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Sierra-Lopez v. Blair

United States District Court, W.D. Wisconsin

July 18, 2018

DAVID E. SIERRA-LOPEZ, Plaintiff,
v.
OFFICER BLAIR, DR. PERSIKE, DR. WHITE and LT. ANDERSON, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB DISTRICT JUDGE.

         Pro se plaintiff David E. Sierra-Lopez is proceeding on the following claims against staff at the Columbia Correctional Institution:

a) Defendant Officer\ Matthew Blair violated plaintiff's rights under the Eighth Amendment by failing to protect him from harming himself on December 14, 2016;
b) Defendant Dr. Julia Persike violated plaintiff's rights under the Eighth Amendment by failing to check on plaintiff after he had harmed himself and was placed on property restrictions and by subjecting him to harsh conditions of confinement;
c) Defendant Lt. Theodore Anderson violated plaintiff's rights under the Eighth Amendment by failing to respond reasonably to plaintiff's statements that he needed help and by using excessive force, or failing to protect him from excessive force, on December 20, 2016;
d) Defendant Dr. Maureen White violated plaintiff's rights under the Eighth Amendment by subjecting plaintiff to harsh conditions of confinement.

         Now before the court is defendants' motion for summary judgment grounded on the contention that plaintiff failed to exhaust his administrative remedies. Dkt. #34. As explained below, I am granting the motion with respect to plaintiff's claims against defendants Blair and Anderson. Plaintiff's claims against those defendants will be dismissed without prejudice because he failed to file a timely inmate complaint concerning his claims against them. Defendants' motion will be denied with respect to plaintiff's claims against defendants Persike and White.

         Also before the court are plaintiff's motion to compel, dkt. #31, his motion to for a physical examination, dkt. #42, and his motion for a temporary restraining order. Dkt. #48. I am denying those motions for the reasons stated below.

         OPINION

         A. Exhaustion

         Under 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Generally, to comply with § 1997e(a), a prisoner must “properly take each step within the administrative process.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). This includes following instructions for filing the initial grievance, Cannon v. Washington, 418 F.3d 714, 718 (7th Cir. 2005), as well as filing all necessary appeals, Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005), “in the place, and at the time, the prison's administrative rules require.” Pozo, 286 F.3d at 1025.

         To exhaust administrative remedies in Wisconsin, inmates must follow the inmate complaint review process set forth in the Wisconsin Administrative Code ch. DOC 310. Under these regulations as they existed in 2017, prisoners start the complaint process by filing an inmate complaint with the institution complaint examiner within 14 days of the occurrence giving rise to the complaint. Wis. Admin. Code § DOC 310.09. The complaint examiner may investigate inmate complaints, reject them for failure to meet filing requirements, recommend a disposition to the appropriate reviewing authority (the warden or the warden's designee) or direct the inmate to attempt to resolve the complaint informally. Id. §§ 310.07(2), 310.09(4), 310.11, 310.12. If the institution complaint examiner makes a recommendation that the complaint be granted or dismissed on its merits, the appropriate reviewing authority may dismiss, affirm or return the complaint for further investigation. Id. § 310.12. If an inmate disagrees with the decision of the reviewing authority, he may appeal. Id. § 310.13. If the institution complaint examiner rejects a grievance for procedural reasons without addressing the merits, an inmate may appeal the rejection. Id. § 310.11(6). The reviewing authority's decision on the rejection is final. Id.

         Defendants argue that plaintiff did not exhaust his administrative remedies because the inmate complaints he filed were either untimely or irrelevant to the claims on which he is proceeding in this case. I address plaintiff's claims against each defendant below.

         1. Defendants ...


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