Keith v. Ruples et al

Filing 54

ORDER signed by Judge J.P. Stadtmueller on 1/19/2017. 38 Defendants' Motion for Summary Judgment GRANTED IN PART AND DENIED IN PART. Plaintiff's claim that Defendants failed to protect her in violation of the Eighth Amendment DISMISSED without prejudice. 31 Plaintiff's Motion to Appoint Counsel and Motion for Summary Judgment DENIED. 32 Plaintiff's Motion for Leave to File Supplemental Request on Summary Judgment DENIED. 36 Plaintiff's Motion for Summary J udgment DENIED. 47 Plaintiff's Motion to Appoint Counsel DENIED. 50 Plaintiff's Motion to Amend Response to Summary Judgment DENIED. Parties may submit new dispositive motions addressing plaintiff's remaining claims by no later than 2/21/2017. See Order. (cc: all counsel, via mail to Crystal Priscilla Keith at Taycheedah Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CRYSTAL PRISCILLA KEITH,
Plaintiff,

Case No. 16-CV-311-JPS

v.
DAVID RUPLES, HEATHER JUSTMANN,
DEANNE SCHAUB, DAVID TARR, and
CHRISTOPHER COOPER,

ORDER

Defendants.

1.

INTRODUCTION
Plaintiff Crystal Keith (“Keith”), a prisoner, brings this action pursuant

to 42 U.S.C. § 1983 against Defendants, prison officials at Taycheedah
Correctional Institution (“TCI”), alleging that they failed to protect her from
assault by a fellow inmate and were deliberately indifferent to her suicidal
tendencies. Keith has filed what appear to be two separate motions for
summary judgment—the first on September 19, 2016 and the second on
September 28, 2016. (Docket #31 and #36). Defendants responded with their
own motion for summary judgment on October 24, 2016, arguing that Keith’s
claims must be dismissed for her failure to exhaust her administrative
remedies prior to filing this lawsuit. (Docket #38). All the pending motions
are fully briefed and, for the reasons stated below, the Court will grant in part
and deny in part Defendants’ motion and deny Keith’s motions.
2.

STANDARD OF REVIEW
2.1

Summary Judgment

Federal Rule of Civil Procedure 56 provides 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 fact is “material” if it “might affect the outcome of the suit” under the
applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute of fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. The court
construes all facts and reasonable inferences in the light most favorable to the
non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir.
2016). The court must not weigh the evidence presented or determine
credibility of witnesses; the Seventh Circuit instructs that “we leave those
tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir.
2010). The party opposing summary judgment “need not match the movant
witness for witness, nor persuade the court that [his] case is convincing, [he]
need only come forward with appropriate evidence demonstrating that there
is a pending dispute of material fact.” Waldridge v. American Hoechst Corp., 24
F.3d 918, 921 (7th Cir. 1994).
2.2

Exhaustion of Prisoner 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 she 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,
284–85 (7th Cir. 2005). Failure to exhaust administrative remedies is an
affirmative defense to be proven by Defendants. Westefer v. Snyder, 422 F.3d
570, 577 (7th Cir. 2005).
Page 2 of 24

The Wisconsin Department of Corrections maintains an Inmate
Complaint Review System (“ICRS”) to provide a forum for administrative
complaints. Wis. Admin. Code DOC § 310.04. There are two steps an inmate
must take to exhaust their administrative remedies under the ICRS. First, the
inmate must file a complaint with the Institution Complaint Examiner
(“ICE”). Id. at §§ 310.07(1) and 310.09(6). The ICE then investigates the
complaint and issues a recommendation for disposing of the complaint,
either dismissal or affirmance, to the reviewing authority. Id. at §§ 310.07(2)
and 310.11.1 The reviewing authority may accept or reject the ICE’s
recommendation. Id. at § 310.07(3). Second, if the ICE recommends dismissal
and the reviewing authority accepts it, the inmate may appeal the decision
to the Corrections Complaint Examiner (“CCE”). Id. at §§ 310.07(6) and
310.13. The CCE issues a recommendation to the Secretary of the Department
of Corrections who may accept or reject it. Id. at §§ 310.07(7), 310.13, and
310.14. Upon receiving the Secretary’s decision, or after forty-five days from
the date the Secretary received the recommendation, the inmate’s
administrative remedies are exhausted. Id. at §§ 310.07(7) and 310.14.
3.

RELEVANT FACTS
3.1

Keith’s Failure to Dispute the Material Facts

Most of the relevant facts are undisputed, largely because Keith failed
to dispute them. To show why, the Court will briefly recount the procedural
history and substantive failings of Keith’s submissions.
In the Court’s scheduling order, entered June 20, 2016, Keith was
warned about the requirements for supporting and opposing a motion for

1

The ICRS defines a “reviewing authority” as “the warden, bureau director,
administrator or designee who is authorized to review and decide an inmate
complaint.” Wis. Admin. Code. § 310.03(2).

