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Baker v. Kemper

United States District Court, E.D. Wisconsin

March 15, 2019

FONTAINE L. BAKER, SR., Plaintiff,



         1. INTRODUCTION

         On December 4, 2017, the Court screened Plaintiff's initial complaint. (Docket #11). Plaintiff alleged that Defendants participated in various ways in denying him medication for his post-traumatic stress disorder (“PTSD”). Id. at 3-7. The Court allowed Plaintiff to proceed on two claims: 1) deliberate indifference to his serious medical needs, in violation of the Eighth Amendment, and 2) medical malpractice claims against each of the medical Defendants. Id. at 7-10. Plaintiff later amended his complaint to withdraw the medical malpractice claim. (Docket #17).

         All Defendants save Pamela Flannery-Cook (“Flannery-Cook”) are represented by the Wisconsin Department of Justice (hereinafter the “State Defendants”). Flannery-Cook has her own private counsel. Each set of defendants filed a motion for summary judgment on August 1, 2018. (State Defendants' motion, Docket #38; Flannery-Cook's motion, Docket #44). The motions are now fully briefed, and for the reasons explained below, they must be granted.


         Federal Rule of Civil Procedure 56 provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016).

         3. BACKGROUND

         3.1 Defendants' Theories for Dismissal

         All Defendants save Paul Kemper (“Kemper”) assert that Plaintiff's claim should be dismissed because he failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”). If a prisoner fails to exhaust his administrative remedies as to a particular claim, the Court must dismiss the claim without reaching its merits. Perez v. Wis. Dep't of Corr., 182 F.3d 532, 535 (7th Cir. 1999). Kemper contests the merits of Plaintiff's claim, maintaining that he was not deliberately indifferent to Plaintiff's medical needs. The Court begins by addressing a few preliminary matters, and then proceeds to discuss the facts relevant to each of Defendants' arguments.

         3.2 Exhaustion of Prisoner Administrative Remedies

          It is helpful to review how the PLRA's exhaustion requirement plays out in the Wisconsin prison system prior to relating the relevant facts. The PLRA establishes that, prior to filing a lawsuit complaining about prison conditions, a prisoner must exhaust “such administrative remedies as are available[.]” 42 U.S.C. § 1997e(a). To do so, the prisoner must “file complaints and appeals in the place, and at the time, the prison's administrative rules require, ” and he must do so precisely in accordance with those rules; substantial compliance does not satisfy the PLRA. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002); Smith v. Zachary, 255 F.3d 446, 452 (7th Cir. 2001); Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005). Several important policy goals animate the exhaustion requirement, including restricting frivolous claims, giving prison officials the opportunity to address situations internally, giving the parties the opportunity to develop the factual record, and reducing the scope of litigation. Smith v. Zachary, 255 F.3d 446, 450-51 (7th Cir. 2001).

         Failure to exhaust administrative remedies is an affirmative defense to be proven by Defendants. Westefer v. Snyder, 422 F.3d 570, 577 (7th Cir. 2005). Exhaustion is a precondition to suit; a prisoner cannot file an action prior to exhausting his administrative remedies or in anticipation that they will soon be exhausted. Hernandez v. Dart, 814 F.3d 836, 841-42 (7th Cir. 2016); Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). A lawsuit must be dismissed even if the prisoner exhausts his administrative remedies during its pendency. Ford, 362 F.3d at 398.

         The Wisconsin Department of Corrections (“DOC”) maintains an Inmate Complaint Review System (“ICRS”) to provide a forum for administrative complaints. Wis. Admin. Code DOC § 310.04. There are two steps an inmate must take to exhaust their administrative remedies under the ICRS. First, the inmate must file a complaint with the Institution Complaint Examiner (“ICE”) within fourteen days of the events giving rise to the complaint. Id. §§ 310.07(1), 310.09(6). A complaint filed beyond that time may be accepted by the ICE, in their discretion, if the inmate shows good cause. Id. § 310.07(2). The inmate is required to expressly seek leave to file a late complaint and provide reasons for their tardiness. Id.

