Braithwaite v. Billie et al

Filing 49

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 7/16/2018. 28 Plaintiff's MOTION for Summary Judgment DENIED. 32 Defendants' MOTION for Summary Judgment GRANTED. Case DISMISSED without prejudice for failure to exhaust administrative remedies. (cc: all counsel, via mail to Joshua Braithwaite at Wisconsin Secure Program Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JOSHUA P. BRAITHWAITE,
Plaintiff,
v.

Case No. 17-cv-706-pp

MITCHELL BILLE, GERRAD KIBBEL,
RYAN HINTZ, CO KEVIN BENSON,
and ADAM MARTIN,
Defendants.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DKT.
NO. 28), GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES (DKT. NO. 32),
AND DISMISSING CASE WITHOUT PREJUDICE
______________________________________________________________________________
Plaintiff Joshua Braithwaite is a Wisconsin state prisoner representing
himself. He filed this lawsuit, alleging that the defendants failed to prevent him
from harming himself, in violation of the Eighth Amendment to the United
States Constitution. Dkt. No. 1. The parties have filed cross-motions for
summary judgment. Dkt. Nos. 28, 32. The court will deny the plaintiff’s motion
for summary judgment, grant the defendants’ motion for summary judgment
and dismiss the case without prejudice, because the plaintiff failed to exhaust
his administrative remedies.

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I.

MOTIONS FOR SUMMARY JUDGMENT (Dkt. Nos. 28, 32)
A.

Facts1

On April 18, 2016, the plaintiff was an inmate housed at the Waupun
Correctional Institution (Waupun), in the B-range cellblock of the restrictive
housing unit, cell B-106. Dkt. No. 47 at ¶1. The defendants were employed at
Waupun: Ryan Hintz was a correctional sergeant, and Mitchell Bille, Kevin
Benson, Gerrad Kibbel and Adam Martin were correctional officers working the
restrictive housing unit. Id. at ¶2.
1. The April 18 Incident
The parties dispute some of the events that form the basis of the
plaintiff’s claim. They first dispute whether, on the morning of April 18, 2016,
the plaintiff asked Officers Kibbel and Bille for help because he was feeling
suicidal. According to the plaintiff, on that morning he told Officer Kibbel that
he was going to harm himself and that he needed to see Psychological Services
Unit (PSU) staff as soon as possible. Dkt. No. 35 at ¶1. Kibbel allegedly
responded that he would be right back. Id. The plaintiff avers that about an
hour later, he told Officer Bille that he was having a mental breakdown, was
going to cut his wrist and needed to see PSU for help. Id. at ¶2. The plaintiff
also alleges that when Officers Bille and Kibbel delivered his lunch tray, he
asked them why they had not “got anyone to see me regarding my request to

