Winston v. Clark et al

Filing 136

ORDER signed by Judge J.P. Stadtmueller on 9/25/2017: GRANTING 91 Defendants' Motion for Summary Judgment; DENYING 69 Plaintiff's Motion for Summary Judgment; DENYING as moot 89 Plaintiff's Motion for Extension of Time to Fil e Reply Brief; GRANTING 132 Plaintiff's Motion to Dismiss Certain Defendants; DISMISSING Jeffrey Andrykowski, Lt Reeves, Lt Reckless, Officer Spittlemeister, Mai Xiong, Terri Goudy, and Brandon Lawler from action; DENYING 120 Plaintiff&# 039;s Motion for Pavey Hearing; GRANTING 128 Plaintiff's Motion to Supplement Summary Judgment Submissions; DENYING as moot 126 Plaintiff's Motion to Stay; DENYING 118 Plaintiff's Motion to Appoint Counsel; DENYING 102 Plain tiff's Motion for Sanctions; DENYING 112 Plaintiff's Motion to Strike Defendants' Response Brief; DENYING as moot 100 Plaintiff's Motion for Reconsideration of His Motion to Compel; and DISMISSING action without prejudice. (cc: all counsel, via mail to Michael L. Winston at Columbia Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL L. WINSTON,
Plaintiff,
Case No. 15-CV-1398-JPS

v.
DAVID A. CLARK, KEONA GARTHDICKENS, JEFFREY ANDRYKOWSKI,
LT. REEVES, LT. RECKLESS, OFFICER
COPELAND, BRANDON LAWLER,
OFFICER JOSHUA MIKULECKY,
OFFICER D. ADAMS, OFFICER D.
BLUE, OFFICER BROOKS, OFFICER
SPITTLEMEISTER, D. BRODSKY,
CHRISTINE BECKER, DOROTHY
GREER, FREDERICK PORLUCOS,
MAI XIONG, and TERRI GOUDY,

ORDER

Defendants.

1.

INTRODUCTION
Plaintiff Michael Winston (“Winston”), an inmate at Columbia

Correctional Institution who was formerly incarcerated at the Milwaukee
County Jail (the “Jail”), brought this action against former Milwaukee
County Sheriff David A. Clarke (“Clarke”) and several officers and
medical personnel employed by Milwaukee County—Keona GarthDickens, Joshua Mikulecky, D. Adams, D. Blue, Officer Brooks, Officer
Copeland, D. Brodsky, Christine Becker, Dorothy Greer, and Frederick
Porlucos (collectively, the “Jail Staff”)—for alleged violations of his civil

rights.1 Specifically, Winston alleges that the defendants were deliberately
indifferent to his serious medical needs for failing to properly treat MRSA
infections he contracted while incarcerated at the Jail and for keeping him
in an unsanitary cell where he contracted those infections. (Docket #54-1
and #57 at 2-3). Winston also alleges that the Jail’s clothing and shoe
policy deprives inmates of the basic necessities of civilized life. Id.
Winston filed a motion for summary judgment, as did all of the
defendants, and those motions are fully briefed. For the reasons stated
below, the Court will grant the defendants’ motion for summary
judgment and dismiss this case without prejudice.
2.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides the mechanism for

seeking summary judgment. Rule 56 states that 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 Boss v. Castro, 816 F.3d 910, 916 (7th Cir.
2016). A “genuine” dispute of material fact is created when “the evidence
is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court
construes all facts and reasonable inferences in a light most favorable to
the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360
(7th Cir. 2016). In assessing the parties’ proposed facts, the Court must not

Winston also brought claims against Jeffrey Andrykowski, Lieutenant
Reeves, Lieutenant Reckless, Officer Spittlemeister, Mai Xiong, Terry Goudy, and
Brandon Lawler, but he moved the Court to dismiss his claims against those
defendants. (Docket #132). The defendants do not oppose such dismissal.
(Docket #133 at 5). The Court will therefore grant Winston’s motion to dismiss
those certain defendants named in his motion of July 18, 2017.
1

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weigh the evidence or determine witness credibility; the Seventh Circuit
instructs that “we leave those tasks to factfinders.” Berry v. Chicago Transit
Auth., 618 F.3d 688, 691 (7th Cir. 2010).
3.

