Gage v. Zanon et al

Filing 33

DECISION AND ORDER signed by Chief Judge William C Griesbach on 11/9/2018 granting 27 Defendant's Motion for Summary Judgment. (cc: all counsel via CM/ECF, Shane Ryan Gage via U.S. Mail) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

SHANE RYAN GAGE,
Plaintiff,
v.

Case No. 18-C-240

DR. KRISTINE ZANON,
Defendant.

DECISION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Plaintiff Shane Ryan Gage, who is currently serving a state prison sentence at Oshkosh
Correctional Institution, filed this action pursuant to 42 U.S.C. § 1983, alleging that Defendant Dr.
Kristine Zanon violated his civil rights. Plaintiff alleges Defendant retaliated against him by issuing
him a conduct report after he continued to complain to her about his sex offender classification.
Presently before the court is Defendant’s motion for summary judgment. Defendant asserts Plaintiff
has failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act
(PLRA). Plaintiff has not responded to the motion for summary judgment, and the time to do so has
passed. For the following reasons, Defendant’s motion will be granted and the case will be
dismissed.
BACKGROUND
Because Plaintiff did not respond to the motion for summary judgment, Defendant’s
proposed findings of fact (ECF No. 30) are deemed admitted for the purposes of summary judgment.
See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“[F]ailure to respond by the nonmovant as
mandated by the local rules results in an admission.”); Civil L.R. 56(b)(4) (“The Court will deem

