Brown v. Fromolz

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

LEE ANTHONY BROWN,

Plaintiff,

v. Case No. 21-cv-542-bhl

SHERI FROMOLZ,

Defendant.

DECISION AND ORDER

Plaintiff Lee Anthony Brown, who is representing himself, is proceeding on an Americans

with Disabilities Act/Rehabilitation Act (ADA/RA) claim against Defendant Sheri Fromolz in

connection with allegations that she denied his request for reasonable accommodations on April

12, 2021 at the Oshkosh Correctional Institution. Dkt. Nos. 44 & 47. On June 3, 2024, Defendant

filed a motion for summary judgment based on Brown’s failure to exhaust administrative remedies

prior to bringing this lawsuit. Dkt. No. 55. Because the undisputed facts show that Brown did not

file any inmate complaints concerning Fromolz’s denial of his request for reasonable

accommodations, the Court will grant the motion for summary judgment and dismiss the case

without prejudice.

UNDISPUTED FACTS

At the relevant time, Brown was an inmate at the Oshkosh Correctional Institution (OCI),

where Fromolz was the ADA coordinator. Dkt. No. 57, ¶¶1-2. According to Brown’s second

amended complaint, on April 11, 2021, he filed an ADA/RA request for certain accommodations

for his knee. Id., ¶¶3-4, see also Dkt. No. 44 at 6; see also Dkt. No. 60-1 at 17. Specifically, he

requested a low bunk, a low tier, and to leave no obstacles in his way forcing unnatural movements

to access the door and/ or toilet. Id. On April 12, 2021, ADA Coordinator Fromolz denied the

request, claiming that it was a “medical condition” and “not an ADA issue.” Dkt. No. 60-1 at 17.

Plaintiff did not file any inmate complaints about ADA Coordinator Fromolz’s denial of his

request for reasonable accommodations. Dkt. No. 57, ¶ 6; see also Dkt. No. 58-1.

SUMMARY JUDGMENT STANDARD

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp.

v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th

Cir. 2011). “Material facts” are those under the applicable substantive law that “might affect the

outcome of the suit.” Anderson, 477 U.S. at 248. A dispute over a “material fact” is “genuine” if

“the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

The party asserting that a fact is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a

genuine dispute, or that an adverse party cannot produce admissible evidence

to support the fact.

Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a motion must be

made on personal knowledge, set out facts that would be admissible in evidence, and show that

the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).

ANALYSIS

Defendant contends that Brown failed to exhaust administrative remedies because he did

not file any inmate complaints concerning his ADA/RA claim prior to bringing this lawsuit. Dkt.

Nos. 56 & 63. Under the Prison Litigation Reform Act, “no 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 administrative remedies as are

available are exhausted.” 42 U.S.C. §1997e(a). “The primary justification for requiring prisoners

to exhaust administrative remedies is to give the prison an opportunity to address the problem

before burdensome litigation is filed.” Chambers v. Sood, 956 F.3d 979, 983 (7th Cir. 2020). “To

satisfy the exhaustion requirement, an inmate must take each of the steps prescribed by the state’s

administrative rules governing prison grievances.” Id. (citing Lockett v. Bonson, 937 F.3d 1016,

1025 (7th Cir. 2019)).

The Seventh Circuit “has taken a strict compliance approach to exhaustion.” Dole v.

Chandler, 438 F.3d 804, 809 (7th Cir. 2006). A prisoner is required to “properly use the prison’s

grievance process prior to filing a case in federal court.” Id. “To exhaust remedies, a prisoner

must file complaints and appeals in the place, and at the time, the prison’s administrative rules

require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).

Wisconsin established the Inmate Complaint Review System (ICRS) to review inmate

grievances. Wis. Admin. Code § DOC 310.05. Inmates are required to exhaust “all administrative

remedies the department has promulgated by rule” before commencing a civil action. Id. Inmates

must file an inmate complaint with the ICE within 14 days of the relevant occurrence. Wis. Admin.