Page 3 of 24

summary judgment. (Docket #14 at 1–2). Accompanying that order were
copies of Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both of
which describe in detail the form and contents of a proper summary
judgment submission. Nevertheless, on September 19, 2016, Keith submitted
a one-page document that purported to be a joint motion for summary
judgment and motion for appointment of counsel. (Docket #31). The motion
was not accompanied by a statement of material facts as required by the
Federal Rules of Civil Procedure and this Court’s Local Rules. See Fed. R. Civ.
P. 56(c); Civ. L. R. 56(b)(1). A few days later, on September 26, 2016, she filed
a motion to “supplement” her summary judgment motion. (Docket #32).
Appended to this “supplement,” which reads like a stream-of-consciousness
factual summary of Keith’s case, were 115 pages of “exhibits.” (Docket #33).
Keith again failed to file a statement of material facts which condensed these
exhibits and her thoughts into the format required by the applicable
procedural rules.
Keith filed a second motion on September 28, 2016, without affording
Defendants an opportunity to respond to the first one. (Docket #36). This
second motion is two pages in length. Id. It contains a two-paragraph
“statement of facts,” but the motion is not accompanied by a statement of
facts that comports with the Federal or Local Rules, nor was there any
evidentiary material appended to the motion. Instead, Keith refers back to
the set of materials she submitted to the Court on September 26. See id. at
1–2.2
2

Defendants filed a separate response to Keith’s two motions for summary
judgment on October 28, 2016. (Docket #44). Noting that her motions did not
comport with the Federal or Local Rules, Defendants simply incorporated their
evidence and argument from their own motion for summary judgment, which they
had filed a few days prior. See id. at 1–2.

Page 4 of 24

On October 24, 2016, Defendants filed their own motion for summary
judgment. (Docket #38). In the motion, Defendants warned Keith about the
requirements for her response as set forth in Federal and Local Rule 56. Id. at
1–2. She was provided with copies of those Rules along with Defendants’
motion. See id. at 3–11. In connection with their motion, Defendants filed a
supporting statement of material facts that complied with the applicable
procedural rules. (Docket #39). It contained short, numbered paragraphs
concisely stating those facts which Defendants proposed to be beyond
dispute, with supporting citations to the attached evidentiary materials. See
id.
In response, Keith submitted a single document with attached exhibits.
(Docket #45). In this document, Keith appears to discuss each of her attached
exhibits in turn and presents her own thoughts on why Defendants violated
her constitutional rights. See id. She never filed a response to Defendants’
statement of material facts. Indeed, she never grapples with Defendants’
factual assertions directly. Instead, she presents her own version of the facts
and, presumably, hopes that the Court takes her word over Defendants’. She
took the same approach to her reply in support of her second motion for
summary judgment (a brief which was filed two weeks late). (Docket #48).
Despite being twice warned of the strictures of summary judgment
procedure, Keith chose to ignore those rules by filing motions for summary
judgment that do not contain all the required elements of such a motion, and
by failing to properly dispute Defendants’ proffered facts with citations to
relevant, admissible evidence. These infirmities cannot be overlooked.
Though the Court is required to liberally construe a pro se plaintiff’s filings,
it cannot act as her lawyer; the Court cannot and will not delve through all

Page 5 of 24

of Keith’s submissions in this case to find the evidence that might be
leveraged to dispute Defendants’ proposed facts. Indeed:
[a] district court is not required to “wade through improper
denials and legal argument in search of a genuinely disputed
fact.” Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d
524, 529 (7th Cir. 2000). And a mere disagreement with the
movant’s asserted facts is inadequate if made without reference
to specific supporting material. Edward E. Gillen Co. v. City of
Lake Forest, 3 F.3d 192, 196 (7th Cir. 1993). In short, “[j]udges
are not like pigs, hunting for truffles buried in briefs.” United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). Smith’s
summary-judgment materials were woefully deficient in either
responding adequately to the defendants’ statement or in
setting forth additional facts with appropriate citations to the
record. As such, Smith’s purportedly good intentions aside, the
district court did not abuse its discretion in deeming admitted
and only considering the defendants’ statement of material
facts.
Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). This Court would offer a
similar analogy: it is not an archaeologist, made to sift through Keith’s filings
hoping to piece together clues to the evidence behind her legal positions. The
Court is cognizant of the fact that Keith lacks legal training, as she complains

Page 6 of 24

in her motions for appointment of counsel. See (Docket #31 and #47).3 Yet,
under Smith, no matter Keith’s intentions, her utter failure to comply with the
rules of procedure means that the Court has no choice but to disregard her
the bulk of her summary judgment filings. See Hill v. Thalacker, 210 F. App'x
513, 515 (7th Cir. 2006). Unless stated otherwise, the Court will deem
Defendants’ facts undisputed for purposes of deciding their motion for
summary judgment. See Fed. R. Civ. P. 56(e). However, the Court has

3

Keith’s requests for appointment of counsel must be denied. As a civil
litigant, she has no automatic right to court-appointed counsel. Luttrell v. Nickel,
129 F.3d 933, 936 (7th Cir. 1997). However, under 28 U.S.C. § 1915(e)(1), the “court
may request an attorney to represent any person unable to afford counsel.” The
court should seek counsel to represent the plaintiff if she: (1) has made reasonable
attempts to secure counsel; and (2) “‘the difficulty of the case—factually
and legally—exceeds the particular plaintiff’s capacity as a layperson to coherently
present it.’” Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (quoting Pruitt v.
Mote, 503 F.3d 647, 655 (7th Cir. banc 2007)). Here, Keith’s sole argument that she
should be appointed counsel is that she is untrained in the law and wants help
with her case. See (Docket #31 and #47). She made no meaningful attempt to show
that she has attempted to secure counsel, nor did she explain how this case is
beyond her ability to present. As a result, the Court must deny her requests.