RELEVANT FACTS
The following facts are taken from the parties’ proposed findings of

fact, the responses thereto, the declarations in support of the proposed
facts, and related exhibits. (Docket #71, #72, #83, #84, #85, #92, #95, #97,
#104). At all times relevant to this case, Clarke was the Sheriff of
Milwaukee County and the Jail Staff defendants were employed by
Milwaukee County and worked at or for the Jail. Winston was
incarcerated at the Jail from June 6, 2012 to March 26, 2014.
3.1

Winston’s Confinement in the Jail

When Winston was detained at the Jail on June 6, 2012, he received
one set of clean clothing and flip flops per Jail policy, but no tennis shoes.
Jail policy allows for the provision of tennis shoes to inmates who require
them for medical purposes, but that was not the case for Winston. He was
given a change of clothes six days after being admitted to the Jail. Winston
says his attire was inadequate because, as a result of having only one set
of clothes, he was forced to remain in sweaty clothing after playing
basketball and, without tennis shoes, he was forced to run around the
court in bare feet, causing injury. Inmates are not required to play
basketball at the Jail.
In October 2012, on one occasion when Winston was playing
basketball, he fell and injured his hand, and he claims to have been in
severe pain while waiting for treatment. He ultimately received treatment
for his hand, but he believes his hand healed improperly.

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In July 2013, Winston was moved to a “special needs” cell at the
Jail. He claims to have verbally complained to Jail staff about the
unsanitary conditions of his cell, including smeared feces on the walls. He
was moved to a different cell within the special needs unit, but Winston
says he confronted the same unsanitary conditions in that cell. In August
2013, Winston began complaining of irritation to his left eye, for which he
was treated by medical staff at the Jail. Soon afterward, Winston was
transferred to Mendota Mental Health Institute (“Mendota”) for unrelated
reasons, and was treated for the infection in his eye, which staff at
Mendota determined was MRSA.2 Winston was transferred back to the Jail
on September 13, 2013 with a clean bill of health. Winston was put back
into a cell about which he previously complained and voiced his
unhappiness to Jail staff about its uncleanliness. He switched cells in late
September.
In November 2013, Winston began complaining of a boil on his leg.
A culture taken from his thigh showed that it contained MRSA.
Throughout the month of November, Winston received treatment at the
Jail, including a nurse performing an incision and draining the boil and
regular dressing changes. The treatment was resolved in early December
2013 when the wound was reported to have closed.
3.2

The Jail’s Grievance Policy

The Jail maintains a grievance policy that prescribes the steps
inmates must take to submit their complaints about non-emergency issues
related to their health and welfare or the services they are provided.
Methicillin-resistant Staphylococcus aureus, or MRSA, is a bacterial
infection
that
usually
causes
sores
or
boils
on
the
skin.
http://www.webmd.com/skin-problems-and-treatments/understanding-mrsa#1.
2

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(Docket #83-3 Ex. C). An inmate with a non-emergency complaint must fill
out a grievance form and present it to an officer, who attempts to resolve
the grievance himself and records, on the back of the grievance form, the
steps taken toward that end. Id. A lieutenant reviews the officer’s work
and responds to the grievance in writing. Id. The grievance and response
are logged in a grievance database. Id. The inmate, if he is unsatisfied with
the resolution of his grievance, can appeal to the captain and then to the
jail commander for a final decision. Id.
The parties dispute whether Winston filed grievances with the Jail
about his medical issues and the Jail’s clothing and shoe policy before
instituting this lawsuit. Additional facts regarding Winston’s participation
in the grievance process are provided below where relevant to the Court’s
analysis.
4.

ANALYSIS
The defendants move for summary judgment on two grounds.