Code § DOC 310.07(2). The inmate complaint must provide enough facts to give defendants

“notice of, and an opportunity to correct, a problem.” Price v. Friedrich, 816 F. App'x 8, 10 (7th

Cir. 2020) (quoting Schillinger v. Kiley, 954 F.3d 990, 995-96 (7th Cir. 2020)). The inmate “need

not lay out the facts, articulate legal theories, or demand particular relief.” Strong v. David, 297

F.3d 646, 649 (7th Cir. 2002). But the inmate complaint must “alert[] the prison to the nature of

the wrong for which redress is sought.” Id. at 650. The inmate must then appeal the ICE’s decision

through the proper channels all the way to the Office of the Secretary (OOS), who is the final

decision maker. § DOC 310.13(1)-(3).

Inmates need not exhaust administrative remedies that are unavailable, however. Kaba v.

Stepp, 458 F.3d 678, 684 (7th Cir. 2006). Administrative remedies are “unavailable” where “(1)

prison officials are ‘consistently unwilling to provide any relief to aggrieved inmates’; (2) the

administrative scheme is ‘so opaque that it becomes, practically speaking, incapable of use;’ or (3)

prison administrators take affirmative action to thwart use of the grievance process.” Ramirez v.

Young, 906 F.3d 530, 538 (7th Cir. 2018) (quoting Ross v. Blake, 136 S. Ct. 1850, 1859-60 (2016)).

Brown’s inmate complaint history report confirms that he did not file any inmate

complaints concerning ADA Coordinator Fromolz’s decision to deny his requests for reasonable

accommodations on April 12, 2021. See Dkt. No. 58-1. Fromolz has therefore shown that Brown

failed to exhaust administrative remedies on his claim.

In response, Brown identifies three inmate complaints that he filed earlier in the year (in

March 2021) that he believes exhausted his administrative remedies on his ADA/RA claim: (1)

OSCI-2021-4306; (2) OSCI-2021-4618; and (3) OSCI-2021-4619. See Dkt. No. 60-1. The first

inmate complaint, OSCI-2021-4306, has not been provided to the Court as a part of the record by

either party. See Dkt. Nos. 55-65. But, based on other documents submitted by Brown, it appears

that the ICE construed that inmate complaint as denial of appropriate medical care for a knee injury

that occurred on March 11, 2021. Dkt. No. 60-1 at 4-6. The second inmate complaint, OSCI-

2021-4618, filed on March 18, 2021, alleges “I am in a cell with a cellmate that has a wheelchair

and it poses a fire hazard.” Dkt. No. 65-1 at 9. And the third inmate complaint, OSCI-2021-4619,

also filed March 18, 2021, requests a lower bunk because “I have a serious knee injury that causes

me extreme pain and suffering.” Dkt. No. 65-2 at 12.

These inmate complaints do not satisfy exhaustion, however. First, as a matter of simple

timing, Brown could not have exhausted administrative remedies in March 2021 on a claim that

Fromolz failed to accommodate an ADA/RA request he did not make until the following month –

in April 2021. Brown could not have known in March 2021 what Fromolz was going to do with

his ADA/RA request in April 2021. Second, even if Brown could have somehow exhausted a

claim before it had accrued, the inmate complaints he filed in March 2021 would not have given

notice of an ADA/RA claim. As the Seventh Circuit has long held, not all injuries are a “disability”

under the ADA/RA. Rooney v. Koch Air, LLC, 410 F.3d 376, 381 (7th Cir. 2005) (“Not all

impairments or conditions qualify as a disability within the meaning of the ADA.”). To be

“disabled,” an individual must be so limited in “one or more major life activities” that he is

impaired in his ability to care for himself, perform manual tasks, see, hear, eat, sleep, walk, stand,

lift, bend, speak, breathe, learn, read, concentrate, think, communicate, and work. Id.; Jaros v.

Illinois Dep't of Corr., 684 F.3d 667, 672 (7th Cir. 2012); see also 42 U.S.C. § 12102(1)(A).

