Richard J. Steiskal, Jr. v. Michael Lewitzke

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 17, 2014*
Decided January 24, 2014
Before
RICHARD D. CUDAHY, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 13-2691
RICHARD J. STEISKAL, JR.,
Plaintiff-Appellant,
v.
MICHAEL LEWITZKE, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 12-C-1241
William C. Griesbach,
Chief Judge.
O R D E R
Richard Steiskal, an inmate at Racine Correctional Institution, suffers from Bell’s
palsy, a condition that was diagnosed soon after one of the defendants, a former prison
dentist, allegedly failed to treat an infection at the site of an extracted tooth. In this suit
under 42 U.S.C. § 1983, Steiskal principally claims that the dentist and other prison staff
were deliberately indifferent to his serious medical needs, in violation of the Eighth
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
After examining the parties’ 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)(C).

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Amendment. The district court concluded that Steiskal’s failure to exhaust his
administrative remedies before suing was undisputed, see 42 U.S.C. § 1997e(a), and
granted summary judgment for the defendants. We affirm that ruling but modify the
dismissal to be without prejudice.
Except as noted, the principal facts are not disputed. Steiskal’s tooth was
extracted in June 2012. His medical records indicate that on the day before the
procedure the dentist had detected an infection, but Steiskal was given an oral antibiotic
only before but not after the extraction. He remained in pain for a week before
complaining to the dentist that the foul discharge he had noticed in his mouth before
the procedure was still present at the extraction site. After a brief look, however, the
dentist sent Steiskal away without treatment and told him to return in a week or two if
his symptoms did not abate. Nine days later Steiskal was rushed by ambulance to the
emergency room after experiencing symptoms that prison staff attributed to a probable
stroke—blurred vision, facial paralysis, and muscle weakness.
At the hospital Steiskal was treated with antibiotic, antiviral, and steroidal drugs.
A physician diagnosed him with Bell’s palsy and said that the condition could have
been caused by a surgical procedure or infection. Bell’s palsy results from disruption,
possibly from infection or trauma, to the facial nerves controlling the muscles on each
side of the face. Symptoms, which can include twitching and even paralysis, appear
suddenly and can peak within 48 hours. Improvement typically occurs within two
weeks without treatment, but if symptoms persist, a course of treatment may prevent
lasting damage, especially for palsy caused by infection. Most patients recover
completely within six months, but symptoms may become permanent in those with
significant nerve damage. Bell’s Palsy Fact Sheet (2012), NAT’L INST. OF NEUROLOGICAL
DISORDERS & STROKE, available at http://www.ninds.nih.gov/ disorders/bells/
detail_bells.htm.
After his release from the hospital, Steiskal submitted on July 5 a prison
grievance recounting that the onset of his Bell’s palsy had occurred about a week after
the dentist ignored the infection at the extraction site. He received that grievance back
unprocessed on July 11, the day after it was received by the Institution Complaint
Examiner (or “ICE”). Accompanying the grievance was a July 10 letter from another of
the defendants, an assistant to the ICE, telling Steiskal that his submission would not be
“accepted” until he followed the “chain of command” and attempted to “resolve the
issue by contacting Mr. Montagna, Dental Supervisor.” The letter further advised that,
“[i]f you have attempted to resolve the issue through the person(s) indicated above and

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No. 13-2691 Page 3
have not been able to do so, you may resubmit your complaint (with all pertinent
documentation) for processing by this office within 14 calendar days.”
Steiskal did as instructed and on July 14 submitted a Dental Service Request
asking that Montagna read an attached letter, which relates Steiskal’s belief that his
Bell’s palsy resulted from the failure to treat his infection. On July 18, having received
no reply, Steiskal submitted a second Dental Service Request with a similar letter
addressed to Montagna. That same day Steiskal’s first Dental Service Request was
returned, and the second was returned the following day. Both included a note saying
that Montagna no longer worked at the prison and that his letters had been “forwarded
to Dr. Barbara DeLap, Dental Director.” On July 19, with these replies in hand, Steiskal
submitted to the warden a form Request for Review of Rejected Complaint, which the
warden did not acknowledge and the defendants deny he received. Steiskal recounted
the substance of his July 5 grievance and asserted that it had been “denied” even though
minimal inquiry would have shown that the person he was told to consult did not work
at the prison. (Steiskal had not waited to hear from DeLap, another of the defendants,
but as far as this record shows, no one directly answered the letters intended for
Montagna that were forwarded to her.) The next day, July 20, Steiskal also wrote the
warden. He repeated his belief that his Bell’s palsy had resulted from the untreated
infection and asked that the warden intervene with the ICE. On July 25 (now 15 days
after his unprocessed grievance had been given back to Steiskal) a fourth defendant, an
assistant to the Health Services Manager, wrote Steiskal on the warden’s behalf. Her
letter, which was copied to the warden and DeLap, acknowledges Steiskal’s condition,
informs him that Bell’s palsy typically is a temporary condition, and advises that he
“follow up with the institution provider for any further plan of care needed.”
Steiskal was not satisfied with the results of this process, but what he did not do
was resubmit his grievance and documentation to the ICE as instructed when that
grievance was given back on July 11. Instead Steiskal filed this action five months later
in December 2012. In his verified complaint Steiskal recounts the events preceding his
hospitalization in June and adds that in late July he was sent to the hospital again
because, in addition to left facial paralysis, his Bell’s palsy was causing severe
headaches and a loss of feeling in his left arm and leg. During that visit, Steiskal
continued, the hospital physician had directed that he be seen by a neurologist, but the
prison medical staff did not comply until early September and in the interim gave him
nothing for his pain. The response of the prison medical staff, he added, was that he
would have to let the condition “take its course.”

