Simpson, Willie v. Walker, Scott et al

Filing 98

ORDER that plaintiff Willie Simpson's motion for reconsideration of the June 30, 2014 preliminary pretrial conference order, Dkt. 50 , is DENIED. Plaintiff's motion for an extension of time to submit an amended complaint identifying the J ohn Doe defendants, Dkt. 57 , is DENIED as unnecessary. Plaintiffs motion for leave to amend his complaint, Dkt. 32 , is GRANTED. Plaintiff is granted leave to proceed against defendants Dane Esser, Wayne Primmer, Theran Gage, Chad Winge r, Christopher Foley, Ronald Torgerson, Lucas Runice, Travis Parr, Shawn Gallinger, C.O. Godfrey, Thomas Belz, Foley, Michael Sherman, Michael Cockcroft, Leverne Wallace, Mathew Scullion, Keith Weigel, and CO Kersten, Ellen Ray and William Brown. The state may have 21 days to file an answer to the amended complaint for all defendants it chooses to represent. Defendants Parr, Gallinger, Godfrey, Esser, Gage, Winger, Foley, Torgerson, Runice, Belz, Sherman, Cockcroft, Wallace, Sculli on, Weigel, Kersten, Ray, and Brown are added to the caption of this case. Plaintiffs motion for extension of time to file his response to defendants' motion for partial summary judgment, Dkt. 71 , is GRANTED. Plaintiffs motion to stay the briefing schedule on defendants' exhaustion motion, Dkt. 63 , and second motion for an extension of his response deadline, Dkt. 73 , are DENIED as moot. Defendants' motion for partial summary judgment based on plaintiff' s failure to properly exhaust his administrative remedies, Dkt. 59 , is GRANTED. Plaintiff's excessive force claims against defendants Mason, Flannery, Godfrey, Parr, and Gallinger for their actions during the July 25, 2013 incident are DISMIS SED without prejudice. Plaintiff may have until April 10, 2015, to show cause why his strip search claims regarding the July 25, 2013 incident should not also be dismissed for failure to exhaust administrative remedies. Plaintiff' s motions to sanction defendants' counsel, Dkt. 64, and to strike, Dkt. 65 , are DENIED. Plaintiff's motion for preliminary injunctive relief, Dkt. 81 , is PARTIALLY DENIED. Plaintiff's motion to file a reply brief, Dkt. 92 , is GRANTED. Plaintiff may have until April 10, 2015, to explain why he faces a realistic possibility of being transferred back to WSPF. Defendants may have until April 20, 2015, to file a sur-reply. Plaintiff's motion for extension of time to file supplemental briefing regarding his motion to seal documents, Dkt. 52 , is GRANTED. Plaintiff's motions to seal his medical records, Dkt. 33 , 54 , are GRANTED in part. Either party submitting plaintiff's medical records must do so under seal in accordance with the discussion above. Defendants may have until April 10, 2015, to respond to this order regarding the re-disclosure of plaintiff's medical information. The parties' motions to amend the sch edule in this case, Dkt. 94 , 96 , are GRANTED. The schedule is amended as follows: Supplemental Disclosure of Expert Witnesses: Plaintiff: April 20, 2015. Defendants: May 18, 2015. Deadline for Filing Dispositive Motions: June 1, 2015. Discover y Cutoff: October 12, 2015. Rule 26(a)(3) Disclosures and all motions in limine: October 12, 2015. Objections: October 26, 2015. Final Pretrial Conference: November 9, 2015. Signed by District Judge James D. Peterson on 3/30/2015. (Attachments: # 1 Example order) (jef),(ps) Modified on 3/30/2015 (jef).

IN THE UNITED STATES DISTRJCT COURT
FOR THE WESTERN DISTRJCT OF WISCONSIN

WILLIE SIMPSON,
OPINION & ORDER
Plaintiff,

v.

l 3-cv-77 6-jdp

SARA MASON, DIANE ESSER,
SHAWN GALLINGER, C.O. GODFREY,
TRAVIS PARR, SGT. PRJMMER,
CAPTAIN FLANNERY, GARY BOUGHTON,
and JOHN DOE GUARDS ,
Defendants.

In this case, plaintiff Willie Simpson, an inmate currently housed at the Waupun
Correctional Institution, is proceeding on claims that defendant prison officials at the Wisconsin
Secure Program Facility assaulted him twice and continued to threaten to kill him . Currently
before the court are several motions, chief among them plaintiff's motions for leave to amend
the complaint and for preliminary injunctive relief and defendants' motion for partial summary
judgment based on plaintiff's failure to exhaust his administrative remedies. After considering
the parties ' submissions, I will allow plaintiff to amend his complaint and screen his new claims
as well as expand the scope of his claims with regard the allegations he has already raised . I will
largely deny plaintiff's motion for preliminary injunctive relief but give him a chance to explain
whether he faces the possibility of being returned to the Wisconsin Secure Program Facility. I
will grant defendants' motion for partial summary judgment on exhaustion grounds. I will also
address a variety of other motions filed by the parties.

ANALYSIS
A.

