Pietila v. Tritt et al
ORDER signed by Judge J.P. Stadtmueller on 6/13/2018: GRANTING 20 Defendant's Motion for Summary Judgment; DENYING as moot 24 Plaintiff's Motion for Default Summary Judgment; DENYING as moot 25 Defendant's Motion to Stay Discovery; and DISMISSING CASE without prejudice for Plaintiff's failure to exhaust his administrative remedies. (cc: all counsel, via mail to Michael Scott Pietila at Waupun Correctional Institution) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL SCOTT PIETILA,
Case No. 17-CV-1586-JPS
CAPTAIN KYLE TRITT,
MICHAEL SCOTT PIETILA,
Case No. 17-CV-1587-JPS
JEREMY WESTRA, GRANT ROPER,
BRIAN SCHMIDT, ANN YORK,
JACOB ARONSON, and MICHAEL
Plaintiff filed both of these actions on November 13, 2017. In Pietila
v. Tritt, Plaintiff was allowed to proceed on a claim under the Eighth
Amendment against Captain Kyle Tritt, a correctional officer at Waupun
Correctional Institution, for depriving Plaintiff of various necessities. Pietila
v. Tritt, 17-CV-1586-JPS (“Pietila I”), (Docket #14). In Pietila v. Westra, the
Court permitted Plaintiff to present a claim of excessive force, also a
violation of his Eighth Amendment rights, against Jeremy Westra, Grant
Roper, Brian Schmidt, Ann York, Jacob Aronson, and Michael Clark, all
members of Waupun’s security staff. Pietila v. Westra et al., 17-CV-1587-JPS
(“Pietila II”), (Docket #10).
In early May 2018, Defendants moved for summary judgment in
both cases on the basis of Plaintiff’s failure to exhaust his administrative
remedies as required by the Prison Litigation Reform Act (“PLRA”). Pietila
I, (Docket #20); Pietila II, (Docket #19). Plaintiff has filed a number of
documents in each case since that time, some of which are responsive to the
motions, but none of which are terribly coherent. In any event, his time in
which to respond to Defendants’ motions has now expired. For the reasons
explained below, Defendants’ motions must be granted.
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); 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 facts relevant to each motion are undisputed because Plaintiff
failed to dispute them. In the Court’s scheduling orders, entered in March
2018, Plaintiff was warned about the requirements for opposing a motion
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for summary judgment. Pietila I, (Docket #18 at 3); Pietila II, (Docket #14 at
3). Accompanying those orders 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’ motions for summary judgment, they too warned Plaintiff
about the requirements for his responses as set forth in Federal and Local
Rules 56. Pietila I, (Docket #20 at 1–2); Pietila II, (Docket #19 at 1–2). He was
provided with additional copies of those rules along with Defendants’
motions. Pietila I, (Docket #20 at 3–11); Pietila II, (Docket #19 at 3–11).
In neither case did Plaintiff file a response to a statement of facts or
any evidence of his own. Rather, as mentioned above, Plaintiff submitted a
series of documents, only some of which appear responsive to the motions
for summary judgment. See Pietila I, (Docket #24) (styled a “motion for
default summary judgment,” but arguably a brief in response to the
summary judgment motion), (Docket #27) (response to a motion to stay
filed by defendant); Pietila II, (Docket #23) (brief styled a “reply” to the
summary judgment motion), (Docket #26) (reply to a prior motion filed by
Plaintiff). Even those documents which seem responsive make no attempt
to dispute Defendants’ factual contentions. Pietila I, (Docket #24); Pietila II,
One wrinkle remains, however. In Pietila I, the motion materials also
included a statement of facts, as required by Local Rule 56. Pietila I, (Docket
#22); Civ. L. R. 56(b)(1)(B). Such a statement is absent in Pietila II. The Court
will, nevertheless, excuse Defendants’ noncompliance with the Local Rules
in this instance. The only evidence relied upon in Pietila II is a three-page
affidavit, a three-page printout of Plaintiff’s complaint-filing history, and a
copy of Wisconsin’s statewide procedures for filing inmate complaints.
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Pietila II, (Docket #21, #21-1, and #22). Plaintiff’s submissions included no
evidence at all, suggesting that he has none to oppose that of Defendants.