Page 7 of 24

generously reviewed all of Keith’s filings and will discuss her notable
submissions as it sets forth the relevant facts below.4
3.2

Facts Pertinent to the Disposition of Defendants’ Motion
3.2.1 The Parties

The facts necessary to the disposition of Defendants’ motion are as
follows. Keith is an inmate at TCI. (Docket #39 ¶ 1). TCI is the only female
facility within the Wisconsin Women’s Correctional System and it houses
both medium- and maximum-security inmates. Id. ¶ 11. Defendant Deanne
Schaub (“Schaub”) is the warden of TCI. Id. ¶ 2. Schaub is the reviewing
authority for inmate complaints at TCI. Id. ¶ 4. Defendant David Ruples
(“Ruples”) is a sergeant at TCI. Id. ¶ 6. Defendants Heather Justmann
(“Justmann”) and Christopher Cooper (“Cooper”) are captains at the
institution. Id. ¶ 7. At all times relevant to Keith’s complaint, Defendant
David Tarr (“Tarr”) was the Security Director at TCI. Id. ¶ 8.

4

Although the Court has reviewed all of Keith’s filings, it has disregarded
those filings that came after her reply. See (Docket #49, #50, and #51). Those
submissions, filed in late December 2016, come well after the close of briefing for
Keith’s and Defendants’ motions. They are comprised largely of stream-ofconsciousness accounts of the events underlying Keith’s lawsuit and copies of
various notes, conduct reports, inmate complaints, and psychological services
requests. Most, if not all, of these documents appear to post-date the filing of her
complaint in this case. Keith provides no explanation of the relevance of these
newly submitted documents. To the extent Keith believes she can assert new claims
in this case at this late stage based on events that occurred after the filing of the
complaint, she is mistaken. Moreover, the time for Keith to amend her motion for
summary judgment, see (Docket #50), has long since passed, and Keith provides no
justification for such an amendment. And in any event, her amended brief argues
the merits of her deliberate indifference claims, which are not at issue here since
Defendants seek summary judgment only on the issue of exhaustion of
administrative remedies. Accordingly, the request to amend her motion will be
denied and the Court will not rely upon any of Keith’s late filings in reaching the
disposition herein.

Page 8 of 24

3.2.2 Keith’s Interactions with Castillo
Keith and another inmate, Ashli Castillo (“Castillo”), were both
designated as maximum-security inmates at TCI. Id. ¶ 21. They were housed
in the McCauley unit, the only general population and maximum-security
housing unit in the prison. Id. ¶¶ 16–21. On October 29, 2013, they became
cellmates. Id. ¶ 22. At that time, neither had a special placement need
(“SPN”) restricting them from being placed in a general population setting
or from being housed near each other. Id. ¶ 23. SPNs are assigned by prison
officials when there is a need to separate particular inmates from other
inmates or staff. Id. ¶ 14. Schaub explains that “[a] formal SPN involving
inmates notifies everyone that the inmates named should be kept separate
from each other. It is also referred to as a no contact order.” Id. ¶ 15. An SPN
designation means that the two inmates in question should be housed at
completely different facilities. See id. ¶ 51.
On January 28, 2014, a correctional officer noticed that Keith was
covering up her eye as if to hide it. Id. ¶ 24. On questioning, Keith admitted
that Castillo had hit her with the cord of a fan and left an open cut above
Keith’s eye. Id. Keith explained other ongoing harassment and physical abuse
she suffered at Castillo’s hands, including being stabbed with a pen. Id. ¶ 25.
Keith was advised to write a statement about what she had told prison staff
and was then moved to another McCauley cell and offered medical attention.
Id. ¶ 26. Castillo was escorted to the segregation unit, which at TCI is called
the Restrictive Housing Unit (“RHU”), and housed there pending an
investigation of Keith’s complaints. Id. ¶ 27.
While Keith’s complaints were being investigated, prison officials did
not enter an SPN directing that she and Castillo remain separated. Id. ¶ 28.
In the view of prison officials, a no-contact order was unnecessary because
Page 9 of 24

