Watts, David v. Bergren, Charlie

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DAVID W. WATTS,
Plaintiff, OPINION AND ORDER
v. 24-cv-504-wmc
CHARLES BERGREN,
Defendant.
An inmate representing himself, plaintiff David Watts claims that defendant
Correctional Officer Charles Bergren violated his Eighth Amendment rights by enabling
another inmate to sexually harass and threaten him. As an incarcerated litigant, plaintiff
must comply with the Prison Litigation Reform Act (“PLRA”), which requires that he
exhaust his administrative remedies before filing a federal lawsuit. 42 U.S.C. § 1997e(a).
Defendant has moved for summary judgment based on plaintiff’s failure to exhaust his
administrative remedies on his claim. (Dkt. #36.) In the alternative, defendant asks the
court to hold a Pavey hearing if it finds there are genuinely disputed material facts on the
question of exhaustion.1 For the reasons explained below, the court will reserve ruling on
this motion pending a Pavey hearing, which will be promptly scheduled.
1 Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008).
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UNDISPUTED FACTS2
Plaintiff David W. Watts is currently incarcerated at New Lisbon Correctional
Institution, and he was previously incarcerated at Columbia Correctional Institution. (Pl.’s
Complaint (dkt #1.)) While at Columbia, Watts alleges that defendant Correctional
Officer Charles Bergren enabled and encouraged another inmate, Clinton Linzy, to sexually
harass and threaten him while passing by Watts’ cell on May 28, 2024. (Id.) This incident
forms the basis of this lawsuit. (Screening Order (dkt # 16), at 3.)
Watts filed an inmate complaint on July 6, 2024, describing this May 28 incident.
(Dkt. #38-2, at 8.) That complaint also claimed that other prison officials knew of Linzy’s
ongoing harassment and allowed him to continue. (Id.) The Inmate Complaint Examiner’s
Office sent Watts a notification that it received his complaint on July 8. (Id. at 1, 7.)
Shortly after, on July 25, Watts filed this federal lawsuit. (Pl.’s Compl. (dkt # 1).)
On July 31, the Inmate Complaint Examiner (“ICE”) rejected Watts’ inmate
complaint, concluding that the issue was now moot since Linzy had been transferred to
another institution. (Dkt. #38-2, at 6.) See also Wis. Admin. Code § DOC 310.10(6)(f)
(“The ICE may reject a complaint [if]. . . the issue is moot.”)
Watts next appealed this rejection on August 2. (Dkt. #38-2, at 20.) In his appeal,
he explained that his complaint, in part, was “clearly against . . . CO Charlie Bergren for
helping/letting Linzy” harass him on May 28, and that he wanted to “hold CO Bergren
accountable.” (Id. at 21.) The reviewing authority decided that “Watt’s complaint was
2 Unless otherwise indicated, the court draws the following facts from the record and finds them
undisputed for the purposes of the summary judgment motion on exhaustion.
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appropriately rejected by the [Examiner] in accordance with DOC 310.10(6)” on August
5. (Id. at 5.)
Watts declares that he also attempted to file three, other inmate complaints against
Officer Bergren for allowing Linzy to harass him before the July 6 complaint.3 (Dkt. #41,
at 9-10); see Wis. Admin. Code § DOC 310.07(2) (requiring inmates to file complaints
within 14 days of the occurrence giving rise to the complaint). To file an inmate complaint
at Columbia, inmates may place a complaint form in a locked drop box located in the
dayroom in their housing unit, or they may hand their complaints to staff to place in the
drop box. (Plath Decl. (dkt. #49) ¶¶ 6, 12.) Throughout the relevant time period, Watts
had no restrictions that would have prevented him from accessing the dayroom and placing
any complaints in the drop box. (Bergren Decl. (dkt #50) ¶ 12.) Inmate Complaint
Examiners collect the complaints from the drop box every weekday morning, then the
Inmate Complaint Examiner Office date-stamps the complaints on the day they are
collected. (Plath Decl. (dkt. #49) ¶ 7.)
At Columbia, there are only two keys that Inmate Complaint Examiners can use to
open the locked drop boxes and collect the complaints. (Id. ¶¶ 12-13.) Access to the keys
3 Watts also attests that throughout June, he sent interview/information requests to Warden Larry
Fuchs and his secretary, claiming that “staff” allowed Linzy to threaten him on May 28 and other
prison officials knew about this misconduct but still allowed it to occur. (Dkt. #41-1, at 2, 4; Dkt.
#38-2, at 12-18.) Fuchs or his secretary responded to five requests, indicating that the May 28
matter had been referred to the PREA manager at Columbia, and that prison officials would follow
up with Watts about the matters described in the requests. (Dkt. #41-1, at 2, 4; Dkt. #38-2, at
12-18.) In order for an incarcerated person to exhaust his administrative remedies in Wisconsin
prisons, however, he must file an inmate complaint, rather than an interview/information request.
