Price v. Wisconsin Department of Corrections

Filing 57

ORDER signed by Judge Pamela Pepper on 7/16/2018 GRANTING 34 Defendant's Motion for Partial Summary Judgment. The court DISMISSES plaintiff's First Amendment retaliation claim. Dispositive motions due 9/20/2018; responses due 30 days after receipt of motion. (cc: all counsel, via mail to Roland Price at New Lisbon Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ROLAND PRICE,
Plaintiff,
v.

Case No. 15-cv-774-pp

PHILLIP FRIEDRICH,
Defendant.
______________________________________________________________________________
DECISION AND ORDER GRANTING THE DEFENDANT’S MOTION FOR
PARTIAL SUMMARY JUDGMENT BASED ON FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES (DKT. NO. 34)
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, filed
a complaint under 42 U.S.C. §1983, alleging that the defendant violated his
civil rights at the Wisconsin Secure Program Facility (“WSPF”). Dkt. No. 1. On
August 7, 2017, the court screened the plaintiff’s third amended complaint,
and allowed him to proceed with two claims: (1) a First Amendment claim that
the defendant retaliated against him because he filed an inmate complaint
against the defendant’s supervisor (Captain Brown), and (2) a Fourteenth
Amendment claim that the defendant attempted to impede the plaintiff’s ability
to litigate his appellate cases. Dkt. No. 29 at 4-5, 7.
The defendant has filed a motion for partial summary judgment, arguing
that the plaintiff failed to exhaust administrative remedies on his First
Amendment retaliation claim. Dkt. No. 34. The court will grant the motion for
partial summary judgment and will dismiss the First Amendment retaliation
claim.
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I.

FACTS1
When the events in the complaint occurred, the plaintiff was an inmate

at WSPF. Dkt. No. 28 at ¶¶ 7-32. The defendant is a Correctional Officer at
WSPF. Id. at ¶3.
On or around September 14, 2011, the defendant confiscated the
plaintiff’s “property”—a review of the entire complaint hints that this “property”
was comprised of legal materials—as contraband because it had a piece of clear
scotch tape attached to it. Id. at ¶¶7-11. The plaintiff alleges that the defendant
was “angry,” “heated,” “infuriated,” “furious,” “argumentative” and “aggressive”
as he took the plaintiff’s property, and that the defendant threatened to place
the plaintiff in segregation. Id. at ¶10. The plaintiff’s mother called the
defendant to ask about the confiscated property; the defendant responded that
he had sent the property to the plaintiff’s mother’s house by “Spee-Dee,” and
that he had a receipt indicating that “Spee-Dee” had been unable to deliver the
property. Id. at ¶12. The plaintiff says that his mother told the defendant that
she’d lived at the same address for fifty years, and that she’d never received the
property; the plaintiff asserts that the defendant lied about sending the
property to the plaintiff’s mother’s home. Id. The plaintiff requested a copy of
the receipt showing that the defendant had mailed the items to his mother, and

The court takes facts in this section from the defendant’s Proposed Findings
of Fact, dkt. no. 39, the plaintiff’s “declaration,” dkt. no. 46, and the plaintiff’s
third amended complaint, dkt. no. 28, which the court construes as an
affidavit at summary judgment. Ford v. Wilson, 90 F.3d 245, 246-47 (7th Cir.
1996).
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according to the plaintiff, “no signature appears on it at all of [the defendant].”
Id.
A few days later, the defendant spoke to the plaintiff while on the cell
block, and said, “You made the mistake it’s on you go ahead and file your
I.C.E. your property will not be allowed anyway; and it’s out of my hands now.”
Id. at ¶13. The defendant then told the plaintiff that his property had been
destroyed. Id. The plaintiff alleges that the defendant destroyed his property on
purpose, to stop the plaintiff from filing inmate complaints and to stop him
from participating in litigation. Id. at ¶14. The plaintiff asserts that his legal
materials “meant his life and he felt traumatized and devastated” when the
defendant destroyed them. Id. at ¶15. He believes that the defendant
confiscated and destroyed his legal materials because he had filed “multiple
complaints” against Captain Brown (the defendant’s supervisor). Id. at ¶¶7, 9.
The plaintiff filed this federal lawsuit on June 26, 2015—almost four
years after the events he describes in the complaint. Dkt. No. 1. The court
allowed the plaintiff to proceed with a First Amendment retaliation claim based
on the allegation that “(a) [the plaintiff] engaged in activity protected by the
First Amendment (objecting to how the Brown conduct report was handled), (b)
that [the defendant] caused him a deprivation likely to deter First Amendment
activity in the future (by taking his materials so he could not file complaints or