the inmates were being housed in separate units of the prison. Id. On March
3, 2014, Castillo was found guilty of battery and damage to property as
alleged in a prison conduct report. Id. ¶ 30. She was sanctioned with 300 days
of disciplinary segregation in the RHU. Id.
Castillo was removed from disciplinary segregation and returned to
McCauley on July 19, 2014. Id. ¶ 32. Castillo had to be placed back in
McCauley since it was the only general population housing unit available for
a maximum-security inmate like her. Id. ¶ 33.5 Nevertheless, in light of their
history, prison officials placed Keith and Castillo in different wings of the
McCauley unit so as to avoid contact between them. Id. ¶ 35. They also took
steps to ensure that Keith and Castillo did not share dayspace, recreation
space, or library space at the same time. Id. ¶ 37.
On January 21, 2015, Keith submitted an inmate complaint requesting
a separation from Castillo, alleging that Castillo continued to verbally harass
her when they crossed paths and that Keith felt threatened. Id. ¶ 48. Prison
officials investigated but concluded that an SPN designation was not required
since there was nowhere else to send either Keith or Castillo—again, TCI is
the only maximum-security female prison in the state, and McCauley is the
only general population unit for maximum-security TCI inmates. Id. ¶ 49.
However, a “special handling order” was implemented to keep Keith and
Castillo separated. Id. ¶ 50. While an SPN requires that two inmates be
separated into two different facilities, a special handling order merely
requires that the two inmates be physically separated within one facility. Id.
¶ 51. As a result of the order, Keith and Castillo were kept in separate wings

5

Despite their control over inmate housing assignments, prison security
officials and even Schaub herself lack the authority to alter an inmate’s security
classification. (Docket #39 ¶ 39).

Page 10 of 24

of the McCauley unit. Id. ¶ 52. Prison staff also continued their efforts to
ensure that Keith and Castillo did not share dayspace, recreation space, or
library space concurrently. Id. ¶ 54. On March 12, 2015, Tarr recommended
that Keith and Castillo be separated to different sides of the McCauley unit
in order to further reduce the risk of contact between them. Id. ¶ 55.
Castillo was released from incarceration at TCI on November 15, 2015
and has not returned. Id. ¶ 56.
3.3.3 Keith’s Mental Health Treatment
During the relevant period (and continuing to this day), Keith received
mental health treatment for the emotional trauma she suffered as a result of
Castillo’s abuse. See (Docket #32 at 1–2); (Docket #33 at 41). The Court need
not wade through all of Keith’s psychological treatment records for purposes
of this order. It is enough to note that on April 23, 2015, Keith attempted
suicide by overdosing on medication. (Docket #32 at 2); (Docket #33 at
67–72). After treatment at a hospital, it appears she was placed in segregation
for observation. (Docket #32 at 2). When she was released from the RHU on
April 27, 2015, Ruples tried to escort Keith to a cell in the McCauley unit.
(Docket #33 at 73–81, 88–89, 91–92). Keith told Ruples that if she was placed
in that cell, she would kill herself. Id. Keith refused to comply with Ruples’
orders, Ruples informed Justmann of Keith’s non-compliance, and Justmann
took Keith to segregation and mental health observation. Id. When she was
taken back to the RHU, she again threatened or attempted to commit suicide,
this time by banging her head repeatedly against the cell bars. Id.
3.3.4 Keith’s Claims in this Case
At the screening stage, the Court permitted Keith to proceed on the
following claims:

Page 11 of 24

(1)

that Defendants failed to protect Keith from assault by Castillo
by failing to issue a no-contact order, in violation of the Eighth
Amendment;

(2)

that Defendants were deliberately indifferent to Keith’s risk of
suicide when they placed her back on McCauley unit after she
informed Defendants that she would kill herself if placed there,
in violation of the Eighth Amendment; and

(3)

Defendants were deliberately indifferent to Keith’s risk of
suicide when they took her back to segregation where she
again allegedly tried to commit suicide, in violation of the
Eighth Amendment.

Id. ¶ 10; see also (Docket #8 at 5–6).
3.3.5 Keith’s Inmate Complaints
Wendy Buehrens (“Buehrens”) is the ICE at TCI. Id. ¶ 82. It was her
duty to review inmate complaints, investigate them, and either reject them
herself or make a recommendation as to the disposition of the complaint to
the reviewing authority, Schaub. Id. ¶¶ 83–89. Buehrens investigated Keith’s
January 21, 2015 complaint, which was designated TCI-2015-1394. Id. ¶ 93. In
that complaint, Keith stated:
I asked Ms. Zink for a no contact order. She said there’s
nothing she can do. I’m messed up. I’m scared. I’m hurting.
Nobody’s helping me. Castillo might attack me. I told them
this. I want a no contact order on her and me. I went through
the chain of commands to receive help. I feel as if staff from
low to high take my situation as a joke. Jamie Sommers and
other was sexually assaulted here. From that they suffered
trauma. They can’t be in A/B cause of that. I was beaten, spit
on, and verbally abused in cell 108 and cell 116 by Ashli
Castillo. There’s a open case against her now for those actions.
She is harassing me now. I went to staff. They refuse to do
anything. I’m scared to death I’m having flash backs. She’s
yelling my name as I walk pass other inmates witness this.
Twice in one day 01-12-15 she yelled my name at lunch and
Page 12 of 24

