Poventud v. Saldaris et al

Filing 48

ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that Poventud's motion for copies of docket entries 17 , 22 , and 23 (Docket # 42 ) is GRANTED. Copies will be enclosed with this order. IT IS FURTHER ORDERED that Poventud 9;s motion for summary judgment (Docket # 45 ) is DENIED without prejudice. Poventud has until March 23, 2020, to file a new motion for summary judgment that complies with the Civil L.R. 56. Saldaris may also move for summary judgment if s he chooses to do so. IT IS ALSO ORDERED that defendant Mink's motion for summary judgment (Docket # 26 ) is GRANTED on the grounds that Poventud failed to exhaust his claim against her. IT IS FURTHER ORDERED that Poventud's claim against Mink is DISMISSED without prejudice. (cc: all counsel, via US Mail to Plaintiff w/ECF entries 17, 22, and 23. Via US Mail to Defendant Saldaris) (ds)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ELIEZER A. POVENTUD,
Plaintiff,
v.

Case No. 18-CV-532

GAYLE S. SALDARIS and
ANGELA MINK,
Defendants.
DECISION AND ORDER
Eliezer A. Poventud is a Wisconsin state prisoner representing himself in this 42
U.S.C. § 1983 action. The Honorable Pamela Pepper, the judge to whom this case was
previously assigned, screened Poventud’s complaint and allowed him to proceed against
defendant Gayle S. Saldaris for violating his Eighth Amendment rights by allegedly sexually
assaulting him and against Angela Mink, also for violating his Eighth Amendment rights,
by allegedly failing to provide him psychological care. Mink is represented by the Wisconsin
Department of Justice and Saldaris is representing herself. Mink has moved for summary
judgment, arguing that Poventud failed to exhaust his administrative remedies before filing
a lawsuit against her. Poventud also filed a motion for summary judgment as well as a
motion asking for copies of some documents. I will grant Mink’s motion for summary
judgment, deny without prejudice Poventud’s motion for summary judgment, and grant his
motion for copies.

1.

Motion for Copies of Documents

Poventud moves for copies of documents defendant Saldaris filed with the court,
specifically docket numbers 17, 22, and 23. He explains that, upon receiving a copy of the
docket, he realized he did not receive these filings. I will grant his motion and include copies
of those documents with this order. I remind Saldaris that she is required to serve Poventud
with any documents she files with the court.
2.

Poventud’s Motion for Summary Judgment

Poventud also filed a motion for summary judgment as to “Defendant Gayle
Saldaris.” (Docket # 45.) However, Poventud failed to comply with Civil L.R. 56 because
he failed to file any proposed findings of fact in support of his motion. For that reason, I will
deny the motion without prejudice. Civil L.R. 56(b)(1)(C)(iii) (“failure to submit [a
statement of proposed material facts] constitutes grounds for denial of the motion”).
Because both Poventud and Saldaris are unrepresented, I will afford Poventud another
opportunity to file a motion for summary judgment. Poventud has until March 23, 2020 to
file a new motion for summary judgment that complies with the Civil L.R. 56. Saldaris may
also move for summary judgment if she chooses to do so.
If either party chooses to file for summary judgment, they must file (1) a motion; (2)
a memorandum of law (a brief arguing why they believe they are entitled to summary
judgment); (3) a statement of proposed material facts, which should consist of short,
numbered paragraphs, including citations to evidentiary support (that is, citations to the
record or an unsworn declaration pursuant to 28 U.S.C. §17461); and (4) any materials or
declarations cited to in the proposed findings of fact. The responding party should be sure to
Such a declaration should conclude with the following: “I declare under penalty of perjury that the foregoing
is true and correct. Executed on [date]. [Signature].” 28 U.S.C. §1746(2).
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file the required materials in response within 30 days of the date the motion was filed. Civil
L.R. 56(b)(2). The responding party must file a response brief and respond to each proposed
finding of fact. To support their responses, they can also cite to the record and/or an
unsworn declaration. Both parties should be advised that failure to respond to any proposed
finding of fact means that I will take it as true for purposes of deciding the motion for
summary judgment. Civil L.R. 56(4). Along with this order, I will include copies of Federal
Rule of Civil Procedure 56 and Civil Local Rule 56.
3. Mink’s Motion for Summary Judgment
Mink moves for summary judgment on the ground that Poventud failed to exhaust
his administrative remedies because he never filed an offender complaint related to his
claims against Mink or his allegation that she failed to provide him adequate psychological
care. (Docket # 27.) Poventud responds that he was not required to exhaust using the
Inmate Complaint Review System (“ICRS”) because his claim against Mink stems from a
sexual assault and is therefore governed by the Prison Rape Elimination Act (“PREA”).
(Docket # 32.)
3.1

