Brown v. Horton

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

WILLIAM BROWN,

Plaintiff,

Case No. 24-CV-480-JPS-JPS

v.

BRANDON HORTON,

ORDER

Defendant.

Plaintiff Willliam Brown (“Plaintiff”), a former inmate, filed a pro se

complaint under 42 U.S.C. § 1983 alleging that his constitutional rights were

violated. ECF No. 1. On July 25, 2024, the Court screened Plaintiff’s

amended complaint and allowed Plaintiff to proceed on the following

claim: Eighth Amendment conditions of confinement claim against

Defendant Brandon Horton (“Defendant”). ECF No. 11 at 4.

On September 6, 2024, Defendant filed a motion for summary

judgment, arguing that Plaintiff failed to exhaust his administrative

remedies. ECF No. 15. The motion is now fully briefed, ECF Nos. 22, 24,

and, for the reasons explained below, the Court will grant Defendant’s

motion and will dismiss this case without prejudice for Plaintiff’s failure to

exhaust his administrative remedies.

1. STANDARD OF REVIEW

1.1 Summary Judgment

Federal Rule of Civil Procedure 56 provides that 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); Boss v. Castro, 816 F.3d 910, 916 (7th Cir.

2016). A fact is “material” if it “might affect the outcome of the suit” under

the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A dispute of fact is “genuine” if “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Id. The

Court construes all facts and reasonable inferences in the light most

favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d

356, 360 (7th Cir. 2016).

1.2 Exhaustion of Prisoner Administrative Remedies

The Prison Litigation Reform Act (“PLRA”) establishes that, prior to

filing a lawsuit complaining about prison conditions, a prisoner must

exhaust “such administrative remedies as are available.” 42 U.S.C.

§ 1997e(a). To do so, the 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). He must do so precisely in

accordance with those rules; substantial compliance does not satisfy the

PLRA. Id.; Burrell v. Powers, 431 F.3d 282, 284–85 (7th Cir. 2005). A suit must

be dismissed if it was filed before exhaustion was complete, even if

exhaustion is achieved before judgment is entered. Perez v. Wis. Dep’t of

Corr., 182 F.3d 532, 535 (7th Cir. 1999). The exhaustion requirement furthers

several purposes, including restricting frivolous claims, giving prison

officials the opportunity to address situations internally, giving the parties

the opportunity to develop the factual record, and reducing the scope of

litigation. Smith v. Zachary, 255 F.3d 446, 450–51 (7th Cir. 2001). Failure to

exhaust administrative remedies is an affirmative defense to be proven by

a defendant. Westefer v. Snyder, 422 F.3d 570, 577 (7th Cir. 2005).

1.2.1 Inmate Complaint Review System

The Wisconsin Department of Corrections (the “DOC”) maintains an

inmate complaint review system (“ICRS”) to provide a forum for

administrative complaints. Wis. Admin. Code § DOC 310.04. The ICRS

“allow[s] inmates to raise in an orderly fashion issues regarding

department policies, rules, living conditions, and employee actions that

personally affect the inmate or institution environment, including civil

rights claims.” Id. § DOC 310.01(2)(a). Before commencing a civil action or

special proceedings, “inmate[s] shall exhaust all administrative remedies

the [DOC] has promulgated by rule.” Id. § DOC 310.05.

There are two steps an inmate must take to exhaust the available

administrative remedies. First, the inmate must file an offender complaint

with the Institution Complaint Examiner (“ICE”) within fourteen days of

the events giving rise to the complaint. Id. § DOC 310.07(2). The ICE may

reject the complaint or return the complaint to the inmate and allow him or

her to correct any issue(s) and re-file within ten days. See id. § DOC

310.10(5),(6). If the complaint is rejected, the inmate may appeal the

rejection to the appropriate reviewing authority within ten days. Id. § DOC

310.10(10).1 If the complaint is not rejected, the ICE issues a

recommendation of either dismissal or affirmance to the reviewing

authority. Id. § DOC 310.10(9),(12). The reviewing authority (“RA”) will

affirm or dismiss the complaint, in whole or in part, or return the complaint

to the ICE for further investigation. Id. § DOC 310.11(2).

