United States District Court, W.D. Wisconsin
SCOTT A. BROWN, Plaintiff,
JASEN MILLER, Defendant.
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE.
plaintiff Scott A. Brown, a Wisconsin prisoner incarcerated
at the Columbia Correctional Institution (CCI), is proceeding
on an Eighth Amendment claim against defendant Jasen Miller,
a CCI correctional officer. Brown alleges that Miller failed
to restrain him despite Brown's warnings that he would
harm himself by cutting his arm.
opinion addresses all motions that are pending before the
court. The main issue is Miller's motion for summary
judgment for Brown's failure to exhaust available
administrative remedies. Dkt. 41. Brown failed to appeal the
reviewing authority's decision within the applicable
deadline, so Brown failed to satisfy the exhaustion
requirements. I will grant summary judgment in favor of
Miller and dismiss the case. All other motions, namely
Brown's motion to “dismiss” Miller's
summary judgment motion, Dkt. 70, motions to compel, Dkt. 46
and Dkt. 63, and motion for summary judgment, Dkt. 50, are
Brown's motion to dismiss Miller's summary judgment
with Brown's motion to dismiss Miller's summary
judgment motion for failure to exhaust. Dkt. 70. Brown
contends that I should not consider Miller's motion
because Miller has failed to file proposed findings of fact
in support. Id. ¶¶ 1-4. Brown is mistaken.
As the court explained in the pretrial conference order, the
parties need not file proposed findings of fact to support
summary judgment motions for exhaustion. Dkt. 15, at 4. Thus,
I will deny Brown's motion to dismiss Miller's motion
for summary judgment.
Miller's motion for summary judgment for Brown's
failure to exhaust administrative remedies
moves for summary judgment for Brown's failure to exhaust
administrative remedies under the Prison Litigation Reform
Act. Dkt. 41. I will grant Miller's motion.
succeed on a motion for summary judgment, the movant must
show that there is no genuine dispute of material fact and
that he is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). “A genuine issue of material fact
arises only if sufficient evidence favoring the nonmoving
party exists to permit a jury to return a verdict for that
party.” Brummett v. Sinclair Broad. Grp.,
Inc., 414 F.3d 686, 692 (7th Cir. 2005). All reasonable
inferences from the facts in the summary judgment record must
be drawn in the nonmoving party's favor. Baron v.
City of Highland Park, 195 F.3d 333, 338 (7th Cir.
the PLRA, a prisoner must exhaust available administrative
remedies before suing in court. 42 U.S.C. § 1997e(a).
The exhaustion requirement is mandatory, Woodford v.
Ngo, 548 U.S. 81, 85 (2006), and “applies to all
inmate suits.” Porter v. Nussle, 534 U.S. 516,
532 (2002). To satisfy the exhaustion requirement, a prisoner
must “properly take each step within the administrative
process, ” which includes filing grievances and appeals
“in the place, and at the time, the prison's
administrative rules require.” Pozo v.
McCaughtry, 286 F.3d 1022, 1024, 1025 (7th Cir. 2002).
In Wisconsin, the administrative code provides the process
for a prisoner to file a grievance and appeal an adverse
decision, and failure to follow the procedural rules set
forth in the administrative code results in dismissal of the
prisoner's claims. Perez v. Wis. Dep't of
Corr., 182 F.3d 532, 535 (7th Cir. 1999). The critical
requirement here is that a prisoner must appeal a reviewing
authority's decision within “10 calendar
days.” Wis. Admin. Code § DOC 310.13(1).
appeal of the reviewing authority's decision was
untimely. The reviewing authority, Warden Michael Dittmann,
dismissed Brown's grievance on March 19, 2015. Dkt. 43,
¶ 17 and Dkt. 44, at 4. So Brown had until March 29 to
appeal the decision, but Brown signed his appeal on March 31.
Dkt. 45, at 12. Brown's appeal was therefore untimely.
contends that his untimely appeal should be excused because
he did not have a pencil and an appropriate form to appeal
the decision within 10 days. Brown states that he was on
either control or observation status on various dates and, on
those dates, he was denied a pencil and an appropriate form
for security purposes. Miller responds that Brown was not
actually on control or observation status during March 2015
and supports this proposition with evidence. Dkt. 62-1, at 3.
I could hold a hearing to resolve this factual dispute,
see Pavey v. Conley, 544 F.3d 739, 741 (7th Cir.
2008), but a hearing is unnecessary here.
has not raised a genuine dispute that he lacked the means to
file an appeal form between March 19 and 29. Brown provides
various versions of facts, but I will begin with the versions
contained in his affidavits, Dkt. 54 and Dkt. 69. In his
original affidavit, Brown states that he was on control
status until March 23, but when he got off control status, he
had to wait until March 28 to receive his property. Dkt. 54,
¶¶ 10-11. He then had to wait some additional,
unidentified length of time to get a pencil and an
appropriate form. Id. ¶ 11. This version of
facts does not establish that Brown lacked the means to fill
out an appeal form on March 28 or 29. Brown does not
indicate, let alone support with admissible evidence, whether
he actually acquired a pencil and an appeal form after March
29 or whether those items were unavailable to him on March 28
or 29. So the critical fact whether Brown had means to appeal
the decision before March 29 is left vague, and Brown cannot
withstand summary judgment by means of obfuscation.
supplemental affidavit, Brown concedes that he received a
pencil and an appropriate form on March 28. Dkt. 69, ¶
2. If he had those items on March 28, he could file his
appeal form either on March 28 or 29 to satisfy the
exhaustion requirement. So this version of facts, too, does
not enable Brown to withstand summary judgment.
version of facts, provided in Brown's brief, is that he
got off control status on March 23 but inmates could acquire
pencils and appeal forms from CCI staff only on Tuesdays and
Thursdays. Dkt. 51, at 6-7. The proposition that CCI
distributes pencils and forms only on Tuesdays and Thursdays
is not supported by admissible evidence. In any event, even
under this version, Brown cannot prevail. ...