United States District Court, E.D. Wisconsin
BERNARD E. KRETLOW, Plaintiff,
DR. LISA ALLEN and SHANE GARLAND, Defendants.
Stadtmueller, U.S. District Judge.
March 31, 2017, Magistrate Judge William E. Duffin screened
Plaintiff's complaint and allowed him to proceed on a
claim under the Eighth Amendment for Defendants' failure
to provide him adequate medical care. (Docket #16). This
action was reassigned to this branch of the Court on April
18, 2017. On June 13, 2017, Defendants moved for summary
judgment on the basis of Plaintiff's failure to exhaust
his administrative remedies as required by the Prison
Litigation Reform Act (“PLRA”). (Docket #22).
Plaintiff responded to the motion on June 19, 2017, and
Defendants replied on June 26, 2017. (Response, Docket #26;
Reply, Docket #29). For the reasons explained below,
Defendants' motion must be granted.
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).
Plaintiff's Failure to Dispute the Material
relevant facts are undisputed because Plaintiff failed to
dispute them. In the Court's scheduling order, entered
April 24, 2017, Plaintiff was warned about the requirements
for opposing a motion for summary judgment. (Docket #20 at
2-3). 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. In Defendants' motion for summary
judgment, they too warned Plaintiff about the requirements
for his response as set forth in Federal and Local Rules 56.
(Docket #22). He was provided with additional copies of those
Rules along with Defendants' motion. Id. at
3-13. In connection with their motion, Defendants filed a
supporting statement of material facts that complied with the
applicable procedural rules. (Docket #24). It contained
short, numbered paragraphs concisely stating those facts
which Defendants proposed to be beyond dispute, with
supporting citations to the attached evidentiary materials.
response, Plaintiff submitted a two-page document with a
one-page attachment. (Docket #26). In his submission,
Plaintiff provides argument as to why he believes “this
lawsuit should be able [sic] too continue[.]”
Id. at 2. Plaintiff's submission is not sworn,
nor is it accompanied by any documents or other evidence
other than what Defendants attached to their own statement of
facts. (Docket #26-1). Plaintiff's response does not
attempt to address Defendants' statement of facts.
See generally (Docket #26).
being twice warned of the strictures of summary judgment
procedure, Plaintiff ignored those rules by failing to
properly dispute Defendants' proffered facts with
citations to relevant, admissible evidence. Smith v.
Lamz, 321 F.3d 680, 683 (7th Cir. 2003). 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. 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).
Exhaustion of Prisoner Administrative Remedies
helpful to review how the PLRA's exhaustion requirement
plays out in the Wisconsin prison system prior to relating
the relevant facts. The 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). Exhaustion is a precondition to suit; a prisoner
cannot file an action prior to exhausting his administrative
remedies or in anticipation that they will soon be exhausted.
Hernandez v. Dart, 814 F.3d 836, 841-42 (7th Cir.
2016); Ford v. Johnson, 362 F.3d 395, 398 (7th Cir.
2004). A lawsuit must be dismissed even if the prisoner
exhausts his administrative remedies during its pendency.
Ford, 362 F.3d at 398.
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), 310.11.1 The reviewing
authority may accept or reject the ICE's recommendation.
Id. at § 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 ...