Carthage v. Wisconsin Department of Corrections et al

Filing 51

ORDER signed by Judge J.P. Stadtmueller on 10/18/2017: GRANTING 38 Defendants' Motion for Summary Judgment and DISMISSING action without prejudice for Plaintiff's failure to exhaust his administrative remedies. (cc: all counsel, via mail to Charles E. Carthage, Jr. at Dodge Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHARLES E. CARTHAGE, JR.,
Plaintiff,

v.

LARRY MALCOMSON, PHIL
STEFFEN, DAVE POTEAT, and MIKE
HORST,

Case No. 16-CV-326-JPS

ORDER

Defendants.
Plaintiff Charles E. Carthage, Jr. (“Carthage”), a prisoner, brings this
action pursuant to 42 U.S.C. § 1983 against Defendants, correctional officers
at the Brown County Jail and Brown County sheriff’s deputies, alleging
inadequate treatment of his medical needs. (Docket #26, #28). Defendants
filed a motion for summary judgment on September 1, 2017, arguing in part
that Carthage failed to exhaust his administrative remedies before filing
suit. (Docket #38). The motion has been fully briefed, and for the reasons
stated below, it will be granted.1
1.

STANDARD OF REVIEW
1.1

Summary Judgment

Federal Rule of Civil Procedure 56 provides that the court “shall

Defendants also sought summary judgment on the alternative ground that
none of them was deliberately indifferent to Carthage’s medical needs. (Docket
#39 at 8–15). Because a defense of failure to exhaust administrative remedies must
be addressed before proceeding to the merits of a case, Perez v. Wis. Dep’t of Corr.,
182 F.3d 532, 536 (7th Cir. 1999), and because failure to exhaust provides sufficient
ground for dismissal of this case, the Court will not address any merits-related
issues.
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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); 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).
1.2

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 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); Burrell v. Powers, 431 F.3d 282, 284–85 (7th Cir. 2005). A suit must be
dismissed if it was filed before exhaustion was complete, even if exhaustion
is achieved before judgment is entered. Perez v. Wis. Dep’t of Corr., 182 F.3d
532, 535 (7th Cir. 1999). Several important policy goals animate the
exhaustion requirement, including restricting frivolous claims, giving
prison officials the opportunity to address situations internally, giving the
parties the opportunity to develop the factual record, and reducing the
scope of litigation. Smith v. Zachary, 255 F.3d 446, 450–51 (7th Cir. 2001).

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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).
In early 2013, during the events relevant to this case, the Brown
County Jail maintained a policy for inmate grievances. (Docket #41-1). At
the Jail, an inmate wishing to air a grievance must file his complaint on an
inmate grievance form within forty-eight hours of the incident. Id. at 2, 6–7.
Grievances filed beyond the 48-hour time limit may be honored if the
inmate can show good cause for the delay. Id. Once the grievance is filed
and addressed, the inmate must then appeal any adverse disposition of the
grievance to higher level Jail officials in order to achieve exhaustion. See id.
at 4–5.
2.

RELEVANT FACTS
2.1

Carthage’s Failure to Dispute the Material Facts

The relevant facts are undisputed because Carthage did not properly
dispute them. In the Court’s scheduling order, issued March 7, 2017,
Carthage was warned about the requirements for opposing a motion for
summary judgment. (Docket #23 at 2–3). 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. Most relevant here is Local Rule 56(b)(2), which
obligates the non-movant on summary judgment to file “a concise response
to the moving party’s statement of facts that must contain a reproduction
of each numbered paragraph in the moving party’s statement of facts
followed by a response to each paragraph, including, in the case of any
disagreement, specific references to the affidavits, declarations, parts of the
record, and other supporting materials relied upon[.]” Civ. L. R.
56(b)(2)(B)(i).
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Next, on September 1, 2017, Defendants filed their motion for
summary judgment. (Docket #38). In the motion, Defendants also warned
Carthage about the requirements for his response as set forth in Federal and
Local Rules 56. Id. at 1. Copies of those Rules were provided in Defendants’
motion. See id. at 2–8. In connection with their motion, Defendants filed a
supporting statement of material facts that complied with the applicable
procedural rules. (Docket #40). 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.
Despite being twice warned of the strictures of summary judgment
procedure, Carthage ignored those rules by failing to dispute Defendants’
proffered facts in any coherent fashion. Smith v. Lamz, 321 F.3d 680, 683 (7th
Cir. 2003). Instead, Carthage’s entire response to Defendants’ summaryjudgment submission was a six-page affidavit. (Docket #48). Most of
Carthage’s averments have nothing to do with exhaustion but instead touch
upon the merits of his claims. See id. ¶¶ 1–23. Of course, exhaustion of
administrative remedies is not at all dependent on whether the prisoner’s
claims have merit.
Moreover, to the extent that Carthage included a few statements
concerning his efforts to exhaust his administrative remedies, see id. ¶ 24,
he nevertheless failed to abide by the Court’s rules and submit a response
to Defendants’ statement of material facts accompanied by citations to
admissible evidence showing that he in fact complied with the exhaustion
requirement, See Civ. L. R. 56(b)(2)(B)(i). Further, his vague assertion that
he “filed multiple grievances to virtually every person and possible entity I
could think of,” including Jail officials, Wisconsin senators, the Wisconsin
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governor, and staff at the Dodge Correctional Institution (to which he was
later transferred), (Docket #48 ¶ 24), fails to demonstrate that he filed a
timely grievance at the Brown County Jail in conformity with the Jail’s
grievance procedures and that he appealed any adverse determination to
the appropriate official. Tellingly, he does not attach any of his purported
grievances to the affidavit.
Though the Court is required to liberally construe a pro se plaintiff’s
filings, it cannot act as his lawyer, and it cannot delve through the record to
find favorable evidence for him. Herman v. City of Chicago, 870 F.2d 400, 404
(7th Cir. 1989) (“A district court need not scour the record to make the case
of a party who does nothing.”). Thus, the Court will, unless otherwise
stated, deem Defendants’ facts undisputed for purposes of deciding their
motion for summary judgment. See Fed. R. Civ. P. 56(e); Civ. L. R. 56(b)(4);
Hill v. Thalacker, 210 F. App’x 513, 515 (7th Cir. 2006) (noting that district
courts have discretion to enforce procedural rules against pro se litigants).
2.2

