Howard v. Hartman et al

Filing 54

ORDER signed by Chief Judge Pamela Pepper on 9/16/2022 GRANTING 20 defendant's motion for partial summary judgment on exhaustion grounds; plaintiff's claim that defendants Clover and Kamphuis denied legal loan and disbursement requests in retaliation for plaintiff filing Case No. 15-cv-557 DISMISSED. Deadline for filing motions for summary judgment on merits STAYED. (cc: all counsel and mailed to Joshua Howard at Fox Lake Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JOSHUA HOWARD,
Plaintiff,
v.

Case No. 20-cv-1768-pp

CARLA CLOVER, f/k/a Carla Hartman,
NIKKI KAMPHUIS, BRAD BADE,
DOE #2, and PAUL WIERSMA,
Defendants.
______________________________________________________________________________
ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
JUDGMENT ON EXHAUSTION GROUNDS (DKT. NO. 20)
______________________________________________________________________________
Plaintiff Joshua Howard, who is confined at the Fox Lake Correctional
Institution and who is representing himself, filed this case alleging that the
defendants retaliated against him for filing another civil case. Dkt. No. 1. The
court screened the complaint and allowed the plaintiff to proceed on claims
that defendants Carla Clover (formerly known as Carla Hartman) and Nikki
Kamphuis retaliated against him for filing Case Number 15-cv-557 by
improperly denying his legal loan requests for the case, ordering his cell to be
searched three times and having his legal paperwork seized; and that
defendants Brad Bade and Does #1 (identified as Paul Wiersma on May 20,
2022) and #2 retaliated against him for filing Case Number 15-cv-557 by
searching his cell and seizing his paperwork. Dkt. No. 13 at 6-7. The
defendants have filed a motion for partial summary judgment, contending that
the plaintiff failed to exhaust his administrative remedies as to his claim that
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Clover and Kamphuis retaliated against him for filing Case Number 15-cv-557
by denying his legal loan and disbursement requests for that case. Dkt. No. 21
at 1.1 The court will grant the defendants’ motion for partial summary
judgment.
I.

Defendants’ Motion for Partial Summary Judgment (Dkt. No. 20)
A.

Facts2

The plaintiff filed two inmate complaints under the Inmate Complaint
Review System (ICRS) in which he mentioned the legal loan denial at issue in
this case: WCI-2015-18665 and WCI-2015-18334. Dkt. No. 22 at ¶1.
On July 3, 2015, the “ICE [Inmate Complaint Examiner] Office” received
complaint WCI-2015-18665, which states:
IMPROPER LEGAL LOAN DENIAL
On the above date [6.29.15] I received the denials of my request for
postage and envelopes in 15-cv-557. The case is a class action and
there are (8) plaintiffs and several defendants. The denial was based
on the fact that there are multiple plaintiffs which is not a proper
basis to deny a legal loan.
Dkt. No. 22 at ¶2. On July 7, 2015, the ICE returned the plaintiff’s complaint
materials to him because: “Inmates may not file more than two complaints per
calendar week, with few exceptions, and this complaint does not meet either

The defendants have filed a motion for reconsideration of the court’s order
granting the plaintiff’s request to substitute the real name of the Doe defendant
and the plaintiff has filed a motion to strike. Dkt. Nos. 42, 52. The court will
address these motions in a separate order.
1

The court includes only material, properly supported facts in this section. See
Fed. R. Civ. P. 56(c).
2

