Lobley v. Yang et al

Filing 69

ORDER signed by Chief Judge Pamela Pepper on 9/29/2020. 47 Defendants' motion for summary judgment GRANTED as to plaintiff's retaliation claims against Cushing and Cole and first retaliation claim against Yang; DENIED as to plaintiff's second retaliation claim against Yang. Defendants Cole, Cushing DISMISSED. Discovery due by 12/31/2020; Dispositive Motions due by 1/29/2021. (cc: all counsel, via mail to Deangelo Lobley at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DEANGELO D. LOBLEY,
Plaintiff,
v.

Case No. 18-cv-812-pp

TOUKAO YANG, LT. DANIEL CUSHING,
and MICHAEL COLE,
Defendants.
______________________________________________________________________________
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT ON PLAINTIFF’S RETALIATION CLAIMS ON EXHAUSTION
GROUNDS (DKT. NO. 47)
______________________________________________________________________________
Deangelo D. Lobley, who is incarcerated at the Green Bay Correctional
Institution, filed this case alleging that the defendants violated his rights under
federal law. Dkt. No. 1. Magistrate Judge Nancy Joseph screened the amended
complaint and allowed the plaintiff to proceed on the following claims: (1) an
excessive force claim against defendant Toukao Yang; (2) a retaliation claim
against Yang based on allegations that Yang falsely accused the plaintiff of
stealing chips in retaliation for the plaintiff’s complaint to defendant Daniel
Cushing about Yang’s alleged assault on the plaintiff; (3) a retaliation claim
against Yang based on allegations that Yang engaged in a campaign of
harassment against the plaintiff in retaliation for the plaintiff’s complaints to
Lt. Cushing and for filing this case; (4) a retaliation claim against Cushing for
the allegedly falsified theft charge and placement in temporary lock-up; and (5)
a retaliation claim against defendant Michael Cole for not giving the plaintiff
1

his job or single cell back when he was released from segregation. Dkt. No. 27
at 3-4.
On November 8, 2019, the defendants filed a motion for summary
judgment on exhaustion grounds as to the plaintiff’s retaliation claims. Dkt.
No. 47. The defendants’ motion is fully briefed1 and the court will grant the
motion in part.
I.

Facts
The court includes only material, properly supported facts in this

section. See Fed. R. Civ. P. 56(c).
On April 28, 2017, the plaintiff reached into the officer’s secure
workstation at Green Bay Correctional Institution, and defendant Officer Yang
slapped his arm. Dkt. No. 63 at ¶3. The plaintiff maintains that he reached into
the officer’s secure workstation to place a pass in the wire basket that sits at
the front of the station and that Officer Yang used excessive force when he
struck the plaintiff’s arm.2 Id. at ¶4. Officer Yang maintains that the plaintiff
reached farther into the workstation than necessary to place a pass in the
The defendants’ brief in support of their summary judgment motion
references proposed findings of fact, but they did not file any proposed findings
of fact in support of their summary judgment motion. Judge Joseph directed
the defendants to file their proposed findings of fact and gave the plaintiff the
opportunity to file a supplemental response. Dkt. No. 62. The defendants filed
the proposed findings of fact, dkt. no. 63, the plaintiff filed a supplemental
response, dkt. no. 66, the defendants filed a supplemental reply, dkt. no. 67,
and the plaintiff filed a response to the plaintiff’s proposed findings of fact, dkt.
no. 68.
1

In the amended complaint, the plaintiff alleges that Yang “slammed Plaintiff’s
arm forcefully causing his arm to hit the officer’s cage, leaving a large vicious
bruise[.]” Dkt. No. 28 at 3.
2

