Peterson, Jonathan v. Benzel, Jason et al

Filing 40

ORDER Defendants Davis Arndt's and Alicia Miller's motion for partial summary judgment on exhaustion grounds, Dkt. 30 , is GRANTED. Peterson's claims against Arndt and Miller are DISMISSED without prejudice and Arndt and Miller are DISMISSED from the case. Defendants' motion to compel, Dkt. 37 , is DENIED as moot. Signed by District Judge James D. Peterson on 5/22/2023. (acd),(ps)

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

JONATHAN MORGAN PETERSON,
Plaintiff,
OPINION and ORDER

v.
DAVIS ARNDT, LT. ALICIA MILLER,
and BRANDON WRIGHT,

21-cv-799-jdp

Defendants.1
Plaintiff and prisoner Jonathan Peterson, appearing by counsel, is proceeding on claims
that an officer at Dodge Correctional Institution sexually harassed him and that staff retaliated
against him for reporting the harassment by placing him in a freezing cold cell. Defendants
Davis Arndt and Alicia Miller, the officers who allegedly retaliated against Peterson, move for
summary judgment on the ground that Peterson failed to exhaust his claims against them.
Dkt. 30. (Defendant Brandon Wright, the officer who allegedly harassed Peterson, has not
moved for summary judgment.)
The court will grant Arndt and Miller’s motion and dismiss them from the case.
Peterson filed two complaints about his cold cell. But the complaint examiner dismissed his
first complaint, and Peterson did not appeal that decision. When the prison rejected the second
complaint on procedural grounds, Peterson did not re-submit the complaint, even though he
was expressly given an opportunity to do so.

I have amended the caption to include defendants’ full names as provided in their notice of
appearance. Dkt. 23.
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Also before the court is defendants’ motion to compel Peterson to sign an authorization
to release his medical records. Dkt. 37. Peterson states that he has since provided defendants
with a signed authorization, Dkt. 39, so it appears that the issue has been resolved. The court
will deny that motion as moot.

BACKGROUND
A. Wisconsin’s inmate complaint procedure
Wisconsin law provides a process for inmates to file complaints about prison conditions.
Relevant to this case, an inmate must attempt to resolve the issue with an appropriate member
of prison staff prior to filing a complaint. Wis. Admin. Code DOC § 310.07(1). If the issue
cannot be resolved, the inmate must file a complaint with the institution complaint examiner
within 14 days of the event giving rise to the complaint. § 310.07(2). The complaint examiner
may return a complaint if it is defective to allow the inmate to resubmit the complaint after
correcting the issues noted by the examiner. § 310.10(5).
If the complaint is not returned or rejected, the complaint examiner makes a
recommendation on the complaint to the reviewing authority—here, the warden. § 310.10(12).
The warden then decides whether to affirm or dismiss the complaint. If an inmate is dissatisfied
with the warden’s decision, the inmate may, within 14 days, appeal the decision to the
Department of Corrections. § 310.12.
B. Facts at summary judgment
I draw the following from Peterson’s complaint, Dkt. 1, his amended complaint,
Dkt. 18, and the declarations and prison records submitted by the parties on the exhaustion
motion. Dkt. 32; Dkt. 35.

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Peterson alleges that in late November 2021, defendant officer Brandon Wright forced
him to walk into a cell that was covered in drawings of penises. Peterson timely submitted an
inmate complaint about the incident on December 6.
Peterson sent a letter to the warden and the deputy warden a few days later, stating
that the prison was not adequately investigating Wright’s harassment and that he had been
retaliated against for reporting the harassment. Among other things, Peterson stated that he
had been moved from Unit 10 to Unit 17 and that the cell windows in Unit 17 did not close
so it was freezing cold. Dkt. 35-4, at 2. Peterson also stated that his new cellmate had tested
positive for COVID-19, and that as a result, Peterson had been put on quarantine and was
unable to visit the library or participate in recreational activities. Id.
On December 11, Peterson filed a formal inmate complaint about his cold cell, stating
that the windows in his unit were broken and would not close, the unit did not have
“storm/winter windows,” and nurses were refusing to hand out extra blankets. Dkt. 32-4, at 7.
Peterson filed another inmate complaint about the issue two days later. Id. at 6. Peterson did
not say that he was being retaliated against for reporting Wright’s harassment in either
complaint.
The prison’s institution complaint examiner received both complaints on December 14,
and the examiner combined the two complaints into one complaint for processing. The
examiner reached out to an officer in Peterson’s unit, sergeant Toutant, to investigate the
complaint. Toutant said that he saw an open window in Peterson’s cell, so Toutant closed it.
Toutant also said that the other windows in Peterson’s unit would be checked that day to
ensure that they were also closed. The complaint examiner concluded that the issue was

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resolved, so she recommended that Peterson’s complaint be dismissed. The warden dismissed
the complaint, and Peterson did not appeal the dismissal.
On December 23, the warden responded to Peterson’s letter from earlier that month.
The warden wrote that the prison was investigating his harassment complaints and that “[a]ny
perceived retaliation between the investigation and your current unit being under quarantine
is simply not accurate.” Dkt. 35-9. The letter did not mention the cold cell.
On December 29, Peterson submitted another inmate complaint in which he
complained that his cell’s window was still broken and that staff had refused to fix it. The
complaint examiner did not accept the complaint because Peterson did not submit proof that
he had attempted to resolve the issue with a staff member prior to filing a complaint. The
examiner told Peterson that he had the opportunity to resubmit the complaint with the
required evidence. Dkt. 35-2, at 1. Peterson did not adduce evidence that he resubmitted the
complaint, and there is no record that he resubmitted the complaint on his inmate complaint
history report. See Dkt. 32-1, at 5.

