United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge United States District
Walter Matthews brought this civil rights action pursuant to
42 U.S.C. § 1983. Matthews alleges that various
defendants were deliberately indifferent to his serious
medical needs regarding an Achilles tendon injury, in
violation of his Eighth Amendment rights. Matthews then filed
an amended complaint alleging that various defendants
retaliated against him in response to his filed complaint.
Matthews has since obtained counsel to represent him in
pretrial proceedings in this case. The case is before the
Court on Defendants John Kind, Christopher Stevens, William
Swiekatowski, and Karen Wery's motion for summary
judgment on Count 3 of Plaintiff's amended complaint.
(ECF No. 48.) Defendants seek summary judgment on the ground
that Matthews has failed to exhaust his administrative
remedies on his retaliation claims as required under the
Prison Litigation Reform Act (PLRA).
background facts in this case surrounding the retaliation
claims are largely undisputed and Matthews does not object to
Defendants' Proposed Findings of Fact. (ECF No. 50.) At
all times relevant, Matthews was incarcerated at Green Bay
Correctional Institute (GBCI). Matthews alleged that he
suffered an Achilles tendon injury in December 2014 and that
various employees at GBCI were deliberately indifferent to
his medical needs. On May 20, 2015, Defendant Karen Wery
removed Matthews from the medical cell where he was housed
and moved him into another cell. Matthews alleged he was
removed from the cell in retaliation for talking out of the
cell door to the inmate housed next to him. (Id. at
¶ 7.) Matthews never filed an inmate complaint with the
Corrections Complaint Examiner's office regarding his
removal from a medical cell. (Rose Decl., ECF No. 51 ¶
8.) Matthews did file an inmate complaint on July 29, 2015
regarding the number of visits he received each week.
(Id. at ¶ 11-12.) The complaint was dismissed
by GBCI's warden on August 5, 2015 and Matthews'
failed to appeal the decision. (Id. at ¶ 11.)
Matthews filed an identical complaint on September 17, 2015,
which was denied initially and upon appeal as a previously
rejected complaint. (Id. at ¶ 12.)
also asserts he was subjected to several acts of retaliation
by members of the GBCI staff immediately following the filing
of his deliberate indifference claims on February 12, 2016.
Defendants William Swiekatowski and Christopher Stevens
allegedly directed unnecessary strip, cell, and bunk searches
after Matthews filed his complaint. Matthews was allegedly
handcuffed for many of these searches. Matthews never filed
an inmate complaint with the Corrections Complaint
Examiner's office regarding strip, cell, or bunk
searches. (Id. at ¶ 9.) GBCI allegedly removed
an individual named Tanya Griswold from his visitor's
list in violation of ordinary procedure. Matthews never filed
an inmate complaint about the removal of Tanya Griswold from
his visitor list. (Id. at ¶ 10.) Defendant John
Kind allegedly restricted contact visits between Matthews and
his wife in retaliation for the deliberate indifference suit.
Matthews filed an inmate complaint in response that was
received on March 8, 2016 and closed with a recommendation
for dismissal on March 21, 2016. (Id. at ¶ 13.)
GBCI's warden dismissed the complaint the following day.
(Id.) Matthews failed to appeal the warden's
decision to the Corrections Complaint Examiner, as required
by the Wisconsin Department of Correction's procedure.
(Id.) Matthews' Inmate Complaint History Report
illustrates that Matthews never appealed any of his
complaints to the Corrections Complaint Examiners Office.
(ECF No. 51-1.)
March 25, 2016, Matthews filed an amended complaint alleging
the above retaliation claims. Defendants Kind, Stevens,
Swiekatowski, and Wery now move for summary judgment on the
ground that the undisputed material facts establish that
Matthews failed to exhaust his administrative remedies and
that Defendants are entitled to judgment as a matter of law.
judgment is proper if the moving party shows that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In determining whether summary judgment
is appropriate, a court must construe the evidence in the
light most favorable to the non-moving party. Ramos v.
City of Chicago, 716 F.3d 1013, 1014 (7th Cir. 2013).
contend that they are entitled to summary judgment because
Matthews failed to exhaust his administrative remedies. The
PLRA provides that a prisoner cannot assert a cause of action
under federal law “until such administrative remedies
as are available are exhausted.” 42 U.S.C. §
1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 93
(2006) (holding that the PLRA requires proper exhaustion of
administrative remedies). Exhaustion requires that a prisoner
comply with the rules applicable to the grievance process at
the inmate's institution. Pozo v. McCaughtry,
286 F.3d 1022, 1025 (7th Cir. 2002). This requirement
“applies to all inmate suits about prison life, whether
they involve general circumstances or particular episodes,
and whether they allege excessive force or some other
wrong.” Porter v. Nussle, 534 U.S. 516, 532
(2002). The exhaustion requirement also encompasses
retaliation claims. Smith v. Zachary, 255 F.3d 446,
450-51 (7th Cir. 2001). The objective of § 1997e(a) is
to “permit the prison's administrative process to
run its course before litigation begins.” Dole v.
Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (quoting
Cannon v. Washington, 418 F.3d 714, 719 (7th Cir.
2005)); see also Kaba v. Stepp, 458 F.3d 678, 684
(7th Cir. 2006). The Seventh Circuit applies a “strict
compliance approach to exhaustion, ” and expects
prisoners to adhere to “the specific procedures and
deadlines established by the prison's policy.”
Dole, 438 F.3d at 809; see also Hernandez v.
Dart, 814 F.3d 836, 842 (7th Cir. 2016) (citations
has implemented the Inmate Complaint Review System (ICRS)
under which inmate grievances concerning prison conditions or
the actions of prison officials are “expeditiously
raised, investigated and decided.” Wis. Admin. Code
§ DOC 310.01. Under the ICRS, an inmate must file a
complaint with the institutional complaint examiner (ICE)
within 14 calendar days after the occurrence giving rise to
the complaint, unless good cause exists to excuse a delay.
Wis. Admin. Code § DOC 310.09(6). The ICE has the
authority to return, investigate, or recommend a decision to
an appropriate reviewing authority. Wis. Admin. Code §
DOC 310.07(2)(a)-(c). If a reviewing authority renders a
decision, the inmate may appeal that decision to the
Corrections Complaint Examiner (CCE) within 10 calendar days.
Wis. Admin. Code § DOC 310.13(1). After receiving an
appeal, the CCE shall issue a written receipt of the appeal
to the inmate within five working days, then recommend a
decision to the DOC Secretary, who adopts or rejects the
recommendation. Wis. Admin. Code §§ DOC 310.13(4),
DOC 310.14(2). The failure to properly exhaust each step of
the grievance process constitutes failure to exhaust
available administrative remedies. Pozo, 286 F.3d at
Matthews does not dispute that he failed to file an ICRS
complaint regarding being handcuffed and strip searched, the
staff conducting searches of his bunk, and the removal of an
individual from his visitor list. He also does not dispute
that he failed to appeal to the CCE his complaints about the
reduced number of weekly visits in 2015 or the restriction of
visits with his wife in March 2016. Matthews failed to
exhaust his available administrative remedies on the claims
involving defendants Swiekatoski, Stevens, and Kind, and the
claims against those parties must be dismissed. Matthews
contends that any dismissal should be without prejudice.
However, Matthews' window to pursue his administrative
remedies has already closed and exhaustion is impossible.
See Ford v. Johnson, 362 F.3d 395, 400-01 (7th Cir.
2004) (“If it is too late to pursue administrative
remedies, then exhaustion will prove impossible and §
1997e(a) will permanently block litigation.”).
Matthews' alleged retaliation claims occurred no later
than March 25, 2016-more than seven months ago. Matthews
would have needed to file any administrative complaints
within two weeks of the incident and then appeal an
unfavorable decision within ten days of receiving the
decision. He offered no reason suggesting there was good
cause for failing to timely file an inmate complaint or
subsequent appeal to the CCE. Accordingly, the retaliation
claims against Swiekatoski, Stevens, and Kind will be
dismissed with prejudice.
regard to his cell transfer claim against Wery, Matthews
argues the claim should be considered part of his Eighth
Amendment medical deliberate indifference claim. This is a
distinction without a difference. Matthews alleges that he
filed the necessary complaints relating to the treatment of
his Achilles injury. However, “[c]omplaints filed by an
inmate or a group of inmates shall . . . [c]ontain only one
issue per complaint, and shall clearly identify the
issue.” Wis. Admin. Code § DOC 310.09(1)(e).
Matthews does not dispute that he failed to file an ICRS
complaint about the transfer from his medical cell. The
removal from a medical cell without a doctor's consent is
a distinct issue, different from how a doctor may treat an
injury or prescribe medication. Even if Matthews intended for
the medical cell movement claim against Wery in his complaint
to be for deliberate indifference-and not for retaliation as
he actually alleged-Matthews would still be required to
exhaust his administrative remedies by filing the required
inmate complaint. Because Matthews failed to exhaust his
administrative remedies on his claim against Wery, his claim
against Wery must be dismissed.
foregoing reasons, Defendants' motion for summary
judgment (ECF No. 48) is GRANTED. Defendants Wery,
Swiekatoski, Stevens, and Kind will be DISMISSED as parties
to this action. Count 1 of Matthews' amended complaint
for deliberate ...