Beal v. Foster et al

Filing 72

ORDER signed by Judge J.P. Stadtmueller on 5/30/2017: GRANTING 65 Defendant's Second Motion for Summary Judgment; DISMISSING Plaintiff's shower claim without prejudice for failure to exhaust administrative remedies; and DISMISSING action. (cc: all counsel, via mail to Ronald Jerome Beal) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RONALD JEROME BEAL,

v.

Plaintiff,

Case No. 14-CV-229-JPS

SERGEANT RUSSELL SCHNEIDER,
Defendant.

ORDER

Plaintiff Ronald Jerome Beal (“Beal”), who at all times relevant was
a Wisconsin state prisoner, alleges in this action that Defendant, Sergeant
Russell Schneider (“Schneider”), violated his civil rights through three
discrete instances of sexual harassment: (1) an allegedly sexualized
comment to Beal about a hot dog; (2) urinating in the restroom with the
door open, in view of Beal and other inmates; and (3) forcing Beal and other
inmates to shower naked while Schneider watched (the “shower claim”).
See (Docket #42 at 4–5); (Docket #45 at 3–4). Schneider moved for summary
judgment in October 2016, and the Court granted that motion in part in an
order issued January 20, 2017. (Docket #62). The Court noted that while
summary judgment should be granted as to the first two grounds for Beal’s
suit—the hot dog comment and the urination incident—both parties had
overlooked the final ground. Id. at 11–12. Because of this, the Court
permitted the parties to proceed with additional discovery and a second
round of dispositive motions on the shower claim. Id.; (Docket #63).
Schneider filed a second motion for summary judgment on April 21,
2017. (Docket #65). Under the abbreviated briefing schedule set by the
Court, Beal’s response was due fourteen days later. See (Docket #63 at 2). To

date, Beal has filed nothing in response to the motion. Because of this, and
in light of the numerous warnings he received about the consequences of
failing to respond to a dispositive motion, see (Docket #62 at 1–2), the Court
finds that Beal has conceded each and every proposed statement of fact
Schneider submitted, Fed. R. Civ. P. 56(e); Civ. L. R. 56(b)(4); Smith v. Lamz,
321 F.3d 680, 683 (7th Cir. 2003); Hill v. Thalacker, 210 F. App’x 513, 515 (7th
Cir. 2006).
This, in turn, means that the Court’s analysis of the present motion
can be substantially truncated. The Court will assume familiarity with the
factual background as explained in its prior summary judgment order.
(Docket #62 at 2–4). The only facts relevant here are that Schneider, a
correctional officer at Beal’s prison, monitored inmates while they
showered, and Beal claims that he sometimes ordered them to remove all
their clothing while they showered. Id. at 5; (Docket #65 ¶¶ 10–17).
Schneider says he did so to ensure that the showers remained sanitary and
that inmates did not use showering time to simultaneously wash their
clothes. (Docket #65 ¶¶ 10–17).
Schneider argues that Beal did not exhaust his administrative
remedies with respect to the shower claim. (Docket #65 at 6–7). The Prison
Litigation Reform Act (“PLRA”) establishes that, prior to filing a lawsuit
complaining about prison conditions, a prisoner must exhaust “such
administrative remedies as are available[.]” 42 U.S.C. § 1997e(a). To do so,
the prisoner must “file complaints and appeals in the place, and at the time,
the prison’s administrative rules require,” and he must do so precisely in
accordance with those rules; substantial compliance does not satisfy the
PLRA. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002); Smith v.
Zachary, 255 F.3d 446, 452 (7th Cir. 2001); Burrell v. Powers, 431 F.3d 282, 284–
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85 (7th Cir. 2005). Failure to exhaust administrative remedies is an
affirmative defense to be pleaded and proved by the defendant. Westefer v.
Snyder, 422 F.3d 570, 577 (7th Cir. 2005).
The Wisconsin Department of Corrections (“DOC”) maintains an
Inmate Complaint Review System (“ICRS”) designed to provide a forum
for inmate complaints. Wis. Admin. Code DOC § 310.04. Schneider asserts
that Beal never submitted an inmate grievance under the ICRS regarding
the shower claim. (Docket #67 ¶¶ 27–30). At most, says Schneider, Beal once
vaguely mentioned the shower claim to a prison official who was
investigating Schneider’s hot dog comment. Id. ¶¶ 3–4, 18–26. Yet even in
that instance, Beal never claimed that Schneider ever made him do anything
untoward, only that he had witnessed some portion of an argument
between another inmate and Schneider about disrobing in the shower. Id.
According to Schneider, Beal’s lone comment was not the kind of
notice of a claim required by the ICRS. This Court agrees. The prison’s
investigation into Schneider’s hot dog comment was not the forum
designated by the DOC for lodging complaints about guard misconduct.
That function is reserved to the ICRS, and it is undisputed that Beal failed
to submit an ICRS grievance that raised the shower claim. As a result, his
claim must be dismissed for failure to exhaust administrative remedies.
Pozo, 286 F.3d at 1025. Indeed, the Court must dismiss the claim without
considering any of Schneider’s arguments about its merits, since the
Seventh Circuit instructs that the exhaustion requirement “gives prisons
and their officials a valuable entitlement—the right not to face a decision on
the merits—which courts must respect if a defendant chooses to invoke it.”

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Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 536 (7th Cir 1999). This claim will,
therefore, be dismissed without prejudice.1
Accordingly,
IT IS ORDERED that Defendant Sergeant Russell Schneider’s
second motion for summary judgment (Docket #65) be and the same is
hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s shower claim be and the
same is hereby DISMISSED without prejudice for failure to exhaust
administrative remedies; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 30th day of May, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Court

Although it appears unlikely that Beal will be able to complete the ICRS
process for the shower claim at this late date, dismissals for failure to exhaust are
always without prejudice. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004).
Furthermore, while Schneider invites a substantive ruling on the claim, see (Docket
#71 at 2–3), he cannot elect to raise an exhaustion defense and then expect the
Court to dismiss the claim with prejudice for some merits-based reason. 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[.]”).
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