Boyd v. Pollard et al

Filing 49

ORDER signed by Judge Charles N Clevert, Jr on 3/7/2014 Denying 34 Plaintiff's Motion for Summary Judgment; Granting 28 Defendant's Motion for Summary Judgment; and DISMISSING this action. (cc: all counsel, via US Mail to plaintiff) (nts)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DEMETRIUS M. BOYD,
Plaintiff,
v.

Case No. 12-C-0803

WILLIAM POLLARD, CAPTAIN DONALD STRAHOTA,
JOSEPH BEAHM, and DAN BRAEMER,
Defendants.

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT (DOC. 28), DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT (DOC. 34), AND DISMISSING THIS ACTION
Plaintiff, a pro se Wisconsin state prisoner, claims that Joseph Beahm used
excessive force against him in violation of the Eighth Amendment and that William Pollard,
Donald Strahota, and Dan Braemer subjected him to unconstitutional conditions of
confinement. The parties have filed cross-motions for summary judgment that are
addressed below.
I. STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A.,
Inc., 629 F.3d 665, 668 (7th Cir. 2011). “Material facts” are those under the applicable
substantive law that “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248.
A dispute over “material fact” is “genuine” if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.

A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: “(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers,
or other materials; or (B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to
support or oppose a motion must be made on personal knowledge, set out facts that would
be admissible in evidence, and show that the affiant or declarant is competent to testify on
the matters stated.” Fed. R. Civ. P. 56(c)(4).
II. FACTS1
Plaintiff commenced this lawsuit asserting a cause of action pursuant to 42 U.S.C.
§ 1983 against employees of Waupun Correctional Institution (WCI). He was allowed to
proceed on his claim that Joseph Beahm used excessive force against him during a cell
extraction performed on April 1, 2011. Plaintiff was also allowed to proceed on a claim that
William Pollard, Donald Strahota, and Dan Braemer failed to respond to his notifications
that his cell conditions were poor.
Beahm has been employed by the Wisconsin Department of Corrections (DOC) as
a correctional officer at WCI since 2005. Pollard was the warden of WCI at all times
1

Relevant facts are taken from Defendants’ Proposed Findings of Fact filed in support of their m otion
for sum m ary judgm ent and Plaintiff’s Proposed Findings of Fact filed in support of his m otion for sum m ary
judgm ent. Facts are undisputed unless otherwise indicated. Plaintiff’s proposed facts do not cite to the record.
However, the docum ent is sworn and the court therefore construes it as an affidavit for the purposes of
sum m ary judgm ent. See Ford v. W ilson, 90 F.3d 245, 246 (7th Cir. 1996).
Plaintiff subm itted a docum ent titled Plaintiff’s Response to Defendants’ Proposed Findings of Fact.
(Docket 44.) However, the responses contained therein do not correspond to defendants’ proposed findings
of fact. In addition, plaintiff’s responses do not cite to the record. Thus, the court did not consider the filing in
this section. See Fed. R. Civ. P. 56(c)(1).

2

relevant; Strahota was the security director or deputy warden of WCI; and Braemer was
a captain in charge of the segregation unit at WCI. Lieutenant Brian Greff, who is not a
defendant, was employed as a lieutenant at WCI at all times relevant. He was on duty on
April 1, 2011, and personally supervised the cell extraction team that was mobilized to
respond to plaintiff’s behavior.
A.

Excessive Force Claim
On April 1, 2011, at 12:30 p.m., Lieutenant Greff was called to the segregation

building in response to plaintiff’s behavior. Earlier that day, plaintiff held his medications
and threatened staff members. Other inmates near plaintiff’s cell were riled up, yelling at
staff and banging on their cell doors. As a result, staff decided that plaintiff should be
moved to the A-range wing in segregation.
Lieutenant Greff went to plaintiff’s cell front and informed him he was going to be
moved to A-range due to his behavior. Plaintiff replied “Do what you gotta do.” (Greff Aff.
¶ 5.) Lieutenant Greff directed plaintiff to place his hands out of the trap of his cell door to
be restrained so he could be escorted to his new cell. After plaintiff refused to place his
hands through the trap, Lieutenant Greff gathered staff members to form a pad subduing
team composed of several officers equipped with safety equipment such as knee pads,
elbow pads, stab proof vests, and helmets. This equipment aids in subduing a violent or
potentially dangerous inmate, while minimizing the chances of injury to the inmate and the
officers.
Staff members of the team that Lieutenant Greff assembled included Beahm, in
position as “Pad 1,” Michael Vanderbush, in position as “Pad 2,” Ryan Flejter, as team

