Jeremy Lockett v. Tanya Bonson ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1012
JEREMY LOCKETT,
Plaintiff-Appellant,
v.
TANYA BONSON and BETH EDGE,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 1:17-cv-00691-WCG — William C. Griesbach, Chief Judge.
____________________
ARGUED MAY 17, 2019 — DECIDED AUGUST 28, 2019
____________________
Before RIPPLE, MANION, and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. Jeremy Lockett, an inmate at the
Wisconsin Secure Program Facility (“WSPF”), brought this
action under 42 U.S.C. § 1983 to recover for alleged viola-
tions of his constitutional rights under the Eighth Amend-
ment to the Constitution of the United States, rights made
2 No. 19-1012
1
applicable to the states through the Fourteenth Amendment.
He alleged that these rights were violated when he received
inadequate medical care while incarcerated at WSPF.
Mr. Lockett, who has sickle cell disease, claimed that two
prison medical staff members, Tanya Bonson, a nurse practi-
tioner (“NP”), and Beth Edge, a nurse, were deliberately in-
different to his serious medical needs. The defendants
moved for summary judgment; the district court granted the
motion. Mr. Lockett filed a timely appeal.
We conclude that the record will not support a jury de-
termination that NP Bonson was deliberately indifferent to
Mr. Lockett’s needs in prescribing medication. Mr. Lockett
did not exhaust his administrative remedies on his claim
against Nurse Edge. Accordingly, the judgment of the dis-
2
trict court is affirmed.
I.
BACKGROUND
A.
Mr. Lockett has been housed at WSPF, a facility within
the Wisconsin Department of Corrections (“WDOC”), since
November 2014. He has a significant medical history, having
been diagnosed with sickle cell disease, a chronic condition
that causes pain, sometimes acutely. During certain periods
called sickle cell crises, the pain becomes so severe that it re-
quires immediate emergency medical treatment. A sickle cell
1 Estelle v. Gamble, 429 U.S. 97, 101, 104 (1976).
2 The district court had jurisdiction over this action pursuant to 28 U.S.C.
§ 1331. Our jurisdiction is based on 28 U.S.C. § 1291.
No. 19-1012 3
crisis usually resolves within five to seven days, although a
severe crisis may result in pain that persists for weeks or
months.
Other factors further complicate Mr. Lockett’s health sit-
uation. His records contain a diagnosis of cannabis depend-
ence, antisocial personality disorder, adjustment disorder,
3
and mild depression in 2010. He also has a documented his-
tory of substance abuse, including marijuana, ecstasy, and
cocaine. Health care providers have prescribed various med-
ications to treat his depression.
The events underlying his claims occurred over a sever-
al-month period at the end of 2016. On September 2, 2016,
Mr. Lockett sent a health services request, complaining that
his routine pain medication, tramadol, was not working to
control his back pain. In response, NP Bonson switched
Mr. Lockett’s pain medication to Tylenol #3, a mild opioid.
Five days later, on September 7, 2016, a medical staff mem-
ber (whose name does not appear in the record) evaluated
Mr. Lockett. According to Mr. Lockett, during this evalua-
tion, he told the caregiver that his Tylenol #3 was not con-
trolling his pain. The relevant entry on his chart does not re-
flect, however, any discussion of the efficacy of his pain
medication—only that Mr. Lockett had reported to the med-
ical department so that laboratory work could be undertaken
and his neck pain evaluated and treated. Shortly thereafter,
NP Bonson renewed Mr. Lockett’s prescription for Tylenol
#3, first for a period of two weeks and then for another
month.
3 See R.42-4 at 4.
4 No. 19-1012
Throughout the month of September, Mr. Lockett re-
mained on Tylenol #3, administered four times daily on
4
what the WSPF terms medication passes. From September
23 through September 25, he missed several doses, at least
once because he declined it. Between September 26 and Oc-
tober 3, Mr. Lockett did not receive his pain medication at
all. Although he filed a health services request during that
time, he asked only about whether he would have an ap-
pointment with a specialist for his sickle cell disease and did
not mention the lack of pain medication.
