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Smith v. Boughton

United States District Court, W.D. Wisconsin

February 8, 2018

ADREAN L. SMITH, Plaintiff,
v.
GARY BOUGHTON, M. KARTMAN, CAPT. PRIMMER, LT. LEFFLER, SGT. BLOYER and SGT. BERGER, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB District Judge

         Pro se plaintiff and prisoner Adrean Smith contends that prison officials at the Wisconsin Secure Program Facility in Boscobel, Wisconsin, deprived him of a bed and mattress for 40 days as a disciplinary sanction for allegedly damaging a mattress. Plaintiff is proceeding on Eighth Amendment and Fourteenth Amendment due process claims. Now before the court are the parties' cross motions for partial summary judgment on the due process claim. Dkt. ##13 and 17. Plaintiff believes that he is entitled to judgment as a matter of law and that defendants are not entitled to qualified immunity. Defendants say that plaintiff failed to exhaust his administrative remedies by not raising the due process issue before he filed suit in this court; alternatively, they contend that plaintiff's claim fails as a matter of law and that they are entitled to qualified immunity. For the reasons set out below, I am granting defendants' motion for summary judgment and denying plaintiff's motion. Although defendants have not met their burden of showing that plaintiff failed to exhaust his administrative remedies with respect to his due process claim, plaintiff's claim fails on the merits and will be dismissed.

         From the parties' proposed findings of fact, I find that the following facts are undisputed unless otherwise noted.

         UNDISPUTED FACTS

         Plaintiff Adrean Smith has been incarcerated in the Restricted Housing Unit at the Wisconsin Secure Program Facility in Boscobel, Wisconsin since May 7, 2015. At the time he entered restrictive status housing, he received a copy of the facility's “Restricted Housing Inmate Handbook, ” which states that Division of Adult Institutions Policy and Procedure § 306.00.34 allows security supervisors to place inmates on restrictions and security precautions when the inmates are the subject of an incident report or conduct report. The policy requires the security director to review the restriction or precaution and formally notify the inmate of the action taken.

         On or about March 8, 2016, plaintiff told two unidentified correctional officers that the cell he had been placed in had a damaged mattress, adding that he did not want to be charged for something that he did not do. One of the officers stated that “We can't get to it right now cause we're kind of short of staff, but on Monday I'll make sure we swap your mat out.” The officer also told plaintiff that he would make a note of the mattress damage.

         On March 11, 2016, plaintiff was subjected to a random cell search and the damaged mattress was discovered. Plaintiff was issued a conduct report for allegedly violating Wis. Admin. Code § DOC 303.47 for possession of miscellaneous contraband and § DOC 303.38 for damage or alteration of property. Because both offenses constituted minor violations under the disciplinary code, the conduct report was adjudicated on a paper record without a hearing. In accordance with Wis. Admin. Code § DOC 303.77, plaintiff completed a DOC-9B form entitled “Inmate's Statement for Contested Minors.” Defendant Lieutenant Leffler, a supervising officer, reviewed the conduct report and plaintiff's statement and found plaintiff guilty of the two rule violations. As punishment, he imposed a 14-day room confinement, a 3-day loss of electronics, restitution in the amount of $125.00 for the damaged mattress and destruction of the other contraband found in plaintiff's cell. Although the form “DOC-91 - Appeal of Adjustment Committee of Hearing Officer's Decision” is provided to all inmates entering the restricted housing unit, plaintiff did not complete that form or appeal this determination.

         On March 14, 2016, plaintiff received a “DOC-2297 Offender Restriction/Precaution Notice, ” notifying him that his regular mattress would be replaced with a “high security mattress” for 10 days because the string at the end of the mattress plaintiff had received had been removed, revealing the contents. (A “high security mattress” is 3/4-inch thick and made of heavy-duty rubber; a regular mattress is four inches thick and made of foam inside a vinyl cover.) Initially, defendant Leffler recommended a 14-day restriction, but defendant Mark Kartman, the Security Director, reduced the restriction to 10 days.

         The security mattress was not taken away at the end of the 10-day restriction period. Plaintiff was not given a new mattress until he filed an inmate complaint about the mattress on March 31, 2016. Dkt. #21, exh. 1 at 11. In that complaint, plaintiff did not challenge his placement on the mattress restriction, but said only that “On 3/21/16 I was suppose[d] to be removed from mattress-restriction, However I've still have not received my regular mattress.” Id. The complaint was investigated and affirmed, and plaintiff was given a regular mattress. Plaintiff had the security mattress instead of a standard mattress for a total of 40 days. He avers that the security mattress was hard and filthy and caused him back and side pain, which prevented him from sleeping.

         OPINION

         Plaintiff is proceeding on a claim that he was denied due process because he did not have notice that he could be disciplined by the loss of his mattress. Dkt. #6 at 5-6. In particular, plaintiff contends that being deprived of a mattress is not one of the punishments listed in the prison regulations for the type of misconduct of which he was accused and he says did not otherwise have advance notice of that penalty. Before discussing the merits of plaintiff's claim, I will take up the issue of exhaustion.

         A. Exhaustion

         Under 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” As a general rule, compliance with § 1997e(a) requires a prisoner to “properly take each step within the administrative process.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). This includes following instructions for filing the initial grievance, Cannon v. Washington, 418 F.3d 714, 718 (7th Cir. 2005), as well as filing all necessary appeals, Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005), “in the place, and at the time, the prison's administrative rules require.” Pozo, 286 F.3d at 1025. The purpose of these requirements is to give the prison administrators a fair opportunity to resolve the grievance without litigation. Woodford v. Ngo, 548 U.S. 81, 88-89 (2006).

         If a prisoner fails to exhaust administrative remedies available to him before filing his lawsuit, the court must dismiss the case without prejudice. Fluker v. County of Kankakee, 741 F.3d 787, 791 (7th Cir. 2013) (dismissals for failure to exhaust are always without prejudice, “even if exhausting administrative remedies will prove to be impossible”); Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 535 (7th Cir. 1999). However, “[a] prison administrative procedure is unavailable for purposes of the [Prison Litigation Reform Act]'s exhaustion requirement when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross v. Blake, 136 S.Ct. 1850, 1860 (2016) (emphasis added) ...


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