Schillinger, Daniel v. Kiley et al

Filing 18

ORDER that James Schillinger has until June 30, 2021, in which to submit a sworn declaration or documentation showing that he: (1) timely filed an administrative grievance concerning the September 17, 2015 incident that is the basis for his cl aims in this lawsuit; and (2) fully exhausted his administrative remedies with respect to that grievance. If Schillinger cannot make this showing, then his complaint will be dismissed for failure to exhaust his administrative remedies. The court is taking no action on plaintiff's motion to appoint counsel (Compl. (dkt. # 1 ) 2) at this time. Signed by District Judge William M. Conley on 6/9/2021. (lam),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DANIEL A. SCHILLINGER,
Plaintiff,

OPINION AND ORDER

v.
20-cv-679-wmc
C.O. KILEY, C.O. STARKEY, and
SGT. MATTI,
Respondents.
This is a proposed civil rights action brought pursuant to 42 U.S.C. § 1983. Pro se
plaintiff Daniel Schillinger, who currently is incarcerated at Racine Correctional Institution,
claims that on September 17, 2015, correctional officers Josh Kiley and Randy Starkey and a
sergeant, Richard Matti, failed to protect Schillinger from an assault by another inmate, James
Terry, while Schillinger was incarcerated at the Wisconsin Secure Program Facility (“WSPF”).
(Compl. (dkt. #1).) Schillinger’s complaint is before the court for screening as required by 28
U.S.C. §§ 1915(e)(2) and 1915A.

As explained below, although the complaint appears

frivolous, Schillinger will be granted a brief window of time to show cause why his complaint
should not be dismissed for his failure to exhaust his administrative remedies.

OPINION
This is the second time Schillinger has filed a civil rights complaint against these
defendants for their alleged failure to protect him from Terry’s September 17, 2015, attack.
In July 2016, Schillinger filed a civil rights complaint containing the same allegations against
the same defendants. Schillinger v. Kiley et. al, 16-cv-529-wmc. On April 26, 2018, this court
entered an order dismissing the case without prejudice, finding that the only inmate complaint
that Schillinger had filed “about the September 17, 2015, incident lacked any allegation that

the named defendants knew in advance that he might be subject to an inmate attack and failed
to stop it from happening.” (4/26/18 Op. and Ord. (dkt. #53) 4.) Accordingly, because
Schillinger’s grievance failed to provide adequate notice of the failure-to-protect claim, the
complaint had to be dismissed for Schillinger’s failure to exhaust his administrative remedies.
Id. On April 6, 2020, the Court of Appeals for the Seventh Circuit upheld this determination
on appeal. (Dkt. #87-1.)
In the present complaint, Schillinger does not mention the court’s previous ruling, nor
does he state that he has since exhausted his claim. Indeed, since the time for doing so
administratively appears to have elapsed by the time the Seventh Circuit affirmed the dismissal
of Schillinger’s complaint, he appears unable to exhaust timely. The court recognizes that
failure to exhaust administrative remedies is an affirmative defense not normally raised at the
screening stage, but “when the existence of a valid affirmative defense is so plain from the face
of the complaint that the suit can be regarded as frivolous, the district judge need not wait for
an answer before dismissing the suit.” Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.
2002). Here, the fact that Schillinger is attempting to re-raise claims dismissed long ago for
failure to exhaust strongly suggests that his claim is frivolous, making it appropriate to address
the exhaustion issue now. Accord Hopkins v. Wisconsin, Case No. 18-cv-66-wmc, 2018 WL
6173540, *2 (W.D. Wis. Nov. 26, 2018) (denying leave to proceed and dismissing case for
failure to exhaust where plaintiff was attempting to bring same lawsuit that had been twice
dismissed for failure to exhaust and he did “not indicate that he has since corrected that
deficiency.”).
Although unlikely, the possibility remains that Schillinger was somehow able to revive
his case administratively and to properly exhaust it. Accordingly, rather than dismiss the case

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at this juncture, the court will allow Schillinger a brief window of time, until June 30, 2021, in
which to submit a sworn declaration or documentation showing that he timely filed an
administrative grievance concerning the September 17, 2015 incident and fully exhausted his
administrative remedies with respect to that grievance. If Schillinger fails to provide this
information, then his complaint will be dismissed for failure to exhaust administrative
remedies.

ORDER
IT IS ORDERED that:
1.

James Schillinger has until June 30, 2021, in which to submit a sworn

declaration or documentation showing that he: (1) timely filed an administrative grievance
concerning the September 17, 2015 incident that is the basis for his claims in this lawsuit; and
(2) fully exhausted his administrative remedies with respect to that grievance.
2.

If Schillinger cannot make this showing, then his complaint will be dismissed for

failure to exhaust his administrative remedies.
3.

The court is taking no action on plaintiff’s motion to appoint counsel (Compl.

(dkt. #1) 2) at this time.
Entered this 9th day of June, 2021.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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