Brown, Scott v. Miller, Jasen

Filing 73

ORDER granting 41 Motion for Summary Judgment; denying as moot 46 Motion to Compel; denying as moot 50 Motion for Summary Judgment; denying as moot 63 Motion to Compel; denying 70 Motion to Dismiss. This case is DISMISSED. The clerk of court is directed to enter judgment in favor of defendant and close the case. Signed by District Judge James D. Peterson on 9/6/2017. (jef),(ps)

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

SCOTT A. BROWN,
Plaintiff,
v.

OPINION & ORDER
16-cv-682-jdp

JASEN MILLER,
Defendant.

Pro se plaintiff Scott A. Brown, a Wisconsin prisoner incarcerated at the Columbia
Correctional Institution (CCI), is proceeding on an Eighth Amendment claim against
defendant Jasen Miller, a CCI correctional officer. Brown alleges that Miller failed to restrain
him despite Brown’s warnings that he would harm himself by cutting his arm.
This opinion addresses all motions that are pending before the court. The main issue is
Miller’s motion for summary judgment for Brown’s failure to exhaust available administrative
remedies. Dkt. 41. Brown failed to appeal the reviewing authority’s decision within the
applicable deadline, so Brown failed to satisfy the exhaustion requirements. I will grant
summary judgment in favor of Miller and dismiss the case. All other motions, namely Brown’s
motion to “dismiss” Miller’s summary judgment motion, Dkt. 70, motions to compel, Dkt. 46
and Dkt. 63, and motion for summary judgment, Dkt. 50, are denied.
A. Brown’s motion to dismiss Miller’s summary judgment motion
I begin with Brown’s motion to dismiss Miller’s summary judgment motion for failure
to exhaust. Dkt. 70. Brown contends that I should not consider Miller’s motion because Miller
has failed to file proposed findings of fact in support. Id. ¶¶ 1-4. Brown is mistaken. As the
court explained in the pretrial conference order, the parties need not file proposed findings of

fact to support summary judgment motions for exhaustion. Dkt. 15, at 4. Thus, I will deny
Brown’s motion to dismiss Miller’s motion for summary judgment.
B. Miller’s motion for summary judgment for Brown’s failure to exhaust administrative
remedies
Miller moves for summary judgment for Brown’s failure to exhaust administrative
remedies under the Prison Litigation Reform Act. Dkt. 41. I will grant Miller’s motion.
To succeed on a motion for summary judgment, the movant must show that there is no
genuine dispute 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. Grp., 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. City of Highland Park, 195 F.3d 333, 338 (7th
Cir. 1999).
Under the PLRA, a prisoner must exhaust available administrative remedies before
suing in court. 42 U.S.C. § 1997e(a). 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,
532 (2002). To satisfy the exhaustion requirement, a prisoner must “properly take each step
within the administrative process,” which includes filing grievances and appeals “in the place,
and at the time, the prison’s administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022,
1024, 1025 (7th Cir. 2002). In Wisconsin, the administrative code provides the process for a
prisoner to file a grievance and appeal an adverse decision, and failure to follow the procedural
rules set forth in the administrative code results in dismissal of the prisoner’s claims. Perez v.

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Wis. Dep’t of Corr., 182 F.3d 532, 535 (7th Cir. 1999). The critical requirement here is that a
prisoner must appeal a reviewing authority’s decision within “10 calendar days.” Wis. Admin.
Code § DOC 310.13(1).
Brown’s appeal of the reviewing authority’s decision was untimely. The reviewing
authority, Warden Michael Dittmann, dismissed Brown’s grievance on March 19, 2015.
Dkt. 43, ¶ 17 and Dkt. 44, at 4. So Brown had until March 29 to appeal the decision, but
Brown signed his appeal on March 31. Dkt. 45, at 12. Brown’s appeal was therefore untimely.
Brown contends that his untimely appeal should be excused because he did not have a
pencil and an appropriate form to appeal the decision within 10 days. Brown states that he was
on either control or observation status on various dates and, on those dates, he was denied a
pencil and an appropriate form for security purposes. Miller responds that Brown was not
actually on control or observation status during March 2015 and supports this proposition
with evidence. Dkt. 62-1, at 3. I could hold a hearing to resolve this factual dispute, see Pavey
v. Conley, 544 F.3d 739, 741 (7th Cir. 2008), but a hearing is unnecessary here.1
Brown has not raised a genuine dispute that he lacked the means to file an appeal form
between March 19 and 29. Brown provides various versions of facts, but I will begin with the
versions contained in his affidavits, Dkt. 54 and Dkt. 69. In his original affidavit, Brown
states that he was on control status until March 23, but when he got off control status, he had
to wait until March 28 to receive his property. Dkt. 54, ¶¶ 10-11. He then had to wait some

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By the way, I know from other CCI cases that even prisoners who pose suicide risks at CCI
have access to flexible suicide pencils for drafting court submissions, but I will ignore this fact.
And Brown was given an opportunity to explain why he could not complete an appeal form
earlier when he actually filed his late appeal form, but Brown failed to do so. Dkt. 45, at 1112.