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participate in the legal process), and (c) that [the defendant] did this to stop
him from filing complaints or legal actions.”2 Dkt. No. 29 at 4-5.
The issue the defendant has raised in the motion for summary judgment
is whether the plaintiff exhausted his administrative remedies on his retaliation
claim prior to bringing this lawsuit. To exhaust his administrative remedies,
the plaintiff would have had to file an inmate complaint through the Inmate
Complaint Review System (“ICRS”). The defendant states that Cindy O’Donnell,
who is the Secretary of the Department of Correction’s designee for making
final agency decisions on offender complaints, searched the Inmate Complaint
Tracking System (“ICTS”) for all inmate complaints “relating to [the plaintiff’s]
clams in this lawsuit. 3 Dkt. No. 39 at ¶¶6-7. She found ten inmate complaints
she thought were relevant. Id. at ¶7. The plaintiff states that “the ten
complaints O’Donnell declares relevant to his retaliation are substantial to his
claim,” dkt. no. 46 at ¶6; he has not identified any other inmate complaints
that he believes are relevant to his retaliation claim. Given that, the court
reviewed only the ten inmate complaints that the defendant produced. See Dkt
No. 40.

Throughout the briefing documents, the plaintiff alleges that the defendant
and the DOC “retaliated” against him in a variety of other ways, including
transferring him to Columbia Correctional Institution. Dkt. No. 44 at 8. The
court will not address those allegations here, because the court did not allow
the plaintiff to proceed with those claims in its screening order. See Dkt. No.
29.
2