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The defendants moved for summary judgment on the ground that Steiskal had
not exhausted his administrative remedies. Inmates in Wisconsin submit their
grievances to the ICE, who, as authorized by regulation, may “reject” a grievance for an
enumerated reason or “return” it without processing if it is not in the required form,
includes profanity or threats, or presents multiple issues. WIS. ADMIN. CODE
§§ DOC 310.07(1), (2)(b), DOC 310.09(1), (3), DOC 310.11(5); Johnson v. Meier, 842
F. Supp. 2d 1116, 1118 (E.D. Wis. 2012); Freeman v. Berge, 283 F. Supp. 2d 1009, 1013
(W.D. Wis. 2003); State ex rel. Grzelak v. Bertrand, 665 N.W.2d 244, 247 (Wis. 2003). The
defendants did not contend, however, that the ICE had “rejected” Steiskal’s grievance
or “returned” it for any of these reasons. Instead, they asserted that the ICE had
“returned”—but not “rejected”—the grievance “rather than accepting it for filing
because Steiskal was required to first attempt to resolve his grievance directly with the
dental services unit.” For this proposition the defendants cited exclusively to WIS.
ADMIN. CODE § DOC 310.09(4), which provides that, “[p]rior to accepting the complaint,
the ICE may direct the inmate to attempt to resolve the issue.” And though they
conceded that Steiskal had done what the ICE had asked by trying to contact Montagna,
the defendants noted that he did not resubmit his July 5 grievance along with the
documentation of his efforts. It follows, the defendants insisted, that Steiskal could not
have exhausted even the first level of the administrative process because the ICE never
had a grievance to consider.
The district court agreed with the defendants that Steiskal had not exhausted his
administrative remedies. The court accepted the defendants’ premise that
§ DOC 310.09(4) authorized the ICE to give back Steiskal’s unprocessed grievance in
order for him to attempt an informal resolution. That grievance counted for nothing, the
court assumed, and since Steiskal did not resubmit it to the ICE, he never even initiated
the grievance process. Moreover, the court added, Steiskal’s submissions to the warden
were no substitute for a grievance directed to the ICE.
In addition, although the defendants had never asserted that Steiskal’s complaint
fails to state a claim and did not question the merits of his Eighth Amendment claim at
summary judgment, the district judge offered his observation that Steiskal’s “complaint
would not survive” even if he had exhausted his administrative remedies. The judge
reasoned that Steiskal could not establish deliberate indifference because, when Steiskal
had returned complaining of continuing pain and an apparent infection, the dentist
examined him and exercised medical judgment in deciding “to not recommend
antibiotics and wait to see if Steiskal’s symptoms progressed.”

