United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE.
La'Mont Walker is a prisoner currently housed at the
Wisconsin Secure Program Facility (WSPF). Walker alleges that
prison officials wrongfully designated him as a gang member
and placed him in administrative confinement there for more
than three years. Defendants have filed a motion for summary
judgment based on Walker's failure to exhaust his
administrative remedies regarding these claims. I will grant
that motion in part, dismissing Walker's claims regarding
his initial placement in administrative confinement, but
allowing him to continue with claims about the periodic
reviews of his placement over the next few years. Walker has
also filed a motion for leave to amend his complaint and a
motion regarding tampering or withholding of documents. I
will deny both of those motions.
plaintiff La'Mont Walker has been confined at WSPF from
December 2010 to the present. In December 2011, Walker was
recommended for placement into administrative confinement on
the ground that he presented a substantial risk of serious
physical harm to other inmates and staff. Walker had a large
number of disciplinary infractions over the preceding 18
months. Walker believes this was in part due to an erroneous
determination that he was involved in gang-related activity.
December 23, 2011, The Administrative Confinement Review
Committee (ACRC) reviewed the records and recommended that
Walker be placed in administrative confinement. Under
Wisconsin Administrative Code § DOC 308.04(9), an inmate
may appeal the ACRC decision to the warden and then to an
“administrator.” Walker did not appeal this
decision. After an inmate exhausts this process, the
Wisconsin Administrative Code also allows inmates to use
Inmate Complaint Review System (ICRS) grievances to challenge
the procedure used in the administrative confinement review
process. Wis. Admin. Code § DOC 310.08(3).
inmate's status in administrative confinement is reviewed
at least every six months by the ACRC. Wis. Admin. Code
§ DOC 308.04(10). After an inmate has been in
administrative confinement for 12 months or longer, the
ACRC's decisions are automatically reviewed by the warden
and administrator. Wis. Admin. Code § DOC 308.04(11). An
inmate may also file a procedure-based grievance through the
ICRS. Id. Walker filed a series of ICRS grievances
in the months and years following his initial confinement,
none of which were successful. Walker served a total of about
three and one-half years in administrative confinement.
have filed a motion for summary judgment on the ground that
Walker failed to exhaust his administrative remedies on his
due process claims.
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.
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.
exhaustion is an affirmative defense, defendants bear the
burden of establishing that Walker failed to exhaust his
available remedies. Jones v. Bock, 549 U.S. 199, 216
(2007). At the summary judgment stage, they must show that
there is no genuine dispute of material fact and that they
are entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
state contends that Walker has failed to exhaust all of his
claims because he failed to appeal his initial placement in
administrative confinement. Walker concedes that he did not
appeal the initial ACRC decision. I agree with the state that
Walker's failure to appeal his initial placement means
that he has failed to exhaust his administrative remedies
with regard to the initial placement, because he failed to
pursue the administrative remedies afforded to him by the
this case is not just about Walker's initial placement in
administrative confinement. It is about his continued,
three-and-one-half-year placement. See Hewitt v.
Helms,459 U.S. 460, 477 n.9 (1983) (inmates have due
process right to periodic review of administrative
segregation placement), abrogated in part on other
grounds by Sandin v. Conner,515 U.S. 472 (1995). In
particular, Walker brings claims that defendants continued to
keep him in administrative confinement as a “gang
member” even though he was ...