Second amended complaint/Doe defendants
In a December 9, 2013 order, the court stated that plaintiff's original complaint, Dkt. l ,

raised claims that belonged in several different lawsuits. Dkt. 3. Plaintiff responded by filing
three proposed amended complaints. Dkts. 4, 9, 13. The court directed him to choose which
one of those lawsuits he wished to pursue in the present action. Dkt. 14. Plaintiff chose the
amended complaint raising claims about being repeatedly assaulted by correctional officers at
the Wisconsin Secure Program Facility (WSPF) , Dkt. 9, so that complaint became the operative
pleading.
In screening the amended complaint, the court allowed plaintiff to proceed on claims
against the above-captioned defendants, including "John Doe" correctional officers involved in
the attacks and threats, and stated as follows:
The matter of identifying the Doe defendants will be addressed at a
preliminary pretrial conference, which will be held before Magistrate Judge
Stephen Crocker after defendants have answered the complaint. After plaintiff
works with defendants to identify the Doe defendants, plaintiff will amend his
complaint to include their proper identities and obtain service of process upon
those defendants .
Dkt. 23 , at 7.
Before defendants answered or the preliminary pretrial conference was held , plaintiff
filed a motion to amend his complaint along with a proposed second amended complaint, in
which he adds new claims and defendants but did not identify the Doe defendants. Following
the answer, Magistrate Judge Crocker held the preliminary pretrial conference and issued an
order detailing the schedule for the remainder of the case. Dkt. 43 . In particular, the order set
out the process plaintiff would use to obtain discovery from defendants in order to amend his

2

complaint to identity the Doe defendants. That order explained what would be included in the
amended complaint naming the Doe defendants:
All that plaintiff needs to do in this document is tell the court the actual
identities of his Doe defendants . If there is more than one Doe, then plaintiff
must be very clear as to which Doe is which named person. Plaintiff does not
need to-in fact is not allowed to-make any other changes to his complaint
without first asking for and receiving permission from the court.

Dkt. 43 , at 4. Plaintiff responded by filing a motion to reconsider the preliminary pretrial
conference order, arguing that Magistrate Judge Cracker's language above contradicts the court's
screening order "granting [plaintiff] permission to amend governed by Rule 15, without giving
justifiable reason.'' 1 Dkt. 50, at 1. I understand plaintiff to be arguing that the preliminary
pretrial conference order foreclosed his ability to amend his complaint in substantive ways (as
he is attempting to do in his second amended complaint) and that his second amended
complaint must be allowed under Federal Rule of Civil Procedure 15 because that rule allows a
plaintiff to amend his complaint once "as a Matter of Course." Fed. R. Civ. P. 15(a)(l ).
Plaintiff is mistaken that the screening order discusses his right to file an amended
complaint outside of the purpose of identifying the Doe defendants. Nor is the preliminary
pretrial conference order language quoted above meant to foreclose substantive amendments.
That issue is explicitly addressed elsewhere in the order, which states that further amendments
may be made only with leave of the court. Dkt. 43, at 3. This language correctly describes the
standard applicable to plaintiff's second amended complaint; although Rule 15 allows a plaintiff
to amend his complaint once as a matter of course in certain circumstances, plaintiff has already
amended his complaint once. See Dkt. 9. Because there is nothing incorrect about Magistrate
Judge Cracker's order, I will deny plaintiff's motion for reconsideration.
1

Plaintiff labels his motion as one to amend judgment under Federal Rule of Civil Procedure
Rule 59(e), but because the preliminary pretrial conference order is not a judgment, his motion
is more properly thought of as a motion for reconsideration of that order.
3

Plaintiff's amended complaint must be considered under Rule 15(a)(2), which states that
the court "should freely give leave [to amend] when justice so requires. " I conclude that it is
appropriate to allow plaintiff to amend his complaint. I understand plaintiff to be adding a
number of substantive claims and defendants to the claims on which he is already proceeding.
As for identifying the Doe defendants , plaintiff filed a motion for an extension of time to

submit another amended complaint doing so, Dkt. 57 , but I will deny that motion as
unnecessary because in his declaration supporting his preliminary injunction motion , plaintiff
identifies the following additional defendants:
On 8-12-2013 .. . Theran Gage, Chad Winger, Christopher Foley, Ronald
Torgerson, and Lucas Runice took action administering force . ... "
Between 7-25-2013 and 10-2-2014 WSPF prison officials Foley .. .
Michael Sherman, Michael Cockcroft . . . Leverne Wallace, Mathew Scullion,
Keith Weigel , CO Kersten .. . have routinely come to my cell taunting and
threatening plaintiff stating the use of electronic taser on plaintiff on 7-25-2013
and 8-12-2013 fried plaintiff like a chicken and its not over they are going to kill
plaintiff.
Dkt. 84, at 5. 2 There is no need for plaintiff to submit a third amended complaint for the sole
purpose of inserting these names . The state will be given an opportunity to inform the court
whether it will be representing these defendants and submit an answer to the second amended
complaint on their behalf addressing the claims discussed below in the portion of this opinion
screening the second amended complaint.

2

In plaintiff's motion for extension of time to file a motion for summary judgment, Dkt. 96,
plaintiff states that he "has been unable to discover the John Doe defendants" because he has
been unable to obtain video evidence of the August 12, 2013 incident. Although this suggests
that he is not completely certain of the identities of the staff present during the incident, I will
tal<.e plaintiff at his word regarding his earlier declaration, made under penalty of perjury. Dkt.
84. This is supported by the fact that the staff members named by plaintiff as the Does in his
declaration almost completely overlap with the staff listed as present in the prison incident
report attached by plaintiff. Dkt. 84-1, at 9. Otherwise, to the extent plaintiff seeks discovery of
the video, he should mal<.e a request to defendants , and if necessary, follow up with a motion to
compel.
4

B.

Screening second amended complaint
I.