3

leader, Arnold Carlson, in charge of restraints, and Timothy Bori, operating the camera
which recorded the incident. Each pad subduing team member has a job as follows:
a. Pad 1 (first position) is positioned directly outside the cell and has
an ASP pad (a soft pad used to provide a barrier between the inmate and
staff member if entry into the cell is necessary). Pad 1’s initial responsibilities
begin with securing the arm of the inmate so the restraints can be applied.
After the restraints are applied and the cell door is open he/she is
responsible for securing the arm and escorting the inmate to the next
destination. If entry into the cell is necessary Pad 1 is the first to enter the
cell and the first to make physical contact with the inmate. The ASP pad is
utilized in an attempt to control the inmate so restraints can be applied.
b. Pad 2 (second position) also has an ASP pad and is responsible for
the other side of the inmate’s body and arms, controlling them until the
inmate can be handcuffed, and assists in handcuffing and escorting. If entry
into the cell is necessary the Pad 2 officer is directly behind Pad 1 and
secures the opposite side that Pad 1 secured.
c. The team leader (third position) is responsible for verbalizing what
is happening during the incident. The team leader is the only staff member
who should be providing direction to the inmate ensuring clear expectations
for the inmate. The team leader instructs the inmate on what is going to
happen next and the team ensures the directives are carried out. The team
leader is the third person in line on a pad subduing team and gives the final
directive before the security supervisor authorizes use of force. If entry into
the cell is necessary the team leader provides verbal direction to the inmate
and assists the team in securing the inmate.
d. Restraint officer (fourth position) is responsible for carrying all
potential restraints and keys necessary for the incident. This officer is also
responsible for the application of the restraints and double locking them.
(Greff Aff. ¶ 9.) Although positions are assigned to each staff member, it is common for
these roles and positions to shift as necessary according to the specific needs of a given
situation. In this incident, a forced cell entry and extraction were not ultimately performed,
as the team was able to remove plaintiff from his cell without storming in and forcing him
out. Team members adjusted roles as necessary to subdue plaintiff and escort him to his
cell.

4

Once the team was assembled and in their safety gear, Officer Bori began recording
the cell extraction. (See Greff Aff. ¶ 11, Exh. A.) After introducing the team, Lieutenant
Greff led them to plaintiff’s cell. As seen on the video, Lieutenant Greff directed plaintiff to
place his hands through the trap to be restrained. Plaintiff responded that he would comply.
Staff opened the trap and plaintiff then refused to place his hands through the trap. Officer
Flejter directed plaintiff to place his hands completely through the trap. After several
directives, plaintiff placed his right hand through the trap at which time a tether strap and
a wrist restraint were applied. Officer Flejter asked plaintiff if he had anything he wanted
to say and plaintiff stated, “Yes, all you’ll are a bunch of racist ass punk-muthafucking
crackers.” (Pl.’s Proposed Fact 2, Docket 34 at 2.)
Beahm is seen on the video on the far left. He held onto plaintiff’s right hand to
maintain control. Officer Vanderbush is seen on the right, waiting to take control of
plaintiff’s left hand, whereas Officer Carlson is in the middle, waiting to apply restraints.
At that time, plaintiff forcefully attempted to pull Beahm’s hands into his cell. Beahm
used a compliance hold to secure plaintiff’s hands so the mechanical restraints could be
fully secured to both wrists and double locked. During the attempt to pull Beahm’s hands
into plaintiff’s cell, Beahm’s hand was caught on the top of the trap. Despite several direct
orders as heard on the video, plaintiff refused to place his left arm through the trap. He
became resistive, grabbed at staff and tried to pull his arm back into his cell. As plaintiff
pulled his right arm back through the trap, Beahm’s hands were pulled into the trap. After
several directives, staff were able to get both of plaintiff’s hands secured and in wrist
restraints.

