LaBrec, Matthew v. Dittman, Michael et al

Filing 48

ORDER denying defendants' 18 MOTION FOR SUMMARY JUDGMENT on Exhaustion Grounds. Plaintiff Matthew LaBrec's motion for leave to amend his complaint, Dkt. 25 , is GRANTED to allow him to add a negligence claim against the c urrent defendants. The motion is DENIED in all other respects; LaBrec's proposed amended complaint, Dkt. 26 , is ADOPTED as the operative pleading. Defendants' motion to screen the amended complaint, Dkt. 33 , is GRANTED. LaBrec 9;s motion for leave to file a supplemental brief in opposition to defendants' summary judgment motion, Dkt. 36 , is DENIED as moot. LaBrec's motion for sanctions, Dkt. 42 , is DENIED. Defendants' motion to stay discovery and other proceedings, Dkt. 47 , is DENIED as moot. The deadline for filing dispositive motions is EXTENDED to October 20, 2017. Signed by District Judge James D. Peterson on 9/20/2017. (jef),(ps)

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

MATTHEW LABREC,
Plaintiff,
v.

OPINION & ORDER

LINDSAY WALKER, JASON CHATMAN, JOSHUA
CRAFT, DEBRA WILSON, and DUSTIN MEEKER,

16-cv-774-jdp

Defendants.1
Pro se plaintiff and prisoner Matthew LaBrec is proceeding on a claim that prison staff
violated his rights under the Eighth Amendment by placing him in a cell with a violent prisoner
and refusing to separate the two before the other prisoner assaulted him. Several motions are
before the court: (1) defendants’ motion for summary judgment on the ground that LaBrec
failed to exhaust his administrative remedies, Dkt. 18; (2) LaBrec’s motion for leave to amend
his complaint, Dkt. 25; (3) defendants’ motion to screen the amended complaint, Dkt. 33; (4)
LaBrec’s motion for leave to file a supplemental brief in opposition to defendants’ summary
judgment motion, Dkt. 36; (5) LaBrec’s motion for sanctions, Dkt. 42; and (6) defendants’
motion to stay discovery and other proceedings, Dkt. 47. For the reasons explained below, I
will deny the motion for summary judgment and the motion for leave to file a supplemental
brief; grant the motion for leave to amend the complaint and for screening of the complaint;
deny the motion for sanctions; and deny the motion for a stay.

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I have amended the caption to reflect defendants’ full names as identified in their answer.
Dkt. 13.

BACKGROUND
On or about July 24, 2016, LaBrec filed an inmate complaint on the issue of “failure to
protect safety.” He alleged that prison staff had placed him in the same cell with a prisoner
who has a history of violence, that staff ignored LaBrec’s statements that he did not feel safe
and wanted to be moved, and that the other prisoner stabbed him multiple times with a pen.
In his request for relief, he asked for both a change in prison policy and money damages for his
injuries.
On or about August 10, 2016, while a decision on his inmate complaint was pending,
LaBrec received a conduct report for “aggravated assault” and “possession, manufacture, or use
of a weapon” related to an altercation between LaBrec and his cell mate on July 24, 2016.
According to the conduct report, an officer came to LaBrec’s cell after hearing “banging and
loud yelling.” Dkt. 20-1. The officer observed that LaBrec was “covered in ink” and had “small
wounds on his face, neck area, and body area.” Id. He also observed that LaBrec’s cell mate was
holding a pen. LaBrec accused the cell mate of stabbing him. The officer left to get assistance
and when he came back, LaBrec’s cell mate was lying face down on the ground and bleeding.
LaBrec said, “I put him to sleep.” Id. at 2.
On August 29, 2016, LaBrec had a disciplinary hearing. A hearing officer found LaBrec
guilty of aggravated assault but not guilty of the weapons charge, observing that LaBrec
admitted to punching his cell mate in the face but that the weapons charge was not supported.
LaBrec did not appeal the decision.
In a decision dated September 12, 2016, the inmate complaint examiner rejected
LaBrec’s inmate complaint that he had filed on July 24. The examiner explained:
Once a conduct report is issued, the disciplinary process is
invoked. Complaints which argue substantive issues regarding the