2

basket, that he felt concerned the plaintiff was reaching for items in the station
and that he made appropriate contact with the plaintiff’s arm. Id. at ¶5. After
the incident, the plaintiff was placed in temporary lock up in the restrictive
housing unit. Id. at ¶6.
The plaintiff submitted three inmate complaints arguably relevant to his
claims. Dkt. No. 63 at ¶9. First, on April 28, 2017, the plaintiff submitted
Inmate Complaint No. GBCI-2017-11396, in which he alleged:
Me, an Inmate (Michael Moffett) was coming back from a pass,
an upon giving my pass back to C.O. Yang I reach my arm in to drop
it, C.O. Yang then smack my arm (real hard) say don’t put yo arm
throu here.
I ask to talk with a whiteshirt and one was call, I then told
him what happen and I was told to go back to the cell, an that the
camera will be look at.
5 minutes later a C.O. came to take pi[ctures] of my arm, then
2 minutes later my door open for me to go to the rutundra, I was
handcuff to seg.
I am writing this ICE because I was assaulted (smack hard on
the arm) by a C.O. (Yang) an brought to seg because Yang said I tried
to steal his bag of chips. Inmate Michael Moffett was right there
when all this went down.
Id. at ¶¶10-11. The institution complaint examiner recommended dismissal,
because Lieutenant Daniel Cushing already was addressing the issue and there
was “no need to conduct a parallel investigation.” Id. at ¶13. The reviewing
authority dismissed the plaintiff’s inmate complaint. Id. at ¶14. The plaintiff
filed an appeal and the corrections complaint examiner recommended
dismissal Id. The Office of the Secretary dismissed the plaintiff’s appeal on
June 1, 2017. Id.
3

Second, on May 20, 2018, the plaintiff submitted Inmate Complaint No.
GBCI-2018-11258, in which he alleged:
On the above date and time, I was moved to the South Cell
House for school instead of allowed to remain in the north and
attend to school, due to having a SPN and a current law suit pending
in the Federal Eastern District Court from whereas, when I was
previously housed in the south, Officer Yang battered complainant
thus, when complainant is around C/O Yang he automatically has
a fear and phobia that he and other staff will attempt to do bodily
harm against me or that he will do something that will place me in
the hole. The last time complainant was house in the south cell
house, Yang told me to pack my shit, and move to the top bunk. I
was then asked if I was going to follow orders. I responded to him to
not talk to me in that manner as I am not your child, and closed my
door. I was then met by a white shirt who directed me to the rotunda
and placed me in the segregation unit for not getting on the top
bunk. It should be noted at this time no one was housed in the cell
with complainant at the time of this occurrence, but that it was done
in harassment and in retaliation for complaining to his supervisors
of his assaulting me.
Further, he has called me fags and other names asking other
inmates why they want to be housed with a gump/fag (prison lingo)
which has created a problem where inmates do not want to be celled
with me because of such statements. I have repeatedly let it be
known that each time I am house in the south, I end up in
segregation due to Yang or other co-workers on his behalf.
Dkt. No. 63 at ¶¶15-16. The day after the plaintiff submitted the inmate
complaint, the institution complaint examiner recommended dismissal, noting
that the plaintiff’s “SPN was investigated and disapproved,” that an “inmate’s
housing is an administrative decision” that requires consideration of “several
elements,” that the plaintiff’s cell met all requirements and that no “violations
[had] occurred.” Id. at ¶17. That same day (May 21, 2018), the reviewing
authority dismissed the plaintiff’s complaint. Id. at ¶18. The plaintiff received a

4

copy of the decision, which notified him that he could appeal to the corrections
complaint examiner within fourteen days. Id. The plaintiff did not appeal. Id.
On June 20, 2018, the plaintiff submitted Inmate Complaint No. GBCI2018-13516, in which he alleged:
I have a lawsuit pending on Seg Yang on a lot of attempts Seg Yang
telling inmates I’m gay and that every time I get a celle he’ll tell them
I’m gay. On 5.32.18 I wrote a ICE complaining about my safety
[unintelligible] days later an inmate jump on me and said Yang told
him I was putting his name in some gay shit, I was sent to seg an
let out the same day. I’m in seg now and I’m not getting any of my
phone calls and he calls me gay when he works.
Dkt. No. 63 at ¶¶20-21. Due to the nature of the plaintiff’s allegations, the
institution complaint examiner provided the plaintiff with a copy of Wis. Admin.
Code §DOC 303.32 (Lying About an Employee) and a copy of DAI 310.00.01
(Inmate Complaints Regarding Staff Misconduct). Id. at ¶22. The institution
complaint examiner notified the plaintiff that no further information would be
given to him because “the investigative process is regulated by state law (which
protects the privacy and due process rights of staff).” Id. The plaintiff indicated
via his signature that he “chose to pursue the complaint and waive
confidentiality under DOC. 310.16(5),” and he “provided a detailed written
description of the events”:
[A]round the week of 6/17/18 – 6/20 Serg Yang was doing training
for the rookie C/Os at the [RHSU], note that Yang does not work
here ([RHSU]) doing a round on the 300 wing Serg Yang stop at
another inmate door an started talkin to him, [stating] “Oh your
[neighbor] Gay” I then said I’m ICE that, his last word was “you are”
Id. at ¶23. The institution complaint examiner verbally instructed the plaintiff
to appeal any dismissal of his complaint so he had reassurance that his
5