O’Donnell has access to the ICTS, a database that stores all documents and
reports submitted and generated though the ICRS. Dkt. No. 39, ¶3.
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The defendant appears to have produced every inmate complaint that the
plaintiff filed between 2011 and 2012 that complained either about “legal
property” and/or the defendant specifically. The court will discuss all ten
inmate complaints below, even though only three of them (Dkt. Nos. 40-6, 40-7
and 40-8) appear to be directly relevant to the issues in the case.
The plaintiff’s first two inmate complaints, filed on June 2, 2011, involve
confiscation of religious items. 4 Dkt. No. 40-1 at 4. The first inmate complaint
alleged that the plaintiff should be allowed to keep a rosary and other religious
jewelry/pendants because they were “grandfathered” in. Dkt. No. 40-3 at 10.
The Inmate Complaint Examiner (“ICE”) dismissed this complaint because the
property was “in excess” of the allowed limits. Id. at 2. The plaintiff filed an
appeal, alleging that the defendant took the items in “retribution” and to
“punish” him because “black inmate will not be catholic period.” Dkt. No. 40-3
at 13. The Corrections Complaint Examiner (“CCE”) recommended dismissing
the appeal; the Secretary of the Department of Corrections (“the Secretary”)
agreed and dismissed the appeal. Id. at 5-6.
The plaintiff’s second inmate complaint alleged that the defendant took
his Bible and other religious texts because they were altered by the use of
scotch tape (an item that inmates can purchase at the commissary). Dkt. No.
40-2 at 10. ICE concluded that the property was properly confiscated under
§DOC 303.47, and dismissed the complaint. Id. at 2-3. The plaintiff filed an
The court notes that June 2011 is three months before September 14, 2011,
the date on which the plaintiff states that the incident with the defendant
allegedly occurred. See Dkt. No. 28 at ¶¶ 8-10.
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appeal, alleging that the confiscation was a “personal attack on [his] religious
belief as a catholic.” Id. at 13. CCE recommended dismissing the appeal; the
Secretary agreed and dismissed the appeal. Id. at 5-6.
The plaintiff’s third and fourth inmate complaints more directly relate to
“legal” property. The plaintiff filed his third inmate complaint on June 15,
2011. Dkt. No. 40-4 at 1. He alleged that legal transcripts that he needed for
his criminal appeal were “missing.” Id. ICE dismissed the complaint because
prison staff checked the property room and determined that the legal
transcripts were not there. Id. at 3. The plaintiff appealed, and in his appeal he
mentioned “CO Brown” and that he was “being abuse[d] for filing complaints.”
Dkt. No. 40-4 at 6. CCE recommended dismissing the appeal; the Secretary
agreed and dismissed the appeal. Id. at 9-10.
The plaintiff filed his fourth inmate complaint on June 17, 2011. Dkt.
No. 40-5 at 10. He alleged that the defendant planned to destroy his legal
property before he could file a writ of certiorari in state court. Id. He asked the
institution to “hold” his property through the exhaustion process. Id. ICE
dismissed the complaint, noting that prison policy (specifically §DOC 301.13(1))
did not require the institution to hold contraband while the inmate appealed to
CCE. Id. at 2-3. The plaintiff appealed, alleging that the property was not
“contraband.” Id. at 12. CCE recommended dismissing the appeal; the
Secretary agreed and dismissed the appeal. Id. at 5-6.
The plaintiff filed all the above complaints months before the incident he
describes in his federal civil rights complaint. The plaintiff’s next three inmate
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complaints, filed between November 2011 and January 2012, alleged that the
property discussed above (both the religious and legal property) was improperly
destroyed. Dkt. Nos. 40-6, 40-7, 40-8. One inmate complaint alleged that the
“property room” stole his property, and the plaintiff lists his mother’s address
at the bottom (where he presumably wanted his property sent after it was
deemed “contraband”). Dkt. No. 40-6. The other two inmate complaints alleged
that the defendant destroyed the property without notice. Dkt. Nos. 40-7, 40-8.
ICE rejected the first and third inmate complaints as untimely filed. Dkt. Nos.
40-6 at 2, 40-8 at 2. ICE rejected the second inmate complaint because it had
been addressed in a prior inmate complaint. Dkt. No. 40-7 at 2. The plaintiff
appealed only the third rejection, reiterating that he “did not receive any
notice;” the Reviewing Authority upheld the rejection. Dkt. No. 40-8 at 4, 8.
The plaintiff filed three more inmate complaints while incarcerated at the
Columbia Correctional Institution (“CCI”), alleging that some of his property
from WSPF did not arrive at CCI. See Dkt. Nos. 40-9, 40-10, 40-11. The first
inmate complaint mentions the defendant by name as the individual who
packed up his property for transfer to CCI. See Dkt. No. 40-9 at 8. The second
two inmate complaints involve issues with the “chain of command” that the
plaintiff had to use to acquire his missing property at CCI. Dkt. Nos. 40-10, 4011. ICE rejected the first complaint as untimely filed. Dkt. No. 40-9 at 2. ICE
rejected the second and third inmate complaints because they complained of
issues that already had been addressed in prior inmate complaints. Dkt. Nos.
40-10 at 2, 40-11 at 2. The plaintiff appealed only the first rejection, reiterating
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that he was required to follow the “chain of command” prior to filing; the
Reviewing Authority upheld the rejection. Dkt. No. 40-9 at 4, 25.
II.

DISCUSSION
1.

Summary Judgment Standard

“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.” Anderson, 477 U.S. at 248. A dispute
over a “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 disputed 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

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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).
2.