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additional, unidentified length of time to get a pencil and an appropriate form. Id. ¶ 11. This
version of facts does not establish that Brown lacked the means to fill out an appeal form on
March 28 or 29. Brown does not indicate, let alone support with admissible evidence, whether
he actually acquired a pencil and an appeal form after March 29 or whether those items were
unavailable to him on March 28 or 29. So the critical fact whether Brown had means to appeal
the decision before March 29 is left vague, and Brown cannot withstand summary judgment
by means of obfuscation.
In his supplemental affidavit, Brown concedes that he received a pencil and an
appropriate form on March 28. Dkt. 69, ¶ 2. If he had those items on March 28, he could file
his appeal form either on March 28 or 29 to satisfy the exhaustion requirement. So this version
of facts, too, does not enable Brown to withstand summary judgment.
Another version of facts, provided in Brown’s brief, is that he got off control status on
March 23 but inmates could acquire pencils and appeal forms from CCI staff only on Tuesdays
and Thursdays. Dkt. 51, at 6-7. The proposition that CCI distributes pencils and forms only
on Tuesdays and Thursdays is not supported by admissible evidence. In any event, even under
this version, Brown cannot prevail. March 23, 2015, was a Monday, so Brown could have
obtained the necessary items and appealed on March 24 or 26.
Brown argues that he could not properly respond to Miller’s summary judgment motion
before the end of the discovery process. See Dkt. 66, at 5. But Brown could support the critical
facts with his own affidavits. Dkt. 54 and Dkt. 69. Brown failed to do so here.
Accordingly, whether Brown lacked the means to appeal Dittmann’s decision is not
genuinely disputed. I will grant summary judgment in favor of Miller and close the case.

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C. Other motions
Brown has filed two motions to compel. Dkt. 46 and Dkt. 63. The first motion to
compel seeks production of records regarding Brown’s self-harm incidents. Dkt. 46. The
second motion to compel seeks Miller’s responses to Brown’s requests for admissions regarding
his self-harm incidents. Dkt. 63. Neither of these motions affects Brown’s ability to respond
to Miller’s summary judgment motion. So these motions are moot.
Brown also filed his own motion for summary judgment. Dkt. 50. Brown does not
develop any argument in either his motion, id, or the accompanying brief, Dkt. 51, as to why
he is entitled to summary judgment. And Brown failed to satisfy the exhaustion requirement
under the PLRA, so he cannot prevail on the merits. So this motion, too, is moot.
In sum, I will grant summary judgment in favor Miller and dismiss the case. All other
motions are denied, and the case is closed. One last point. This case is one of three cases in
which Brown has sued prison employees for what he alleges is deliberate indifference. In this
case, I held a hearing and determined that Brown was receiving continuous care for his mental
problems and that his safety was ensured, Dkt. 48, so Brown’s claim of deliberate indifference
turned out to be untrue. Brown also indicated that when he makes threats of self-harm or
suicide, prison employees should immediately turn to his aid and provide care in particular
ways demanded by Brown (e.g., place him on observation status with a correctional officer
constantly observing him). But as a prisoner, Brown cannot force prison employees to act on
his whim. See Bowers v. Pollard, 602 F. Supp. 2d 977, 993 (E.D. Wis.) aff’d, 345 F. App’x 191
(7th Cir. 2009). Should Brown file another lawsuit asserting unfounded claims, I will consider
assessing him a strike under 28 U.S.C. § 1915(g) on the grounds that Brown’s claims are
frivolous or malicious.

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ORDER
IT IS ORDERED that:
1. Defendant Jasen Miller’s motion for summary judgment for plaintiff Scott A.
Brown’s failure to exhaust available remedies, Dkt. 41, is GRANTED.
2. Plaintiff’s first motion to compel, Dkt. 46, is DENIED as moot.
3. Plaintiff’s motion for summary judgment, Dkt. 50, is DENIED as moot.
4. Plaintiff’s second motion to compel, Dkt. 63, is DENIED as moot.
5. Plaintiff’s motion to dismiss defendant’s motion for summary judgment, Dkt. 70,
is DENIED.
6. This case is DISMISSED.
7. The clerk of court is directed to enter judgment in favor of defendant and close the
case.
Entered September 6, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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