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conduct report are outside the scope of the ICRS as noted under
DOC 310. After receiving the disciplinary hearing paperwork, an
appeal may be sent directly to the Warden. The ICE may only
address procedurally based allegations of error contained in
complaints filed AFTER the Warden's decision is made on appeal,
following DOC 310.08(3). The Warden has not yet rendered a
decision on the appeal of the conduct report. Consequently, this
complaint falls out of the scope of the ICRS.
Dkt. 20-3, at 2. The warden affirmed the decision to reject the complaint.

ANALYSIS
A. Exhaustion
1. Legal standard
Under the Prison Litigation Reform Act, “[n]o action shall be brought with respect to
prison conditions . . . until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). The purpose of the exhaustion requirements is to give the prison
administrators a fair opportunity to resolve the grievance without litigation. Woodford v. Ngo,
548 U.S. 81, 88-89 (2006).
To satisfy § 1997e(a), a prisoner must complete each step in the administrative process
“in the place, and at the time, the prison's administrative rules require.” Pozo v. McCaughtry,
286 F.3d 1022, 1025 (7th Cir. 2002). If a prisoner fails to exhaust his administrative remedies
before filing his lawsuit, the court must dismiss the case, Perez v. Wisconsin Dept. of Corr., 182
F.3d 532, 535 (7th Cir. 1999), but the defendants have the burden to prove that the prisoner
did not exhaust his administrative remedies. Jones v. Bock, 549 U.S. 199 (2007).
2. Overview of defendants’ argument
In this case, it is undisputed that LaBrec filed an inmate complaint in which he alleged
that prison officials failed to protect him from his cell mate, which is the same claim he is

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raising in this case. But defendants contend that the inmate complaint review system, or ICRS,
was the wrong place for LaBrec to exhaust his administrative remedies. Rather, according to
defendants, LaBrec needed to raise the issue in the context of his disciplinary proceedings.
Because LaBrec did not appeal the disciplinary decision after he was found guilty of assaulting
his cell mate, defendants argue that LaBrec failed to properly exhaust his administrative
remedies.
Defendants’ argument relies on Wis. Admin. Code § DOC 310.08(2)(a), which states
that a prisoner may not use the ICRS to raise “[a]ny issue related to a conduct report, unless
the inmate has exhausted the disciplinary process in accordance with ch. DOC 303.” The
argument has two parts. First, they say that LaBrec’s inmate complaint was “related to” the
conduct report because he alleged in the complaint that “he ‘acted in self-defense’ in the
altercation, an issue which goes directly to the substance of his conduct report and its
disposition.” Dkt. 19, at 4. Second, they say that LaBrec did not exhaust the disciplinary
process because he did not file an administrative appeal of the disciplinary decision to the
warden, as permitted under Wis. Admin. Code § DOC 303.82(1).
I disagree with both parts of defendants’ argument. And even if I agreed with
defendants’ interpretation of § DOC 310.08(2)(a), I would conclude that LaBrec had no
“available” administrative remedy within the meaning of § 1997e(a) because the examiner did
not reject LaBrec’s complaint until after LaBrec’s deadline for filing a disciplinary appeal
expired, leaving him no options for completing the grievance process.
3.