On October 3, 2016, medical staff determined that
Mr. Lockett was in sickle cell crisis. In accordance with the
emergency nursing protocol, he was transferred to the local
emergency room for treatment. When he returned to the
WSPF the following day, another WSPF nurse, Anderson,
documented in Mr. Lockett’s inmate medical records a rec-
ommendation from the treating emergency room physician
that Mr. Lockett be given oxycodone, a stronger, immedi-
ate-release opioid, to treat his sickle cell pain. The entry in
Mr. Lockett’s chart originally instructed, “Please fill the Rx
5
in the morning,” but that note was crossed out. NP Bonson
wrote, “Had one time dose Oxycodone 20mg from Hospital.
6
Admin[istered] this AM.” She noted that “Mr. Lockett has
been successfully managed” with Tylenol #3 and concluded
“we will continue his Tylenol #3 … as ordered on 9/20/16 x
4 See generally R.57-1.
5 R.42-3 at 36.
6 Id.
No. 19-1012 5
7
30 days.” In a subsequent explanation of her decision, NP
Bonson stated that several factors led her to choose to con-
tinue with Tylenol #3 rather than the stronger opioid. She
noted that Mr. Lockett’s chronic symptoms had been man-
aged successfully on the weaker drug prior to the crisis, that
the stronger drug carried additional concerns for substance
abuse, and that, in any event, long-term oxycodone use re-
quired approval from a WDOC committee, a process that
would have taken time. Finally, she believed that the rec-
ommended dose itself was very high and, although appro-
priate to treat crisis pain, was not indicated for Mr. Lockett’s
chronic pain.
Two days after his return to WSPF, Mr. Lockett filed a
health services request. He stated that he was in constant
pain and asked why he was not receiving the medication
prescribed by the emergency room physician. Nurse Edge
responded to his request by noting that he was receiving
pain medication, although it was the Tylenol #3 he had re-
ceived in the prior month, not the oxycodone recommended
by the external physician. Mr. Lockett responded on October
6 with an administrative complaint. He claimed that NP
8
Bonson was denying him “the correct medication.” His
complaint was rejected.
Just two days later, on October 8 and 9, Mr. Lockett re-
fused his doses of Tylenol #3 during medication pass. Alt-
hough the nurse “educated [him] about [the] importance of
pain control and taking pain medication on [a] regular ba-
7 Id.
8 R.35-2 at 5.
6 No. 19-1012
sis,” Mr. Lockett “reported he just didn’t need the medica-
9
tion at that time.”
On November 11, Mr. Lockett did not receive his medica-
tion during two of his four daily medication passes. Four
days later, he filed an administrative complaint against
Nurse Edge for failing to deliver the medication. He claimed
that he had asked WSPF staff to call for the medication, but
because the call was not received until after the second
missed pass, Nurse Edge informed him that he would have
to wait for the third pass to receive the medication. After in-
vestigation, his complaint was dismissed. Mr. Lockett con-
tends that he took a timely appeal of this dismissal by plac-
ing the appeal in an outgoing box, but also admits that he
never received a receipt or a response. The record contains
no copy of Mr. Lockett’s appeal, and, according to the
WDOC complaint examiner, the WDOC has no record of
10
having received it.
On November 17, Mr. Lockett requested to be seen by a
nurse. During that visit, he reported “unbearable” pain and
11
that the pain medication was not doing anything. The
nurse documented that Mr. Lockett declined his pain medi-
cation because it was ineffective. He was sent to the emer-
gency room and treated. When he returned two days later,
another WSPF nurse, Bethel, documented the treating physi-
cian’s medication order for APAP, another form of aceta-
9 R.42-3 at 17.
10 R.35 at 3.
11 R.42-3 at 15.
No. 19-1012 7
minophen, on a short-term basis, and a long-term change
from acetaminophen with codeine to one with hydrocodone.
NP Bonson countersigned, accepting the recommendation.
She prescribed the new medication as recommended by the
physician first for a one-week period, and then for a
one-month period. Her follow-up notes indicate that
Mr. Lockett reported that it was working well.