complaint was investigated under DAI 310.00.01 and so he would exhaust his
administrative remedies. Id.
On July 2, 2018 the institution complaint examiner recommended that
the plaintiff’s complaint “be dismissed, with the modification that it be further
processed pursuant to the applicable personnel rules and agreements
pursuant to DAI Policy 310.00.01.” Dkt. No. 63 at ¶25. The institution
complaint examiner indicated that “no further action [would] be taken by this
office.” Id. The reviewing authority dismissed the plaintiff’s complaint on July
2, 2018. Id. at ¶26. The plaintiff received written notice of the dismissal, which
instructed him that he could appeal an adverse decision: “A complainant
dissatisfied with a decision may, within 14 days after the date of the decision,
appeal that decision by filing a written request with the Corrections Complaint
Examiner on form DOC-405 (DOC 310.12, Wis. Adm. Code).” Id. The plaintiff
did not appeal. Id.
II.

Analysis
A.

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
“might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A
6

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).
B.

Exhaustion of Administrative Remedies Law

The Prison Litigation Reform Act (PLRA) provides that an inmate cannot
assert a cause of action under federal law “until such administrative remedies
as are available are exhausted.” 42 U.S.C. §1997e(a); see also Woodford v. Ngo,
548 U.S. 81, 93 (2006) (holding that the PLRA requires proper exhaustion of
administrative remedies). Exhaustion requires that an inmate comply with the
rules applicable to the grievance process at the inmate’s institution. Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). This requirement “applies to
all inmate suits about prison life, whether they involve general circumstances
or particular episodes, and whether they allege excessive force or some other
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wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The objective of §1997e(a)
is to permit the institution’s “administrative process to run its course before
litigation begins.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (quoting
Cannon v. Washington, 418 F.3d 714, 719 (7th Cir. 2005)); see also Kaba v.
Stepp, 458 F.3d 678, 684 (7th Cir. 2006). The exhaustion requirement is
interpreted strictly and a “prisoner must comply with the specific procedures
and deadlines established by the prison’s policy.” Pyles v. Nwaobasi, 829 F.3d
860, 864 (7th Cir. 2016) (quoting King v. McCarty, 781 F.3d 889, 893 (7th Cir.
2015)). But “[r]emedies that are genuinely unavailable or nonexistent need not
be exhausted.” Id. Because exhaustion is an affirmative defense, the
defendants bear the burden of proving that the plaintiff failed to exhaust. Pavey
v. Conley, 544 F.3d 739, 740-41 (7th Cir. 2008) (citing Jones v. Bock, 549 U.S.
199, 216 (2007)).
Wisconsin has implemented the Inmate Complaint Review System
(ICRS)3 under which inmate grievances concerning prison conditions or the
actions of prison officials are “expeditiously raised, investigated and decided.”
Wis. Admin. Code §DOC 310.01(1).4 Under the ICRS, an inmate must file a
complaint within fourteen days after the occurrence giving rise to the

On April 1, 2018, the Wisconsin Department of Corrections repealed and
replaced Wis. Admin. Code ch. DOC 310. The inmate complaint the plaintiff
filed in 2017 (GBCI-2017-11396) falls under the prior version of the ICRS (cited
in footnotes), while the current version of the ICRS governs the inmate
complaints he filed in 2018 (cited in text).
3

4

Wis. Admin. Code §DOC 310.01 (2002).
8

complaint, unless good cause exists to excuse a delay. Wis. Admin. Code §DOC
310.07(2).5
Once an inmate files a complaint, the institution complaint examiner
must review and acknowledge the complaint. Wis. Admin. Code §DOC
310.10(4).6 Upon acceptance, the institution complaint examiner should either
reject the complaint for one of the listed reasons or send a recommendation to
the appropriate reviewing authority. Wis. Admin. Code §§DOC 310.10(10), (6).7
If the institution complaint examiner rejects the complaint, the inmate
“may appeal” “within 10 days” to the “appropriate reviewing authority.” Wis.
Admin. Code §DOC 310.10(10).8 The reviewing authority must make a decision
to affirm or dismiss the complaint in whole or in part or return the complaint
to the institution complaint examiner. Wis. Admin. Code §§DOC 310.11(1), (2).9
If the reviewing authority dismisses the complaint, the inmate “may
appeal” to the corrections complaint examiner within a certain timeframe. Wis.

