Scolman, Joshua v. Foster, Brian et al

Filing 37

ORDER that Defendants' motion for partial summary judgment on exhaustion grounds (dkt. 20 ) is GRANTED. Plaintiff Joshua Scolman's First Amendment retaliation claims against defendants Foster, Meli and Ludvigson are dismissed without prejudice. Signed by District Judge William M. Conley on 4/28/2020. (rks),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JOSHUA SCOLMAN,
Plaintiff,

OPINION and ORDER

v.
Case No. 17-cv-54-wmc
BRIAN FOSTER, et al.,
Defendants.

Under 42 U.S.C. § 1983, pro se plaintiff Joshua Scolman was previously granted
leave to proceed on his claim that certain employees of Waupun Correctional Institution
(“Waupun”) violated the First Amendment by the prolonged confiscation of his legal
materials and a retaliatory refusal to transfer him to another institution. Now before the
court is defendants’ motion for partial summary judgment on exhaustion grounds. (Dkt.
#20.) In particular, defendants seek judgment in their favor as to plaintiff’s retaliation
claims on the ground that he failed to exhaust his administrative remedies before bringing
suit. For the reasons that follow, the court will grant the motion and dismiss plaintiff’s
retaliation claims without prejudice.

OPINION
Under 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” Generally, a prisoner also must “properly take each step within

the administrative process” to comply with § 1997e(a). Pozo v. McCaughtry, 286 F.3d 1022,
1025 (7th Cir. 2002). This includes following the institution’s “administrative rules,” id.,
that are “in the place . . . at the time, id., for filing the initial grievance, Cannon v.
Washington, 418 F.3d 714, 718 (7th Cir. 2005), and all necessary appeals, Burrell v. Powers,
431 F.3d 282, 284-85 (7th Cir. 2005).
The purpose of this exhaustion requirement 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); see Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013) (“once a prison has
received notice of, and an opportunity to correct, a problem, the prisoner has satisfied the
purpose of the exhaustion requirement”). If a prisoner fails to exhaust administrative
remedies before filing his lawsuit, then the court must dismiss the case. Perez v. Wisconsin
Dept. of Corr., 182 F.3d 532, 535 (7th Cir. 1999). Because exhaustion is an affirmative
defense, however, defendants bear the burden of establishing that plaintiff failed to exhaust.
Jones v. Bock, 549 U.S. 199, 216 (2007).
Under Waupun’s regulations applicable in 2016, prisoners were required to start
the complaint process by filing an inmate complaint with the institution complaint
examiner within 14 days after the occurrence giving rise to the complaint. Wis. Admin.
Code § DOC 310.09(6).