Just days later, however, he ran out of his supply of the
hydrocodone. When he called for pain medication for the
night, he was given tramadol by a separate on-call doctor,
and a subsequent doctor switched him to Tylenol #3. When
he filed a health services request with NP Bonson, she indi-
cated that she had put in an order for his hydrocodone. Two
weeks later, anticipating that he would run out over a holi-
day, he again filed a health services request with NP Bonson,
who replied the same day that it would be refilled because
12
she did not “want [him] to run out either!”
B.
On May 17, 2017, Mr. Lockett initiated this action by fil-
ing a pro se complaint under 42 U.S.C. § 1983 against NP
Bonson and Nurse Edge. He alleged that the defendants had
acted with deliberate indifference in treating his sickle cell
disease, in violation of the Eighth Amendment. His specific
allegations with respect to NP Bonson included her failure to
provide him with medication for several days from Septem-
ber 26 to October 3, 2016, and her decision to continue him
with his regimen of Tylenol #3 following his October 3, 2016
hospitalization, when his treating physician recommended a
12 Id. at 115.
8 No. 19-1012
stronger opioid. With respect to Nurse Edge, his allegations
concerned the day on which he received no medication at
the first two pass times and then had to wait until the next
pass time to receive the medication.
Following discovery, the defendants moved for summary
judgment, which the district court granted in full. Although
it was undisputed that Mr. Lockett’s sickle cell disease is a
serious medical condition as contemplated by the Eighth
Amendment, the court concluded that the evidence did not
establish deliberate indifference on the part of either NP
Bonson or Nurse Edge.
Addressing the claim, the court found that there was no
evidence that NP Bonson was aware that Mr. Lockett had
not been receiving his medication over the several-day peri-
od in September and October 2016. Therefore, she could not
have known of a substantial risk of serious harm. With re-
spect to her October 4, 2016 decision to continue treating
Mr. Lockett with Tylenol #3, instead of the oxycodone,
which had been recommended by the emergency room phy-
sician, the court determined that her decision “was a justi-
fied exercise of professional judgment given the information
13
before her.” The court found that NP Bonson “based her
decision on Lockett’s medical record and history, her con-
cern about opioid use and substance abuse in prison, the
high amount of Oxycodone prescribed, and the fact that pri-
or to the October incident, Lockett’s long-term pain ap-
peared to have been successfully managed by the Tylenol
13 R.63 at 10.
No. 19-1012 9
14
#3.” The court also found that Mr. Lockett’s assertion that
he had notified NP Bonson on September 7, 2016, that the
Tylenol #3 was not helping his pain was “not supported by
15
the record.” Further, even if this allegation were true, her
decision did not constitute deliberate indifference because
Mr. Lockett had made no other complaint over a month-long
period, “indicating that the Tylenol #3 was sufficient to treat
16
his long-term pain.” Therefore, the court ruled, NP Bonson
was entitled to summary judgment.
Turning to Mr. Lockett’s claim against Nurse Edge and
her delay in providing him with medication in November
2016, the district court found that he had failed to exhaust
his administrative remedies within the WDOC. Mr. Lockett
asserted that he had filed a timely appeal from the Review-
ing Authority’s decision but never had received a response.
However, he presented no evidence of the Corrections
Complaint Examiner’s receipt of his appeal. Because the
WDOC rules provide that the Corrections Complaint Exam-
iner “shall, within 5 working days after receiving an appeal,
issue a written receipt of the appeal to the inmate,” Wis.
Admin. Code DOC § 310.13(4), the court ruled that,
“[a]bsent a receipt, … an inmate’s administrative remedies
17
are not considered exhausted.” The court therefore granted
summary judgment to Nurse Edge without considering the
14 Id.
15 Id.
16 Id.
17 Id. at 14–15.
10 No. 19-1012
merits of Mr. Lockett’s Eighth Amendment claim against
her.
II.
DISCUSSION
We review the district court’s decision to grant the de-
fendants’ motion for summary judgment de novo. Witham v.
Whiting Corp., 975 F.2d 1342, 1345 (7th Cir. 1992). We view
the record and draw all reasonable inferences from it in the
light most favorable to Mr. Lockett, the nonmoving party.
