Samsa v. Russell et al

Filing 25

ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 5/10/2024. 18 Defendant's motion for summary judgment GRANTED. Case DISMISSED WITHOUT PREJUDICE. (cc: all counsel and mailed to Dennis Samsa, 1704 1/2 Short Dr., Marinette, WI 54143)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DENNIS SAMSA,
Plaintiff,
v.

Case No. 23-cv-274-pp

JAMES RUSSELL,
Defendant.
______________________________________________________________________________
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 18) AND DISMISSING CASE
______________________________________________________________________________
Plaintiff Dennis Samsa, who was incarcerated at Columbia Correctional
Institution when he filed this case and who is representing himself, filed a
complaint alleging that prison officials violated his constitutional rights. The
court screened the plaintiff’s second amended complaint (Dkt. No. 9) and
allowed the plaintiff to proceed on an excessive force claim against defendant
James Russell. Dkt. No. 13 at 5. On March 29, 2024, the defendant filed a
motion for summary judgment on exhaustion grounds. Dkt. No. 18.
The court ordered the plaintiff to file a response to that motion by April 29,
2024, and warned him that failure to do so would result in the court
considering the motion without input from the plaintiff. Dkt. No. 23. The
plaintiff has not filed a response to the defendant’s motion. The court mailed its
order to the plaintiff at the address he provided to the court. Dkt. No. 12. The
court also has mailed previous orders to the plaintiff at that address; neither
the court’s March 29 order nor any of the previous orders were returned to the
court as undeliverable, so the court has no reason to believe that the plaintiff
did not receive the order setting April 29 as the deadline for him to respond to
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the defendant’s motion. The court will consider the motion unopposed, grant
the motion and dismiss this case.
I.

Defendant’s Motion for Summary Judgment
A.

Facts

The court allowed the plaintiff to proceed on an Eighth Amendment
excessive force claim against the defendant. Dkt. No. 20 at ¶1. The plaintiff
alleged that on November 27, 2022, the defendant used an incapacitating spray
against him after the spray was no longer needed. Id. The plaintiff filed one
administrative complaint relating to those allegations, but he failed to timely
appeal the complaint’s dismissal. Id. at ¶2.
On November 29, 2022, the plaintiff filed complaint WCI-2022-17889
alleging the defendant sprayed him with incapacitating spray after the plaintiff
had stopped resisting. Id. at ¶3. The institution complaint examiner (ICE)
reviewed the plaintiff’s complaint and associated video evidence, determined
there was no excessive force and recommended dismissal of the complaint. Id.
The reviewing authority dismissed the complaint on December 14, 2022. Id. at
¶4. That same day, the institution printed the reviewing authority’s decision for
distribution to the plaintiff. Id. The plaintiff then had fourteen days to appeal
the dismissal to the corrections complaint examiner (CCE), but he did not
submit an appeal until nearly one month later. Id.
On January 10, 2023, the plaintiff appealed the complaint to the CCE.
Id. at ¶5. The CCE rejected the plaintiff’s appeal because he filed it nearly two
weeks beyond the fourteen-day window for appealing the dismissal. Id. In his
CCE appeal, the plaintiff did not address the original complaint or incident’s
merits. Id. at ¶6. The plaintiff alleged that he never received a response from

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the ICE regarding his prior complaint because he was on a paper restriction
during the relevant period. Id.
The CCE investigated the plaintiff’s claim and found he was not on a
paper restriction from December 15, 2022 to January 5, 2023 and found no
good cause for the plaintiff’s appeal to be untimely. Id. at ¶7. The CCE properly
rejected the plaintiff’s untimely appeal. Id. at ¶8. The defendants have
subsequently confirmed independently that the plaintiff was not on a paper
restriction in either November 2022 or December 2022. Id. The Office of the
Secretary confirmed that the plaintiff’s appeal should be rejected as untimely.
Id. at ¶9.
B.

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.” Federal Rule of Civil Procedure 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 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

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(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).
C.

