United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
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
STANDARD OF REVIEW
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).
Exhaustion of Prisoner Administrative Remedies
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).
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).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).
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.
Poff's Failure to Dispute the Material Facts
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.
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).
Poff's Claims ...