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exception [DOC 310.09(2)].” Dkt. No. 22 at ¶4.3 About three months later, the
plaintiff resubmitted complaint WCI-2015-18665, which the ICE Office received
on October 6, 2015. Dkt. No. 22 at ¶6. The ICE rejected WCI-2015-18665 as
untimely, writing:
DOC 310.09(6) states that an inmate shall file a complaint within
14 calendar days after the occurrence giving rise to the complaint,
except that the institution complaint examiner may accept a late
complaint for good cause. Inmate complains regarding the denial of
a legal loan request. That is the occurrence giving rise to this
complaint and the date of occurrence is determined to be 6/29/15
as cited by inmate Howard in the complaint. It is well beyond the
14-day time limit to file a complaint with respect to the legal loan
denial of 6/29/15. Inmate Howard makes no plea for good cause.
He does not present evidence to show how he was denied the use of
or inhibited in any way from using the ICRS since the date of the
occurrence. In fact, this complaint arrives untimely in part due to
the fact when it was originally received on 7/3/15, it had to be
returned by rule because inmate Howard had reached his limit of
two complaints for the week of June 28 to July 4. Failure to adhere
to the reasonable limitation of two complaints per week is not an
excuse for an untimely submission. Inmates must prioritize their
complaints with this limitation in mind. Good cause is not found.
Dkt. No. 22 at ¶8. The plaintiff requested review of the rejected complaint,
arguing that he had filed it on July 3, 2015, the date it was date-stamped and
acknowledged. Dkt. No. 22 at ¶9. Warden Pollard affirmed the rejection of WCI2015-18665, stating the rejection was appropriate. Dkt. No. 22 at ¶10.
The plaintiff also submitted complaint WCI-2015-18334, which the ICE
Office initially received on July 3, 2015 and which states,

Although the plaintiff does not dispute that the ICE returned his inmate
complaint, he contends that the ICE erroneously returned the complaint
because the ICE counted two inmate complaints the plaintiff had submitted the
previous week, but had not filed until the operative week, toward the twocomplaint-per-calendar-week limit. Dkt. No. 28 at ¶4.
3

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I received legal loan denials a week later with the return of legal
materials from cell search.
I submitted a request for a legal loan on 6.18.15 and all of my
requests were denied on 6.22.15 yet I did not receive my requests
back until a week later when I was given back legal materials from
a 6.26.15 cell search.
Dkt. No. 22 at ¶11.
The ICE returned complaint WCI-2015-18334, but the plaintiff
resubmitted it and the ICE office received it on September 29, 2015. Dkt. No.
22 at ¶13. The ICE rejected complaint WCI-2015-18334 under Wis. Admin.
Code §DOC 310.11(5)(c), which permits rejection when “[t]he inmate does not
allege sufficient facts upon which redress may be made.” Dkt. No. 22 at ¶14.
The ICE wrote, “[Howard] does not state what rule he feels is violated or what
injury was caused by the delay or in the manner the papers were delivered.” Id.
The plaintiff’s request for review of the rejected complaint states:
The complaint provides enough facts but the ICE needs to
investigate why the legal loan materials were held back, why my cell
got searched 3 times during that period and why they were given to
me along with the legal materials seized during the searches—why
did my request for a legal loan for a lawsuit against the DOC appear
to result in several cell searches?
Dkt. No. 22 at ¶15. Warden Pollard found that the ICE had appropriately
rejected complaint WCI-2015-18334. Dkt. No. 22 at ¶16.
In addition to the above-described complaints WCI-2015-18665 and
WCI-2015-18334, the plaintiff filed four offender complaints related to the cell
searches at issue in this case.4 Complaints WCI-2015-17193 and WCI 2015The defendants do not contend that the plaintiff failed to exhaust his
administrative remedies for his claims based on the cell searches.
4

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18335 relate to the June 22, 2015 cell search. Dkt. No. 29 at ¶20. In WCI2015-18335, the plaintiff stated:
MY CELL WAS
LAWSUITS

