Bernard, DeAndre v. Kibbel et al
Filing
138
ORDER denying 94 Motion for Sanctions ; granting in part and denying in part 112 Motion for Partial Summary Judgment. Defendants Barrett, Schneider, Roper, and Beahm are DISMISSED from this lawsuit. Signed by District Judge William M. Conley on 6/14/2022. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DE’ANDRE BERNARD,
Plaintiff,
OPINION AND ORDER
v.
17-cv-331-wmc
GERRAD KIBBLE, et al.,
Defendants.
Plaintiff De’Andre Bernard is proceeding under 42 U.S.C § 1983 against certain
employees at the Waupun Correctional Institution on Eighth Amendment claims for
deliberate indifference to a substantial risk of self-harm, to a serious medical need, and to
conditions of his confinement. (Dkt. #18.) He is also proceeding against defendant
Warden Foster in his official capacity on a claim for injunctive relief.
(Dkt. #64.)
Defendants have filed a motion for partial summary judgment on the ground that Bernard
failed to exhaust his administrative remedies with respect to his individual capacity claims
against defendants Barrett, Moon, Muenchow, Ashworth, Meli, Foster, Roper, Beahm, and
Schneider. (Dkt. #112.) For the following reasons, the motion will be granted in part and
denied in part.1
Also before the court is Bernard’s pro se motion for sanctions against defendants, alleging that: (1)
they failed to preserve certain security camera footage, intercom transmissions, and a nursing
protocol document relevant to an incident of self-harm on October 29, 2016; and (2) defendant
Correctional Officer Bleleir failed to log by hand seven intercom communications with Bernard on
August 13, 2018. (Dkt. #94.) If a party “intentionally destroys evidence in bad faith, the judge
may instruct the jury to infer the evidence contained incriminatory content.” Bracey v. Grondin,
712 F.3d 1012, 1018 (7th Cir. 2013). At this stage, it is not yet apparent which, if any, claims
may have merit, since none of the missing information appears to have any bearing on plaintiff’s
duty to exhaust. Accordingly, the court will deny the motion without prejudice subject to renewal
at summary judgment, when the substantive importance of the missing information (and any
reasonable or legally compelled inference as a sanction) can be better understood in context.
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OPINION
Prisoners may not bring a federal claim about events in prison “until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). In other
words, a prisoner must follow all the prison’s rules for completing the grievance process.
Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). This includes: (1) compliance
with instructions for filing an initial grievance, Cannon v. Washington, 418 F.3d 714, 718
(7th Cir. 2005); and (2) pursing all available appeals “in the place, and at the time, the
prison administrative rules require,” Pozo, 286 F.3d at 1025; see also Burrell v. Powers, 431
F.3d 282, 284-85 (7th Cir. 2005).
“Exhaustion is necessary even if . . . the prisoner
believes that exhaustion is futile.” Dole v. Chandler, 438 F.3d 804, 808-09 (7th Cir. 2006);
see also Thornton v. Snyder, 428 F.3d 690, 694 (7th Cir. 2005) (“An inmate’s perception
that exhaustion would be futile does not excuse him from the exhaustion requirement.”)
(citations omitted).
This exhaustion requirement affords prison administrators a fair opportunity to
resolve a grievance without litigation.
Woodford v. Ngo, 548 U.S. 81, 88-89 (2006).
However, a prisoner’s failure to exhaust constitutes an affirmative defense, which
defendant must prove. Davis v. Mason, 881 F.3d 982, 985 (7th Cir. 2018). At summary
judgment, defendants must specifically show that (1) there is no genuine dispute of
material fact as to plaintiff’s failure to exhaust, and (2) they are entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Wisconsin prisoners start the administrative process by filing an inmate complaint
with the institution complaint examiner (“ICE”) within 14 days after the occurrence giving
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rise to the complaint.
Wis. Admin. Code § DOC 310.09(6).2
Further, the inmate
complaint must “clearly identify the issue” that the inmate seeks to raise.