“Related to”

The phrase “related to” is vague and potentially very broad. Dan's City Used Cars, Inc. v.
Pelkey, 569 U.S. 251, 260 (2013) (“ordinary meaning of words ‘related to’ is a broad one”)

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(alterations omitted). Although the phrase is not defined in the regulation, one court has given
the phrase a common-sense limiting interpretation, stating that the relevant question is
whether the subject of the inmate complaint “would have been germane to the question of [the
prisoner’s] guilt or innocence” of the conduct report. Rivera v. Lindmeier, No. 13-cv-124, 2013
WL 6806188, at *2 (E.D. Wis. Dec. 20, 2013). See also id. at *3 (“On the whole, what the
regulations mean is that inmates should not use the ICRS grievance process to contest the
merits of their disciplinary actions.”). Defendants do not offer their own interpretation, but
the interpretation in Rivera is reasonable and seems to be consistent with defendants’ view that
LaBrec’s complaint was “related to” his conduct report because he raised the issue of selfdefense in the complaint, an issue that they say could have affected the “disposition” of the
disciplinary proceedings.2
An initial problem with defendants’ argument is that defendants do not cite any
authority for the view that a claim of self-defense could have affected the outcome of the
disciplinary proceedings. Because “inmates do not have a constitutional right to raise selfdefense as a defense in the context of prison disciplinary proceedings,” Jones v. Cross, 637 F.3d
841, 848 (7th Cir. 2011), there would have to be a prison rule that allowed LaBrec to raise

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Rivera appears to be consistent with a number of other cases as well. Sanders v. Lundmark, No.
11-cv-206-slc, 2011 WL 4699139, at *4 (W.D. Wis. Oct. 5, 2011) (Crocker, M.J.) (§ DOC
310.08(2)(a) applied because prisoner “would likely have a complete defense to the minor
conduct violation” if he prevailed on issue raise in his inmate complaint); Lindell v. Frank, No.
05-cv-3, 2005 WL 2339145, at *1 (W.D. Wis. Sept. 23, 2005) (Crabb, J.) (§ DOC
310.08(2)(a) applied because prisoner’s “claims of wrongdoing are tied directly to the validity
of the conduct reports”). But see Vasquez v. Hilbert, No. 07-cv-723, 2008 WL 2224394, at *4
(W.D. Wis. May 28, 2008) (Crabb, J.) (concluding that prisoner acted reasonably by waiting
until disciplinary proceedings were complete to file inmate complaint about medical issue that
was discussed in conduct report because phrase “related to” suggests a “broad standard” and is
“not . . . defined in the regulations”).

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that defense, but defendants do not cite such a rule. And although the disciplinary records
show that LaBrec did claim at his hearing to have acted in self-defense, the decision of the
hearing officer did not include a determination on that issue, Dkt. 20-1, at 5–6, suggesting that
it was irrelevant to his decision. In fact, nothing in the decision rejects LaBrec’s allegation that
the other prisoner stabbed LaBrec before LaBrec fought back.
But even if I assume that the issue of self-defense was relevant to the disciplinary
proceedings, LaBrec’s inmate complaint is not “related to” the conduct report under the
standard in Rivera. Defendants have taken one stray remark in the inmate complaint and
attempted to characterize that remark as the basis for the complaint, but it is clear from a
review of the complaint that LaBrec was not challenging the conduct report or otherwise
contending that he could not be disciplined for his own conduct. To begin with, LaBrec filed
his inmate complaint more than two weeks before he received a conduct report, so he could not
have been challenging a conduct report that did not yet exist. In their reply brief, defendants
say that LaBrec was “likely anticipating disciplinary action,” Dkt. 34, at 2, but there is nothing
in LaBrec’s inmate complaint suggesting that he is trying to use the complaint as a preemptive
strike against a potential conduct report.
In describing the “issue” raised in the complaint, LaBrec said nothing about potential
discipline. Rather, he said the issue was “failure to protect safety” and that he had “spoke[n]
with many individuals about being moved” to a different cell because he “did not feel safe.”
Dkt. 20-3, at 8. In the “details” section of the complaint, LaBrec described three things: (1) his
objections to being placed in a cell with the other prisoner because of that prisoner’s “extensive
history of violence between him and cell mates”; (2) his unsuccessful efforts to be moved to a
different cell; and (3) the injuries he sustained as the result of the assault. Id. Although he wrote

