Adames v. Bikowski et al

Filing 60

ORDER signed by Judge J.P. Stadtmueller on 10/11/2017: GRANTING 48 Defendants' Motion for Summary Judgment; DENYING as moot 45 Plaintiff's Motion for Summary Judgment; DENYING as moot 47 Defendants' Motion to Strike; and DISMISSING action without prejudice. (cc: all counsel, via mail to Jose A. Adames at Waupun Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSE A. ADAMES,
Plaintiff,

v.

ROBERT J. BIKOWSKI, JONATHAN
S. PAWLYK, BRAD D. BADE, CAPT.
NATHAN E. HAYNES, JODI L.
TRITT, and GWENDOLYN A. VICK,

Case No. 16-CV-1010-JPS

ORDER

Defendants.
1.

INTRODUCTION
Plaintiff’s lawsuit alleges that Defendants Robert J. Bikowski

(“Bikowski), Jonathan S. Pawlyk (“Pawlyk”), Brad D. Bade (“Bade”), Capt.
Nathan E. Haynes (“Haynes”), and Jodi L. Tritt (“Tritt”) (collectively, the
“Officers”), all correctional officers at Waupun Correctional Institution
(“Waupun”), used excessive force against him in relation to his suicide
attempt on January 31, 2016, namely in obtaining compliance from Plaintiff
and later extracting him from his cell. (Docket #21 at 2-3). Plaintiff further
alleges that Defendant Gwendolyn A. Vick (“Vick”), a nurse at Waupun,
was deliberately indifferent to his medical needs after the excessive force
incident. (Docket #26 at 2-3). On February 23, 2017, the Court screened
Plaintiff’s second amended complaint (his current operative pleading) and
allowed him to proceed on both claims pursuant to the Eighth Amendment.
Id. at 5.
On September 1, 2017, Defendants moved for summary judgment
on, inter alia, the ground that Plaintiff failed to exhaust his administrative

remedies as required by the Prison Litigation Reform Act (“PLRA”).
(Docket #48). Plaintiff filed responsive materials on September 18, 2017.
(Docket #55, #56, and #57). Defendants replied on October 2, 2017. (Docket
#59). For the reasons explained below, Defendants’ motion must be granted.
2.

STANDARD OF REVIEW
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).
3.

BACKGROUND
3.1

Plaintiff’s Failure to Dispute the Material Facts

The relevant facts are undisputed because Plaintiff failed to dispute
them. In the Court’s scheduling order, entered January 24, 2017, Plaintiff
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. In Defendants’ motion for summary judgment, they too
warned Plaintiff about the requirements for his response as set forth in
Federal and Local Rules 56. (Docket #48). He was provided with additional
Page 2 of 7

copies of those Rules along with Defendants’ motion. Id. at 3-13. In
connection with their motion, Defendants filed a supporting statement of
material facts that complied with the applicable procedural rules. (Docket
#50). 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, Plaintiff submitted a six-page document titled
“Plaintiff’s Response to Defendants’ Proposed Finding of Fact.” (Docket
#55). Despite its name, the document does not actually respond to
Defendants’ proposed facts in an understandable manner. Instead, Plaintiff
variously responds to Defendants’ facts out of order (changing the
numbering as established in Defendant’s own statement), re-words the
facts, or simply conjures up facts out of thin air. See, e.g., id. at 2, ¶ 7
(correctly transcribing Defendant’s proposed fact No. 8), ¶ 9 (changing
Defendants’ wording), ¶ 10 (stating a “fact” found nowhere in Defendant’s
statement). More importantly, none of Plaintiff’s responses to these “facts”
are supported by citation to any evidence. See generally id. In sum, the
document does not appropriately respond to Defendants’ statement of
facts. Civil L. R. 56(b)(2)(B).
Despite being twice warned of the strictures of summary judgment
procedure, Plaintiff ignored those rules by failing to properly dispute
Defendants’ proffered facts with citations to relevant, admissible evidence.
Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). 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.
Thus, the Court will deem Defendants’ facts undisputed for purposes of
deciding their motion for summary judgment. See Fed. R. Civ. P. 56(e); Civ.
Page 3 of 7