5

Due to the behavior of plaintiff, Lieutenant Greff called for an Ultron II device to
subdue plaintiff if necessary. An Ultron II is a device designed to stun or temporarily
immobilize an inmate by delivering an electric shock. The video shows the pad subduing
team waiting for the Ultron II to arrive. When it did, Lieutenant Greff is seen informing
plaintiff that he had the Ultron II in his possession demonstrating that the device was
working then directing that the cell door be opened. However, the Ultron II was not used
during this incident.
The cell door was opened and the team surrounded plaintiff to restrain him. Beahm
entered the cell and was on plaintiff’s left arm, Officer Vanderbush was on plaintiff’s right
arm, and Officer Carlson was behind plaintiff to apply restraints. As seen and heard in the
video, plaintiff was instructed to kneel so that leg restraints could be applied. Initially he
refused to kneel. After several directives, and after Lieutenant Greff placed the Ultron II
near plaintiff’s back, he did slowly kneel down so that leg restraints could be applied. Staff
assisted plaintiff back to his feet and Officer Carlson applied a waist belt.
At that time staff had all restraints applied appropriately and Lieutenant Greff
removed the electronic device. The video shows plaintiff turning his head and spitting
directly into Lieutenant Greff’s face. As a supervisor, Greff did not come in the same
degree of physical contact with plaintiff as the staff wearing the safety equipment. The
supervisor’s role is to provide overall direction to the pad subduing team ensuring their
safety and to ensure the inmate is provided the necessary medical and clinical services as
needed. After plaintiff spit on him, Lieutenant Greff notes saliva on his forehead, cheeks,
and mouth and saliva can be observed on his glasses. At this point Lieutenant Greff is
seen turning to the camera and stating that he had just been spat on. Staff then secured

6

plaintiff’s head and directed him to the floor in a secured descent. While inside of the cell,
plaintiff was laughing and smiling, stating, “I just spit on the lieutenant. Ha ha, you’re next
Beahm.” Plaintiff then attempted to spit on Beahm, but the saliva fell short and landed on
the floor of the cell.
After plaintiff calmed down, he was assisted to his feet and escorted to the A-range
section of the building. To prevent him from spitting at staff again, Beahm used a
compliance hold, thereby placing one hand under plaintiff’s chin and the other hand on top
of plaintiff’s head. As a result, plaintiff was unable to open his mouth or turn his head. At
this point, plaintiff was extremely disrespectful and threatening to staff. He implied that he
would kill a staff member and that if he could not do it, someone else would.
When the team entered the A-range, they began to escort plaintiff down the stairs.
However, the team was informed that the upper level control cell should be used. The team
then stopped and backed up the stairs. Plaintiff was walked backwards up the stairs
because the compliance hold is more comfortable to an inmate’s head when it is controlled
from above.
What happened next is unclear. According to plaintiff, after defendants entered the
upper A-range area, Beahm body-slammed him to the concrete floor without warning. (Pl.’s
Proposed Fact 5, Docket 34 at 2.) Defendants maintain that when reaching the upper Arange door, plaintiff became physically resistive after and attempted to pull away from staff.
It was then that staff directed plaintiff to the floor.
Staff assisted plaintiff to his feet after regaining control of his arms and legs and
then continued to escort him to his new cell. Plaintiff continued to verbally disrespect staff
by calling them “bitches” and “honkeys” and making threats.

7

When the team and plaintiff arrived at the new cell, A226, plaintiff became resistive
and accused staff of spitting on him. Plaintiff’s clothes were then cut off of him using Dura
Shears. This standard procedure facilitates a strip search for weapons and contraband
prior to placement of a prisoner in control status. Plaintiff’s pants were cut off while he was
kneeling. Next he was assisted to his feet so that his shirt could be cut off.
After plaintiff’s clothes were removed, a staff member noted that plaintiff had a
wound over his right eye. The video shows that Nurse Ann Tabb came to the cell door and
provided medical attention to plaintiff.
It is unclear what happened next. According to defendants, as staff members
attempted to put a spit mask on plaintiff’s face, so that he could be treated by the nurse,
plaintiff again became resistive. In response to plaintiff’s sudden assaultive movements,
he was directed to the wall and then to the floor.
The video shows Beahm was securing plaintiff’s head using a compliance hold with
his right hand under plaintiff’s chin. Beahm’s right thumb was near plaintiff’s mouth. As the
team attempted to place a spit mask over plaintiff’s face, plaintiff attempted to bite Beahm’s
right thumb. Plaintiff then used his right elbow to strike Officer Flejter in the abdomen.
Beahm then used a vertical wall stun to control plaintiff. This involved Beahm forcefully
pressing plaintiff against the wall to control him in accordance with training techniques.
Plaintiff, on the other hand, avers that the next “attack seem[ed] to be happening at once.”
(Pl.’s Proposed Fact 8, Docket 34 at 3.) He goes on to state, “I remember feeling blows to
my face and head area[;] my survival skills must have kicked in to full effect because I went
black and the next thing I recall was hearing Lt. Greff yelling orders at the defendants to