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that he “used self defense” against the other prisoner, that had nothing to do with the problem
alleged in the complaint, which was placing and keeping him in the same cell with a dangerous
prisoner. Thus, LaBrec was “not us[ing] the ICRS grievance process to contest the merits of”
his conduct report and the issue he raised in his complaint was not “germane to the question
of [his] guilt or innocence,” Rivera, 2013 WL 6806188, at *2, so his inmate complaint was not
“related to” the conduct report and he was free to use the inmate complaint review system to
seek redress.
4. “unless the inmate has exhausted the disciplinary process in accordance with
ch. DOC 303”
Defendants’ contention that LaBrec’s inmate complaint was filed improperly is
contingent on a conclusion that LaBrec had not “exhausted the disciplinary process in
accordance with ch. DOC 303,” as required by § DOC 310.08(2)(a), because he did not appeal
the disciplinary decision to the warden. But that view is based on an assumption that the
disciplinary process serves as a complete substitute for the inmate complaint review system
whenever a prisoner wants to grieve an issue that is “related to” a conduct report.
Even if I assume that the phrase “related to” has a broad meaning in § DOC
310.08(2)(a), it does not follow that a prisoner can raise any issue “related to” a conduct report
in a disciplinary appeal. Rather, under § DOC 303.82(1), a prisoner may appeal the
“disciplinary decision.” Importantly, defendants do not contend that LaBrec could have
challenged his disciplinary decision on the ground that defendants placed him in the cell with
a dangerous prisoner and then refused LaBrec’s requests for a transfer. This raises a key
question that defendants do not answer: what is a prisoner to do if he agrees that he is guilty
(or simply does not believe there is any basis for appealing his disciplinary decision), but he

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wants to grieve an issue that may be “related to” his conduct report? The regulations do not
provide a clear answer either, but there is only one answer that is fair and sensible. Because the
disciplinary process cannot provide a remedy in that situation, it follows that the prisoner has
“exhausted the disciplinary process in accordance with ch. DOC 303” within the meaning of
§ DOC 3010.08(2)(a). See also Ross v. Blake, 136 S. Ct. 1850, 1859 (2016) (“[W]here the
relevant administrative procedure lacks authority to provide any relief, the inmate has nothing
to exhaust.”) (internal quotations omitted).3
One reading of § DOC 310.08(2)(a) is that it acts as a sort of “stay” on an inmate
complaint that is “related to” a conduct report but cannot be raised in the disciplinary
proceedings, and that the stay lasts until the disciplinary process is finished, regardless how far
the prisoner takes that process. Another reading is that § DOC 310.08(2)(a) simply prohibits
most inmate complaints that are “related to” a conduct report in light of § DOC 310.08(3),
which says that, even after the disciplinary appeal process is finished, a prisoner may file an
inmate complaint only with respect to the procedure used during the disciplinary process. Shaw
v. Jahnke, 607 F. Supp. 2d 1005, 1008 (W.D. Wis. 2009) (“Any application of § DOC
310.08(2)(a) must be read in conjunction with § DOC 310.08(3) . . . . Because plaintiff's
grievance did not raise a procedural issue, § DOC 310.08(3) suggests that he could not use the
grievance process at all for the purpose of complaining about [an issue related to the conduct
report.”]). But regardless whether § DOC 310.08(2)(a) stays or prohibits inmate complaints
that are “related to” a conduct report, it would make no sense to force a prisoner to file a

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This question would be unlikely to arise under Rivera’s interpretation of the phrase “related
to.” If that phrase is limited to inmate complaints that are “germane to the question of [a
prisoner’s] guilt or innocence,” then a prisoner is not left wondering how to raise issues that
arise out of the same facts as the conduct report but do not challenge the disciplinary decision.

