Jeremy Lockett v. Tanya Bonson

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