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Poff v. Schmidt

United States District Court, E.D. Wisconsin

June 13, 2017

JEFF POFF, Plaintiff,
v.
MARK SCHMIDT, PCS SCOTT, LORI TAGGART, KATHY BRESTER, and JOHN DOES 1-8, Defendants.

          ORDER

          J. P. Stadtmueller U.S. District Judge

         Plaintiff Jeff Poff ("Poff"), a prisoner, brings this action pursuant to 42 U.S.C. § 1983 against Defendants, prison officials at the Wisconsin Resource Center ("WRC"), alleging that they acted with deliberate indifference to his medical needs, failed to protect him from his own suicide attempts, and used excessive force against him. Defendants filed a motion for summary judgment on May 1, 2017, arguing that Poff failed to exhaust his administrative remedies as to the claims he raises here. (Docket #22). Poff did not respond by the deadline, which was June 5, 2017. See Civ. L. R. 56(b)(2) (requiring a response to a motion for summary judgment to be filed within thirty days); Fed.R.Civ.P. 6(d) (adding three days to deadlines when service was made by mail). Because the motion is unopposed, see Civ. L. R. 7(d), and for the reasons stated below, Defendants' motion will be granted and this action will be dismissed without prejudice.

         1. STANDARD OF REVIEW

         1.1 Summary Judgment

         Federal Rule of Civil Procedure 56 provides that the court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is "material" if it "might affect the outcome of the suit" under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh the evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that "we leave those tasks to factfinders." Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). The party opposing summary judgment "need not match the movant witness for witness, nor persuade the court that [his] case is convincing, [he] need only come forward with appropriate evidence demonstrating that there is a pending dispute of material fact." Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994).

         1.2 Exhaustion of Prisoner Administrative Remedies

         The Prison Litigation Reform Act ("PLRA") establishes that, prior to filing a lawsuit complaining about prison conditions, a prisoner must exhaust "such administrative remedies as are available[.]" 42 U.S.C. § 1997e(a). To do so, the prisoner must "file complaints and appeals in the place, and at the time, the prison's administrative rules require, " and he must do so precisely in accordance with those rules; substantial compliance does not satisfy the PLRA. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002); Smith v. Zachary, 255 F.3d 446, 452 (7th Cir. 2001); Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005). Failure to exhaust administrative remedies is an affirmative defense to be proven by Defendants. Westefer v. Snyder, 422 F.3d 570, 577 (7th Cir. 2005).

         The Wisconsin Department of Corrections maintains an Inmate Complaint Review System ("ICRS") to provide a forum for administrative complaints. Wis. Admin. Code DOC § 310.04. There are two steps an inmate must take to exhaust their administrative remedies under the ICRS. First, the inmate must file a complaint with the Institution Complaint Examiner ("ICE") within fourteen days of the events giving rise to the complaint. Id. §§ 310.07(1), 310.09(6). The ICE may reject a complaint or, before accepting it, can direct the inmate to "attempt to resolve the issue." See Id. §§ 310.08, 310.09(4), 310.11(5). If the complaint is rejected, the inmate may appeal the rejection to the appropriate reviewing authority. Id. § 310.11(6).[1]If the complaint is not rejected, the ICE issues a recommendation for disposing of the complaint, either dismissal or affirmance, to the reviewing authority. Id. §§ 310.07(2), 310.11. The reviewing authority may accept or reject the ICE's recommendation. Id. § 310.07(3).

         Second, if the ICE recommends dismissal and the reviewing authority accepts it, the inmate may appeal the decision to the Corrections Complaint Examiner ("CCE"). Id. §§ 310.07(6), 310.13. The CCE issues a recommendation to the Secretary of the Department of Corrections who may accept or reject it. Id. §§ 310.07(7), 310.13, 310.14. Upon receiving the Secretary's decision, or after forty-five days from the date the Secretary received the recommendation, the inmate's administrative remedies are exhausted. Id. §§ 310.07(7), 310.14.

         2. RELEVANT FACTS

         2.1 Poff's Failure to Dispute the Material Facts

         The relevant facts are undisputed because Poff did not dispute them. In the Court's scheduling order, entered March 7, 2017, Poff was warned about the requirements for opposing a motion for summary judgment. (Docket #19 at 3). Accompanying that order were copies of Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both of which describe in detail the form and contents of a proper summary judgment submission. Next, on May 1, 2017, Defendants filed their motion for summary judgment. (Docket #22). In the motion, Defendants also warned Poff about the requirements for his response as set forth in Federal and Local Rules 56. Id. at 1-2. He was provided with additional copies of those Rules along with Defendants' motion. See Id. at 3-14.

         Despite being twice warned of the strictures of summary judgment procedure, Poff ignored those rules by failing to dispute Defendants' proffered facts in any fashion. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003); (Docket #24) (Defendants' statement of material facts). Though the Court is required to liberally construe a pro se plaintiff's filings, it cannot act as his lawyer, and it cannot delve through the record to find favorable evidence for him. Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir. 1989) ("A district court need not scour the record to make the case of a party who does nothing."). Thus, the Court will, unless otherwise stated, deem Defendants' facts undisputed for purposes of deciding their motion for summary judgment. See Fed. R. Civ. P. 56(e); Civ. L. R. 56(b)(4); Hill v. Thalacker, 210 F.App'x 513, 515 (7th Cir. 2006) (noting that district courts have discretion to enforce procedural rules against pro se litigants).

         2.2 Poff's Claims ...


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