United States District Court, E.D. Wisconsin
DECISION AND ORDER ON DEFENDANTS' MOTION FOR
JOSEPH UNITED STATES MAGISTRATE JUDGE.
Dickerson, a prisoner representing himself, alleges that the
defendants, who are his parole officer and her supervisor,
vindictively refused to allow his friend to visit him at the
Milwaukee Secure Detention Facility (MSDF). On November 25,
2019, I denied the defendants' motion for summary
judgment for failure to exhaust administrative remedies
because it was not clear whether Dickerson had an available
administrative remedy under the Inmate Complaint Review
System (ICRS). (Docket # 30.) The defendants have filed a
motion for reconsideration in which they argue that I should
reconsider my decision and dismiss Dickerson's case.
(Docket # 31.) For the reasons explained below, I will grant
the defendants' motion and dismiss this case without
prejudice for failure to exhaust administrative remedies.
complaint, Dickerson alleges that on October 17, 2018, he
gave his parole officer, defendant Allison Gersy, a visiting
list so his family members could get approved to visit him.
On December 4, 2018, defendant Gersy allegedly denied
Dickerson's request to have his friend, Hattie A. Smith,
on his visiting list. He states that he and Smith do not have
a case together and that Smith is not “on any type of
probation or parole supervision for her to get denied from
[his] visiting list.” (Docket # 1 at 2.) Dickerson
alleges that Hattie Smith contacted defendant Gersy's
supervisor, defendant Dillon Beverly, about why her
visitation rights were denied, and Dillon Beverly told her
that she would ask Gersy about it. Hattie Smith allegedly
called the Department of Community Corrections and spoke with
the defendants. Dickerson alleges that defendant Gersy sent
him a copy of his visiting list and it stated
“victimization” as a reason for denying Hattie
Smith from the visiting list. Dickerson states that defendant
Gersy is “clearly being vindictive & showing signs
of retaliation” because he was allowed to proceed on a
Fourth Amendment claim against her in another case. (Docket #
1 at 3.) Dickerson also states that defendant Dillon Beverly
retaliated against him because, as Gersy's supervisor,
Dillon Beverly could have reversed Gersy's decision.
November 25, 2019, I denied the defendants' motion for
summary judgment for failure to exhaust administrative
remedies. (Docket # 30.) I found that, while it is undisputed
that Dickerson did not file any offender complaints about
Hattie Smith not being added to his visiting list and
Dickerson did not allege that anything prevented him from
exhausting administrative remedies, it was unclear whether
Dickerson needed to file an inmate complaint at MSDF
regarding the conduct of his parole officer, who presumably
did not work there, because while the defendants' actions
may have had an impact on Dickerson's living
conditions at MSDF if Gersy had the final say on
Dickerson's visitation list at MSDF, this was not clear.
(Docket # 30 at 4.) I also questioned whether Dickerson
needed to exhaust administrative remedies because, under Wis.
Admin. Code § DOC 310.06(3), if their actions
constituted “parole commission decisions” then
Dickerson could not use the ICRS to challenge them. (Docket #
30 at 4.) Based on these factors, I concluded that the
defendants had not demonstrated that Dickerson had an
available administrative remedy under the ICRS. (Docket # 30
to reconsider denials of summary judgment are governed by
Rule 54(b), which provides that non-final orders “may
be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights
and liabilities.” Fed.R.Civ.P. 54(b); Galvan v.
Norberg, 678 F.3d 581, 587 n.3 (7th Cir. 2012) (stating
“Rule 54(b) governs non-final orders and permits
revision at any time prior to the entry of final judgment,
thereby bestowing sweeping authority upon the district court
to reconsider a [summary judgment motion]”). Motions to
reconsider (or more formally, to revise) an order under Rule
54(b) are judged by largely the same standards as motions to
alter or amend a judgment under Rule 59(e): to correct
manifest errors of law or fact or to present newly discovered
evidence. Rothwell Cotton Co. v. Rosenthal &
Co., 827 F.2d 246, 251 (7th Cir. 1987) (quoting
Keene Corp. v. Int'l Fid. Ins. Co., 561 F.Supp.
