Tabbert, Derek v. Whalen, Kathleen

Filing 20

ORDER granting defendant Kathleen Whalen's 16 Motion for Summary Judgment based on plaintiff Derek A. Tabbert's failure to exhaust his administrative remedies, Dkt. 16 , is GRANTED and this case is DISMISSED without prejudice. The clerk of court is directed to enter judgment in defendant's favor and close this case. Signed by District Judge James D. Peterson on 10/25/2017. (jef),(ps)

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

DEREK A. TABBERT,
Plaintiff,
v.

OPINION & ORDER
17-cv-76-jdp

KATHLEEN WHALEN,
Defendant.

Plaintiff Derek A. Tabbert, an inmate confined at the Columbia Correctional Institution
(CCI), brings this lawsuit alleging that defendant Kathleen Whalen, a nurse at CCI, failed to
give him medical attention for a potential blood clot. Whalen has filed a motion for summary
judgment based on Tabbert’s failure to exhaust his administrative remedies regarding this
claim.
Under the Prison Litigation Reform Act, “[n]o action shall be brought with respect to
prison conditions . . . until such administrative remedies are exhausted.” 42 U.S.C. § 1997e(a).
The exhaustion requirement is mandatory and “applies to all inmate suits.” Woodford v. Ngo,
548 U.S. 81 (2006); Porter v. Nussle, 534 U.S. 516, 524 (2002). The exhaustion requirement’s
primary purpose is to “alert[ ] the state” to the problem “and invit[e] corrective action.”
Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004).
Section 1997e(a) requires “proper exhaustion,” Woodford, 548 U.S. at 93; Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which means that the prisoner must follow
prison rules when filing the initial grievance and all necessary appeals, “in the place, and at the
time, the prison’s administrative rules require.” Burrell v. Powers, 431 F.3d 282, 284–85 (7th
Cir. 2005). “[A] prisoner who does not properly take each step within the administrative

process has failed to exhaust state remedies.” Pozo, 286 F.3d at 1024. The Wisconsin
Department of Corrections uses a four-step process called the Inmate Complaint Review
System to review inmate grievances. See Wis. Admin. Code Ch. DOC 310.
Here, defendant Whalen contends that Tabbert failed to properly exhaust his
administrative remedies by the time he filed his complaint in this action. More specifically, she
presents a copy of Tabbert’s grievance history, which shows that he filed a grievance about his
interaction with Whalen on February 1, 2017, only a day before filing his complaint with this
court. Although Tabbert eventually exhausted all four levels of the grievance system, that final
exhaustion occurred months after he filed his complaint in this action. Tabbert did not file any
materials in opposition to Whalen’s motion, and so I must consider the facts she provides to
be undisputed. The grievance history provided by Whalen is fatal to this lawsuit because
inmates are required to exhaust their administrative remedies before filing a lawsuit. See Ford v.
Johnson, 362 F.3d 395, 398 (7th Cir. 2004) (holding that a lawsuit must be dismissed “even if
the plaintiff exhausts his administrative remedies while the litigation is pending”). Accordingly,
I will dismiss this lawsuit without prejudice. Id. at 401 (dismissal for failure to exhaust is always
without prejudice). That means that Tabbert is free to refile this lawsuit if he wishes, now that
his claims are exhausted.

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ORDER
IT IS ORDERED that:
1. Defendant Kathleen Whalen’s motion for summary judgment based on plaintiff
Derek A. Tabbert’s failure to exhaust his administrative remedies, Dkt. 16, is
GRANTED and this case is DISMISSED without prejudice.
2. The clerk of court is directed to enter judgment in defendant’s favor and close this
case.
Entered October 25, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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