Kretlow v. Allen et al
Filing
32
ORDER signed by Judge J.P. Stadtmueller on 6/29/2017: GRANTING 22 Defendants' Motion for Summary Judgment; DENYING as moot 27 Plaintiff's Motion to Amend His Complaint; DENYING as moot 28 Plaintiff's Motion for Summary Judgmen t; and DISMISSING action without prejudice. (cc: all counsel, via mail to Bernard E. Kretlow at Green Bay Correctional Institution) (jm) (Main Document 32 replaced, with corrected order as to signature date on 6/29/2017) (asc). Modified on 6/29/2017 (asc).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BERNARD E. KRETLOW,
v.
Plaintiff,
DR. LISA ALLEN and SHANE
GARLAND,
Case No. 16-CV-1178-JPS
ORDER
Defendants.
1.
INTRODUCTION
On March 31, 2017, Magistrate Judge William E. Duffin screened
Plaintiff’s complaint and allowed him to proceed on a claim under the
Eighth Amendment for Defendants’ failure to provide him adequate
medical care. (Docket #16). This action was reassigned to this branch of the
Court on April 18, 2017. On June 13, 2017, Defendants moved for summary
judgment on the basis of Plaintiff’s failure to exhaust his administrative
remedies as required by the Prison Litigation Reform Act (“PLRA”).
(Docket #22). Plaintiff responded to the motion on June 19, 2017, and
Defendants replied on June 26, 2017. (Response, Docket #26; Reply, Docket
#29). 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 April 24, 2017, Plaintiff was
warned about the requirements for opposing a motion for summary
judgment. (Docket #20 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 #22). He was provided with additional
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
#24). 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 two-page document with a onepage attachment. (Docket #26). In his submission, Plaintiff provides
argument as to why he believes “this lawsuit should be able [sic] too
continue[.]” Id. at 2. Plaintiff’s submission is not sworn, nor is it
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accompanied by any documents or other evidence other than what
Defendants attached to their own statement of facts. (Docket #26-1).
Plaintiff’s response does not attempt to address Defendants’ statement of
facts. See generally (Docket #26).
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, 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).
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
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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 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”) 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”). 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
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received the recommendation, the inmate’s administrative remedies are
exhausted. Id. §§ 310.07(7), 310.14.
3.3
RELEVANT FACTS
Plaintiff has filed dozens of inmate complaints during his time in the
Wisconsin prison system. See (Docket #25-1). The only one relevant to this
case was filed while he was housed in Green Bay Correctional Institution
(“GBCI”) on August 4, 2016. Id. at 6. Therein, Plaintiff complained that
although he broke his CPAP machine, Defendants should have ordered a
new one for him. (Docket #25-2 at 6-7). Jodene Perttu (“Perttu”) was the ICE
who reviewed Plaintiff’s complaint. Her investigation revealed that
Plaintiff’s doctor had discontinued the order for a CPAP machine because
Plaintiff broke the previous one. Id. at 8-9. On August 10, 2016, Perttu
recommended dismissal of the complaint, further noting that Plaintiff’s
violent behavior suggested that he might break the second CPAP machine
if one was obtained. Id. at 2. James LaBelle served as the reviewing authority
and took Perttu’s recommendation on August 19, 2016. Id. at 3. Plaintiff did
not appeal the dismissal to the CCE.
4.
ANALYSIS
Taking Defendants’ facts as undisputed, Plaintiff has not exhausted
his administrative remedies. Though he began the process, Plaintiff simply
failed to take his complaint across the finish line by appealing to the CCE
and waiting for the Secretary’s decision. On the face of Defendants’
submissions, this lawsuit must be dismissed for want of exhaustion.
Plaintiff’s response does not change that result. He does not contest
Defendants’ recitation of the facts relating to his August 4 complaint.
Instead, though not easy to understand, he appears to claim that he filed a
second grievance related to the CPAP issue. (Docket #26 at 1-2). He points
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to an entry on his complaint history report, provided by Defendants, which
states that he filed another complaint on February 6, 2017. Id.; (Docket #251 at 7). The report indicates that this complaint is, or was, appealed to the
CCE. (Docket #25-1 at 7).
Defendants confirm that the second grievance exists, but it is
nevertheless unhelpful to Plaintiff. The second grievance is not directed at
Defendants or anyone at GBCI. (Docket #30-1 at 11-12). Instead, it was filed
after Plaintiff moved to the Wisconsin Resource Center, and states that a
“Kelli” at that institution refused to order a new CPAP machine. Id. Though
this grievance does appear to have gone through the complete appeals
process, that fact does nothing to save Plaintiff’s only relevant, and
unappealed, August 4 complaint. See id. at 8-9.
5.
CONCLUSION
Plaintiff failed to contest the facts Defendants proffered. 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 properly exhaust his administrative remedies. This action will, therefore,
be dismissed without prejudice.1 Plaintiff’s other pending motions to
amend his complaint, (Docket #27), and for summary judgment, (Docket
#28), will be denied as moot.
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #22) be and the same is hereby GRANTED;
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.
1
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IT IS FURTHER ORDERED that Plaintiff’s motions to amend his
complaint (Docket #27) and for summary judgment (Docket #28) 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 29th day of June, 2017.
BY THE COURT:
____________________________
J. P. Stadtmueller
U.S. District Judge
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