Hohol v. Thurmer
| Decision Date | 30 November 2010 |
| Docket Number | Case No. 08-C-832 |
| Parties | DENNIS LEE HOHOL, Plaintiff, v. MICHAEL THURMER, JON WALTZ, AND NEVEN WEBSTER Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
The plaintiff, Dennis Lee Hohol, filed an amended pro se civil rights complaint pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act (ADA) (42 U.S.C. §§ 12101), and Section 504 of the Rehabilitation Act (29 U.S.C. § 794) on March 17, 2009. (Docket No. 10.) In an order dated May 14, 2010, Chief United States District Judge Charles N. Clevert screened the plaintiff's complaint in accordance with 28 U.S.C. § 1915(a) and allowed him to proceed on his claims against Defendant Michael Thurmer, Jon Waltz, and Neven Webster. (Docket No. 14.) On July 8, 2010, the matter was reassigned to this court upon the consent of the parties to the exercise of jurisdiction by the magistrate judge. (Docket No. 27.) The defendants then filed a motion for summary judgment based on Plaintiff's alleged failure to exhaust administrative remedies. (Docket No. 29.) That motion is now ready for resolution.
Summary judgment is proper, under Fed.R.Civ.P. 56(c)(2), when the pleadings and other submissions filed in the case show that there is no genuine issue regarding any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Material facts are those facts which, under the governing substantive law, might affect the outcome of the suit. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). After adequate time for discovery, summary judgment is appropriate against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. The existence of a factual dispute between the parties will not defeat a properly supported motion for summary judgment unless the facts in dispute are those that might affect the outcome or resolution of issues before the court. See Anderson, 477 U.S. 242. A genuine issue of material fact exists only where a reasonable finder of fact could make a finding in favor of the non-moving party. Id. at 248; Santiago v. Lane, 894 F.2d 218, 221 (7th Cir. 1990).
The moving party bears the burden of demonstrating that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. Fed. R. Civ. P 56(c); Celotex, 477 U.S. at 323. The moving party satisfies its burden by showing that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. Once this burden is met, the non-moving party must designate specific facts to support or defend each element of the cause of action, showing that there is a genuine issue for trial. Id. at 324. When the nonmovant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would support a reasonable jury verdict. Anderson, 477 U.S. at 267; see also Celotex Corp., 477 U.S. at 324 (). If a plaintiff merely repeats under oath the same general allegations contained in the complaint, this is not enough to convert claims into evidence sufficient to maintain a claim at the summary judgment stage. Wudkte v. Davel, 128 F.3d 1057 (7th Cir. 1997).
The plaintiff is a pro se prisoner who was disabled when he entered the Wisconsin prison system. He also suffered an injury in December 2007 while he was working in the kitchen at Dodge Correctional Institution ("Dodge"). Even with his disability, the plaintiff had been working at Dodge since April 2003. On September 19, 2008, the plaintiff was transferred to Waupun Correctional Institution ("WCI"). This transfer resulted from a blanket request by defendant Jon Waltz that all disabled persons be transferred from Dodge because Dodge had no jobs available for prisoners with disabilities. According to the plaintiff, the Program Review Committee at Dodge justified the transfers by finding that Dodge did not have any jobs available that fit disabled inmates' activity level. (Docket No. 14, Order pp. 3-4.) They determined that the transfers were warranted so that other inmates could have the opportunity to utilize the jobs at Dodge. (Id.)
The plaintiff avers that his transfer from Dodge to Waupun was part of a continuing retaliation against him by defendant Michael Thurmer because of lawsuits the plaintiff had filed against employees of the Wisconsin Department of Corrections ("DOC"). (Id.) The plaintiff further avers that defendant Neven Webster restricted his law library use at WCI, also in retaliation for the lawsuits the plaintiff had filed. (Id.) On March 17, 2009, the plaintiff filed an amended pro se complaint pursuant to 42 U.S.C. 1983. (Docket No. 10.) In an order dated May 14, 2010, Chief United States District Judge Charles N. Clevert screened the plaintiffs complaint and allowed him to proceed on the proposed retaliation claims against defendants Thurmer and Webster as well as the ADA and Rehabilitation Act claims against defendant Waltz. (Docket No. 14.)
