Moffett v. Dittmann et al

Filing 39

ORDER signed by Judge Lynn Adelman on 12/5/16 DENYING plaintiffs motion for discovery and production of documents 18 and that plaintiffs motion to compel 38 is DENIED. Further ordering that plaintiffs motion to file exhibits 19 is GRANTED. Fu rther ordering that plaintiffs motion for reconsideration 20 is GRANTED in part and DENIED in part. Further ordering that defendants counsel shall serve Belinda Schrubbe with plaintiffs amended complaint and that Belinda Schrubbe shall file a resp onsive pleading to the complaint within sixty days of receiving electronic notice of this order. Further ordering that defendants motion for summary judgment 26 is DENIED. Further ordering that defendants request to stay discovery 26 is GRANTED . Discovery is stayed until the issue of exhaustion is resolved. Further ordering defendants to file a letter with the court on or before December 19, 2016 as to whether they would like to proceed with a Pavey hearing regarding exhaustion. (cc: all counsel, via USPS to plaintiff) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WALTER J. D. MOFFETT,
Plaintiff,
v.

Case No. 15-CV-644

DONALD STRAHOTA, MEISNER,
SGT. MYER, B. GREFF, WALKER,
ANGELIA KROLL, JANE DOES 1-2, and
JOHN DOES 1-2,
Defendants.

ORDER
I allowed plaintiff Walter J. D. Moffett to proceed on Eighth Amendment claims
regarding his treatment in segregation at Waupun Correctional Institution in 2013, as
well as staff’s failure to investigate plaintiff’s complaints regarding the conditions. This
matter is now before me on several motions filed by plaintiff and defendants’ fully
briefed motion for summary judgment on exhaustion grounds.
A.

Plaintiff’s Motions
In March 2016, plaintiff filed three motions: a motion for discovery and production

of documents, a motion to file exhibits, and a motion for reconsideration. ECF Nos. 18–
20. Plaintiff brings his motion for discovery and production of documents under Federal
Rules of Civil Procedure 33 and 34, but the motion is actually plaintiff’s initial
interrogatories and requests for production of documents to defendants. The court does
not routinely participate in discovery in civil cases. The parties serve discovery requests,
including interrogatories and requests for production (Federal Rules of Civil Procedure
33 and 34) on each other and, subject to objections, the other party responds. Parties

only bring motions regarding discovery (motions to compel under Federal Rule of Civil
Procedure 37) if they have a discovery dispute that they are unable to resolve after
attempting in good faith to come to an agreement. I will deny this motion.
Plaintiff later filed a motion for an order compelling discovery because
defendants had not responded to the interrogatories and requests for production in his
motion for discovery. ECF No. 38. I will deny this motion because defendants were
under no obligation to respond to the discovery requests plaintiff included in his motion
for discovery. I also note that this motion does not comply with Federal Rule of Civil
Procedure 37(a) or Civil Local Rule 37 (E.D. Wis.) because it does not contain a
certification that plaintiff attempted in good faith to meet and confer with defendants
regarding the discovery dispute before bringing his motion.
Next, in his motion to file exhibits, plaintiff asks me to consider five pages of
exhibits as part of his motion for reconsideration. I will grant this motion and have
considered these exhibits in support of plaintiff’s motion for reconsideration.
In his motion for reconsideration, plaintiff asks me reconsider portions of two of
my previous orders in this case. He challenges my denial of his request for a preliminary
injunction, my dismissal of parties at screening, and my decision not to recruit pro bono
counsel for him. He also asserts that new incidents at Columbia Correctional Institution
(where he is now incarcerated) warrant a preliminary injunction. Since filing this motion,
plaintiff has submitted a number of other documents detailing his current troubles at
Columbia Correctional Institution, all of which I have considered as part of plaintiff’s
motion.