First, the defendants argue that Winston failed to exhaust his
administrative remedies as to his claims against them, which he is
required to do by law prior to filing suit. (Docket #94 at 6-7). Second, as to
the Jail Staff, the defendants argue that Winston is not entitled to relief on
his deliberate indifference claims because the defendants were not
deliberately indifferent to Winston’s medical needs or, if they were, they
are entitled to qualified immunity. Id. at 7-15. Finally, the defendants
argue that Winston is not entitled to relief on his claim regarding the Jail’s
clothing and shoe policy because it is not an unconstitutional condition of
confinement. Id. at 15-20. The Court will address the question of
exhaustion first, because “[a] suit filed by a prisoner before administrative
remedies have been exhausted must be dismissed; the district court lacks
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discretion to resolve the claim on the merits[.]” Perez v. Wis. Dep’t of Corr.,
182 F.3d 532, 535 (7th Cir. 1999).
4.1

Exhaustion of Administrative Remedies

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).
Failure to exhaust administrative remedies is an affirmative defense to be
proven by the defendants. Westefer v. Snyder, 422 F.3d 570, 577 (7th Cir.
2005).
The defendants contend that during Winston’s incarceration at the
Jail from June 6, 2012 until March 24, 2014, Winston failed to file any
grievances related to the issues about which he now complains in this suit.
Specifically, the defendants state that Winston did not file grievances
about “the jail’s shoe policy, his medical treatment, the conditions of any
of his cells, or the jail’s clothing policy.” (Docket #94 at 2). In support of
their position on exhaustion, the defendants submitted an affidavit by
James Cox (“Cox”), a Milwaukee County deputy inspector in the internal
affairs department. (Docket #92). Cox avers that he reviewed the
Milwaukee County Jail Inmate Grievance database for the relevant time
period and the database does not reflect the filing of any grievances by
Winston that are relevant to the issues he now raises. Id. at 2.

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Winston, on the other hand, argues that he did file relevant
grievances during his incarceration. He says he “filed multiple grievances
with the jail regarding his issues; the jail in return provided no response.”
(Docket #105 at 2). As to his medical issue specifically, Winston says he
filed grievances before and after being treated for his first MRSA infection
(in his eye), and again when he contracted MRSA for a second time (in his
leg). Id. Shortly thereafter, Winston started engaging in self-harming
behavior and was not allowed to use sharp writing instruments; therefore,
he says, he could not follow up on his grievances. Id. at 2-3.3 Winston did
not produce copies or other evidence of his alleged grievances.4
Winston’s summary judgment briefing references a declaration that
he filed along with his initial complaint stating that he tried with due
diligence to obtain through open records requests copies of grievances he
filed that concerned the issues raised in this suit, though he did not
provide copies of those requests. (Docket #4 at 1). Winston also says that,
After the parties’ summary judgment motions were fully briefed,
Winston filed two motions related to newly discovered evidence—a motion to
supplement his summary judgment submissions with new evidence and a
motion to stay disposition of the pending summary judgment motions because of
the newly discovered evidence. (Docket #126 and #128). The Court will grant
Winston’s motion to supplement his submissions, (Docket #128), and deny as
moot his motion to stay, (Docket #126). The “new evidence” is the defendants’
admission that inmates are not allowed to possess writing utensils while housed
in the special needs unit. (Docket #130-1). As explained below, this does not
change the Court’s conclusion as to Winston’s failure to exhaust his remedies.
3

Winston claims that the grievance forms used at the Milwaukee County
Jail in 2013 when he was incarcerated did not have a carbon copy sheet that the
inmate could keep for his records. (Docket #97 at 2). Winston has not supported
this fact with evidence, and the defendants do not address it. Regardless of
whether a carbon copy was available to Winton as a record of his alleged
grievances, the fact remains that he has produced no record that he submitted
any grievances.
4