dinner. I have to pass her cell to leave my cell. She yelled other
stuff to. I am traumatize. These cells are the absolute same as
108 and 116 where I was beaten. I am not being help. I want a
NO contact put against us. She won’t stop. I am scared to leave
my cell. I am consulting a attorney about T.C.I. lack of help and
concern for my safety. . . .
Id. ¶ 92. Buehrens investigated Keith’s allegations and found that she had
been provided a form for requesting separation from Castillo. Id. ¶ 98.
Buehrens also found that a prison social worker, Ms. Zink, was completing
an incident report that would form the basis of a request for an SPN between
Keith and Castillo. Id. Buehrens noted that the security director or his
designee would ultimately review the SPN request and either approve or
deny it. Id. ¶ 99.
Based on these findings, on January 21, 2015, Buehrens recommended
that Keith’s complaint be dismissed to allow for the process of Keith
requesting separation from Castillo to be initiated and processed. Id. ¶ 100.
Acting as the reviewing authority in this instance, deputy warden Scott
Eckstein (“Eckstein”) accepted Buehrens’ recommendation and dismissed
Keith’s inmate complaint on January 22, 2015. Id. ¶ 101. Keith was provided
a copy of the dismissal and was informed that any appeal had to be taken
within ten calendar days of the date of the decision by filing a written request
for review with the CCE using the appropriate form. Id. ¶ 102. Keith did not
appeal the dismissal of TCI-2015-1394. Id. ¶ 103.
Keith submitted another complaint, designated TCI-2015-21332, on
November 13, 2015. Id. ¶ 104. This complaint related the events of April 27,
2015, in which Keith refused Ruples’ order to occupy a cell in McCauley and
was thereafter sent to the RHU. Id. Keith claimed that Ruples’ actions
violated prison policy. Id. Buehrens reviewed this complaint and rejected it
Page 13 of 24

on December 16, 2015, finding that it was not submitted within fourteen
calendar days of the incident in question, in violation of the Wisconsin
Administrative Code, and that no good cause was proffered to support
extending that deadline. Id. ¶ 107. Keith was provided a copy of the rejection.
Id. ¶ 108. She was informed that she could appeal the rejection within ten
calendar days by submitting the appropriate form and that, on review, the
reviewing authority would only review the basis for the rejection—here,
untimeliness—and not the merits of the complaint. Id. ¶ 109. Keith did not
appeal the rejection of TCI-2015-21332. Id. ¶ 110.
Keith filed an additional complaint on November 13, 2015, which was
designated TCI-2015-21333. Id. ¶ 111. She alleged that on January 28, 2014,
TCI officials had failed to protect her and failed to ensure she was provided
appropriate mental health treatment. Id. ¶ 112. Keith alleged that she was still
being housed with Castillo in the McCauley unit and that she continued to
relive the horrible things Castillo did to her. Id. ¶ 113. Keith stated that she
had asked to be designated a medium-security inmate so that she could be
transferred out of McCauley but that those requests had been denied. Id. She
further claimed that prison staff did not take Keith’s fears of Castillo
seriously, thereby opening additional opportunities for Castillo to assault her.
See id. ¶ 114.
Buehrens reviewed this complaint. Id. ¶ 115. She rejected it on
December 16, 2015, for the reason that it was filed well outside the 14-day
deadline and because no good cause was shown for the delay. Id. Keith was
provided a copy of this rejection and was again informed about the appeal

Page 14 of 24

process and 10-day appeal deadline. Id. ¶¶ 116–17. Once more she failed to
appeal. Id. ¶ 118.6
Buehrens has diligently searched TCI’s records of inmate complaints.
Id. ¶ 119. Buehrens avers that her search has revealed that Keith filed no
appeals of inmate complaints that address allegations of (1) failure to protect
Keith by issuing a no-contact order or (2) placing Keith back in the same unit
as Castillo despite her warning that she would commit suicide if that
occurred. Id. ¶ 119–20. Neither do TCI records reflect that Keith filed any
inmate complaints containing allegations that Justmann took Keith to
segregation where she again attempted suicide. Id. ¶ 121. Finally, Buehrens’
search uncovered no inmate complaints beyond those discussed herein that
relate to the allegations in this action. Id. ¶ 122; see also (Docket #40-1) (Keith’s
inmate complaint history).
In her briefing and evidentiary submissions, Keith points to two other
inmate complaints from this period, not mentioned by Defendants, which she
contends served to exhaust her administrative remedies. First, she filed a
complaint on May 26, 2015, designated TCI-2015-9680, which she believes
incorporates all the allegations raised in the instant complaint. See (Docket
#45 at 1–2). That complaint states as follows:
I am writing this complaint on the behalf of the Warden
denying and affirming the Hearing Officer’s decision on the
appeal I sent her on the appeal of my disposition. I have

6

Upon close inspection of this inmate complaint, it appears that Keith may
have been complaining that even as of the date of the complaint, she continued to
be denied the protection and mental health treatment she needed. See (Docket #40-4
at 6–8). Thus, Buehrens may have been in error to conclude that the operative date
for determining the timeliness of the complaint was January 28, 2014, despite
Keith’s notation of the same on the first page of the complaint. Nevertheless, since
Keith failed to appeal Buehrens’ rejection, the Court cannot second-guess it.