Brown’s inmate complaints from March 2021, complaining about knee pain and that his cellmate’s

walker posed a “fire hazard,” would not have given the ICE notice that he was alleging that he was

a disabled inmate whose ADA/RA rights were violated. Toward that end, none of his inmate

complaints said that he was “disabled,” that he had a condition so severe that it prevented him

from walking or standing, that he made an ADA/RA request that was improperly denied, or that

he believed his ADA/RA rights were even violated at all. The ICE therefore reasonably construed

the three inmate complaints from March 2021 as a “medical” and/or “housing” dispute, not a

disability for which reasonable accommodations were denied under the ADA. See e.g., Williams

v. Baldwin, 239 F. Supp. 3d 1084, 1090-91 (N.D. Ill. 2017) (concluding that a Plaintiff did not

satisfy exhaustion by filing an inmate complaint referencing a letter about ADA issues because the

inmate complaint itself did not complain about the denial of reasonable accommodations under the

ADA). Therefore, Brown’s three inmate complaints from March 2021 did not exhaust

administrative remedies on his claim that ADA Fromolz denied his request for reasonable

accommodations in April 2021 in violation of the ADA/RA.

Brown also points to a variety of other documents he filed, such as incident reports and

health service requests, to show that he exhausted administrative remedies on the ADA/RA claim.

However, the ICRS required Brown to raise the ADA/RA claim in an inmate complaint to properly

exhaust administrative remedies, and Brown cannot use other documents to craft his own unique

exhaustion process. See Chambers, 956 F.3d at 983; see also Williams, 239 F. Supp. 3d at 1091

(“There is nothing in these procedures that would allow a prisoner to write down only some of his

complaints on the grievance form, and then provide the remainder of his complaints by reference

to a previous letter.”). Brown also attempts to argue that his knee injury somehow made

administrative remedies “unavailable” to him. But there is no evidence that he was physically

unable to retrieve an inmate complaint due to immobility in April 2021. See Hurst v. Hantke, 634

F. 3d 409, 412 (7th Cir. 2011) (concluding that a Plaintiff was required to “present evidence” to

support his contention that an incapacity prevented him from filing an inmate complaint). Brown’s

knee may have hurt during that time, but there is no evidence that it prevented him from acquiring

and filing an inmate complaint. Nor does he allege, for example, that he ever asked staff to deliver

him an inmate complaint due to pain or immobility and they refused. The remainder of Brown’s

arguments involve the merits of his claim, but the Court has no authority to make a merits-based

exception to exhaustion. See Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016). The Court will

therefore grant Defendant’s motion for summary judgment and dismiss this case without prejudice.

Brown can refile this case after he properly raises and exhausts his ADA/RA claim through the

ICRS.

CONCLUSION

IT IS THEREFORE ORDERED that Defendant’s motion for summary judgment based

on failure to exhaust administrative remedies (Dkt. No. 55) is GRANTED; and the case is

DISMISSED without prejudice. The Clerk’s office shall enter judgment accordingly.

Dated at Milwaukee, Wisconsin on October 18, 2024.

s/ Brett H. Ludwig

BRETT H. LUDWIG

United States District Judge

This order and the judgment to follow are final. Plaintiff may appeal this Court’s decision to the Court

of Appeals for the Seventh Circuit by filing in this Court a notice of appeal within 30 days of the entry

of judgment. See Fed. R. App. P. 3, 4. This Court may extend this deadline if a party timely requests

an extension and shows good cause or excusable neglect for not being able to meet the 30-day deadline.

See Fed. R. App. P. 4(a)(5)(A). If Plaintiff appeals, he will be liable for the $505.00 appellate filing fee

regardless of the appeal’s outcome. If Plaintiff seeks leave to proceed in forma pauperis on appeal, he

must file a motion for leave to proceed in forma pauperis with this Court. See Fed. R. App. P. 24(a)(1).

Plaintiff may be assessed another “strike” by the Court of Appeals if his appeal is found to be non-

meritorious. See 28 U.S.C. §1915(g). If Plaintiff accumulates three strikes, he will not be able to file

an action in federal court (except as a petition for habeas corpus relief) without prepaying the filing fee

unless he demonstrates that he is in imminent danger of serious physical injury. Id.

Under certain circumstances, a party may ask this Court to alter or amend its judgment under Federal

Rule of Civil Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil Procedure

60(b). Any motion under Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the

entry of judgment. Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a

reasonable time, generally no more than one year after the entry of judgment. The Court cannot extend

these deadlines. See Fed. R. Civ. P. 6(b)(2).

A party is expected to closely review all applicable rules and determine, what, if any, further action is

appropriate in a case.