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Flakes v. Wall

United States District Court, W.D. Wisconsin

August 18, 2016

JOEL SCOTT FLAKES, Plaintiff
v.
EDWARD F. WALL, et al., Defendants.

          OPINION AND ORDER

          STEPHEN L. CROCKER, Magistrate Judge

         In this pro se lawsuit, plaintiff Joel Scott Flakes is proceeding on claims that prison staff at Stanley Correctional Institution violated his Eighth and Fourteenth Amendment rights by revealing his sexual orientation to other inmates, disregarding serious risks of harm against him and discriminating against him because he is homosexual. Now before the court is defendants’ motion for summary judgment on the ground that plaintiff failed to exhaust his administrative remedies prior to filing suit, as required by 42 U.S.C. § 1997(e)(a). Dkt. 22. Because the undisputed facts establish that Flakes failed to properly exhaust his administrative remedies before filing suit, defendants’ motion for summary judgment will be granted.

         OPINION

         I. Exhaustion Requirement.

         Under 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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 exhausted.” Generally, to comply with § 1997e(a), a prisoner must “properly take each step within the administrative process, ” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). This includes following instructions for filing the initial grievance, Cannon v. Washington, 418 F.3d 714, 718 (7th Cir. 2005), as well as filing all necessary appeals, Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005), “in the place, and at the time, the prison's administrative rules require.” Pozo, 286 F.3d at 1025.

         The purpose of these requirements is to give the prison administrators a fair opportunity to resolve the grievance without litigation. Woodford v. Ngo, 548 U.S. 81, 88-89 (2006). If a prisoner fails to exhaust his administrative remedies before filing his lawsuit, then the court must dismiss the case. Perez v. Wisconsin Dept. of Corr., 182 F.3d 532, 535 (7th Cir. 1999). Because exhaustion is an affirmative defense, defendants bear the burden of establishing that plaintiff failed to exhaust. Jones v. Bock, 549 U.S. 199, 216 (2007).

         To exhaust administrative remedies within Wisconsin’s Department of Corrections, an inmate must follow the inmate complaint review process set forth in the Wisconsin Administrative Code ch. DOC 310. Under these provisions, a prisoner starts the complaint process by filing an inmate complaint with the institution complaint examiner within 14 days after the occurrence giving rise to the complaint. Wis. Admin. Code § DOC 310.09. Complaints must: (1) be typed or written legibly on forms supplied for that purpose; (2) be signed by the inmate; (3) not contain obscene, profane, abusive or threatening language; (4) be filed under the name by which the inmate was committed to the DOC; and (5) contain only one issue that is clearly identified. Id. § DOC 310.09(1). If the complaint fails to meet any of these requirements, then the inmate complaint examiner must return the complaint without processing it, which would mean that the complaint is not assigned a complaint number. Id. § DOC 310.09(3). The inmate complaint examiner also may return a complaint without processing it, and direct the inmate to attempt to resolve the issue with a staff member first. Id. § DOC 310.09(4). Under the DOC regulations, there is no mechanism for an inmate to appeal a complaint that has been returned without processing for failure to comply with the requirements of § 310.09(1).

         If the inmate has complied with the requirements in § 310.09(1), then the inmate complaint examiner may investigate the inmate complaint, “reject” it for one of several reasons set forth in § 310.11(5), recommend a disposition to the appropriate reviewing authority (the warden or the warden’s designee), or direct the inmate to attempt to resolve the complaint informally. Id. §§ 310.07(2), 310.09(4), 310.11, 310.12. If the institution complaint examiner makes a recommendation that the complaint be granted or dismissed on its merits, then the appropriate reviewing authority may dismiss, affirm or return the complaint for further investigation. Id. § 310.12. If an inmate disagrees with the decision of the reviewing authority, then he may appeal. Id. § 310.13. If the institution complaint examiner rejects a grievance for procedural reasons without addressing the merits, an inmate may appeal the rejection. Id. § 310.11(6).

         II. Flakes’ Inmate Complaints.

         This court granted Flakes leave to proceed on his claims that defendants Richardson, Stout, Glen and Szymanski violated his rights to be free from cruel and unusual punishment and equal protection by: (1) revealing his sexual orientation to other inmates despite knowing that this exposed him to a risk of harm; (2) refusing to respond to his concerns about his cellmate; (3) offering segregation as the only alternative housing option; and (4) permitting other inmates to refuse to be housed with him. Defendants have submitted plaintiff’s complete inmate complaint history report (dkt. 24-1), which shows that plaintiff filed two inmate grievances relevant to his claims. Defendants contend, however, that plaintiff failed to exhaust his administrative remedies because both of plaintiff’s grievances were returned to him without being processed because they contained multiple issues that were not clearly identified, in violation of Wis. Admin. Code § DOC 310.09(1)(e). According to defendants, plaintiff never corrected the problems with his inmate complaints and thus, never properly filed any inmate complaints raising the claims on which he has been allowed to proceed in this case. The undisputed facts support defendants’ contentions.

         A. Plaintiff’s November 2014 Inmate Complaint.

         Plaintiff filed an inmate complaint on November 17, 2014, in which he alleged that Stout, Szymanski and Glenn had created an “unsafe” environment and were discriminating against him and “a certain class of inmates.” (Dkt. 24-2 at 2-5.) Plaintiff alleged that these defendants had created a “poisonous atmosphere on the unit” by “disparaging” and “purposely outing this class” and treating them with disdain. Plaintiff, however, did not provide any specific examples of discriminatory treatment, and he did not identify the “class of inmates” to which he was referring. In the same complaint, plaintiff also alleged that he had been deliberately housed with cellmates that would cause him conflict. Finally, he stated that he was in a wheelchair and alleged discrimination under Title II of the Americans with Disabilities Act.

         The next day, on November 18, 2014, the inmate complaint examiner’s office returned the complaint to plaintiff without ...


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