U.S.C. § 1983, plaintiff Matthew Soderlin claims that a number of nurses and staff at the Redgranite Correctional Institution ("RGCI") failed to provide him with timely refills of prescription medications in violation of the Eighth Amendment deliberate indifference and Wisconsin negligence standards. The following motions are presently pending before the court: (1) motions by all defendants for partial summary judgment under Fed. R. Civ. P. 56(a) on the ground that Soderlin failed to exhaust all claims properly, save one regarding his hydrocortisone prescription not being timely refilled in early October 2017 (dkts. ## 34, 40); and (2) a motion by the state defendants (Lori Doehling, Angela Thompson, Debra Bellin and Andrea Johnson) to dismiss some of the negligence claims against them on the ground that Soderlin failed to file a proper notice of claim timely under Wis. Stat. § 893.82 (dkt. #34). For the reasons stated below, the court will: (1) deny defendants' motions based on improper exhaustion except for claims related to fludrocortisone; and (2) dismiss the state law negligence claims against Bellin and Johnson because Soderlin failed to name them in his notice of claim.


During the times relevant to this complaint, plaintiff Matthew Soderlin was an inmate at RGCI and all of the defendants were employed by the Department of Corrections ("DOC") at RGCI, with the exception of Paula Brady and Tiffany Gimenez, who were both nurses employed by an outside agency that contracted with the DOC to provide care to RGCI inmates. Defendant Lori Doehling was the health services manager at RGCI until either June or September 2017, when she became a nursing coordinator for DOC's Bureau of Health Services.2 Doehling's successor as HSU manager was defendant Angela Thompson. Finally, defendants Debra Bellin and Andrea Johnson were registered nurses at RGCI.

In his amended complaint, Soderlin alleged that he experienced delays in receiving his prescribed hydrocortisone and fludrocortisone medications between May and October 2017. In its screening order, however, the court determined that plaintiff could not proceed against any defendants on allegations concerning his failure to receive medications prior to July 12, 2017.

I. Defendants' Exhaustion Motions

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." 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). Generally, to comply with § 1997e(a), a prisoner must not only assert a claim at the relevant prison, but must also "properly take each step within the administrative process" that are "in the place . . . at the time, [as] the [prison's] administrative rules require." Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). This includes: (1) compliance with instructions for filing the initial grievance, Cannon v. Washington, 418 F.3d 714, 718 (7th Cir. 2005); and (2) filing all available appeals, Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005).

Specifically, the State of Wisconsin requires prisoners to file a grievance within 14 calendar days after the occurrence giving rise to the complaint. Wis. Admin. Code § DOC 310.09(6).3 Moreover, this grievance must "clearly identify the issue" that the inmate seeks to raise. Id. § 310.09(1)(e). Finally, this exhaustion requirement is mandatory, Woodford, 548 U.S. at 85, and failure to exhaust requires dismissal of a prisoner's 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 plaintiff failed to exhaust. Jones v. Bock, 549 U.S. 199, 216 (2007). At the summary judgment stage then, defendants must show that there is no genuine dispute of material fact and that they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

There is no dispute between the parties that Soderlin filed just one inmate complaint related to the allegations in his Amended Complaint. In inmate complaint RGCI-2017-26629 filed on October 18, 2017, Soderlin wrote that "HSU is neglecting to refill my medication." (Inmate Complaint (dkt. #43-2) 6.) Soderlin further identified the "date of incident" as October 12, 2017, and the "time of incident" as "ongoing." (Id.) Describing the issue he was complaining about, Soderlin also stated: "This time I went w/o my meds for five days, and the previous times they failed to refill in a timely order." (Id.) Moreover, when asked to explain how he had attempted to resolve his issue before filing his complaint, Soderlin responded that he

contacted HSU about this problem where they then tripled the amount of meds I got, but I still ran out. Then wrote to HSU Manager about problem on 10/11/17 and seen a nurse. They gave me my meds then and sent me away.

(Id.) Finally, Soderlin wrote that "out of my last 6 times I've put in for a refill for hydrocortisone 5 times they marked: 'ordered - will issue when received.' And then I ran out for between 2-6 days on those renewals." Soderlin did not include the names of any defendants in his inmate complaint, but complained only that "HSU" was neglecting to refill his medications in a timely fashion. (Id.)

In response to Soderlin's complaint, the Institution Complaint Examiner ("ICE") contacted defendant Thompson, who was manager of the HSU at that time. Thompson advised that Soderlin had submitted a medication refill that HSU had received on October 4, 2017, but the medication was not available right away, which meant that he did not receive it until October 12, 2017. ICE recommended that the complaint be affirmed, and as the reviewing authority, defendant Doehling agreed, concluding that: "Soderlin should not be without this medication. HSU staff should make every effort to get this medication as stat if out." There was no appeal from that determination.

Defendants assert that Soderlin's inmate complaint concerned a singular incident of plaintiff failing to receive his refill of hydrocortisone medication for five days in October 2017, and thus argue any claims concerning previous or subsequent delayed refills of hydrocortisone and any claims concerning delays in receiving fludrocortisone or other medications at any time must be dismissed.4 In response, plaintiff appears to concede that he did not exhaust any claims concerning delays in receiving refills of fludrocortisone or other medications. Accordingly, those claims will be dismissed. As for the hydrocortisone delays, plaintiff points out his inmate complaint explained that he was not just complaining about the early October delay, but about the fact that since June of 2017, hishydrocortisone refill had been delayed on six different occasions, the October incident only being the most recent.

Reading the grievance as a whole, the court finds that it can be fairly read as raising a complaint about an ongoing pattern by HSU of failing to fill his hydrocortisone in a timely manner since June 2017, rather than one isolated incident that occurred on October 12, 2017. After all, by the time plaintiff filed his grievance, he had received all his medication, and as plaintiff emphasizes, he did not merely complain that HSU had failed to refill his medication promptly in October 2017, but wrote that "HSU is neglecting" to refill his medication, explaining that he had received his hydrocortisone late "the last 6 times" he'd requested a refill, and he was "scared that in the future that my meds may really run out for a period of time where I may die." Plaintiff's grievance also emphasizes his efforts to resolve this problem by directly contacting HSU, who tripled the amount of medication he could receive, but he "still ran out."

Based on these and other statements in the grievance, plaintiff was plainly not just challenging the most recent refill delay in October 2017, but rather the ongoing pattern of delay on the part of the HSU. Under these circumstances, the court is satisfied that plaintiff has met the exhaustion requirement with respect to his claim that his hydrocortisone refills were delayed on multiple occasions after July 12, 2017, even though some of those dates fall more than 14 days before he ultimately felt compelled to file his grievance. See Turley, 729 F.3d at 650 (finding exhaustion requirement meant where it was clear from grievance that plaintiff "was challenging not just specific incidents of lockdown, but Menard's lockdown policies in general."); Nieto v. Dittman, No. 16-CV-163-JDP, 2017WL 3610571, at *2 (W.D. Wis. Aug. 22, 2017) (exhaustion satisfied because prisoner was complaining about an ongoing lack of care from prison officials and filed grievance "once he . . . realized that he would not be able to resolve his grievance with the medical staff informally," even though it was more than 14 days after the earliest instance of the denial of medical treatment); Edwards v. Schrubbe, 807 F. Supp. 2d 809, 812 (E.D. Wis. 2011) (same); but see Compton v. Cox, 12-cv-837-jdp, 2017 WL 933152, at *3 (W.D. Wis. Mar. 8, 2017)(plaintiff failed to properly exhaust where his grievance mentioned discrete events occurring four years earlier but did not suggest that he was complaining about an ongoing lack of care from prison officials).


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