Witzke v. Femal

• Decision Date: 22 July 2004
• Docket Number: No. 02-2648.,02-2648.
• Citation: 376 F.3d 744
• Parties: Michael WITZKE, Plaintiff-Appellant, v. Michelle FEMAL, Daniel Benzer, Jim Webb, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 744

376 F.3d 744

Michael WITZKE, Plaintiff-Appellant, v. Michelle FEMAL, Daniel Benzer, Jim Webb, et al., Defendants-Appellees.

No. 02-2648.

United States Court of Appeals, Seventh Circuit.

Argued January 9, 2004.

Decided July 22, 2004.

Appeal from the United States District Court for the Eastern District of Wisconsin, Lynn Adelman, J.

COPYRIGHT MATERIAL OMITTED

Margaret J. Schneider (argued), Mayer, Brown, Rowe & Maw, Chicago, IL, for Plaintiff-Appellant.

Hillary A. Schwab (argued), Office of the Attorney General, Madison, WI, James E. Culhane, Tyson Ciepluch (argued), Davis & Kuelthau, Milwaukee, WI, for Defendants-Appellees.

Before POSNER, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

Michael Witzke, a prisoner serving a sentence imposed by a Wisconsin state court, filed a pro se complaint under 42 U.S.C. § 1983. He alleged that the defendants had been deliberately indifferent to his medical needs. The defendants moved to dismiss Mr. Witzke's complaint for failure to exhaust administrative remedies, as required by the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(a). The district court granted the motion. For the reasons set forth in the following opinion, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

I BACKGROUND

A. Facts

In 1996, Michael Witzke pleaded guilty to possession with intent to deliver cocaine and was sentenced to ten years' imprisonment by a Wisconsin court. The sentencing court stayed his prison sentence, and Mr. Witzke was placed on probation for eight years pending his successful completion of probation. When he began his probation, Mr. Witzke was taking prescribed medications to control symptoms of depression and anxiety. Mr. Witzke also had ongoing problems controlling his addiction to drugs and alcohol and had been participating in a methadone treatment program for about twelve years.

During his probationary period, Mr. Witzke violated several conditions of his probation. The first violation occurred on or around September 3, 1999. As a result of this initial violation, Mr. Witzke was held in Outagamie County Jail ("OCJ") from September 3, 1999, until September 10, 1999. Mr. Witzke claims that, during this time, he did not have access to necessary medication. Furthermore, after this violation, his probation agent, defendant Michelle Femal, allegedly ordered Mr. Witzke to "detox from Methadone." R.6, App. 007 at 4.

Mr. Witzke again violated his probation on September 22, 1999, and, consequently, again was confined in OCJ from September 24, 1999, until October 5, 1999. Agent Femal's methadone detoxification order was enforced during this second period of imprisonment.

After his release from OCJ in October 1999, Mr. Witzke was placed, as an alternative to revocation of probation, in the Moorings Program Halfway House ("Moorings") run by defendant Jim Webb. Agent Femal, under the supervision of Agent Daniel Benzer, made the decision to permit Mr. Witzke to participate in the Moorings program as an alternative to the revocation of probation. Mr. Witzke accepted this option, signed a voluntary request for admission to the program and agreed to comply with all of Moorings' rules. The record contains few details of this program. It is apparent that participants in the program are free to leave during the day but must return by an established curfew.

Mr. Witzke's complaint alleges that Mr. Webb was aware that, upon admittance, Mr. Witzke was suffering from methadone withdrawal. Mr. Witzke further alleges that he was subject to cruel and unusual punishment due to the program's failure to address his drug withdrawal needs. Specifically, Mr. Witzke alleges that Mr. Webb, who was not a physician, performed a diagnostic medical evaluation and determined that Mr. Witzke did not need detoxification for methadone. Accordingly, Mr. Webb removed Mr. Witzke from medication necessary to control his depression and anxiety. After ninety days of such deprivation, Mr. Witzke was sent to a psychiatrist who ordered the continuation of the prescribed medicines. Mr. Witzke asserts that Agent Femal and Agent Benzer either knew or should have known that he was denied treatment and should have prescribed medications during his stay at Moorings. Mr. Witzke's complaint reveals that he remained in the Moorings program until March 19, 2000. On that date, Mr. Witzke was arrested for operating a motor vehicle while intoxicated and possessing open intoxicants. Two days later, Mr. Witzke appeared before the court while he was intoxicated. As a result, Mr. Witzke was incarcerated at Waukesha County Jail.