Dunigan ex rel. Nyman v. Winnebago Cty., 165 F.3d 587, 590
(7th Cir. 1999). We will affirm the judgment if there is no
genuine dispute of material fact and if the defendants are
entitled to judgment as a matter of law. Bailor v. Salvation
Army, 51 F.3d 678, 681 (7th Cir. 1995).
Mr. Lockett challenges the district court’s resolution of
only two of his Eighth Amendment claims. First, with re-
spect to NP Bonson, he contends that the district court erred
in concluding that, as a matter of law, she did not act with
deliberate indifference to his medical needs in rejecting the
physician’s recommendation to increase his pain medication
and in choosing instead to continue him on his prior course
of Tylenol #3. With respect to Nurse Edge, Mr. Lockett main-
tains that the district court erred in concluding that he had
18
failed to exhaust his administrative remedies. We address
each of these contentions in turn.
18 Mr. Lockett has abandoned any argument concerning the failure to
provide him with medication in late September and early October 2016,
prior to his hospitalization.
No. 19-1012 11
A.
We begin with the claim that NP Bonson acted with de-
liberate indifference in treating Mr. Lockett’s pain when he
returned from the emergency room on October 4, 2016.
The Eighth Amendment’s prohibition on cruel and unu-
sual punishment “protects prisoners from prison conditions
that cause ‘the wanton and unnecessary infliction of pain,’”
including “grossly inadequate medical care.” Pyles v. Fahim,
771 F.3d 403, 408 (7th Cir. 2014) (quoting Rhodes v. Chapman,
452 U.S. 337, 347 (1981)). To prevail on a claim based on defi-
cient medical care, the plaintiff “must demonstrate two ele-
ments: 1) an objectively serious medical condition; and 2) an
official’s deliberate indifference to that condition.” Arnett v.
Webster, 658 F.3d 742, 750 (7th Cir. 2011). The first element,
an objectively serious medical condition, is satisfied if “a
physician has diagnosed it as requiring treatment, or the
need for treatment would be obvious to a layperson.” Pyles,
771 F.3d at 409; see also Gutierrez v. Peters, 111 F.3d 1364,
1370–73 (7th Cir. 1997). The district court found, and the par-
ties do not dispute, that Mr. Lockett’s sickle cell disease is a
serious medical condition. Therefore, we focus on the second
element: whether NP Bonson acted with deliberate indiffer-
ence.
“Deliberate indifference is a subjective standard.” Arnett,
658 F.3d at 751. To be found liable under the Eighth
Amendment, a prison official “must both be aware of facts
from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the infer-
ence.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Pet-
ties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) (en banc)
(“[T]he Supreme Court has instructed us that a plaintiff must
12 No. 19-1012
provide evidence that an official actually knew of and disre-
garded a substantial risk of harm.”). Whether a prison offi-
cial acted with the requisite state of mind “is a question of
fact subject to demonstration in the usual ways, including
inference from circumstantial evidence.” Farmer, 511 U.S. at
842. In making this assessment, “we must examine the totali-
ty of an inmate’s medical care.” Dunigan, 165 F.3d at 591
(quoting Gutierrez, 111 F.3d at 1375). The standard is a rigor-
ous one. To establish the requisite mental state, our cases
make clear that “[s]omething more than negligence or even
malpractice is required.” Pyles, 771 F.3d at 409; see also Estelle
v. Gamble, 429 U.S. 97, 106 (1976) (“Medical malpractice does
not become a constitutional violation merely because the vic-
tim is a prisoner.”).
