United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
December 6, 2017, the Court screened Plaintiff's
complaint and allowed him to proceed on a claim under the
Eighth Amendment for Defendants' deliberate indifference
to his serious medical needs. (Docket #13). On February 5,
2018, Defendants moved for summary judgment on the basis of
Plaintiff's failure to exhaust his administrative
remedies as required by the Prison Litigation Reform Act
(“PLRA”). (Docket #22). Plaintiff responded to
the motion on February 27, 2018, (Docket #28), and Defendants
replied on March 12, 2018, (Docket #30). For the reasons
explained below, Defendants' motion must be granted.
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); 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
January 4, 2018, Plaintiff was warned about the requirements
for opposing a motion for summary judgment. (Docket #20 at
2-3). 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 #22). He was provided with additional copies of those
Rules along with Defendants' motion. Id. at
3-13. In connection with their motion, Defendants filed a
supporting statement of material facts that complied with the
applicable procedural rules. (Docket #24). It contained
short, numbered paragraphs concisely stating those facts
which Defendants proposed to be beyond dispute, with
supporting citations to the attached evidentiary materials.
did not file a document titled as a response to
Defendants' statement of facts. Instead, he filed a
three-page legal brief and a three-page declaration. (Docket
#28, #29). Neither complies with the above-mentioned
procedural rules; Plaintiff does not attempt to respond to
Defendants' proposed facts with citations to evidence.
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
be helpful to review how the PLRA's exhaustion
requirement plays out in the Wisconsin prison system 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).
important policy goals animate the exhaustion requirement,
including restricting frivolous claims, giving prison
officials the opportunity to address situations internally,
giving the parties the opportunity to develop the factual
record, and reducing the scope of litigation. Smith,
255 F.3d at 450-51.
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.
Wisconsin Department of Corrections maintains an Inmate
Complaint Review System (“ICRS”) to provide a
forum for administrative complaints. Wis. Admin. Code §
DOC 310.04. There are two steps inmates must take to exhaust
their administrative remedies under the ICRS. First, the
inmate must file an offender complaint with the Institution
Complaint Examiner (“ICE”) within fourteen days
of the events giving rise to the complaint. Id.
§§ DOC 310.07(1), 310.09(6). The ICE may reject a
complaint or, before accepting it, can direct the inmate to
“attempt to resolve the issue.” See Id.
§§ DOC 310.08, 310.09(4), 310.11(5). If the
complaint is rejected, the inmate may appeal the rejection to
the appropriate reviewing authority. Id. § DOC
310.11(6). If the complaint is not rejected, the ICE
issues a recommendation ...