Relevant Facts

Under Wisconsin Admin. Code § DOC 310, the ICRS is a process by which inmates
may file grievances related to significant issues regarding rules, living conditions, and staff
actions affecting the institution environment. (Defendant Mink’s Proposed Findings of Fact
(“DPFOF”) at ¶ 1, Docket # 28.) An inmate begins the ICRS process by filing a complaint
with the Institution Complaint Examiner (“ICE”) at the institution. (DPFOF ¶ 3.) In order
for an inmate to exhaust his administrative remedies on a complaint, he must complete the
complaint and appeal process by submitting an appeal to the Correctional Complaint
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Examiner’s Office, which results in a decision by the Office of the Secretary. (DPFOF ¶ 4.)
When an inmate files an Inmate Complaint regarding a medical issue, the ICE at the
institution where the inmate is housed will investigate the inmate’s complaint by reviewing
the medical records and speaking with the institution’s Health Services Unit. Then ICE
makes a recommendation to the Reviewing Authority on the Inmate Complaint. (DPFOF ¶
5.) The Inmate Complaint is then sent to the Reviewing Authority for a decision. (DPFOF ¶
6.) When the complaint is about a medical issue, the Reviewing Authority is the Nursing
Coordinator assigned to that institution. When the complaint is about a psychological issue,
the Reviewing Authority is the Department’s Bureau of Health Services Psychology
Director. Similarly, when the complaint is about a psychiatry issue, the Reviewing
Authority is the Department’s Bureau of Health Services Psychiatry Director. (Id.)
If an inmate is dissatisfied with the Reviewing Authority’s decision, he may appeal
that decision to the Corrections Complaint Examiner. (DPFOF ¶ 7.) The Corrections
Complaint Examiner will then investigate the complaint and appeal and make a
recommendation to the Office of the Secretary for review and decision. (DPFOF ¶ 8.) The
Office of Secretary has 45 days to make a decision after receipt of the Correction Complaint
Examiner’s recommendation. (DPFOF ¶ 9.) Upon a decision from the Office of the
Secretary, the inmate has exhausted his administrative remedies. (Id.)
Poventud has not filed any complaints using the ICRS that relate to his claim in this
lawsuit that Mink failed to provide him with adequate medical (psychological) care.
(DPFOF ¶ 10.) Poventud did write to Cline in the Psychological Services Unit (not a
defendant) on November 25, 2017 and December 4, 2017 complaining that Mink and Dr.
Hoem (not a defendant) were refusing to provide him with treatment related to his “PREA
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incident.” (Plaintiff’s Supplemental Proposed Findings of Fact (“PPFOF”) at ¶ 3, Docket #
33.)
3.2

Analysis

Because Poventud was incarcerated when he filed his complaint, the Prisoner
Litigation Reform Act (“PLRA”) applies to this case. Under the PLRA, “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). According to
the Supreme Court, exhaustion of administrative remedies must be done “properly” because
“no adjudicative system can function effectively without imposing some orderly structure on
the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90–91 (2006).
To properly exhaust administrative remedies, prisoners must file their inmate
complaints and appeals in the place, at the time, and in the manner that the institution’s
administrative rules require. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Wis.
Admin. Code § DOC 310.10 outlines the procedures by which inmate complaint examiners
review and process inmate complaints.
The U.S. Supreme Court has recently confirmed that the language in § 1997e(a)
requiring prisoners to exhaust the available administrative remedies is mandatory. Ross v.
Blake, 136 S. Ct. 1850, 1856 (2016). There is only one qualifier: the remedies must be
available. Id. “But aside from that exception, the PLRA’s text suggests no limits on an
inmate’s obligation to exhaust—irrespective of any ‘special circumstances.’” Id.
Accordingly, because the requirement to exhaust is a statutory requirement, there is no

