Kretlow, Bernard v. Schultz, Michael et al

Filing 38

ORDER denying plaintiff Bernard Edward Kretlow's 30 Motion for Summary Judgment. Defendant Tonia Rozmarynoski's motion for leave to file a motion for summary judgment for failure to exhaust administrative remedies, Dkt. 34 , is DENIED. Plaintiff must respond to this order indicating his intent to continue to litigate this case by November 21, 2017. Signed by District Judge James D. Peterson on 11/7/2017. (jef),(ps)

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

BERNARD EDWARD KRETLOW,
Plaintiff,
v.
TONIA ROZMARYNOSKI,

OPINION & ORDER
16-cv-583-jdp

Defendant.1
Pro se plaintiff Bernard Edward Kretlow is an inmate in the custody of the Wisconsin
Department of Corrections currently housed at the Green Bay Correctional Institution (GBCI).
I allowed him to proceed on an Eighth Amendment deliberate indifference claim against
defendant Tonia Rozmarynoski. Dkt. 17. Kretlow alleged that sometime in August 2016,
Rozmarynoski knew that he was banging his head against the floors and walls of his cell and
felt like he was about to have a seizure, and yet she did nothing.
Now Kretlow has moved for summary judgment. Dkt. 30. Of Kretlow’s four proposed
findings of fact, only one is comprehensible: “Sergeant Rozmarynski a sergeant here at GBCI
acted in deliberate indifference towards me on August 2, 2016, by not informing my wing
officer or HSU of me complaining of a medical emergency from banging my head all day.” Dkt.
30, at 3, 9. Rozmarynoski disputes this fact. She points to admissible evidence indicating that
she wasn’t working on August 2 and usually tells a wing officer when an inmate complains of
a medical emergency. Kretlow had the opportunity to file a reply in support of his motion, but

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The caption has been updated to reflect defendant’s full name.

he failed to do so. Because Kretlow has not shown that summary judgment in his favor is
proper, I will deny his motion.
In response to Kretlow’s motion, Rozmarynoski moves for leave to file a motion for
summary judgment for failure to exhaust administrative remedies. Dkt. 34. The deadline for
Rozmarynoski to file a motion concerning exhaustion of administrative remedies was in June.
See Dkt. 24. Rozmarynoski explains that she did not file her motion by the deadline because
Kretlow’s first summary judgment motion suggested that the alleged incident occurred in June
2016, and Kretlow filed a grievance concerning Rozmarynoski around that time. But now that
Kretlow’s submissions in support of his second summary judgment motion made clear that the
date at issue is August 2, 2016, Rozmarynoski asks the court to extend the deadline for filing
a motion concerning exhaustion.
Rozmarynoski has not shown good cause for failing to file her motion by the deadline.
The court’s February 28, 2017 order granting Kretlow leave to proceed indicated that the
alleged incident occurred in August 2016. See Dkt. 17, at 2. Rozmarynoski could have nailed
down the exact date in discovery. Her failure to do so does not excuse her from abiding by the
court’s deadlines. So I will deny her motion for leave to move for summary judgment for failure
to exhaust.
Of course, Rozmarynoski can, and most likely will, file a motion for summary judgment
on the merits by the December 22, 2017 deadline set by the court. I have some doubts about
whether Kretlow will respond to her motion: Kretlow failed to file a reply brief in support of
his motion for summary judgment, and I recently dismissed another case brought by Kretlow
due to his failure to prosecute it. See Kretlow v. Dahlstrom, No. 15-cv-571 (W.D. Wis. filed Sept.
10, 2015). So I will order Kretlow to respond to this order indicating his intent to continue to

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litigate this case. If Kretlow fails to respond as ordered, I will dismiss this case with prejudice
for his failure to prosecute it.
ORDER
IT IS ORDERED that:
1. Plaintiff Bernard Edward Kretlow’s motion for summary judgment, Dkt. 30, is
DENIED.
2. Defendant Tonia Rozmarynoski’s motion for leave to file a motion for summary
judgment for failure to exhaust administrative remedies, Dkt. 34, is DENIED.
3. Plaintiff must respond to this order indicating his intent to continue to litigate this
case by November 21, 2017.
Entered November 7, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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