Steiskal v. Lewitzke
| Decision Date | 24 January 2014 |
| Docket Number | No. 13-2691,13-2691 |
| Parties | RICHARD J. STEISKAL, JR., Plaintiff-Appellant, v. MICHAEL LEWITZKE, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District
Court for the Eastern District of Wisconsin.
Richard Steiskal, an inmate at Racine Correctional Institution, suffers from Bell's palsy, a condition that was diagnosed soon after one of the defendants, a former prison dentist, allegedly failed to treat an infection at the site of an extracted tooth. In this suit under 42 U.S.C. § 1983, Steiskal principally claims that the dentist and other prison staff were deliberately indifferent to his serious medical needs, in violation of the EighthAmendment. The district court concluded that Steiskal's failure to exhaust his administrative remedies before suing was undisputed, see 42 U.S.C. § 1997e(a), and granted summary judgment for the defendants. We affirm that ruling but modify the dismissal to be without prejudice.
Except as noted, the principal facts are not disputed. Steiskal's tooth was extracted in June 2012. His medical records indicate that on the day before the procedure the dentist had detected an infection, but Steiskal was given an oral antibiotic only before but not after the extraction. He remained in pain for a week before complaining to the dentist that the foul discharge he had noticed in his mouth before the procedure was still present at the extraction site. After a brief look, however, the dentist sent Steiskal away without treatment and told him to return in a week or two if his symptoms did not abate. Nine days later Steiskal was rushed by ambulance to the emergency room after experiencing symptoms that prison staff attributed to a probable stroke—blurred vision, facial paralysis, and muscle weakness.
At the hospital Steiskal was treated with antibiotic, antiviral, and steroidal drugs. A physician diagnosed him with Bell's palsy and said that the condition could have been caused by a surgical procedure or infection. Bell's palsy results from disruption, possibly from infection or trauma, to the facial nerves controlling the muscles on each side of the face. Symptoms, which can include twitching and even paralysis, appear suddenly and can peak within 48 hours. Improvement typically occurs within two weeks without treatment, but if symptoms persist, a course of treatment may prevent lasting damage, especially for palsy caused by infection. Most patients recover completely within six months, but symptoms may become permanent in those with significant nerve damage. Bell's Palsy Fact Sheet (2012), NAT'L INST. OF NEUROLOGICAL DISORDERS & STROKE, available at http://www.ninds.nih.gov/ disorders/bells/ detail_bells.htm.
After his release from the hospital, Steiskal submitted on July 5 a prison grievance recounting that the onset of his Bell's palsy had occurred about a week after the dentist ignored the infection at the extraction site. He received that grievance back unprocessed on July 11, the day after it was received by the Institution Complaint Examiner (or "ICE"). Accompanying the grievance was a July 10 letter from another of the defendants, an assistant to the ICE, telling Steiskal that his submission would not be "accepted" until he followed the "chain of command" and attempted to "resolve the issue by contacting Mr. Montagna, Dental Supervisor." The letter further advised that, "[i]f you have attempted to resolve the issue through the person(s) indicated above andhave not been able to do so, you may resubmit your complaint (with all pertinent documentation) for processing by this office within 14 calendar days."