Discussion

The defendant contends that the plaintiff did not exhaust his
administrative remedies because he did not timely appeal the dismissal of his
initial complaint and the CCE found no good cause to extend the time limit.
Dkt. No. 19 at 8.
The Prison Litigation Reform Act (PLRA) provides that an incarcerated
individual 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 his 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 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
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expects incarcerated individuals 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).
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)).
To fully exhaust administrative remedies in Wisconsin, an incarcerated
person must file a complaint with the ICE within fourteen days after the
occurrence giving rise to the complaint. Wis. Admin. Code §DOC 310.07(2). The
ICE must accept the complaint, return it or reject it. Wis. Admin. Code §DOC
310.10(2). The ICE may reject a complaint if it is submitted beyond fourteen
days after the date of occurrence giving rise to the complaint and does not
include good cause to extend the time limits. Wis. Admin. Code §310.10(6)(e).
An incarcerated person may appeal a rejected complaint within ten days to the
appropriate reviewing authority who shall only review the basis for the rejection
of the complaint. Wis. Admin. Code §310.10(10). The reviewing authority’s
decision is final. Id.
An ICE who accepts a complaint must “send a recommendation to the
appropriate reviewing authority within 30 days from the date of receipt.” Wis.
Admin. Code §DOC 310.10(9). An ICE may recommend a complaint be
“affirmed or dismissed in whole or in part.” Wis. Admin. Code §DOC
310.10(12). If the reviewing authority dismisses the complaint, the inmate “may
appeal” to the CCE “within 14 days after the date of the decision.” Wis. Admin.
Code §DOC 310.12(1).
The CCE may return an appeal for five reasons listed in the Code, may
recommend rejection of an appeal that fails to comply with section 310.09, or
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may accept an appeal. Wis. Admin. Code §§DOC 310.12(2), (4)(a)–(e), (5).
Should the CCE accept the appeal, it must “recommend that the reviewing
authority decision be affirmed or dismissed, in whole or in part, and send its
recommendation to the secretary within 45 days of receipt of the appeal.” Wis.
Admin. Code §DOC 310.12(9). The secretary must then “make a decision
within 45 days following receipt of the [CCE’s] recommendation.” Wis. Admin.
Code §DOC 310.13(1). The secretary must “affirm or dismiss the [CCE’s]
recommendation, in whole or in part, or return the appeal to the [CCE] for
further investigation.” Wis. Admin. Code §DOC 310.13(2). “The secretary’s
decision is final.” Wis. Admin. Code §DOC 310.13(3).
The CCE rejected the plaintiff’s appeal because he filed it more than
fourteen days after the dismissal of his complaint. The plaintiff’s appeal stated
that he did not receive the decision dismissing his complaint due to a paper
restriction. The CCE report states that the CCE contacted the facility and
found that the plaintiff was not on a paper restriction from December 15, 2022
to January 5, 2023. It is undisputed that the plaintiff’s stated reason for
submitting his appeal late lacked merit so the CCE found no good cause to
accept the late appeal and recommended that it be rejected as untimely. “A
prison grievance rejected solely on the basis of untimeliness will not fulfill the
exhaustion requirement.” Conyers v. Abitz, 416 F.3d 580, 584 (7th Cir. 2005)
(citing Pozo, 285 F.3d at 1025). Thus, the plaintiff failed to exhaust his
administrative remedies. See Pozo, 286 F.3d at 1025 (“To exhaust remedies, a
prisoner must file complaints and appeals in the place, and at the time, the
prison’s administrative rules require.”). The court will grant the defendant’s
motion for summary judgment and dismiss this case without prejudice. See
Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004).
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II.

Conclusion
The court GRANTS the defendant’s motion for summary judgment. Dkt.

No. 18.
The court ORDERS that this case is DISMISSED WITHOUT
PREJUDICE. The clerk 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 Rules 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 Fed. Rule
of App. P. 4(a)(5)(A). If the plaintiff appeals, he will be liable for the $605
appellate filing fee regardless of the outcome of the appeal. If the plaintiff seeks
to proceed on appeal without prepaying the appellate filing fee, he must file a
motion in this court. See Fed. R. App. P. 24(a)(1). The plaintiff may be assessed
a “strike” by the Court of Appeals if it concludes that his appeal has no merit. If
the plaintiff accumulates three strikes, he will not be able to file a case in
federal court (except a petition for habeas corpus relief) without prepaying the
full filing fee unless he demonstrates that he is in imminent danger of serious
physical injury. Id.
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
Rule 59(e) must be filed within 28 days of the entry of judgment. The court
cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Rule
60(b) must be filed within a reasonable time, generally no more than one year
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after the entry of the judgment. The court cannot extend this deadline. See Fed.
R. Civ. P. 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 10th day of May, 2024.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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