Excessive force/infliction of humiliation

Plaintiff is already proceeding on excessive force claims against defendants Mason,
Flannery, Godfrey, Parr, Gallinger, Esser, Primmer, and John Doe officers for two 2013
incidents in which they "beat[] him, us[ed] a stun gun on him for no reason and perform[ed]
anal searches on plaintiff solely to humiliate him." Dkt. 23, at 11. Mason, Flannery, Godfrey,
Parr, and Gallinger were involved in the July 25, 2013 incident, and Esser, Primmer, and John
Doe officers (now identified as defendants Gage, Winger, Foley, Torgerson, and Runice) were
involved in the August 12, 2013 incident. Upon reviewing the allegations in plaintiff's second
amended complaint, I conclude that plaintiff states additional claims regarding the two
incidents.
In particular, plaintiff states that during both incidents, defendants cut off his clothes
and conducted "anal searches" on him to humiliate him. A strip search violates the Eighth
Amendment when it is conducted in a harassing manner with the intent to humiliate and inflict
psychological pain rather than for legitimate prison purposes. Hamlin v. Holmes , 13-cv-202-bbc,
Dkt. 10 at 7-9 . (W.D. Wis. May 1, 2013). At this point, plaintiff's allegations are sufficient to
support claims regarding both the decision to subject him to such an invasive search and the
manner in which the search itself was executed. See id. at 8 ("Stated another way, the question is
whether there was any legitimate penologicaJ reason for both the search and its scope.") ; Vasquez

v. Raemisch, 480 F. Supp. 2d 1120, 1131-32 (W.D. Wis. 2007) (granting leave to proceed on
manual strip search where officers did not give plaintiff opportunity to consent to visual search
and no allegations indicate legitimate reason preventing visual inspection).
Similarly, plaintiff states an Eighth Amendment claim against defendants Esser,
Primmer, Gage, Winger, Foley, Torgerson, and Runice, whom he states on August 12, 2013,

5

"forced [him] to crawl into [his] cell or be shot," because I can infer that defendants
intentionally humiliated plaintiff by forcing him to demean himself.
It is important to note that screening the allegations in plaintiff's second amended
complaint is not the final step in determining whether plaintiff will be allowed to proceed with
his various claims going forward. As discussed in further detail below, I will grant defendants'
motion for summary judgment based on plaintiff's failure to exhaust his administrative remedies
with regard to the July 25, 2013 excessive force claims. This means that even though his second
amended complaint states excessive force claims against defendants Mason, Flannery, Godfrey,
Parr, and Gallinger for their actions during the July 25, 2013 incident, those claims will be
dismissed from the case without prejudice. See infra , at 15-16.

2.

Failure to protect

Plaintiff is already proceeding on Eighth Amendment failure to protect claims against
defendants Parr, Gallinger, Godfrey, Esser, and John Doe officers (now identified as defendants
Foley, Sherman, Coclccroft, Wallace, Scullion, Weigel , and Kersten) for making ongoing threats
of harm to plaintiff. Plaintiff now alleges that newly named defendant correctional officer
Thomas Belz joined these other defendants in threatening him. I will allow him to proceed on
his claim against Belz.
Construing plaintiff's amended complaint generously, I understand him to also be
alleging that newly named defendant complaint examiners Ellen Ray and William Brown
ignored his complaints about the use of force and threats against him, so I will allow him to
proceed on failure to protect claims against these defendants. See Burks v. Raemisch, 555 F.3d
592, 595 (7th Cir. 2009) ("One can imagine a complaint examiner doing her appointed tasks
with deliberate indifference to the risks imposed on prisoners. If, for example, a complaint

6

examiner routinely sent each grievance to the shredder without reading it, that might be a
ground of liability.").
3.

Restraint and use of force policy

The bulk of plaintiffs new allegations concerns a "security precaution restraint policy" he
was placed on by defendant Jerry Sweeney, the WSPF security director. I understand plaintiff to
be saying that the two alleged attacks by correctional officers discussed above were at least in
part authorized under this policy.
In his complaint, plaintiff does not explain the exact contours of this policy, but states
that it was "proscribed by (Wis. Admin. Code §§] DOC 306.07(2)(g) and 306.09(3)(g) by 4
man total with electronic Taser device and mechanical restraints ... for all responses without
regard for the need to apply force or amount of force required to restore discipline." Dkt. 32, at
4.

I understand plaintiff to be attempting to bring due process claims for regular use of
restraints "for all responses" by correctional officers and excessive force claims for the policy's
authorization of the use of force via stun gun no matter whether plaintiff is actually failing to
comply with officers.
Plaintiff has no possible constitution!il claim regarding the use of a four-person response
team or the use of restraints "for all responses, " because there is nothing in plaintiffs allegations
of added security measures that rises to a potential constitutional violation. Even construing his
allegations generously, he has not alleged a significant deprivation of liberty. Thielman v. Leean ,
282 F.3d 478, 484 (7th Cir. 2002) ("The added restraints of a waist belt and leg chains are not
"atypical " and "significant" hardships in relation to Thielman's confinement.").
As for the excessive force claim, the administrative code provisions cited by plaintiff are

somewhat open-ended. Wis. Admin. Code §DOC 306.07 is titled "use of force." Subsection (2)
7