656, 665-66 (N.D. Ill. 1982), aff'd, 736 F.2d 388 (7th
Cir. 1984) (citation and footnote omitted)), amended by, 835
F.2d 710 (7th Cir. 1987). Compare Moro v. Shell Oil
Co., 91 F.3d 872, 876 (7th Cir. 1996) (providing nearly
identical standard for motion under Rule 59(e)).
defendants move for reconsideration on the ground that that I
erroneously concluded that the ICRS did not provide an
available remedy to Dickerson. (Docket # 31 at 3.) The
defendants assert that while the Warden of the institution
would have determined who was on Dickerson's visiting
list, Wis. Admin. Code § DOC 309.08(4), Dickerson
alleged in his complaint and in his Proposed Findings of Fact
in support of his own motion for summary judgment that the
defendants played a role in determining who was on his
visiting list. (Docket # 31 at 3-4.) The defendants contend
that whether Dickerson was correct or not as to the role the
defendants played in his visitation list, Dickerson had an
available administrative remedy via the ICRS. (Id.
at 4.) They argue that under Wis. Admin. Code § DOC
309.08(6) Dickerson could have appealed the visitation denial
first to the warden and then he could have filed an inmate
complaint about it. (Docket # 31 at 4.) The defendants also
note that the visitation issue was “well within the
jurisdiction of the inmate complaint system[, ]” given
that inmate complaints can ultimately be appealed to the
secretary of the Department of Corrections (DOC), who
oversees the DOC's Division of Community Corrections
which is the division that employs the defendants.
(Id. at 4-5.)
the defendants clarify that the visitation decision by Gersy
or Dillon was not a “parole commission decision”
and, therefore, was not exempt from ICRS review under Wis.
Admin. Code § DOC 310.06(3). (Docket # 31 at 5.) The
Wisconsin Parole Commission is the final authority for
granting discretionary parole or early release from prison
for crimes committed before December 31, 1999.
(Id.) Its general duties, which are laid out in
Wis.Stat. § 304.01(2), do not include involvement in
visiting decisions at prisons. (Docket # 31 at 5.)
response to the defendants' motion for reconsideration,
Dickerson filed a declaration in which he requests that I
order the defendants to file a response to his motion for
summary judgment on the merits and that I enter default if
the defendants fail to timely respond. (Docket # 32 at
1.) Dickerson does not address the substance of the
defendants' motion for reconsideration.
denying the defendants' motion for summary judgment on
exhaustion grounds, I determined that it was not clear
whether Dickerson had an available administrative remedy
against the defendants under the ICRS given their positions
outside of MSDF. However, Wis. Admin. Code § DOC
310.06(3) states as follows: “If the warden disapproves
a proposed visitor … the warden shall inform the
visitor of the reasons for the action in writing. The
proposed visitor may appeal this decision in writing to the
warden. An inmate may appeal this decision through the inmate
complaint review system.” Wis. Admin. Code § DOC
310.06(3). Accordingly, the defendants are correct that ICRS
does provide an available administrative remedy to Dickerson.
As such, Dickerson was required to exhaust the visitation
denial as the prison rules required before bringing a claim
against the defendants based on their alleged failure to
include his friend on his visitation list . See Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). In
other words, when Hattie Smith was not allowed to visit
Dickerson at MSDF, she could have appealed the visitation
denial to the Warden under Wis. Admin. Code § DOC
309.08(6). Importantly then, Dickerson could have appealed
this decision through the ICRS. (Id.) It is
undisputed that Dickerson did not file any offender complaint
about Hattie Smith not being added to his visiting list. I
will therefore grant the defendants' motion for
reconsideration and dismiss this case without prejudice for
failure to exhaust administrative remedies. See Ford v.
Johnson, 362 F.3d 395, 401 (7th Cir. 2004).
THEREFORE, IT IS ORDERED that the defendants' motion for