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Under Federal Rule of Civil Procedure 54(b), I may revise any order adjudicating
fewer than all the claims at any time before the entry of judgment adjudicating all the
claims and the rights and liabilities of all the parties. 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. 1976)). “Reconsideration is not an appropriate forum for
rehashing previously rejected arguments or arguing matters that could have been heard
during the pendency of the previous motion.” Caisse Nationale de Credit Agricole v. CBI
Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996).
Plaintiff has not shown that I made any manifest errors of law or fact in my earlier
decisions. Nor has he presented newly discovered evidence that changes the outcome
of those motions. With regard to my decision to dismiss plaintiff’s original complaint
(thereby dismissing some defendants) under George v. Smith, 507 F.3d 605 (7th Cir.
2007) and my decision not to recruit pro bono counsel for him, plaintiff makes no
substantive arguments undermining my decisions.
Plaintiff’s arguments regarding my decision not to enter a preliminary injunction
revolve around his recent and current conditions of confinement at Columbia
Correctional Institution. Yet his claims in this case relate to events that occurred in 2013
at Waupun Correctional Institution. Plaintiff’s claims regarding Columbia are entirely
separate claims, and he may file a new complaint if he believes they violate his
constitutional rights, either as impermissible conditions of confinement under the Eighth
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Amendment or as retaliation under the First Amendment for filing and litigating this
case. However, plaintiff may not proceed on these new claims as part of this case, and
the allegations are not an appropriate basis for a preliminary injunction in this case. See
Hashim v. Hamblin, Case No. 14-cv-1265, 2016 WL 297465, at *4 (E.D. Wis. January
22, 2016) (“Plaintiff’s requests for injunctive relief are not connected to the claims he is
proceeding on in this case. He may not seek relief in connection with these claims in
this lawsuit.”). I will deny plaintiff’s motion for reconsideration as it relates to my prior
orders in this case.
In his motion for reconsideration, plaintiff also asks me to add Belinda Schrubbe
as a defendant. I noted in my order screening plaintiff’s amended complaint that he
made a number of claims against her but that he had not named her as a defendant and
I could not add her on my own motion. Plaintiff asserts that he inadvertently omitted her
name from the list of defendants and asks to add her as a defendant at this time. I will
grant this portion of plaintiff’s motion, add Belinda Schrubbe as a defendant, and order
service of plaintiff’s amended complaint on her.
B.

Defendants’ Motion for Summary Judgment
On April 13, 2016, defendants filed a motion for summary judgment along with