states in relevant part: "Staff may use non-deadly force against inmates only if the user of force
reasonably believes it is immediately necessary to realize one of the following purposes: . .. (g)
To enforce a departmental rule, a policy or procedure or an order of a staff member." Section
306.09 is titled "use of incapacitating agents." Subsection (3) states in relevant part: "Staff may
use incapacitating agents in any of the following situations: . . . (g) To enforce a departmental
rule, policy or procedure or an order of a staff member. " Plaintiff seems to be arguing that these
provisions allow the use of force or incapacitating agents any time a prisoner fails to follow a
rule or an official's order, no matter how minor that failure is, and thus the policy applied to
him by defendant Sweeney led to him being tased during both of the incidents discussed above
even though there was no need to use that amount of force. Plaintiff is correct that, at least on
the face of these regulations , there is no mention of whether the use of force must be related to
the need for its use or the extent of the threat faced by prison officials, which informs part of an
excessive force analysis. See Dkt. 23, at 6-7.
The question whether plaintiff states a viable excessive force claim regarding the policy
based solely on the vague allegations in the complaint and the statues cited by plaintiff is a close
call. However, in briefing his motion for preliminary injunctive relief, plaintiff further details his
claim by providing a copy of the "security precaution restraint policy. " Dkt. 84-1 , at 3-5 . This
policy describes extra security precautions to be taken when transporting plaintiff, including
how plaintiff should present himself to staff for the placement of hand and leg restraints, and
that a security supervisor would be present with a stun gun. Id. The statement does not contain
any provision suggesting that the use of force , including the use of the stun gun, is somehow
more warranted against plaintiff based on his placement under the policy. Id. In short, there is
nothing in this policy encouraging prison staff to use the stun gun or beat and strip search
plaintiff.

8

In the court's original screening order, Judge Crabb warned plaintiff about bringing
claims that he could not prove at the preliminary injunction phase:
Finally, I warn plaintiff about the ramifications facing litigants who abuse
the imminent danger exception to their three-strike status. The only reason that
plaintiff has been allowed to proceed in Jonna pauperis in this case is that his
allegations suggest that he was under imminent danger of serious physical injury
at the time that he filed his complaint. The "imminent danger" exception under
28 U.S.C. § l 915(g) is available "for genuine emergencies," where "time is
pressing" and "a threat ... is real and proximate." Lewis v. Sullivan , 2 79 F.3d 526,
531 (7th Cir. 2002). In certain cases it may become clear from the preliminary
injunction proceedings that a plaintiff who has already received three strikes
under § 1915 (g) for bringing frivolous claims has exaggerated or even fabricated
the existence of a genuine emergency in order to circumvent the three-strikes bar.
I am particularly aware of this possibility in this case given the similarities
between plaintiff's current allegations and those he has raised in previous cases in
this court. If plaintiff again proves unable to support his claims with evidence, I
may revoke the court's grant of leave to proceed in Jonna pauperis or put in place
further filing bars as a sanction against plaintiff.
Dkt. 23 , at 10-11.
Because plaintiffs preliminary injunction briefing makes clear that defendant Sweeney
did not do anything to authorize or condone other defendants' alleged excessive force by placing
him under the "security precaution restraint policy," there is no reason to allow plaintiff to
proceed on an excessive force claim against Sweeney or any of the other government officials he
names as approving or condoning the policy, Governor Scott Walker, Warden Gary Boughton,
and Division of Adult Institution Administrator Cathy Jess .
C.

Exhaustion

Defendants have filed a motion for partial summary judgment based on plaintiff's failure
to exhaust his excessive force claims regarding the July 25 , 2013 incident. Plaintiff initially
responded by filing a motion to stay the briefing schedule and two motions to extend his
response deadline, arguing that prison officials were keeping him from the law library.
Defendants opposed plaintiff's motions, arguing that plaintiff has forfeited some of his library

9

time because he threatened staff who arrived to escort him and, in any case, indeed received
some library time. There is no need to conduct a hearing over plaintiff's library access because
he ultimately provided his summary judgment response about ten days after the original
deadline. In light of plaintiff's status as a pro se prisoner, I will grant his motion for an extension
of time and consider his response to be timely filed.
To succeed on a motion for summary judgment, the moving party must show that there
is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "A genuine issue of material

fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to
return a verdict for that party." Brummett v. Sinclair Broad. Group, Inc., 414 F.3d 686 , 692 (7th
Cir. 2005) . All reasonable inferences from the facts in the summary judgment record must be
drawn in the nonmoving party's favor. Baron v.

Ciry of Highland Park, 195 F.3d 333, 338 (7th

Cir. 1999). If the nonmoving party fails to establish the existence of an essential element on
which that party will bear the burden of proof at trial , summary judgment for the moving party
is proper. Celotex, 477 U.S. at 322.
Under 42 U.S.C. § l 997e(a), "[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 remedies as are available
are exhausted. " The exhaustion requirement is mandatory, Woodford v. Ngo, 548 U.S. 81, 85
(2006 ), and "applies to all inmate suits." Porter v. Nussle, 534 U.S. 516, 524 (2002). The
purpose of administrative exhaustion is not to protect the rights of officers, but to give prison
officials a chance to resolve the complaint without judicial intervention. Perez v. Wis. Dep't of

Corr., 182 F.3d 532, 537-38 (7th Cir. 1999) (exhaustion serves purposes of "narrow[ing] a
dispute [and] avoid[ing] the need for litigation").
10

Generally, to comply with § l 997e(a) , a prisoner must "properly take each step within
the administrative process," Pozo 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 Cir. 2005), as well as filing all necessary appeals, Bun-ell 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. However, "[i]f administrative remedies are not 'available' to an
inmate, then the inmate cannot be required to exhaust. " Kaba v. Stepp, 458 F.3d 678, 684 (7th
Cir. 2006). Because exhaustion is an affirmative defense, defendant bears the burden of
establishing that a plaintiff failed to exhaust his available remedies. Jones v. Bock, 549 U.S . 199,
216 (2007).
It is undisputed that after the July 25, 2013 incident, plaintiff filed inmate grievance no.
WSPF-2013-14786 through the Inmate Complaint Review System (ICRS) , alleging that
correctional officers used excessive force against him. Defendant Institution Complaint
Examiner Ellen Ray responded to that grievance by sending a letter to plaintiff stating in
relevant part:
In this complaint you allege staff misconduct. The ICE cannot investigate
such allegations. Therefore, if you wish to proceed with this complaint, you will
need to submit a statement outside of the ICRS and it will be investigated by a
Security Supervisor.
If you choose to do this, please complete the statement on the enclosed
paper, sign and date it and return it to this office by 8-12-13.