SEARCHED

IN

RETALIATION

FOR

FILING

On 6.18.15 I submitted a legal loan request to the business office
for supplies and postage in Howard v. Walker, 15-cv-557. I filed a
motion in the above case to prevent my transfer. I never received any
of the requests back and when I talked to Bryan [Bade] after he
searched my cell he made the comment, “still feel like staying at
WCI?”
Dkt. No. 29 at ¶21. In WCI-2015-17193, the plaintiff stated:
CELL SEARCH DID NOT COMPLY WITH DOC POLICY
On the above date my cell was searched by C.O. Bryan and the
following subsections of DOC 306.16 were not adhered to:
(2)(e) & (3) require that I receive a written record identifying the
property seized. This did not happen, the officer took materials
without my knowledge and later that evening he attempted to return
them without any receipt or record showing what had been seized.
(4) requires that effects should be disturbed as little as possible. My
room was trashed and the property of me and my cellmate was all
over the floor and we could not even enter the cell.
(5) states that legal material should only be read as is necessary to
see its legal and does not contain contraband. Not only was all of my
legal material searched and dispersed throughout the cell but the
materials seized were clearly legal materials that did not contain
contraband.
Dkt. No. 29 at ¶24.
The plaintiff also filed two complaints related to the June 26, 2015 cell
searches. Dkt. No. 29 at ¶31. He filed WCI-2015-17192 related to the first
search on that date, stating:

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MY CELL WAS
LAWSUITS

SEARCHED

IN

RETALIATION

FOR

FILING

On 6.18.15, I submitted legal loan requests to the business office for
supplies and postage in Howard v. Walker, 15 cv-557. The above
case involves Scott Walker and several WCI staff. When I spoke with
the officer who conducted the first search on the above date and
asked why I was being searched when it had only been a few days
since the last search, he commented, ‘‘well you probably shouldn’t
sue the Governor.”
Dkt. No. 29 at ¶32. The plaintiff filed WCI-2015-17898 about the second cell
search on June 26, 2015, stating:
MY CELL WAS SEARCHED TWICE ON THE SAME DAY
My cell was searched on the above date in the afternoon. The officer
stopped just before 3:00 and said he had somewhere to be. After
spending an hour putting my property/documents back in their
places, another C.O. came to the cell and said that the first guy
didn’t finish so he needed to search my cell. Of course there was no
way to determine what had been searched so he had to go through
everything all over.
This was completely unnecessary, if the initial search was
incomplete then another officer should have took over after being
briefed by the leaving officer. Instead my cell was torn apart for the
3rd time in less than a week.
Dkt. No. 29 at ¶34.
B.

Analysis
1.

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.
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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
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).
2.

Exhaustion of Administrative Remedies Law

The Prison Litigation Reform Act (PLRA) provides that an incarcerated
person 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 incarcerated person comply with the rules applicable to the grievance
process at the person’s institution. Pozo v. McCaughtry, 286 F.3d 1022, 1025
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(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 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 Seventh Circuit applies a “strict compliance approach to
exhaustion” and expects incarcerated persons to adhere to “the specific
procedures and deadlines” established by the institution’s policy. Dole, 438
F.3d at 809; see also Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir. 2016)
(citations omitted). 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.
In Wisconsin, to exhaust available administrative remedies incarcerated
persons must file offender complaints through the Inmate Complaint Review
System, outlined in Wis. Admin. Code Ch. DOC 310.5 See Wis. Admin. Code
§§DOC 310.05, 310.08. With certain exceptions, an incarcerated person may
use the ICRS to raise significant issues regarding rules, living conditions, staff

Any reference to the Wis. Admin. Code Ch. DOC 310 will be to the Register,
December 2014 version which was in effect during the relevant time.
5

