United States District Court, W.D. Wisconsin
RYAN K. ROZAK, Plaintiff,
RANDALL HEPP, GEORGE COOPER, MR. PAUH, and MR. OTTO, Defendants.
D. PETERSON District Judge
plaintiff Ryan Rozak, a prisoner in the custody of the
Wisconsin Department of Corrections at the Fox Lake
Correctional Institution, is proceeding on claims that
defendant prison officials are denying him medically
prescribed high-protein, high-calorie meals. Defendants have
filed a motion for summary judgment based on Rozak's
failure to exhaust his administrative remedies. Because the
only inmate grievances that arguably exhaust Rozak's
claims postdate the filing of this case, I will grant
defendants' motion and dismiss this case. But I will give
Rozak an opportunity to open a brand-new case that would meet
the exhaustion requirement.
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."
The administrative exhaustion requirement is mandatory,
Woodford v. Ngo, 548 U.S. 81, 85 (2006), and
"applies to all inmate suits, " Porter v.
Nussle, 534 U.S. 516, 524 (2002). Its purpose is not to
protect defendants but to give prison officials an
opportunity to resolve complaints without judicial
intervention. Perez v. Wis. Dep't of Corr., 182
F.3d 532, 537-38 (7th Cir. 1999) (exhaustion serves purposes
of "narrow[ing] a dispute [and] avoid[ing] the need for
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), which 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. However, "[i]f
administrative remedies are not 'available' to an
inmate, then the inmate cannot be required to exhaust."
Kaha v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).
contend that Rozak failed to exhaust his claims, because he
failed to fully exhaust the first grievance he brought about
his diet, No. FLCI-2013-19415. Rozak filed this grievance,
but after it was dismissed by the warden, he did not appeal
initially argues that the warden violated prison regulations
by taking more than 30 working days to issue the dismissal.
In the right circumstances, prison officials' failure to
comply with prison regulations might throw such a wrench into
the works that the prisoner no longer knows what to do,
rendering his administrative remedies effectively
"unavailable, " and the exhaustion requirement
would no longer apply. But that is not the case here. Rozak
did receive the dismissal order, he just received it
a couple days late. He could have filed an appeal from that
dismissal but chose not to. And, as defendants point out,
situations like these are already taken into account in the
regulations. Under Wisconsin Administrative Code §
310.12(3), a prisoner may directly appeal the grievance if he
fails to receive a decision within 30 working days. Rozak
could have appealed the grievance under this provision even
before receiving the dismissal, but he did not.
Rozak did not pursue this grievance all the way through the
four-step DOC process, the grievance does not exhaust his
claims. Rozak appears to recognize this, because later in his
brief, he disavows the 2013 grievance as the source of his
exhaustion, and instead states that he exhausted his claims
through two later grievances: "2015-3156" and
"2016-16874." Dkt. 31, at 1. Defendants provide
copies of both of these fully exhausted grievances. These
grievances appear to discuss at least portions of the claims
Rozak brings in this lawsuit, but they do not meet the
exhaustion requirement for any claim because the grievances
were not fully litigated until after Rozak brought
this lawsuit. He filed this case on April 6, 2015, but the
'3156 grievance was not fully exhausted until May 2015,
see Dkt. 33-1, and the '16874 grievance was not
fully exhausted until November 2016. Because Rozak did not
fully exhaust his grievances by the time he filed his
complaint, this lawsuit must be dismissed without prejudice.
See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir.
2004) (holding that a lawsuit must be dismissed "even if
the plaintiff exhausts his administrative remedies while the
litigation is pending").
because at least portions of the lawsuit appear to be
exhausted at this point, Rozak is free to bring a brand-new
complaint about those claims. Id. at 401 ("[I]f
the prisoner does exhaust, but files suit early, then
dismissal of the premature action may be followed by a new
suit that unquestionably post-dates the administrative
decision."). I will give him that choice now.
give Rozak a short time to state whether he would like to
have his current operative pleading (the amended complaint,
Dkt. 16) opened as a brand-new lawsuit. This is not a risk-
or expense-free proposition. Portions of his claims may still
be unexhausted by his 2015 and 2016 grievances (I will leave
that issue for the parties to brief if Rozak agrees to a new
lawsuit). Also, he will be on the hook for a new filing fee
for his new lawsuit. I assume he would seek in forma
pauperis status in a new lawsuit, so if he chooses to
have his amended complaint opened into a new lawsuit, he
should also submit a trust fund account statement covering
late October 2016 to the present date.
Defendants' motion for summary judgment based on
plaintiff Ryan Rozak's failure to exhaust administrative
remedies, Dkt. 27, is GRANTED. This case is DISMISSED without
clerk of court is directed to enter judgment for defendants
and close this case.
Plaintiff may have until May 16, 2017, to respond to this
order, explaining whether he would like to open a brand-new
lawsuit using the operative pleading from this case. If he
chooses to bring a new lawsuit, he may ...