This section is taken from the defendants’ response to plaintiff’s proposed
findings of fact, dkt. no. 35, and the defendants’ reply to plaintiff’s response to
defendants’ proposed findings of fact, dkt. no. 47.
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see PSU because I was feeling suicidal and they both just kept walking.” Id. at
¶3.
The defendants do not agree with these proposed facts. According to the
defendants, Officer Kibbel does not recall the plaintiff asking to see PSU staff
and/or making statements of being suicidal to him that day. Id. at ¶1.
Likewise, Officer Bille does not recall the plaintiff asking to see PSU staff
and/or making statements that he wanted to harm himself. Id. at ¶2. The
defendants also dispute the plaintiff’s assertion that he asked Bille and Kibbel
why they had not gotten help for him when they delivered his lunch tray. Id.
The parties do not dispute that the plaintiff used the intercom system in
his cell to contact the control center and ask for help. Id. at ¶4. Between 10:51
a.m. and 11:10 a.m., Officer Martin received three calls on the intercom
regarding the plaintiff. Dkt. No. 47 at ¶15. In the first call, the plaintiff said he
was suicidal. Id. at ¶16. Officer Martin notified Sergeant Hintz of the plaintiff’s
statements.2 Id. In the second call, an inmate housed near the plaintiff
reported that “B106 is suicidal.” Id. at ¶17. The plaintiff was in cell B106. Id.
Officer Martin notified Sergeant Hintz about the call. Id. at ¶18. In the third
call, the plaintiff stated that he was cutting himself. Id. at ¶19. Officer Martin
notified Sergeant Hintz of the plaintiff’s statement. Id.
In his response to the defendants’ proposed findings, the plaintiff does not
dispute that Officer Martin answered all three calls. Dkt. No. 47 ¶15. But in his
own proposed findings of fact, the plaintiff asserts that Officer Benson received
one of the calls. Dkt. No. 35 at ¶¶4,5. The defendants dispute that Benson
received any calls from the plaintiff. Id. According to the defendants, Officer
Benson was not in the control center at the time; he allegedly left at 10:35 a.m.
to help in another part of the institution. Dkt. No. 47 at ¶6.
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About ten minutes after the third call, Sergeant Hintz and Officer Bille
arrived at the plaintiff’s cell door. Dkt No. 35 at ¶8. The plaintiff states that
when they arrived, he was cutting his arm with a sharpened pen insert, but the
defendants dispute that he was cutting himself, or that there was any serious
injury, when they arrived. Id. Officer Bille stated, “man I thought you where
[sic] playing.” Id. ¶9. They removed the plaintiff from his cell. Id.
Sergeant Hintz had the plaintiff placed in the strip search cell, and Dr.
Van Buren, a psychologist at Waupun, saw him. Dkt. No. 47 at ¶26. Dr. Van
Buren placed the plaintiff on observation status. Id. at ¶27.
Later that same day, Nurse Gunderson saw the plaintiff in the strip
search cell for his claim that he cut himself. Id. at ¶28. Nurse Gunderson noted
that the plaintiff had a superficial abrasion on his left arm measuring about 1
centimeter x 0.2 centimeter. Id. at ¶29. The plaintiff “disagrees” with the size of
the measurement, and states that he thinks it was bigger than that. Id.
According to the plaintiff’s medical records, there was no active bleeding or
signs/symptoms of infection. Id. at ¶30. The abrasion was cleaned and covered
with a bandage so the skin was protected from possible infection. Id. The nurse
noted in the medical records that no follow-up appointment was needed and
that the plaintiff could remove the bandage in two days. Id. at ¶31.
2.

The Plaintiff’s Offender Complaint

On April 25, 2016, the plaintiff submitted offender complaint WCI-201610078, alleging that on April 18, security staff failed to protect him after he
made threats of self-harm if he was not removed from his cell. Id. at ¶32. The
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plaintiff claimed he then cut his wrist with a pen. Id. Institution Complaint
Examiner Nelson returned this complaint to the plaintiff the same day,
directing him to attempt to resolve the issue by contacting Lieutenant Tritt in
the security department. Id. at ¶33. Nelson informed the plaintiff that this was
a “return,” not a rejection, and that he could re-submit his complaint after he
took the following actions: 1) inform Tritt that he was instructed to contact Tritt
by the Inmate Complaint Department regarding the issues presented in the
complaint; 2) re-submit the complaint if he felt staff did not address his issue
to his satisfaction, including any correspondence to and/or from Tritt with the
resubmission; and 3) inform the Complaint Department he is resubmitting the
complaint for review using the original complaint form. Id. at ¶34.
The plaintiff re-submitted offender complaint WCI-2016-10078 on May
17, alleging that he had “waited a way over a reasonable amount of time and I
have not heard back from the parties you request for me to contact.” Id. at ¶35.
The plaintiff did not include any documentation/correspondence with his
resubmission showing who he tried to contact, nor did he provide any
information about when or how he tried to contact Tritt to attempt to resolve
his complaint, as he was directed to do by the complaint examiner. Id. at ¶36.
The plaintiff “disputes” this fact, stating that he wrote to Tritt and received no
response. Id.
Institution Complaint Examiner Joanne Bovee reviewed the plaintiff’s resubmitted complaint and noted that he was directed to contact Tritt to attempt
to resolve the issue in accordance to Wis. Admin. Code §DOC 310.09(4). Id. at
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¶37. Bovee contacted Tritt, and Tritt informed her that he had not received
anything from the plaintiff about the issues in his complaint. Id. at ¶38. Given
this, Bovee found that the plaintiff had failed to follow the directions of
Institution Complaint Examiner Nelson to contact Tritt. Id. at ¶39.
A directive from the institution complaint examiner to contact the
appropriate area supervisory staff is an element of the inmate complaint review
process, geared toward resolving issues in the most productive and expedient
manner, and it is one that the plaintiff opted not to follow. Id. at ¶40. While the
complaint examiner must accept complaints in which the complainant refuses
to follow the examiner’s directives, the examiner is not obligated to investigate
matters in which an inmate refuses to cooperate. Id. at ¶41. When an inmate
chooses to utilize the inmate complaint review system to resolve grievances, he
also bears the responsibility of cooperating with the examiner. Id. at ¶42.
On June 2, based on the plaintiff’s failure to cooperate with the process,
Bovee recommended that the complaint be dismissed. Id. at ¶43. Had the
plaintiff followed the directives to attempt to resolve his issue by contacting
Sergeant Tritt, Bovee would have reviewed the plaintiff’s complaint on the
merits. Id. at ¶44. Because he failed to follow those directives, Bovee did not
review or make a recommendation on the merits of the plaintiff’s. Id. at ¶45.
The reviewing authority, Warden Brian Foster, accepted Bovee’s
recommendation and dismissed WCI-2016-10078 at the institution level. Id. at
¶46.

