United States District Court, W.D. Wisconsin
DAVID E. SIERRA-LOPEZ, Plaintiff,
OFFICER BLAIR, DR. PERSIKE, DR. WHITE and LT. ANDERSON, Defendants.
OPINION AND ORDER
BARBARA B. CRABB DISTRICT JUDGE.
plaintiff David E. Sierra-Lopez is proceeding on the
following claims against staff at the Columbia Correctional
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.
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.
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.
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.
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.
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.