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once he was moved to state prison, he sent letters to the Milwaukee
County Jail on May 10, 2014 and October 5, 2014, and to Clarke himself on
June 30, 2015, requesting copies of his grievances. Id. Winston attached
copies of those letters to his complaint. (Docket #1 Exs. 1-3). The last letter
was apparently given to an officer for mailing at the state prison where
Winston is incarcerated, and Winston provided a written statement from
an officer confirming that an envelope was sent from the prison to the
Milwaukee County Jail’s address on July 4, 2015. Id. at Ex. 4.
The competing declarations from Winston and Cox create a dispute
of material fact as to whether Winston filed grievances with the Jail (and
properly and thoroughly appealed those grievances) as to the issues he
raises with this suit. In other words, there exists a dispute of fact as to
whether Winston exhausted his remedies before filing this suit. Normally,
a dispute of material fact would preclude the grant of summary judgment
and require that the dispute be submitted to a jury. However, the Seventh
Circuit instructs that a prisoner is not entitled to a jury trial on contested
issues regarding his failure to exhaust administrative remedies; instead,
the district court is tasked with resolving any such questions itself.
Wagoner v. Lemmon, 778 F.3d 586, 590 (7th Cir. 2015).
4.2

Resolution of Factual Dispute Under Pavey

The controlling precedent in this area is Pavey v. Conley, 544 F.3d
739 (7th Cir. 2008), from which the term “Pavey hearing” takes its name.
The Pavey Court outlined the sequence to be followed in a case in which
exhaustion is contested:
(1) The district judge conducts a hearing on exhaustion and
permits whatever discovery relating to exhaustion he deems
appropriate. (2) If the judge determines that the prisoner did
not exhaust his administrative remedies, the judge will then
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determine whether (a) the plaintiff has failed to exhaust his
administrative remedies, and so he must go back and
exhaust; (b) or, although he has no unexhausted
administrative remedies, the failure to exhaust was innocent
(as where prison officials prevent a prisoner from exhausting
his remedies), and so he must be given another chance to
exhaust (provided that there exist remedies that he will be
permitted by the prison authorities to exhaust, so that he's
not just being given a runaround); or (c) the failure to
exhaust was the prisoner’s fault, in which event the case is
over. (3) If and when the judge determines that the prisoner
has properly exhausted his administrative remedies, the case
will proceed to pretrial discovery, and if necessary a trial, on
the merits; and if there is a jury trial, the jury will make all
necessary findings of fact without being bound by (or even
informed of) any of the findings made by the district judge
in determining that the prisoner had exhausted his
administrative remedies.
Pavey, 544 F.3d at 742. Winston has asked this Court to conduct a Pavey
hearing to resolve the issue of exhaustion of remedies. (Docket #120). The
defendants oppose such a hearing. (Docket #122).
In this case, a hearing is not necessary for this Court to arrive at its
conclusion that Winston did not sufficiently exhaust his remedies before
filing suit. The Court has considered the myriad evidence Winston
submitted in an attempt to bolster his story that he did, in fact, file
relevant grievances, but that he did not or could not keep copies and the
defendants refuse to provide him copies in response to his many letters
and requests for the same. The problem with Winston’s efforts to prove
that he properly exhausted his remedies, apart from the procedural
defects,5 is simple: he provides no credible evidence that he actually filed
Winston did not properly dispute the defendants’ proposed findings of
fact related to exhaustion. The federal local rules of procedure require that a
5

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grievances when he said he did. He has given the Court no copies of his
grievances related to the claims he now presents, and he does not
convincingly rebut the evidence proffered by the defendants that a search
of the Milwaukee County Jail grievance database turned up nothing from
Winston related to the issues germane to this suit.
Having failed to file grievances while incarcerated at the Jail,
Winston could have written to the Jail to request a grievance form at any
time before filing this suit. As Winston himself points out, see (Docket #98
at 3-4), the Jail’s grievance policy does not have a time limit on the filing of
grievances.6 Indeed, Winston knew how to correspond with the Jail; he
says that he wrote to the Jail twice and to Clarke once to ask for copies of
the grievances he claimed to have filed. Although Winston’s after-the-fact
letters do provide some details of his medical and prison-conditions
complaints, the letters themselves do not suffice as grievances as
prescribed by the Jail policy, as they were not written on the appropriate
form and submitted to an appropriate officer. However taxing Winston

