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Alexander v. Rasmussen

United States District Court, W.D. Wisconsin

March 13, 2017

RICKY N. ALEXANDER, Plaintiff,
v.
LIEUTENANT R. RASMUSSEN, LIEUTENANT D. STRELOW, and WARDEN JAMES R. SCHWOCHERT, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON DISTRICT JUDGE.

         Pro se 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 white inmate.

         Four 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.

         UNDISPUTED FACTS

         The following facts are undisputed unless otherwise noted.

         In 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.

         In 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.

         Between 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.

         ANALYSIS

         A. Failure to exhaust

         Under 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. 1999).

         Defendants 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).

         Defendants 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).

         Alexander's concedes that his inmate complaint filed in October 2014 is untimely. He argues only that his failure to file a timely grievance should be ...


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