United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge.
prisoner John Kuslits brought this lawsuit under 42 U.S.C.
§ 1983 against four officials at the Stanley
Correctional Institution, claiming that deficient cleaning
practices and unsanitary conditions in the segregation unit
caused him to become ill and to suffer serious medical harm.
Plaintiff was allowed to proceed on his claim that defendants
J. Achterberg, G. Steinke, Sgt. Anderson and Sgt. Temski
violated his Eighth Amendment rights by failing to maintain
adequate prison conditions, so far as he was seeking
declaratory relief but he was denied leave to proceed on any
claim for damages. Dkt. #3, at 9-11.
the court are defendants' unopposed motions for summary
judgment and judgment on the pleadings. Dkts. ##18 and 19.
Because the undisputed facts show that plaintiff failed to
exhaust his administrative remedies before filing this
action, I will grant defendants' motion for summary
judgment and deny as moot their motion for judgment on the
are seeking judgment as a matter of law on two separate
grounds. First, they move for summary judgment, contending
that plaintiff failed to exhaust his administrative remedies
before filing this suit, as he is required to do under 42
U.S.C. § 1997e. Dkt. #18. Second, they move for judgment
on the pleadings, contending that plaintiff's claims
against defendants acting in their official capacities are
barred by the Eleventh Amendment to the United States
Constitution. Dkt. #19. Defendants supported both motions
with a single brief and the declaration of a Department of
Corrections Complaint Examiner, Welcome Rose. Dkts. ##20 and
did not file a response to either motion. After the deadline
for doing so had expired, defendants' counsel and
Assistant Attorney General Rachel L. Bachhuber submitted
evidence to the court that plaintiff had earlier agreed to
dismiss the case voluntarily and had even drafted a motion
for voluntary dismissal that he sent to her office, but never
filed with this court. Dkt. #23. The assistant attorney
general now asks the court to dismiss the case on that basis.
It appears that plaintiff tried to dismiss his case
voluntarily to avoid having a Prison Litigation Reform Act
"strike" assessed against him for purposes of 28
U.S.C. § 1915(g). Dkt. #23-1. However, plaintiff never
filed a motion for voluntary dismissal with the court.
Without a motion to rule on and with evidence submitted
solely by the assistant attorney general, I am reluctant to
enter a sua sponte dismissal of petitioner's case.
Instead, I will consider the motions that were properly filed
and are now pending.
evidence in support of their motion for summary judgment is
compelling and, in these circumstances, conclusive. The
declaration of complaint examiner Welcome Rose provides
strong evidence that plaintiff failed to properly exhaust his
administrative remedies. Dkt. #21. In particular, this
evidence shows that plaintiff filed one grievance about the
conditions in segregation, but the grievance was rejected as
untimely because it was filed approximately five months after
plaintiff was released from segregation back into the general
population, long past the two-week deadline established by
the prison's administrative grievance procedure.
Id. ¶¶ 5-14. Because plaintiff did not
dispute these facts, I will consider them undisputed for
purposes of summary judgment. Dkt. #10, at 13-15 (pretrial
conference order describing summary judgment process).
is no question that exhaustion is mandatory under the [Prison
Litigation Reform Act] and that unexhausted claims cannot be
brought in court." Jones v. Bock, 549 U.S. 199,
211 (2007). Exhaustion requires the plaintiff to pursue his
administrative remedy procedures properly. "[F]iling an
untimely or otherwise procedurally defective administrative
grievance" may be grounds for dismissal for failure to
properly exhaust. Woodford v.Ngo, 548 U.S. 81, 83-84
(2006); see also Pozo v. McCaughtry, 286 F.3d 1022,
1025 (7th Cir. 2002) ("To exhaust remedies, a prisoner
must file complaints and appeals in the place, and at the
time, the prison's administrative rules require. Pozo
filed a timely and sufficient complaint but did not file a
timely appeal. He therefore failed to exhaust his
administrative remedies, and his federal suit must be
it is undisputed that plaintiff's grievance was untimely
and that plaintiff failed to follow the applicable prison
rules and procedures, I find that plaintiff failed to
properly exhaust his administrative remedies. (Again,
plaintiff does not disagree, dkt. #23-1.) Accordingly, I will
grant defendants' motion for summary judgment and dismiss
plaintiff's claim. The dismissal will be without
prejudice and plaintiff will not incur a "strike"
under 28 U.S.C. § 1915(g). Turleyv. Gaetz, 625
F.3d 1005, 1013 (7th Cir. 2010) ("The dismissal of an
action for failure to exhaust. . . does not incur a
strike."); Williams v. Tobiasz, No.
13-cv-411-bbc, 2013 WL 3929985, at *3 (W.D. Wis. July 29,
I am entering summary judgment in favor of defendants, I need
not address their motion for judgment on the pleadings, which
I will deny as moot.
Defendants J. Achterberg, G. Steinke, Sgt. Anderson and Sgt.
Temski's motion for summary judgment for failure to
exhaust administrative remedies, dkt. #18, is GRANTED.
Plaintiff John Kuslits's claim for a declaratory judgment
that defendants violated his Eighth Amendment rights by
depriving him of basic safety, sanitation or medical ...