Id.
§ 310.09(1)(e). Once filed, ICE is required to assign a file number to the inmate complaint,
along with a classification code and date. Id. § 310.11(2). ICE is also required to “review
and acknowledge each complaint in writing within 5 working days after the date of receipt
by the ICE.” Id.
If ICE rejects a grievance for procedural reasons without addressing the merits, an
inmate can appeal that rejection. Id. § 310.11(6). If the complaint is not rejected on
procedural grounds, then ICE must make a recommendation to the reviewing authority as
to how the complaint should be resolved. Id. § 310.11(4). The offender complaint is then
decided by the appropriate reviewing authority, whose decision could be appealed by the
inmate to a correctional complaint examiner (“CCE”) within “10 calendar days.” Id.
§§ 310.12, 310.13. If appealed timely, then the CCE must make a recommendation to the
Secretary of the Department of Corrections, whose decision is final. Id. §§ 310.13, 310.14.
At issue here is whether plaintiff failed to exhaust his administrative remedies with
respect to his claims against defendants Barrett, Roper, Beahm, Muenchow, Moon,
Schneider, Ashworth, Melli, and Foster. As an initial matter, plaintiff concedes that he did
not properly exhaust his inmate complaint filed against defendant Barrett (WCI-201717384). (Dkt. #126 at 6 n.2.) Accordingly, plaintiff’s claim against this defendant will
On April 1, 2018, a new version of Wis. Admin. Code § DOC ch. 310 went into effect. Unless
indicated otherwise, this order refers to the December 2014 version in effect when the oldest of the
at-issue claims arose.
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be dismissed without prejudice.3 See Ford v. Johnson, 362 F.3d 395, 401 (7th Cir.2004)
(holding that “all dismissals under § 1997e(a) should be without prejudice”). The court
will address the remaining inmate grievances by defendant or groups of defendants, as
appropriate.
I. Defendant Schneider
Plaintiff alleges that on August 13, 2018, he contacted the restrictive housing unit
(“RHU”) bubble officer Joshua Bleleir through the intercom about his anxiety and thoughts
of self-harm. In response, Bleleir allegedly taunted plaintiff, who began cutting himself.
Later that afternoon, when defendant Correctional Officer Schneider came to plaintiff’s
cell door to pass out supplies, Schneider allegedly failed to seek medical attention despite
plaintiff showing him his bleeding wounds and a sharpened pen tip.4
Plaintiff is proceeding against Schneider and Bleleir on claims of deliberate
indifference. However, inmate complaint WCI-2018-18261 concerning this incident of
self-harm relates solely to plaintiff’s claim against Bleleir:
1.) I DeAndre Bernard, mentally ill inmate, with an extensive
and frequent history of self-harm, contacted R.H.U. bubble
officer (male) and alerted him to my mental health emergency
(per P.S.R. policy) and that I was [having] thoughts of selfharm, 2.) the officer was dismissive, antagonizing and even
taunted me by urging me to “cut deeper,” and “I wasn’t doing
it right cuz I wasn’t dead.” 3.) This carried on for an entire
The court, however, understands that this dismissal will function as one with prejudice, since it
would be too late for plaintiff to exhaust his claim against Barrett now. See Walker v. Thompson, 288
F.3d 1005, 1009 (7th Cir. 2002) (“Dismissal for failure to exhaust is without prejudice and so does
not bar reinstatement of the suit unless it is too late to exhaust.”) (citations omitted).
3
In the original complaint, plaintiff identified this correctional officer as Nelson, but later amended
his complaint to substitute defendant Schneider. (Dkt. #64.)
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hour, me self-harming myself and this officer refusing to act.
As a result of this indifference I suffered 3 painful lacerations
which required 22 stitches.