Page 15 of 24

intellectual functioning when Ms. Venne gave me my ticket I
didn’t understand nothing but that guilty goes faster and check
the waiver boxes to go faster. I didn’t understand my rights
and the process of tickets. In T.C.I. handbooks it’s stated and
printed it an inmate needs to see clinical staff immediately
(emergency-type situation) bring the issue/concern to the
attention of unit staff (in my case Sgt. Ruples). If I go in that
cell I will commit suicide is said to my unit staff, it’s a
emergency cause I was about to cut myself with my scissors
until I couldn’t cut no more (a plan in place) that’s a
emergency. Sgt. Ruples said I refused to lock in after those
comments do suppose to lock in? No. I was to be supervise but
was placed in the [unintelligible] room alone. Clinician/PSU
was to be called, instead he called the Cpt. to put in seg for
refusing to lock-in. Continue next pg. . . . My trauma is Castillo
and MC West/North building also staff. This been a factor.
Suicide been a factor form these. Further if my suicide
comments could’ve been a sign of refusing to lock in could’ve
don’t mean try. I was very serious.
(Docket #33 at 95). Although the document purports to have additional
pages, Keith did not provide them. See id. At the top of the inmate complaint,
Keith also wrote that “‘take me back to MSMU’ is a clear statement of
suicide. I said if I go in that cell I will commit suicide.” Id.
Buehrens eventually rejected or denied this complaint, and Keith then
appealed to the CCE. See id. at 100–02; (Docket #45-1 at 2–4). The CCE
reviewed Keith’s complaint and noted that inmates can only use an inmate
complaint to challenge the procedures used during the disciplinary process.
(Docket #33 at 100). Inmates may not use an inmate complaint as a collateral
attack on the substantive result of the disciplinary proceedings See id. Under
that limited scope of review, the CCE found that Keith proffered insufficient
evidence that she was unaware of the proper procedures for appealing the
adverse disciplinary determination. Id. at 102. As a result, on March 23, 2016,

Page 16 of 24

the CCE recommended dismissing the appeal, and the Secretary of the
Department of Corrections agreed. Id. at 101–02.
In her reply, Keith also refers to a complaint filed May 18, 2015,
designated TCI-2015-8959. (Docket #48 at 1). In this complaint, Keith alleged
that she was wrongfully sanctioned with too much time in segregation,
apparently for her misconduct on April 27, 2015. See (Docket #48-1 at 2–3).
She also complained that she was not provided copies of prison policies and
procedures on request. Id. Buehrens recommended that this complaint be
dismissed, as she found after an interview with Keith that none of her claims
had merit. See id. Schaub, who reviewed the recommendation, concurred. Id.
at 4. Defendants’ records reflect that Keith failed to appeal this dismissal.
(Docket #40-1).
4.

