United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
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.
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.
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.
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.
brings the following claims:
• Nurse Susan Dax sexually assaulted Howell while he was
being treated at Gundersen Boscobel, in violation of the
• 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
• 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.
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.
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).
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”).
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