Fort-Greer, Maurice v. Daley, George M. , 228 F. App'x 602 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 4, 2007*
Decided April 5, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-3289
MAURICE FORT-GREER, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of
Wisconsin
v.
No. 05-C-827
GEORGE M. DALEY and
ROMAN KAPLAN, William C. Griesbach,
Defendants-Appellees. Judge.
ORDER
Maurice Fort-Greer, a Wisconsin inmate, brought this action under 42 U.S.C.
§ 1983 claiming that two prison doctors violated his Eighth Amendment right to
adequate medical care when they refused to order surgery for his deviated nasal
septum. The district court dismissed the suit at summary judgment after
concluding that Fort-Greer was precluded from pursuing it because an identical
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-3289 Page 2
action had been dismissed four years earlier for failure to state a claim. Fort-Greer
appeals.
The facts underlying Fort-Greer’s claim occurred between April 1998 and
September 2000 and must be construed in the light most favorable to him. See
Tibbs v. City of Chi., 469 F.3d 661, 664 (7th Cir. 2006). According to Fort-Greer, in
April 1998 he sustained a blow to his nose while playing basketball at the
Milwaukee County Jail. Jailers took him to the emergency room at a local hospital,
where doctors diagnosed him with a deviated septum and told him that surgery was
necessary. During the next several months, Fort-Greer experienced difficulty
breathing, nose bleeds, eye aches, and migraines. He was scheduled for surgery,
but before the date arrived he was transferred into the custody of the Wisconsin
Department of Corrections.
At Fort-Greer’s intake examination at Dodge Correctional Institution in
August 1998, the examining physician confirmed that he suffered from a deviated
septum and was still experiencing difficulty breathing, nose bleeds, and headaches.
The examining physician prescribed nasal spray and pain medication. He also
recommended an offsite ENT consultation. But Dr. George Daley, the DOC medical
director at the time, denied the request for offsite services with the explanation that
Fort-Greer’s nasal bone was not displaced and his septum was only minimally
deviated. After that Fort-Greer continued to complain about pain and discomfort
stemming from the injured septum, but Daley still rejected fresh recommendations
for ENT consultations in April 1999 and September 2000. In addition, Fort-Greer
says, Dr. Roman Kaplan, a physician at Oshkosh Correctional Institution, denied
him treatment altogether during his incarceration at that facility. Kaplan did not
see Fort-Greer after August 2000, and Daley left his position as medical director
with the DOC in 2001. In the meantime, Fort-Greer continued to seek treatment
for his deviated septum and ultimately received surgery in July 2004. As a result,
he says, he no longer suffers any of his prior symptoms.
After his surgery Fort-Greer brought this lawsuit in the United States
District Court for the Eastern District of Wisconsin. In a complaint filed in August
2005, he alleged that Daley and Kaplan were deliberately indifferent to his serious
medical condition when they denied his requests for surgical repair of his deviated
septum despite opinions from other physicians that surgery was necessary. But
this was not the first time Fort-Greer raised this claim against these doctors. At
summary judgment Daley and Kaplan presented evidence that Fort-Greer had filed
an identical suit against them in the Western District of Wisconsin. That suit was
dismissed in 2001 for failure to state a claim, Greer v. Daley, No. 01-C-586-C, 2001
WL 34377922 (W.D. Wis. Dec. 27, 2001), and Fort-Greer did not appeal the
judgment.
No. 06-3289 Page 3
The District Court for the Eastern District of Wisconsin dismissed the 2005
lawsuit with prejudice. The court observed that the only difference between the
suits is that in the second Fort-Greer alleged he had received corrective surgery.
The court explained that this fact did not change the nature of the claim: in both
lawsuits the claim of deliberate indifference rests on the inaction of Daley and
Kaplan from 1998 to 2000. The second suit is not based on new events occurring
after dismissal of the first suit. Thus, the court concluded, the 2005 suit was barred
by principles of claim preclusion because the claim alleged in each lawsuit is
identical, the parties are identical, and the 2001 dismissal was on the merits.
On appeal Fort-Greer makes three arguments. First he contends that the
district court erred in relying on claim preclusion because Daley and Kaplan did not
raise the affirmative defense in their answer. Failure to plead an affirmative
defense may result in waiver of that defense. Fed. R. Civ. P. 8(c); Curtis v.
Timberlake, 436 F.3d 709, 711 (7th Cir. 2005). But a party’s failure to plead an
affirmative defense in its answer does not result in waiver if the district court
allows the defense to be asserted later and gives the plaintiff an opportunity to
respond. Venters v. City of Delphi, 123 F.3d 956, 968 (7th Cir. 1997); Blaney v.
United States, 34 F.3d 509, 512 (7th Cir. 1994) (collecting cases). In this case Daley
and Kaplan did not waive their defense of claim preclusion. Although the doctors
failed to plead the defense in their answer, the district court allowed Fort-Greer
three months to address the defense after the doctors raised it in their motion for
summary judgment. Fort-Greer never responded. Instead, he contends that prison
officials prevented him from responding because they would not allow him to send
mail out of the prison during the response period. The record shows, however, that
Fort-Greer filed no fewer than 14 documents with the court during that period, yet
none addressed the issue of claim preclusion. Accordingly, we cannot say that
Fort-Greer was denied an opportunity to respond to the doctors’ affirmative defense.
Second, Fort-Greer argues that his 2001 suit was not “fully and fairly
litigated” and thus could not bar the later action. He does not deny that he twice
has sued Daley and Kaplan for deliberate indifference arising from their refusal to
order surgical repair of his deviated septum between 1998 and 2000. Instead, he
asserts that because the first lawsuit was dismissed at initial screening, see 28
U.S.C. § 1915A, he never had an opportunity to litigate the claim. But the doctrine
of claim preclusion bars relitigation of claims decided on the merits in a prior
lawsuit involving the same parties. Highway J Citizens Group v. United States
Dep’t of Transp., 456 F.3d 734, 741 (7th Cir. 2006). And the dismissal of a
complaint at initial screening for failure to state a claim is a dismissal on the merits
that precludes filing of a second suit on the same facts. See Gladney v. Pendleton
Corr. Facility, 302 F.3d 773, 775 (7th Cir. 2002). Although Fort-Greer insists that
his earlier lawsuit should not have been dismissed because his claim was
meritorious as evidenced, he says, by the duration of his suffering and his
No. 06-3289 Page 4
subsequent surgery, the proper way for him to contest the 2001 dismissal was to
appeal the judgment, not to bring a second, identical lawsuit. See Restatement
(Second) Judgments § 19 cmt. a (2006).
Finally, Fort-Greer contends that his 2005 complaint stated two additional
claims that were wrongly dismissed: a claim for arbitrary government action and a
substantive due process claim. But even given the liberal reading we must afford
pro se pleadings, Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001),
Fort-Greer’s complaint raises nothing more then a claim of deliberate indifference
against Daley and Kaplan. Moreover, the presence of other claims against these
defendants would not matter because all claims arising from the same operative
facts are barred. See Highway J Citizens Group, 456 F.3d at 741 (explaining that
claim preclusion bars not only those issues previously raised and decided but also
all issues that could have been raised).
AFFIRMED.