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pointless disciplinary appeal that can provide him no relief simply so that he can file an inmate
complaint after the appeal is resolved. White v. Bukowski, 800 F.3d 392, 395 (7th Cir. 2015)
(“[H]ow could a prisoner be expected to file a grievance that would be academic because no
response would benefit him or her in the slightest? . . . [I]f one has no remedy, one has no duty
to exhaust remedies.”).
Under § DOC 303.82(1), a prisoner has 10 days to file an appeal with the warden after
receiving a disciplinary decision. In this case, LaBrec received his decision on August 29, 2016,
which means that his deadline for appeal expired on September 8, 2016. Thus, the inmate
complaint examiner was simply wrong when he rejected LaBrec’s grievance on September 12,
2016, on the ground that his disciplinary appeal was pending. At that point, LaBrec had
completed the disciplinary process, so the examiner should have considered the complaint on
the merits.
5. Available remedy
The timing of the examiner’s decision provides yet another ground for concluding that
LaBrec exhausted his available administrative remedies. As noted above, at the time LaBrec
filed his inmate complaint on July 24, 2016, he had not yet received a conduct report, so the
complaint was properly filed under any interpretation of § DOC 310.08(2)(a). Because a
prisoner has only 14 days from the date of the relevant incident to file an inmate complaint,
Wis. Admin. Code § DOC 310.09(6), he cannot wait to see whether a conduct report may be
forthcoming.
Even if I were to accept the general proposition that § DOC 310.08(2)(a) can apply
when a conduct report is issued after the prisoner files his inmate complaint and that LaBrec’s
complaint was related to his conduct report and that LaBrec could be required to file a

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disciplinary appeal before filing a grievance, prison staff would still have to give LaBrec a
meaningful opportunity to complete the grievance process. If the examiner had rejected
LaBrec’s complaint while the disciplinary proceedings were ongoing, then LaBrec would have
had an opportunity to file a disciplinary appeal, if that’s what the examiner directed to him to
do. But by waiting to reject the complaint until LaBrec’s deadline for filing a disciplinary appeal
had expired, the examiner deprived LaBrec of any avenue of relief.
Regardless whether the examiner’s conduct was intentional, a court cannot dismiss a
claim for a prisoner’s failure to exhaust his administrative remedies when the prisoner’s failure
is the direct result of prison staff’s own conduct. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir.
2006)(“[W]hen prison officials prevent inmates from using the administrative process . . . the
process that exists on paper becomes unavailable in reality.”); Dole v. Chandler, 438 F.3d 804,
809 (7th Cir. 2006) (“Prison officials may not take unfair advantage of the exhaustion
requirement, however, 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.”). Particularly because the regulations are ambiguous as to how the disciplinary
and grievance processes overlap, LaBrec could not be expected to know that he would forfeit
his claim if he did not file a disciplinary appeal while his inmate complaint was pending. Vasquez
v. Hilbert, No. 07-cv-723, 2008 WL 2224394, at *4 (W.D. Wis. May 28, 2008) (“[W]hen
prison officials fail to ‘clearly identif[y]’ the proper route for exhaustion, they cannot later fault
the prisoner for failing to predict the correct choice.”) (quoting Westefer v. Snyder, 422 F.3d
570, 580 (7th Cir. 2005)). Cf. Ross, 136 S. Ct. at 1859 (“When rules are so confusing that no
reasonable prisoner can use them, then they're no longer available.”) (internal quotations and
alterations omitted).