Exhaustion of Administrative Remedies

The Prison Litigation Reform Act (“PLRA”) provides in part that “[n]o
action shall be brought with respect to prison conditions under § 1983. . . by a
prisoner. . . until such administrative remedies as are available are exhausted.”
42 U.S.C §1997e(a). The exhaustion rule gives prison officials an opportunity to
resolve disputes concerning the exercise of their responsibilities before being
haled into court, and it produces a “useful administrative record” for the
district court to rely on. Jones v. Bock, 549 U.S. 199, 204 (2007) (citing
Woodford v. Ngo, 548 U.S. 81, 94-95 (2006)). The exhaustion rule also
promotes efficiency, because agencies generally resolve claims much faster
than federal courts. Woodford, 548 U.S. at 89. A district court “lacks discretion
to resolve the claim on the merits” if the prisoner fails to properly exhaust
administrative remedies. Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 535 (7th
Cir. 1999).
The Seventh Circuit “has taken a strict compliance approach to
exhaustion.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). A prisoner
must “properly use the prison's grievance process” prior to filing a case in
federal court. Id. “[A] prisoner must file complaints and appeals in the place,
and at the time, the prison's administrative rules require.” Pozo v. McCaughtry,
286 F.3d 1022, 1025 (7th Cir. 2002). “[I]t is the prison’s requirements . . . that

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define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218
(2007).
To exhaust administrative remedies through Wisconsin’s ICRS, an
inmate first must file an offender complaint with ICE within fourteen calendar
days of the event giving rise to the complaint. §DOC 310.09(6). The complaint
must “contain only one issue per complaint, and shall clearly identify the
issue.” §DOC 310.09(1)(e). An inmate complaint sufficiently identifies the issue
if it “alerts the prison to the nature of the wrong for which redress is sought.”
Strong v. David, 297 F.3d 646, 560 (7th Cir. 2002). “The grievant need not lay
out the facts, articulate legal theories, or demand particular relief.” Id. The
inmate complaint does not need to name all names, or lay out every possible
legal theory. Wine v. Pollard, No. 08-CV-173-BBC, 2008 WL 4379236, at *2
(W.D. Wis. Sept. 23, 2008). But the complaint must “alert[] the prison to the
nature of the wrong.” Id. at 3. It needs to “object intelligibly to some asserted
shortcoming.” Strong, 297 F.3d at 650.
After the inmate files his inmate complaint, ICE “decid[es] the method
best suited to determine the facts, including personal interviews, telephone
calls, and document review . . . .” §DOC 310.11(3). ICE sends a
recommendation to the appropriate reviewing authority within twenty working
days of acknowledging the complaint. §DOC 310.11(11). The appropriate
reviewing authority then makes a decision on the inmate complaint within ten
working days of receiving the recommendation. §DOC 310.12(1).

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If the appropriate reviewing authority dismisses the inmate complaint,
the inmate can appeal that decision to CCE. §DOC 310.13(1). CCE sends a
recommendation to the Office of the Secretary of the Department of Corrections
within thirty-five days of receiving the appeal. §DOC 310.13(6). The Secretary
must make a decision within ten working days after receiving CCE’s
recommendation. §DOC 310.14(1). If the inmate does not receive the
Secretary’s written decision within forty-five working days of CCE’s
acknowledgement of the appeal, the inmate can consider administrative
remedies to be exhausted. §DOC 310.14(3).
3.