Dkt. 77-1, at 2. According to Ray, plaintiff did not respond to this letter (as discussed below,
plaintiff disputes this assertion) . Her formal response to plaintiff's grievance stated as follows:

DAI Policy and Procedure #310.00.0 I states in part, "When an ICE
receives a complaint alleging staff misconduct of a non-sexual nature, the inmate
must be interviewed as soon as possible. At the interview the inmate will be
advised of the provisions of DOC 303.271 (lying About Staff) . If the inmate
wishes to proceed with the complaint, an in-depth interview must follow,
11

resulting in a detailed written statement signed by the inmate. Refusal of the
interview, refusal to provide details or refusal to sign the statement shall result in
dismissal of the complaint for failure to cooperate."
The ICE sent inmate Simpson a memo on 7-29-13 . He did not wish to
complete a statement.
Dkt. 61 -3. Warden Tim Haines, the ICRS "reviewing authority, " agreed with Ray's
recommendation and dismissed the grievance. Plaintiff did not appeal the dismissal.
Plaintiff was also given conduct report no. 2356076 for breal<lng his television and a cell
window, and for threatening prison staff. Plaintiff did not attend the disciplinary hearing, at
which he was found guilty of threats, disobeying orders, and damage or alteration of property,
nor did he appeal the disciplinary decision to the warden.
Defendants argue that because Wis. Admin. Code § DOC 310.08 requires prisoners
complaining about issues relating to a conduct report to raise those issues during the disciplinary
hearing itself rather than in the usual inmate grievance system, he failed to exhaust his
administrative remedies regarding the July 25, 2013 incident. 3 In the alternative, they argue that
plaintiff failed to exhaust even the ICRS portion of the proceedings.
Plaintiff argues that the reason he did not attend the disciplinary proceeding was that
Ray's response to his grievance instructed him to complete a statement "outside of the ICRS"
for review by a security supervisor. Plaintiff further argues that, contrary to Ray's assertion, he
did properly respond to her request for a statement by sending a statement both to her and to

3

Wis. Admin. Code§ DOC 310.08(2) states in relevant part that "[a]n inmate may not use the
[Inmate Complaint Review System] to raise .. . [a]ny issue related to a conduct report, unless
the inmate has exhausted the disciplinary process in accordance with ch. DOC 303." Section
§DOC 310.08(3) states that an inmate may use the Inmate Complaint Review System to
"challenge only the procedure used in . . . the disciplinary process, " but plaintiff is not arguing
that the grievance he filed through the ICRS process was about the procedure of his disciplinary
proceedings.
12

defendant Jess, the Division of Adult Institution administrator. Plaintiff includes Jess's response
in his summary judgment materials. Jess responded as follows:
Your allegation that staff at the WSPF assaulted you has been reviewed .
There is no evidence to suggest you were attacked and assaulted. The incident in
which you speak of was videotaped and incident reports were written by staff
concerning your behavior at the time of this incident. In addition, a Use of Force
review was completed by trained staff who determined this incident to be a
proper use of force due to your disruptive behavior, which included you breaking
out a cell window and smashing a state issued television. You also refused to
cooperate with Supervisors when they tried to move you from the damaged cell.

***
I trust this will address your concerns.
Dkt. 77-1, at 3. Plaintiff states that he did not complete the process for his ICRS grievance
because "ICE Ray instructed plaintiff that the ICRS is not an available remedy to the
investigative grievances of staff misconduct, assault." Dkt. 75 , at 3. Thus I understand plaintiff
to be arguing that administrative remedies were not available to him because staff misinformed
him about the steps he needed to take to do so.
"Prison officials may not talce unfair advantage of the exhaustion requirement ... and a
remedy becomes 'unavailable' if prison employees do not respond to a properly filed grievance
or otherwise use affirmative misconduct to prevent a prisoner from exhausting." Dole v. Chandler,
438 F.3d 804 at 809 (7th Cir. 2006) . Although there is good reason for prisoners (and this
court) to remain confused about the intersection of the DOC's disciplinary proceedings, JCRS
process, and DAI Policy and Procedure #310.00.01, and how to properly exhaust administrative
remedies in situations in which prison officials invoke these various tracks, prisoners are still
required to attempt to follow administrative rules and the directions of prison staff. On the facts
in the record, there is no reason to conclude that defendants used misconduct to prevent
plaintiffs exhaustion efforts.
13