5

Wis. Admin. Code §DOC 310.09(6) (2002).

6

Wis. Admin. Code §DOC 310.11(2) (2002).

7

Wis. Admin. Code §§DOC 310.11(4), (5) (2002).

8

Wis. Admin. Code §DOC 310.11(6) (2002).

9

Wis. Admin. Code §§DOC 310.11(6), 310.12 (2002).

9

Admin. Code §DOC 310.12(1).10 The corrections complaint examiner must
recommend a decision to the office of the secretary. Wis. Admin. Code §DOC
310.12(9).11
The secretary then must “make a decision” following receipt of the
corrections complaint examiner’s recommendation. Wis. Admin. Code §DOC
310.13(1).12 The secretary must accept or reject the corrections complaint
examiner’s recommendation, in whole or in part, or return the appeal to the
corrections complaint examiner for further investigation. Wis. Admin. Code
§DOC 310.13(2).13
C.

Discussion

The defendants contend that the plaintiff failed to exhaust
administrative remedies for his retaliation claims. Dkt. No. 48 at 15. In
response to the defendants’ motion, the plaintiff agrees that his retaliation
claims against Cushing and Cole should be dismissed on exhaustion grounds.
Dkt. No. 58 at 10, 11. The court will grant the defendants’ motion for summary
judgment as to the plaintiff’s claims against Cushing and Cole. On the other
hand, the plaintiff contends that he has exhausted his administrative remedies
as to his two retaliation claims against Yang.

10

Wis. Admin. Code §DOC 310.13(1) (2002).

11

Wis. Admin. Code §DOC 310.13(6) (2002).

12

Wis. Admin. Code §DOC 310.14(1) (2002).

13

Wis. Admin. Code §DOC 310.14(2) (2002).
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1.

First Retaliation Claim Against Yang

The defendants argue that the plaintiff failed to exhaust his claim that
Officer Yang falsely alleged that the plaintiff stole chips in retaliation for the
plaintiff complaining to Cushing about Yang’s alleged assault on the plaintiff.
Dkt. No. 48 at 15. According to the defendants, the plaintiff’s Inmate Complaint
No. GBCI-2017-11396, in which he alleged, “I am writing this ICE because I
was assaulted (smack hard on that arm) by a C.O. (Yang) and brought to Seg
because Yang said I tried to steal his bag of chips,” did not exhaust the
retaliation claim because it did not identify the protected conduct that
provoked the retaliation. Id.
The plaintiff contends that his Inmate Complaint No. GBCI-2017-11396
exhausted this claim “in scope” because it alerted prison officials to the nature
of the wrong for which he sought redress. Dkt. No. 58 at 9. In his supplemental
response, the plaintiff reiterates that his inmate complaint objected intelligibly
to a shortcoming and that it alerted prison officials to his retaliation claim. Dkt.
No. 66 at 3-4. He also states that prison officials could have rejected the inmate
complaint because it contains two issues—his excessive force and retaliation
allegations—but argues that because they did not reject it, the plaintiff may
now proceed with both claims. Id.
For exhaustion purposes, the PLRA requires prisoners to provide a
prison with “notice of, and an opportunity to correct, a problem.” Price v.
Friedrich, 816 F. App'x 8, 10 (7th Cir. 2020) (quoting Schillinger v. Kiley, 954
F.3d 990, 995-96 (7th Cir. 2020)); see also Turley v. Rednour, 729 F.3d 645,
11

650 (7th Cir. 2013)); Jones v. Bock, 549 U.S. 199, 219 (2007). The plaintiff’s
inmate complaint does not identify the alleged protected conduct, i.e., that
Yang allegedly retaliated against the plaintiff because he complained to
Cushing. The inmate complaint also does not allege that Yang falsely accused
the plaintiff of stealing chips because he complained to Cushing. The plaintiff’s
failure to include this information deprived prison officials of the opportunity to
address the situation; the plaintiff did not “clearly identif[y]” the issue, as
required by Wis. Admin Code §DOC 310.07(5).14 See Schillinger, 954 F.3d at
995; Price v. Friedrich, 816 F. App’x at 10 (prisoner’s retaliation claim not
exhausted because grievances did not alert prison officials to prisoner’s belief
that legal materials were destroyed in retaliation for grievances prisoner filed).
The plaintiff has not exhausted this claim.
2.