After filing the complaint, prisoners were to receive

acknowledgment of its receipt within five working days. Id. § 310.11(2). Each complaint
must “[c]ontain only one issue, which must be clearly identif[ied].” Id. § 310.09(e). If the
institution complaint examiner (“ICE”) rejected a grievance for procedural reasons without
addressing the merits, an inmate could appeal the rejection to the appropriate reviewing
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authority. Id. §§ 310.11(6), 310.10(10). The reviewing authority’s decision on such an
appeal was final. Id. § 310.10(10).
If the complaint was not rejected, the institution examiner was to make a
recommendation to the reviewing authority as to how the complaint should be
resolved. Id. § 310.11(6). The offender complaint was then to be decided by the
appropriate reviewing authority, whose decision could be appealed by the inmate to a
correctional complaint examiner (“CCE” or “corrections examiner”). Id. §§ 310.12,
310.13.
Generally, prisoners were required to appeal a reviewing authority’s decision within
“10 calendar days.” Wis. Admin. Code § DOC 310.13(1), although “[u]pon good cause,
the CCE may accept for review an appeal filed later than 10 days after receipt of the
decision.” Id. § 310.13(2). The corrections examiner then made a recommendation to the
Secretary of the Department of Corrections, who took final action. Id. §§ 310.13, 310.14.
Here, plaintiff Scolman filed one inmate complaint about his denied request for a
transfer, WCI-2016-7933, in which claimed that he was subjected to “various retaliatory
acts” because of his alleged assault of Sergeant Price. (Ex. 101 (Davidson Decl. Ex. 101
(dkt. #23-2) 8-10.) Scolman further claimed that: his legal materials were being withheld;
his requests and inmate complaints were disappearing; he was being shackled and
handcuffed too tightly; and he was enduring “aggressive” behavior from staff. Plaintiff also
claimed that his repeated transfer requests were being ignored. However, plaintiff did not
allege that he was being retaliated against for engaging in any constitutionally protected
activity.
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On June 2, 2016, WCI-2016-7933 was rejected on the ground that Scolman did
not provide examples of retaliatory acts by staff and, instead, complained that he should
have been transferred because he was found guilty of assaulting staff. (Id. at 2.) Scolman
appealed that rejection, and on June 19, 2016, Warden Brian Foster affirmed the rejection
decision.
Given this history, defendants argue that plaintiff did not exhaust his administrative
remedies with respect to his retaliation claim through WCI-2016-7933. In particular,
while plaintiff may have alluded to a belief that various staff were retaliating against him,
he made no mention of staff punishing him for engaging in constitutionally protected
activity. To afford prison officials the chance to investigate that claim, plaintiff would have
needed to identify both the protected conduct that caused the retaliation and the retaliatory
act. See Lockett v. Goff, No. 17-cv-93-jdp, 2017 WL 4083594, at *2 (W.D. Wis. Sept. 13,
2017); Wine v. Pollard, No. 08-cv-173-bbc, 2008 WL 4379236, at *3 (W.D. Wis. Sept.
23, 2008). Plaintiff’s failure to allege that defendants refused to transfer him because he
engaged in constitutionally protected activity prevented the prison officials from
investigating defendants’ intent in declining to transfer him and, therefore, he failed to
exhaust his administrative remedies with respect to that claim.
Plaintiff’s arguments in opposition do not save his retaliation claims from dismissal.
First, plaintiff claims that he filed “numerous” complaints related to defendants’ refusal to
transfer him, but they were lost because of other retaliatory acts of unidentified prison
staff. However, plaintiff fails to provide any details about these supposed complaints,
including what he alleged, when he attempted to submit them, whether he followed up to
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make sure that his complaints would be processed through the ICRS, and to whom he
appealed. A similar deficiency was addressed by the Seventh Circuit Court of Appeals in
Lockett v. Bonson, 937 F.3d 1016, 1022 (7th Cir. 2019). Similar to plaintiff, Lockett
claimed he had filed an appeal, even though there was no record of it. The Seventh Circuit
held that the plaintiff’s failure to follow up to make sure his allegedly lost appeal had been
processed was itself a failure to follow the required administrative procedures. Id. at 1026.
Specifically, the court pointed out that Wisconsin’s procedures provided that if an inmate
had not received a receipt acknowledging his appeal, or an answer to his appeal within 45
of receiving that receipt, the procedures provided that he could deem the appeal denied
and initiate suit in the district court. Id. at 1026. Thus, the court concluded, Lockett was
responsible for following up after he did not receive a receipt of his appeal, and he could
not defeat summary judgment with a “bald assertion” that he submitted a timely appeal.
Id.
Plaintiff’s failure to follow up on his allegedly “lost” complaint of retaliation falls
into the same category. If he had attempted to file inmate complaints, plaintiff should
have received acknowledgment of receipt within five working days. Wis. Admin. Code
§ DOC 310.11(2). While plaintiff claims that he did follow up on his lost complaint, and
references lost inmate complaints in WCI-2016-7933, his evidence in support remains
overly vague. For example, plaintiff now declares that between March 15 and June 16,
2016, he filed “numerous” inmate complaints regarding retaliation and denial of transfer,
and he submitted them through the door of the segregation unit at Waupun. (Scolman
Decl. (dkt. # 26) ¶¶ 3-4.) Plaintiff further declares that he complained about various forms
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of retaliation, including the refusal to transfer him, all due to his current lawsuit, and that
he followed up by writing the warden, security director, administrative captain, restrictive
housing supervisor and the DOC’s administrator inquiring about what was happening with
his complaints. (Id. ¶¶ 7, 8.) However, plaintiff again provides no details about when he
tried to submit those inmate complaints, much less the substance of them.
Even more problematic, plaintiff fails to address his actual ICRS history, which
shows he submitted nine inmate complaints between March 15 and June 8, 2016 -- the
same timeframe he claims his efforts to grieve his retaliation claim were thwarted. (See Ex.
100 (dkt. #23-1) 1.) With the exception of WCI-2016-7933, discussed above, none of
those inmate complaints alleged that defendants refused to transfer him as punishment for
filing a lawsuit. Furthermore, plaintiff submitted an additional five inmate complaints in
April 2016 that were returned to him, but none of those complaints alleged that defendants
refused a transfer to punish him for filing a lawsuit. (See Ex 102 (dkt. #28-2) & Ex. 105
(dkt. #28-5) 2 (both complaining that his legal paperwork was being withheld); Ex. 104
(dkt. #28-4) and Ex. 107 (dkt. #28-7) (complaining about treatment after he allegedly
assaulted staff); and Ex. 106 (dkt. #28-6) and Ex. 103 (dkt. #28-3) (alleging that staff was
racist against whites)).
Accordingly, Scolman has failed to raise a genuine dispute of fact related to whether
he submitted (or was denied the ability to submit) an inmate complaint related to
defendants’ allegedly retaliatory refusal to transfer him to another institution based on his
exercise of a constitutionally protected activity.

Accordingly, the court will grant

defendants’ motion for partial summary judgment and dismiss Scolman’s First Amendment
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retaliation claims in this lawsuit without prejudice.
ORDER
IT IS ORDERED that:
1. Defendants’ motion for partial summary judgment on exhaustion grounds (dkt.
#20) is GRANTED.
2. Plaintiff Joshua Scolman’s First Amendment retaliation claims against
defendants Foster, Meli and Ludvigson are dismissed without prejudice.
Entered this 28th day of April, 2020.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge

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