Wis. Admin. Code § DOC 310.05. So, the court may not consider these requests when deciding
whether Watts exhausted his administrative remedies as to this claim.
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themselves is secured by a passcode, and only Inmate Complaint Examiners have the codes
to access the keys. (Id. ¶¶ 12-13.) Correctional officers are not given the access code, are
not permitted to use the keys, and are not permitted to open the complaint drop boxes.
(Id. ¶ 11.) The drop boxes are also placed in view of cameras. (Id. ¶ 14.) If an inmate
claims that staff are tampering with their complaints, they may also request that the Inmate
Complaint Examiner office preserve and view the footage. (Id.) The ICE office at
Columbia did not receive any footage preservation requests from Watts.4 (Id. ¶ 16.)
Specifically, Watts attests that he submitted three other complaints about the May
28 incident on June 2, June 5, and June, 8, 2024, but that each time, Officer Bergren
brought the complaints back to Watts, tore them up in front of him, and said, “Watts, you
must want to die, stop filing . . . complaints against me and staff.” (Dkt #41, at 10.)5
Watts further represents to the court that he “put [the complaints] in the ICE Box” and
then Officer Bergren “somehow gets a hold of them . . . and brings them back” to him to
rip up. (Dkt. #41-1, at 72-75.) Watts also claims that he asked the ICE Office in an
interview/information request to investigate how this was possible. (Id.) Finally, Watts
4 Watts also submits to this court interview/information requests that ask the security office at
Columbia to preserve the footage outside his cell from May 28. (Dkt. #41-1, at 4.) However, there
are no documented requests that the footage recording the drop boxes be preserved, nor does the
record establish the proper procedure to request preservation of recordings of the drop boxes. (See
id.)
5 Watts submitted the three complaints in question as exhibits to his brief in opposition to
defendant’s motion. (Dkt. #41-1, at 60-70.) The complaints he submitted are intact, and there is
no indication that the Inmate Complaint Examiner office received or processed any of them, as
they were not date-stamped or given a complaint number. (See id.) Watts also submits as exhibits
several other interview request forms that describe that Officer Bergren was tearing up his
complaints and threatening him, but there is no indication on the forms submitted to the court
that Columbia staff ever received, processed, or responded to these requests. (Dkt. #41, at 10-59.)
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declares that Officer Bergren said to him in June 2024 that he should “keep his mouth shut
about the matter and not file complaints against him . . . and staff if [he] wanted to
continue[] to breathe and live.” (Dkt #41, at 8.)
On the other hand, Officer Bergren denies ever threatening Watts to dissuade him
from filing a complaint or obstructing him from filing an inmate complaint. (Bergren Decl.
(dkt. #50) ¶¶ 14-15.) Officer Bergren also attests that he cannot access complaint drop
boxes, and that only Inmate Complaint Examiners can access the drop boxes. (Bergren
Decl. (dkt. #50) ¶ 7.) Furthermore, Officer Bergren’s timesheets show that he was not
working at Columbia on June 5 or June 8, when Watts says that he submitted two of the
three complaints. (Dkt. #50-1, at 1.)
OPINION
The Prison Litigation Reform Act states that “[n]o action shall be brought with
respect to prison conditions under § 1983 of this title, or any other Federal law, by a
prisoner . . . until such administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). Wisconsin law determines the administrative remedies available to Wisconsin
DOC inmates. Jackson v. Esser, 105 F.4th 948, 956 (7th Cir. 2024). To exhaust his
administrative remedies under Wisconsin law, an inmate must submit a complaint to the
Inmate Complaint Review System (ICRS), as well as timely appeal any denial of that
complaint. Wis. Admin. Code § DOC 310.05; Hacker v. Dart, 62 F.4th 1073, 1078 (7th
Cir. 2023). Exhaustion through the ICRS is required even if the prison was already aware
of the conditions about which the inmate complained. Dole v. Chandler, 438 F.3d 804, 809
(7th Cir. 2006). And, the inmate must wait to file suit until the process is complete—
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“administrative remedies must be exhausted before filing suit, rather than in parallel with
the litigation.” Ingram v. Watson, 67 F.4th 866, 869 (7th Cir. 2023) (citing Ross v. Blake,
578 U.S. 632, 638–39 (2016)).
Even so, failure to exhaust is an affirmative defense, meaning a defendant is entitled
to summary judgment on this defense only if he establishes that there are no genuine
disputes of material fact and he is entitled to judgment as a matter of law. Breyley v. Fuchs,
156 F.4th 845, 847 (7th Cir. 2025). Moreover, in considering the record, the court must
draw all reasonable inferences in the light most favorable to plaintiff as the nonmoving
party. Jackson v. Esser, 105 F.4th 948, 956 (7th Cir. 2024).
