Freeman v. Berge

• Decision Date: 03 June 2003
• Docket Number: No. 03-C-0021-C.,03-C-0021-C.
• Parties: Berrell FREEMAN, Plaintiff, v. Gerald BERGE and Jon E. Litscher, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

Page 1009

283 F.Supp.2d 1009

Berrell FREEMAN, Plaintiff, v. Gerald BERGE and Jon E. Litscher, Defendants.

No. 03-C-0021-C.

United States District Court, W.D. Wisconsin.

June 3, 2003.

Berrell Freeman, Boscobel, WI, Pro se.

Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for defendants.

OPINION AND ORDER

CRABB, District Judge.

In an order dated February 12, 2003, I allowed plaintiff Berrell Freeman to proceed in forma pauperis on claims that defendants Gerald Berge and Jon Litscher violated his rights (1) to be free from unreasonable searches under the Fourth Amendment and from excessive force under the Eighth Amendment; (2) to receive adequate food under the Eighth Amendment; (3) to be free from extreme cell temperatures under the Eighth Amendment; and (4) to receive social interaction and sensory stimulation under the Eighth Amendment. Defendants have filed a motion to dismiss most of these claims on multiple grounds. First, defendants contend that plaintiff has failed to exhaust his administrative remedies for each of his claims except for his claim regarding extreme cell temperatures. Second, they argue that plaintiff's claim that he was denied food in violation of the Eighth Amendment is barred by the settlement agreement in Jones `El v. Berge, No. 00-C-421-C. Third, they argue that they are entitled to qualified immunity on plaintiff's claims that he was denied social interaction and sensory stimulation.

Defendants' motion will be granted in part and denied in part. I agree with defendants that plaintiff failed to exhaust his administrative remedies with respect to his claim that defendants subjected him to unconstitutional strip searches. Also, I agree that defendants are entitled to qualified immunity on plaintiff's claims that defendants deprived him of social interaction and sensory stimulation in violation of the Eighth Amendment. Accordingly, I will dismiss these claims. However, I conclude that plaintiff has administratively exhausted his claim that defendants denied him adequate food and that this claim is not barred by the Jones `El settlement agreement.

Also before the court is plaintiff's second motion for appointment of counsel. Because I am not persuaded that appointed counsel is appropriate in this case, plaintiff's motion will be denied.

For the purpose of deciding this motion to dismiss, I accept as true the allegations in plaintiff's complaint. In addition, I have considered documentation of plaintiff's use of the inmate complaint review system. Because these are public records, a court may take judicial notice of the documents without converting the motion to dismiss into a motion for summary judgment. Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 455 (7th Cir. 1998).

FACTS

In inmate complaint number WSPF-2002-41916, dated December 2, 2002, plaintiff wrote: "Due to the Settlement Agreement food is not to be used as punishment. I have been denied food because I did not have my light on, etc. This is using food as punishment. I HAVE NEVER REFUSED MY MEALS." The inmate complaint examiner recommended that the complaint be dismissed, writing that the policies regarding meal delivery were reasonable. The reviewer, the corrections complaint examiner and the office of the secretary affirmed the dismissal.

In complaint number WSPF-2002-41987, also dated December 2, 2002, plaintiff wrote that the "lack of access to the outdoors deprives me of my basic human need for sensory stimulation." The inmate complaint examiner recommended that the complaint be dismissed, concluding that "complainant has provided no evidence whatsoever that he resides in an environment harmful to his well-being." The decision was affirmed by the reviewer, the corrections complaint examiner and the office of the secretary.

Plaintiff filed inmate complaint number WSPF-2002-41219 on November 25, 2002, in which he wrote that he has been "subjected to 24 hour monitoring by video/audio denying me meaningful human contact." The inmate complaint examiner rejected the complaint, stating, "The issues in this complaint have been addressed in WSPF-2002-41987." This decision was affirmed by the corrections complaint examiner and the office of the secretary.

On December 9, 2002, plaintiff filed inmate complaint number WSPF-2002-42678. He wrote: "Due to the 24 hour lighting I have suffered from decreased vision/associated medical problems." The inmate complaint examiner noted that there was "nothing noted regarding decreased vision from the lighting at WSPF in plaintiff's last eye doctor report from January 28, 2002." The examiner recommendation that the complaint be dismissed, a decision that was affirmed by the reviewer, the corrections complaint examiner and the office of the secretary.