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The plaintiff appealed this decision to the corrections complaint
examiner’s office. Id. at ¶47. On August 18, Corrections Complaint Examiner
Welcome Rose recommended dismissing the appeal, and noted that an inmate
is expected to follow the instructions of the institution complaint examiner
when using the complaint system. Id. at ¶48. On appeal, the plaintiff claimed
to have written to Tritt as directed, but refused to submit evidence of that
correspondence on appeal stating, “ . . . I would not be sending because I will
be using that in my lawsuit when this over with . . . .” Id. at ¶49. Rose further
noted that given the plaintiff’s refusal to submit evidence that could be relevant
to his claim that the institution improperly dismissed his complaint, she could
not proceed with the investigation into his claims further. Id. at ¶50. Based on
her finding that the plaintiff failed to cooperate with the institution complaint
examiner and refused to submit supporting evidence on appeal, Rose
recommended that the appeal be dismissed. Id. at ¶51. The Office of the
Secretary agreed and accepted the recommendation as the final decision of the
Secretary. Id. at ¶52.
B.

Summary Judgment Standard

“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 also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir.
2011). “Material facts” are those under the applicable substantive law that
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“might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A
dispute over “material fact” is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers,
or other materials; or
(B) showing that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
C.

Discussion
1.

The Parties’ Arguments

The plaintiff contends that he is entitled to summary judgment on his
deliberate indifference claim that the defendants refused to take him to
observation after he notified them that he wanted to harm himself. Dkt. No. 29
at 2. The defendants first respond that the plaintiff failed to exhaust his
administrative remedies because he refused to cooperate with the process,
which resulted in his inmate complaint not being addressed on the merits. Dkt.
No. 33 at 11. The defendants also contend that the plaintiff’s claim should be
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dismissed on the merits, because they did not recklessly fail to protect the
plaintiff from an objectively serious risk of harm to his future health or safety.
Id. at 16. Finally, the defendants argue that they are entitled to qualified
immunity. Id. at 24.
2.