their answer. They submit that they are entitled to judgment because plaintiff failed to
exhaust his administrative remedies. That motion is fully briefed.
Under the PLRA, a prisoner must exhaust “such administrative remedies as are
available” before bringing suit “with respect to prison conditions under section 1983 . . .
or any other federal law.” 42 U.S.C. § 1997e(a). Unexhausted claims are procedurally
barred from consideration. See Woodford v. Ngo, 548 U.S. 81, 93 (2006). The
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exhaustion requirement is interpreted strictly; “[a] prisoner must comply with the specific
procedures and deadlines established by the prison’s policy.” King v. McCarty, 781 F.3d
889, 893 (7th Cir. 2015).
“The PLRA does not, however, demand the impossible.” Pyles v. Nwaobasi, 829
F.3d 860, 864 (7th Cir. 2016). In Pyles, the Seventh Circuit stated:
Remedies that are genuinely unavailable or nonexistent
need not be exhausted. A remedy becomes unavailable “if
prison employees do not respond to a properly filed
grievance or otherwise use affirmative misconduct to prevent
a prisoner from exhausting.” In such cases, the prisoner is
considered to have exhausted his administrative remedies.
Id. (citations omitted) (quoting Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006))
(citing Turley v. Rednour, 729 F.3d 645, 650 n.3 (7th Cir. 2013) (collecting cases)).
Defendants present evidence that they received only one inmate complaint from
plaintiff related to the claims in this case. The complaint was returned to plaintiff with
instructions for plaintiff to attempt to resolve the issue with security staff and then
resubmit the complaint. According to defendants, plaintiff never resubmitted the
complaint.
In his notarized brief and affidavit, plaintiff asserts that he “constantly
complained” about numerous issues, including “denial of hard of hearing sign; being
passed up for supplies; meals and recreation.” ECF No. 34, at 1. He says that he will
prove that he made all efforts within his power to exercise and attempt to exhaust his
administrative remedies but that correctional officers and other staff members hindered
his ability to do so. According to plaintiff, Tonia Moon, an institutional complaint
examiner who submitted a declaration on defendants’ behalf, cannot state for a fact that
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plaintiff did not submit more relevant inmate complaints than defendants acknowledge.
Plaintiff “know[s] for a fact that he . . . placed in his cell door . . . many complaints
relating to the issues before this court.” ECF No. 33, at 3. He notes that once a
complaint is picked up from his cell door he has no control over what happens. Inmates
in segregation at Waupun do not have access to the locked box for inmate complaints;
they must rely on staff members to put the complaints in the locked box for them.
Plaintiff says, “[b]elieve me, a lot of my complaints never made it.” Id. at 4.
In their reply brief, defendants maintain that plaintiff’s assertions are conclusory
and that he does not provide enough details regarding his claim that correctional
officers picked up complaints he left in his door and failed to submit them. Defendants
also suggest that plaintiff’s allegations are undermined by the fact that he filed a number
of complaints regarding other issues during the 21-day time period in June 2013.
The failure to exhaust is an affirmative defense on which the defendants bear the
burden of proof. Dole, 438 F.3d at 809. The Seventh Circuit has made clear that
“summary judgment cannot be used to resolve swearing contests between litigants.”
McCann v. Iroquois Mem’l Hosp., 622 F.3d 745, 752 (7th Cir. 2010) (quoting Payne v.
Pauley, 337 F.3d 767, 770 (7th Cir. 2003)). Nor may the court “weigh the evidence or
decide which testimony is more credible.” McCann, 622 F.3d at 752 (citations omitted).
Despite defendants’ arguments, plaintiff’s assertions in notarized documents create
questions of fact regarding his attempts to file inmate complaints and whether the
State’s inmate complaint process was available to him. These disputes of material facts
preclude summary judgment, and I will deny defendants’ motion. See Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex
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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).
I will give defendants a choice regarding how to proceed. If defendants choose to
continue to challenge plaintiff’s exhaustion of his administrative remedies, I will conduct
an evidentiary hearing on exhaustion and thereafter make findings of fact and
conclusions of law regarding whether plaintiff exhausted his administrative remedies
with regard to the claims in this case. See Pavey v. Conley, 544 F.3d 739, 742 (7th Cir.
2008). Defendants also may choose to waive their arguments regarding exhaustion, in
which case I will enter a scheduling order and this case will proceed to discovery on the
merits of plaintiff’s claims. Defendants should file a letter with the court on or before
December 19, 2016, advising me of their choice.
THEREFORE, IT IS ORDERED that plaintiff’s motion for discovery and
production of documents (ECF No. 18) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to compel (ECF No. 38) is
DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to file exhibits (ECF No. 19) is
GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion for reconsideration (ECF No.
20) is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that pursuant to an informal service agreement
between the Wisconsin Department of Justice and this court, defendants’ counsel shall
serve Belinda Schrubbe with plaintiff’s amended complaint.

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IT IS ALSO ORDERED that, pursuant to the informal service agreement
between the Wisconsin Department of Justice and this court, Belinda Schrubbe shall file
a responsive pleading to the complaint within sixty days of receiving electronic notice of
this order.
IT IS FURTHER ORDERED that defendants’ motion for summary judgment (ECF
No. 26) is DENIED.
IT IS FURTHER ORDERED that defendants’ request to stay discovery (ECF No.
26) is GRANTED. Discovery is stayed until the issue of exhaustion is resolved.
IT IS FURTHER ORDERED that the defendants should file a letter with the court
on or before December 19, 2016 as to whether they would like to proceed with a Pavey
hearing regarding exhaustion. After I receive that letter, I will either schedule this case
for a telephone scheduling conference to set a date for the Pavey hearing or enter a
written scheduling order.
Dated at Milwaukee, Wisconsin, this 5th day of December, 2016.

s/ Lynn Adelman
______________________________
LYNN ADELMAN
United States District Judge

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