Further, he did not object to their noncompliance with the Local Rules or
argue that their presentation of the facts was erroneous. See id. (Docket
Despite being twice warned of the strictures of summary judgment
procedure in each case, Plaintiff ignored those rules by failing to properly
dispute Defendants’ proffered evidence with his own 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’
assertions of fact 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 will be 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
Defendants’ procedural foible was saved only by the exceedingly simple
nature of their motion and the relevant evidence. The Court expects strict
compliance with the applicable rules in all future filings in this action and any
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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).
Several important policy goals animate the exhaustion requirement,
including restricting frivolous claims, giving prison officials the
opportunity to address issues internally, giving the parties the opportunity
to develop the factual record, and reducing the scope of litigation. Smith,
255 F.3d at 450–51.
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 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,
the inmate must file an offender complaint with the Institution Complaint
Examiner (“ICE”) within fourteen days of the events giving rise to the
complaint. Id. §§ DOC 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. §§ DOC 310.08, 310.09(4), 310.11(5). If the complaint is
rejected, the inmate may appeal the rejection to the appropriate reviewing
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authority. Id. § DOC 310.11(6).2 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. §§ DOC 310.07(2), 310.11. The
reviewing authority may accept or reject the ICE’s recommendation. Id. §
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. §§ DOC 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. §§ DOC 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 inmate’s
administrative remedies are exhausted. Id. §§ DOC 310.07(7), 310.14.
To review, in Pietila I, Plaintiff complains that he was intentionally
denied access to clothes, a mattress, toilet paper, and other hygiene items.
Pietila I, (Docket #14 at 6). This went on for about a month in April and May,
2017, while Plaintiff was in punitive segregation. Id. In Pietila II, Plaintiff
alleges that the defendants physically and sexually assaulted him on April
1, 2017. Pietila II, (Docket #10 at 4–5, 7). Plaintiff has filed dozens of inmate
complaints during his time in custody, but according to Tonia Moon, the
ICE at Waupun, none concern the events of either of these cases. See Pietila
I, (Docket #23 and #23-1); Pietila II, (Docket #21 and #21-1).
The ICRS defines a “reviewing authority” as “the warden, bureau director,
administrator or designee who is authorized to review and decide an inmate
complaint.” Wis. Admin. Code § DOC 310.03(2).
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Defendants’ submissions demonstrate that Plaintiff has failed to
exhaust his administrative remedies. He never filed an inmate complaint as
to his allegations in either case, much less carried such complaints through
the entire ICRS process. Plaintiff responds to Defendants’ motions in the
same way. He claims that he could not file inmate complaints around the
time of the alleged misconduct because he was severely mentally disturbed.
Pietila I, (Docket #24); Pietila II, (Docket #23). However, the ICRS provides
that an ICE may accept a complaint filed after the fourteen-day deadline
upon a showing of good cause. Wis. Admin. Code § DOC 310.07(2). Plaintiff
could have filed inmate complaints as soon as he regained his mental
faculties, asking that his tardiness be excused. Plaintiff’s failure to even
attempt to proceed through this route means that he has not exhausted his
Plaintiff failed to contest the evidence Defendants proffered.
Viewing the undisputed facts in the light most favorable to Plaintiff, the
Court is obliged to conclude that these lawsuits must be dismissed because
he failed to properly exhaust his administrative remedies. Both actions will,
therefore, be dismissed without prejudice.4 The various other motions
Had he filed a late complaint, which was then rejected on those grounds,
Plaintiff’s case might present an interesting question on what it means for
administrative remedies to be “available.” On the facts presented, however, the
question is of no moment.
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.
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pending in both cases will all be denied as moot. Pietila I, (Docket #24 and
#25); Pietila II, (Docket #18).
IT IS ORDERED that Defendant Captain Kyle Tritt’s motion for
summary judgment Pietila I, (Docket #20), be and the same is hereby
IT IS FURTHER ORDERED that Defendants Jeremy Westra, Grant
Roper, Brian Schmidt, Ann York, Jacob Aronson, and Michael Clark’s
motion for summary judgment, Pietila II, (Docket #19), be and the same is
IT IS FURTHER ORDERED that Plaintiff’s motions for default
summary judgment, Pietila I, (Docket #24), and for default judgment, Pietila
II, (Docket #18), and Defendant Captain Kyle Tritt’s motion to stay
discovery, Pietila I, (Docket #25) be and the same are hereby DENIED as
IT IS FURTHER ORDERED that both Pietila v. Tritt, 17-CV-1586JPS and Pietila v. Westra, 17-CV-1587-JPS be and the same are hereby
DISMISSED without prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 13th day of June, 2018.
BY THE COURT:
J. P. Stadtmueller
U.S. District Judge
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