United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE
Court has permitted Plaintiff to proceed on the following
claims in his third amended complaint: 1) a claim of an
unconstitutional search against Defendants Joseph Beahm
(“Beahm”), Jason Sonntag (“Sonntag”),
and Jesse Jones (“Jones”); 2) a claim of
excessive force against Beahm and Sonntag; 3) a claim of
failing to intervene against Defendants Lacee Smelcer
(“Smelcer”), Wayne Bauer (“Bauer”),
and Jones; and 4) a claim of harassment against Defendant
Kyle Demers (“Demers”). See (Docket #22
at 4-7; Docket #36). This action was reassigned to this
branch of the Court on November 1, 2018.
April 4, 2019, Plaintiff filed a motion for partial summary
judgment as to the first three claims. (Docket #39). On April
19, 2019, Defendants filed their own summary judgment motion
as to all of the claims. (Docket #45). They assert that
Plaintiff failed to exhaust his administrative remedies as
required by the Prison Litigation Reform Act
(“PLRA”) as to the first three claims, and that
the undisputed facts warrant judgment in Demers' favor on
the final claim. (Docket #45 and #46). For the reasons
explained below, Defendants' motion must be granted, and
Plaintiff's denied as moot.
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
Court's scheduling order, entered November 2, 2018,
Plaintiff was warned about the requirements for opposing a
motion for summary judgment. (Docket #26 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
Defendants' motion for summary judgment, they too warned
Plaintiff about the requirements for a response as set forth
in Federal and Local Rules 56. (Docket #45). Plaintiff was
provided with additional copies of those Rules along with
Defendants' motion. Id. at 3-12. In connection
with their motion, Defendants filed a supporting statement of
material facts that complied with the applicable procedural
rules. (Docket #48). It 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.
response to Defendants' summary judgment motion consists
of a four-page brief, (Docket #52), his own four-page
affidavit, (Docket #53), and a two-page “statement of
disputed factual issues, ” (Docket #54). The
“statement” does not comport with the rules of
procedure, as it is devoid of any citations to evidentiary
materials. Even looking to Plaintiff's affidavit
directly, it focuses on the merits of the first three claims.
The merits of those claims are, of course, not relevant to
the disposition of Defendants' motion. Plaintiff also
fails to discuss the merits of the fourth claim, which
are at issue in Defendants' motion.
only relevant statement is a conclusory one, that Plaintiff
exhausted his administrative remedies. (Docket #53 at 3). For
support for that statement, Plaintiff directs the Court to
his own summary judgment submissions. Id. This is
not the proper method for disputing factual contentions.
Plaintiff should present all of the evidence he
believes provides a basis to dispute Defendants' factual
assertions in his own responsive materials. He should not
merely gesture at his own submissions in an attempt to
formulate a dispute of fact. Nevertheless, the Court will
generously consider the arguments and evidence regarding
exhaustion of Plaintiff's administrative remedies that
were presented in his own motion for summary judgment. Doing
so does not change the result of this Order. As to all
remaining facts, the Court will, unless otherwise stated,
deem Defendants' facts undisputed. 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).
Exhaustion of Prisoner Administrative Remedies
helpful to review how the PLRA's exhaustion requirement
plays out in the Wisconsin prison system prior to analyzing
the issues in this case. 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 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 ...