Hahn v. Raemisch et al

Filing 27

ORDER denying as moot 22 Motion to Appoint Counsel ; granting 16 Motion for Summary Judgment. Signed by Chief Judge Barbara B. Crabb on 3/5/2010. (eds),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------D AV ID M. HAHN, ORDER Plaintiff, 0 9 - cv -5 5 5 - b b c v. M IC H A EL BAENAN, PETER ERICKSEN, PA TR IC K BRANT and SARAH COOPER, D efendan ts. --------------------------------------------In this lawsuit brought pursuant to 42 U.S.C. § 1983, plaintiff David M. Hahn, a priso ner at the Waupun Correctional Institution in Waupun, Wisconsin, alleges that while h e was incarcerated at the Green Bay Correctional Institution, defendants Michael Baenen, P eter Ericksen, Patrick Brant and Sarah Cooper violated his Eighth Amendment rights by failing to protect him from a substantial risk of serious harm at the hands of another inmate. N o w before the court is defendants' motion for summary judgment on the ground th at plaintiff has failed to exhaust his administrative remedies. Under Fed. R. Civ. P. 56, sum m ary judgment is appropriate if there are no genuine issues of material fact and the m oving party is entitled to judgment as a matter of law. In ruling on a motion for summary

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judgm ent, the admissible evidence presented by the plaintiff must be believed and all reaso n ab le inferences must be drawn in plaintiff's favor. Hunter v. Amin, 583 F.3d 486, 489 (7th Cir. 2009). Defendants have attached to their motion the affidavit of Thomas Gozinske and a cop y of plaintiff's inmate complaint history report, showing that plaintiff did not exhaust h is administrative remedies on his Eighth Amendment claim. Plaintiff has submitted no evid en ce but argues that I would not have allowed him to proceed on his claim if he had not exhausted his administrative remedies. Plaintiff is not correct. As Magistrate Judge Crocker explained to plaintiff in his December 21, 2009 Preliminary Pretrial Conference order, failur e to exhaust administrative remedies is an affirmative defense and it is one that, d efen dan ts may bring an early motion for summary judgment. Because there is no genuine issue of material fact related to exhaustion that requires a trial, defendants' motion will be granted. Id. From the facts proposed by defendants and undisputed by plaintiff, I find that the follow ing facts are material and undisputed.

U N D IS PU T ED FACTS P lain tiff David Hahn is an inmate at the Waupun Correctional Institution, Waupun, W isconsin. At all time material to this action, he was incarcerated at the Green Bay

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C orr ection al Institution, Green Bay, Wisconsin.

Defendants Michael Baenen, Peter

Ericksen, Patrick Brant and Sarah Cooper were employed at the Green Bay Correctional I n s t i t u ti o n . P lain tiff filed offender complaints in which he asked to be transferred to a different in stitu tio n , alleging that he was in danger at Green Bay because defendants were not protecting him from the danger presented by another inmate. When his complaints were denied, he did not appeal them to the corrections complaint examiner before filing this la w s u i t .

D I S C U S S IO N Under 42 U.S.C. § 1997e(a), a prisoner must exhaust all available administrative rem edies before filing a lawsuit in federal court challenging conditions of confinement. Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 537 (7th Cir. 1999) ("[A] case filed before exhaustion has been accomplished must be dismissed.) To satisfy exhaustion requirements, a prisoner must take all steps, including appeals, prescribed by the prison's grievance system. B u rrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005); Pozo v. McCaughtry, 286 F.3d 1022 , 1025 (7th Cir. 2002). Because exhaustion is an affirmative defense, defendants bear th e burden of establishing that plaintiff failed to exhaust. Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006); Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).

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W isconsin inmates have access to an administrative grievance system governed by the pro cedures set out in Wis. Admin. Code §§ DOC 310.01-310.18. Under these provisions, p riso n ers start the complaint process by filing an inmate complaint with the institution com plai n t examiner. Wis. Admin. Code §§ DOC 310.09. The complaint examiner may i n v e s t igate inmate complaints, reject them for failure to meet filing requirements, recom m end a disposition to the appropriate reviewing authority (the warden or the warden's designee) or direct the inmate to attempt to resolve the complaint informally. Id. at §§ 31 0.0 7(2 ), 310.09(4), 310.11, 310.12. If the institution complaint examiner makes a recom m enda tion that the complaint be granted or dismissed on its merits, the appropriate review i n g authority may dismiss, affirm or return the complaint for further investigation. Id. at § 310.12. If an inmate disagrees with the decision of the reviewing authority, he may appeal to a corrections complaint examiner, who is required to conduct an additional investigation when appropriate, and make a recommendation to the Secretary of the W isco n sin Department of Corrections. Id. at § 310.13. Within ten working days following receipt of the corrections complaint examiner's recommendation, the Secretary must accept th e recommendation in whole or with modifications, reject it and make a new decision or return it for further investigation. Id. at § 310.14. Although plaintiff complained to prison officials about his safety concerns, as dem on strated by several documents attached to his complaint, he did not appeal the adverse

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decisions on those complaints.

By failing to use the entire administrative process he

deprived the institution of a full opportunity to consider his complaint. Therefore, under the Prison Litigation Reform Act, his case must be dismissed without prejudice. 42 U.S.C. § 1997e(a); Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (dismissal for failure to exhaust is always without prejudice).

ORDER IT IS ORDERED that 1. The motion for summary judgment, dkt. #16, filed by defendants Michael This case is

B aenen , Peter Ericksen, Patrick Brant and Sarah Cooper is GRANTED.

D IS M IS S ED without prejudice for plaintiff David M. Hahn's failure to exhaust his ad m in istrative remedies. The clerk of court is directed to enter judgment for defendants and close this case. 2. Plaintiff's motion for appointment of counsel, dkt. #22, is DENIED as moot. Entered this 5 t h day of March, 2010. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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