In this case, defendant first argues that plaintiff failed to exhaust his administrative
remedies as to the July 6 complaint, and that therefore this action must be dismissed. In
response, plaintiff readily admits that he filed this civil action before he completed the
appeals process from the denial of that complaint, but did so hoping the court would
provide protection where the prison failed to do so. While the court understands that
plaintiff may have been frustrated with the delay in response, inmates must strictly comply
with the state’s exhaustion procedures before filing suit in this court. Dole, 438 F.3d at
809. Therefore, because there is no dispute of material fact that plaintiff filed this action
before completing the administrative process for his July 6 complaint, defendant has a valid
affirmative defense for failure to exhaust as to the claims made in the July 6 complaint.
While “the exhaustion requirement is strict, [it is] not absolute.” King v. Dart, 63
F.4th 602, 606 (7th Cir. 2023). An inmate may be excused of from exhausting his
administrative remedies where such remedies are not “available,” including when prison
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employees “use affirmative misconduct to prevent a prisoner from exhausting.” Dole, 438
F.3d at 809; Ross, 578 U.S. at 644; see also Thomas v. Reese, 787 F.3d 845, 847–48 (7th Cir.
2015) (remedies unavailable where correctional officer misrepresents that prisoner cannot
file grievance); Kaba v. Stepp, 458 F.3d 678, 686 (7th Cir. 2006) (remedies unavailable
where prisoner presents evidence that prison personnel have denied forms, threatened him,
and asked other inmates to attack him to prevent filing grievances); Dale v. Lappin, 376
F.3d 652, 656 (7th Cir. 2004) (remedies unavailable where prison personnel prevent
prisoner access to grievance forms); Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir. 2016)
(collecting cases).
Because failure to exhaust is an affirmative defense, “the defendant[] bear[s] the
burden of proof and cannot shift it to require [plaintiff] to show that administrative
remedies were unavailable.” Gooch v. Young, 24 F.4th 624, 627 (7th Cir. 2022). In
particular, “prison officials need[] to ‘do more than point to a lack of evidence in the record;
rather they must establish affirmatively that the evidence is so one-sided that no reasonable
factfinder could find that [the prisoner] was prevented from exhausting his administrative
remedies.” Jackson, 105 F.4th at 958 (quoting Smallwood v. Williams, 59 F.4th 306, 319
(7th Cir. 2023)). If a genuine factual dispute exists on the availability of remedies,
particularly when the dispute turns on the credibility of a sworn statement, summary
judgment is inappropriate, and the court must instead hold a Pavey hearing. Hernandez v.
Lee, 128 F.4th 866, 869 (7th Cir. 2025); Ingram, 67 F.4th at 871. “At a Pavey hearing, the
court may take evidence and determine credibility before rendering the factual findings
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that settle the swearing contest.” Jackson, 105 F.4th at 957 (citing Wilborn v. Ealey, 881
F.3d 998, 1004 (7th Cir. 2018)).
Here, the court must hold a Pavey hearing to resolve factual disputes as to whether
plaintiff’s attempts to file three complaints in June 2024 were thwarted by defendant. If
the court believes plaintiff’s sworn submissions, as it must at this stage, then defendant
affirmatively prevented him from exhausting his administrative remedies by committing
misconduct, and plaintiff may proceed with his claim without having needed to exhaust
his administrative remedies. See Jackson, 105 F.4th at 958. On the other hand, if defendant
would not have and could not have interfered with plaintiff’s submission of grievances as
he attests, then plaintiff failed to exhaust his administrative remedies, and the court must
dismiss this case. In short, plaintiff’s submissions are sufficient to turn this into a “swearing
contest,” necessitating a Pavey hearing. Id. at 957 (citing Roberts v. Neal, 745 F.3d 232,
234 (7th Cir. 2014)).
ORDER
IT IS ORDERED that:
1) The court RESERVES ruling on defendants’ motion for summary judgment on
exhaustion grounds (dkt. #36) pending presentation of evidence at a Pavey hearing
of whether administrative remedies were unavailable to plaintiff on June 2, 5, and
8, 2024.
2) Plaintiff’s motion for a Pavey hearing is GRANTED, and his request for a stay of
this case is DENIED. (Dkt. #41.)
3) Given the security challenges of scheduling an in-person hearing, the clerk of court
is directed to set the Pavey hearing over video conference unless timely objected to
by one or more of the parties. The parties’ witness lists will be due to the court one
week before the hearing.
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4) The dispositive motion deadline is RESET to Friday, April 3. All other case
deadlines remain in place.
Entered this 6th day of March, 2026.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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