United States District Court, E.D. Wisconsin
JOSHUA P. BRAITHWAITE, Plaintiff,
MITCHELL BILLE, GERRAD KIBBEL, RYAN HINTZ, CO KEVIN BENSON, AND ADAM MARTIN, Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO ALTER OR
AMEND JUDGMENT (DKT. NO. 51) AND REOPENING CASE
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
Joshua Braithwaite is a Wisconsin state prisoner representing
himself. He filed this lawsuit, alleging that the defendants
failed to prevent him from harming himself, in violation of
the Eighth Amendment to the United States Constitution. Dkt.
No. 1. On July 16, 2018, the court granted the
defendants' motion for summary judgment for failure to
exhaust administrative remedies and dismissed the case
without prejudice. Dkt. No. 49. The court entered judgment on
the same day. On July 27, 2018, the plaintiff filed a motion
to alter or amend judgment. Dkt. No. 51. The court will grant
the plaintiff's motion and reopen the case.
court concluded that the plaintiff failed to exhaust his
The plaintiff filed an inmate complaint in which he raised
the issue of the defendants' alleged failure to help him
after he notified them that he was suicidal. The institution
complaint examiner returned the inmate complaint to the
plaintiff, and directed him to try to resolve the issue with
Sergeant Tritt, per Wis. Admin. Code §DOC 310.09(4). The
institution complaint examiner also explained that the
plaintiff could resubmit his complaint if he felt that staff
did not address the issue to his satisfaction with any
correspondence to and/or from Tritt with the resubmission.
The plaintiff resubmitted his inmate complaint, but he did
not include any correspondence to and/or from Sergeant Tritt,
as directed. In his appeal to the corrections complaint
examiner, the plaintiff asserted that he wrote to Tritt, but
that he did not receive a response; he stated that he would
not submit evidence of the correspondence. The institution
complaint examiner and the warden dismissed the
plaintiff's complaint at the institution level for
failure to follow directions, and did not address the
complaint on the merits. The corrections complaint examiner
and the Office of the Secretary agreed with the decision on
“[U]nless the prisoner completes the administrative
process by following the rules the state has established for
that process, exhaustion has not occurred.”
Pozo, 286 F.3d at 1023. To properly exhaust, the
plaintiff should have included a copy of his correspondence
to Tritt, as directed. The plaintiff acknowledges that he did
not follow the directions, and he does not describe any
reason that he could not have done so. The plaintiff's
failure to follow the rules means that he did not properly
exhaust his administrative remedies. See Woodford,
548 U.S. at 93; see also Carlton v. Dodge Corr.
Inst., No. 12-cv-695-wmc, 2014 WL 4186796, at *5 (W.D.
Wis. Aug. 21, 2014) (no exhaustion where inmate “never
submitted evidence of an attempt to comply with ICE's
directives [to attempt informal resolution], as he had been
repeatedly instructed to do pursuant to the DOC's
grievance procedure, before simply submitting new
complaints”) (emphasis omitted). The court will dismiss
the plaintiff's deliberate indifference claim without
prejudice, for failure to exhaust administrative remedies.
See Ford v. Johnson, 362 F.3d 395, 401 (7th Cir.
Dkt. No. 49 at 11-12.
motion to alter or amend judgment, the plaintiff contends
that the court erred when it granted the defendants'
motion for summary judgment on exhaustion grounds to the
extent that it based its decision on the fact that “the
plaintiff should have included a copy of his correspondence
to Tritt, as directed.” Dkt. No. 51 at 2. The plaintiff
states that Sergeant Tritt did not return the letter the
plaintiff sent him and that the plaintiff “was never
directed to keep a copy of the letter he sent to
Tritt[.]” Id. at 3. According to the
plaintiff, he cannot be punished for failing to make copies
when no one told him he had to. Id. at 4. The
plaintiff states that he did all he could do under the
circumstances: he resubmitted his original complaint
“informing staff that he had waited way over a
reasonable amount of time for Tritt's response and that
he has not heard back (with the original document) from
Tritt.” Id. at 5. (The defendants did not file
a response to the plaintiff's alter or amend judgment.)
59(e) allows a court to alter or amend a judgment only if the
petitioner can demonstrate a manifest error of law or present
newly discovered evidence.” Obriecht v.
