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Adames v. Bikowski

United States District Court, E.D. Wisconsin

October 11, 2017

JOSE A. ADAMES, Plaintiff,


          J. P. Stadtmueller, U.S. District Judge

         1. INTRODUCTION

         Plaintiff's lawsuit alleges that Defendants Robert J. Bikowski (“Bikowski), Jonathan S. Pawlyk (“Pawlyk”), Brad D. Bade (“Bade”), Capt. Nathan E. Haynes (“Haynes”), and Jodi L. Tritt (“Tritt”) (collectively, the “Officers”), all correctional officers at Waupun Correctional Institution (“Waupun”), used excessive force against him in relation to his suicide attempt on January 31, 2016, namely in obtaining compliance from Plaintiff and later extracting him from his cell. (Docket #21 at 2-3). Plaintiff further alleges that Defendant Gwendolyn A. Vick (“Vick”), a nurse at Waupun, was deliberately indifferent to his medical needs after the excessive force incident. (Docket #26 at 2-3). On February 23, 2017, the Court screened Plaintiff's second amended complaint (his current operative pleading) and allowed him to proceed on both claims pursuant to the Eighth Amendment. Id. at 5.

         On September 1, 2017, Defendants moved for summary judgment on, inter alia, the ground that Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”). (Docket #48). Plaintiff filed responsive materials on September 18, 2017. (Docket #55, #56, and #57). Defendants replied on October 2, 2017. (Docket #59). For the reasons explained below, Defendants' motion must be granted.


         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).

         3. BACKGROUND

         3.1 Plaintiff's Failure to Dispute the Material Facts

         The relevant facts are undisputed because Plaintiff failed to dispute them. In the Court's scheduling order, entered January 24, 2017, Plaintiff was warned about the requirements for opposing a motion for summary judgment. (Docket #23 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 #48). 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 #50). It contained short, numbered paragraphs concisely stating those facts which Defendants proposed to be beyond dispute, with supporting citations to the attached evidentiary materials. See id.

         In response, Plaintiff submitted a six-page document titled “Plaintiff's Response to Defendants' Proposed Finding of Fact.” (Docket #55). Despite its name, the document does not actually respond to Defendants' proposed facts in an understandable manner. Instead, Plaintiff variously responds to Defendants' facts out of order (changing the numbering as established in Defendant's own statement), re-words the facts, or simply conjures up facts out of thin air. See, e.g., Id. at 2, ¶ 7 (correctly transcribing Defendant's proposed fact No. 8), ¶ 9 (changing Defendants' wording), ¶ 10 (stating a “fact” found nowhere in Defendant's statement). More importantly, none of Plaintiff's responses to these “facts” are supported by citation to any evidence. See generally Id. In sum, the document does not appropriately respond to Defendants' statement of facts. Civil L. R. 56(b)(2)(B).

         Despite 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 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).

         3.2 Exhaustion of Prisoner Administrative Remedies

         It is 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.

         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 inmates must take to exhaust their administrative remedies under the ICRS. First, an 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. ยง 310.11(6). If the complaint is not rejected, the ICE issues a recommendation ...

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