To start with, because Wis. Admin. Code § DOC 310.08 requires prisoners complaining
about issues relating to a conduct report to raise those issues during the disciplinary hearing,
plaintiff's failure to do so creates a failure to exhaust administrative remedies unless he could
show that prison officials misled him about the process. I understand pl.a intiff to be arguing that
ICE Ray's response to his grievance served to mislead him because it gave his instructions on
how to pursue his grievance rather than stating outright that he could not bring an ICRS
grievance about a disciplinary issue. Even assuming that this oversight by Ray would excuse
plaintiff from exhausting the disciplinary process, he would still have to exhaust the ICRS
process.
Plaintiff responds to his failure to exhaust the ICRS process by first stating that he did in
fact respond to Ray's request for an "outside statement." To the extent that this is a disputed
issue of fact, I must credit plaintiff's statement that he complied with Ray's directive. But even
if his grievance was dismissed for an incorrect reason, plaintiff would be required to appeal the
dismissal. Plaintiff attempts to argue that Ray misled him about the availability of the ICRS
process because she "instructed plaintiff that the ICRS is not an available remedy to the
investigative grievances of staff misconduct, assault."
However, this is not a reasonable interpretation of the events at issue. Although the
intersection of the ICRS process and DAI Policy and Procedure #310.00.01 remains
unexplained by defendants, the facts of this case differ from a recent case in which I found that
the state failed to prove exhaustion because a prisoner's grievances appeared to be handled
under a parallel process under the DAI procedure. Naseer v. Belz, No. 13-CV-821-JDP, 2015 WL
519760, at *2 (W.D. Wis. Feb. 9, 2015) ("it is difficult to see why the ICRS process is relevant
to plaintiff's exhaustion. The ICRS examiners themselves concluded that plaintiffs' grievance
should not be considered within the ICRS framework. Rather, the grievance was addressed 'in a

14

manner similar to DAI Policy 310.00.01"'). In the present case, Ray instructed plaintiff that
"[t]he ICE cannot investigate such allegations," required plaintiff to submit to Ray a "statement
outside of the ICRS" to Ray's office, and then dismissed plaintiff's grievance for his failure to
submit that statement, not because his grievance did not belong in the ICRS system itself or
that it was already being handled in a parallel DAI proceeding. Plaintiff was given an explicit
instruction that he could appeal the dismissal, yet he chose not to do so.
Plaintiff also argues that he followed Ray's instructions by sending a copy of his "outside
statement" to Jess , but this is not what Ray's instructions said. Plaintiff was directed to return
his statement "to this office," meaning Ray's office. Thus, Jess 's response is irrelevant for
purposes of the administrative grievance process. Any confusion on plaintiff's part about
whether the letter to Jess served to exhaust is plaintiff's responsibility for misreading the
instructions , not Ray's.
Although Ray's instructions to plaintiff do not provide perfect clarity about how the
grievance process would have continued after he submitted his "outside statement," the
instructions did not mislead plaintiff to thinking that his complaint was actually being processed
in some parallel proceeding. Rather, the only reasonable interpretation of the record is that
plaintiff's grievance was dismissed in the ICRS system, rightly or wrongly, for his failure to
submit an "outside statement" to Ray, and the next step in this process would have been to file
an appeal. Even assuming that plaintiff's failure to pursue the disciplinary process is excused,
plaintiff's failure to file an appeal in the ICRS process means that he failed to exhaust his
administrative remedies.
I will therefore grant defendants' motion for partial summary judgment on plaintiff's
excessive force claims against defendants Mason, Flannery, Godfrey, Parr, and Gallinger for their
actions during the July 25, 2013 incident. Those claims will be dismissed without prejudice. Ford
15

v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (dismissal for failure to exhaust is always without
prejudice) .
The leaves the question how to handle plaintiff's strip search claims regarding the July
25 , 2013 incident. Although defendants' exhaustion motion did not explicitly cover this claim
(because plaintiff had not yet been allowed to proceed on it) , it appears that plaintiff filed no
other grievances about this incident, so his failure to exhaust his excessive force claim almost
certaiq.ly means that he has also failed to exhaust the strip search claim. Before formally
dismissing the strip search claim, however, I will give plaintiff a short deadline to object to this
conclusion and explain, with supporting evidence, how he has exhausted the July 25 , 2013 strip
search claim.
D.

Motion for sanctions

Plaintiff has filed a "Motion to Sanction Defendants Attorney for Bad Faith Conduct,"
Dkt. 64. Plaintiff asks for defendants' counsel to be sanctioned for responding to plaintiff's
request for admission that defendant Warden Boughton did not file his oath of office under
Wisconsin law by stating that he had in fact done so properly. Dkt. 66-1 . Defendants'
suggestion that this issue is irrelevant is correct, because the warden's oath has nothing to do
with whether any of the defendants in this case have violated plaintiff's constitutional rights. In
any event, there is no reason to sanction defendants' counsel for responding to a discovery
request by answering the question asked, even if plaintiff believes defendants' position on the
legal question regarding the oath of office is incorrect. Finally, plaintiff's theory about prison
wardens ' oaths of office has already been rejected as meritless. See Simpson v. Wisconsin Dep't of
Corr. , No. 14-C-197, slip op. at 4 (Mar. 17, 2014) ("even if Simpson is correct tl1at Warden

Haines has not properly filed his oath of office, Haines' actions as warden are not rendered

16

invalid as a result. The acts of an officer who fai led to file an oath of office required by law is a

de facto officer, and a de facto officer's acts are valid.") .
Plaintiffs' motion will be denied . Similarly, I will deny plaintiff's motion to strike the
document purporting to be defendant Boughton's oath of office. Dkt. 65.
E.

Preliminary injunctive relief

Plaintiff has filed a motion for preliminary injunctive relief asking for four separate types
of relief:
•

An "order prohibiting the state practice of making de facto officers acts valid in

the immediate future";
•

An "order prohibiting the enforcement of DOC rules 306.07(2)(g) , 306.09(3)(g),

306. l 7(2)(A)(C)(5) and WSPF 3 man escort with taser and supervisor security
precaution policy";
•

An "order prohibiting Gary Boughton, Shawn Gallinger, Sarah Mason , Darryl

Flannery, Dane Esser, Thomas Belz, Jason Godfrey, Travis Parr, Chad Winger,
Wayne Primmer, Theran Cage, Christopher Foley, Lucas Runice from having any
contact, direct, or indirect with plaintiff, in the immediate future"; and
•

Order Governor of Wisconsin and Defendants to transfer plaintiff to another
institution immediately.