8

pick me up[;] that’s when I noticed I was laying on the floor with blood coming down my
face.” Id.
After the team regained control, plaintiff was assisted to his feet. A spit mask was
applied and photos were taken of his head. Plaintiff’s injuries are assessed by Nurse Tabb.
She is seen on the video leaving to retrieve materials to clean plaintiff’s face. While nurse
Tabb is away, there are several minutes with no activity as the team waits for Nurse Tabb.
When Nurse Tabb returned, she stated that plaintiff would need to be seen in the
examination room. Afterward, plaintiff was assisted to his knees and his leg restraints were
reapplied. At this point, plaintiff went limp. As staff assisted him to his feet, plaintiff made
sudden jerking movements.
A towel was wrapped around plaintiff’s waist and he was escorted to the
examination room where his wound received further medical attention. The compliance
hold was not being used at this time. While he was examined, plaintiff made statements
implying that he did not remember how he got into the exam room. Nurses Tabb and
Donna Larson provided medical treatment and Nurse Tabb stated that she was medically
satisfied that plaintiff could be placed in his cell. While the nurses were checking him over,
plaintiff added “How did I get down here? I don’t remember anything.” The nurses gave
plaintiff a full assessment, then he was escorted back to his new cell.
Plaintiff remarked that he felt suicidal. Consequently, the Psychology Services Unit
(PSU) staff were called to see him. Afterward, plaintiff was placed in his cell in control
status without any property in light of his extreme agitation and the amount of physical
resistance he provided earlier that day. Anna Garcia, a clinician from PSU, spoke with

9

plaintiff at his cell. When Ms. Garcia arrived, Lieutenant Greff led the team away from the
range and conducted a wrap-up for the video.
No staff injuries were reported initially. However, staff members reported injuries
from plaintiff after the incident. Lieutenant Greff was seen at the hospital for exposure tests
due to plaintiff’s spitting in his face. Officer Vanderbush had discoloring on his right hand;
Officer Flejter had pain in his abdomen; and Beahm’s right hand was swollen and sore.
Plaintiff also sustained injuries from the incident. His eye lids were black, his head
was slightly swollen around the temples, and he had a cut over the right eye lid that was
glued shut. Both of plaintiff’s wrists were swollen and exhibited cuts from the hand-cuffs.
Knots were visible on the left side of his head under his hair.
Plaintiff takes Meloxicam for pain although the medication does not relieve the pain.
Bright light causes right eye pain that leads to headaches. (Pl.’s Proposed Fact 18, Docket
34 at 5.)
On April 3, 2011, Lieutenant Greff completed Adult Conduct Report #2150441,
which charged plaintiff with battery, threats, disobeying orders, and disrespect arising from
the incident on April 1, 2011. (Greff Aff. ¶ 38, Ex. B.) Adult conduct reports are issued by
officers in the DOC when inmates violate rules. The conduct report reflects the rules were
violated, a description of the violation, and any disposition imposed. After a conduct report
is filed, it is reviewed by the security director within two days for appropriateness. If it is not
dismissed, the conduct report is filed with the inmate’s records. Plaintiff’s disciplinary
hearing was held on April 11, 2011, and he was found guilty of the four offenses.

10

On April 4, 2011, Lieutenant Greff completed an incident report regarding the events
involving plaintiff on April 1, 2011. (Greff Aff. ¶ 40, Ex. C.) Beahm also completed an
incident report. (Beahm Aff. ¶ 3, Ex. A.)
B.