Within the universe of deliberate indifference cases is a
narrower category when a prisoner alleges not that his con-
dition was ignored entirely, but that he received constitu-
tionally deficient treatment for the condition. We have clari-
fied that these cases are better framed “not [as] deliberate
indifference to a serious medical need,” but as a challenge to
“a deliberate decision by a doctor to treat a medical need in a
particular manner.” Snipes v. DeTella, 95 F.3d 586, 591 (7th
Cir. 1996). In such cases, we defer to a medical professional’s
treatment decision “unless ‘no minimally competent profes-
sional would have so responded under those circumstanc-
es.’” Pyles, 771 F.3d at 409 (quoting Sain v. Wood, 512 F.3d
886, 894–95 (7th Cir. 2008)). A “[d]isagreement between a
prisoner and his doctor, or even between two medical pro-
fessionals, about the proper course of treatment generally is
insufficient, by itself, to establish an Eighth Amendment vio-
lation.” Id. Our standard reflects the reality that there is no
single “‘proper’ way to practice medicine in a prison, but ra-
No. 19-1012 13
ther a range of acceptable courses based on prevailing
standards in the field.” Jackson v. Kotter, 541 F.3d 688, 697
(7th Cir. 2008). Nevertheless,
“where evidence exists that the defendant[]
knew better than to make the medical deci-
sion[] that [he] did,” then summary judgment
is improper and the claim should be submitted
to a jury. State-of-mind evidence sufficient to
create a jury question might include the obvi-
ousness of the risk from a particular course of
medical treatment; the defendant’s persistence
in “a course of treatment known to be ineffec-
tive”; or proof that the defendant’s treatment
decision departed so radically from “accepted
professional judgment, practice, or standards”
that a jury may reasonably infer that the deci-
sion was not based on professional judgment.
Whiting v. Wexford Health Sources, Inc., 839 F.3d 658, 662–63
(7th Cir. 2016) (alterations in original) (citations omitted)
(quoting Petties, 836 F.3d at 730–31). A medical professional’s
choice to pursue an “‘easier and less efficacious treatment’”
or “a non-trivial delay in treating serious pain” may also
support a claim of deliberate indifference. Berry v. Peterman,
604 F.3d 435, 441 (7th Cir. 2010) (quoting Estelle, 429 U.S. at
104 & n.10).
We routinely have rejected claims, however, where a
prisoner’s claim is based on a preference for one medication
over another unless there is evidence of a substantial depar-
ture from acceptable professional judgment. Pointedly, in
Burton v. Downey, 805 F.3d 776, 785–86 (7th Cir. 2015), we
considered a claim by a detainee who had requested narcotic
14 No. 19-1012
medication to address his pain after surgery. Prison staff
prescribed a non-narcotic pain medication, even though a
primary care physician outside of prison previously had
prescribed a narcotic. Prison staff noted that the synthetic
opiate that they administered had “less addictive potential”
than the primary care physician’s stronger method of pain
relief. Id. at 786. The fact that the physician outside of prison
had prescribed another medication merely demonstrated
“that another doctor would have followed a different course
of treatment,” which was “insufficient to sustain a deliberate
indifference claim.” Id. To meet such a standard, we reiterat-
ed, required evidence of a “substantial departure from ac-
cepted professional judgment.” Id. at 785 (quoting Jackson,
541 F.3d at 697). The decision to prescribe non-narcotic pain
medication was within the bounds of professional judgment.
Id. at 785–86; see also Snipes, 95 F.3d at 591 (noting that “[t]he
administration of pain killers requires medical expertise and
judgment” and that their use “entails risks that doctors must
consider in light of the benefits”).
The record before us demonstrates that NP Bonson em-
ployed professional judgment in her treatment of Mr. Lock-
ett’s sickle cell disease, both in the long term and in her spe-
cific response to his October 2016 sickle cell crisis. As re-
quired by WSPF protocol, the prison sent Mr. Lockett to the
local emergency room for treatment of a sickle cell crisis.
Although the external treating physician recommended that
Mr. Lockett take oxycodone, NP Bonson elected to use a dif-
ferent pharmaceutical. She noted that Mr. Lockett “[h]ad [a]
one time dose [of] Oxycodone 20mg from Hospital,” but she
discontinued that medication and returned him to his prior
No. 19-1012 15
19
course of Tylenol #3. She noted in the chart that Tylenol #3
had successfully managed his chronic pain.
