United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING THE DEFENDANT'S
MOTION FOR PARTIAL SUMMARY JUDGMENT BASED ON FAILURE TO
EXHAUST ADMINISTRATIVE REMEDIES (DKT. NO. 34)
PEPPER, UNITED STATES DISTRICT JUDGE
plaintiff, a Wisconsin state prisoner who is representing
himself, filed a complaint under 42 U.S.C. §1983,
alleging that the defendant violated his civil rights at the
Wisconsin Secure Program Facility (“WSPF”). Dkt.
No. 1. On August 7, 2017, the court screened the
plaintiff's third amended complaint, and allowed him to
proceed with two claims: (1) a First Amendment claim that the
defendant retaliated against him because he filed an inmate
complaint against the defendant's supervisor (Captain
Brown), and (2) a Fourteenth Amendment claim that the
defendant attempted to impede the plaintiff's ability to
litigate his appellate cases. Dkt. No. 29 at 4-5, 7.
defendant has filed a motion for partial summary judgment,
arguing that the plaintiff failed to exhaust administrative
remedies on his First Amendment retaliation claim. Dkt. No.
34. The court will grant the motion for partial summary
judgment and will dismiss the First Amendment retaliation
the events in the complaint occurred, the plaintiff was an
inmate at WSPF. Dkt. No. 28 at ¶¶ 7-32. The
defendant is a Correctional Officer at WSPF. Id. at
around September 14, 2011, the defendant confiscated the
plaintiff's “property”-a review of the entire
complaint hints that this “property” was
comprised of legal materials-as contraband because it had a
piece of clear scotch tape attached to it. Id. at
¶¶7-11. The plaintiff alleges that the defendant
was “angry, ” “heated, ”
“infuriated, ” “furious, ”
“argumentative” and “aggressive” as
he took the plaintiff's property, and that the defendant
threatened to place the plaintiff in segregation.
Id. at ¶10. The plaintiff's mother called
the defendant to ask about the confiscated property; the
defendant responded that he had sent the property to the
plaintiff's mother's house by “Spee-Dee,
” and that he had a receipt indicating that
“Spee-Dee” had been unable to deliver the
property. Id. at ¶12. The plaintiff says that
his mother told the defendant that she'd lived at the
same address for fifty years, and that she'd never
received the property; the plaintiff asserts that the
defendant lied about sending the property to the
plaintiff's mother's home. Id. The plaintiff
requested a copy of the receipt showing that the defendant
had mailed the items to his mother, and according to the
plaintiff, “no signature appears on it at all of [the
days later, the defendant spoke to the plaintiff while on the
cell block, and said, “You made the mistake it's on
you go ahead and file your I.C.E. your property will not be
allowed anyway; and it's out of my hands now.”
Id. at ¶13. The defendant then told the
plaintiff that his property had been destroyed. Id.
The plaintiff alleges that the defendant destroyed his
property on purpose, to stop the plaintiff from filing inmate
complaints and to stop him from participating in litigation.
Id. at ¶14. The plaintiff asserts that his
legal materials “meant his life and he felt traumatized
and devastated” when the defendant destroyed them.
Id. at ¶15. He believes that the defendant
confiscated and destroyed his legal materials because he had
filed “multiple complaints” against Captain Brown
(the defendant's supervisor). Id. at
plaintiff filed this federal lawsuit on June 26, 2015-almost
four years after the events he describes in the complaint.
Dkt. No. 1. The court allowed the plaintiff to proceed with a
First Amendment retaliation claim based on the allegation
that “(a) [the plaintiff] engaged in activity protected
by the First Amendment (objecting to how the Brown conduct
report was handled), (b) that [the defendant] caused him a
deprivation likely to deter First Amendment activity in the
future (by taking his materials so he could not file
complaints or participate in the legal process), and (c) that
[the defendant] did this to stop him from filing complaints
or legal actions.” Dkt. No. 29 at 4-5.
issue the defendant has raised in the motion for summary
judgment is whether the plaintiff exhausted his
administrative remedies on his retaliation claim prior to
bringing this lawsuit. To exhaust his administrative
remedies, the plaintiff would have had to file an inmate
complaint through the Inmate Complaint Review System
(“ICRS”). The defendant states that Cindy
O'Donnell, who is the Secretary of the Department of
Correction's designee for making final agency decisions
on offender complaints, searched the Inmate Complaint
Tracking System (“ICTS”) for all inmate
complaints “relating to [the plaintiff's] clams in
this lawsuit. Dkt. No. 39 at ¶¶6-7. She found
ten inmate complaints she thought were relevant. Id.
at ¶7. The plaintiff states that “the ten
complaints O'Donnell declares relevant to his retaliation
are substantial to his claim, ” dkt. no. 46 at ¶6;
he has not identified any other inmate complaints that he
believes are relevant to his retaliation claim. Given that,
the court reviewed only the ten inmate complaints that the
defendant produced. See Dkt No. 40.
defendant appears to have produced every inmate complaint
that the plaintiff filed between 2011 and 2012 that
complained either about “legal property” and/or
the defendant specifically. The court will discuss all ten
inmate complaints below, even though only three of them (Dkt.
