United States District Court, W.D. Wisconsin
RYAN K. ROZAK, Plaintiff,
SGT. RANDT, SGT. PAUL, GEORGE COOPER and DR. LARSON, Defendants.
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE.
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.
Supplements to the complaint
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
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)).
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
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).
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.
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
3. Randt would not allow Rozak to take two pieces of fruit
out of ...