Menting v. Humphreys et al

Filing 43

ORDER signed by Judge J.P. Stadtmueller on 10/25/2017: GRANTING 23 Defendant's Motion for Partial Summary Judgment; DISMISSING without prejudice Plaintiff's Eighth Amendment claim regarding meal delivery for Plaintiff's failure to exhaust administrative remedies; GRANTING 38 Defendant's Motion to Extend the Dispositive Motion Deadline; and AMENDING 18 the Court's 2/3/2017 Scheduling Order to reflect a dispositive motion deadline of 11/27/2017. See Order. (cc: all counsel, via mail to William J. Menting at Jackson Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIAM J. MENTING,
Plaintiff,
Case No. 16-CV-1540-JPS

v.

ORDER

BRIAN R. SCHMIDT,
Defendant.
1.

INTRODUCTION
Plaintiff William J. Menting (“Menting”), a prisoner, brought this

action against defendant Brian R. Schmidt (“Schmidt”), alleging that he was
deliberately indifferent to Menting’s serious medical conditions, in
violation of the Eighth Amendment. Specifically, Menting alleges that
beginning around mid-2013, while he was incarcerated at Kettle Moraine
Correctional Institution (“KMCI”), Schmidt denied Menting a wheelchair
(the “wheelchair claim”) and prevented Menting’s meals from being
delivered to him in his cell (the “meal-delivery claim”). (Docket #1 at 4-6
and #1-6). Menting alleges that both of these things were done in
contravention of a physician’s order. Id.
Schmidt filed a motion for partial summary judgment as to
Menting’s meal-delivery claim on the ground that Menting did not
properly exhaust his administrative remedies as to that claim. (Docket #23).

That motion is now fully briefed and, for the reasons explained below, it
will be granted.1
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 nonmovant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir.
2016). In assessing the parties’ proposed facts, the Court must not 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).

Menting’s opposition to Schmidt’s motion for partial summary judgment
was filed almost a month late. (Docket #33). Further, Menting did not file a
response to Schmidt’s proposed facts. The Court will not consider summary
judgment materials that are not filed in conformance with the federal and local
rules. See 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).
Ultimately, though, Menting’s opposition, such as it is, does not change the
Court’s analysis. He concedes that he did not file a grievance related to his mealdelivery claim. Id. at 1.
1

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3.

RELEVANT FACTS2
At all times relevant, Menting was an inmate at housed at KMCI. See

(Docket #25-1). Schmidt was presumably employed at KMCI in some
capacity—the plaintiff alleges Schmidt was a sergeant—but neither party
has confirmed Schmidt’s title. See (Docket #14). Menting claims that
sometime around December 2014, Schmidt refused to follow medical
orders to deliver his meals to him in his cell. (Docket #1-6).
Menting did not file an inmate complaint at KMCI that addressed
his allegation that Schmidt refused to deliver his meals to his cell. The
inmate complaint examiner (“ICE”) at KMCI confirmed this by searching
KMCI’s records of inmate complaints, which revealed no relevant
grievances. (Docket #25). Menting argues that he verbally reported the
meal-delivery issue to a nurse, but he does not contest that he failed to file
a grievance and follow through with the grievance appeal procedure,
explained in detail below. (Docket #33 at 1). KMCI records do show that
Menting filed many grievances about other issues, including being denied
a wheelchair, see (Docket #25-1 at 2), but there can be no dispute that
Menting did not properly grieve his meal-delivery claim.
4.

ANALYSIS
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
The Court includes here just the facts relevant to Menting’s meal-delivery
claim, as it is the only claim at issue with the defendant’s pending motion for
partial summary judgment. Menting’s wheelchair claim is not before the Court.
2

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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
defendant. Westefer v. Snyder, 422 F.3d 570, 577 (7th Cir. 2005).
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 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

administrative remedies are exhausted. Id. §§ 310.07(7), 310.14.
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inmate’s

As explained above, Menting admits that he did not file an inmate
complaint at KMCI that addressed his allegation that Schmidt refused to
deliver meals to his cell. Of course, this means Menting also did not follow
through with the designated appeal process for his grievance. The PLRA
requires complete or “proper” exhaustion, Woodford v. Ngo, 548 U.S. 81, 93
(2006), and Menting has not done so for his meal-delivery claim. That claim
will 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 always
without prejudice).
5.

CONCLUSION
For the reasons explained herein, the Court will grant Schmidt’s

motion for partial summary judgment as to Menting’s claim under the
Eighth Amendment relating to the denial of meal delivery to his cell.
Schmidt has indicated that he intends to file a subsequent motion for
summary judgment on the merits of Menting’s other claim in this case, his
wheelchair claim. See (Docket #24 at 1). Schmidt requested that the Court
stay the deadline for the filing of dispositive motions until after the Court’s
resolution of the pending motion for partial summary judgment. (Docket
#38). The Court will grant Schmidt’s request and amend the current
scheduling order, (Docket #18), to reflect a new dispositive motion deadline
of November 27, 2017. If the wheelchair claim survives summary judgment,
the Court will promptly set a trial date following its summary judgment
order on that claim.
Accordingly,
IT IS ORDERED that Schmidt’s motion for partial summary
judgment as to Menting’s Eighth Amendment claim regarding meal
delivery (Docket #23) be and the same is hereby GRANTED;
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IT IS FURTHER ORDERED that Menting’s Eighth Amendment
claim regarding meal delivery, (Docket #8 at 4, 9), be and the same is hereby
DISMISSED without prejudice;
IT IS FURTHER ORDERED that Schmidt’s motion to extend the
dispositive motion deadline (Docket #38) be and the same is hereby
GRANTED; and
IT IS FURTHER ORDERED that the Court’s scheduling order,
(Docket #18), be and the same is hereby amended to reflect a new
dispositive motion deadline of November 27, 2017.
Dated at Milwaukee, Wisconsin, this 25th day of October, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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