United States District Court, E.D. Wisconsin
CARL D. LUSK, Plaintiff,
SERGEANT COLE, SHANE GARLAND, JENNIFER R. GILBERSON, SERGEANT WEARY, and CORRECTIONAL OFFICER MODERN Defendants.
ADELMAN UNITED STATES DISTRICT JUDGE.
Carl D. Lusk, an inmate at Green Bay Correctional
Institution, brings this action alleging defendants violated
his constitutional rights by being deliberately indifferent
to his serious medical needs. On December 19, 2017,
defendants moved for summary judgment for failure to exhaust
administrative remedies. They also filed a motion requesting
that I stay the discovery and summary-judgment deadlines
pending my decision on their summary judgment motion. After
defendants' motion for summary judgment was fully
briefed, plaintiff filed a motion for me to consider facts on
January 17, 2018. For the reasons stated below, I will grant
defendants' motion for summary judgment, deny as moot
their motion to stay discovery and summary-judgment
deadlines, and grant plaintiff's motion to consider
times relevant, plaintiff was incarcerated at the Green Bay
Correctional Institution. Docket No. 55, ¶ 1. He alleges
that he has asthma and that on December 25, 2015, defendants
denied him his inhaler after he had been exposed to mace.
Docket No. 56, Ex 1000-012. He filed an inmate complaint
through the Department of Corrections' inmate complaint
review system (ICRS) about the incident, and the complaint
was received on January 4, 2016. Id., ¶ 1;
Docket No. 56, Ex 1000-012. It was dismissed with
modification on January 19, 2016. Docket No. 56, Ex 1000-004.
attempted to appeal the dismissal by mailing his appeal form
to the corrections complaint examiner using an envelope that
belonged to another inmate. Docket No. 55, ¶ 2; Docket
No. 58, ¶ 3. Plaintiff's appeal was found to have
been submitted in violation of Wis. Admin. Code § DOC
303.40, Unauthorized Transfer of Property. Docket No. 56, Ex
1000-015. So it was returned to plaintiff with a letter
explaining why. Id., Docket No. 55, ¶ 4.
resubmitted his appeal form with a letter in which he
acknowledged his violation and asked for reconsideration of
his appeal because of his indigent status. Docket No. 55,
¶ 5; Docket No. 58, ¶ 2; Docket No. 61, ¶ 1.
Due to backlog, the office of the reviewing authority had to
delay the “time for deciding” the appeal. Docket
No. 56, Ex 1000-06. The resubmitted appeal was ultimately
dismissed as untimely under Wis. Admin. Code §
310.13(1). Docket No. 55, ¶ 6.
subsequently filed this lawsuit against the defendants at
which time he requested and was granted a legal loan. Docket
No. 61, ¶ 3.
STANDARD OF REVIEW
judgment is appropriate when the moving party shows that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). All reasonable inferences are construed
in favor of the nonmoving party. Foley v. City of
Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). The party
opposing the motion for summary judgment must “submit
evidentiary materials that set forth specific facts showing
that there is a genuine issue for trial.” Siegel v.
Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010)
(citations omitted). “The nonmoving party must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Id. Summary judgment is
properly entered against a party “who fails to make a
showing sufficient to establish the existence of an element
essential to the party's case, and on which that party
will bear the burden of proof at trial.” Parent v.
Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir.
2012) (internal quotations omitted).
Prison Litigation Reform Act (PLRA) provides that a prisoner
cannot assert a cause of action under federal law
“until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a); see also
Woodford v. Ngo, 548 U.S. 81, 93 (2006) (holding that
the PLRA requires proper exhaustion of administrative
remedies). Exhaustion requires that a prisoner comply with
the rules applicable to the grievance process at the
inmate's institution. Pozo v. McCaughtry, 286
F.3d 1022, 1025 (7th Cir. 2002). This requirement
“applies to all inmate suits about prison life, whether
they involve general circumstances or particular episodes,
and whether they allege excessive force or some other
wrong.” Porter v. Nussle, 534 U.S. 516, 532
(2002). The objective of § 1997e(a) is to “permit
the prison's administrative process to run its course
before litigation begins.” Dole v. Chandler,
438 F.3d 804, 809 (7th Cir. 2006) (quoting Cannon v.
Washington, 418 F.3d 714, 719 (7th Cir. 2005)); see
also Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).
The Seventh Circuit applies a “strict compliance
approach to exhaustion, ” and expects prisoners to
adhere to “the specific procedures and deadlines
established by the prison's policy.” Dole,
438 F.3d at 809; see also Hernandez v. Dart, 814
F.3d 836, 842 (7th Cir. 2016) (citations omitted).
has implemented the Inmate Complaint Review System (ICRS)
under which inmate grievances concerning prison conditions or
the actions of prison officials are “expeditiously
raised, investigated and decided.” Wis. Admin. Code
§ DOC 310.01. Under the ICRS, an inmate must file a
complaint with the institution complaint examiner within
fourteen calendar days after the occurrence giving rise to
the complaint, unless good cause exists to excuse a delay.
Wis. Admin. Code § DOC 310.09(6). The institution
complaint examiner has the authority to return, investigate,
or recommend a decision to an appropriate reviewing
authority. Wis. Admin. Code § DOC 310.07(2)(a)- (c). If
a reviewing authority renders a decision, the inmate may
appeal that decision to the corrections complaint examiner
within ten calendar days. Wis. Admin. Code § DOC
310.13(1). After receiving an appeal, the corrections
complaint examiner shall issue a written receipt of the
appeal to the inmate within five working days, and then
recommend a decision to the Secretary of the Department of
Corrections, who adopts or rejects the recommendation. Wis.
Admin. Code §§ DOC 310.13(4), DOC 310.14(2). The
failure to properly exhaust each step of the grievance
process constitutes failure to exhaust available
administrative remedies. Pozo, 286 F.3d at 1025.
that plaintiff has failed to exhaust his administrative
remedies for his claims in this case. Plaintiff submitted his
inmate complaint within the prescribed timeline. However, his
first appeal was returned because it violated Wis. Admin.
Code § DOC 303.40. He used the envelope of another
inmate to submit his appeal form. He thus failed to comply
with the grievance process step that requires inmates to
submit their complaints “under the name by which the
inmate was committed to the department.” Wis. Admin.
Code § DOC 310.09(1)(d).
plaintiff later resubmitted his appeal using his own
stationary, he submitted it outside the allotted timeframe.
It was rejected as untimely. A grievance “rejected
solely on the basis of untimeliness” does not satisfy
the PLRA's exhaustion requirement. Conyers v.
Abitz,416 F.3d 580, 584 (7th Cir.2005); see also
Pozo v. McCaughtry,286 F.3d 1022, 1025 (7th Cir.2002).
In order to exhaust, a prisoner “must take all