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actions affecting institution environment and civil rights. Wis. Admin. Code
§DOC 310.08(1).
The procedure begins with an incarcerated person filing a complaint with
the ICE. Wis. Admin. Code §§DOC 310.09, 310.11. An incarcerated person
must file a complaint within fourteen calendar days after the occurrence giving
rise to the complaint, but the ICE may accept a late complaint for good cause.
Wis. Admin. Code §DOC 310.09(6). The complaint must “[c]ontain only one
issue per complaint, and shall clearly identify the issue.” Wis. Admin. Code
§DOC 310.09(1)(e). Incarcerated persons may not file more than two
complaints per calendar week, although the ICE may waive this limit for good
cause, and the ICE shall exclude from this limit complaints that raise health
and personal safety issues. Wis. Admin. Code §DOC 310.09(e)(2). The ICE shall
either reject the complaint or send a recommendation on the complaint to the
“appropriate reviewing authority.” Wis. Admin. Code §DOC 310.11(11). The ICE
may reject a complaint for various reasons. Wis. Admin. Code §DOC
310.11(5)(a)-(h). The incarcerated person may appeal a rejected complaint to
the appropriate reviewing authority within ten days, who shall only review the
basis for the rejection of the complaint. See Wis. Admin. Code §DOC 310.11(6).
If the ICE does not reject the offender complaint, the ICE makes a
recommendation on the complaint to the reviewing authority. Wis. Admin.
Code §DOC 310.11(1)-(4). The reviewing authority then issues a decision on the
complaint which, if adverse to the incarcerated person, can be appealed to the
corrections complaint examiner (CCE). Wis. Admin. Code §§DOC 310.12,
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310.13. Appeals to the CCE must be made within ten days, although later
appeals may be accepted for good cause. Wis. Admin. Code §DOC 310.13(1),
(2). The CCE then makes a recommendation to the secretary of the Department
of Corrections, who takes final action. Wis. Admin. Code §§DOC 310.13,
310.14.
3.

Discussion

The defendants argue that the plaintiff did not exhaust his
administrative remedies as to his claim that defendants Clover and Kamphuis
retaliated against him for filing Case Number 15-cv-557 by denying his legal
loan and disbursement requests for that case. Dkt. No. 21 at 7. They assert
that although the plaintiff filed two offender complaints related to loan or
disbursement denials (WCI-2015-18665 and WCI-2015-18334), he did not
allege retaliation in either one and prison officials properly rejected both
complaints. Id.
The plaintiff responds that the court should deny the defendants’ motion
because they attempt to view two of his six related offender complaints in
isolation, contrary to logic. Dkt. No. 27 at 2. According to the plaintiff, the six
complaints read together are sufficient to exhaust the retaliation claim and “at
the end of the day the denial of the legal loans are peripheral to the conduct at
issue, i.e., the repeated searches and the seizure of legal materials, without
which there would be no lawsuit.” Id. at 3. The plaintiff states that he
“specifically exhausted the improper denials and when complaining about the
cell searches his narrative starts by explaining that it all started with him
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seeking a legal loan in ’15-cv-557.” Id. at 6. He also asserts that when he
complained that his request for a legal loan was improperly denied (in WCI2015-18665), he exhausted his claim that Clover and Kamphuis retaliated
against him. Id.
The plaintiff also argues that the ICE improperly rejected WCI-201518665 and WCI-2015-18334. Dkt. No. 27 at 6. He says that he filed two
unrelated complaints (11647 and 11648) by placing them in the complaint box
on Friday, the calendar week of June 21-27, and the ICE processed them the
following Monday June 29th and used that as a basis for refusing to accept
WCI-2015-18665 and WCI-2015-18334, which had been properly filed on
Wednesday July 1st, the following calendar week. Dkt. No. 27 at 8. The plaintiff
states that he did all that the ICRS rules required of him to exhaust the
complaints. Id. The plaintiff also maintains that, even if the ICE properly
rejected his complaints, §DOC 310.09 did not authorize the ICE to return
complaints filed in excess of the weekly limit and that the ICE should have
accepted the complaints on Sunday, the first day of the next calendar week,
instead of returning his complaints. Id. at 8-9. The plaintiff contends that even
if the ICE properly rejected and returned WCI-2015-18665, the subsequent
rejection on a finding that he did not timely resubmit it was erroneous. Dkt.
No. 27 at 9. The plaintiff contends that WCI-2015-18334 alleged sufficient facts
for the ICE to move forward with an investigation in that the plaintiff provided
relevant dates and presented the odd situation of documents submitted to the

