United States District Court, W.D. Wisconsin
OPINION AND ORDER
STEPHEN L. CROCKER Magistrate Judge.
Number 15-cv-245, I granted pro se plaintiff Joel
Scott Flakes leave to proceed on claims that prison staff at
Stanley Correctional Institution (SCI) had violated his
Eighth and Fourteenth Amendment rights in 2014 by
discriminating against Flakes because of his sexual
orientation and by revealing his sexual orientation to other
inmates, thereby disregarding the serious risk of harm Flakes
faced by being outed. See Flakes v. Wall, No.
3:15-cv-245-slc, dkt. 10 (W.D. Wis. March 10, 2016). On
August 18, 2016, I dismissed that lawsuit because Flakes had
failed to exhaust his administrative remedies as required by
the Prison Litigation Reform Act. This dismissal was without
prejudice, and I stated that “[i]f the conduct of which
plaintiff is complaining is still occurring, then it would
not be too late for plaintiff to seek redress from the
institution by filing an inmate complaint (or complaints)
clearly identifying the issue(s).” Id., dkt.
29, at 11.
Flakes has filed a new complaint, and on December 29, 2016,
the parties consented to my jurisdiction. On January 23,
2017, the court received Flakes' initial partial filing
fee, so this matter is ready for screening pursuant to 42
U.S.C. § 1915A. Because Flakes is seeking relief in this
lawsuit only on the claims described in his complaint in
Case. No. 3:15-cv-245-slc, and not for any subsequent or
ongoing conduct, Flakes may not proceed with his claims due
to his failure to properly exhaust them.
focuses his new complaint on his argument that the grievance
process was unavailable to him with respect to the claim that
I dismissed in Case No. 15-cv-254. Flakes has not added any
new facts related to his discrimination or deliberate
indifference claims, and nothing in his complaint suggests
that this conduct is ongoing. Although Flakes includes the
statement that the policy he is challenging with respect to
how he is treated as a homosexual still is in effect (dkt. 1,
at 11), he does not include any specific allegations of
wrongdoing by any of the defendants that have taken place
since 2014, nor has Flakes alleged any facts suggesting that
the conduct actually is ongoing.
Flakes alleges that, following this court's August 2016
order, he resubmitted his original complaints to SCI's
deputy warden, who wrote him a letter directing him to file a
formal grievance using the inmate complaint review system
(ICRS). Flakes alleges that he re-filed an inmate complaint,
but on September 28, 2016, an inmate complaint examiner (ICE)
rejected it. Unfortunately for Flakes, his failure to exhaust
his 2014 claims continues to be fatal to his Eighth and
Fourteenth Amendment claims arising from the 2014 incidents.
break this out a bit: the Prison Litigation Reform Act
requires all inmates to exhaust all available administrative
remedies on their claims before bringing these claims in a
federal lawsuit. 42 U.S.C. § 1997e(a); Woodford v.
Ngo, 548 U.S. 81, 85 (2006). This exhaustion requirement
“applies to all inmate suits, ” Porter v.
Nussle, 534 U.S. 516, 524 (2002), and it requires a
prisoner-plaintiff to “properly take each step within
the administrative process . . . in the place, and at the
time, the prison's administrative rules require.”
Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.
2002). See also Burrell v. Powers, 431 F.3d 282,
284-85 (7th Cir. 2005). If a prisoner does not exhaust all
available remedies, then the court must dismiss his lawsuit.
Perez v. Wisconsin Dept. of Corrections, 182 F.3d
532, 535 (7th Cir. 1999).
does not dispute that he was required to follow the
exhaustion requirements of the inmate complaint review system
(“ICRS”) that is set forth in Wis. Admin. Code
§ DOC 310. What Flakes is claiming is that the ICRS
simply was not available for him to use. Flakes is incorrect.
In my August 18, 2016 order granting defendants' motion
for summary judgment in Case No. 15-cv-245, I specifically
analyzed whether the administrative procedures of the ICRS
had been available to Flakes on his claims, and I concluded
that they had. See Flakes, 15-cv-245, dkt. 29 at 8-9
(W.D. Wis. Aug. 19, 2016). Indeed, I reviewed the procedural
posture of Flakes' November and December 2014 inmate
complaints and concluded that Flakes had not followed the
ICRS policy requiring an inmate complaint to contain only one
issue that is clearly identified. Wis. Admin. Code § DOC
310.09(1)(e). I specifically concluded that Flakes's
complaints included many different allegations that were
vague and that did not describe how Flakes was being
discriminated against. Id. In other words,
Flakes's failure to exhaust his administrative remedies
was caused by Flakes' failure to follow the required
procedures, not by the unavailability of ICRS procedures.
Flakes never sought reconsideration of my conclusions on this
issue, and his allegations in his new complaint do not lead
me to believe that those conclusion omitted any material
facts or otherwise were wrong. As Flakes has not alleged
anything new in this complaint, he has not exhausted.
a prisoner's failure to exhaust his administrative
remedies is an affirmative defense that must be proven by the
defendants, Jones v. Bock, 549 U.S. 199, 212 (2007),
but a district court may raise an affirmative defense on its
own if it is clear from the face of the complaint and any
documents attached to it that the defense applies. Gleash
v. Yuswak, 308 F.3d 758, 760-61 (7th Cir. 2002). In this
case, it is clear from Flakes's allegations that he did
not comply with § 1997e(a). Accordingly, I am dismissing
this case because Flakes has failed to exhaust his
administrative remedies. In accordance with Ford v.
Johnson, 362 F.3d 395, 401 (7th Cir. 2004), the
dismissal iswithout prejudice.
ORDERED that this case is DISMISSED without prejudice for
plaintiff's failure to exhaust his ...