Bergeron-Davila v. Schmaling et al
ORDER signed by Judge J.P. Stadtmueller on 11/22/2017: DENYING as moot 107 Plaintiff's Motion for Sanctions; DENYING as moot 126 Plaintiff's Motion to Dismiss; DENYING 110 Plaintiff's Motion for Summary Judgment; GRANTING [10 1] Defendants' Motion for Summary Judgment; and DISMISSING CASE without prejudice for Plaintiff's failure to exhaust administrative remedies. (cc: all counsel, via mail to Raymond J. Bergeron Davila at Waupun Correctional Institution) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RAYMOND J. BERGERON DAVILA,
DOUGLAS WEARING, LT.
BRADLEY FRIEND, C.O. JOSEPH
ZIMMER, and JOHN DOES,
Case No. 16-CV-1665-JPS
On December 14, 2016, Plaintiff filed his Complaint in this matter.
(Docket #1). Plaintiff alleges that Defendants failed to appropriately
address his self-harming activities while he was housed at Racine County
Jail (the “Jail”). (Docket #21 at 3-5; Docket #55 at 2). On May 24, 2017, the
Court screened Plaintiff’s Second Amended Complaint and allowed him to
proceed on a number of claims. (Docket #55 at 3-4). On October 6, 2017,
Defendants moved for summary judgment on the basis of, inter alia,
Plaintiff’s failure to exhaust his administrative remedies as required by the
Prison Litigation Reform Act (“PLRA”). (Docket #101 and #103). Plaintiff
filed nothing in response to the motion, and his time in which to do so has
long since expired. Civ. L. R. 7(b). Plaintiff’s failure to oppose Defendants’
motion in any form, standing alone, warrants granting the motion. Civ. L.
R. 7(d). Nevertheless, on the undisputed facts presented, Plaintiff failed to
exhaust his administrative remedies.1
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).
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 May 11, 2017, Plaintiff was
warned about the requirements for opposing a motion for summary
judgment. (Docket #51 at 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
Plaintiff filed his own motion for summary judgment on October 18, 2017.
(Docket #110). This was five days beyond the dispositive motion deadline. See
(Docket #100). Plaintiff’s untimely motion must be denied without consideration
of any merit therein.
Page 2 of 8
warned Plaintiff about the requirements for his response as set forth in
Federal and Local Rules 56. (Docket #101). He was provided with additional
copies of those Rules along with Defendants’ motion. Id. at 2-4. In
connection with their motion, Defendants filed a supporting statement of
material facts that complied with the applicable procedural rules. (Docket
#102). 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.
As noted above, Plaintiff filed absolutely nothing in response to
Defendants’ motion, much less a response to their statement of facts.
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).
Exhaustion of Prisoner Administrative Remedies
It is helpful to review how the PLRA’s exhaustion requirement plays
out in the Jail 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
Page 3 of 8
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 Jail provides each inmate with a handbook which explains the
grievance procedure.2 When inmates believe they have a basis for a
grievance, and informal resolution of the issue is not possible, they must
submit a written complaint. The Jail requires inmates to use the “Inmate
Request” form to offer a grievance. The grievance must be legible, include
the inmate’s housing location, be dated, signed, and submitted within
seven days of the complained-of occurrence.
Once completed, the grievance must be submitted to Jail staff, who
conduct an initial review of the request for compliance with Jail rules. If the
form is properly filled out, the receiving officer initials the form, writes
down their badge number, dates the form, and forwards it on for further
review. A Jail sergeant provides a response for each legitimate complaint.
These procedures, as well as the facts stated in Part 3.3 below, are drawn
from Defendants’ now-undisputed statement of facts. (Docket #102 at 1-4).
Page 4 of 8
If the inmate is not satisfied with the sergeant’s response, they may file an
appeal with a Jail captain within seven days after the response was
Any grievances that do not follow the above-mentioned rules or that
contain threats or profanity will not receive a response. If a grievance is not
considered because it was filed improperly, another grievance may be
submitted, though the new grievance must comply with all requirements,
including the seven-day time limitation. Inmates who need assistance in
submitting a grievance or understanding the process can speak to Jail staff.