Carthage’s Claims and Failure to File Any Grievances

Carthage was arrested and jailed at the Brown County Jail in
February 2013 for several drug-related offenses. In or around March 2013,
Defendants, two of whom are correctional officers at the Jail and two of
whom are employed with the Brown County Sheriff’s drug task force,
allegedly provided inadequate treatment for his medical needs, including
complaining about the time and expense required to transport Carthage to
dialysis treatment, falsely accusing him of being an escape risk, and
ultimately causing Carthage to be transferred to Dodge Correctional
Institution in March 2013. However, it is undisputed that Carthage did not
file any grievances in 2013 at the Jail regarding his health care, medical
treatment, or any other issue—or, at a minimum, that whatever written
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complaints Carthage made to Jail officials were not submitted in conformity
with the Jail’s grievance policy and not appealed to the appropriate
reviewing official.
3.

ANALYSIS
The undisputed facts demonstrate that Carthage has not exhausted

his administrative remedies with respect to his claims in this case. Whatever
he may believe about his efforts to complain about his situation at the Jail,
Carthage did not timely file grievances or appeals in the manner the Jail
prescribed. Pozo, 286 F.3d at 1025 (“Prisoner[s] must file complaints and
appeals in the place, and at the time, the prison’s administrative rules
require.”). Again, while Carthage says he filed “multiple grievances to
virtually every person and possible entity [he] could think of, including
BCJ, DCI, various departments and offices (i.e. Security Directors, Sheriff,
Warden), as well as Wisconsin Senators and the Governor,” he has not
proffered any evidence that he filed a timely, proper grievance. (Docket #48
¶ 24).
At best, it appears he “regularly complained about this in March of
2013,” and that he “attempted on several occasions to verbally report the
abuse (to the Officer at the desk, for example). . . .” Id. However, grieving
to various officials and verbally airing complaints to an unidentified person
at a desk is not the equivalent of submitting a formal inmate grievance in
accordance with the Jail grievance policy. Thus, even if the Court
considered Carthage’s averments—which it cannot, as they are
procedurally deficient, see supra Part 2.1—it remains undisputed that
Carthage did not file any grievances that were compliant with the Brown
County Jail policy.

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Moreover, to the extent Carthage may blame this failure on the
tumult caused by his transfer to Dodge Correctional Institution, the Court
is unsympathetic. It is beyond dispute that Carthage was housed at the Jail
for an ample period in which he could have timely filed a grievance.
Consequently, the Court must conclude that Carthage has not exhausted
his administrative remedies, and his case must be dismissed.
4.

CONCLUSION
Carthage did not properly challenge the facts Defendants proffered.

Viewing those undisputed facts in the light most favorable to him, the
Court is obliged to conclude that his claims are unexhausted and must be
dismissed. This action will, therefore, be dismissed in its entirety without
prejudice.2
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #38) be and the same is hereby GRANTED; 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 18th day of October, 2017.
BY THE COURT:

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

Although it appears unlikely that Carthage will be able to complete the
grievance process for his unexhausted claims at this late date, dismissals for failure
to exhaust are always without prejudice. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir.
2004).
2

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