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On appeal Steiskal focuses on the merits of his Eighth Amendment claim,
explaining that more than a year after his tooth extraction and diagnosis of Bell’s palsy
he still is experiencing headaches, facial paralysis, and partial blindness. He must see his
neurologist at least four times annually, he explains, and may have to take medication
for the rest of his life. To the extent that Steiskal discusses the exhaustion issue, he
argues that his attempt to submit a grievance was thwarted when the ICE’s assistant
directed him to contact a person who no longer worked at the prison and then his two
letters were forwarded to someone else. His letter to the warden, he continues, should
excuse his noncompliance with the directive to resubmit his July 5 grievance. Moreover,
insists Steiskal, resubmitting the grievance to the ICE who already had misled him once
would have been a futile gesture.
To begin, we cannot uphold the dismissal of this lawsuit based on the premise,
articulated by the district court, that Steiskal’s complaint fails to state a claim of
deliberate indifference to a serious medical need. The defendants have never advanced
that contention, and neither do they ask us to affirm the judgment on this alternative
basis. In his verified complaint and in several other declarations, Steiskal asserts that on
his return visit a week after the extraction he told the dentist that he had been in pain
ever since the procedure and was tasting a foul discharge oozing from the space where
the tooth had been. The dentist sent him away, he says, after 10 to 20 seconds, without
an antibiotic for the infection or even medication for the pain. Nothing in the record
confirms the district court’s belief that the dentist exercised “medical judgment” after an
“examination.” Steiskal tells us that the dentist declared the extraction site to be free of
infection, but that declaration does not negate the ready inference that the dentist
ignored not only Steiskal’s pain but also the obvious signs of infection. Steiskal’s
medical records evidence that the dentist knew there was an infection before the
procedure, and the hospital physician’s drug regimen would indicate that the extraction
site still was infected when Steiskal was hospitalized. Whether or not Steiskal ultimately
could link the untreated infection to his Bell’s palsy, his complaint at least states a claim
for deliberate indifference to the infection and resulting pain. See Gomez v. Randle, 680
F.3d 859, 862, 865–66 (7th Cir. 2012); McGowan v. Hulick, 612 F.3d 636, 637–38, 641 (7th
Cir. 2010); Berry v. Peterman, 604 F.3d 435, 438–39, 441 (7th Cir. 2010); Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 819–20, 832 (7th Cir. 2009); Ralston v. McGovern,
167 F.3d 1160, 1162 (7th Cir. 1999). At this point Steiskal’s story is uncontested; the
district court did not even hear from the dentist, and indeed the defendants persuaded
the court to stay discovery pending a decision on their exhaustion defense.

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We do agree with the district court, however, that Steiskal’s failure to exhaust
his administrative remedies is undisputed. That said, we are skeptical of the defendants’
exclusive and uncritical reliance on DOC § 310.09(4). That section literally says that the
ICE may direct the inmate to attempt an informal resolution “[p]rior to accepting the
complaint,” but it does not direct the ICE to “return” a grievance until that step has
been completed. Neither does DOC § 310.09(4) say, as the defendants’ motion for
summary judgment asserts, that Steiskal had been “required” to address the matter
“directly with the dental services unit” even before he submitted his grievance to the
ICE on July 5. That reading implies that inmates must always attempt an informal
resolution before submitting any grievance.
In this appeal, however, Steiskal does not challenge the defendants’
understanding about how DOC § 310.09(4) is implemented, so we need not explore that
question further. Steiskal concedes that he never followed up with the ICE by
resubmitting his grievance or even providing the ICE with his documentation showing
that he followed the directive to attempt an informal workout. As the district court
correctly explained, before suing in federal court Steiskal was required to follow the
prison’s established grievance procedures. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548
U.S. 81, 85 (2006); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Thus he did not
exhaust, regardless of whether he was unsuccessful in trying to resolve the issue or
whether the ICE’s assistant gave him incorrect information. He submitted no evidence
that prison staff prevented him from resubmitting his grievance or that he was
incapable of doing so. See Dole, 438 F.3d at 809. His subjective belief that he was being
thwarted was insufficient to create a genuine issue of material fact. See Obreicht v.
Raemisch, 517 F.3d 489, 493 (7th Cir. 2008).
Steiskal’s futility argument, moreover, is a nonstarter. He asserts that the steps he
was told to take would have been futile because the administrative remedies available
through the prison’s grievance process would not resolve his concerns. The damage had
already been done, he argues, so following up with the dental supervisor would have
been a useless step, as would resubmitting his grievance to the ICE. But prisoners still
must exhaust even if they believe the process will be futile, Booth v. Churner, 532 U.S.
731, 741 n.6 (2001); Obreicht, 517 F.3d at 492, or cannot provide the desired relief, Porter
v. Nussle, 534 U.S. 516, 524 (2002); Booth, 532 U.S. at 738; Dole, 438 F.3d at 808–09. There
was a process available for Steiskal to exhaust, and he did not follow it.
Steiskal finally argues that the district court erred by rejecting his requests for
help in recruiting counsel. But Steiskal had no right to court-enlisted counsel for this

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federal civil suit, see Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); Johnson v.
Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006), and although he did attempt to secure
counsel, he points to nothing in the record establishing that he was prejudiced by the
denial, see Pruitt v. Mote, 503 F.3d 647, 659 (7th Cir. 2007) (en banc). His fatal
error—failing to resubmit his grievance—occurred months before he asked for a lawyer.
Accordingly, we uphold the dismissal of Steiskal’s lawsuit on the ground that he
failed to exhaust his administrative remedies. That dismissal should have been without
prejudice, Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004), and since the judgment does
not specify that it was, see FED. R. CIV. P. 41(b), we modify the judgment to be without
prejudice.
AFFIRMED as MODIFIED.

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