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Rozak v. Randt

United States District Court, W.D. Wisconsin

October 25, 2017

RYAN K. ROZAK, Plaintiff,

          OPINION & ORDER


         Plaintiff Ryan K. Rozak, a prisoner at the Fox Lake Correctional Institution, brings claims that several prison officials violated his First Amendment rights by retaliating against him for filing lawsuits and grievances. I allowed Rozak to proceed on claims against defendants Sergeant Randt, Sergeant Paul, George Cooper, and Dr. Larson, but I dismissed other defendants and noted that Rozak appeared to be attempting to bring claims against other officials who were not named as defendants. See Dkt. 10. I gave Rozak a chance to supplement his amended complaint to clarify some of his claims. Rozak has done so, Dkt. 14, and he has filed a second supplement as well, Dkt. 28, so I will screen his new allegations. Several other matters are also before the court. Rozak asks for help in getting counsel to represent him. Defendants have filed a motion for partial summary judgment based on Rozak's failure to exhaust his administrate remedies. Dkt. 20. Defendants also seek a stay of the schedule pending resolution of their exhaustion motion.

         A. Supplements to the complaint

         Rozak says that he wants to bring a claim against Warden Randall Hepp because he responded to Rozak's letters by saying that Rozak should use the grievance process to address his concerns about retaliation. Rozak says that this means that Hepp ignored his complaints, but this is incorrect. The Constitution does not require that Hepp personally investigate every letter sent to him, and pointing Rozak to the appropriate avenues for relief is an acceptable response. Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009) (“[P]risoner's view that everyone who knows about a prisoner's problem must pay damages implies that he could write letters to the Governor of Wisconsin and 999 other public officials, demand that every one of those 1, 000 officials drop everything he or she is doing in order to investigate a single prisoner's claims, and then collect damages from all 1, 000 recipients . . . . That can't be right.”). Rozak's allegations also do not support a retaliation claim because they do not suggest that Hepp acted the way he did to get back at Rozak for filing lawsuits and grievances.

         Rozak also states that he would like to bring retaliation claims against Sergeant Przybylinski for firing him from his job and against Captain Jamie Kuholk for ordering him to be confined to his room. But he says that he is not sure whether he may bring those claims in this lawsuit because he also brought them in another lawsuit, Rozak v. Hepp, No. 15-cv-134-jdp (W.D. Wis.). I conclude that he is barred from bringing those claims in this lawsuit because they were dismissed with prejudice along with the rest of his claims in the '134 case after the parties stipulated to dismissing that case with prejudice after reaching a settlement. The doctrine of claim preclusion bars successive litigation of “any claims that were litigated or could have been litigated in a previous action, ” Bell v. Taylor, 827 F.3d 699, 706 (7th Cir. 2016); see also Reed v. Mackey, 669 F. App'x 307, 308 (7th Cir. 2016) (“a district court may raise the issue [of claim preclusion] sua sponte when . . . preclusion clearly applies”) (citing Kratville v. Runyon, 90 F.3d 195, 197-98 (7th Cir. 1996)).

         Rozak wants to add retaliation claims against Sergeant Gemetzke and Sergeant Bailey for constantly harassing him. These claims do not suffer from the flaws mentioned above. For the same reasons that I allowed Rozak to proceed on retaliation claims against the other defendants for their repeated harassing actions, I will allow him to proceed against Gemetzke and Bailey.

         B. Exhaustion

         Defendants have filed a motion for summary judgment on the ground that Rozak failed to exhaust his administrative remedies on most of his retaliation claims. Under the Prison Litigation Reform Act, “[n]o action shall be brought with respect to prison conditions . . . until such administrative remedies are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement is mandatory and “applies to all inmate suits.” Woodford v. Ngo, 548 U.S. 81 (2006); Porter v. Nussle, 534 U.S. 516, 524 (2002). The exhaustion requirement's primary purpose is to “alert[ ] the state” to the problem “and invit[e] corrective action.” Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004).

         Section 1997e(a) requires “proper exhaustion, ” Woodford, 548 U.S. at 93; Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which means that the prisoner must follow prison rules when filing the initial grievance and all necessary appeals, “in the place, and at the time, the prison's administrative rules require.” Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005). “[A] prisoner who does not properly take each step within the administrative process has failed to exhaust state remedies.” Pozo, 286 F.3d at 1024. The Wisconsin Department of Corrections uses a four-step process called the Inmate Complaint Review System (ICRS) to review inmate grievances. See Wis. Admin. Code Ch. DOC 310.

         Before Rozak amended his complaint to include claims against new defendants Gemetzke and Sergeant Bailey, I allowed him to proceed on the following retaliation claims:

1. Defendant Randt did not hire Rozak
2. Randt performed a search of Rozak's cell without an appropriate reason
3. Randt would not allow Rozak to take two pieces of fruit out of ...

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