Kirksey v. Kenosha County Detention Center et al

Filing 41

ORDER signed by Judge J P Stadtmueller on 2/19/2020: GRANTING as stated 29 Defendants' Motion to Dismiss; DENYING 34 Plaintiff's Motion for Legal Copies; and DISMISSING CASE without prejudice for failure to exhaust administrative remedies. (cc: all counsel, via mail to Terrance Lavell Kirksey at Dodge Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TERRANCE LAVELL KIRKSEY,
Plaintiff,
v.
KENOSHA COUNTY DETENTION
CENTER, DAVID BETH,
LIEUTENANT BILL BETH, ANNA
DEAN, GARY KONKEN, JACK
OENNING, and MICHAEL SCHULZ,

Case No. 19-CV-602-JPS

ORDER

Defendants.
On November 26, 2019, Defendants in the above-captioned case filed
a motion to dismiss on the grounds that Plaintiff failed to exhaust his
administrative remedies with regard to his complaint that his constitutional
rights were violated when he was forced to clean his cell and jail common
areas against his will. (Docket #29). Defendants supported their motion to
dismiss with evidence outside the pleadings, which the Court must
consider in order to evaluate whether Plaintiff’s complaint was exhausted.
See (Docket #31). On December 5, 2019, Plaintiff filed a “motion for an order
to receive legal copies,” the substance of which requests an order to allow
Plaintiff to make photocopies. (Docket #34). The Court has no authority to
unilaterally order an institution to allow a detainee to make copies, so this
motion must be denied. On December 26, 2019, Plaintiff filed a series of
exhibits including an incident report related to his lawsuit. (Docket #36-1).
Plaintiff then responded to the motion to dismiss in a piecemeal fashion,
construing it as a motion for summary judgment and arguing that qualified

immunity does not apply. (Docket #37, #38). Defendants did not submit a
reply. For the reasons explained below, the motion to dismiss must be
converted to a motion for summary judgment, and will be granted. The case
will be dismissed without prejudice.
1.

LEGAL STANDARD
1.1

Motion to Dismiss/Motion for Summary Judgment

“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the motion must
be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P.
12(d). “All parties must be given a reasonable opportunity to present all the
material that is pertinent to the motion.” Id. 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).
1.2

Administrative Exhaustion

The Prison Litigation Reform Act (“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 administrative rules require,” and he
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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); Burrell v. Powers, 431 F.3d 282, 284–85 (7th Cir. 2005). A suit must be
dismissed if it was filed before exhaustion was complete, even if exhaustion
is achieved before judgment is entered. Perez v. Wis. Dep’t of Corr., 182 F.3d
532, 535 (7th Cir. 1999). Several important policy goals animate the
exhaustion requirement, including restricting frivolous claims, giving
prison officials the opportunity to address situations internally, giving the
parties the opportunity to develop the factual record, and reducing the
scope of litigation. Smith v. Zachary, 255 F.3d 446, 450–51 (7th Cir. 2001).
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).
2.

RELEVANT BACKGROUND
Plaintiff alleges that was forced to clean his cell and the jail common

areas. When he refused to clean, he was placed in solitary confinement for
three days. Plaintiff concedes that he received a due process hearing before
he was punished, (Docket #37 at 2), but submits that the punishment was
unnecessarily harsh compared to the handbook’s suggested repercussions
for failing to clean, which include a loss of dayroom, television, and phone
privileges. Id. He submitted three grievances, (Docket #31-3), and received
a timely response as to each grievance, id. His first grievance documented
the fact that he was forced to clean against his will. Id. at 1. His second
grievance dealt with the fact that he did not receive a shower or recreation
time while in administrative segregation. Id. at 5. His third grievance
challenged how he was treated by one of the correctional officers, and
seems to allege a failure to treat a mental health issue. Id. at 9. There is no
appeal in the record.
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Inmates are notified of the Kenosha County Detention Center
Handbook (“the Handbook”) upon arrival, and must sign a form
acknowledging that they understand that they may request a print copy or
access the Handbook electronically at their housing unit’s kiosk. The
Handbook’s section on the “Inmate Grievance/Appeal Form” explains that
inmates may submit “legitimate complaints and appeal[] disciplinary
findings to a supervisor.” (Docket #31-1 at 10). Complaints must be
submitted within seven days of the complained-of incident. Id. A Shift
Supervisor reviews all complaints and provides a response within seven
days. Id. Detainees may appeal the Shift Supervisor’s response “in writing
to the Facility Administrator” within 72 hours of receipt. Id. To appeal, the
detainee is instructed to “use another inmate Grievance Form” and “check
the ‘Appeal’ box” at the top of the form. Id.
Plaintiff submitted three grievances and received timely responses.
There is no evidence that he submitted an appeal, or that he tried to submit
an appeal. He checked “grievance” for each new form submitted, rather
than “appeal,” and raised different issues each time he submitted a
grievance.
3.

ANALYSIS
Plaintiff argues that “there is no judicially imposed requirement that

plaintiff exhaust administrative remedies prior to bringing suit[.]” (Docket
#38 at 5). Plaintiff also states that he “exhausted all administrative remedies
that were available.” Id.
As the legal standard above makes clear, there are congressionally
and judicially imposed requirements that a plaintiff exhaust his
administrative remedies. See 42 U.S.C. § 1997e(a); Pozo, 286 F.3d at 1025;
Burrell, 431 F.3d at 284–85. Moreover, although Plaintiff states that he
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exhausted all available remedies, it is clear that he did not. See (Docket #313). He was informed of his ability to appeal in multiple ways—via the
Handbook, the grievance form, and the Shift Supervisor’s response to his
appeal. While he submitted several grievance reports, he did not appeal any
of them. Rather, he immediately and preemptively sought recourse in
federal court. The Court must dismiss this case due to Plaintiff’s failure to
exhaust his administrative remedies.
4.

CONCLUSION
For the reasons explained above, Defendants’ motion to dismiss will be

construed as a motion for summary judgment on the issue of exhaustion,
and the case will be dismissed without prejudice.
Accordingly,
IT IS ORDERED that Defendants’ motion to dismiss (Docket #29)
be and the same is hereby GRANTED as stated in the terms of this Order;
IT IS FURTHER ORDERED that Plaintiff’s motion for legal copies
(Docket #34) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this case be and the same is hereby
DISMISSED without prejudice due to a failure to exhaust administrative
remedies.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 19th day of February, 2020.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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