The first two of these requests will be denied for reasons discussed earlier in this opinion.
The issue of defendants' oaths of office is irrelevant to whether any of them violated plaintiffs
constitutional rights by using excessive force , unreasonably strip searching him, threatening him ,
or humiliating him. Also, I have already concluded that plaintiff cannot maintain due process or
excessive force claims about the security policy plaintiff was placed under, so there is no reason
to consider injunctive relief for those claims.
I understand plaintiffs third and fourth requests to concern plaintiff's allegations that
staff at the Wisconsin Secure Program Facility openly threatened to beat him, use a stun gun
unnecessarily against him, and even kill him. Defendants argue that plaintiffs transfer to the
17

Waupun Correctional Institution moots his requests. In filing a motion for leave to file a reply
brief, plaintiff argues that he "may be transferred back to WSPF to face the same injury/danger. "
Dkt. 92 , at I.
Usually, "when a prisoner who seeks injunctive relief for a condition specific to a
particular prison is transferred out of that prison, the need for relief, and hence the prisoner's
claim, become moot." Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir. 2004). However, a claim may
not be mooted if the prisoner can show "a realistic possibility that he will again be incarcerated
in the same state facility and therefore be subject to the actions of which he complains here."

Maddox v. Love, 655 F.3d 709 , 716 (7th Cir. 2011 ). Given WSPF's role as a facility for inmates
with behavioral problems, coupled with allegations in both the present case and past litigation in
this court that plaintiff is a security risk, it seems possible that plaintiff could indeed find
himself back at WSPF in short order. I will grant plaintiffs motion to file a reply brief to give
him a chance to explain why he thinks he will end up back at WSPF. Defendants will be given a
chance to respond.
F.

Sealing medical records
Shortly after the court issued its original screening order, plaintiff filed a motion to "seal

[his] medical records in this case." Dkt. 33. Defendants stated that they did not oppose the
motion , and that if permitted by the court, they would file under seal any medical records they
filed. Dkt. 35 . In a June 9, 2014 order, Magistrate Judge Crocker concluded that he could not
rule on the motion without plaintiff explaining in more detail what he wanted the court to do:
Perhaps [plaintiff] is just asking what defendants understand him to be asking: for
the court to order his medical records to be sealed as they are submitted the
court. But plaintiff does not explain what medical records he thinks will be
submitted or how they might pertain to his claims. In addition, plaintiff states
that he has a "right to privilege" under the Health Insurance Portability and
Accountability Act and that the Wisconsin Department of Corrections has
"adopted the HIPAA privacy rule." Although tl'lis is unclear, it sounds like
18

plaintiff might have concerns about the discovery process itself and how and to
whom defendants might disclose his medical information. Moreover, the court is
aware that the state usually asks for authorization from a prisoner before
obtaining his medical file, but it is unclear whether plaintiff is attempting to raise
any authorization issues in his motion or seek a protective order clarifying how
defendants may use this information.
Dkt. 36, at 1-2. Judge Crocker requested supplemental briefing on the issue. Id. at 2.
Plaintiff was granted two extensions of time and ultimately filed his supplemental
briefing, Dkt. 54, 58, only after asking for a third extension of time, Dkt. 52. Because it does
not prejudice defendants, I will grant the request for a third extension of time and consider his
supplemental brief.
Plaintiff now clarifies that he "does not seek to prevent defendants from using any of
[his] medical records in this case . . . relevant to defend against plaintiff['s] allegations of
physicaVemotional harm" but states that he "seek[s] an order to seal his medical records ...
which are to be filed with the court and any medical records not necessary to defend against my
allegations to prevent disclosure + use outside the scope of which the signed authorization is
limited to." Dkt. 58, at 3. He also states that he "do[es] not want [his] medical records to be
disclosed outside of this case ... and wind up on TV for discussion or on Internet or for
personal use."
Plaintiffs response is still not crystal clear, but I understand him to be raising two
separate requests: ( 1) for his medical records submitted to this court to be sealed; and (2) for
defendants or their lawyers not to disclose his medical information for any reason other than
this litigation. As far as the court record is concerned, I will not grant a blanket seal to all of
plaintiff's medical records regardless of how they are used in public court proceedings. See

Citizens First Nat. Bank of Princeton v. Cincinnati Ins. Co. , 178 F.3d 943, 945 (7th Cir. 1999).
("The determination of good cause [under Fed. R. Civ. P. 26(c)] cannot be elided by allowing
19

the parties to seal whatever they want." ). Instead, I will follow the example of the Eastern
District of Wisconsin:
I recognize plaintiff's concerns regarding the availability of his sensitive medical
and mental health information in a public forum. I conclude that there is good
cause to place plaintiff's certified medical records under seal, but the good cause
does not extend to those portions of the records so relevant to plaintiff's claim
that they have been cited or quoted by the parties or the court in other
documents. Therefore, I will fashion a hybrid remedy. To the extent that
information from the medical records is incorporated into other documents filed
by the parties or orders issued by this court, that information will remain visible
to the public. I will place the source documents themselves under seal , though.