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).
3.2

Exhaustion of Prisoner Administrative Remedies

It is helpful to review how the PLRA’s exhaustion requirement plays
out in the Wisconsin prison system prior to relating the relevant facts. The
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); 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).
Exhaustion is a precondition to suit; a prisoner cannot file an action prior to
exhausting his administrative remedies or in anticipation that they will
soon be exhausted. Hernandez v. Dart, 814 F.3d 836, 841-42 (7th Cir. 2016);
Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). A lawsuit must be
dismissed even if the prisoner exhausts his administrative remedies during
its pendency. Ford, 362 F.3d at 398.
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 inmates
must take to exhaust their administrative remedies under the ICRS. First,
an inmate must file a complaint with the Institution Complaint Examiner
Page 4 of 7

(“ICE”) within fourteen days of the events giving rise to the complaint. Id.
§§ 310.07(1), 310.09(6). The ICE may reject a complaint or, before accepting
it, can direct the inmate to “attempt to resolve the issue.” See id. §§ 310.08;
310.09(4); 310.11(5). If the complaint is rejected, the inmate may appeal the
rejection to the appropriate reviewing authority. Id. § 310.11(6). If the
complaint is not rejected, the ICE issues a recommendation for disposing of
the complaint, either dismissal or affirmance, to the reviewing authority. Id.
§§ 310.07(2), 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”) within ten days. Id. §§ 310.07(6), 310.13.
The CCE issues a recommendation to the Secretary of the Department of
Corrections who may accept or reject it. Id. §§ 310.07(7), 310.13, 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. §§ 310.07(7), 310.14.
3.3

RELEVANT FACTS

On February 2, 2016, Plaintiff filed a complaint about the alleged
excessive force incident.1 The complaint was investigated by the assigned
ICE, who determined that excessive force had not been used, and therefore
recommended dismissal. Brian Foster, Waupun’s warden and the
reviewing authority, agreed with the recommendation on April 3, 2016. In
a letter dated May 27, 2016, Plaintiff wrote to the CCE’s office asking about

These facts are drawn from Defendants’ now-undisputed statement of
facts. (Docket #50).
1

Page 5 of 7

the status of his appeal for that complaint. The CCE’s office wrote back a
few days later, informing Plaintiff that it had never received such an appeal.
Confusingly, on July 29, 2016, Plaintiff again asked the CCE for a status
update on his appeal. The CCE responded that it still had no record of an
appeal.
It was not until August 15, 2016, that Plaintiff submitted an appeal
to the CCE. This was long after his ten-day window for filing an appeal had
closed. CCEs are authorized to accept a late filing if the inmate shows good
cause, Wis. Admin. Code DOC § 310.13(3), but Plaintiff did not supply any.
On September 23, 2016, the CCE recommended dismissing Plaintiff’s
appeal as untimely, and the recommendation was accepted on October 7,
2016. Plaintiff never filed any complaints about inadequate medical care by
Vick, or anyone else, in connection with the January 31, 2016 incident.
4.

ANALYSIS
Taking Defendants’ facts as undisputed, Plaintiff has not exhausted

his administrative remedies. Though he began the process with respect to
the Officers’ conduct, Plaintiff simply failed to take his complaint across the
finish line by timely appealing it to the CCE and, later, the Secretary. Prison
officials were well within their rights to reject Plaintiff’s late-filed appeal.
Pozo, 286 F.3d at 1024-25 (finding that a Wisconsin inmate did not exhaust
his remedies when he filed an untimely appeal). As to Vick, Plaintiff did
not file any complaints at all, much less carry them through the appeals
process. Plaintiff’s brief in opposition to Defendants’ motion focuses on the
substance of his claim, and does not even attempt to argue that he properly
exhausted his administrative remedies. See generally (Docket #56).

Page 6 of 7

5.

CONCLUSION
As to the exhaustion of his administrative remedies, Plaintiff failed

to contest the facts Defendants proffered or the arguments in their brief.
Viewing those undisputed facts in the light most favorable to him, the
Court is obliged to conclude that this lawsuit must be dismissed because he
failed to achieve proper exhaustion. This action will, therefore, be dismissed
without prejudice.2 Plaintiff’s motion for summary judgment, (Docket #45),
and Defendants’ motion to strike that filing, (Docket #47), will be denied as
moot.
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #48) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion for summary
judgment (Docket #45) and Defendants’ motion to strike (Docket #47) be
and the same are 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 11th day of October, 2017.
BY THE COURT:

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

Although it is unclear whether Plaintiff will be able to complete the ICRS
process for his claims at this late date, dismissals for failure to exhaust are always
without prejudice. Ford, 362 F.3d at 401.
2

Page 7 of 7