The Exhaustion Requirement

According to the Prison Litigation Reform Act (PLRA) (which applies in
this case because the plaintiff was incarcerated when he filed his complaint),
“No action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any jail,
prison or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. §1997e(a). Various important policy goals
give rise to the rule requiring administrative exhaustion, 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).
The PLRA exhaustion requirement requires “proper exhaustion,”
meaning that a prisoner must complete the administrative review process in
accordance with the applicable procedural rules, including deadlines.
Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006); see also Pozo v. McCaughtry, 286
F.3d 1022, 1025 (7th Cir. 2002) (“To exhaust remedies, a prisoner must file
complaints and appeals in the place, and at the time, the prison’s
administrative rules require”).
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The Department of Corrections’ (DOC) Inmate Complaint Review System
provides the administrative process for inmates with complaints about prison
conditions or the actions of prison officials. Wis. Admin. Code §DOC
310.01(2)(a) (2014).3 Before an inmate can file a lawsuit, he must exhaust all
administrative remedies that the DOC has promulgated by rule. Wis. Admin.
Code §DOC 310.05. Inmates should use the Inmate Complaint Review System
to “raise significant issues regarding rules, living conditions, staff actions
affecting institution environment, and civil rights complaints.” Wis. Admin.
Code §DOC 310.08(1).
To use the Inmate Complaint Review System, an inmate must file a
complaint with the institution complaint examiner within fourteen days after
the occurrence that gives rise to the complaint. Wis. Admin. Code §§DOC
310.07(1) & 310.09(6). Prior to accepting the complaint, the institution
complaint examiner may direct the inmate to attempt to resolve the issue. Wis.
Admin. Code §DOC 310.09(4).
After reviewing and acknowledging each complaint in writing, the
institution complaint examiner either rejects the complaint or sends a
recommendation to the “appropriate reviewing authority.” Wis. Admin. Code
§§DOC 310.11(2) & 310.11(11). The appropriate reviewing authority makes a
decision within ten days following receipt of the recommendation. Wis. Admin.
Code §DOC 310.12. Within ten days after the date of the decision, a
complainant dissatisfied with a reviewing authority decision may appeal that
The court cites to the December 2014 version of Chapter DOC 310 of the
Wisconsin Administrative Code throughout this order.
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decision by filing a written request for review with the corrections complaint
examiner. Wis. Admin. Code §DOC 310.13(1). The corrections complaint
examiner reviews the appeal and makes a recommendation to the Secretary of
the DOC. Wis. Admin. Code §DOC 310.13(6). The Secretary may accept, adopt
or reject the corrections complaint examiner’s recommendation, or return the
appeal to the corrections complaint examiner for further investigation. Wis.
Admin. Code §DOC 310.14(2).
3.

The Court’s Analysis: The Plaintiff did not Exhaust his
Administrative Remedies

The plaintiff filed an inmate complaint in which he raised the issue of the
defendants’ alleged failure to help him after he notified them that he was
suicidal. The institution complaint examiner returned the inmate complaint to
the plaintiff, and directed him to try to resolve the issue with Sergeant Tritt, per
Wis. Admin. Code §DOC 310.09(4). The institution complaint examiner also
explained that the plaintiff could resubmit his complaint if he felt that staff did
not address the issue to his satisfaction with any correspondence to and/or
from Tritt with the resubmission. The plaintiff resubmitted his inmate
complaint, but he did not include any correspondence to and/or from Sergeant
Tritt, as directed. In his appeal to the corrections complaint examiner, the
plaintiff asserted that he wrote to Tritt, but that he did not receive a response;
he stated that he would not submit evidence of the correspondence. The
institution complaint examiner and the warden dismissed the plaintiff’s
complaint at the institution level for failure to follow directions, and did not

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address the complaint on the merits. The corrections complaint examiner and
the Office of the Secretary agreed with the decision on appeal.
“[U]nless the prisoner completes the administrative process by following
the rules the state has established for that process, exhaustion has not
occurred.” Pozo, 286 F.3d at 1023. To properly exhaust, the plaintiff should
have included a copy of his correspondence to Tritt, as directed. The plaintiff
acknowledges that he did not follow the directions, and he does not describe
any reason that he could not have done so. The plaintiff’s failure to follow the
rules means that he did not properly exhaust his administrative remedies. See
Woodford, 548 U.S. at 93; see also Carlton v. Dodge Corr. Inst., No. 12–cv–695–
wmc, 2014 WL 4186796, at *5 (W.D. Wis. Aug. 21, 2014) (no exhaustion where
inmate “never submitted evidence of an attempt to comply with ICE's directives
[to attempt informal resolution], as he had been repeatedly instructed to do
pursuant to the DOC's grievance procedure, before simply submitting new
complaints”) (emphasis omitted). The court will dismiss the plaintiff’s deliberate
indifference claim without prejudice, for failure to exhaust administrative
remedies. See Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004).
II.

CONCLUSION
The court DENIES the plaintiff’s motion for summary judgment. Dkt. No.

28.
The court GRANTS the defendants’ motion for summary judgment for
failure to exhaust administrative remedies. Dkt. No. 32.

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The court ORDERS that this case is DISMISSED WITHOUT
PREJUDICE.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
See Fed. R. of App. P. 3, 4. This court may extend this deadline if a party timely
requests an extension and shows good cause or excusable neglect for not being
able to meet the 30-day deadline. See Fed. R. App. P. 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Fed. R. Civ P. 6(b)(2).
Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a
reasonable time, generally no more than one year after the entry of the
judgment. The court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 16th day of July, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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