Roberts, Cody v. Novak, Sue et al

Filing 24

ORDER that defendants' motion for partial summary judgment, dkt. # 16 , is GRANTED. Plaintiff Cody Michael Roberts' conditions of confinement claim against defendants Bryan Gerry, Austin Schlachter and Victoria Poole is DISMISSED WITHOUT PREJUDICE for plaintiff's failure to exhaust his administrative remedies as to this claim and these defendants before filing suit. Signed by District Judge Barbara B. Crabb on 1/6/2021. (lam),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - CODY MICHAEL ROBERTS,
OPINION AND ORDER
Plaintiff,
20-cv-187-bbc
v.
BRYAN T. GERRY, AUSTIN SCHLACHTER,
ANDREW JAMES JEZUIT, JASON KOEHN,
CAPTAIN BEST, VICTORIA POOLE,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - Pro se plaintiff and prisoner Cody Michael Roberts is proceeding on claims that
prison staff at Columbia Correctional Institution violated his Eighth Amendment rights in
various ways. Now before the court is defendants’ motion for partial summary judgment on
the ground that plaintiff failed to exhaust his administrative remedies with respect to his
conditions of confinement claim against defendants Bryan Gerry, Victoria Poole and Austin
Schlachter. Dkt. #16. Because defendants have shown that plaintiff failed to exhaust his
administrative remedies as to that claim, I will grant defendants’ motion and dismiss that
claim 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

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available are exhausted.” Generally, to comply with § 1997e(a), a prisoner must “properly
take each step within the administrative process.” Pozo v. McCaughtry, 286 F.3d 1022,
1025 (7th Cir. 2002). This includes following instructions for filing the initial grievance,
Cannon v. Washington, 418 F.3d 714, 718 (7th Cir. 2005), as well as filing all necessary
appeals, Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005), “in the place, and at the
time, the prison's administrative rules require.” Pozo, 286 F.3d at 1025. The purpose of
these requirements is to give the jail or prison administrators a fair opportunity to resolve
the grievance without litigation. Woodford v. Ngo, 548 U.S. 81, 88–89 (2006). A failure
to exhaust administrative remedies under § 1997e(a) is an affirmative defense that must be
proved by the defendants. Davis v. Mason, 881 F.3d 982, 985 (7th Cir. 2018).
To exhaust administrative remedies in Wisconsin, inmates must follow the inmate
complaint review process set forth in the Wisconsin Administrative Code ch. DOC 310.
Prisoners start the complaint process by filing an inmate complaint with the institution
complaint examiner within 14 days of the occurrence giving rise to the complaint. Wis.
Admin. Code § DOC 310.07(2). If the institution complaint examiner rejects a grievance
for procedural reasons without addressing the merits, an inmate may appeal the rejection.
Id. § 310.10(10). If the institution complaint examiner makes a recommendation that the
complaint be granted or dismissed on its merits, the appropriate reviewing authority may
dismiss, affirm or return the complaint for further investigation. Id. § 310.11. If an inmate
disagrees with the decision of the reviewing authority, he may appeal to the corrections
complaint examiner. Id. § 310.12. The corrections complaint examiner then recommends

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a decision to the Secretary of the Department of Corrections, who adopts or rejects the
recommendation. Id.
Plaintiff is proceeding in this case on the following Eighth Amendment claims: (1)
defendant Andrew Jezuit used excessive force against him; (2) defendants Bryan Gerry,
Austin Schlachter and Victoria Poole subjected him to inhumane conditions of confinement
by leaving him in a cold, concrete cell without any clothing or blankets; (3) defendant Jason
Koehn subjected him to psychological harassment; and (4) Captain Best failed to intervene
to stop Koehn’s harassment.
The facts relevant to defendants’ motion are undisputed. Plaintiff filed three inmate
complaints related to his claims. In CCI-2019-14037, plaintiff complained about excessive
force used by defendant Jezuit during a cell extraction. Dkt. #18-2 at 8-9. In CCI-201915306, plaintiff complained about harassment by defendants Koehn and Best. Dkt. #18-3
at 10-11. In CCI-2019-15334, plaintiff complained that an “Officer Cain” admitted to him
that he had broken plaintiff’s ribs during the earlier cell extraction. Dkt. #18-4 at 8.
Defendants argue that none of plaintiff’s inmate complaints was sufficient to exhaust
a conditions of confinement claim against Gerry, Schlachter or Poole. I agree. An inmate’s
complaint is sufficient for exhaustion purposes if it provides notice to jail officials of “the
nature of the wrong for which redress is sought.” Schillinger v. Kiley, 954 F.3d 990, 995
(7th Cir. 2020) (citation omitted). Plaintiff did not mention being placed in a concrete or
cold restrictive housing unit cell without clothes in any of his complaints. He also did not
mention any actions taken by defendants Gerry, Schlachter or Poole. Therefore, plaintiff’s

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complaints were not sufficient to exhaust his administrative remedies with respect to his
condition of confinement claims.

ORDER
IT IS ORDERED that defendants’ motion for partial summary judgment, dkt. #16,
is GRANTED. Plaintiff Cody Michael Roberts’ conditions of confinement claim against
defendants Bryan Gerry, Austin Schlachter and Victoria Poole is DISMISSED WITHOUT
PREJUDICE for plaintiff’s failure to exhaust his administrative remedies as to this claim and
these defendants before filing suit.
Entered this 6th day of January, 2021.
BY THE COURT:
/s/
________________________
BARBARA B. CRABB
District Judge

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