Analysis

The defendant asserts that the plaintiff failed to properly exhaust his
administrative remedies because he did not file any inmate complaints alleging
that the defendant took his legal property in retaliation for the plaintiff filing
inmate complaints against Captain Brown. The defendant produced the
plaintiff’s entire “Inmate Complaint History Report,” which spans from May
2007 to April 2016, and provided the court with all the inmate complaints that
mentioned the defendant and/or confiscation of “legal property.” Dkt. No. 40-1.
The plaintiff appears to agree that he did not file an inmate grievance
specifically alleging that the defendant took his property in retaliation for the
inmate complaints he filed against Captain Brown, and he does not identify
any other inmate complaint that he believes did allege this. The plaintiff
argues, however, that he generally complained about “retribution” in two of his
appeals, which he says was sufficient to give the prison the notice needed to
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investigate his complaint and resolve the issue. See Dkt. No. 50 at 3. He reiterates numerous times that he should not be held to a “heightened pleading
standard.”
As the court has indicated, the events that the plaintiff complains of
occurred on or about September 14, 2011. The first complaint the plaintiff filed
after that date was signed on November 19, 2011, and alleges that the property
room took the plaintiff’s property (including legal transcripts). Dkt. No. 40-6.
This complaint does not mention the defendant.
The next one was signed on December 8, 2011. Dkt. No. 40-7. This one
says that the defendant destroyed the plaintiff’s property and that “he [the
defendant] stated lack of funds.” Id. at 5. The plaintiff says that the defendant
did not explain “that he gave [the plaintiff] Spee-dee Delivery Service Inc.” Id.
The plaintiff discusses the phone call with his mother, and ends by accusing
the defendant of destroying valuable property “without giving notice on
destruction of property slip just destroyed my property.” Id. The third
complaint is dated January 10, 2011—that is an error, apparently, because the
facility received the complaint on January 12, 2012. Dkt. No. 40-8 at 7.
In his third complaint, the plaintiff stated only that the defendant
destroyed his property without giving notice of destruction. Id.
The court first notes that all of these complaints were filed well past the
fourteen-day date required by the IRCS procedures. If the plaintiff wanted to
complain about the events that happened between September 14 and 30, 2011,
he needed to file his inmate complaint between September 28 and October 14,
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2011. Yet he did not sign his first post-incident complaint until November 19,
2011—well over a month later.
More to the point, however, not one of these three complaints alerted the
prison system that the plaintiff believed that the defendant had destroyed his
property in retaliation for the complaints the plaintiff had made against Brown.
The plaintiff complains about the defendant destroying the plaintiff’s property,
but he tells the institution that the reason he is believes the destruction was a
problem was because the defendant did not give him notice of the destruction.
The institution had no way of knowing, by looking at these complaints, that the
plaintiff believed that the defendant destroyed the plaintiff’s property on
purpose, to retaliate against the plaintiff for complaining about Brown.
The plaintiff did mention, on one occasion, the fact that he had been
filing complaints. On June 16, 2011—three months before the events he
describes in the complaint—the plaintiff filed an appeal from the dismissal of
his third complaint, the one where he complained about the transcripts of his
criminal trial going “missing.” In this appeal, the plaintiff accused the
defendant of having taken his transcripts. Dkt. No. 40-4 at 5. On the second
page of that appeal, he stated, “Staff is aware nothing shall happen and laugh
at this process I am being abuse for filing complaints discriminated against my
property taken Bibles legal work.” Id. at 6. This allegation arose in an appeal,
filed three months before the events the plaintiff complains of here. The
plaintiff does not explain who is abusing him. He does not identify the
complaints he filed that he believes led to the alleged abuse. This one mention
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of retaliation, made months before the events he complains of in this case and
months before he filed his December 2011 complaint alleging that the
defendant destroyed his property, did not put the institution on notice that he
believed that the defendant destroyed his property because of the plaintiff’s
complaints against Brown.
The Wisconsin Administrative Code provides that an inmate must
“clearly identify the issue” in the original complaint that is presented to the ICE
because ICE is responsible for “investigating” and “determining the facts.” ICE
did not get the opportunity to investigate and determine the facts regarding the
plaintiff’s retaliation (or “retribution”) claim because he did not raise the issue
in his underlying inmate complaint. The plaintiff did not follow the prison’s
rules for filing a grievance, and the court finds that he failed to properly
exhaust administrative remedies on his First Amendment retaliation claim.
The plaintiff argues that he followed the “chain of command,” which
requires “informal resolution” prior to filing an inmate complaint. Dkt. No. 46
at ¶4; see also Wis. Admin. Code §DOC 310.09. He states that he directly
complained to the defendant about his retaliation claim. Even assuming that
this is true, the plaintiff must pursue “all administrative remedies that the
department of corrections has promulgated by rule.” Wis. Admin. Code §DOC
310.05. This means the plaintiff was required to complete the ICRS process by
actually filing an inmate complaint and appealing it all the way to CCE. Simply
beginning the process, by seeking an “informal resolution,” is not enough to
exhaust administrative remedies.
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Finally, the plaintiff states that inmate complaints are “rubber stamped”
and that the ICRS is a “mockery” and “sham.” Dkt. No. 46 at ¶2-3, 9. He states
that the DOC doesn’t conduct inmate interviews on any of the inmate
complaints it receives. Id. at ¶¶2-3, 17. He also states that the ICRS is written
“ambiguously” to “manipulate the outcome.” Dkt. No. 46 at ¶32 and Dkt. No.
44 at 13. He argues that there must be a flaw in the system because so many
of his inmate complaints have been denied or rejected.
The court has no reason to believe that the number of denials/rejections
show an intent by the institution to “manipulate the outcome.” As noted on his
Inmate Complaint History Report, the plaintiff’s complaints were denied or
rejected because they lacked merit or were untimely. The plaintiff appears to
have successfully filed ICRS complaints for years, dkt. no. 40-1, proving that
the ICRS is not too “ambiguous” to navigate (at least for the plaintiff). While the
court does not have information on whether ICE usually conducts interviews
with inmates on their grievances, the reason ICE did not interview the plaintiff
regarding this retaliation claim is because they didn’t know about it. The
plaintiff did not tell them that he believed that the defendant destroyed his
property in retaliation for his complaints against Brown.
The plaintiff failed to properly exhaust administrative remedies on his
First Amendment retaliation claim. The court will grant summary judgment in
favor of the defendant on this claim, and will dismiss the claim.