Second, if the ICE recommends, and the RA accepts, dismissal of the

complaint, the inmate may appeal the decision to the Corrections

Complaint Examiner (“CCE”) within fourteen days. Id. §§ DOC 310.09(1),

310.12. The CCE issues a recommendation to the Secretary of the

Department of Corrections, who may accept or reject it. Id. §§ DOC

310.12(2), 310.13. The inmate exhausts this administrative process when he

1The ICRS defines a “reviewing authority” as “a person who is authorized

or she receives the Secretary’s decision. Id. § DOC 310.13(2),(3). If the inmate

does not receive the Secretary’s written decision within ninety days of the

date of receipt of the appeal in the CCE's office, the inmate shall consider

the administrative remedies to be exhausted. Id. § DOC 310.13(4).

2. RELEVANT FACTS

Defendant’s motion for summary judgment addresses the issue only

of whether Plaintiff exhausted his administrative remedies as described in

detail above. The Court finds the following facts relevant to the disposition

of the issue at hand.

2.1 Plaintiff’s Allegations

Plaintiff alleges that on February 9, 2024, Defendant placed Plaintiff

in a cell that had not been decontaminated from pepper spray. ECF No. 11

at 2. Upon entering the cell, Plaintiff notified Defendant that the cell had

not been cleaned. Three day later, on February 12, 2024, Plaintiff was finally

offered a shower from Sgt. Miller. Id. at 2–3. During the shower, Plaintiff

began coughing and was having trouble breathing. Id. Plaintiff noticed that

his eyes, face, underarms, and genitals started to aggressively burn, and

Plaintiff vomited. Id. at 3. Mr. Terrell and Mr. Harmon helped Plaintiff after

the shower. Id. Plaintiff was later seen by Nurse Marson, who informed

Plaintiff that he had high blood pressure and was given instructions not to

shower for forty-eight hours. Id.

2.2. Exhaustion Facts2

Plaintiff was formerly an inmate in the custody of the Wisconsin

Department of Corrections (“DOC”) and was incarcerated at Milwaukee

2Defendant submitted proposed findings of fact. ECF No. 17. Plaintiff

failed to respond to the proposed findings of fact. As such, the Court adopts

Defendant’s proposed findings of fact as undisputed for the purposes of this

motion. See Fed. R. Civ. P. 56(e)(2).

Secure Detention Facility (“MSDF”) at all times relevant to this action.

Defendant was employed by MSDF at all times relevant to this action.

Plaintiff was allowed to proceed on an Eighth Amendment conditions of

confinement claim based on allegations that Defendant was aware that a

cell had not been properly decontaminated from OC spray and deliberately

placed Plaintiff in the contaminated cell on February 9, 2024.

Plaintiff filed one complaint potentially related to the Eighth

Amendment claim on which he was allowed to proceed. On March 1, 2024,

Plaintiff submitted inmate complaint No. MSDF-2024-3265. In this

complaint, Plaintiff identified his one issue as, “I was exposed to pepper

spray and had painful side effects while taking a shower.” ECF No. 18-2 at

11. Plaintiff described the details surrounding this complaint as follows:

On 2-12-24 around 8:00 – 4:00 (not sure time) Sgt. Miller asked

if I wanted a shower – I stated yes. After about a minute, I

started to cough. At first I didn’t think nothing of it until I

couldn’t control the cough and breath, by this time I’m

showering considering the timed shower. After about (2)

minutes I pressed the emergency button asking what is in the

water, and later asked couldn’t he just turn it off. At this point,

I can’t catch my breath and I vomited, my eyes are burning,

armpits and my entire private area. The officer came to my

cell stating that it was pepper spray and was coughing as well

standing outside my cell door. They later opened my cell door

trap so I can get air. They later saying “that someone was

sprayed earlier that morning and showered downstairs and

that it was in the drains or water system still” Also they said

they were calling HSU and then eventually moved me to a

different cell giving me fresh bed sheets. Later HSU arrived

and I was taken to the on unit HSU room and the nurse

(Sasha) took my vitals stating at first my blood pressure was

high, and then took it again after a minute later stating it was

okay. She provided me protroleum packs (2) and some type

3Defendant’s proposed facts state that Plaintiff is a DOC inmate; however,

Plaintiff recently updated his address, and it appears that he is no longer in

of shampoo with instructions/advise to wait using it because

it'll (pepper spray) will reactivate once I shower or wash up

again. I waited to shower for two days and was okay. I later

wrote Capt. Akerman, Unit manager Whelan and the Security

Director – see attachments. Also wrote Capt. Knox – no

response as of now and wrote HSU – no response as of now.

I feel this was a punishment I absolutely didn’t deserve

and/but was effected it.

Id. at 11, 13.

