United States District Court, W.D. Wisconsin
STEVEN L. BALISTRERI, Plaintiff,
DR. GLEN HEINZL, et al., Defendants.
OPINION AND ORDER
STEPHEN L. CROCKER Magistrate Judge.
plaintiff Steven L. Balistreri is proceeding in this case on
claims that he was subjected to unconstitutional conditions
of confinement and received constitutionally inadequate
medical treatment while incarcerated by the Wisconsin
Department of Corrections. The defendants include several DOC
employees, as well as Dr. Glen Heinzl, who is not a state
1, 2016, both the state defendants and Dr. Heinzl moved for
partial summary judgment on the ground that some of
Balistreri's claims must be dismissed because he failed
to exhaust his prison administrative remedies before filing
this lawsuit. Balistreri's opposition materials were due
on July 22, 2016, but he did not file any opposition or other
response to defendants' motions. For the reasons
explained below, I will now grant defendants' motions and
dismiss Balistreri's unexhausted claims.
Exhaustion of Plaintiff's Federal Claims
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.
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, 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).
exhaust administrative remedies in Wisconsin, inmates must
follow the inmate complaint review process set forth in the
Wisconsin Administrative Code ch. DOC 310. Under these
provisions, prisoners start 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. 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, 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.
was granted leave to proceed on Eighth Amendment claims that
(1) defendants Kast and Mastricola subjected him to
unconstitutional conditions of confinement in 2013 at the Fox
Lake Correctional Institution; (2) defendants Bailey,
Skindelowski, Schubert, Stevie and Kast were deliberately
indifferent to his serious medical needs at Fox Lake in 2013;
and (3) defendants Seabul, Heinzl and Anderson were
deliberately indifferent to his serious medical needs at
Columbia Correctional Institution in late 2013. Defendants
submitted plaintiff's complete inmate complaint history
report (dkt. 42-1), which shows that plaintiff filed two
inmate grievances relevant to his claims.
October 22, 2013 Fox Lake Correctional Institution
filed a grievance at Fox Lake on October 22, 2013,
complaining that the toilet had overflowed in his segregation
cell and he had fallen as a result. See dkt. 42-2.
He alleged that he had complained to defendants Kast and
Mastricola about the toilet, but that they had done nothing
to help. He also alleged in the grievance that he was
seriously injured during the fall and told defendant Bailey
that he needed medical treatment, but that Bailey ignored
him. Plaintiff's grievance was dismissed and he appealed,
but the dismissal was affirmed.
concede that this grievance and plaintiff's subsequent
appeal were sufficient for plaintiff to exhaust his
administrative remedies with respect to his conditions of
confinement claim against defendants Kast and Mastricola and
his deliberate indifference claim against defendant Bailey
stemming from Bailey's alleged failure to obtain medical
aid when plaintiff was first injured. Defendants contend,
however, that this grievance was not sufficient to exhaust
administrative remedies with respect to plaintiff's
claims that defendants Schubert, Kast, Bailey, and Stevie
refused to provide him with his pain medication after he
returned from the hospital. I agree. A grievance must
“alert the prison to the nature of the wrong for
which redress is sought.” Strong v. David, 297
F.3d 646, 650 (7th Cir. 2002). Without that type
of notice, prison officials do not have an opportunity to
resolve the problem. Here, plaintiff did not file any
grievance in which he complained that any prison
staff refused to provide him with his pain medication after
his injury. Therefore, he did not comply with § 1997e(a)
as to his claims that Schubert, Kast, Bailey and Stevie
failed to provide him with medication. Those claims will be
dismissed without prejudice. Ford v. Johnson, 362
F.3d 395, 401 (7th Cir. 2004) (dismissal for failure to
exhaust is always without prejudice).
January 2, 2014 Columbia Correctional Institution
second grievance was filed at Columbia on January 2, 2014.
Plaintiff complained that he was receiving inadequate medical
treatment for his continuing back pain. See dkt.
42-3. This grievance was dismissed, but plaintiff did not
appeal to the corrections complaint examiner. Because he
failed to appeal, as required by Wis. Admin. Code
§310.13, 14, this grievance failed to exhaust his
administrative remedies with respect to his claims against
Seabul, Heinzl and Anderson regarding treatment for his back
pain. See Ford, 362 F.3d at 397 (in order to
exhaust, prisoner “must take all steps prescribed by
the prison's grievance system”). Nor did plaintiff
file any other ...