After this series of violations, Mr. Witzke was again offered an alternate to revocation of his probation. Agent Femal recommended placing Mr. Witzke in the Racine Correction Institution ("RCI") Choice Program. This program is an intensive nine-month drug and alcohol program designed to rehabilitate the drug-addicted criminal. After admitting to violations of his probation, Mr. Witzke voluntarily requested admission to this program, his only alternative to revocation of his probation. He agreed to follow the rules of the program. Mr. Witzke alleges that, while participating in the Choice Program, he ran out of his medications and was unable to fill his prescriptions from August 15, 2000, until September 22, 2000, the date of his termination from the program.

Mr. Witzke alleges that, when Agents Femal and Benzer presented the Choice Program as an option, they knew that the program could not address his mental health problems and that he would be denied his prescribed medications. Mr. Witzke further alleges that Gamail Goines, a social worker involved with the Choice Program, allowed Mr. Witzke's medication to "abruptly run out" and did nothing after Mr. Witzke spoke to him about his medications. Appellant's Br. at 7. Mr. Goines terminated Mr. Witzke from the Choice Program in part because he thought Mr. Witzke would use his prescribed medications as "an excuse to not fully participate." Id. Mr. Witzke next contends that defendant "Mr. Alvarez,"¹ the Assistant Unit Manager at RCI, "played an administrative and supervisory role in the denial of Witzke's proper medical care." Id. Specifically, Mr. Witzke asserts that Mr. Alvarez placed him in a program that was not equipped to deal with his mental health illness and medical conditions. Defendant "Ms. Finley"² was a Unit Manager for the Choice Program and was in a supervisory role in the diagnosis and evaluation of Mr. Witzke. Mr. Witzke claims that Ms. Finley refused to allow him to communicate with her about his medical problems.

In sum, Mr. Witzke alleges that he had been denied his prescribed medicine for over a month due to the deliberate indifference of the defendants. He eventually was terminated from the Choice Program and his probation was revoked formally in November 2000. That decision was affirmed in December of 2000. Mr. Witzke was then transferred to the Wisconsin Dodge Correctional Institute.

Mr. Witzke filed his complaint while he was detained in RCI. See R.1. He currently is confined at the Waupun Correctional Institution. Mr. Witzke claims deliberate indifference to his medical needs by each defendant and seeks damages and declaratory relief.

B. District Court Proceedings

The district court granted the defendants' motion to dismiss Mr. Witzke's complaint for failure to state a claim upon which relief could be granted. See Fed.R.Civ.P. 12(b)(6). In granting the motion, the district court first considered the Prison Litigation Reform Act of 1995 ("PLRA"), which provides that "[n]o action shall be brought with respect to prison conditions ... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a).

The district court then noted that the Wisconsin Administrative Code provides probationers a "client complaint process" by which they can file a complaint and seek administrative review. R.62 at 5 (citing Wis. Admin. Code § DOC 328.11). The court explained that probationers may use this process to review a decision that personally affects them. The process permits the filing of a complaint with an agent; the decision of that agent can be reviewed by the agent's supervisor. This decision, in turn, can be reviewed by the administrator whose decision is final.

Noting that the harm had occurred when he was a probationer, the district court inquired whether the PLRA's exhaustion requirement applied to Mr. Witzke. The court acknowledged that the PLRA concerned actions "with respect to prison conditions" but also noted that the PLRA did not specifically define "prison conditions." The district court then referred to the definitions of a "civil action with respect to prison conditions" and "prison" found in 18 U.S.C. § 3626(g)(2) and (5), respectively, to determine if Mr. Witzke's situation could be included in those definitions. The district court noted that Mr. Witzke was on probation hold or in an alternative to revocation program while at the OCJ, Moorings and the Choice Program. "Thus," the court concluded, Mr. Witzke "was in a state or local facility that detains adults accused of violations of criminal law. When plaintiff's probation was revoked, he was sent to prison." R.62 at 7. The district court determined that, under these conditions, the PLRA's exhaustion requirement applied to Mr. Witzke.

Having concluded that the PLRA applied, the district court noted that the failure to exhaust administrative remedies was an affirmative defense and was not required in a complaint. However, Mr. Witzke had stated that the prison provided grievance procedures, but that he had not taken advantage of those internal procedures. The court therefore held that Mr. Witzke had pleaded himself out of court and that dismissal for failure to state a claim upon which relief can be granted...