Nos. 40-6, 40-7 and 40-8) appear to be directly relevant to
the issues in the case.
plaintiff's first two inmate complaints, filed on June 2,
2011, involve confiscation of religious items. Dkt. No. 40-1 at
4. The first inmate complaint alleged that the plaintiff
should be allowed to keep a rosary and other religious
jewelry/pendants because they were
“grandfathered” in. Dkt. No. 40-3 at 10. The
Inmate Complaint Examiner (“ICE”) dismissed this
complaint because the property was “in excess” of
the allowed limits. Id. at 2. The plaintiff filed an
appeal, alleging that the defendant took the items in
“retribution” and to “punish” him
because “black inmate will not be catholic
period.” Dkt. No. 40-3 at 13. The Corrections Complaint
Examiner (“CCE”) recommended dismissing the
appeal; the Secretary of the Department of Corrections
(“the Secretary”) agreed and dismissed the
appeal. Id. at 5-6.
plaintiff's second inmate complaint alleged that the
defendant took his Bible and other religious texts because
they were altered by the use of scotch tape (an item that
inmates can purchase at the commissary). Dkt. No. 40-2 at 10.
ICE concluded that the property was properly confiscated
under §DOC 303.47, and dismissed the complaint.
Id. at 2-3. The plaintiff filed an appeal, alleging
that the confiscation was a “personal attack on [his]
religious belief as a catholic.” Id. at 13.
CCE recommended dismissing the appeal; the Secretary agreed
and dismissed the appeal. Id. at 5-6.
plaintiff's third and fourth inmate complaints more
directly relate to “legal” property. The
plaintiff filed his third inmate complaint on June 15, 2011.
Dkt. No. 40-4 at 1. He alleged that legal transcripts that he
needed for his criminal appeal were “missing.”
Id. ICE dismissed the complaint because prison staff
checked the property room and determined that the legal
transcripts were not there. Id. at 3. The plaintiff
appealed, and in his appeal he mentioned “CO
Brown” and that he was “being abuse[d] for filing
complaints.” Dkt. No. 40-4 at 6. CCE recommended
dismissing the appeal; the Secretary agreed and dismissed the
appeal. Id. at 9-10.
plaintiff filed his fourth inmate complaint on June 17, 2011.
Dkt. No. 40-5 at 10. He alleged that the defendant planned to
destroy his legal property before he could file a writ of
certiorari in state court. Id. He asked the
institution to “hold” his property through the
exhaustion process. Id. ICE dismissed the complaint,
noting that prison policy (specifically §DOC 301.13(1))
did not require the institution to hold contraband while the
inmate appealed to CCE. Id. at 2-3. The plaintiff
appealed, alleging that the property was not
“contraband.” Id. at 12. CCE recommended
dismissing the appeal; the Secretary agreed and dismissed the
appeal. Id. at 5-6.
plaintiff filed all the above complaints months before the
incident he describes in his federal civil rights complaint.
The plaintiff's next three inmate complaints, filed
between November 2011 and January 2012, alleged that the
property discussed above (both the religious and legal
property) was improperly destroyed. Dkt. Nos. 40-6, 40-7,
40-8. One inmate complaint alleged that the “property
room” stole his property, and the plaintiff lists his
mother's address at the bottom (where he presumably
wanted his property sent after it was deemed
“contraband”). Dkt. No. 40-6. The other two
inmate complaints alleged that the defendant destroyed the
property without notice. Dkt. Nos. 40-7, 40-8. ICE rejected
the first and third inmate complaints as untimely filed. Dkt.
Nos. 40-6 at 2, 40-8 at 2. ICE rejected the second inmate
complaint because it had been addressed in a prior inmate
complaint. Dkt. No. 40-7 at 2. The plaintiff appealed only
the third rejection, reiterating that he “did not
receive any notice;” the Reviewing Authority upheld the
rejection. Dkt. No. 40-8 at 4, 8.
plaintiff filed three more inmate complaints while
incarcerated at the Columbia Correctional Institution
(“CCI”), alleging that some of his property from
WSPF did not arrive at CCI. See Dkt. Nos. 40-9,
40-10, 40-11. The first inmate complaint mentions the
defendant by name as the individual who packed up his
property for transfer to CCI. See Dkt. No. 40-9 at
8. The second two inmate complaints involve issues with the
“chain of command” that the plaintiff had to use
to acquire his missing property at CCI. Dkt. Nos. 40-10,
40-11. ICE rejected the first complaint as untimely filed.
Dkt. No. 40-9 at 2. ICE rejected the second and third inmate
complaints because they complained of issues that already had
been addressed in prior inmate complaints. Dkt. Nos. 40-10 at
2, 40-11 ...