party opposing a moving party’s statement of facts provide “specific references
to the affidavits, declarations, parts of the record, and other supporting materials
relied upon” to substantiate his dispute of fact. Fed. R. Civ. P. 56; Civ. L. R.
56(b)(2)(B)(i). Winston’s response does not contain citations or references to
affidavits, declarations, parts of the record, or other supporting materials on
which he relies as a basis for his disagreements. (Docket #104). For this reason
alone, the Court could disregard Winston’s factual disputes in their entirety. See
Fed. R. Civ. P. 56(e); see also Greer v. Board of Educ. of Chicago, 267 F.3d 723, 727
(7th Cir. 2001) (pro se status does not excuse non-compliance with Rule 56).
Winston cannot claim that there was an emergent need to file this suit, as
the statute of limitations on prisoners’ civil rights claims filed in Wisconsin is six
years. See Miles v. Trempealeau County, 204 F. App’x 570, 572 (7th Cir. 2006) (citing
Wis. Stat. § 893.53). He could have requested a grievance form, completed it, and
directed it to an officer or lieutenant long before the statute of limitations would
have expired.
6

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might believe the grievance process to be, its completion in the manner
outlined by the Jail’s policy is necessary to put the Jail on notice of
Winton’s claims so it can attempt a resolution before the claims arrive in
this Court. See Woodford v. Ngo, 548 U.S. 81, 93 (2006) (“The PLRA attempts
to

eliminate

unwarranted

federal-court

interference

with

the

administration of prisons, and thus seeks to afford corrections officials
time and opportunity to address complaints internally before allowing the
initiation of a federal case.”) (citations and internal formatting omitted).
Furthermore, there is no evidence that Winston followed through
with the appeals process for his alleged grievances as is required by the
Jail’s policy. He is not excused from the requirement to appeal simply
because he was not allowed writing utensils during the periods he was on
observation for self-harm. And again, his after-the-fact letters do not
suffice as appeals because the predicate to an appeal is a grievance and an
unfavorable response, and Winston has not shown that those predicates
exist.
This case is not one where exhaustion can be excused because jail
officials impeded an inmate’s ability to effectively participate in the
grievance process. For example, in Dale v. Lappin, the Seventh Circuit
reversed a district court’s grant of summary judgment on exhaustion
because the plaintiff inmate averred that he requested grievance forms
several times to no avail during his stay at the prison where his claims
arose. 376 F.3d 652, 655–56 (7th Cir. 2004). In support of his argument that
his efforts to properly grieve were frustrated by prison staff, the inmate
“identifie[d] the prison employees from whom he requested
forms: his counselor, his case manager, the on-duty floor
officer, and members of his unit team. [He] also identifie[d]
the specific form he requested, the BP–8, which is the first
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form the Bureau of Prisons requires inmates to complete in
order to submit a grievance. [He] also aver[red] that the onduty officer gave him blank sheets of paper when he
requested a grievance form, that he was told by his
counselor and case manager that they did not have the
proper grievance form, that he requested a form from his
counselor and was told that forms had to be issued by the
unit team, and that he notified the members of his unit team
several times that he had been denied grievance forms, but
got no response.
Id. (internal citations omitted).
The Court of Appeals found that “level of detail” from the plaintiff
inmate was sufficient to rebut the defendants’ exhaustion defense. Id. at
656. In this case, Winston has provided great detail about his attempts to
obtain copies of the grievances he allegedly filed while at the Jail, but he
does not provide detailed or convincing evidence that he actually filed
those grievances in the first place. For example, in response to the
defendants’ proposed findings of fact relating to Winston’s failure to file
grievances, Winston simply responded: “Disputed. Plaintiff filed
grievances and follow up inquiries regarding the complaints.” (Docket
#104 at 2, 3, 4, and 5). Winston’s statement was not accompanied by any
citation to evidence.
Ultimately, the Court finds not credible Winston’s evidence and
declaration testimony that he properly and thoroughly exhausted his
remedies before filing suit. A hearing on this issue is thus unnecessary.
Winston has already submitted, and the Court has considered, all the
evidence Winston hoped would persuade the Court. Short of inventing
new evidence, Winston could do no more at a hearing than he has already
done in his briefing, and the Court will not invite him to conjure evidence