(Dkt. #113-7 at 10.) ICE and CCE both recommended dismissal, but ICE also referred
the matter for further investigation in light of “the nature of the allegations” and the
absence of “logged emergency call button transmissions for the date and approximate time
cited.” (Dkt. #113-7 at 2.) Because supervisory staff then assumed review of the incident,
there was no need for a parallel investigation via the inmate grievance system, and
plaintiff’s appeal was dismissed. (Dkt. #113-7 at 5.)
Plaintiff does not reference any other conduct by Bleleir or any other staff on August
13, 2018, in his grievance or on appeal.
(Dkt. #113-7 at 10-11.)
Certainly, DOC
regulations do not require inmates to know the names of the employees they are
complaining about; still, an inmate must “clearly identify the issue.” Schillinger v. Kiley,
954 F.3d 990, 995 (7th Cir. 2020); see also Wis. Admin. Code § DOC 310.07(5) (2018)
(limiting a complaint to “only one clearly identified issue”). Moreover, an inmate must
provide enough information to at least identify a defendant to the grievance officer as “the
target” of any investigation. See Roberts v. Neal, 745 F.3d 232, 235 (7th Cir. 2014) (“fatal
defect” of grievance was “the absence of anything in it to indicate that [the defendant] was
the target”).
Here, plaintiff’s complaint about August 13 focuses solely on Bleleir’s conduct, and
thus provides no notice to ICE or the institution that plaintiff was challenging Schneider’s
conduct as well. Thus, there is no dispute that plaintiff has exhausted his administrative
remedies with respect to his claim against Bleleir, but his claims against Schneider will be
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dismissed without prejudice.5
II. Defendants Moon and Muenchow
As for the individual ICE examiners, Moon and Muenchow, plaintiff claims each
was repeatedly, deliberately indifferent to a risk of self-harm and to his serious medical
needs by rejecting his inmate grievances. (Dkt. #18 at 14.) Specifically, on December 27,
2018, plaintiff filed grievance WCI-2018-26422 generally complaining that these two
defendants were rejecting his grievances as either concerning more than one issue or failing
to include sufficient detail. (Dkt. #113-5 at 6.) Another ICE found no administrative
code violations and recommended dismissal, and Warden Foster agreed as the reviewing
authority. Plaintiff concedes that he did not appeal that decision, and therefore did not
exhaust his remedies with respect to this grievance. (Dkt. #126 at 6.) He now argues that
“the systemic disregard of his due process rights” could not “be fixed by complaining of the
systemic disregard of his due process rights.” (Id.) However, as noted above, an inmate’s
perception of futility does not excuse him from the exhaustion requirement. Thornton, 428
F.3d at 694. Accordingly, these claims against Moon and Muenchow will be dismissed
without prejudice as well.
III. Defendants Moon, Muenchow, Ashworth, Meli, and Warden Foster
Plaintiff, who suffers from mental health conditions sufficiently serious to be
Defendants note that plaintiff filed a separate incident involving complaint against Schneider in
WCI-2018-16630, claiming that he ignored plaintiff’s self-harm threats on July 11, 2018. (Dkt.
#113-6 at 6.) However, plaintiff is not pursuing any claim based on that event in this lawsuit, and
he does not address this complaint in his response brief. Accordingly, the court will not address
this complaint further.
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classified as an MH-2a inmate, was placed in restrictive housing on October 19, 2018.
DAI policy #303.00.02 mandates that each institution “develop a RH Step Program that
provides inmates with opportunities and incentives to improve their attitudes and
behavior” that include additional out-of-cell time for programming and activities for MH2A inmates like plaintiff. (Dkt. #128-1 at 3.) Plaintiff claims that defendants Moon and
Muenchow, as well as Warden Foster, Segregation Program Supervisor Ashworth, and
Security Director Meli, were each aware that Waupun was in violation of this DAI policy
and that plaintiff’s resulting conditions of confinement placed him at an ongoing, serious
risk of self-harm, yet did nothing. (Dkt. #18 at 13.)
