Tackett v. Jess

Decision Date26 March 2020
Docket NumberCase No. 19-CV-258-JPS
PartiesTIMOTHY GREG TACKETT, Plaintiff, v. CATHY JESS, PAUL KEMPER, LAURA BARTOW, LORI ALSUM, EMILY DAVIDSON, LONEL LEBLANC, GLENN BORNICK, DR. KEVIN KREMBS, KRISTEN VASQUEZ, CANDICE WHITMAN, LAURA FRAZIER, ROXANNE LYYSKI, JULIE LUDWIG, and CHARLES LARSON, Defendants.
CourtU.S. District Court — Eastern District of Wisconsin
ORDER

Plaintiff, a prisoner proceeding pro se, filed an amended complaint against Cathy Jess ("Jess"), Paul Kemper ("Kemper"), Laura Bartow ("Bartow"), Lori Alsum ("Alsum"), Emily Davidson ("Davidson"), Lonel LeBlanc ("LeBlanc"), Glenn Bornick ("Bornick"), Doctor Kevin Krembs ("Krembs"), Kristen Vasquez ("Vasquez"), Candice Whitman ("Whitman"), Laura Frazier ("Frazier"), Roxanne Lyyski ("Lyyski"), Julie Ludwig ("Ludwig"), and Charles Larson ("Larson") (collectively, "Defendants"). (Docket #23). The Western District of Wisconsin screened the complaint and allowed Plaintiff to proceed on claims for deliberate indifference to a serious medical need in violation of his Eighth Amendment rights, and claims for medical negligence under Wisconsin state law. (Docket #26). The case arises from the allegedly poor medical treatment that Plaintiff received at Racine Correctional Institution ("RCI") and Fox Lake Correctional Institution ("FLCI"), which ultimately required the amputation of his fourth toe.

The case was subsequently transferred to the Eastern District of Wisconsin, and to this branch of the Court, for disposition. On August 22, 2019, Defendants filed a combination motion to dismiss for lack of subject matter jurisdiction and motion for summary judgment. (Docket #83). That motion is now fully briefed. For the reasons explained below, the Court will grant the motion to dismiss in part, and deny it in part. The motion for summary judgment will be granted in full. The Court will decline to exercise supplemental jurisdiction over any remaining state law negligence claims, and the action will be dismissed.

1. MOTION TO DISMISS

1.1 Standard of Review

The Court evaluates challenges to jurisdictional sufficiency under Federal Rule of Civil Procedure 12(b)(1), which allows the Court to dismiss actions over which it lacks subject-matter jurisdiction. When faced with a jurisdictional challenge, the Court accepts as true the well-pleaded factual allegations found in the complaint, drawing all reasonable inferences in favor of the plaintiff. Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 588 (7th Cir. 2014).

1.2 Relevant Allegations and Analysis

Defendants argue that Plaintiff's negligence claims stemming from his interactions with Kemper, Dr. Krembs, Vasquez, Frazier, LeBlanc, and Bornick must be dismissed because Plaintiff has failed to provide timely notice of the claim under Wisconsin's notice of claim statute. Wis. Stat. § 893.82(3). The statute requires, as a precondition to suit against a stateemployee, that notice be served upon the attorney general within 120 days of the event-causing injury. Id. The statute is treated as jurisdictional. Badger Catholic, Inc. v. Walsh, 620 F.3d 775, 782 (7th Cir. 2010). However, Wis. Stat. § 893.82 does not apply to medical malpractice claims. Wis. Stat. § 893.82(5m) ("With regard to a claim to recover damages for medical malpractice, the provisions [requiring notice of claim] do not apply."); see also Hines v. Resnick, 807 N.W.2d 687, 690 n.3 (Wis. Ct. App. 2011) (noting that "[n]otices of claim under Wis. Stat. § 893.82 are no longer required for medical malpractice claims.").

Plaintiff does not dispute that he failed to provide a notice of claim to the defendants. He submits that he was not required to do this under Wis. Stat. § 893.82(5m). He is correct as far as the medical defendants who may have committed medical malpractice are concerned—i.e., Dr. Krembs and nurses Frazier and Vasquez. Defendants submit that Frazier and Vasquez—nurses who worked in a largely administrative capacity—are not liable for medical malpractice, but they do not cite any authority for this position. Thus, the negligence claims against Dr. Krembs, Frazier, and Vasquez will move forward, and will be discussed in Section 2.3.3, infra.