Conditions of Confinement Claim
Welcome Rose is employed by the DOC as a Corrections Complaint Examiner

(CCE). In this capacity, she receives and investigates appeals made to the DOC Secretary
regarding adverse decisions on complaints filed by inmates, and makes appropriate
recommendations concerning the same.
The DOC maintains an Inmate Complaint Review System (ICRS) in Wisconsin adult
correctional facilities. The purpose of the ICRS is to afford inmates in adult institutions a
process by which grievances may be expeditiously raised, investigated, and decided. See
Chapter 310, Wis. Admin. Code. Consistent with § DOC 310.05, Wis. Admin. Code,
inmates must exhaust all administrative remedies that the DOC has promulgated by rule
before they may commence a civil action or special proceeding against an officer,
employee, or agent of the DOC in that person’s official or individual capacity.
An inmate begins the ICRS complaint process by filing a complaint with the
institution complaint examiner at his or her institution, consistent with the provisions of
DOC 310.09. The institution complaint examiner reviews and investigates the inmate
complaint at the institution level, within the parameters set forth in DOC 310.11, Wis.
Admin. Code. The institution complaint examiner makes a recommendation on the
complaint to the appropriate reviewing authority, which is the warden, bureau director,
administrator, or designee who is authorized to review and decide an inmate complaint at
the institution level.

11

If an adverse decision on an ICRS offender complaint has been made by the
appropriate reviewing authority under § DOC 310.12, Wis. Admin. Code, the inmate may
appeal the institution level decision by filing a written request for review with Rose’s office
pursuant to §§ DOC 310.07 (4), (6) and (7) and § DOC 310.13, Wis. Admin. Code. Some
inmate complaints are rejected at the institution level, pursuant to Wis. Admin. Code
§ DOC 310.11(5) for particular reasons specified in that part of the Code. To exhaust his
administrative remedy, an inmate must complete the appeal process through Rose’s office,
which results in a decision by the Office of the Secretary, as set forth in DOC Admin Code
§310.07(7) and 310.14.
In her capacity as CCE, Rose has diligently searched and examined the regularly
conducted business records of her office, specifically with respect to inmate complaints
and appeals filed by plaintiff. (Rose Aff. ¶¶ 10-11, Ex. A.) During the course of her search,
based upon the inmate complaint history examined, she found no offender complaints
related to plaintiff’s claims regarding conditions of his confinement on or about April 1,
2011.
III. ANALYSIS
Defendants contend that the evidence in this case clearly establishes that Beahm
did not use excessive force against plaintiff. They further contend that plaintiff’s conditions
of confinement claim is barred due to his failure to exhaust his administrative remedies prior
to raising it in this lawsuit. Plaintiff disagrees and contends that he is entitled to summary
judgment on Eighth Amendment claims that he was subject to cruel conditions of
confinement and excessive use of force.
A.

Excessive Force Claim

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The Eighth Amendment’s Cruel and Unusual Punishments Clause prohibits
“unnecessary and wanton infliction of pain” on prisoners. Hudson v. McMillian, 503 U.S. 1,
5 (1992). In cases involving the use of excessive force, the core judicial inquiry is “whether
force was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson, 503
U.S. at 7). Factors in determining whether the use of force was wanton and unnecessary
include “the need for application of force, the relationship between that need and the
amount of force used, the threat ‘reasonably perceived by the responsible officials,’ and
‘any efforts made to temper the severity of a forceful response.’” Hudson, 503 U.S. at 7
(quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)).
Often circumstances require prison officials to balance the need “to maintain or
restore discipline” using force at the risk of injury to inmates. Hudson, 503 U.S. at 6. Both
situations require officials to act quickly and decisively. Id. Likewise, both implicate the
principle that “[p]rison administrators . . . should be accorded wide-ranging deference in the
adoption and execution of policies and practices that in their judgment are needed to
preserve internal order and discipline and to maintain institutional security.” Id. (internal
citations and quotations omitted).
It is well-established that prisoners must follow orders.
Orders given must be obeyed. Inmates cannot be permitted to decide which
orders they will obey, and when they will obey them . . . . Inmates are and
must be required to obey orders. When an inmate refuse[s] to obey a proper
order, he is attempting to assert his authority over a portion of the institution
and its officials. Such refusal and denial of authority places the staff and other
inmates in danger.
Lewis v. Downey, 581 F.3d 467, 476-77 (7th Cir. 2009) (quoting Soto v. Dickey, 744 F.2d
1260, 1266-67 (7th Cir. 1984)). “When an order is given to an inmate there are only so
13

