United States District Court, E.D. Wisconsin
RAYMOND J. BERGERON DAVILA, Plaintiff,
CHRISTOPHER SCHMALING, DOUGLAS WEARING, LT. BRADLEY FRIEND, C.O. JOSEPH ZIMMER, and JOHN DOES, Defendants.
STADTMUELLER U.S. DISTRICT JUDGE
December 14, 2016, Plaintiff filed his Complaint in this
matter. (Docket #1). Plaintiff alleges that Defendants failed
to appropriately address his self-harming activities while he
was housed at Racine County Jail (the “Jail”).
(Docket #21 at 3-5; Docket #55 at 2). On May 24, 2017, the
Court screened Plaintiff's Second Amended Complaint and
allowed him to proceed on a number of claims. (Docket #55 at
3-4). On October 6, 2017, Defendants moved for summary
judgment on the basis of, inter alia,
Plaintiff's failure to exhaust his administrative
remedies as required by the Prison Litigation Reform Act
(“PLRA”). (Docket #101 and #103). Plaintiff filed
nothing in response to the motion, and his time in which to
do so has long since expired. Civ. L. R. 7(b).
Plaintiff's failure to oppose Defendants' motion in
any form, standing alone, warrants granting the motion. Civ.
L. R. 7(d). Nevertheless, on the undisputed facts presented,
Plaintiff failed to exhaust his administrative
STANDARD OF REVIEW
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).
Plaintiff's Failure to Dispute the Material
relevant facts are undisputed because Plaintiff failed to
dispute them. In the Court's scheduling order, entered
May 11, 2017, Plaintiff was warned about the requirements for
opposing a motion for summary judgment. (Docket #51 at 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
#101). He was provided with additional copies of those Rules
along with Defendants' motion. Id. at 2-4. In
connection with their motion, Defendants filed a supporting
statement of material facts that complied with the applicable
procedural rules. (Docket #102). 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.
noted above, Plaintiff filed absolutely nothing in response
to Defendants' motion, much less a response to their
statement of facts. 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, unless
otherwise stated, 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).
Exhaustion of Prisoner Administrative Remedies
helpful to review how the PLRA's exhaustion requirement
plays out in the Jail 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.
Jail provides each inmate with a handbook which explains the
grievance procedure. When inmates believe they have a
basis for a grievance, and informal resolution of the issue
is not possible, they must submit a written complaint. The
Jail requires inmates to use the “Inmate Request”
form to offer a grievance. The grievance must be legible,
include the inmate's housing location, be dated, signed,
and submitted within seven days of the complained-of
completed, the grievance must be submitted to Jail staff, who
conduct an initial review of the request for compliance with
Jail rules. If the form is properly filled out, the receiving
officer initials the form, writes down their badge number,
dates the form, and forwards it on for further review. A Jail
sergeant provides a response for each legitimate complaint.
If the inmate is not satisfied with the sergeant's
response, they may file an appeal with a Jail captain within
seven days after the response was received.
grievances that do not follow the above-mentioned rules or
that contain threats or profanity will not receive a
response. If a grievance is not considered because it was
filed improperly, another grievance may be submitted, though
the new grievance must comply with all requirements,
including the seven-day time limitation. Inmates who need
assistance in submitting a grievance or understanding the
process can speak to Jail staff. Inmates who are on suicide
watch status may submit a grievance by requesting the
appropriate form and a pencil during their hour out of their
cell. If the severity of the inmate's status is such that