United States District Court, E.D. Wisconsin
FONTAINE L. BAKER, SR., Plaintiff,
PAUL KEMPER, KRISTIN VASQUEZ, LAURA FRAZIER, MICHAEL HAGEN, KERI NACKER, JENNIFER BAAS, PAMELA FLANNERY-COOK, GARRETT GROW, TRAVIS BRADY, JORI BISHOP, MARCELO CASTILLO, MORGAN DIX, JASON MOORE, and JENNIFER THOMAS, Defendants.
STADTMUELLER U.S. DISTRICT JUDGE.
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
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.
STANDARD OF REVIEW
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).
Defendants' Theories for Dismissal
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.
Exhaustion of Prisoner Administrative Remedies
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).
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.
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.
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).
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.
Plaintiff's Failure to Dispute Most of the Material
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
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).
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.