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Davis v. Ashton

United States District Court, W.D. Wisconsin

December 20, 2016

JAMES JERMAINE DAVIS, Plaintiff,
v.
SANDRA ASHTON, et al., Defendants.

          OPINION AND ORDER

          STEPHEN L. CROCKER Magistrate Judge.

         In this 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).

         OPINION

         I. Exhaustion of Plaintiff's Federal Claims

         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 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).

         Plaintiff 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.

         A. Inmate Complaints Alleging Retaliation by Defendant Ashton

         Defendants 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.

         As 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 310.08(3); 308.82(4).

         In his 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.

         Surprisingly, 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.

         B. Inmate Complaints Regarding the Events of ...


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