Filing 48

ORDER granting 37 Motion for Summary Judgment and case dismissed as to all defendants. Signed by Chief Judge Barbara B Crabb on 3/16/2009. (llj),(ps)

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IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------D IO N T A REMARO CHEVELLE HAYWOOD, O PIN IO N AND ORDER Plaintiff, 0 7 - cv -3 4 1 - b b c v. M AR AT H O N COUNTY SHERIFF, R I C K Y BELL and M IC H A EL SCHAEFER, D efendan ts. --------------------------------------------T his is a civil action for monetary relief in which plaintiff Dionta Remaro Chevelle H aywoo d contends that while he was housed at the Marathon County jail, defendant Ricky B ell used excessive force against him on April 20, 2005 and defendant Michael Schaefer d en ied him medical treatment for the injuries he suffered from that incident. Jurisdiction is present. 28 U.S.C. 1331. N ow before the court is defendants' motion for summary judgment in which they argue that (1) plaintiff's claim against defendant Marathon County Sheriff should be d ism issed because plaintiff asserted no claims against him; (2) plaintiff's claim for denial of m edical treatment against defendant Schaefer should be dismissed for failure to properly 1 am end his complaint; (3) plaintiff's complaint should be dismissed for failure to exhaust his adm inistrative remedies; and (4) defendants are entitled to judgment as a matter of law b ecau se plaintiff was not subject to excessive force or denied adequate medical care; and (5) defendan ts are entitled to qualified immunity. Plaintiff submitted no brief in opposition to defendan ts' motion as well as no response to defendants' proposed findings of facts.1 B ecause plaintiff has failed to dispute defendant's proposed findings of fact, defendant's p ro p osed findings of fact may be deemed undisputed. Procedure to be Followed on Motions for Summary Judgment II.C.; Hedrich v. Board of Regents of University of Wisconsin S ystem , 274 F.3d 1174, 1177 (7th Cir. 2001) (upholding Western District of Wisconsin's lo cal rules regarding admitting moving party's proposed finding of fact when non-moving party fails to respond properly). I will dismiss defendant Marathon County Sheriff because plaintiff asserted no claims again st him but I will not dismiss plaintiff's amended complaint because he sufficiently com plied with this court's order for amending his complaint. Because I conclude that the On January 21, 2009, Magistrate Judge Stephen Crocker extended plaintiff's d ead lin e for filing responses to defendants' motion for summary judgment to February 20, 2 0 0 9 when the court discovered that plaintiff had been transferred to a new institution. H ow ever, despite the extended deadline, plaintiff failed to submit any responses to defendan ts' summary judgment materials and has filed no motion for an extension of time. A review of the Department of Corrections inmate locator shows that he remains in the same institution since his extension was granted. 1 2 un disputed facts establish that plaintiff failed to exhaust his administrative remedies with respect to both defendants Schaefer or Bell, I cannot reach the merits of plaintiff's case against either of them. Therefore, defendants' summary judgment motion will be granted an d I will not address defendants' arguments regarding the merits of this case. For the sole purpose of deciding defendants' motion, I find from the parties' proposed fa cts that the following facts are both undisputed and material. U N D IS PU T ED FACTS A. Parties Plaintiff Dionta Remaro Chevelle Haywood was an inmate at the Marathon County jail from March 9 to May 19, 2005. At all times relevant to this action, defendants Roderick Bell and Michael Schaefer w ere employed by the Marathon County Sheriff's Department. Defendant Bell was a co rrectio n s and detention officer and defendant Schaefer was employed as a corrections superviso r. B. Plaintiff's Underlying Claims O n the morning of April 20, 2005, plaintiff struck defendant Bell with a breakfast tray after defendant Bell placed his hand on the back of plaintiff's neck. After being struck, 3 defendant Bell attempted unsuccessfully to gain control of plaintiff by wrestling him to the gro und. Officer Timm sprayed plaintiff with "pepper spray" to restrain him. Eventually ad ditio n al officers arrived on the scene and restrained plaintiff by placing him on the floor an d handcuffing him. After this incident, neither defendant Bell nor officer Timm received or denied any written requests by plaintiff for medical care. Defendant Schaefer was not working at the Marathon County jail on the morning of Ap ril 20, 2005; he reported to the jail later that afternoon. On that day, defendant Schaefer served plaintiff with disciplinary papers regarding the altercation between plaintiff and d efen dan t Bell. Defendant Schaefer did not observe any injuries to plaintiff on April 20, 20 05 , and did not receive or deny any written requests for medical care from