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Howell v. Broadbent

United States District Court, W.D. Wisconsin

March 22, 2018

JOEY HOWELL, Plaintiff,
v.
ANTHONY BROADBENT, JOSEPH CICHANOWICZ, SUSAN DAX, JEREMY MCDANIEL, and JOSEPH BELZ, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Plaintiff Joey Howell, an inmate at the Wisconsin Secure Program Facility (WSPF), alleges that Susan Dax, a nurse at Gundersen Boscobel Area Hospital and Clinics, violated his Eighth Amendment rights by sexually assaulting him, and that after he reported the sexual assault, the remaining defendants, all state prison officials, violated his First Amendment rights by retaliating against him.

         Three issues are before the court. First, the state defendants have filed a motion for summary judgment based on Howell's failure to exhaust his administrative remedies. Howell and the state defendants dispute the authenticity of an administrative appeal Howell says that he filed. To rule on this motion, I will have to conduct a hearing to determine the authenticity of that document.

         Second, defendant Dax has filed a motion to dismiss for Howell's failure to prosecute the lawsuit, which I will construe as a motion to compel discovery. I will deny the motion, direct Dax to recast her discovery requests to narrow the scope of information she seeks, and direct Howell to respond to the modified requests or explain his objections to them.

         Third, Howell has submitted a letter to the court alleging misconduct by a Gundersen Boscobel surgeon and prison officials administering his medication, as well as ongoing retaliation by prison officials that he says makes it difficult for him to litigate this and another lawsuit. I will instruct Howell that new allegations of retaliation and the mishandling of his medication cannot be brought in this case, and if he wishes to pursue his allegations against the surgeon, he must file a supplement amending his complaint.

         A. Exhaustion

         Howell brings the following claims:

• Nurse Susan Dax sexually assaulted Howell while he was being treated at Gundersen Boscobel, in violation of the Eighth Amendment.
• Prison officials Joseph Belz and Jeremy McDaniel threatened Howell to dissuade him from filing a grievance about the alleged sexual assault, in violation of the First Amendment.
• Prison officials Anthony Broadbent and Joseph Cichanowicz retaliated against him for filing a grievance by issuing a conduct report for lying about staff, in violation of the First Amendment.

         The state defendants have filed a motion for summary judgment based on Howell's failure to exhaust his administrative remedies. Dkt. 25. They argue that Howell did not exhaust his administrative remedies because he did not appeal his conduct report. Id., at 1.

         To succeed on a motion for summary judgment, the moving party must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c), Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party.” Brummet v. Sinclair Broad. Grp., 414 F.3d 686, 692 (7th Cir. 2005). All reasonable inferences from the facts in the summary judgment record must be drawn in the nonmoving party's favor. Baron v. City of Highland Park, 195 F.3d 333, 338 (7th Cir. 1999).

         Under 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to prison conditions . . . until such administrative remedies as are available are exhausted.” The exhaustion requirement is mandatory, Woodford v. Ngo, 548 U.S. 81, 85 (2006), and “applies to all inmate suits.” Porter v. Nussle, 534 U.S. 516, 524 (2002). The purpose of administrative exhaustion is not to protect the rights of officers, but to give prison officials a chance to resolve the complaint without judicial intervention. Perez v. Wis. Dep't of Corr., 182 F.3d 532, 537-38 (7th Cir. 1999) (exhaustion serves purposes of “narrow[ing] a dispute [and] avoid[ing] the need for litigation”).

         Section 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 ...


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