The ICE investigated the issue and discovered that although the cell

had been cleaned out of trash and linens, it had not been decontaminated

of all pepper spray from the prior occupant. After the shower water

triggered the unfortunate reaction, Plaintiff was treated by the nurse and

moved to a new cell with fresh linens. The new Restricted Housing Unit

(“RHU”) Captain addressed the issue of proper cell cleaning with cleaning

staff and security staff. The ICE recommended Plaintiff’ complaint be

affirmed only in the matter of the cell not being fully decontaminated. On

March 25, 2024, Warden Johnson affirmed Plaintiff’s complaint.

On April 8, 2024, the CCE’s office received Plaintiff’s appeal of

MSDF-2024-3265, in which Plaintiff argued that his complaint should have

been affirmed in whole, not “only in the matter that the cell wasn’t

decontaminated.” Id. at 5, 22. On April 18, 2024, the CCE recommended to

affirm Plaintiff’s appeal, noting the issued had been acknowledged and

appropriate staff had been copied for corrective action so future incidents

could be avoided. On April 30, 2024, the Office of the Secretary affirmed

Plaintiff’s appeal per the CCE’s recommendation.

Plaintiff did not have any inmate complaints relevant to the claims

in this lawsuit returned to him pursuant to Wis. Admin. Code § 310.10(5).

Plaintiff filed no further inmate complaints regarding the Eighth

Amendment claims on which he was allowed to proceed.

3. ANALYSIS

Defendant requests summary judgment on a single ground: that

Plaintiff failed to exhaust his administrative remedies as to the claim in this

case before filing the instant lawsuit. Because Plaintiff failed to respond to

Defendant’s proposed findings of fact, all material facts are undisputed.

Defendant acknowledges that Plaintiff filed an inmate complaint, MSDF-

2024-3265, in relation to his exposure to pepper spray. Defendant does not

argue that this complaint was not properly exhausted. Defendant disputes,

however, the legal question of whether MSDF-2024-3265 exhausted the

claim against Defendant for an Eighth Amendment conditions of

confinement claim for deliberate indifference.

Defendant argues that the issue raised in Plaintiff’s inmate

complaint was different than the claim he attempts to bring in this case. As

such, Defendant argues that the claim against should be dismissed for

Plaintiff’s failure to exhaust administrative remedies. Plaintiff does not

meaningfully engage in the legal issue of whether the claim was properly

exhausted. See ECF No. 22. Instead, Plaintiff argues that he needs access to

video footage of the incident to show on the merits that Defendant was

deliberately indifferent to his exposure to pepper spray. Id.

One purpose of the exhaustion requirement is to permit prison

officials the opportunity to address inmate concerns internally before an

inmate initiates litigation. Woodford v. Ngo, 548 U.S. 81, 89 (2006); Schillinger

v. Kiley, 954 F.3d 990, 995 (7th Cir. 2020). Exhaustion “promotes efficiency

because a claim can generally be resolved much more quickly in an

administrative proceeding than in litigation in federal court.” Schillinger,

954 F.3d at 995. To provide notice of the conduct complained of, an inmate’s

complaint must contain the information required by the prison’s

administrative rules. Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002).

Where those rules are silent, “a grievance suffices if it alerts the prison to

the nature of the wrong for which redress is sought.” Id. at 650; Riccardo v.

Rausch, 375 F.3d 521, 524 (7th Cir. 2004). An inmate need not state “facts,

articulate legal theories, or demand particular relief,” nor must he name

each potential defendant, so long as the grievance “object[s] intelligibly to

some asserted shortcoming.” Strong, 297 F.3d at 650; Riccardo, 375 F.3d at

524. In this way, the approach to interpreting inmate complaints is akin to

the federal notice pleading system. Dye v. Kingston, 130 F. App’x 52, 55 (7th

Cir. 2005). Wisconsin’s administrative rules provide little guidance as to the

required contents of an inmate complaint; however, those rules do require

that offender complaints “[c]ontain only one issue per complaint, and []

clearly identify the issue.” Wis. Admin. Code DOC § 310.09(1)(e).

Here, Defendant acknowledges Plaintiff’s inmate complaint MDSF-

2024-3265 regarding Plaintiff’s exposure to pepper spray. ECF No. 16 at 8.

Defendant maintains, however, that this inmate complaint failed to provide

notice of the Eighth Amendment deliberate indifference claim against

Defendant. In assessing this issue, the Court finds it important to look at

the specific language used in Plaintiff’s inmate complaint. Plaintiff’s inmate

complaint states as follows in describing the one issue of the complaint: “I

was exposed to pepper spray and had painful side effects while taking a

shower.” ECF No. 18-2 at 11. Further, Plaintiff lists the date of the incident

as February 12, 2024. Id. In response to the question of details surrounding

the complaint, Plaintiff focuses entirely on details related to his pepper

spray exposure in the shower and his treatment thereafter. Id.