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In sum, I conclude that defendants have failed to meet their burden to show that LaBrec
failed to exhaust his available administrative remedies. Because I did not need to consider
LaBrec’s supplemental brief, I will deny his motion to file the supplemental brief as moot.
B. Amended complaint
LaBrec has filed a motion for leave to amend his complaint along with a proposed
amended complaint. Dkt. 25 and 26. Defendants do not object to the amendment, but they
have filed a “request for screening” the amended complaint. Dkt. 33. That request was
unnecessary because screening is required by statute. 28 U.S.C. § 1915A.
In his motion for leave to amend, LaBrec says that his only change is to add “state law
tort claims” and he adds claims for negligence in his proposed amended complaint. Dkt. 25, at
1 and Dkt. 26, at 12. He does not say that he wants to bring new claims about different
conduct, sue additional defendants, or otherwise change the scope of the claims on which he is
proceeding. Because LaBrec alleges that he satisfied Wisconsin’s notice of claim requirements
and the standard for proving a negligence claim is less demanding than a claim under the Eighth
Amendment, I will allow him to proceed on state law negligence claims.
This order is limited to claims against the current defendants. Although LaBrec’s
proposed amended complaint does not appear to include new allegations, he did not omit the
claims against various officials that I dismissed from the original complaint for LaBrec’s failure
to state a claim upon which relief may be granted. If LaBrec is seeking to revive any claims
against those individuals or bring state law claims against them, the court will deny that
request. LaBrec waited nearly four months to amend his complaint after the court screened the
original complaint and he identifies no reason in his motion for the delay. Despite that delay,
I am allowing LaBrec to add negligence claims against the current defendants because those

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defendants do not object and I do not otherwise see any unfair prejudice that the amendment
will cause. But adding more defendants at this stage of the proceedings would delay the
resolution of this case by several months while the new defendants get up to speed, so it would
be unfair to bring those defendants back into the case now. United States v. Sanford Brown, Ltd.,
788 F.3d 696, 707 (7th Cir. 2015) (affirming denial of motion for leave to amend complaint
to revive claims against dismissed defendant; plaintiff “waited forty two days before moving
for leave to bring [the dismissed defendant] back into the case” and granting motion “would
have returned a dismissed party . . . back into litigation when discovery had proceeded for
weeks and [the other defendant] had proceeded under the assumption that [the dismissed
defendant] was no longer involved”); Hukic v. Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir.
2009)(“District courts have broad discretion to deny leave to amend where there is undue
delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the
defendants, or where the amendment would be futile.”).
C. Sanctions
LaBrec seeks to sanction defendants on the ground that Isaac Hart, an inmate complaint
examiner, included an inaccurate statement in his declaration about the content of an ICE
receipt. Dkt. 42. Defendants acknowledge that there was an error, Dkt. 43, but I will deny the
motion because LaBrec points to no evidence that the error was intentional, let alone that any
of the defendants were responsible for the error, and because the mistake had no bearing on
the outcome of defendants’ summary judgment motion.
D. Stay
On September 15, 2017, defendants filed a motion to “stay the current scheduling order
and set new deadlines for discovery and dispositive motions deadlines until after the court rules

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on the pending motion” for summary judgment. Dkt. 47. Because I have ruled on the summary
judgment motion, I will deny this motion as moot. But I will give the parties a bit of extra
breathing room and extend the deadline for dispositive motions on the merits until October
20, 2017.

ORDER
IT IS ORDERED that:
1. The motion for summary judgment filed by defendants Lindsay Walker, Jason
Chatman, Joshua Craft, Debra Wilson, and Dustin Meeker on the ground that
plaintiff Matthew LaBrec failed to exhaust his administrative remedies, Dkt. 18, is
DENIED;
2. LaBrec’s motion for leave to amend his complaint, Dkt. 25, is GRANTED to allow
him to add a negligence claim against the current defendants. The motion is
DENIED in all other respects; LaBrec’s proposed amended complaint, Dkt. 26, is
ADOPTED as the operative pleading;
3. Defendants’ motion to screen the amended complaint, Dkt. 33, is GRANTED;
4. LaBrec’s motion for leave to file a supplemental brief in opposition to defendants’
summary judgment motion, Dkt. 36, is DENIED as moot;
5. LaBrec’s motion for sanctions, Dkt. 42, is DENIED;
6. Defendants’ motion to stay discovery and other proceedings, Dkt. 47, is DENIED
as moot; and
7. The deadline for filing dispositive motions is EXTENDED to October 20, 2017.

Entered September 20, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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