United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
Jamonte Allgood (“Allgood”), a prisoner, brings
this action pursuant to 42 U.S.C. § 1983 against
Defendants, prison officials at Racine Correctional
Institution, alleging that two physicians acted with
deliberate indifference to his medical needs and that a
prison guard employed excessive force against him.
See (Docket #33, #36). Defendants filed a motion for
summary judgment on July 7, 2017, arguing that Allgood failed
to exhaust his administrative remedies before filing suit on
these claims. (Docket #48). The motion has been fully
briefed, and for the reasons stated below, it will be
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); 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).
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);
Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir.
2005). A suit must be dismissed if it was filed before
exhaustion was complete, even if exhaustion is achieved
before judgment is entered. Perez v. Wis. Dep't of
Corr., 182 F.3d 532, 535 (7th Cir. 1999). Several
important policy goals animate the exhaustion requirement,
including restricting frivolous claims, giving prison
officials the opportunity to address situations internally,
giving the parties the opportunity to develop the factual
record, and reducing the scope of litigation. Smith v.
Zachary, 255 F.3d 446, 450-51 (7th Cir. 2001). 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 an offender complaint with the
Institution Complaint Examiner (“ICE”) within
fourteen days of the events giving rise to the complaint.
Id. §§ DOC 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. §§ DOC 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. § DOC 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. §§ DOC 310.07(2),
310.11. The reviewing authority may accept or reject the
ICE's recommendation. Id. § DOC 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. §§ DOC 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.
§§ DOC 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. §§ DOC 310.07(7), 310.14.
available remedies in connection with disciplinary
proceedings follows a slightly different path. An inmate may
not use an ICRS complaint to challenge a conduct report,
except that the inmate may file such a complaint after the
disciplinary proceedings have been closed to challenge
procedural errors during the proceedings. Id. §
DOC 310.08. In order to exhaust administrative remedies with
respect to issues related to a conduct report, “the
inmate must raise it at the time of his disciplinary hearing
and again on appeal to the warden, assuming the matter is not
resolved at the disciplinary hearing stage.”
Lindell v. Frank, 05-cv-003, 2005 WL 2339145, at
*27-28 (W.D. Wis. Sept. 23, 2005); Wis. Admin. Code
§§ DOC 303.80-303.82. The appeal to the warden is
final regarding the sufficiency of the evidence for a
disciplinary decision. Wis. Admin. Code § DOC 303.82(4).
Allgood's Failure to Dispute the Material Facts
relevant facts are undisputed because Allgood did not
properly dispute them. In the Court's scheduling order,
issued May 8, 2017, Allgood was warned about the requirements
for opposing a motion for summary judgment. (Docket #28 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. Most relevant here is Local Rule
56(b)(2), which obligates the non-movant on summary judgment
to file “a concise response to the moving party's
statement of facts that must contain a reproduction of each
numbered paragraph in the moving party's statement of
facts followed by a response to each paragraph, including, in
the case of any disagreement, specific references to the
affidavits, declarations, parts of the record, and other
supporting materials relied upon[.]” Civ. L. R.
on July 7, 2017, Defendants filed their motion for summary
judgment. (Docket #48). In the motion, Defendants also warned
Allgood 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. In
connection with their motion, Defendants filed a supporting
statement of material facts that complied with the applicable
procedural rules. (Docket #50). It contained short, numbered