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III.

NEXT STEPS
On October 17, 2017, the court issued a scheduling order, requiring the

parties to complete discovery by January 19, 2018 and to file dispositive
motions by February 19, 2018. Dkt. No. 33. The defendants filed this motion
for partial summary judgment less than a month later, on November 13, 2017,
long before the discovery deadline. Dkt. No. 34. On December 1, 2017, the
court received a motion from the plaintiff, asking for time to respond to the
motion for partial summary judgment, and demanding various documents from
the defendant. Dkt. No. 41. The defendant responded that he had no objection
to the court giving the plaintiff more time to respond to the exhaustion motion,
but asked the court to extend the general dispositive motions deadline, as well.
Dkt. No. 42. The court granted that request, and extended the deadline for
filing dispositive motions to July 13, 2018. Dkt. No. 43. The court also advised
the plaintiff that if he wanted discovery, he should serve his discovery requests
on the defendant, not file them with the court. Id.
Given the length of time it took the court to decide this motion for partial
summary judgment, the defendant filed a second request, asking the court to
stay the deadline for filing general dispositive motions. Dkt. No. 53. The court
granted that motion by text-only order on June 25, 2018, and extended the
dispositive motion deadline to the end of the day on September 20, 2018.
The current status of the case is that the plaintiff is proceeding on one
claim—a Fourteenth Amendment claim that the defendant attempted to impede
the plaintiff’s ability to litigate his appellate cases. The parties should have
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completed their discovery. If either party wishes to file a dispositive motion—a
motion for summary judgment—on the Fourteenth Amendment claim, that
party must file that motion in time for the court to receive it by the end of the
day on September 20, 2018. Responses are due thirty days after a party
receives a dispositive motion. If either party needs additional time to file a
dispositive motion, he should ask the court for an extension of time before
September 20, 2018.
IV.

CONCLUSON
The court GRANTS the defendants’ motion for partial summary

judgment for failure to exhaust administrative remedies. Dkt. No. 34. The court
DISMISSES the plaintiff’s First Amendment retaliation claim.
Dated in Milwaukee, Wisconsin this 16th day of July, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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