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Case: 3:13-cv-00387-wmc Document #: 16 Filed: 11/25/13 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN



DERRICK L. SMITH,


Plaintiff,



v.

























OPINION AND ORDER

13-cv-387-wmc



WARDEN MICHAEL MEISNER, et al.,


Defendants.





State inmate Derrick L. Smith has filed this civil action pursuant to 42 U.S.C. § 1983,

concerning the conditions of his confinement at the Columbia Correctional Institution. He

has been granted leave to proceed in forma pauperis in this case and he has paid an initial,

partial filing fee as required by the Prison Litigation Reform Act (PLRA), 28 U.S.C.

§ 1915(b)(1). Because he is incarcerated, the PLRA also requires the court to screen the

complaint and dismiss any portion that is legally frivolous, malicious, fails to state a claim

upon which relief may be granted or asks for money damages from a defendant who by law

cannot be sued for money damages. 28 U.S.C. § 1915A. In addressing any pro se litigant’s

complaint, the court must read the allegations generously, reviewing them under “less

stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S.

519, 521 (1972). Even under this very lenient standard, Smith’s request for leave to proceed

must be denied and this case will be dismissed for reasons set forth below.

Case: 3:13-cv-00387-wmc Document #: 16 Filed: 11/25/13 Page 2 of 5

For purposes of this order, the court accepts all well-pled allegations as true and

FACTS

assumes the following probative facts.1

The plaintiff, Derrick L. Smith, has a lengthy criminal record of convictions from

Marathon County, Wisconsin, dating back to at least 1996. Smith turned himself in to the

Marathon County Jail on June 5, 2012, after he was charged with several felony offenses in

Marathon County Case No. 2012CF386.2 Smith was also charged with violating the terms

of his supervised release from a previous sentence of imprisonment. Following the revocation

of his parole and return to state prison in October 2012, Smith was transferred from the

Marathon County Jail to the Dodge Correctional Institution (“DCI”) of the Wisconsin

Department of Corrections (“WDOC”). In February 2013, Smith was assigned to the

Columbia Correctional Institution (“CCI”). On August 6, 2013, Smith was released from

state prison on extended supervision. Because a detainer was pending against him from

Marathon County, Smith returned to custody at the Marathon County Jail, where he is

currently awaiting trial in Case No. 2012CF386.

In this case, Smith has filed suit under 42 U.S.C. § 1983 against the following

individuals who are employed by WDOC at CCI: Warden Michael Meisner; Dr. Jane Doe;


1 The court has supplemented the sparse allegations in the complaint with dates and procedural
information about plaintiff’s underlying criminal case from the electronic docket available at
Wisconsin Circuit Court Access, http://wcca.wicourts.gov (last visited November 15, 2013). The
court draws all other facts from the complaint in this case and several others filed recently by
Smith, as well as any exhibits attached to his pleadings. See FED. R. CIV. P. 10(c); see also Witzke
v. Femal, 376 F.3d 744, 749 (7th Cir. 2004) (explaining that documents attached to the
complaint become part of the pleading, meaning that a court may consider those documents to
determine whether plaintiff has stated a valid claim).

2 Smith has been charged in that case with first-degree sexual assault with a dangerous weapon;
substantial battery intending bodily harm; strangulation and suffocation (two counts); false
imprisonment; and victim intimidation by use or attempted use of force. See State v. Derrick L.
Smith, Marathon County Case No. 2012CF386.

Case: 3:13-cv-00387-wmc Document #: 16 Filed: 11/25/13 Page 3 of 5

and Jane Doe, Health Services Administrator. Since his arrival at CCI in February 2013,

Smith contends that he has been repeatedly refused treatment from a physician for the

following serious medical conditions: (1) pain from a “degenerative bone condition” in his

neck; (2) right-sided chest pains; (3) unstable blood sugar levels due to Type II Diabetes; (4) a

skin rash causing permanent scarring on his face and chest; (5) carpal tunnel syndrome; and

(6) injuries sustained when he was sexually assaulted by two of his cellmates in March 2013.