With respect to this issue, plaintiff filed inmate grievance WCI-2018-25648 on
December 8, 2018. In it, plaintiff indicates that “conditions of confinement for MH-2A
inmates [are] not being met in accordance with DAI [policy] 303.00.02.” (Dkt. #113-8
at 8.) Specifically, plaintiff notes that section 2(c) of DAI policy 303.00.02 requires staff
to provide “seriously mentally ill” inmates “additional out of cell time for programming
and activities” and “out of cell groups, counseling and programing and activities.” (Id.)
Plaintiff also cites section 8(c) of the same DAI policy for the proposition that an inmate
with his mental health classification “shall have a [behavior modification plan] developed
within 10 days” of receiving a disciplinary separation disposition of 60 days or more.
Plaintiff further claims that these requirements are not being met, as he has not received
any additional programming or counseling; and as a result, he has “had numerous mental
breakdowns and episodes that landed [him] in obs[ervation] for self-harm.” (Dkt. #113-
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8 at 8.) Plaintiff notes that he spoke to defendants Foster, Melli and Ashford about the
issue, among other staff.
Even so, Muenchow returned plaintiff’s complaints as to violation of these DAI
policies, asking that he clarify what his specific requests were of staff, and when and who
denied his request, as well as provide supporting documentation.
Plaintiff then
resubmitted his complaint, clarifying on the return letter that he wanted a behavior
modification plan and reiterating that despite his claim he had yet to receive access to any
additional programming and activities, not just that a specific request had been denied.
(Dkt. #113-8 at 9.) Upon resubmission, however, Muenchow again rejected the complaint
under § 310.10(6)(d), which requires inmates to provide sufficient information to support
a complaint. Specifically, Muenchow faulted plaintiff for not specifying what he needed
or what plaintiff “believes he should specifically have” in terms of therapeutic activities or
treatment. (Dkt. #113-8 at 6.) Finally, Muenchow indicated that behavior modification
plans are not “automatically developed.” (Id.)
Plaintiff appealed, underscoring that: (1) he had cited to specific sections of the
policy; (2) Muenchow had misinterpreted the policy requiring the development of behavior
modification plans within a certain timeframe for MH-2a inmates; and (3) plaintiff’s
“evidence” was “the fact that [he had] not received any” of the accommodations mandated
in the policy as a severely mentally ill inmate in restrictive housing. (Dkt. #113-8 at 13.)
Foster upheld the rejection.
Here, the parties fundamentally dispute ICE Muenchow’s interpretation and
application of § 310.10(6)(d). As a general matter, an inmate complaint that is “rejected”
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based on a procedural defect does not fulfill the exhaustion requirement. Conyers v. Abitz,
416 F.3d 580, 584 (7th Cir. 2005). A prisoner’s compliance with procedural rules is
important in making sure prison officials have “a fair opportunity to correct their own
errors.” Woodford, 548 U.S. at 94. However, where “the applicable regulations provide
little guidance regarding the required contents of a prison administrative complaint,” the
complaint “will suffice for exhaustion purposes if it provides notice to the prison of the
nature of the wrong for which redress is sought.” Schillinger v. Kiley, 954 F.3d 990, 995
(7th Cir. 2020) (citation omitted). In this case, plaintiff’s complaint, including his return
letter, would appear on its face to provide sufficient information about the nature of his
conditions of confinement claim and straightforward violations of mandatory DAI policy
to have given prison officials “a fair opportunity to correct their own errors.” Specifically,
plaintiff’s grievance: explains that he is a MH-2a inmate; specifies the two sections of DAI
policy 303.00.02 that he claims defendants are violating; further clarifies that he requested
a behavior modification plan; and maintains that he has not received access to any out-ofcell groups, counseling, or programming, let alone additional out-of-cell time for
therapeutic activities as an MH-2a inmate. Finally, and most importantly, plaintiff states
that his mental health is deteriorating to the point that he has been placed on observation
status and had several breakdowns.