Kemper, LeBlanc, and Bornick are not medical professionals and were not involved in Plaintiff's medical care. As to these three defendants, a notice of claim must have been issued within 120 days of the event causing injury. Wis. Stat. § 983.82(3). Accordingly, the negligence claims as to those defendants will be dismissed without prejudice.

2. SUMMARY JUDGMENT

2.1 Legal Standard

2.1.1 Summary Judgment

Federal Rule of Civil Procedure 56 provides that 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); Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is "material" if it "might affect the outcome of the suit" under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016).

2.1.2 Exhaustion of Prisoner Administrative Remedies

The Prison Litigation Reform Act ("PLRA") establishes that, prior to filing a lawsuit complaining about prison conditions, a prisoner must exhaust "such administrative remedies as are available[.]" 42 U.S.C. § 1997e(a). To do so, the 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). He must do so precisely in accordance with those rules; substantial compliance does not satisfy the PLRA. Id.; Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005). A suit must be dismissed if it was filed before exhaustion was complete, even if exhaustion is achieved before judgment is entered. Perez v. Wis. Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999). Several important policy goals animate the exhaustion requirement, including restricting frivolous claims,giving prison officials the opportunity to address situations internally, giving the parties the opportunity to develop the factual record, and reducing the scope of litigation. Smith v. Zachary, 255 F.3d 446, 450-51 (7th Cir. 2001). Failure to exhaust administrative remedies is an affirmative defense to be proven by Defendants. Westefer v. Snyder, 422 F.3d 570, 577 (7th Cir. 2005).

The Wisconsin Department of Corrections maintains an Inmate Complaint Review System ("ICRS") to provide a forum for administrative complaints. Wis. Admin. Code § DOC 310.04. There are two steps an inmate must take to exhaust their administrative remedies under the ICRS. First, the inmate must file an offender complaint with the Institution Complaint Examiner ("ICE") within fourteen days of the events giving rise to the complaint. Id. § DOC 310.07(2). The ICE may reject the complaint or return the complaint to the inmate and allow him or her to correct the issue(s) and re-file within ten days. See id. § DOC 310.10(5),(6). If the complaint is rejected, the inmate may appeal the rejection to the appropriate reviewing authority within ten days. Id. § DOC 310.10(10).1 If the complaint is not rejected, the ICE issues a recommendation for disposing of the complaint, either dismissal or affirmance, to the reviewing authority. Id. § DOC 310.10(9),(12). The reviewing authority will affirm or dismiss the complaint in whole or in part, or return the complaint to the ICE for further investigation. Id. § DOC 310.11(2).

Second, if the ICE recommends dismissal and the reviewing authority accepts it, the inmate may appeal the decision to the CorrectionsComplaint Examiner ("CCE") within fourteen days. Id. §§ DOC 310.09(1), 310.12. The CCE issues a recommendation to the Secretary of the Department of Corrections who may accept or reject it. Id. §§ DOC 310.12(2), 310.13. Upon receiving the Secretary's decision, or after ninety days from the date the Secretary received the recommendation, the inmate's administrative remedies are exhausted. Id. § DOC 310.13(4).

2.2 Relevant Facts

2.2.1 Care at Racine Correctional Institution

In July 2015, Plaintiff worked for the maintenance department at RCI. On July 9, while Plaintiff was at work, a printer dropped on his foot causing excruciating pain in his toes. Initially, Plaintiff thought he might have a bone bruise, and tried to persevere. However, the pain never abated. On the morning of July 13, he asked to be sent to the Health Services Unit ("HSU") for evaluation. At the HSU, Plaintiff received Tylenol and an ice bag for the pain.

Between July 2015 and April 2016, Plaintiff submitted multiple Health Service Requests ("HSRs") complaining about his foot. Following an HSR submitted on July 17, Plaintiff was seen in the HSU and received a cane. He was also encouraged to elevate his foot and take ibuprofen. On August 27, Plaintiff submitted another HSR complaining that the ibuprofen did not help, and his toes "popped" when he bent them. On August 31, Plaintiff submitted another HSR in which he explained that he had stretched his toes and they felt better—accordingly, he requested that the HSR from August 27 be disregarded.

On September 20, 2015 Plaintiff submitted another HSR complaining of toe pain from his injury in July. The HSU scheduled him for an appointment with a doctor in early October. Plaintiff's appointment wasinitially scheduled for October 13, but it was unexpectedly cancelled. Plaintiff wrote to Vasquez, who informed him that the appointment had been rescheduled for October 30. Vasquez told him that if he needed assistance before then, he could request help from a nurse.

On October 30, 2015 Dr. Krembs examined Plaint...

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