OPINION

Smith may not proceed with his claims here because he concedes in his complaint that

he did not complete the grievance process that is available within WDOC with respect to

those same claims. The PLRA prohibits any civil action by a prisoner in federal court under

42 U.S.C. § 1983 concerning “prison conditions” until “such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement found in §

1997e(a) applies to all inmate suits about prison life, “whether they involve general

circumstances or particular episodes, and whether they allege excessive force or some other

wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The Supreme Court has repeatedly

emphasized that § 1997e(a) mandates exhaustion of all administrative procedures before an

inmate can file any suit challenging prison conditions. See Booth v. Churner, 532 U.S. 731,

739 (2001); Woodford v. Ngo, 548 U.S. 81, 85 (2006); see also Jones v. Bock, 549 U.S. 199, 212

(2007) (confirming that “[t]here is no question that exhaustion is mandatory under the PLRA

and that unexhausted claims cannot be brought in court”).

The Wisconsin Department of Corrections maintains an Inmate Complaint Review

System (“ICRS”) in all state adult correctional facilities so that inmate grievances about

prison conditions may be expeditiously raised, investigated and decided. See Wis. Admin.

Case: 3:13-cv-00387-wmc Document #: 16 Filed: 11/25/13 Page 4 of 5

Code § DOC 310.04. Once an inmate files a formal complaint, an Inmate Complaint

Examiner (ICE) is assigned to investigate and recommend a decision to the “appropriate

reviewing authority,” such as a warden, bureau director, administrator or designee who is

authorized to review and decide an inmate complaint at the institution level. Id. at § DOC

310.07(2). An ICE may return a complaint to the inmate if it does not comply with ICRS

procedure. Id. at § DOC 310.07(1). If an inmate has submitted a proper complaint in

compliance with ICRS procedure, see id. at § DOC 310.11(5), he has the right to appeal any

adverse decision to the Corrections Complaint Examiner (“CCE”), who will review the

complaint and make a recommendation to the Office of the Secretary. See id. at § DOC

310.13. The Secretary of the Wisconsin Department of Corrections shall review the CCE’s

report and make a final decision. See id. at § DOC 310.14.



The Supreme Court has emphasized that the exhaustion requirement found in the

PLRA, 42 U.S.C. § 1997e(a), mandates “proper exhaustion,” Woodford v. Ngo, 548 U.S. 81,

93 (2006), which demands compliance with prison procedural rules. As the Supreme Court

has recognized, “Congress enacted § 1997e(a) to reduce the quantity and improve the quality

of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity

to address complaints internally before allowing the initiation of a federal case.” Porter, 534

U.S. at 524. By requiring exhaustion of administrative remedies, Congress hoped that

“corrective action taken in response to an inmate’s grievance might improve prison

administration and satisfy the inmate, thereby obviating the need for litigation.” Id. (citing

Booth, 532 U.S. at 737). In addition to filtering out potentially frivolous claims, Congress

also believed that internal review would facilitate adjudication of cases ultimately brought to

court by giving prison officials an opportunity to develop an administrative record that




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Case: 3:13-cv-00387-wmc Document #: 16 Filed: 11/25/13 Page 5 of 5

clarifies the contours of the controversy. Id. (citations omitted). “[A] prisoner who does not

properly take each step within the administrative process has failed to exhaust state remedies,

and thus is foreclosed by § 1997e(a) from litigating.” Pozo v. McCaughtry, 286 F.3d 1022,

1024 (7th Cir. 2002).



The Supreme Court has made clear that prisoners may not deliberately bypass the

administrative process by flouting an institution’s procedural rules. See Woodford, 548 U.S. at

96-98. Smith’s failure to complete the grievance process violates the PLRA’s exhaustion

requirement found in § 1997e(a), which mandates exhaustion before filing suit. Because Smith

concedes that he failed to exhaust available administrative remedies before filing suit in

federal court, his request for leave to proceed will be denied and this case will be dismissed

without prejudice.

IT IS ORDERED that:

ORDER

Plaintiff Derrick L. Smith’s request for leave to proceed is DENIED and his
complaint is DISMISSED without prejudice for failure to exhaust available
administrative remedies as required by 42 U.S.C. § 1997a(e).

Entered this 25th day of November, 2013.








BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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