United States District Court, W.D. Wisconsin
OPINION AND ORDER
STEPHEN L. CROCKER MAGISTRATE JUDGE.
plaintiff Ivan Boyd is proceeding in this civil lawsuit
pursuant to 42 U.S.C. § 1983, on the following claims:
Eighth Amendment and negligence claims against defendants
Edge, Drone, Zemlick, Johnson, Webster, and Lathrop, for
their failure to provide Boyd his medications as prescribed
on various occasions; an Eighth Amendment excessive force
claim against defendant Drone, related to the manner in which
she drew Boyd's blood; an Eighth Amendment failure to
train claim against defendant Waterman; and a First Amendment
retaliation claim against defendant Webster, for his
allegedly retaliatory refusal to provide Boyd his medications
on September 6, 2018. Defendants filed a motion for partial
summary judgment, in which they seek judgment in their favor
as to Boyd's (1) excessive force claim against Drone and
(2) retaliation claim against Webster, for Boyd's failure
to exhaust his administrative remedies for these two claims.
(Dkt. 24.) Boyd concedes that he failed to exhaust his
excessive force claim against Drone, but he insists that he
properly exhausted his claim against Webster. (Dkt. 28.) I
will grant defendants' motion as to Drone without further
discussion, and for the reasons that follow, I will grant
defendants' motion as to Webster as well.
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, a prisoner also must
“properly take each step within the administrative
process” to comply with § 1997e(a). 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), and filing all necessary appeals, Burrell v. Powers,
431 F.3d 282, 284-85 (7th Cir. 2005), that are “in the
place . . . at the time, [as] the [institution's]
administrative rules require.” Pozo, 286 F.3d at 1025.
purpose of this exhaustion requirement is to give the prison
administrators a fair opportunity to resolve the grievance
without litigation. Woodford v. Ngo, 548 U.S. 81, 88-89
(2006); see Turley v. Rednour, 729 F.3d 645, 650 (7th Cir.
2013) (“once a prison has received notice of, and an
opportunity to correct, a problem, the prisoner has satisfied
the purpose of the exhaustion requirement”). If a
prisoner fails to exhaust administrative remedies before
filing his lawsuit, then the court must dismiss the case.
Perez v. Wisconsin Dept. of Corr., 182 F.3d 532, 535 (7th
Cir. 1999). Because exhaustion is an affirmative defense,
however, defendants bear the burden of establishing that
plaintiff failed to exhaust. Jones v. Bock, 549 U.S. 199, 216
exhaust state administrative remedies in Wisconsin, inmates
must follow the inmate complaint review process set forth in
the Wisconsin Administrative Code § DOC 310. Under these
provisions, prisoners start the complaint process by filing
an inmate complaint with the institution complaint examiner
within 14 days after the occurrence giving rise to the
complaint. Wis. Admin. Code § DOC 310.09(6). The
complaint may “[c]ontain only one issue per complaint,
and shall clearly identify the issue.” Id.
§ 310.09(e). 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). If the complaint is not rejected, the
institution examiner makes a recommendation to the reviewing
authority as to how the complaint should be resolved.
Id. § 310.11(6). The offender complaint is then
decided by the appropriate reviewing authority, whose
decision can be appealed by the inmate to a correctional
complaint examiner (“corrections examiner”).
Id. §§ 310.12, 310.13. The corrections
examiner then makes a recommendation to the Secretary of the
Department of Corrections, who takes final action.
Id. §§ 310.13, 310.14.
the parties do not dispute that Boyd filed an inmate
complaint about Webster's September 6, 2018, refusal to
provide him medications. (Ex. 1001 (dkt. 26-2) at 8.)
Specifically, Boyd wrote:
The one issue of these complaint is against C.O. Webster. (I
would like to have my medications as prescribed).
The individuals I attempted to resolve this issue with before
filing this complaint is the Sgt. Who was working on Echo on
9-6-18, and C.O. Webster. I still did not receive nightly
doses of: Mirtazapine, Cyclobenzaprine, and VenlaFaxine.
C.O. Webster was doing med pass on the night of 9-6-18, he
walked directly pass my cell with med cart. I informed him
repeatedly in loud voice that “I take meds.”
However, he did not return. . . This is the second time this
particular officer has done this. See: previous complaints. I
pressed button informed Sgt., still did not receive bed time
Id., all sic.
insists that the gist of his complaint about Webster denying
his medication should be sufficient to exhaust his
retaliation claim. Boyd is incorrect. Certainly, these allegations
notified prison officials that Boyd was claiming that Webster
acted with deliberate indifference or negligence to
Boyd's need for his prescribed medications. Indeed,
defendants have not moved for summary judgment on exhaustion
grounds as to that claim against Boyd. But Boyd's
allegations do not implicate his rights under the First
specifically, Boyd did not identify his constitutionally
protected conduct that allegedly caused Webster to punish
Boyd by refusing to provide his medications. This means that
Boyd did not exhaust his First Amendment retaliation claim.
See Sheahan v. Suliene, No. 12-cv-433-bbc, 2014 WL 1233700,
at *3-4 (W.D. Wis. May 24, 2013) (noting that to properly
exhaust a First Amendment retaliation claim, a prison must
“identify two things: the protected conduct that
provided the retaliation and the retaliatory act”)
(citing Wine v. Pollard, No. 08-cv-173-bbc, 2008 WL 4379236,
at *3 (W.D. Wis. Sept. 23, 2008), Henderson v. Frank, No.
06-C-12-C, 2006 WL 850660, at *2 (W.D. Wis. Mar. 21, 2006)).
Therefore, I am granting defendants' motion for partial