Fleischman v. State of Wisconsin et al

Filing 67

ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 4/30/2020. 55 Defendants' motion for summary judgment GRANTED. Case DISMISSED for plaintiff's failure to exhaust administrative remedies. (cc: all counsel, via mail to Christopher Fleischman at Racine Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
CHRISTOPHER J. FLEISCHMAN,
Plaintiff,
v.

Case No. 17-cv-1607-pp

ANDREW BAUER, et al.,
Defendants.
______________________________________________________________________________
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 55)
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, is
proceeding on claims against the defendants based on his allegations that they
failed to protect him from other inmates who were harassing, taunting and
threatening him. Dkt. No. 18 at 6. The defendants have moved for summary
judgment, asserting that the plaintiff failed to exhaust the available
administrative remedies before he filed this case. Dkt. No. 55. The court will
grant the motion and dismiss this case.
I.

RELEVANT FACTS
The plaintiff was incarcerated at the Winnebago County Jail from June

13, 2016 until April 17, 2017. Dkt. No. 57 at ¶7.
In his second amended complaint, the plaintiff alleged that while at the
jail, he was “taunted, threatened, and discriminated against for the crime” he
committed. Dkt. No. 17 at 1. He asserted that inmates looked up his crime,
sang songs about it and threatened him (including threatening to kill him and
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his family), and that although he told the jail staff about these taunts and
threats, the jail staff did nothing. Id. at 1-2. He asserted that he has suffered
depression, insomnia, crying spells and suicidal thoughts as a result. Id. at 2.
After booking the plaintiff into the jail, staff provided him with a copy of
the jail’s handbook and rules and regulations. Dkt. No. 57 at ¶¶8, 12. The
plaintiff acknowledged receiving the handbook and rules and regulation by
signing a notification form. Id. at ¶9; Dkt. No. 63 at ¶2; Dkt. No. 58-1.
The inmate handbook sets forth the procedure for filing an inmate
grievance. Dkt. No. 57 at ¶12. On a jail-provided form, an inmate must file
written grievances about any concerns he has about the conditions of his
confinement, including any abuse or harassment. Id. at ¶¶10-14. The
handbook requires an inmate to direct the grievance form to a “shift supervisor
within seven days of the incident or event that is the basis for [the] grievance.”
Dkt. No. 58-2 at 2. The handbook instructs an inmate to “inform the jail staff if
the grievance is an emergency concerning a threat to health or welfare so they
can notify the shift supervisor immediately.” Id. The defendants state that there
is no record of the plaintiff filing a grievance about the conditions of his
confinement while he was at the jail; in fact, the plaintiff indicates that he does
not recall filing any grievance while he was at the jail. Dkt. No. 57 at ¶¶25-30;
Dkt. No. 53 at 3, answer to request no. 2.
The rules also permit an inmate to request a review of his classification
and placement within the jail. Dkt. No. 57 at ¶15. Whether the jail modifies an
inmate’s classification is based on the inmate’s behavior, the availability of
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other placement options and the information the inmate provides about why he
is requesting the change. Id. at ¶17. To request a classification review, an
inmate must submit a written “Review of Classification Request” form. Id. at
¶18. Requesting a classification review is not a substitute for filing a grievance,
but an inmate can file a grievance about his request for a classification review
being denied. Id. at ¶20.
The plaintiff filed Review of Classification Requests on August 6, 2016,
and August 9, 2016. Dkt. No. 57 at ¶21. In his first review request, the plaintiff
stated, “I feel more comfortable in B200 Pod and I feel more secure.” Dkt. No.
63-1 at 1. In his second review request, he stated, “I feel more comfortable in
B200 Pod, I feel more secure, I prefer the privacy of a cell.” Id. at 2. The
classification review officer denied both requests, finding that the plaintiff’s
placement in the jail was appropriate. Dkt. No. 57 at ¶22. There is no record of
the plaintiff filing a grievance about his request for a classification review being
denied. See id. at ¶¶25-30.
II.

DISCUSSION
1.

Legal Standard

The Prison Litigation Reform Act (“PLRA”) provides in part that “[n]o
action shall be brought with respect to prison conditions under § 1983. . . by a
prisoner. . . until such administrative remedies as are available are exhausted.”
42 U.S.C §1997e(a). “Requiring exhaustion allows prison officials an
opportunity to resolve disputes concerning the exercise of their responsibilities
before being haled into court,” and it produces a “useful administrative record”
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for the district court to rely on. Jones v. Bock, 549 U.S. 199, 204 (2007) (citing
Woodford v. Ngo, 548 U.S. 81, 94-95 (2006)). Requiring exhaustion also
promotes efficiency because agencies generally resolve claims much faster than
federal courts. Woodford, 548 U.S. at 89. A district court “lacks discretion to
resolve the claim on the merits” if the prisoner fails to properly exhaust
administrative remedies before he initiates his case. Perez v. Wis. Dep’t of
Corr., 182 F.3d 532, 535 (7th Cir. 1999).
The Seventh Circuit “has taken a strict compliance approach to
exhaustion.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). A prisoner
must “properly use the prison’s grievance process” prior to filing a case in
federal court. Id. “[A] prisoner must file complaints and appeals in the place,
and at the time, the prison’s administrative rules require.” Pozo v. McCaughtry,
286 F.3d 1022, 1025 (7th Cir. 2002). “[I]t is the prison’s requirements . . . that
define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. at 218.
2.

Analysis

The defendants have asserted that the plaintiff did not file any grievances
while he was incarcerated at the jail. The plaintiff does not dispute this
assertion; instead, he states that he was “too distraught and distressed during
his incarceration” to file a grievance. Dkt. No. 63 at ¶2. The fact that the
plaintiff was distraught does not relieve him of the obligation to exhaust his
remedies. The plaintiff has not argued that there were no grievance procedures
available to him. He has not argued that he was physically incapable of
accessing the grievance procedures or blocked from doing so. He asserts only
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that he was upset during the time he would have had to file a grievance.
Because the plaintiff failed to exhaust the administrative remedies before he
initiated this case, the court does not have the authority to decide his claim on
the merits. The court will grant the defendants’ motion and dismiss this case.
III.

CONCLUSON
The court GRANTS the defendants’ motion for summary judgment. Dkt.

No. 55.
The court ORDERS that this case is DISMISSED WITHOUT PREJUDICE
and will enter judgment accordingly.
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 Federal Rule of Appellate Procedure 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 Federal
Rule of Appellate Procedure 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 Federal Rule of Civil
Procedure 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
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entry of the judgment. The court cannot extend this deadline. See Federal Rule
of Civil Procedure 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 30th day of April, 2020.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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