Mr. Lockett submits that NP Bonson’s decision to “over-
rule[]” the non-prison doctor and to deny him the medica-
tion that he requested “displayed knowing disregard for his
20
suffering.” It is firmly established, however, that mere
“[d]isagreement between a prisoner and his doctor, or even
between two medical professionals, about the proper course
of treatment generally is insufficient, by itself, to establish an
Eighth Amendment violation.” Pyles, 771 F.3d at 409; see also
Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003); Snipes,
95 F.3d at 591. With respect to pain control specifically, our
cases recognize that these are matters that require the appli-
cation of “medical expertise and judgment.” Snipes, 95 F.3d
at 591. All we have here is NP Bonson’s “deliberate deci-
sion,” based on a professional assessment, to treat Mr. Lock-
ett’s sickle cell pain using Tylenol #3 instead of oxycodone.
Id. That decision cannot support an Eighth Amendment vio-
lation. As in Burton, the record, taken as a whole, demon-
strates that NP Bonson clearly exercised her medical judg-
ment in making her treatment decision. Far from being indif-
ferent to his pain, NP Bonson had increased the strength of
his pain medication during the month before his sickle cell
crisis. In the weeks before the crisis, there were occasions
when Mr. Lockett refused his medication as unnecessary
and other occasions where he did not receive it and did not
file a complaint or otherwise notify her. His medical records
19 R.42-3 at 36.
20 Appellant’s Br. 14–15.
16 No. 19-1012
indicated that Tylenol #3 was sufficient to handle his chron-
21
ic, non-crisis sickle cell pain. NP Bonson also considered
Mr. Lockett’s medical history including his own history of
substance abuse, the risks associated with opioid use and
substance abuse in prison, and the high amount of oxyco-
done prescribed.
Moreover, the totality of NP Bonson’s care demonstrates
affirmatively that she was “continually solicitous of” and
“responsive to” Mr. Lockett’s medical needs. Dunigan, 165
F.3d at 592. She promptly responded to Mr. Lockett’s health
services requests and timely filled and renewed his prescrip-
tions during the relevant time frame. The district court cor-
rectly concluded that no reasonable jury could have found
that NP Bonson acted with deliberate indifference in treating
Mr. Lockett’s sickle cell disease. The district court properly
granted summary judgment in her favor.
B.
Mr. Lockett also asks that we review his contention that
Nurse Edge violated the Eighth Amendment when she told
him that he would have to wait until the next pass to receive
his medication, even though he had not received it on the
21 Mr. Lockett maintains that he told the health services unit that Tylenol
#3 was insufficient to manage his pain on September 7, 2016. That claim
is undercut by the medical records of that visit, which do not discuss
pain management at all. However, even if Mr. Lockett did make that
claim on September 7, the fact remains that he demanded no other pain
medication in the month of September and did not even complain when
doses were not received. In short, NP Bonson’s belief that Tylenol #3 was
working to control chronic pain was not unreasonable given Mr. Lock-
ett’s own undisputed course of conduct at the time.
No. 19-1012 17
two earlier consecutive passes. The district court entered
summary judgment for Nurse Edge on this claim, conclud-
ing that Mr. Lockett had failed to exhaust his administrative
remedies. Mr. Lockett submits he did everything required
under the WDOC’s rules to exhaust those remedies and
therefore had the right to present them to the district court.
The Prison Litigation Reform Act provides that “[n]o ac-
tion shall be brought with respect to prison conditions” un-
der 42 U.S.C. § 1983, “or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhaust-
ed.” 42 U.S.C. § 1997e(a). This provision requires that, “[t]o
exhaust remedies, a prisoner must file complaints and ap-
peals in the place, and at the time, the prison’s administra-
tive rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025
(7th Cir. 2002). We “take[] a strict compliance approach to
exhaustion.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.
2006). Failure to exhaust “is an affirmative defense, and the
burden of proof is on the defendant[].” Id.
There is no dispute that Mr. Lockett initially took the re-
quired steps under the Wisconsin Administrative Code to
file his complaint. The dispute centers on whether Mr. Lock-
ett took an appeal from the denial of that initial complaint.
22
Mr. Lockett claims that he did; in response, Nurse Edge
provided the affidavit of Ellen Ray, an Institution Complaint
Examiner and Litigation Coordinator at WSPF, who stated
that the facility has no record that Mr. Lockett ever appealed
the denial of this complaint against Nurse Edge. Ray includ-
22 R.37 (Lockett Aff.).
18 No. 19-1012
ed with her declaration the complaint packet; that packet in-
cludes no appeal.