plaintiff. P lain tiff did not dispute the disciplinary charges and accepted the disciplinary sanction im po sed. C. Grievance Procedures Marathon County Jail The Marathon County jail maintains a grievance procedure. The grievance procedure requ ires that inmates "make written notification to the Corrections supervisor" of a "grievan ce, complaint or request." A grievance is forwarded to the Corrections Supervisor w ho reviews and investigates the grievance and issues a response "within a reasonable am ount of time." The grievance and response are placed in the inmate's file. Inmates may 4 su bm it a written appeal of a grievance decision to the jail administrator. Plaintiff did not subm it any written grievances or grievance appeals relating to his 1983 claim that he was subjected to the use of excessive force on April 20, 2005 or his 1983 claim that he was denied medical treatment for injuries he received from the incident. O PIN IO N B efo re addressing the issue of exhaustion, I will address defendants' argument for dism issing the claims against Marathon County sheriff as well as defendant Schaefer. D e fen dan t Marathon County Sheriff was named as a defendant for the sole purpose of helpin g to identify the unnamed jail officials who allegedly participated in the use of force again st plaintiff and denied him treatment afterwards. April 4, 2008 Order, dkt. #14, at 5. Because plaintiff identified the unnamed jail official as defendant Michael Schaefer, Amd. C pt., dkt. #33., the sheriff will be dismissed from this case. His presence is no longer necessary and plaintiff has asserted no separate claim against the sheriff. I disagree with defendant's argument that plaintiff amended his complaint improperly to add Schaefer as a defendant. First, plaintiff's amended complaint was filed on August 6, 2008 . If defendants' believed the amended complaint was improper, defendants should have filed a motion to dismiss plaintiff's amended complaint immediately after it was filed. S econ d, defendants' arguments are frivolous. In the Preliminary Pre-Trial Conference order 5 issued on June 18, 2008, plaintiff was told to identify the unnamed prison official who d en ied him medical treatment on April 20, 2005. Dkt. #22. His amended complaint identified this individual as Michael Schaefer. Although plaintiff's amended complaint was filed two days late, defendants have failed to show that they were prejudiced in any way by this delay. Therefore, I will not dismiss plaintiff's amended complaint. I turn to defendants' argument on plaintiff's failure to exhaust his administrative r em ed ies. Under the Prison Litigation Reform Act, "[n]o 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 rem edi e s as are available are exhausted." 42 U.S.C. 1997e(a). The purpose of these requ irem ents is to give the prison administrators a fair opportunity to resolve the grievance w itho ut litigation. Woodford v. Ngo, 548 U.S. 81, 88-89 (2006). Generally, to comply w ith 1997e(a), a prisoner must "properly take each step within the administrative process," P ozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which includes following instructions for filing the initial grievance, Cannon v. Washington, 418 F.3d 714, 718 (7th C ir. 2005), as well as filing all necessary appeals, Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005), "in the place, and at the time, the prison's administrative rules require." Pozo, 286 F.3d at 1025. Because exhaustion is an affirmative defense, defendants bear the b urd en of establishing that plaintiff failed to exhaust. Kaba v. Stepp, 458 F.3d 678, 681 6 (7th Cir. 2006); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). In this case, it is undisputed that Marathon County had a grievance procedure in place for detainees to lodge complaints regarding treatment and that plaintiff failed to file a grievance related to the claims in this suit. As a matter of law, plaintiff's failure to comply w ith the grievance procedures of the Marathon County jail means that he has failed to exh au st. Pozo, 286 F.3d at 1025. Therefore, plaintiff's claims against defendants Bell and Schaefer will be dismissed without prejudice. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 20 04 ) (dismissal for failure to exhaust is always without prejudice). ORDER IT IS ORDERED that the summary judgment motion of defendants Marathon C o u nty Sheriff, Ricky Bell and Michael Schaefer is GRANTED. Defendant Marathon C o unty Sheriff is DISMISSED from this lawsuit because plaintiff Dionta Remaro Chevelle H ayw oo d asserted no claims against him. Plaintiff's claims of excessive force against 7 d efen dan t Bell and denial of medical treatment against defendant Schaefer are DISMISSED w ithout prejudice for plaintiff's failure to exhaust his administrate remedies with respect to his claims against them. Entered this 16t h day of March, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge 8

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