         The ICE may reject a complaint or, before accepting it, can direct the inmate to “attempt to resolve the issue.” See Id. §§ 310.08; 310.09(4); 310.11(5). If the complaint is rejected, the inmate may appeal the rejection to the appropriate reviewing authority. Id. § 310.11(6). If the complaint is not rejected, the ICE issues a recommendation for disposing of the complaint, either dismissal or affirmance, to the reviewing authority. Id. §§ 310.07(2), 310.11.1 The reviewing authority may accept or reject the ICE's recommendation. Id. at § 310.07(3).

         Second, if the ICE recommends dismissal and the reviewing authority accepts it, the inmate may appeal the decision to the Corrections Complaint Examiner (“CCE”). Id. §§ 310.07(6), 310.13. The CCE issues a recommendation to the Secretary of the Department of Corrections who may accept or reject it. Id. §§ 310.07(7), 310.13, 310.14. Upon receiving the Secretary's decision, or after forty-five days from the date the Secretary received the recommendation, the inmate's administrative remedies are exhausted. Id. §§ 310.07(7), 310.14.

         3.3 Plaintiff's Failure to Dispute Most of the Material Facts

         The relevant facts are largely undisputed because Plaintiff failed to properly dispute them. In the Court's scheduling order, entered January 4, 2018, Plaintiff was warned about the requirements for opposing a motion for summary judgment. (Docket #18 at 3-4). Accompanying that order were copies of Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both of which describe in detail the form and contents of a proper summary judgment submission. In Defendants' motions for summary judgment, they too warned Plaintiff about the requirements for a response as set forth in Federal and Local Rules 56. (Docket #38 and #44). Plaintiff was provided with additional copies of those Rules along with the motions. Id. In connection with their motions, Defendants filed supporting statements of material facts that complied with the applicable procedural rules. (Docket #40 and #48). The statements contained short, numbered paragraphs concisely stating those facts which Defendants proposed to be beyond dispute, with supporting citations to the attached evidentiary materials. See id.

         Plaintiff's responses to Defendants' statements of fact, as well as his own proposed statements of fact, are almost entirely devoid of references to evidence. See, e.g., (Docket #53). Rather, he simply states his disagreement with the proposed fact (or his qualified agreement) in prose form without citation to the record. Id. Plaintiff did provide some evidence in the form of a ten-page affidavit and almost 250 pages of documents. (Docket #55 and #55-1). Again, however, this information is largely unconnected with Plaintiff's actual responses to the statements of fact. This error is magnified by the fact that some of the factual responses are accompanied by citations to evidence. See (Docket #54 at 2-3). Thus, Plaintiff's failure to cite evidence for each of his purported disputes was a deliberate choice on his part (even if motivated by nothing more than laziness).

         Despite being twice warned of the strictures of summary judgment procedure, Plaintiff ignored those rules by failing to properly connect his disputes or statements of fact with citations to relevant, admissible evidence. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Though the Court is required to liberally construe a pro se plaintiff's filings, it cannot act as his lawyer, and it cannot delve through the record to find favorable evidence for him. Put another way, Plaintiff cannot foist his responsibility to cite evidence onto the Court's shoulders. Thus, the Court will, unless otherwise stated, deem the majority of Defendants' facts undisputed for purposes of deciding their motions for summary judgment. See Fed. R. Civ. P. 56(e); Civ. L. R. 56(b)(4); Hill v. Thalacker, 210 Fed.Appx. 513, 515 (7th Cir. 2006) (noting that district courts have discretion to enforce procedural rules against pro se litigants). Only those few facts which are accompanied by a citation to evidence will be assessed at all. This does not, of course, mean that such statements will constitute a proper dispute or statement of the proposed fact, but they will at least be considered by the Court.

         3.4 ...

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