In Dole v. Chandler, 438 F.3d 804 (7th Cir. 2006), we con-
sidered whether an Illinois prisoner had exhausted his ad-
ministrative remedies. Dole claimed to have filed a com-
plaint using the appropriate prison guidelines and to have
retained a full handwritten copy for himself to guard against
the consequences of the original being lost. He placed his
complaint in outgoing mail, and the parties did not dispute
that it was picked up by a guard and should have been con-
sidered mailed. Dole received no response to his complaint,
however, and by the time he inquired, the deadline for filing
had passed. Dole asked us to deem his claim exhausted, alt-
hough prison authorities had no record of having received it,
let alone of having reviewed it on the merits. We concluded
that, under the circumstances, Dole “had done all that was
reasonable to exhaust his administrative remedies.” Id. at
812. In our opinion, we addressed the district court’s concern
that siding with Dole meant that “all prison inmates could
henceforth avoid the PLRA’s exhaustion requirement simply
by claiming that they mailed a letter.” Id. We observed,
however, that Dole had produced undisputed evidence that
his complaint had been taken by a prison guard in due
course. Id.; see also id. at 811. Furthermore, we noted that “fu-
ture false claims can be minimized by setting up a receipt
system for prison mail.” Id. at 812.
No. 19-1012 19
23
Wisconsin has such a system. The applicable regula-
tions mandate that the prisoner receive a receipt for a com-
plaint: A Corrections Complaint Examiner “shall, within 5
working days after receiving an appeal, issue a written re-
ceipt of the appeal to the inmate.” Wis. Admin. Code DOC
§ 310.13(4). This receipt plays a very significant role in the
complaint process and, indeed, in Mr. Lockett’s ability to
preserve his right to initiate litigation in the district court if
the prison system fails to resolve the complaint within the
time prescribed by the regulations. The regulations specifi-
cally provide that if a prisoner does not receive an answer to
his appeal within 45 days of his receiving the receipt of fil-
23 Under the applicable rules, Wis. Admin. Code DOC § 310 (2016), the
process begins when an inmate files a complaint “within 14 calendar
days after the occurrence giving rise to the complaint.” Id. § 310.09(6). A
complaint is “filed” when it is “deposit[ed] … in a locked box designated
for complaints” or “submitt[ed] … to the office of the ICE [Institution
Complaint Examiner] via institution mail.” Id. § 310.09(8). The Rules
provide that ICE staff shall collect complaints and “assign each com-
plaint a file number, classification code, and date for purposes of identi-
fication.” Id. § 310.11(1), (2).
Following a review and investigation of the complaint, the ICE either
rejects the complaint or sends a recommendation for further action to the
Reviewing Authority. See id. § 310.11(11). The Reviewing Authority can
dismiss, affirm, or return the complaint to the ICE for further investiga-
tion. See id. § 310.12. To appeal the Reviewing Authority’s decision, a
complainant must file a written request for review “within 10 calendar
days after the date of the decision.” Id. § 310.13(1). A Corrections Com-
plaint Examiner “shall, within 5 working days after receiving an appeal,
issue a written receipt of the appeal to the inmate.” Id. § 310.13(4).
20 No. 19-1012
ing, he should deem the appeal denied and is free to initiate
24
suit in the district court.
As we emphasized in Kaba v. Stepp, 458 F.3d 678, 685 (7th
Cir. 2006), when prison officials deny a prisoner the tools
necessary to utilize an established complaint system, they
place themselves in a position to exploit, for their own ad-
vantage, the exhaustion requirement of 42 U.S.C. § 1997e(a).
Depriving a prisoner of such an important document is cer-
tainly the sort of deprivation that justifies his use of the
complaint system. The receipt permits him to file in federal
court if the prison system ignores his administrative appeal.
There is certainly nothing in WDOC’s complaint procedure
that precludes such a use of the complaint procedure. In-
deed, the regulations say explicitly that a prisoner must have
an opportunity to seek information about the operation of
25
the complaint system.