ANALYSIS
Defendants request summary judgment on a single ground: that Keith

failed to exhaust her administrative remedies before filing the instant lawsuit.
As noted above, exhaustion of remedies is strictly enforced: a prisoner must
“file complaints and appeals in the place, and at the time, the prison’s
administrative rules require.” Pozo, 286 F.3d at 1025. Nevertheless,
Defendants bear the burden to prove a failure to exhaust as an affirmative
defense. Westefer, 422 F.3d at 580. Based on the factual record before it, the
Court finds that Keith failed to exhaust her failure-to-protect claim, but not
her two deliberate indifference claims. The Court will assess each of her three
claims in turn.
First is Keith’s claim that Defendants failed to protect her from Castillo
by failing to issue a no-contact order. On the undisputed facts in the record,
Keith failed to follow the ICRS process to its completion for any of her
inmate complaints relating to this claim. See Wis. Admin. Code DOC §
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310.04–14. She filed several complaints raising this sort of claim, including
TCI-2015-1394 and TCI-2015-21333, but these were rejected by the ICE or
dismissed by the reviewing authority. She did not appeal those decisions.
Moreover, TCI’s records reflect that Keith did not file any other complaints
containing allegations pertinent to this claim. See Bouman v. Robinson, No.
07-C-367-C, 2008 WL 2595180, at *2 (W.D. Wis. June 27, 2008) (noting that a
defendant must prove exhaustion not only through explaining the disposition
of relevant complaints but also providing sworn statements that no other
relevant complaints exist).
Keith does not directly challenge this evidence. Instead, she points to
complaint TCI-2015-9680, which was properly appealed and exhausted. Keith
apparently believes that this complaint encompasses all her allegations of
wrongdoing in this case, and therefore she has met the exhaustion
requirement for all of her claims. However, her reliance on TCI-2015-9680 is
misplaced since it contains no mention of Defendants’ failure to provide a nocontact order.
One purpose of the exhaustion requirement is to permit prison officials
the opportunity to address inmate concerns internally before an inmate
initiates litigation. Porter v. Nussle, 534 U.S. 516, 524–25 (2002); Smith v.
Zachary, 255 F.3d 446, 450–51 (7th Cir. 2001). To provide notice of the conduct
complained of, an inmate’s complaint must contain the information required
by the prison’s administrative rules. Strong v. David, 297 F.3d 646, 649 (7th
Cir. 2002). Where those rules are silent, “a grievance suffices if it alerts the
prison to the nature of the wrong for which redress is sought.” Id. at 650;
Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004). An inmate need not state
“facts, articulate legal theories, or demand particular relief,” nor must he
name each potential defendant, so long as the grievance “object[s] intelligibly
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to some asserted shortcoming.” Strong, 297 F.3d at 650; Riccardo, 375 F.3d at
524. In this way, the approach to interpreting inmate complaints is akin to the
federal notice pleading system. Dye v. Kingston, 130 F. App’x 52, 55 (7th Cir.
2005). Wisconsin’s administrative rules provide little guidance as to the
required contents of an inmate complaint; however, those rules do require
that offender complaints “[c]ontain only one issue per complaint, and []
clearly identify the issue.” Wis. Admin. Code DOC § 310.09(1)(e).
Read with these principles in mind, complaint TCI-2015-9680 failed to
put Defendants on notice of Keith’s claim about a no-contact order. Even
under the most generous reading of this inmate complaint, it fails to relay
Keith’s concerns regarding Defendants’ failure to provide such an order. In
fact, the only time it mentions Castillo at all is to say that Castillo was the
source of Keith’s “trauma” and that Castillo was the reason Keith was
suicidal upon being forced to re-enter McCauley on April 27, 2015. Thus,
Keith’s failure-to-protect claim was not exhausted through TCI-2015-9680.
The result is different, however, with respect to Keith’s two other
claims. Those claims are both for Defendants’ deliberate indifference to
Keith’s risk of suicide on April 27, 2015. One of these claims relates to Ruples’
attempt to place her back in McCauley after she informed him that she would
kill herself if placed there, and the other relates to Keith’s suicide attempt
during segregation intake later that day. Although it is a close question, the
Court finds that TCI-2015-9680 provided Defendants with sufficient notice as
to each of these claims, and, as a result, that Keith exhausted her
administrative remedies with respect to each.
In this inmate complaint, Keith alleges that Ruples violated a provision
of the TCI handbook by failing to take her to see medical staff after she
notified him of her suicidal ideation. She explains that Ruples ignored her
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medical emergency and instead sent Keith to segregation for failing to
comply with his order. Though her role is unclear, Keith alleges that
Justmann also played a part, since Ruples called her to either notify her of his
decision to take Keith to the RHU or to request approval the move. The
complaint makes no mention of Keith’s subsequent suicide attempt during
the RHU intake process.
Given the very low bar set by the Seventh Circuit for the contents of
inmate complaints, the Court finds that Keith’s allegations were sufficient to
place Defendants on notice of Keith’s deliberate indifference claim relating
to Ruples’ conduct in the McCauley unit on April 27, 2015. The Court of
Appeals’ decision in Riccardo is instructive here. In that case, a correctional
officer, Rausch, paired two inmates to a cell, and one inmate later sexually
assaulted the other. Riccardo, 375 F.3d at 523. The victim, Riccardo, filed an
inmate complaint asking that his assailant be prosecuted. Id. Riccardo then
filed a federal suit against Rausch for inappropriately deciding that the two
inmates should be paired. Id. The Seventh Circuit found the “main objective”
of Riccardo’s complaint was to have his assailant prosecuted. Id. at 524. In the
Circuit’s view, however, the complaint was sufficient to put prison officials
on notice of the placement claim. See id. Riccardo had stated that “the
administration don’t [sic] do there [sic] job. [A sexual assault] should’ve never
[sic] happen again.” Id. This concern, although “at the border of
intelligibility,” was enough to show that Riccardo complained about his rape
and about the prison administration’s failure to protect him. Id.; see also
Westefer, 422 F.3d at 580 (substantive complaints about the conditions at a
new facility were enough to place official on notice that the inmates
challenged their transfer to the new facility).

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Here, the analysis is the same. Although Keith’s complaint is primarily
focused on the denial of her disciplinary appeal, she did announce her
concerns about Defendants’ failure to appropriately address her threats of
suicide upon entering the McCauley unit. Arguably, this was Keith’s attempt
to re-argue the merits of the disciplinary decision. But whatever their
purpose, the operative inquiry is whether Keith’s allegations alerted
Defendants to her potential claim. Consistent with Seventh Circuit precedent,
the Court finds that they did. See Strong, 297 F.3d at 650 (finding exhaustion
where inmate’s complaint was “comprehensible” and “object[ed] intelligbly
to some asserted shortcoming”).7
The same goes for Keith’s deliberate indifference claim arising from
her suicide attempt in the RHU on April 27, 2015, despite the fact that this
occurrence is not mentioned in TCI-2015-9680. The district court in Johnson v.
Larson-Smith, No. 13–cv–309–wmc, 2015 WL 3755965, at *5 (W.D. Wis. June
16, 2015), faced a similar problem. There, the inmate sued prison officials
over the conditions of the prison’s observation cells. Id. at *4. He claimed that

