Naseer, Hakim v. Belz, Thomas et al

Filing 62

ORDER denying 33 Motion for Summary Judgment for Failure to Exhaust. Signed by District Judge James D. Peterson on 2/9/2015. (jef),(ps)

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

HAKIM NASEER,
ORDER
Plaintiff,
13-cv-821-jdp1

v.
THOMAS BELZ, C/O GALLINGER,
C/O WIEGEL, MARY MILLER,
SGT. WALLACE, CAPTAIN MASON,
and ELLEN RAY,
Defendants.

In this case, pro se plaintiff Hakim Naseer, an inmate currently incarcerated at the Green
Bay Correctional Institution, is proceeding on claims that prison staff at the Wisconsin Secure
Program Facility retaliated against him for filing inmate grievances by contaminating his food.
Currently before the court is defendants’ motion for summary judgment based on plaintiff’s
failure to exhaust his administrative remedies. In an October 30, 2014 order, I directed the
parties to provide supplementary briefing on the exhaustion issue with regard to three of
plaintiff’s grievances. Dkt. 59. After considering this briefing, I conclude that defendants have
failed to show that summary judgment should be granted with regard to the first of these three
grievances, so I need not discuss the second and third grievances.
On October 10, 2013, plaintiff filed the following grievance:
C/O T. Belz made life-threatening threats to take immediate action against
my food trays by contaminating them w/ outside environmental poisons!
Dkt. 52, Exh. A. In the October 30 order, I stated the following regarding prison staff’s handling
of that grievance:

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This case was reassigned to me pursuant to a May 19, 2014 administrative order. Dkt. 44.

Although the first of these grievances was assigned a number (WSPF-201319663), neither side has placed anything in the record explaining how the
grievance was resolved. . . .
* * *
Given that it is defendants’ burden to show that plaintiff has failed to
exhaust his administrative remedies, their failure to submit a reply brief discussing
this last set of grievances is troubling. Defendants do not explain how grievance
no. WSPF-2013-19663 was resolved, which could by itself be enough to deny the
summary judgment motion.
Dkt. 59, at 5-6. I requested supplemental briefing “because of the murky state of the record
coupled with the parties’ failure to address the questions surrounding [his] three grievances in
their briefing” and stated that “[d]efendants’ failure to address these questions to the court’s
satisfaction may result in denial of their summary judgment motion.” Id. at 7.
The parties have now responded to the October 30 order, but defendants have not
shown that they are entitled to summary judgment. With regard to plaintiff’s first grievance,
defendants have now submitted evidence showing how the grievance was processed in the DOC
Inmate Complaint Review System (“ICRS”) as No. WSPF-2013-19663. On October 15,
defendant Ray issued the following recommendation:
DAI Policy and Procedure #310.00.01 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,
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 contacted Inmate Naseer and discussed the above policy with
him. He did complete a statement. As such, it is recommended this complaint be
dismissed with the modification that it be further processed pursuant to DAI
Policy 310.00.01.
Dkt. 60-1, at 4. Plaintiff appealed through the remainder of the four-step ICRS process. In the
third step of the ICRS process, corrections complaint examiner Charles Facktor recommended

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dismissal of plaintiff’s appeal on November 14, 2013, because the grievance was being addressed
in parallel proceedings. Facktor stated as follows:
Because the allegations raised in this complaint had already been brought
to the attention of supervisory staff and were already under review, the ICE
correctly assessed that there was no need for a parallel investigation in the ICRS.
The allegations are being addressed in a manner similar to DAI Policy 310.00.01.
As I note the Warden reviewed this complaint and is involved in the
process, I am confident the concerns will be thoroughly investigated and that the
institution response to the claims will be consistent with the verified evidence.
Accordingly, it is recommended this appeal be dismissed with modification.
Id. at 8. The appeal apparently was dismissed as redundant with an ongoing process “similar to
DAI Policy 310.00.01.” This decision was upheld by the office of the DOC secretary on
November 22, 2013.
Defendant argues that because this final dismissal occurred the day after plaintiff filed his
complaint in this court, plaintiff failed to exhaust his administrative remedies before filing his
complaint. In the usual case, plaintiff’s failure to finish the final step of the ICRS process before
filing his complaint would show his failure to exhaust (at least with regard to this particular
grievance). Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002).
However, in this case, 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 manner
similar to DAI Policy 310.00.01,” but defendants do not attach a copy of the policy or any of
the rulings made on plaintiff’s grievance under that policy. Without this information, it is
impossible to tell whether plaintiff properly exhausted this particular grievance under the
framework chosen by prison staff. Because it is defendants’ burden to show plaintiff’s failure to
exhaust each of his grievances related to the alleged contamination of his food, I must deny
defendants’ motion for summary judgment on exhaustion grounds.

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ORDER
IT IS ORDERED that defendants’ motion for summary judgment based on plaintiff’s
failure to exhaust his administrative remedies, Dkt. 33, is DENIED.
Entered February 9, 2015.
BY THE COURT:
/s/
JAMES D. PETERSON
District Judge

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