United States District Court, W.D. Wisconsin
OPINION AND ORDER
STEPHEN L. CROCKER Magistrate Judge.
pro se civil rights lawsuit, plaintiff James Davis is
proceeding on several claims that various employees at the
Columbia Correctional Institution violated his constitutional
rights. Defendants have moved for summary judgment on the
ground that all of Davis' claims must be dismissed
because he failed to exhaust his prison administrative
remedies before filing this lawsuit. (Dkt. 23.) I am denying
the motion because I conclude that defendants have not met
their burden of proving that plaintiff failed to exhaust.
Additionally, I am denying defendants' related motion to
stay deadlines for disclosure of expert witnesses and
dispositive motions, as defendants' only basis for the
motion to stay was the possibility that their exhaustion
motion would be granted. (Dkt. 49.) Finally, I am denying
plaintiff's pending motion for assistance in recruiting
counsel. (Dkt. 45).
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, 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).
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(6). The 14-day
deadline can be waived for extended for good cause.
Id. 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).
was granted leave to proceed on claims that (1) Sandra Ashton
retaliated against him by issuing false conduct reports; (2)
defendants Ashton, Swenson, Kophamer and Rataczak used
excessive force against him on October 29, 2013; (3)
defendants Anderson, Pitzen and Schneider failed to intervene
to prevent the excessive force; and (4) on that same day,
defendant Dr. Kerch was deliberately indifferent to his
serious medical needs and negligent under state law.
Inmate Complaints Alleging Retaliation by Defendant
contend that plaintiff failed to timely file any inmate
complaint alleging that defendant Ashton retaliated against
him. Defendants point to two inmate complaints that plaintiff
filed alleging retaliatory actions by Ashton - CCI-2013-15809
and CCI-2013-17167. (Dkt. 25-2, 25-3.) In those complaints,
plaintiff had alleged that Ashton retaliated against him by
delivering his Ramadan bag meal with the food items removed
from their individual wax bags and by messing with property
in his cell. Defendants argue that because these inmate
complaints were properly dismissed as untimely by the ICE,
plaintiff's retaliation claims against Ashton should be
dismissed for failure to exhaust his administrative remedies.
plaintiff points out in his opposition materials, however, he
is not proceeding in this case on retaliation claims based on
the allegations in the two inmate complaints referenced
above. Rather, the basis for his retaliation claims in this
case is that Ashton filed false conduct reports against him
in retaliation for those, and other, previous inmate
complaints he had filed. Moreover, as plaintiff points out,
Wisconsin's inmate complaint procedures prohibit
inmates from using the grievance system to complain about a
conduct report. Specifically, under Wis. Admin. Code §
DOC 310.08(2)(a), an inmate may not use the ICRS to raise
“[a]ny issue related to a conduct report, unless the
inmate has exhausted the disciplinary process in accordance
with ch. DOC 303.” As this court has explained, if an
issue “is related to a conduct report, the inmate must
raise it at the time of his disciplinary hearing and again on
appeal to the warden, assuming the matter is not resolved at
the disciplinary hearing stage.” Lindell v.
Frank, No. 05 C 003 C, 2005 WL 2339145, at *1 (W.D. Wis.
Sep. 23, 2005). If an inmate does exhaust the disciplinary
process, the inmate may only use ICRS to appeal
procedural errors. Id. § DOC
opposition materials, plaintiff submitted evidence that he
did, in fact, make arguments at his disciplinary proceedings
and on appeal regarding defendant Ashton's alleged
retaliatory motives in issuing conduct reports against him.
He also submitted evidence that he exhausted his ability to
challenge the disciplinary decisions by appealing to the
warden. He did not return to ICRS to challenge Ashton's
retaliatory motives because her alleged motives were not
“procedural” errors that could be raised through
the ICRS. Taken as a whole, plaintiff's evidence directly
refutes defendants' argument that he failed to exhaust
his administrative remedies.
defendants' reply brief ignores completely
plaintiff's arguments and evidence on this issue.
Instead, defendants offer only two sentences addressing
plaintiff's retaliation claims against Ashton and repeat
their conclusion that the court should dismiss those claims.
(Dfts.' Reply, dkt. 47, at 3.) However, for the reasons
just explained, defendants have not met their burden of
proving that plaintiff failed to exhaust his administrative
remedies with respect to his claims against Ashton.
Accordingly, defendants' motion with respect to those
claims will be denied.
Inmate Complaints Regarding the Events of ...