Chapman v. Raemisch, No. 05-C-1254 , 2009 WL 425813 , at *7 (E.D. Wis. Feb. 20, 2009 ).
Accordingly, the parties shall submit plaintiff's medical records under seal , but they are free to
quote and cite to relevant medical information in filings or at trial. If plaintiff believes defendants
have introduced irrelevant sensitive material, he may file a motion to strike such references. On
the other hand, either party or any interested member of the public may move to unseal any
portion of a sealed filing in this case.
Plaintiff should understand that when he filed this lawsuit, he gave up his right to keep
relevant medical information used to litigate this action private. He, of course, remains free to
dismiss the lawsuit if he would rather keep relevant medical information out of the public
record .4
As for defendants ' use of plaintiff's medical records outside of the lawsuit, I understand
plaintiff to be asking for a protective order. At present, I am unaware of the precise wording of
the medical record authorization form that plaintiff has already submitted to defendants, so I do
not know whether defendants have already agreed to limit re-disclosure of information in any
way. I will give defendants a short time to respond to this order, explaining whether they have

4

Plaintiff should also consider that medical information he might consider sensitive may already
be part of the public record from his previous litigation in this and other courts.
20

already agreed to limits on re-disclosure or, alternatively, whether they would be willing to
stipulate to a protective order regarding plaintiff's medical information. I will attach to this
order an example of such an order from a previous case in this court, case no. l l -cv-443-bbc.
G.

Motion to amend schedule

Defendants have filed a motion to extend their January 23 , 2015 deadline for expert
disclosures and both parties have moved to extend the February 9, 2015 dispositive motion
deadline. I will grant these motions and set a new schedule as follows:
•

Supplemental Disclosure of Expert Witnesses: Plaintiff: April 20, 2015
Defendants: May 18, 2015

•

Deadline for Filing Dispositive Motions: June 1, 2015

•

Discovery Cutoff: October 12, 2015

•

Rule 26(a)(3) Disclosures and all motions in limine: October 12, 2015
Objections: October 26 , 2015

•

Final Pretrial Conference: November 9, 2015 at 8:30 a.m.
Trial: November 9, 2015 at 9:00 a.m.

ORDER
IT IS ORDERED that:
1.

Plaintiff Willie Simpson's motion for reconsideration of the June 30, 2014
preliminary pretrial conference order, Dkt. 50, is DENIED.

2.

Plaintiff's motion for an extension of time to submit an amended complaint
identifying the John Doe defendants, Dkt. 57 , is DENIED as unnecessary.

3.

Plaintiffs motion for leave to amend his complaint, Dkt. 32, is GRANTED.
Plaintiff is granted leave to proceed on the following claims:
a. Eighth Amendment excessive force claims against defendants Dane Esser,
Wayne Primmer, Theran Gage, Chad Winger, Christopher Foley, Ronald
Torgerson, and Lucas Runice for beating plaintiff, using a stun gun on him for
no reason, and performing an anal search on him on August 12, 2013 .

21

b. Eighth Amendment strip-search claims against defendants Esser, Primmer,
Gage, Winger, Foley, Torgerson, and Runice for performing an anal search of
plaintiff solely to humiliate him.
c. An Eighth Amendment claim against defendants Esser, Primmer, Gage,
Winger, Foley, Torgerson, and Runice for forcing plaintiff to crawl into his
cell.
d. Eighth Amendment failure to protect claims against defendants Travis Parr,
Shawn Gallinger, C.O. Godfrey, Esser, Thomas Belz, Foley, Michael Sherman,
Michael Cockcroft, Leverne Wallace, Mathew Scullion, Keith Weigel, and CO
Kersten for threatening harm to plaintiff, and against defendants Ellen Ray
and William Brown for ignoring his complaints.
4.

Defendants Gage, Winger, Foley, Torgerson, Runice, Belz, Sherman, Cockcroft,
Wallace, Scullion, Weigel, Kersten, Ray, and Brown are added to the caption of
this case.

5.

The state may have 21 days to file an answer to the amended complaint for all
defendants it chooses to represent.

6.

Plaintiffs motion for extension of time to file his response to defendants' motion
for partial summary judgment, Dkt. 71, is GRANTED. Plaintiffs motion to stay
the briefing schedule on defendants' exhaustion motion, Dk.t. 63, and second
motion for an extension of his response deadline, Dkt. 73, are DENIED as moot.

7.

Defendants' motion for partial summary judgment based on plaintiff's failure to
properly exhaust his administrative remedies, Dkt. 59, is GRANTED. Plaintiff's
excessive force claims against defendants Mason, Flannery, Godfrey, Parr, and
Gallinger for their actions during the July 25, 2013 incident are DISMISSED
without prejudice.

8.

Plaintiff may have until April 10, 2015, to show cause why his strip search claims
regarding the July 25, 2013 incident should not also be dismissed for failure to
exhaust administrative remedies.

9.

Plaintiff's motions to sanction defendants' counsel, Dkt. 64, and to strike, Dkt.
65 , are DENIED.

10.

Plaintiff's motion for preliminary injunctive relief, Dkt. 81, is PARTIALLY
DENIED. Plaintiff's motion to file a reply brief, Dk.t. 92, is GRANTED. Plaintiff
may have until April 10, 2015 , to explain why he faces a realistic possibility of
being transferred back to WSPF. Defendants may have until April 20, 2015, to
file a sur-reply.

11.

Plaintiff's motion for extension of time to file supplemental briefing regarding his
motion to seal documents, Dk.t. 52, is GRANTED.
22

12.

Plaintiff's motions to seal his medical records , Dkt. 33 , 54, are GRANTED in
part. Either party submitting plaintiff's medical records must do so under seal in
accordance with the discussion above. Defendants may have until April 10, 2015 ,
to respond to this order regarding the re-disclosure of plaintiff's medical
information.

13.

The parties' motions to amend the schedule in this case, Dkt. 94 , 96, are
GRANTED . The schedule is amended as discussed above.

Entered March 30, 2015 .

BY THE COURT:

Isl
JAMES D. PETERSON
District Judge

23