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at this late hour. See Gekas v. Vasiliades, 814 F.3d 890, 896 (7th Cir. 2016)
(“[S]ummary judgment is the ‘put up or shut up’ moment in a lawsuit,
when a party must show what evidence it has that would convince a trier
of fact to accept its version of events.”) (citation omitted). A hearing
would do nothing but waste the parties’, the Court’s, and the taxpayers’
resources. Winston’s motion for a hearing on the issue of exhaustion,
(Docket #120), will be denied.
Summary judgment will be granted in favor of the defendants on
the ground that Winston has not exhausted available remedies within the
Jail. Pavey, 544 F.3d at 742 (when the Court finds the prisoner failed to
exhaust, and “the failure to exhaust was the prisoner’s fault, . . . the case is
over”). Winston’s motion for summary judgment will be denied.
5.

CONCLUSION
The defendants have proven that Winston did not exhaust his

administrative remedies as to the claims he raises in this lawsuit, and
Winston’s claims will therefore be dismissed without prejudice. See Ford v.
Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (dismissal for failure to exhaust
under § 1997e(a) is without prejudice).7
Winston filed numerous additional motions during the pendency of the
parties’ summary judgment motions. On January 26, 2017, he filed a motion for
extension of time to file a reply brief. (Docket #89). He filed his reply on February
1, 2017, and the Court has considered it. (Docket #98). That motion will be denied
as moot. On February 13, 2017, he filed a motion for reconsideration of the
Court’s order denying compulsion of discovery. (Docket #100). The discovery
Winston seeks with that motion relates to the merits of his claims, which the
Court does not reach in this case because it finds that Winston has not exhausted
his remedies. That motion will be denied as moot. On February 13, 2017, Winston
moved for the imposition of sanctions against the defendants and their counsel.
(Docket #102). On March 17, 2017, Winston filed a motion to strike the
defendants’ opposition to his motion for sanctions. (Docket #112). The sanctions
motions also relate to merits discovery and will thus be denied. On April 11,
7

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Accordingly,
IT IS ORDERED that defendants’ motion for summary judgment
(Docket #91) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that plaintiff’s motion for summary
judgment (Docket #69) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that plaintiff’s motion for extension of
time to file his reply brief (Docket #89) be and the same is hereby DENIED
as moot;
IT IS FURTHER ORDERED that plaintiff’s motion to dismiss
certain defendants (Docket #132) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that defendants Jeffrey Andrykowski,
Lieutenant Reeves, Lieutenant Reckless, Officer Spittlemeister, Mai Xiong,
Terry Goudy, and Brandon Lawler be and the same are hereby
DISMISSED from this action;
IT IS FURTHER ORDERED that plaintiff’s motion for a Pavey
hearing (Docket #120) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that plaintiff’s motion to supplement
his summary judgment submissions (Docket #128) be and the same is
hereby GRANTED;
IT IS FURTHER ORDERED that plaintiff’s motion to stay (Docket
#126) be and the same is hereby DENIED as moot;

2017, Winston filed a motion for the appointment of counsel. (Docket #118). He
asked for the appointment of counsel twice previously in this case, see (Docket
#45, #48), and the Court denied both requests because the defendant has proven
capable of litigating this case on his own. Nothing has changed since Winston’s
first two motions for the appointment of counsel, and the Court will therefore
deny his third.

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IT

IS

FURTHER

ORDERED

that

plaintiff’s

motion

for

appointment of counsel (Docket #118) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that plaintiff’s motion for sanctions
(Docket #102) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that plaintiff’s motion to strike
defendants’ brief in response to his motion for sanctions (Docket #112) be
and the same is hereby DENIED;
IT

IS

FURTHER

ORDERED

that

plaintiff’s

motion

for

reconsideration of his motion to compel (Docket #100) be and the same is
hereby DENIED as moot; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED without prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 25th day of September, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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