Inmates who are on suicide watch status may submit a grievance by
requesting the appropriate form and a pencil during their hour out of their
cell. If the severity of the inmate’s status is such that he or she is not allowed
pencil and paper under any circumstance, the inmate may submit a
grievance with the assistance of Jail staff who can fill in the form for the
Without any filings from Plaintiff, Court must rely on the Plaintiff’s
pleadings to explain his claims and the allegations underlying them.
Plaintiff’s complaints are centered on his self-harming behavior while
incarcerated at the Jail. (Docket #55 at 2-3). Though the allegations are vague
as to a precise time frame, Plaintiff recounts particular self-harming
incidents on October 6, November 20, and November 21, 2015. (Docket #21
at 3-5). Defendant Christopher Schmaling (“Schmaling”) is the Racine
County Sheriff, and the other defendants are Jail personnel. Plaintiff was
permitted to proceed on three claims:
Page 5 of 8
Deliberate indifference to his serious medical needs, namely
his risk of suicide, in violation of the Eighth Amendment,
against all Defendants;
Being treated differently than other similar inmates with
respect to suicide prevention, in violation of the Equal
Protection Clause of the Fourteenth Amendment, against all
A claim leveled against Schmaling in his official capacity
regarding policies and practices at the Jail which contributed
to Plaintiff’s self-harming behavior, including poorly
designed cells, inadequate searches for potential weapons,
and housing other inmates near Plaintiff who goaded him
(Docket #55 at 3-4).
Defendants’ motion supplies the remaining material facts. Plaintiff
was housed in the Jail from August 19, 2015 until June 29, 2016. During that
time, he did not file a grievance consistent with the above-described
procedures for any of the claims alleged in this lawsuit. In his discovery
responses, Plaintiff admitted as much with respect to the October 6, 2015
incident and his Equal Protection claim. However, Plaintiff’s discovery
responses assert that he did file grievances related to the November 20 and
21, 2015 incidents and the circumstances surrounding those incidents. He
produced documents which he identified as those grievances, dated
November 25, 2015.
There are a number of problems with those documents, though.
They are not on the “Inmate Request” form, and they lack required
information such as Plaintiff’s housing assignment. The November 25
Page 6 of 8
grievances were never received by Jail staff, as evidenced by the lack of a
receiving officer’s initials, badge number, and date. According to Jail rules,
Plaintiff could not appeal those grievances because they were not properly
Defendants also question the date of the grievances. Plaintiff was
either in an emergency restraint chair or on suicide watch for the entirety
of November 25, 2015. Suicidal inmates are checked on approximately
every fifteen minutes. At each interval, the observing guard logs the
inmate’s activities and condition. The activity log from November 25, 2015
does not reflect that Plaintiff was ever observed writing out grievances or
giving them to Jail staff.
Plaintiff admits that he never attempted to grieve his second claim.
As to the first and third, it appears that Plaintiff’s November 25 grievances
are fabricated. They are not on the proper form, lack required information,
and do not bear evidence of receipt by Jail staff. For these reasons, the
November 25 grievances were not appealable. Finally, on the date the
grievances were allegedly drafted, Plaintiff was never seen writing them or
handing them to a guard. Regardless of the authenticity of the November
25 grievances, it is undisputed that the Jail never received them.
Necessarily, then, Plaintiff could not have appealed them to complete the
Jail’s grievance process. Plaintiff thus failed to exhaust his administrative
remedies in accordance with Jail procedures. Pursuant to the PLRA, this
requires dismissal of his lawsuit.
On the undisputed facts presented, Plaintiff failed to exhaust his
administrative remedies. Defendants’ motion must, therefore, be granted,
Page 7 of 8
and this action dismissed without prejudice.3 Plaintiff’s October 12, 2017
motion for sanctions, (Docket #107), and his November 20, 2017 motion to
dismiss, (Docket #126), will be denied as moot.
IT IS ORDERED that Plaintiff’s motions for sanctions (Docket #107)
and to dismiss (Docket #126) be and the same are hereby DENIED as moot;
IT IS FURTHER ORDERED that Plaintiff’s motion for summary
judgment (Docket #110) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Defendants’ motion for summary
judgment (Docket #101) 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 22nd day of November, 2017.
BY THE COURT:
J. P. Stadtmueller
U.S. District Judge
Although it appears certain that Plaintiff will not be able to complete the
grievance process for his claims at this late date, dismissals for failure to exhaust
administrative remedies are always without prejudice. Ford, 362 F.3d at 401.
Page 8 of 8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?