many choices available to the correctional officer. If it is an order that requires action by the
institution, and the inmate cannot be persuaded to obey the order, some means must be
used to compel compliance, such as a chemical agent or physical force.” Soto, 744 F.2d
at 1267.
Here, the facts demonstrate that Beahm used force against plaintiff in a good-faith
effort to maintain or restore discipline. The record shows that plaintiff repeatedly failed to
follow the orders of the correctional staff and was disruptive during most of the incident of
April 1, 2011. Correctional staff slowly escalated their efforts to force plaintiff to comply with
their directives and, to some extent, their efforts worked. For example, plaintiff eventually
complied with orders to place his hands through his cell trap for hand-cuffing thereby
obviating the need for the cell entry team to enter the cell by force. In addition, after being
threatened with the Ultron II, plaintiff complied with directives to kneel so that officers could
place leg restraints on him. The Ultron II was never used.
Despite these instances of compliance, plaintiff continued to disobey orders and
engage in verbally and physically assaultive behavior. Not long after plaintiff complied with
the order to kneel so that leg restraints could be placed on him, he was assisted to a
standing position and proceeded to spit on to Lieutenant Greff’s face. Plaintiff’s resistant
behavior was sporadic during the incident as he seized certain opportunities for noncompliant behavior. Nevertheless, the officers exercised restraint despite plaintiff’s physical
and verbal resistance.
Plaintiff avers that excessive force was used against him on two instances. First,
plaintiff submits that Beahm body-slammed him to the concrete floor without warning after
team members entered the upper A-range area. Second, plaintiff avers that, after he arrived

14

at cell A226 and his clothes were removed, he realized that he was being attacked and
received repeated blows to his head, that caused him to black out. These two instances are
disputed by Beahm. See supra. at 8-9.
While such a factual dispute might preclude summary judgment in favor of either
party, here the DVD of the incident provides uncontroverted evidence. The DVD does not
substantiate plaintiff’s averments about Beahm’s behavior. Specifically, there is no evidence
that Beahm slammed plaintiff’s body or head into the floor or wall. Plaintiff does not dispute
that he tried to bite Beahm, who can be seen pressing plaintiff toward the wall when plaintiff
resisted placement of the spit mask. Moreover, there is nothing in the DVD to suggest that
Beahms’ actions were anything more than attempts to control a volatile situation and obtain
plaintiff’s compliance.
Where video evidence contradicts the plaintiff’s version of events, the court should
not accept the plaintiff’s story for purposes of summary judgment. Scott v. Harris, 550 U.S.
372, 378-80 (2007); cf. Bogie v. Rosenberg, 705 F.3d 603, 610-12 (7th Cir. 2013) (dismissal
of complaint was appropriate where video exhibit attached to complaint contradicted the
allegations in the complaint); see also Fillmore v. Page, 358 F.3d 496, 504 (7th Cir. 2004)
(upholding a district court’s decision to reject an assertion that prison guards struck an
inmate’s groin when a video recording of the interactions, thought not capturing “every
second of every aspect,” is “fairly comprehensive” and refutes the claim).
On this record, no reasonable jury could conclude that Beahm used excessive force
against plaintiff.
B.