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business office being returned with materials seized and reviewed by security
during a cell search. Id. at 10.
The ICRS requires incarcerated persons to “clearly identify the issue” in
their offender complaints. Wis. Admin. Code §DOC 310.09(1)(e). The regulation
does not elaborate on what “clearly” identifying the issue entails. The Seventh
Circuit has held that “[w]hen the applicable regulations provide little guidance
regarding the required contents of a prison administrative complaint, . . . an
inmate’s complaint will suffice for exhaustion purposes if it provides notice to
the prison of ‘the nature of the wrong for which redress is sought.’” Schillinger
v. Kiley, 954 F.3d 990, 995 (7th Cir. 2020) (quoting Strong v. David, 297 F.3d
646, 650 (7th Cir. 2002)); see also Turley v. Rednour, 729 F.3d 645, 650 (7th
Cir. 2013) (prisoner satisfies exhaustion requirement when he give a prison
“notice of, and an opportunity to correct, a problem”).
Complaint WCI-2015-18665 states that the plaintiff was improperly
denied a legal loan for his request for postage and envelopes for Case Number
15-cv-557. But it does not state that prison staff denied his request because he
filed Case No. 15-cv-557. And in complaint WCI-2015-18334, the plaintiff
states only that he received legal loan denials and that the return of his legal
materials from a cell search was delayed. The plaintiff’s failure to state in the
complaints that he believed that staff refused to give him a legal loan because
he filed Case No. 15-cv-557 deprived prison officials of the opportunity to
address that contention; the plaintiff did not “clearly identif[y]” the issue, as
required by the Department of Corrections’ ICRS provision. See Schillinger, 954
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F.3d at 995; Price v. Friedrich, 816 F. App’x 8, 10 (7th Cir. 2020) (prisoner’s
retaliation claim not exhausted because offender complaints did not alert
prison officials to prisoner’s belief that legal materials were destroyed in
retaliation for grievances prisoner filed).
The plaintiff’s assertion that the ICE should have considered all six of his
inmate complaints together and that, when viewed in their totality, they
sufficiently exhaust the conduct at issue is misplaced. The plaintiff has not
cited any rule that requires an ICE to consider offender complaints together.
Rather, under the ICRS, each offender complaint must contain only one issue
and must clearly identify the issue. Wis. Admin. Code §DOC 310.09(e). Even if
ICRS rules provided for the consideration of multiple offender complaints, none
of the six offender complaints the plaintiff references states that staff denied
him legal loans because he filed Case No. 15-cv-557.
The plaintiff has not exhausted his claim that defendants Clover and
Kamphuis denied him legal loans in retaliation for filing Case No. 15-cv-557.6
The court will grant the defendants’ motion for partial summary judgment
summary judgment.
Previously, the court stayed the deadline for the parties to file motions for
summary judgment until forty-five days after the court issued a decision on the
defendants’ motion for partial summary judgment on exhaustion grounds. Dkt.
Because the plaintiff’s offender complaints did not raise the issue that staff
denied him legal loans in retaliation for filing Case Number 15-cv-557, the
court need not address the parties’ arguments regarding whether the ICE
properly returned or rejected complaints WCI-2015-18665 and WCI-201518334.
6

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No. 37. While this order resolves the motion for summary judgment on
exhaustion grounds, the court will not set a deadline for filing motions for
summary judgment on the merits until it resolves the defendants’ motion to
reconsider the court’s order granting the plaintiff’s motion to identify a Doe
defendant and the plaintiff’s motion to strike. As stated previously, the court
will address these motions in a separate order. Once the court has resolved
these motions the court will give the parties forty-five days to file motions for
summary judgment on the merits.
II.

Conclusion
The court GRANTS defendants’ motion for partial summary judgment on

exhaustion grounds. Dkt. No. 20.
The court DISMISSES the plaintiff’s claim that Clover and Kamphuis
denied his legal loan and disbursement requests for Case Number 15-cv-557 in
retaliation for the plaintiff filing that case.
The court ORDERS that the deadline for the parties to file motions for
summary judgment on the merits is STAYED. The court will set a new deadline
after it rules on the above-described pending motions.
Dated in Milwaukee, Wisconsin this 16th day of September, 2022.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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