United States District Court, W.D. Wisconsin
RICKY N. ALEXANDER, Plaintiff,
LIEUTENANT R. RASMUSSEN, LIEUTENANT D. STRELOW, and WARDEN JAMES R. SCHWOCHERT, Defendants.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE.
plaintiff Ricky Alexander, a state prisoner now incarcerated
at the Wisconsin Secure Program Facility, is proceeding on
Fourteenth Amendment equal protection claims against
officials at his prior prison, Dodge Correctional Institution
(DCI). Dkt. 36. While at DCI, Alexander, who is
African-American, had a physical altercation with a white
inmate. Alexander contends that defendants discriminated
against him based on his race by punishing him but not the
motions are pending before the court: (1) defendants'
motion for summary judgment for Alexander's failure to
exhaust administrative remedies, Dkt. 44; (2) Alexander's
motion to compel discovery, Dkt. 52; (3) Alexander's
motion for expungement, Dkt. 60; and (4) defendants'
motion to take a deposition, Dkt. 62. I will grant the first
motion and deny the rest as moot. The undisputed facts show
that Alexander failed to file a timely inmate grievance
concerning his discipline after the fight.
following facts are undisputed unless otherwise noted.
February 2013, Alexander had a physical altercation with
Benjamin Kamedulski. Each inmate accused the other of being
the initial aggressor. Alexander maintained that he acted in
self-defense, but defendant Strelow investigated and
determined that it was more likely than not that Alexander
had battered Kamedulski.
March 2013, defendant Rasmussen held a disciplinary hearing
and found that Alexander had violated the prison rules.
Rasmussen sentenced Alexander to 240 days in restrictive
housing, Alexander appealed the disciplinary decision, and
defendant Schwochert denied the appeal on April 16, 2013.
May 2013 and October 2014, Alexander filed five inmate
grievances challenging the disciplinary process. The first
four of these grievances did not raise the issue of racial
bias. The fifth grievance did raise the issue of racial bias,
alleging that Alexander's punishment was “motivated
by racial animosity” because Kamedulski was not
punished. But the fifth grievance was filed in October 2014,
Dkt. 51, ¶ 18, and it was rejected as untimely.
Failure to exhaust
the Prison Litigation Reform Act, a prisoner must exhaust
available administrative remedies before suing in court. 42
U.S.C. § 1997e(a). To satisfy the exhaustion
requirement, a prisoner must “properly take each step
within the administrative process, ” which includes
filing grievances and appeals “in the place, and at the
time, the prison's administrative rules require.”
Pozo v. McCaughtry, 286 F.3d 1022, 1024, 1025 (7th
Cir. 2002). In Wisconsin, the Wisconsin Administrative Code
requires an inmate to file a complaint “14 calendar
days after the occurrence giving rise to the
complaint.” Wis. Admin. Code DOC § 310.09(6). The
exhaustion requirement is mandatory, Woodford v.
Ngo, 548 U.S. 81, 85 (2006), and failure to exhaust
requires dismissal of the prisoner's case. Perez v.
Wisconsin Dept. of Corr., 182 F.3d 532, 535 (7th Cir.
move for summary judgment, contending that Alexander did not
timely file an inmate grievance within the 14-day deadline.
As movants for summary judgment, defendants must show that
there is no genuine issue of material fact and that they are
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The exhaustion requirement “is an affirmative defense
that a defendant has the burden of proving.” King
v. McCarty, 781 F.3d 889, 893 (7th Cir. 2015).
have carried their initial burden. They provide an Inmate
Complaint History Report and the declaration of Cindy
O'Donnell, who makes final agency decisions on inmate
grievances filed through the Inmate Complaint Review System
(ICRS). These materials establish a prima facie case that the
grievance procedure was available to Alexander: they show
that Alexander used the ICRS to file numerous grievances
about a wide variety of matters, ranging from missing potato
chips to the constitutionality of showering with his
cellmate. Dkt. 47, ¶¶ 10-11 and Dkt. 47-1, at 1-2.
Alexander did not file an inmate grievance on the issue of
racial bias within the 14-day limit: the first time that
Alexander raised the issue was on October 11, 2014, Dkt.
47-6, at 7-8, well after the disciplinary hearing on March
26, 2013, Dkt. 51, ¶ 10. Because defendants have carried
their initial burden, the burden shifts to Alexander to show
that, by adducing admissible evidence, a genuine dispute of a
material fact exists. See Obriecht v. Raemisch, 517
F.3d 489, 493 (7th Cir. 2008).
concedes that his inmate complaint filed in October 2014 is
untimely. He argues only that his failure to file a timely
grievance should be ...