Conditions of Confinement Claim

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The Prison Litigation Reform Act (PLRA) provides in pertinent part that, “[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.” 42 U.S.C. § 1997e(a).
Exhaustion of administrative remedies is a condition precedent to suit. Dixon v. Page, 291
F.3d 485, 488 (7th Cir. 2002) (citing Perez v. Wis. Dep’t of Corrs., 182 F.3d 532, 535 (7th
Cir. 1999)). Section 1997e 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 PLRA exhaustion
requirement requires “proper exhaustion,” meaning that a prisoner must complete the
administrative review process in accordance with the applicable procedural rules, including
deadlines. Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006); see also Pozo v. McCaughtry, 286
F.3d 1022, 1025 (7th Cir. 2002) (“To exhaust remedies, a prisoner must file complaints and
appeals in the place, and at the time, the prison’s administrative rules require”). Exhaustion
is an affirmative defense, and the burden of proof is on the defendants. Dole v. Chandler,
438 F.3d 804, 809 (7th Cir. 2006) (citing Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004)).
The undisputed facts establish that plaintiff did not file an offender complaint related
to his conditions of confinement claim. Although not entirely clear, plaintiff appears to argue
that the three offender complaints he filed regarding his disciplinary hearing – WCI-20119720, WCI-2011-9721, and WCI-2011-7636 – should be considered as having exhausted
his conditions of confinement claim. Plaintiff did not submit the actual offender complaints
for any the three grievances in response to defendants’ motion for summary judgment. He
did, however, file the ICE Rejection forms for WCI-2011-7636 and WCI-2011-9721, which

16

demonstrate that the inmate complaints were rejected. The forms are insightful as to the
content of the grievances. (Docket 37 at 3-4.)
The ICE Rejection for WCI-2011-7636 states that the subject of the complaint was
discipline and that plaintiff had issues with Conduct Report 2150441. The rejection
comment provides the following additional information:
Per DOC 310.08(2)(a), Wis. Adm. Code, the scope of the ICRS excludes
complaints regarding any issue related to a conduct report “that has not been
resolved through the disciplinary process in accordance with ch. DOC 303.”
Conduct report #2150441 has not been resolved through the disciplinary
process as there is no indication of an appeal filed to the Warden.
Consequently, the complaint falls from the scope of the ICRS and is rejected
on that basis.
Inmate Boyd is reminded that the ICRS may be used to challenge only the
procedure used in the disciplinary process, following DOC 310.08(3). In
accordance with DOC 210.11(3), the investigation of a complaint filed under
DOC 310.08(3) is limited to review of the record.
(Docket 37 at 3.) Likewise, the ICE Rejection for WCI-2011-9721 states that the subject of
the grievance was discipline and that plaintiff had issues with Conduct Report 2150441. The
rejection comment adds:
In accordance with DOC 310.11(3), the investigation of a complaint filed
under DOC 310.08(3) is limited to review of the record. In addition, the ICRS
may be used to challenge only the procedure used in the disciplinary process.
Arbitrary issues, matters involving acts of discretion on the part of the
adjustment committee such as the weight and credibility given to evidence
and testimony, or discretionary acts on the part of the Security Director or
Warden, and elements outside of the official hearing record can not be
addressed. In addition, inmate Boyd should be aware that the Warden’s
decision regarding the sufficiency of evidence is final. DOC 303.76(7)(d).
Review of the complaint reveals inmate Boyd’s wish to appeal conduct report
#2150441 is based on his belief procedural errors occurred, however, he
raises no specific procedural error in his complaint.
As mentioned above, only challenges to the procedure used in the disciplinary
process are within the scope of the ICRS. Absent such a challenge, the
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complaint falls from the scope of the ICRS. The complaint is rejected on that
basis.
(Docket 37 at 4.)
Plaintiff asserts that the reviewer of Offender Complaint WCI-2011-9721 was
referring to his conditions of confinement claim when he stated that “elements outside of
the official hearing record cannot be addressed.” According to plaintiff, he felt it was in his
best interest to give a brief account and not a detailed description of his issue in the inmate
complaints and his failure to use the magic word “conditions of confinement” in the offender
complaint would not have resulted in a different outcome.
Despite plaintiff’s assertions, the record reveals that he did not file an offender
complaint regarding his conditions of confinement claim. There is no indication that
administrative remedies were unavailable to him. Thus, plaintiff has failed to exhaust his
administrative remedies regarding that claim. See Schultz v. Pugh, 728 F.3d 619, 620 (7th
Cir. 2013); see also Pozo, 286 F.3d at 1025. Therefore,
IT IS ORDERED that plaintiff’s motion for summary judgment (Doc. 34) is DENIED.
IT IS FURTHER ORDERED that defendants’ motion for summary judgment (Doc.
28) is GRANTED and this action is DISMISSED.
Dated at Milwaukee, Wisconsin, this 7th day of March, 2014.
BY THE COURT
/s/ C. N. Clevert, Jr.
C. N. CLEVERT, JR.
U. S. DISTRICT JUDGE

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