United States District Court, W.D. Wisconsin
OPINION AND ORDER
STEPHEN L. CROCKER MAGISTRATE JUDGE.
se plaintiff Tyler Stanley, a prisoner at Green Bay
Correctional Institution (GBCI), is proceeding against
defendants on Eighth Amendment deliberate indifference claims
based on the care Stanley received for an infected tooth.
Stanley has renewed his request for assistance in recruiting
counsel (dkt. 52), defendants have filed a motion for summary
judgment on the ground that Stanley failed to exhaust his
administrative remedies (dkt. 53), and Stanley concedes that
he did not exhaust (dkt. 59). For the reasons that follow, I
am granting defendants’ motion, denying Stanley’s
motion, and dismissing Stanley’s claims without
Exhaustion of Administrative Remedies (dkt. 53)
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); 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 (2007).
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, then an inmate may appeal the rejection.
Id. § 310.11(6). If the complaint is not
rejected, then 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.
an inmate may file an inmate complaint with an ICE, the
inmate must attempt to resolve the matter informally by
following the designated process specific to the subject of
the complaint, which may require the inmate to discuss the
matter directly with prison staff. Wis. Admin Code DOC §
310.07(1). That provision also provides that ICE “may
request inmates to provide evidence of having followed the
specific process.” Id.
December 26, 2018, Stanley filed an inmate complaint about
needing his tooth repaired. An Inmate Complaint Examiner
(“ICE”), Jodene Perttu returned it to Stanley
with the instruction to provide proof that Stanley had
addressed the issue with the head of the prison’s
dentistry, Dr. Lee, and that he was not satisfied with
Lee’s response to his request to have his tooth
repaired. Perttu’s response letter noted that the
submission was not accepted. Also that day, Stanley sent
Warden Pollard an inmate complaint regarding his tooth.
However, that complaint was returned to Stanley without
addressing Stanley’s complaints. Afterwards, there is
no record that Stanley followed up with the ICE by submitting
proof that he discussed his tooth issues with the dentist,
and Stanley did not resubmit his inmate complaint. Between
December 21, 2018, and January 29, 2019, ICE accepted eight
other inmate complaints from Stanley related to other issues.
agrees that he did not actually follow the directions he
received about how to informally resolve his complaint about
how his tooth infection was handled before filing an inmate
complaint about it, but he asks that I deny defendants’
motion because he has a strong claim. That’s not the
way it works. The merit of the claim is irrelevant to whether
the prisoner properly exhausted. See Perez, 182 F.3d
at 535 (“[A] suit filed by a prisoner before
administrative remedies have been exhausted must be
dismissed; the district court lacks discretion to resolve the
claim on the merits.”).
Admin. Code DOC § 310.07(1) requires prisoners to
attempt to informally resolve their issue with the relevant
staff, and ICE may request inmates to provide evidence that
the inmate actually engaged in that process. There is no
dispute that Stanley failed to discuss his complaint with Dr.
Lee. Therefore, defendants carried their burden of proving
that Stanley failed to follow those procedures. Accordingly,
I am granting defendants’ motion for summary judgment,
and dismissing Stanley’s claims in this lawsuit without
prejudice. Ford v. Johnson, 362 F.3d 395, 401
(7th Cir. 2004) (“[A]ll dismissals under
§ 1997e(a) should be without prejudice.”).
Motion for Assistance in Recruiting Counsel (dkt.
renewed motion for assistance in recruiting counsel, which
Stanley filed before defendants’ filed their motion for
summary judgment, Stanley explains that he reviewed the
court’s preliminary pretrial conference order and does
not understand the procedures it outlines, and that his
mental health issues continue to prevent him from meeting the
needs of this lawsuit. I’m not persuaded that the legal
and factual difficulty of responding to defendants’
motion exceeded Stanley’s abilities. Pruitt v.
Mote, 503 F.3d 647 (7th Cir. 2007) (en banc) (the
central question in deciding whether to request counsel for
an indigent civil litigant is “whether the difficulty
of the case–factually and legally–exceeds the
particular plaintiff’s capacity as a layperson to
coherently present it to the judge or jury himself”).
speaking, exhaustion motions do not merit recruitment of
counsel because such motions rarely involve complicated
factual disputes, it is defendants’ burden to prove the
failure to exhaust, and the law is straightforward.
Defendants’ motion here follows that general rule.
Indeed, there are no factual disputes: Stanley concedes that
he failed to follow the ICE’s directive to attempt to
resolve his dispute informally, and he did he re-file an
inmate complaint, much less go through the required appeal
process. Further, Stanley’s request that the court
overlook his failure to exhaust because his claim has
substantive merit suggests that ...