In complaint number WSPF-2002-17961, plaintiff wrote that he was subject to monthly cell and strip searches. The inmate complaint examiner recommended that the complaint be dismissed and plaintiff did not appeal that decision.

OPINION

I. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), prohibits the bringing of any action "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 available are exhausted." Section 1997e(a)'s exhaustion requirement is mandatory and applies to all prisoners seeking redress for wrongs occurring in prison. Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The Court of Appeals for the Seventh Circuit has held that "a suit filed by a prisoner before administrative remedies have been exhausted must be dismissed; the district court lacks discretion to resolve the claim on the merits." Perez v. Wisconsin Dept. of Corrections, 182 F.3d 532, 535 (7th Cir. 1999); see also Massey v. Helman, 196 F.3d 727 (7th Cir.1999). The potential effectiveness of an administrative response bears no relationship to the statutory requirement that prisoners first attempt to obtain relief through administrative procedures. Massey, 196 F.3d at 733.

"Before an inmate may commence a civil action ... the inmate shall exhaust all administrative remedies that the department of corrections has promulgated by rule." Wis. Admin. Code § DOC 310.05 (November 2002). (Plaintiff filed at least one of the inmate complaints at issue in this case before the November amendments to Chapter DOC 310 became effective On December 1, 2002. However, the differences between the two versions are not relevant to deciding this case.) Generally, to administratively exhaust a claim, an inmate must file a complaint with an inmate complaint examiner, receive a decision on the merits and appeal an adverse decision to the "appropriate reviewing authority," the corrections complaint examiner and the office of the secretary. Wis. Admin. Code § DOC 310.07. (In limited instances not at issue in this case, the filing and appeal process is altered somewhat.)

An inmate shall include only one issue in each complaint and file no more than two complaints each week. Wis. Admin. Code §§ DOC 310.09(1)(e) and (2). The inmate complaint examiner may reject a complaint if it fails to allege sufficient facts upon which redress may be made, does not raise a "significant issue," is untimely or raises an issue already addressed in another complaint, among other reasons. Wis. Admin. Code § DOC 310.11(4).

To exhaust administrative remedies, a prisoner must observe the procedural requirements of the system. Pozo v. McCaughtry, 286 F.3d 1022, 1023 (7th Cir. 2002) ("unless the prisoner completes the administrative process by following the rules the state has established for that process, exhaustion has not occurred"). Any other approach would defeat the statutory objective of allowing the prison administration the opportunity to fix the problem, id. at 1024, and would remove the incentive that § 1997e provides for inmates to follow state procedure, id. at 1025.

The first issue concerns plaintiff's claim that he was denied sensory stimulation and social interaction. The factual allegations underlying this claim are that he lacked access to the outdoors, and was subject to 24-hour lighting and audio and video monitoring. Defendants contend that plaintiff failed to exhaust his administrative remedies with respect to this claim because he never challenged the prison's policies regarding lighting, monitoring and the outdoors in one complaint. Instead, he filed complaints addressing each of these issues separately.

I disagree with defendants that plaintiff was required to put all of these allegations in one grievance. They are separate occurrences involving separate facts. What joins these allegations is a legal theory, recognized in Wilson v. Seiter, 501 U.S. 294, 305, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991), that multiple conditions having "a mutually enforcing effect" on one human need may violate the Eighth Amendment in combination when they would not do so alone. Defendants point to no regulation requiring inmates to put all allegations encompassed by a legal theory in a single complaint. Rather, the regulations instruct inmates to include only "one issue" in each complaint. Wis. Admin. Code. § 310.09(1)(e) (November 2002). Although the term "issue" as used in the regulation has not been construed in the case law, it appears that examiners are interpreting issues to mean factual issues and not legal issues. See Horton v. Berge, No. 02-C-470-C, dkt. # 50 (W.D.Wis. March 12, 2003) (granting defendants' motion to dismiss for failure to exhaust administrative remedies when plaintiff included in his inmate complaint "a variety of grievances relating to sensory deprivation and social isolation" and examiner rejected complaint because it contained more than one issue).

Defendants cannot have it both ways. An inmate must be permitted to either...