In October 2008, plaintiff submitted two Offender Complaints with the Inmate Complaint Examiner ("ICE") regarding the underlying claims in this case, but these complaints were returned and never accepted by the ICE. (Docket No. 44, ¶ 9.) Plaintiff filed the first complaint regarding his transfer to WCI and the loss of his job on October 23, 2008. (Docket No. 32-2, Ex. B pp.1.) That complaint reads as follows:
On 9-12-2008 I filled out the appeal of program review decision to Madison, WI, Re: Statement of light duty I am disabled and because of this disability I was told that I am a security risk at DCI. I was then transferred to WCI after I have/had been working for (5) years (10) months this was violating my constitutional rights. It is now 10-222008 and I have not received a reply on my appeal. I demand a reason or an answer to that appeal DCI took my job away, so I can't earn money like any other inmate.
(Id.)
On October 24, 2008, the Department of Corrections responded to plaintiff with a document titled "Return of Complaint Materials." (Docket No. 32-2, Ex. B pp.2.) This document informed plaintiff that the (Id.) The DOC's response contained additional instructions to the plaintiff:
Please inform Mr. Koenig that you were instructed to contact him by the Inmate Complaints Department regarding your PRC issues. If you feel that this staff member does not address the issue to your satisfaction, you may resubmit the complaint. Please wait a reasonable amount of time for a reply before you resubmit your complaint.
(Id.)
On October 27, 2008, plaintiff filed the second Offender Complaint, (Docket No 32., Ex. C pp. 1), largely reiterating the issues included in the first complaint but with an additional statement directed to Mr. Koenig, that plaintiff had been referred to him by Ms. Kroll (who had sent the first DOC response of October 24, 2008). On October 30, 2008, the DOC responded with another "Return of Complaint Materials" informing plaintiff that his "complaint materials received on October 27, 2008 are being returned because: [c]omplaints shall contain only one issue and that issue shall be clearly identified [DOC 310.09(1)(e)]." (Docket No. 32, Ex. C pp. 2.) That document further instructed plaintiff that: The Inmate Complaints Department is unable to discern one clear specific issue and/or occurrence in your complaint. If you choose to resubmit your complaint, include a clear and concise explanation of one issue only and let us know that it is a resubmission. Please include pertinent information such as date, time, place, people, etc. Did you write to Mr. Koenig as previously instructed?
(Id). Plaintiff did not redraft nor resubmit any complaints for submission to the ICE following the DOC's second response of October 30, 20008. (Docket No. 32, ¶ 9.)
Defendants claim that plaintiff did not properly file an Offender Complaint regarding any of his claims in this case. (Docket No. 31, ¶ 9.) They assert that the ICE's return and failure to process those complaints establish plaintiff's failure to exhaust administrative remedies as required under the Prison Litigation Reform Act. (Docket Nos. 29, 30.) Therefore, defendants argue, this court should grant the motion for summary judgment. (Id.) Plaintiff concedes that his two complaints were returned and never accepted by the ICE, however he claims that the ICE's return and failure to accept those complaints has "eliminated the plaintiff from correcting an error and thus granted the plaintiff that he has exhausted his remedy." (Docket No. 40, ¶ 9.) This court disagrees.
The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), provides that "no action shall be brought with respect to prison conditions under § 1983 or any other federal law by a prisoner confined in any prison until such administrative remedies as are available are exhausted." The PLRA's exhaustion requirement is mandatory and applies to all prisoners seeking redress for wrongs in the prison. Porter v. Nussle, 534 U.S. 516, 532 (2002). The court must address the exhaustion issue immediately and resolve disputes about its application before turning to other issues in the suit. Perez v. Wisconsin Dept. of Corrections, 182 F.3d...
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