Second Retaliation Claim Against Yang

The defendants assert that the plaintiff failed to exhaust his claim that
Officer Yang engaged in a campaign of harassment against him in retaliation
for the plaintiff complaining to Lieutenant Cushing and filing an inmate
complaint and a lawsuit. Dkt. No. 48 at 18. The defendants first argue that the
plaintiff failed to exhaust his campaign of harassment claim because he did not
appeal the dismissal of Inmate Complaint No. GBCI-2018-11258 related to that
claim. Id. The defendants also contend that the plaintiff’s Inmate Complaint
No. GBCI-2018-13516 is not related to the plaintiff’s campaign-of-harassment
claim and therefore does not exhaust it. Id. at 19.
14

Wis. Admin. Code §DOC 310.09(3)(e) (2017).
12

It is undisputed that the plaintiff did not file an appeal of the dismissal of
his Inmate Complaint No. GBCI-2018-11258. That inmate complaint does not
exhaust the plaintiff’s second retaliation claim against Yang. The plaintiff
maintains, however, that he exhausted his campaign-of-harassment claim
against Yang with Inmate Complaint No. GBCI-2018-13516. Dkt. No. 58 at 10.
The plaintiff’s second retaliation claim is based on allegations that after
the plaintiff filed this case, he was moved to the South Cell Hall and Yang
began harassing him. Dkt. No. 28 at 5-6. Yang allegedly ordered the plaintiff to
the top bunk for no reason, placed him in TLU and called the plaintiff
“homophobic names (fags, punk, gump) which has created safety problems for
him[.]” Id. While the plaintiff’s unexhausted inmate complaint (GBCI-201811258) includes the allegations that Yang ordered the plaintiff to the top bunk,
placed him in TLU and called him homophobic names, Inmate Complaint No.
GBCI-2018-13516 also includes allegations that Yang retaliated against the
plaintiff by calling him “gay” and by telling other inmates he was gay, which
became a safety issue for the plaintiff. That complaint put the prison officials
on notice of the plaintiff’s claim that Yang was retaliating against him for
complaining about Yang’s alleged assault. See Schillinger, 954 F.3d at 995-96.
The court rejects the defendants’ argument that Inmate Complaint No. GBCI2018-13516 does not relate to the plaintiff’s second retaliation claim against
Yang.
The defendants contend that, even if GBCI-2018-13516 is related to the
plaintiff’s campaign-of-harassment claim, the claim still is not exhausted
13

because the plaintiff did not appeal the dismissal of the complaint. Dkt. No. 48
at 19. The plaintiff responds that the dismissal of Inmate Complaint No. GBCI2018-13516 with the modification that it be further processed under the
applicable personnel rules gave him the resolution he sought at the time and,
therefore, that he exhausted the claim. Dkt. No. 58 at 10. In his supplemental
reply, the plaintiff acknowledges that when GBCI-2018-13516 was dismissed,
he was informed of the DOC policy that requires inmates dissatisfied with a
decision to file an appeal within fourteen days. Dkt. No. 66 at 5. The plaintiff
says that a security supervisor contacted him after the dismissal, the matter
was revisited and an investigation was conducted to resolve the matter. Id. The
plaintiff states that the grievance policy does not require him to appeal a
favorable decision and that succeeding through informal channels met the
exhaustion requirement. Id.
Again, there is no dispute that the plaintiff did not file an appeal of the
dismissal of Inmate Complaint No. GBCI-2018-13516. The court cannot
conclude, however, that the plaintiff was required to appeal the dismissal to the
corrections complaint examiner. The ICE (institution complaint examiner)
Report on GBCI-2018-13516 provides the following Summary of Facts:
Inmate Lobley complains that Sgt. Yang tells other inmates that
Lobley is gay. He states that he was jumped in the cell hall because
Sgt. Yang told the inmate that Lobley was putting his name into
some gay stuff.
Inmate Lobley was provided with an explanation of DAI Policy
310.00.01. In addition to that, the provision of DOC 303.32, Wis.
Adm. Code, were also provided. He was also informed that, because
the investigative process is regulated by state law (which protects
the privacy and due process rights of staff) no further information
14