24 The timeline for resolution of appeals is as follows: Within “35 work-
ing days of receipt of the appeal,” the Corrections Complaint Examiner
shall recommend a decision to the Secretary of the WDOC. Id.
§ 310.13(6). The Secretary shall make a decision within “10 working days
following receipt” of that recommendation. Id. § 310.14(1). “If the inmate
does not receive the [S]ecretary’s written decision within 45 working
days of the [Corrections Complaint Examiner]’s acknowledgment of re-
ceipt of the appeal, the inmate shall consider the administrative remedies
to be exhausted.” Id. § 310.14(3). The purpose of these rules is, inter alia,
to allow inmates to raise complaints “in an orderly fashion,” to “provide
the department an early opportunity to decide the issue before an inmate
commences a civil action,” and to “encourage communication between
inmates and staff.” Id. § 310.01(2).
25 Wis. Admin. Code DOC § 310.06.
No. 19-1012 21
Reading the regulations in their totality, we must con-
clude that Mr. Lockett was obliged to regard the absence of
receipt as a red flag; he should have undertaken, through the
complaint procedure, an inquiry to ascertain why he had not
received this important document. Having failed to make
that inquiry, he may not now counter evidence that the pris-
on did not receive his administrative appeal with a bald as-
26
sertion of a timely filing.
We also note that requiring a prisoner in Mr. Lockett’s
position to employ the complaint system to ascertain the fate
of his appeal and the receipt of filing is compatible with the
primary purpose of the exhaustion doctrine: it alerts the
prison officials to the existence of the problem and affords
an opportunity to repair the injury. Turley v. Rednour, 729
F.3d 645, 649 (7th Cir. 2013). Moreover, it is a practice known
to our case law. Cf. Brengettcy v. Horton, 423 F.3d 674, 678,
682 (7th Cir. 2005) (allowing a prisoner to file an action in the
district court after seeking, through the prison grievance sys-
tem, an explanation for an earlier grievance to which he had
never received a reply); Lewis v. Washington, 300 F.3d 829,
831–32 (7th Cir. 2002) (plaintiff followed up with Internal
Affairs Office and with the warden and filed multiple griev-
26 See R.63 at 14–15. We see no disagreement between our decision today
and the decision of our colleagues in the Fifth Circuit in Cowart v. Erwin,
837 F.3d 444, 452 (5th Cir. 2016). In the Fifth Circuit’s view, a prisoner
had no obligation to “object in some way if they do not receive a timely
interim reply” where the jail’s policies “afforded Cowart no ‘next step’
once the response period for an interim reply had lapsed, but pending
his receipt of a written answer with findings.” Id. As we have pointed
out in the text, the Wisconsin regulations clearly give the prisoner an
established path for inquiry.
22 No. 19-1012
ances renewing his claims in the face of unanswered re-
quests).
To be sure, the burden of proof on the exhaustion issue is
on the defendants. Kaba, 458 F.3d at 681. Once the defend-
ants asserted that defense through the affidavit and attached
documentation of Ray, the Complaint Examiner, Mr. Lockett
had to introduce sufficient evidence to demonstrate that
there was a genuine issue of triable fact with respect to that
defense. His own affidavit, while relevant and probative on
the issues of whether he ever filed an appeal or received a
receipt, is insufficient to establish that he ever exhausted the
opportunity to resolve the matter within the prison system
by making a reasonable inquiry into the reason for the ab-
sence of a receipt. In Wisconsin, the regulations clearly gave
him an opportunity to do so, but there is no evidence that he
availed himself of this tool.
Absent evidence that he attempted to avail himself of
such a reasonable course, he has not fulfilled his obligation
to support his affidavit’s assertion that he filed the appeal.
He does not have the receipt, and he has made no assertion
that he ever made a reasonable inquiry as to why he never
received one. Since the regulations clearly give him the path
for making such an inquiry, he has not exhausted the availa-
ble remedies. The district court committed no error in enter-
ing summary judgment to Nurse Edge on this count.
Conclusion
Because the district court committed no error in resolving
the deliberate indifference claims Mr. Lockett brought
against NP Bonson and Nurse Edge, we affirm its judgment.
AFFIRM