While his complaint does not concern the denial of a specific activity or treatment
by one individual defendant, plaintiff apparently had yet to be given a plan with specific
recommendations, or had one implemented, and the thrust of his complaint was that he
had no therapeutic outlet in restrictive housing. Thus, the subject of his complaint is the
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same as the claim on which plaintiff is proceeding in this case. Accordingly, the court will
deny defendants’ motion with respect to plaintiff’s conditions of confinement claim.
IV. Defendants Roper and Beahm
Finally, plaintiff is proceeding against defendants Roper and Beahm, both
correctional officers, on claims that they were deliberately indifferent to a risk of self-harm
and to serious medical needs in June of 2017. Defendants argue that these claims are
unexhausted because plaintiff failed to follow ICE’s directive to first attempt to resolve his
grievances informally with Captain Tritt, a nondefendant, before resubmitting them, so
the institution never reached the merits. Moreover, under § 310.09(4), which was in effect
at the time, before “accepting [an inmate’s] complaint, the ICE may direct the inmate to
attempt to resolve the issue.” Plaintiff does not challenge that procedure, so the court will
not second-guess it here. As a general matter, plaintiff is required to follow the prison’s
established grievance procedures before filing suit, Chandler, 438 F.3d at 809, and in
response to defendants’ motion, plaintiff has submitted an affidavit attesting that he did
follow ICE’s directives. Although the question is close with respect to defendant Beahm,
the court will dismiss without prejudice plaintiff’s claims against these two defendants for
the reasons set forth below.
1. Defendant Roper
Beginning with Roper, plaintiff alleges that on June 18, 2017, he refused to give
him prescribed medication because plaintiff was not at his cell door on time. However,
Roper still gave plaintiff his Ramadan meal bag, which contained two spoons. At that
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point, plaintiff allegedly alerted Roper the spoons violated his “no sharps” restriction and
he would harm himself with them. Nevertheless, Roper allegedly allowed plaintiff to keep
the spoons, which he then used to self-harm the next day.
On June 20, however, plaintiff submitted WCI-2017-16093 about the incident,
indicating that he had spoken with Roper and Captain Tritt. (Dkt. #113-3 at 12.) ICE
also sent plaintiff a return letter the next day on June 21, which expressly declined to accept
the complaint and directed him to send the return letter to the Captain for his response.
(Id. at 13.) The letter provided that the Captain had “at least 5 working days” to reply by
documenting his response on the letter. (Id.) If plaintiff still felt that his issue with Roper
was not resolved at that point, then he could resubmit his complaint with the captain’s
response to the return letter. (Id. at 12.)
ICE received plaintiff’s resubmitted complaint and the return letter, which was
blank, on June 23, 2017. (Id. at 11-12.) In his resubmission documents, however, plaintiff
does not claim to have sent the letter to the Captain. In recommending dismissal, ICE
concluded that plaintiff was not willing to assist in resolving his concerns. Specifically,
ICE noted that plaintiff had never sent the return letter to Captain Tritt as directed and
had simply resubmitted the complaint. Moreover, Captain Tritt stated that plaintiff had
never spoken to him about Roper.
Plaintiff next appealed to CCE, reiterating his
allegations against Roper again without referencing Captain Tritt.
The office of the
Secretary dismissed the appeal on August 7, 2017.
Plaintiff now attests that he did speak to Captain Tritt before resubmitting his
grievance, and he did send the Captain a copy of the return letter. (Dkt. #127 at 1-2.)
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But the directive was to seek a response from Captain Tritt himself before resubmitting the
grievance via the return letter, which the Captain had at least five days to consider. Even
accepting plaintiff’s assertions before this court, he did not take the opportunity to provide
ICE or CCE or the Secretary with any details or documentation of his attempts at informal
resolution over the Captain’s denial, plaintiff’s claim that he did comply with the directive.
Plaintiff then almost immediately resubmitted his complaint and blank return
letter, without any new, follow-up information for ICE or in his appeal. “[U]nless the
prisoner completes the administrative process by following the rules the state has
established for that process, exhaustion has not occurred.”
