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Peterson v. Meisner

United States District Court, W.D. Wisconsin

October 27, 2016

ERICK PETERSON, Plaintiff,
v.
MICHAEL MEISNER, JANEL NICKEL, LON BECHER, TIMOTHY CASIANA, BLOUNT, NATHAN PRESTON, TRACY KOPFHAMER, BENJAMIN NEUMAIER, SCOTT ROYCE, TRAVIS HAAG, HAUTAMAKI, DALIA SULIENE, MELISSA THORNE, EMILY, KAREN ANDERSON, JOANNE LANE, CINDY FRANCOIS, CINDY O'DONNELL, DEIRDNE MORGAN, DENNIS SCHUH, CHARLES FACKTOR, DENNIS RICHARDS, and ALEXANDER AGNEW, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Pro se plaintiff Erick Peterson is a prisoner in the custody of the Wisconsin Department of Corrections (DOC), currently housed at the Green Bay Correctional Institution. On May 4, 2016, I granted Peterson leave to proceed on many of his claims against various defendants. Dkt. 9, at 15. But I identified problems with two of his claims under Federal Rule of Civil Procedure 8. I allowed Peterson the opportunity to supplement his complaint with additional allegations.

         Pursuant to my order, Peterson filed a supplemental complaint. Dkt. 17. After reviewing Peterson's supplemental allegations, I granted Peterson leave to proceed on an Eighth Amendment conditions of confinement claim against defendant Timothy Casiana, and on a Fourteenth Amendment due process claim against defendants Janel Nickel, Blount, Hautamaki, Michael Meisner, Cindy Francois, Charles Facktor, and Cindy O'Donnell, but I denied Peterson leave to proceed on a Fourteenth Amendment due process claim against defendant Mary Leiser. Dkt. 25.

         Now the state defendants-Meisner, Nickel, Becher, Casiana, Blount, Preston, Kopfhamer, Neumaier, Royce, Haag, Hautamaki, Suliene, Thorne, Anderson, Lane, Francois, O'Donnell, Morgan, Schuh, and Facktor-have moved for partial summary judgment for Peterson's failure to exhaust his administrate remedies. Dkt. 39. The state defendants move for judgment on Peterson's conditions of confinement claim and improper strip search claim. Id. Because Peterson has not exhausted his administrative remedies with respect to those claims, I will grant the state defendants' motion.

         Peterson has also filed an amended complaint, Dkt. 44, which I will accept as the operative pleading.

         BACKGROUND

         I have recounted the relevant factual allegations in previous orders, Dkt. 9 and Dkt. 25, and I will not restate them here. Only two of Peterson's claims are at issue here: his conditions of confinement claim and his improper strip search claim.

         Peterson alleges that following a brutal assault and an improper strip search, defendant Timothy Casiana, a Columbia Correctional Institution captain, ordered that Peterson be kept in a cell without bedding, clothing, or running water. Dkt. 17, at 9-10. Pursuant to defendant Casiana's orders, Peterson spent three days in these conditions. I granted Peterson leave to proceed on an Eighth Amendment conditions of confinement claim against defendant Casiana, Dkt. 25, and I granted Peterson leave to proceed on an Eighth Amendment improper strip search claim against defendants Casiana, Kopfhamer, Royce, and Neumaier. Dkt. 9.

         ANALYSIS

         A. Failure to exhaust administrative remedies

         Pursuant to 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.” The administrative exhaustion requirement is mandatory, Woodford v. Ngo, 548 U.S. 81, 85 (2006), and “applies to all inmate suits, ” Porter v. Nussle, 534 U.S. 516, 524 (2002). Its purpose is not to protect defendants but to give prison officials an opportunity to resolve complaints without judicial intervention. Perez v. Wis. Dep't of Corr., 182 F.3d 532, 537-38 (7th Cir. 1999) (exhaustion serves purposes of “narrow[ing] a dispute [and] avoid[ing] the need for litigation”).

         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), which 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. However, “[i]f administrative remedies are not ‘available' to an inmate, then the inmate cannot be required to exhaust.” Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).

         The DOC's Inmate Complaint Review System requires inmates to “file an inmate complaint clearly identifying the issue to be exhausted . . . within 14 days of the occurrence giving rise to the complaint.” Dkt. 42, ¶ 4 (citing Wis. Admin. Code DOC § 310.09(1)(e), (6)). The institution complaint examiner (ICE) may reject any complaint submitted “beyond 14 calendar days from the date of the occurrence giving rise to the complaint [that does not provide] good cause for the ICE to extend the time limits.” Wis. Admin. Code DOC § 310.11(5)(d).

         Here, the state defendants state that Peterson: (1) did not file any inmate complaint regarding the improper strip search; and (2) filed two untimely inmate complaints regarding the conditions of confinement. As a result, Peterson has not exhausted his administrative remedies with respect to these claims. Christine Preston, director of the DOC's Prison Rape Elimination Act (PREA) Office, represents that the DOC “accepts allegations of [sexual] misconduct in many forms, including verbally to staff, in writing, through filing a grievance, through internal and external hotlines, anonymously, and from any third party on behalf of an inmate.” Dkt. 41, ¶ 4. Preston represents that the PREA Office has no record of any allegation by Peterson regarding sexual harassment or abuse by DOC staff on or around July 24, 2012. Id. ΒΆ 7. With respect to Peterson's conditions of ...


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