Tonn, Dennis v. Dittmann, Michael et al

Filing 48

ORDER that plaintiff Dennis Tonn may have until October 23, 2015, to file a supplemental brief in opposition to defendants' motion for summary judgment.Defendants' reply, if any, will be due by October 30, 2015. Signed by Magistrate Judge Stephen L. Crocker on 9/30/2015. (jef),(ps)

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

DENNIS TONN,
ORDER
Plaintiff,
v.

14-cv-481-jdp

MICHAEL MEISNER, DAVID MELBY,
DONALD MORGAN, and MARY LEISER,
Defendants.

Defendants have filed a motion for summary judgment based on plaintiff’s failure to
exhaust his administrative remedies. Dkt. 34. They contend that plaintiff never appealed the
disciplinary decision that he is challenging in this case to the warden of his institution.
Plaintiff has filed two briefs in oppositions to defendants’ motion. Dkt. 43 and Dkt. 44.
In many prisoner lawsuits, if the plaintiff has not properly exhausted the
administrative remedies available to him at his institution, then he may not bring his claims
to federal court. A “failure to exhaust” is an affirmative defense that a defendant may raise at
the beginning of a lawsuit before either side has put too much time or effort into it.
If a defendant wishes to obtain summary judgment on the basis of a plaintiff’s failure
to exhaust his administrative remedies—which is the case in in this lawsuit—then that
defendant must file a summary judgment motion raising the issue. Because this is a narrow
issue that can be decided on a narrow set of facts, the parties do not need to follow the
court’s Procedure On Summary Judgment, which applies to any other summary judgment
motion filed in this court. Instead, the moving defendant may submit a motion, supporting
affidavits, relevant exhibits, and a supporting brief.

Plaintiff may file a responsive brief, affidavits, and exhibits which must be relevant to
and limited to the question whether plaintiff has adequately exhausted his administrative
remedies on his claims. Plaintiff need not submit a separate document containing proposed
findings of fact, so long as any material facts can be found in the supporting affidavits and
exhibits.
At the time that plaintiff filed his briefs in opposition, he had not received the above
description of summary judgment motions based on a failure to exhaust administrative
remedies (because the court had not yet conducted the preliminary pretrial conference). And
plaintiff’s briefs suggest that he was not aware of the purpose that these types of motions
serve. Thus, to ensure that plaintiff has an adequate opportunity to properly oppose
defendants’ motion, I will permit plaintiff to file a new brief.
IT IS ORDERED that plaintiff Dennis Tonn may have until October 23, 2015, to file
a supplemental brief in opposition to defendants’ motion for summary judgment.
Defendants’ reply, if any, will be due by October 30, 2015.

Entered this 30th day of September, 2015.
BY THE COURT:
/s/
________________________________________
STEPHEN L. CROCKER
Magistrate Judge

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