Steiskal did as instructed and on July 14 submitted a Dental Service Request asking that Montagna read an attached letter, which relates Steiskal's belief that his Bell's palsy resulted from the failure to treat his infection. On July 18, having received no reply, Steiskal submitted a second Dental Service Request with a similar letter addressed to Montagna. That same day Steiskal's first Dental Service Request was returned, and the second was returned the following day. Both included a note saying that Montagna no longer worked at the prison and that his letters had been "forwarded to Dr. Barbara DeLap, Dental Director." On July 19, with these replies in hand, Steiskal submitted to the warden a form Request for Review of Rejected Complaint, which the warden did not acknowledge and the defendants deny he received. Steiskal recounted the substance of his July 5 grievance and asserted that it had been "denied" even though minimal inquiry would have shown that the person he was told to consult did not work at the prison. (Steiskal had not waited to hear from DeLap, another of the defendants, but as far as this record shows, no one directly answered the letters intended for Montagna that were forwarded to her.) The next day, July 20, Steiskal also wrote the warden. He repeated his belief that his Bell's palsy had resulted from the untreated infection and asked that the warden intervene with the ICE. On July 25 (now 15 days after his unprocessed grievance had been given back to Steiskal) a fourth defendant, an assistant to the Health Services Manager, wrote Steiskal on the warden's behalf. Her letter, which was copied to the warden and DeLap, acknowledges Steiskal's condition, informs him that Bell's palsy typically is a temporary condition, and advises that he "follow up with the institution provider for any further plan of care needed."
Steiskal was not satisfied with the results of this process, but what he did not do was resubmit his grievance and documentation to the ICE as instructed when that grievance was given back on July 11. Instead Steiskal filed this action five months later in December 2012. In his verified complaint Steiskal recounts the events preceding his hospitalization in June and adds that in late July he was sent to the hospital again because, in addition to left facial paralysis, his Bell's palsy was causing severe headaches and a loss of feeling in his left arm and leg. During that visit, Steiskal continued, the hospital physician had directed that he be seen by a neurologist, but the prison medical staff did not comply until early September and in the interim gave him nothing for his pain. The response of the prison medical staff, he added, was that he would have to let the condition "take its course."
The defendants moved for summary judgment on the ground that Steiskal had not exhausted his administrative remedies. Inmates in Wisconsin submit their grievances to the ICE, who, as authorized by regulation, may "reject" a grievance for an enumerated reason or "return" it without processing if it is not in the required form, includes profanity or threats, or presents multiple issues. WIS. ADMIN. CODE §§ DOC 310.07(1), (2)(b), DOC 310.09(1), (3), DOC 310.11(5); Johnson v. Meier, 842 F. Supp. 2d 1116, 1118 (E.D. Wis. 2012); Freeman v. Berge, 283 F. Supp. 2d 1009, 1013 (W.D. Wis. 2003); State ex rel. Grzelak v. Bertrand, 665 N.W.2d 244, 247 (Wis. 2003). The defendants did not contend, however, that the ICE had "rejected" Steiskal's grievance or "returned" it for any of these reasons. Instead, they asserted that the ICE had "returned"—but not "rejected"—the grievance "rather than accepting it for filing because Steiskal was required to first attempt to resolve his grievance directly with the dental services unit." For this proposition the defendants cited exclusively to WIS. ADMIN. CODE § DOC 310.09(4), which provides that, "[p]rior to accepting the complaint, the ICE may direct the inmate to attempt to resolve the issue." And though they conceded that Steiskal had done what the ICE had asked by trying to contact Montagna, the defendants noted that he did not resubmit his July 5 grievance along with the documentation of his efforts. It follows, the defendants insisted, that Steiskal could not have exhausted even the first level of the administrative process because the ICE never had a grievance to consider.
The district court agreed with the defendants that Steiskal had not exhausted his administrative remedies. The court accepted the defendants' premise that § DOC 310.09(4) authorized the ICE to give back Steiskal's unprocessed grievance in order for him to attempt an informal resolution. That grievance counted for nothing, the court assumed, and since Steiskal did not resubmit it to the ICE, he never even initiated the grievance process. Moreover, the court added, Steiskal's submissions to the warden were no substitute for a grievance directed to the ICE.
In addition, although the defendants had never asserted that Steiskal's complaint fails to state a claim and did not question the merits of his Eighth Amendment claim at summary judgment, the district judge offered his observation that Steiskal's "complaint would not survive" even if he had exhausted his administrative remedies. The judge reasoned that Steiskal could not establish deliberate indifference because, when Steiskal had returned complaining of continuing pain and an apparent infection, the dentist...
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