Pozo, 286 F.3d at 1023.
Because plaintiff did not “offer any proof that he at least attempted to satisfy the DOC’s
exhaustion requirement in the way that the ICE required,” therefore, he cannot proceed
past summary judgment on his exhaustion defense against defendant Roper. Carlton v.
Dodge Corr. Inst., No. 12-cv-695-wmc, 2014 WL 418796, at *5 (W.D. Wis. Aug. 21, 2014).
2. Defendant Beahm
As for defendant Beahm, the question is much closer. Plaintiff alleges that this
officer was involved in an incident on June 19, 2017. That day, plaintiff woke up, began
hallucinating that there were ants in his cell, and panicked. After he pressed the intercom
button, Beahm came to his cell door. Plaintiff told Beahm about his anxiety attack and
intention to self-harm, and showed Beahm a broken, sharpened spoon. Nevertheless,
Beahm allegedly walked away, allowing plaintiff to harm himself.
Plaintiff filed WCI-2017-17383 about this incident on June 22, 2017, but ICE
declined to accept the grievance. Instead, like with his grievance against Roper, ICE sent
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plaintiff a return letter, instructing him (1) to contact Captain Tritt, (2) to send the captain
the letter for a response, and (3) to resubmit the complaint and letter if the issue was not
resolved. ICE repeated this directive after receiving plaintiff’s resubmitted complaint on
June 30, and finding unsubstantiated plaintiff’s assertion on the resubmitted complaint
that he had spoken with the captain on June 29, who had allegedly “said he’ll do his best
to get me out of here.” (Dkt. #113-4 at 11.)
On July 10, ICE received plaintiff’s resubmitted grievance for a second time.
Plaintiff added that Captain Tritt had returned the letters to plaintiff blank on July 7, but
did not suggest that plaintiff had made any renewed attempt to actually speak with the
captain. At that point, ICE recommended dismissal for plaintiff’s failure to cooperate,
again crediting Captain Tritt’s representation that plaintiff had neither spoke to him nor
sent him letters about the subject complaint against Beahm.
Plaintiff appealed,
maintaining that he had done “exactly what [he] was directed to do and Tritt sent the
return letters back and lied about doing so.” (Dkt. #113-4 at 16.) However, the Office of
the Secretary dismissed the appeal on August 7, 2017.
Before this court, plaintiff once more attests that he did speak to Captain Tritt
before resubmitting the complaint, and that he did give the captain the return letters only
to have them returned to him blank, as before. (Dkt. #127 at 1.) This time, plaintiff
noted on his complaint with each resubmission what step he had taken, with dates. Even
so, the details remained thin, despite plaintiff having resubmitted the complaint for a
second time with neither return letter including any response from Captain Tritt, who
specifically denied plaintiff’s version of events. Moreover, when plaintiff appealed the
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rejected complaint to the reviewing authority, he again provided no additional detail of his
resolution attempts, suggesting only that the captain was being untruthful.
At that point, plaintiff twice resubmitted his complaint concerning Beahm, showing
some effort to clear ICE’s administrative hurdles, but plaintiff ultimately did not provide
enough information to show ICE or the reviewing authority that he had properly followed
directives. Accordingly, this court must, with some reluctance, grant defendants’ motion
with respect to plaintiff’s claims against Beahm as well, while remaining sensitive to the
numerous pitfalls that the Wisconsin DOC’s grievance process presents, and notes that
this result does not necessarily dictate the outcome in another case.
ORDER
IT IS ORDERED that:
1) Plaintiff’s motion for sanctions (dkt. #94) is DENIED without prejudice
pending full briefing on the merits of plaintiff’s claims at summary judgment.
2) Defendants’ motion for summary judgment (dkt. #112) is GRANTED IN PART
and DENIED IN PART as provided in this order.
3) Defendants Barrett, Schneider, Roper, and Beahm are DISMISSED from this
lawsuit.
Entered this 14th day of June, 2022.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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