7

It does not matter that the ICE and CCE failed to address these deliberate
indifference allegations, instead focusing on the denial-of-appeal issue. See (Docket
#33 at 100–01). The Seventh Circuit has found that prison officials’ interpretation
of a complaint can be circumstantial evidence of its scope. See Nelson v. Miller, 570
F.3d 868, 876 n.4 (7th Cir. 2009); Stewart v. Cox, 14-cv-665-jdp, 2015 WL 9296457, at
*4 (W.D. Wis. Dec. 18, 2015). Yet while the examiners’ narrow interpretation of
Keith’s complaint was not unreasonable, it does not control this Court’s
exhaustion analysis. All that matters here is whether there were allegations in the
complaint that provided adequate notice to prison officials regarding the alleged
wrongful conduct. Strong, 297 F.3d at 650. Similarly, although the examiners might
have rejected Keith’s complaint as failing to comply with Wis. Admin. Code DOC
§ 310.09(1)(e)., which requires a complaint to raise only one issue, the Court cannot
enforce administrative rules which prison officials declined to enforce during the
administrative process. See McDaniel v. Meisner, 617 F. App’x 553, 558 (7th Cir.
2015); Maddox v. Love, 655 F.3d 709, 721–22 (7th Cir. 2011).

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his observation cell had no mattress or blanket and that he was forced to
sleep on a blood-covered concrete floor. Id. The inmate complaint underlying
his lawsuit made no mention of blood on the cell floor, however. Id. The
district court nevertheless allowed that portion of his conditions-ofconfinement claim to proceed, reasoning that
dismissing a “portion” of Johnson’s conditions of confinement
claim does not make sense in light of the PLRA’s lenient
requirements for the content of grievances. Defendants were
undisputedly on notice that Johnson was unhappy with the
conditions in observation; they could also infer, from his
complaints that he lacked a mattress and blanket, and
presumably they would have known that he was being forced
to sleep on a concrete floor. To hold that Johnson cannot
support his allegations of unconstitutional conditions of
confinement with additional facts that were not expressly
mentioned in the grievance would be akin to requiring that he
“lay out the facts”—a position that the Seventh Circuit rejected
in Strong. The court declines to impose such a stringent
standard, particularly when the Wisconsin Administrative
Code contains no such requirement. Cf. Strong, 297 F.3d at 650
(“Strong’s two grievances were comprehensible and contained
everything that Illinois instructed him to include. Defendants
can’t complain that he failed to do more.”).
Id.
So too, here, Keith’s allegations regarding Ruples’ deliberate
indifference are closely related in nature and time to her claim relating to her
suicide attempt in the RHU. Her failure to expressly relate the RHU incident
is not therefore not fatal to her exhaustion of that claim, particularly since, as
the Johnson court observed, the Wisconsin administrative rules require little
in the way of specificity. Keith’s allegations about Ruples, generously
construed, would have induced prison officials to investigate further and
unavoidably discover Keith’s suicide attempt later that same day. See
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Riccardo, 375 F.3d at 524. Again, although the question is a close one, the
Court finds that Defendants failed to meet their burden of establishing a
failure to exhaust administrative remedies on this claim. Massey v. Helman,
196 F.3d 727, 735 (7th Cir. 1999). Consequently, Keith has exhausted her
administrative remedies as to both of her deliberate indifference claims.
5.

CONCLUSION
The Court finds that Keith has failed to exhaust her administrative

remedies as to her claim that Defendants failed to protect her from Castillo
by refusing to issue a no-contact order. Defendants will therefore be granted
summary judgment as to that claim.8 However, the above analysis
demonstrates that Keith has properly exhausted her claims for deliberate
indifference. Those claims must, therefore, be addressed on their merits.
To facilitate this, the Court will permit both sides thirty days from the
date of this order to submit dispositive motions addressing the merits of the
remaining claims. The Court cannot rule on the merits of the claims at present
since Defendants’ motion was directed solely at exhaustion. Additionally,
Keith’s motions for summary judgment and other filings, though directed at
the merits, are woefully inadequate to warrant a grant of summary judgment
because they do not comply with the applicable procedural rules, nor do they
come close to showing that the undisputed facts require judgment as a matter
of law in her favor. See supra Part 3.1 (describing Keith’s motion filings). As
a result, the Court will deny Keith’s motions without prejudice and afford the
parties additional time to submit new summary judgment motions, if they
choose. Keith is advised that if she chooses to submit another motion for

8

Although it appears highly unlikely that Keith will be able to complete the
grievance process for this 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).

Page 23 of 24

summary judgment, such motion must comply with the Federal and Local
Rules.
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #38) be and the same is hereby GRANTED in part and DENIED in
part as stated herein;
IT IS FURTHER ORDERED that Plaintiff Crystal Keith’s claim that
Defendants failed to protect her from Ashli Castillo by failing to issue a nocontact order, in violation of the Eighth Amendment, be and the same is
hereby DISMISSED without prejudice;
IT IS FURTHER ORDERED that Plaintiff Crystal Keith’s motions for
appointment of counsel and for summary judgment (Docket #31, #32, #36,
and #47) be and the same are hereby DENIED without prejudice;
IT IS FURTHER ORDERED that Plaintiff Crystal Keith’s motion to
amend her response to her motion for summary judgment (Docket #50) be
and the same is hereby DENIED; and
IT IS FURTHER ORDERED that the parties may submit new
dispositive motions which address the merits of Keith’s remaining claims no
later than February 21, 2017. The parties are warned that no extensions of
this deadline will be granted.
Dated at Milwaukee, Wisconsin, this 19th day of January, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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