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judicial discretion to excuse an inmate’s failure to exhaust when the administrative remedies
were available to him. Id. at 1857.
Poventud did not contest the defendant’s proposed finding of fact that he did not file
any inmate complaints about his claim against Mink. As stated earlier, Poventud contends
he was not required to exhaust using the ICRS because his claim against Mink stems from a
sexual assault and is therefore governed by PREA. His argument is unavailing.
While it is true that PREA modifies the process for filing a grievance about sexual
assault (for example, it eliminates a time limit for reporting sexual assault), see 28 C.F.R. §
115.52; see also Parry v. Muller, No. 18-cv-1394-JPG, 2018 WL 4027572, *3 (S.D. Ill. Aug.
23, 2018), it does not alter the inmate complaint grievance process for other grievances.
Poventud’s claim against Mink is based on her alleged failure to provide him with
psychological care. Though he needed that care because he experienced sexual assault, his
grievance was not about sexual assault. It was about a lack of psychological care.
It does not appear that the Seventh Circuit Court of Appeals has addressed the issue
of whether a PREA complaint exhausts an inmate’s obligation to exhaust under the PLRA,
though district courts in this circuit have found that it does not. Parry, 2018 WL 4027572 at
*3 (citing Peace v. Kemper, 14-cv-1416-pp, 2016 WL 5793689, *5 (E.D. Wis. Sept. 30, 2016)
(“The plaintiff’s statements during the PREA investigat[ion] do not constitute proper
exhaustion.”); Rivera v. Correctional Officer Drake, 09-C-1182, 2014 WL 12526621, *1 (E.D.
Wis. Feb. 11, 2014) (“Thus, in his own complaint Rivera clearly indicates his understanding
of the difference between exhaustion for PLRA purposes and verbally reporting an incident
for PREA purposes. In other words, he knew from day one that he had not properly
exhausted his remedies.”); Kyles v. Beaugard, 15 C 8895, 2017 WL 4122708, *7 (N.D. Ill.
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Sep. 18, 2017) (noting that plaintiff’s argument that he need not exhaust grievances
regarding PREA issues because PREA has its own exhaustion requirement is not his best
argument and deciding the issue on other grounds). The Ninth Circuit Court of Appeals
also agrees that PREA does not excuse an inmate’s obligation to exhaust under the PLRA.
Porter v. Howard, 531 Fed. Appx. 792, 793 (9th Cir. 2013), cert. denied 571 U.S. 1076 (2013)
(“[Plaintiff] provides no support for his contention that he was excused from the
requirement that he file an administrative grievance by operation of the Prison Rape
Elimination Act of 2003.”). I agree with this analysis of the two statutes and find that even if
Poventud had included Mink in a PREA complaint, he would not have exhausted his
administrative remedies as required by the PLRA.
Poventud also offered a proposed finding of fact, based on his declaration, that he
did not file a complaint against Mink because Ellen Ray, an inmate complaint examiner,
told him that anything concerning PREA incidents are outside the scope of the ICRS so he
would have to take up any complaint against Mink with the Psychological Services Unit.
(PPFOF ¶ 4.) His assertion does not change the outcome of this motion. Poventud’s
complaints against Mink started in 2016. (Docket # 1 at ¶ 43.) What Ellen Ray supposedly
told him in 2018 does nothing to explain why he did not file an inmate complaint against
Mink before that time.2 That is, even accepting Poventud’s assertion as true, it did not make
exhaustion unavailable to him. He was not told this until years after the alleged violations
began to occur. It does not explain away two years of not filing any grievances. I also note

2
Even assuming this alleged violation is still ongoing (Poventud’s April 2018 complaint states he had still had
not been contacted by Mink), it does not change the fact that Poventud has not filed an inmate complaint
against Mink. Orders granting motions for summary judgment on exhaustion grounds dismiss the case without
prejudice in the event exhaustion is still available to the prisoner plaintiff. See Ford v. Johnson, 362 F.3d 395,
401 (7th Cir. 2004).

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that Poventud’s ICRS history shows he filed an inmate complaint on December 5, 2015
about Saldaris’ alleged sexual misconduct, demonstrating that he filed an inmate complaint
about his sexual assault using the ICRS—not just a PREA complaint.3 (Docket # 29-1.)
This undermines his assertion that he did not think he needed to file a complaint using the
ICRS against Mink.
In sum, there is no genuine issue of material fact with respect to whether Poventud
exhausted his administrative remedies. He admits he did not exhaust, and his argument that
he was not required to do so fails, as does his allegation that he was prevented from doing
so. Mink is entitled to summary judgment.
IT IS THEREFORE ORDERED that Poventud’s motion for copies of docket
entries 17, 22, and 23 (Docket # 42) is GRANTED. Copies will be enclosed with this order.
IT IS FURTHER ORDERED that Poventud’s motion for summary judgment
(Docket # 45) is DENIED without prejudice. Poventud has until March 23, 2020 to file a
new motion for summary judgment that complies with the Civil L.R. 56. Saldaris may also
move for summary judgment if she chooses to do so.
IT IS ALSO ORDERED that defendant Mink’s motion for summary judgment
(Docket # 26) is GRANTED on the grounds that Poventud failed to exhaust his claim
against her.
IT IS FURTHER ORDERED that Poventud’s claim against Mink is DISMISSED
without prejudice.

3

I note that, according to Poventud’s ICRS history, it appears he appealed this complaint to the Corrections
Complaint Examiner. (Docket # 29-1.)

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Dated at Milwaukee, Wisconsin this 4th day of March, 2020.
BY THE COURT:
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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