Raemisch, 517 F.3d 489, 494 (7th Cir. 2008) (citing
Sigsworth v. City of Aurora, 487 F.3d 506, 511-12
(7th Cir. 2007)). “Motions under Rule 59(e) cannot be
used to present evidence that could have been presented
before judgment was entered.” Id. “A
‘manifest error' is not demonstrated by the
disappointment of the losing party. It is the
‘wholesale disregard, misapplication, or failure to
recognize controlling precedent.'” Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir.
2000) (citations omitted).
record reveals that the institution complaint examiner
returned the plaintiff's initial inmate complaint to him
with instructions stating that the plaintiff could re-submit
his complaint after he took the following actions: 1) inform
Sergeant Tritt that the plaintiff was instructed to contact
Tritt by the Inmate Complaint Department regarding the issues
presented in the inmate complaint; 2) re-submit the complaint
if he felt staff did not address his issue to his
satisfaction, including any correspondence to and/or from
Tritt with the resubmission; and 3) inform the Complaint
Department that he is resubmitting the complaint for review
using the original complaint form. See Dkt. No. 49
at 5. At summary judgment, the plaintiff allegedly followed
these directions because he tried to contact Tritt and, when
he didn't receive a response, he resubmitted his original
complaint. See id.
summary judgment order, the court faulted the plaintiff for
failing to include a copy of his correspondence to Tritt.
Id. at 12. The court did this because when the
plaintiff appealed the dismissal of his complaint to the
corrections complaint examiner, the plaintiff stated that he
had evidence that he had written Tritt but that he
“would not be sending because I will be using that in
my lawsuit, when this is over with.” See id.
at 7. The court assumed that this meant that the plaintiff
had a copy of his correspondence to Tritt and that he refused
to submit it. Based on the plaintiff's motion to
reconsider, the court agrees that it erred in assuming that
the evidence the plaintiff had was a copy of the letter to
evidence the plaintiff had is not relevant to the
determination of whether the plaintiff exhausted his
administrative remedies, because he followed the institution
complaint examiner's instructions when he resubmitted his
inmate complaint after trying to contact Tritt. The
institution complaint examiner instructed the plaintiff to
submit any correspondence to and/or from Tritt along with the
resubmitted inmate complaint, but the plaintiff did not have
any correspondence to submit. The corrections complaint
examiner later faulted the plaintiff for failing to follow
the institution complaint examiner's instructions when
using the complaint system and, on appeal, for failing to
follow the rules by submitting evidence that could be
relevant to supporting that the institution improperly
dismissed his inmate complaint. The court cannot locate a
rule that requires the plaintiff to submit evidence relevant
to supporting his appeal.
cannot be expected to exhaust administrative remedies that
are “unavailable.” See Ross v. Blake,
136 S.Ct. 1850, 1859-60 (2016). “Prison officials may
not take unfair advantage of the exhaustion requirement,
however, and a remedy becomes ‘unavailable' if
prison officials do not respond to a properly filed grievance
or other use affirmative misconduct to prevent a prisoner
from exhausting.” Dole v. Chandler, 438 F.3d
804, 809 (7th Cir. 2006) (citing Lewis v.
Washington, 300 F.3d 829, 833 (7th Cir. 2002)); see
also Dale v. Lappin, 376 F.3d 652, 656 (7th Cir. 2004).
court erred when it concluded that the plaintiff failed to
exhaust his administrative remedies. Rather, the court should
have concluded that the plaintiff exhausted because he did
everything that institution staff instructed him to do.
Dole, 438 F.3d at 811 (inmate exhausted because he
properly followed procedure, and inmate complaint was
unresolved “through no apparent fault of his
own”). The court will grant the plaintiff's motion
parties previously had filed cross-motions for summary
judgment on the merits of the plaintiffs claims. Dkt. Nos.
28, 32. The court did not address these motions because it
granted the defendants' summary judgment motion on
exhaustion grounds. Having determined that the plaintiff did
exhaust his available administrative remedies and that the
court should not have dismissed this case, either or both
parties may renew their merits-based summary judgment motions
within ten days of the date of this order.
The parties need not refile all the summary judgment