Grender, William v. McCullick
3:19-cv-00403
W.D. Wis.Feb 7, 2020Background
- Pro se plaintiff William Grender (WSPF) sued defendants McCullick, Brown, Fedie and Roth under the Eighth Amendment, alleging denial of a medically prescribed extra pillow, denial of ice packs for back pain, and that Roth failed to obtain medical care after Grender vomited blood on Feb. 5, 2019.
- Defendants moved for summary judgment arguing Grender failed to exhaust administrative remedies for the ice-pack claim and the Roth claim; records show three inmate complaints about pillows but no complaint logged about ice packs or Roth.
- Grender produced a carbon-copy complaint he says he submitted about Roth, but it lacked the DOC receipt/stamp required by Wis. Admin. Code and there is no record in the tracking system.
- The court applied Wisconsin’s DOC 310 exhaustion rules and Seventh Circuit precedent requiring inmates to follow all administrative steps and to treat missing receipts as a “red flag” to investigate (Lockett).
- The court dismissed without prejudice Grender’s claims against Roth and his ice-pack claim for failure to exhaust, found Grender exhausted his extra-pillow claim covering Jan. 31–Feb. 12, 2019 (continuing condition), denied his preliminary-injunction request (procedurally deficient and outside the complaint), and denied his request for court assistance recruiting counsel without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion of claim against Roth (failure to obtain care after vomiting blood) | Grender says he filed an inmate complaint about Roth (carbon copy attached) | No complaint record in tracking system; DOC requires stamped receipt; absence of receipt is a "red flag" | Dismissed without prejudice for failure to exhaust; carbon copy without receipt insufficient (must follow DOC procedures) |
| Exhaustion of ice-pack denial claim | Grender alleges staff denied ice packs as prescribed | No inmate complaint in record regarding ice packs | Dismissed without prejudice for failure to exhaust |
| Exhaustion/scope of extra-pillow claim | Grender filed complaints and alleged repeated denials of the prescribed extra pillow from Jan. 31 onward | Defendants argue claim should be limited to Feb. 10–12, 2019 | Court finds exhaustion adequate for pillow denials from Jan. 31–Feb. 12 (continuing condition) and allows pillow claim to proceed |
| Motion for preliminary injunction (transfer) | Grender contends staff tamper with food/mail and others threaten him; seeks transfer | Request is procedurally defective and raises issues outside his pillow claim | Denied: procedurally deficient and outside the scope of the complaint |
| Motion for court assistance recruiting counsel | Grender cites indigence, limited law access, and complexity | Defendants did not contest indigence; court weighs complexity and Grender's abilities | Denied without prejudice: Grender is indigent and sought counsel but court finds no present showing that case exceeds his capacity; may renew later |
Key Cases Cited
- Woodford v. Ngo, 548 U.S. 81 (2006) (exhaustion doctrine aims to give prison administrators an opportunity to resolve grievances)
- Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002) (prisoner must take each step in administrative process)
- Lockett v. Bonson, 937 F.3d 1016 (7th Cir. 2019) (missing DOC receipt is a "red flag" that the inmate must investigate)
- Turley v. Rednour, 729 F.3d 645 (7th Cir. 2013) (continuing conditions may be exhausted with a single grievance)
- Ford v. Johnson, 362 F.3d 395 (7th Cir. 2004) (dismissal for failure to exhaust is without prejudice)
- Davis v. Mason, 881 F.3d 982 (7th Cir. 2018) (exhaustion is an affirmative defense for defendants to prove)
- Cannon v. Washington, 418 F.3d 714 (7th Cir. 2005) (must follow instructions for filing initial grievance)
- Burrell v. Powers, 431 F.3d 282 (7th Cir. 2005) (must file all necessary appeals to exhaust)
- Boucher v. School Bd. of Greenfield, 134 F.3d 821 (7th Cir. 1998) (preliminary injunction is an extraordinary remedy requiring clear showing)
- Lambert v. Buss, 498 F.3d 446 (7th Cir. 2007) (elements required for preliminary injunction)
- Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (standards for recruiting counsel for pro se civil litigants)
- Santiago v. Walls, 599 F.3d 749 (7th Cir. 2010) (requirements to request court assistance in recruiting counsel)