Braithwaite v. Billie et al

Filing 54

ORDER signed by Judge Pamela Pepper on 9/16/2019. 51 Plaintiff's motion to alter/amend judgment GRANTED; case REOPENED. Parties may file renewed merits-based motions for summary judgment within 10 days. (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 GRANTING PLAINTIFF’S MOTION TO ALTER OR AMEND
JUDGMENT (DKT. NO. 51) AND REOPENING CASE
______________________________________________________________________________
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. On July 16, 2018, the court granted the
defendants’ motion for summary judgment for failure to exhaust administrative
remedies and dismissed the case without prejudice. Dkt. No. 49. The court
entered judgment on the same day. On July 27, 2018, the plaintiff filed a
motion to alter or amend judgment. Dkt. No. 51. The court will grant the
plaintiff’s motion and reopen the case.
The court concluded that the plaintiff failed to 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
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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 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).
Dkt. No. 49 at 11-12.
In his motion to alter or amend judgment, the plaintiff contends that the
court erred when it granted the defendants’ motion for summary judgment on
exhaustion grounds to the extent that it based its decision on the fact that “the
plaintiff should have included a copy of his correspondence to Tritt, as
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directed.” Dkt. No. 51 at 2. The plaintiff states that Sergeant Tritt did not
return the letter the plaintiff sent him and that the plaintiff “was never directed
to keep a copy of the letter he sent to Tritt[.]” Id. at 3. According to the plaintiff,
he cannot be punished for failing to make copies when no one told him he had
to. Id. at 4. The plaintiff states that he did all he could do under the
circumstances: he resubmitted his original complaint “informing staff that he
had waited way over a reasonable amount of time for Tritt’s response and that
he has not heard back (with the original document) from Tritt.” Id. at 5. (The
defendants did not file a response to the plaintiff’s alter or amend judgment.)
“Rule 59(e) allows a court to alter or amend a judgment only if the
petitioner can demonstrate a manifest error of law or present newly discovered
evidence.” Obriecht v. Raemisch, 517 F.3d 489, 494 (7th Cir. 2008) (citing
Sigsworth v. City of Aurora, 487 F.3d 506, 511-12 (7th Cir. 2007)). “Motions
under Rule 59(e) cannot be used to present evidence that could have been
presented before judgment was entered.” Id. “A ‘manifest error’ is not
demonstrated by the disappointment of the losing party. It is the ‘wholesale
disregard, misapplication, or failure to recognize controlling precedent.’” Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citations
omitted).
The record reveals that the institution complaint examiner returned the
plaintiff’s initial inmate complaint to him with instructions stating that the
plaintiff could re-submit his complaint after he took the following actions: 1)
inform Sergeant Tritt that the plaintiff was instructed to contact Tritt by the
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Inmate Complaint Department regarding the issues presented in the inmate
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 that he is resubmitting
the complaint for review using the original complaint form. See Dkt. No. 49 at
5. At summary judgment, the plaintiff allegedly followed these directions
because he tried to contact Tritt and, when he didn’t receive a response, he
resubmitted his original complaint. See id.
In its summary judgment order, the court faulted the plaintiff for failing
to include a copy of his correspondence to Tritt. Id. at 12. The court did this
because when the plaintiff appealed the dismissal of his complaint to the
corrections complaint examiner, the plaintiff stated that he had evidence that
he had written Tritt but that he “would not be sending because I will be using
that in my lawsuit, when this is over with.” See id. at 7. The court assumed
that this meant that the plaintiff had a copy of his correspondence to Tritt and
that he refused to submit it. Based on the plaintiff’s motion to reconsider, the
court agrees that it erred in assuming that the evidence the plaintiff had was a
copy of the letter to Tritt.
Whatever evidence the plaintiff had is not relevant to the determination
of whether the plaintiff exhausted his administrative remedies, because he
followed the institution complaint examiner’s instructions when he resubmitted
his inmate complaint after trying to contact Tritt. The institution complaint
examiner instructed the plaintiff to submit any correspondence to and/or from
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Tritt along with the resubmitted inmate complaint, but the plaintiff did not
have any correspondence to submit. The corrections complaint examiner later
faulted the plaintiff for failing to follow the institution complaint examiner’s
instructions when using the complaint system and, on appeal, for failing to
follow the rules by submitting evidence that could be relevant to supporting
that the institution improperly dismissed his inmate complaint. The court
cannot locate a rule that requires the plaintiff to submit evidence relevant to
supporting his appeal.
Prisoners cannot be expected to exhaust administrative remedies that
are “unavailable.” See Ross v. Blake, 136 S. Ct. 1850, 1859-60 (2016). “Prison
officials may not take unfair advantage of the exhaustion requirement,
however, and a remedy becomes ‘unavailable’ if prison officials do not respond
to a properly filed grievance or other use affirmative misconduct to prevent a
prisoner from exhausting.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006)
(citing Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002)); see also Dale v.
Lappin, 376 F.3d 652, 656 (7th Cir. 2004).
The court erred when it concluded that the plaintiff failed to exhaust his
administrative remedies. Rather, the court should have concluded that the
plaintiff exhausted because he did everything that institution staff instructed
him to do. Dole, 438 F.3d at 811 (inmate exhausted because he properly
followed procedure, and inmate complaint was unresolved “through no
apparent fault of his own”). The court will grant the plaintiff’s motion for
reconsideration.
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The parties previously had filed cross-motions for summary judgment on
the merits of the plaintiff’s claims. Dkt. Nos. 28, 32. The court did not address
these motions because it granted the defendants’ summary judgment motion
on exhaustion grounds. Having determined that the plaintiff did exhaust his
available administrative remedies and that the court should not have dismissed
this case, either or both parties may renew their merits-based summary
judgment motions within ten days of the date of this order. The parties need
not refile all the summary judgment materials that they previously filed; they
may simply file a single-page “renewed motion for summary judgment” that
references the prior materials.
The court GRANTS the plaintiff’s motion to alter or amend judgment.
Dkt. No. 51.
The ORDERS that the parties may file renewed motions for summary
judgment, as described above, within ten days of the date of this order.
Dated at Milwaukee, Wisconsin this 16th day of September, 2019.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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