ANALYSIS
The Prison Litigation Reform Act (PLRA) requires prisoners to exhaust administrative
remedies established by state law before filing a lawsuit regarding prison conditions based on
federal law. 42 U.S.C. § 1997e(a); Lanaghan v. Koch, 902 F.3d 683, 687 (7th Cir. 2018). To
comply with § 1997e(a), a prisoner must follow every step of the administrative process, which
includes filing complaints and appeals pursuant to the prison’s administrative rules. Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Strict compliance with the rules is required.
Lewis v. Washington, 300 F.3d 829, 834 (7th Cir. 2002). Exhaustion is an affirmative defense,

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which means that defendants bear the burden of establishing that Peterson failed to exhaust
his available remedies. Jones v. Bock, 549 U.S. 199, 216 (2007).
Peterson is proceeding on First Amendment retaliation claims and Eighth Amendment
claims against Miller and Arndt for allegedly placing Peterson in a cold cell in response to
Peterson’s complaints about sexual harassment. Peterson does not dispute that he failed to
submit an inmate complaint about alleged retaliation or that he failed to complete all the steps
of the grievance process for his complaints about his cold cell. But Peterson contends that his
complaints and letters satisfied the purpose of the exhaustion requirement, which is to give
prison administrators a fair opportunity to resolve the issue without litigation. See Woodford v.
Ngo, 548 U.S. 81, 88–89 (2006).
This argument fails. The PLRA requires proper exhaustion, id. at 93, which requires
inmates to submit complaints in the manner required by prison rules and to see those
complaints through to the end of the grievance process. Compliance with administrative
procedures is critical because “no adjudicative system can function effectively without imposing
some orderly structure on the course of its proceedings.” Id. at 90–91. It is not enough to show
that prison officials had actual notice of the issue.
The record shows that Peterson did not properly exhaust his claims. As for the
retaliation claims, Peterson never filed an inmate complaint that would alert the prison to the
alleged retaliation. This court has previously concluded that to properly exhaust a retaliation
claim, “at a minimum, [a grievance] must identify two things: the protected conduct that
provoked the retaliation and the retaliatory act.” Lockett v. Goff, No. 17-cv-93-jdp, 2017 WL
4083594, *2 (W.D. Wis. Sep. 13, 2017) (citations and quotations omitted). Peterson filed
three complaints about his cold cell. But he did not state in any of them that he was placed in

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a cold cell because he complained about Wright’s harassment. See Dkt. 32-4, at 6–7; Dkt. 32-5.
Peterson did state that he was being retaliated against in his letter to the warden. But Peterson
“sent [his] letter outside the bounds of the formal administrative process,” so his letter to the
warden did not properly exhaust his retaliation claims. See Brim v. Stevens, No. 18-cv-24-jdp,
2019 WL 112615 (W.D. Wis. Jan. 4, 2019).
As for the Eighth Amendment claims based on the conditions of Peterson’s cell,
Peterson did not take his complaints about that issue through every step of the grievance
process. Peterson’s first two complaints about his cold cell were dismissed because it appeared
that the problem was resolved after staff closed the window. If Peterson was dissatisfied with
the way that the prison addressed the issue, he could have appealed the warden’s decision.
Peterson filed a third complaint about the cold cell later that month in which he stated that
the window in his cell was still broken. But that complaint was returned to Peterson because
he did not provide evidence that he had tried to resolve the problem with prison staff prior to
filing the complaint. The complaint examiner’s decision expressly stated that Peterson could
re-submit the complaint with that information, but there is no evidence that Peterson took
advantage of that opportunity.
Peterson cites other legal rules that provide reasons why failure to comply with grievance
procedures may be excused, including that an untimely grievance may exhaust administrative
remedies if prison officials consider it on the merits, Dkt. 35, at 6, and that an inmate is not
required to exhaust remedies that are unavailable, id. at 8. But Peterson does not explain why
those rules are relevant to the facts of this case, so he has forfeited any arguments based on
those rules. Because Peterson did not properly exhaust his claims against Miller and Arndt,
those claims will be dismissed without prejudice.

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ORDER
IT IS ORDERED that:
1. Defendants Davis Arndt’s and Alicia Miller’s motion for partial summary judgment
on exhaustion grounds, Dkt. 30, is GRANTED. Peterson’s claims against Arndt and
Miller are DISMISSED without prejudice and Arndt and Miller are DISMISSED
from the case.
2. Defendants’ motion to compel, Dkt. 37, is DENIED as moot.
Entered May 22, 2023.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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