United States District Court, E.D. Wisconsin
DEWHITE D. JOHNSON, Plaintiff,
ALEX EVERSON, Defendant.
STADTMUELLER U.S. DISTRICT JUDGE.
August 24, 2018, the Court screened Plaintiff's amended
complaint, his operative pleading. (Docket #15). The amended
complaint alleges that Defendant was deliberately indifferent
to Plaintiff's serious medical needs, namely that
Defendant failed to report Plaintiff's medical condition
to prison medical staff. Id. at 3. On February 21,
2019, Defendant moved for summary judgment on the basis of
Plaintiff's failure to exhaust his administrative
remedies as required by the Prison Litigation Reform Act
(“PLRA”). (Docket #21). Plaintiff's response
to the motion was due on or before March 25, 2019. Civ. L. R.
7(b). That deadline has passed and no response has been
received. The Court could summarily grant Defendant's
motion in light of Plaintiff's non-opposition. Civ. L. R.
7(d). However, as explained below, Defendant also presents a
valid basis for dismissing Plaintiff's claim. For both of
these reasons, Defendant's motion 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).
Plaintiff's Failure to Dispute the Material
relevant facts are undisputed because Plaintiff failed to
dispute them. In the Court's scheduling order, entered
September 18, 2018, Plaintiff was warned about the
requirements for opposing a motion for summary judgment.
(Docket #19 at 3). 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 Defendant's motion
for summary judgment, he too warned Plaintiff about the
requirements for a response as set forth in Federal and Local
Rules 56. (Docket #21). Plaintiff was provided with
additional copies of those Rules along with Defendant's
motion. Id. at 3-12. In connection with his motion,
Defendant filed a supporting statement of material facts that
complied with the applicable procedural rules. (Docket #24).
It contained short, numbered paragraphs concisely stating
those facts which Defendant proposed to be beyond dispute,
with supporting citations to the attached evidentiary
materials. See id.
did not file a response to Defendant's statement of
facts, or anything for that matter, in opposition to
Defendant's motion for summary judgment. Despite being
twice warned of the strictures of summary judgment procedure,
Plaintiff ignored those rules by failing to properly dispute
Defendant's proffered facts 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. Thus, the Court
will, unless otherwise stated, deem Defendant's facts
undisputed for purposes of deciding his motion 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
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). Failure to exhaust administrative remedies
is an affirmative defense to be proven by Defendant.
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 ...