would be given to him. Inmate Lobley chose to pursue the complaint
and provided a detailed written description of the events he claimed
happened. Based on that statement and the sensitive nature of this
incident, it is recommended this complaint be dismissed, with the
modification that it be further processed pursuant to the applicable
personnel rules and agreements pursuant to DAI Policy 310.00.01.
Consequently, no further action will be taken by this office.
Dkt. No. 49-5 at 2. The reviewing authority, Warden Eckstein, dismissed the
plaintiff’s inmate complaint on July 2, 2018. Id. at 4. Based on DAI Policy
310.00.01, if the Warden/designee determines an investigation of alleged staff
misconduct is warranted, the following shall occur:
1. The ICE shall enter a recommendation to the Warden/designee
for the complaint to be dismissed and further processed
pursuant to the applicable personnel rules, citing either DAI
Policy 310.00.01 or Executive Directive 72.
2. The Warden/designee enters a decision on the complaint
removing it from the ICRS and thus waiving the inmate’s
confidentiality
rights
in
accordance
with
Wisconsin
Administrative Code s. DOC 310.16(4).
3. The inmate shall be notified of the Warden/designee’s decision
consistent with Wisconsin Administrative Code s. DOC
310.11(1).
4. The complaint shall be removed from the ICRS pending an
investigation to be conducted by a supervisor.
5. The investigation process is regulated by state law which protects
the privacy and due process rights of staff and no further
information shall be given the complainant.
Dkt. No. 49-4 at 2.
The plaintiff says that he did not file an appeal because he was satisfied
with the result of his inmate complaint. Based on the plaintiff’s inmate
complaint, a confidential investigation was conducted and the ICE Report
advised that he would not be provided with any information about the
investigation. The plaintiff was provided with a copy of DAI 310.00.01 which
states that a complaint subject to an internal investigation is “removed from
15

the ICRS pending an investigation to be conducted[.]” Dkt. No. 49-4 at 2. In the
defendants’ brief in support of their motion for summary judgment, they state
that the plaintiff’s inmate complaint was internally investigated after the
plaintiff received written notice of the dismissal of his inmate complaint. Dkt.
No. 48 at 7. It appears that while the plaintiff was instructed to appeal his
dismissed complaint to the corrections complaint examiner in order to exhaust
his administrative remedies, he also received information that his complaint
had been removed from the ICRS process pending an ongoing investigation.
Moreover, the plaintiff states that the later investigation to resolve the matter
gave him the resolution he was seeking. Dkt. No. 58 at 10.
A prisoner is not required to exhaust administrative remedies when those
remedies are not “available” to him during the relevant exhaustion
period. Kaba, 458 F.3d at 684. Administrative remedies are unavailable when a
prison official does not respond to a properly filed grievance or uses affirmative
misconduct to prevent a prisoner from exhausting through “machination,
misrepresentation, or intimidation.” Ross v. Blake, 136 S. Ct. 1850, 1860
(2016); see also Dole, 438 F.3d at 809 (citations omitted); Thomas v. Reese, 787
F.3d 845, 847 (7th Cir. 2016) (finding administrative remedies were unavailable
to inmate who was told numerous times by prison staff that he could not have
grievance form). When “prison officials mislead [a prisoner] into thinking that .
. . he has done all he needed to initiate the grievance process,” then the
administrative remedy is legally unavailable. Pavey v. Conley, 663 F.3d 899,
906 (7th Cir. 2011).
16

The defendants have not demonstrated that ICRS administrative
remedies were available to the plaintiff after the institution complaint examiner
recommended dismissal of his complaint. Thus, the court will deny the
defendants’ motion for summary judgment as to the plaintiff’s campaign-ofharassment retaliation claim against Yang.
III.

Conclusion
The court GRANTS IN PART AND DENIES IN PART the defendants’

motion for summary judgment on plaintiff’s retaliation claims on exhaustion
grounds. Dkt. No. 47. The court GRANTS the motion as to the plaintiff’s
retaliation claims against Cushing and Cole, and his first retaliation claim
against Yang. The court DENIES the motion as to the plaintiff’s second
retaliation claim against Yang.
The court DISMISSES defendants Cushing and Cole.
The court ORDERS that the deadline for the completion of discovery on
the merits of the plaintiff’s remaining excessive force and retaliation claims is
EXTENDED to the end of the day on December 31, 2020 and the deadline for
filing dispositive motions is EXTENDED to the end of the day on January 29,
2021.
Dated in Milwaukee, Wisconsin this 29th day of September, 2020.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

17