Defendant argues that the claim Plaintiff asserted in this inmate

complaint did not put the prison on notice to investigate his claim that

Defendant (or any other prison official) was deliberately indifferent by

knowingly placing Plaintiff in a cell contaminated with pepper spray on

February 9, 2024. ECF No. 16 at 9. The Seventh Circuit’s decision in

Schillinger v. Kiley is instructive on this issue.

In Schillinger, the Seventh Circuit found that a state prisoner failed to

exhaust all available administrative remedies because the complaint that he

submitted to the prison was not specific enough. 954 F.3d at 996. The

prisoner sued several prison officials for not protecting him from an attack

by another inmate. Id. The applicable state law provided that “a prisoner

must ‘clearly identify the issue’ in an inmate complaint,” but it did not

specify “what it takes to satisfy this requirement.” Id. at 995. The prisoner’s

complaint mentioned none of the officials by name, nor did it show that any

officials “had reason to know in advance that an attack might occur and

failed to take appropriate measures to prevent it.” Id. The Seventh Circuit

therefore concluded that even though the inmate gave a thorough

description of the incident, he did not put the prison on notice that he

intended to assert a failure-to-protect claim. Id.

Applying that logic here, the Court finds that Plaintiff’s inmate

complaint failed to provide notice to the prison of the claim brought against

Defendant in this case. Plaintiff’s inmate complaint, MSDF-2024-3265, dealt

with the issue of his exposure to pepper spray in the shower on February

12, 2024 ⎯not Defendant (or anyone else) knowingly placing Plaintiff in a

contaminated cell on February 9, 2024 and leaving him there for days. The

allegations in Plaintiff’s complaint in this case relate to Defendant being

deliberately indifferent to Plaintiff’s exposure to pepper spray—which is

not the same issue presented in MSDF-2024-3265. Given this, the Court

finds that MSDF-2024-3265 did not exhaust the claim against Defendant in

this case.

The Court is mindful of the fact that inmate complaints need not

articulate legal theories or specifically name every individual defendant.

See Strong, 297 F.3d at 650. The Court does not find, however, that Plaintiff’s

inmate complaint met the threshold requirement of putting the prison on

notice of the claim against Defendant here. The issue is not that the inmate

complaint failed to specifically name Defendant, but rather that if failed to

articulate the facts of what he allegedly did wrong. Plaintiff’s inmate

complaint involved the fact that he had been exposed to pepper spray on

February 12, 2024—not that Defendant or any other official knew about the

cell condition for days and nonetheless failed to act. Plaintiff’s inmate

complaint did not give prison officials the opportunity to resolve his issue

prior to this litigation. As such, the Court finds that Plaintiff failed to

exhaust his administrative remedies as to the Eighth Amendment claim

against Defendant. The Court will accordingly grant Defendant’s motion

for summary judgment and dismiss the case without prejudice. See Ford v.

Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (finding all exhaustion dismissals

should be without prejudice).

4. CONCLUSION

For the reasons explained above, the Court will grant Defendant’s

motion for summary judgment, ECF No. 15, in full. The Court finds that

Plaintiff failed to properly exhaust his administrative remedies as to the

only claim in this case. The Court will accordingly dismiss this case without

prejudice.

Accordingly,

IT IS ORDERED that Defendant’s motion for summary judgment,

ECF No. 15, be and the same is hereby GRANTED; and

IT IS FURTHER ORDERED that this case be and the same is hereby

DISMISSED without prejudice for Plaintiff's failure to exhaust

administrative remedies.

The Clerk of the Court is directed to enter judgment accordingly.

Dated at Milwaukee, Wisconsin, this 29th day of May, 2025.

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SIYIKG

PUY fa

J. Stathyh ueller

U.S Distfict Judge

This order and the judgment to follow are final. A dissatisfied party 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 thirty (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 thirty-day

deadline. See Fed. R. App. P. 4(a)(5)(A). Moreover, 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 twenty-

eight (28) days of the entry of judgment. The Court cannot extend this

deadline. See Fed. R. Civ. P. 6(b)(2). 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 the judgment. The court cannot

extend this deadline. See id. A party is expected to closely review all

applicable rules and determine what, if any, further action is appropriate

in a case.

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