uncontroverted statements of material fact admitted solely for the purpose of deciding summary
judgment.”). At all times relevant to this matter, Plaintiff was incarcerated at the Oshkosh
Correctional Institution.
On June 22, 2017, the Institution Complaint Examiner’s office received offender complaint
OSCI-2017-15912, wherein Plaintiff complained that Defendant prohibited him from receiving sex
offender treatment that she indicated he needed. In the complaint, Plaintiff requested the removal
of any sex offender treatment assignment altogether and to change his sex offender classification
from S.O. 4 to S.O. 2. Institution Complaint Examiner Gillingham rejected the offender complaint
on July 20, 2017, noting that the issue raised by Plaintiff for removal or change of a program need
was outside the scope of the inmate complaint review system (ICRS). The inmate complaint
rejection form Plaintiff received advised that his complaint had been rejected and that he could appeal
the rejection of the complaint within 10 calendar days to the appropriate reviewing authority.
Plaintiff did not appeal the rejection of the complaint.
On June 22, 2017, Plaintiff received Conduct Report #2951913, for violation of Wis. Admin.
Code §§ DOC 303.28, Disobeying Orders, and DOC 303.29, Disrespect. Plaintiff claims he received
this conduct report in retaliation for his continued complaints to Defendant about his sex offender
classification. At the disciplinary hearing for Conduct Report #2951913, held on July 10, 2017, the
disciplinary committee found Plaintiff guilty of disobeying orders and disrespect. Plaintiff did not
appeal the decision of the disciplinary committee to the Warden.
LEGAL STANDARD
Summary judgment is appropriate when the moving party shows that there is no genuine
dispute as to any material fact and the movant is entitled to summary judgment as a matter of law.
Fed. R. Civ. P. 56(a). The moving party has the burden of showing that there are no facts to support
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the nonmoving party’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All reasonable
inferences are construed in favor of the nonmoving party. Foley v. City of Lafayette, 359 F.3d 925,
928 (7th Cir. 2004). The party opposing the motion for summary judgment must “submit evidentiary
materials that set forth specific facts showing that there is a genuine issue for trial.” Siegel v. Shell
Oil Co., 612 F.3d 932, 937 (7th Cir. 2010) (citations omitted). “Material” means that the factual
dispute must be outcome-determinative under the law. Contreras v. City of Chicago, 119 F.3d
1286, 1291 (7th Cir. 1997). A “genuine” issue must have specific and sufficient evidence that, were
a jury to believe it, would support a verdict in the nonmoving party’s favor. Fed. R. Civ. P. 56(e);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “The moving party must do more than
simply show that there is some metaphysical doubt as to the material facts.” Id. Summary judgment
is properly entered against a party “who fails to make a showing sufficient to establish the existence
of an element essential to the party’s case, and on which that party will bear the burden of proof at
trial.” Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012) (internal quotations
omitted).
ANALYSIS
Defendant maintains that Plaintiff has failed to exhaust his administrative remedies. The
PLRA provides that a prisoner cannot assert a cause of action under federal law “until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Woodford
v. Ngo, 548 U.S. 81, 93 (2006) (holding that the PLRA requires proper exhaustion of administrative
remedies). Exhaustion requires that a prisoner comply with the rules applicable to the grievance
process at the inmate’s institution. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). A
plaintiff’s failure to properly exhaust each step of the process constitutes a failure to exhaust
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available administrative remedies. Id. The exhaustion requirement “applies to all inmate suits about
prison life, whether they involve general circumstances or particular episodes, and whether they
allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The
purpose of § 1997e(a) is to “permit the prison’s administrative process to run its course before
litigation begins.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (quoting Cannon v.
Washington, 418 F.3d 714, 719 (7th Cir. 2005)); see also Kaba v. Stepp, 458 F.3d 678, 684 (7th
Cir. 2006). The Seventh Circuit applies a “strict compliance approach to exhaustion” and expects
prisoners to adhere to “the specific procedures and deadlines established by the prison’s policy.”
Dole, 438 F.3d at 809; see also Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir. 2016).
Wisconsin has implemented the Inmate Complaint Review System (ICRS) under which
inmate grievances concerning prison conditions or the actions of prison officials are “expeditiously
raised, investigated and decided.” Wis. Admin Code § DOC 310.01. Under the ICRS, an inmate
must file a complaint with the institutional complaint examiner (ICE) within 14 calendar days after
the events giving rise to the complaint occur, unless good cause exists to excuse a delay. Id. § DOC
310.07(2). The ICE has the authority to return, investigate, or reject the complaint. Id. § DOC
310.10. The inmate may appeal the rejection of the complaint to the appropriate reviewing authority
within 10 calendar days. Id. § DOC 310.10(10). After receiving an appeal, the corrections
complaint examiner recommends a decision to the DOC Secretary, who adopts or rejects the
recommendation. Id. §§ DOC 310.12; DOC 310.13. The failure to properly exhaust each step of
the grievance process constitutes a failure to exhaust administrative remedies. Pozo, 286 F.3d at
1025.
Defendant asserts Plaintiff failed to exhaust his administrative remedies because he did not
exhaust the disciplinary process related to the conduct report. See Wis. Admin. Code § DOC
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310.06(2)(b) (“An inmate may raise issues, including civil rights claims, through the ICRS
regarding . . . disciplinary actions . . . only after exhausting . . . [t]he disciplinary appeal process
under ch. DOC 303.”); see also Baker v. Faltynski, No. 12-cv-125-wmc, 2014 WL 713132, at *4
(W.D. Wis. Feb. 25, 2014) (finding lack of exhaustion because plaintiff failed to appeal a related
conduct report). Defendant contends that, because Plaintiff’s retaliation claim is “related to” the
conduct report he received, Plaintiff was required to fully exhaust the process by appealing the
decision of the disciplinary committee to the Warden. To the extent the ICRS could have been an
avenue for exhaustion, Defendant argues Plaintiff’s claim would fail because he did not comply with
Wisconsin’s inmate grievance system.
There is no evidence in the record that Plaintiff exhausted the disciplinary process in
accordance with Chapter DOC 303 or submitted an inmate complaint relating to his retaliation claim.
Although Plaintiff filed an institutional complaint asserting that Defendant prohibited him from
receiving sex offender treatment, the complaint does not address Defendant’s purported retaliation.
Plaintiff did not appeal the rejection of this complaint in any event. In short, the court finds that
Plaintiff did not complete the grievance process as required by § 1997e(a). When the failure to
exhaust is the prisoner’s fault, his claim must be dismissed. See Pavey v. Conley, 544 F.3d 739, 742
(7th Cir. 2008). Accordingly, the court will grant Defendant’s motion for summary judgment.
CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment (ECF No. 27) is
GRANTED and the case is dismissed. The Clerk is directed to enter judgment accordingly.
SO ORDERED this 9th day of November, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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