Jenkins, Feeonquay v. Carr, Kevin et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
FEEONQUAY JENKINS,
Plaintiff, OPINION AND ORDER
v.
24-cv-43-wmc
ELIZABETH DOE #1,
CPT. ERIC H. PETERS,
LT. ETHAN D. MARCZEWSKI,
LT. DYLAN HOFFSTATTER,
SGT. LUKAS ROBERTSON,
SGT. JOSEPH KRAUS,
MICHAEL DOTSON,
JARRON V. BANKHEAD,
JOHN DOE #2, and
TIMOTHY HOUG,1
Defendants,
Plaintiff Feeonquay Jenkins, a former state inmate and current federal prisoner
representing himself, has been granted leave to proceed against named defendants on
Fourth and Eighth Amendment claims. (Dkt. #10.) Specifically, plaintiff’s claims are
against: (1) defendants Hoffstatter, Robertson, Dotson, Marczewski, Kraus, Bankhead,
and John Doe #2 for allegedly invasive strip-searches conducted on May 3 and May 8,
2023; (2) defendant Peters for allegedly directing staff to conduct invasive strip-searches
to pressure Jenkins into providing information about another inmate; (3) defendant
Marczewski for allegedly threatening on May 10, 2023, to do future harm; and defendants
Houg and Eliabeth Doe #1 for failure to intervene in the alleged threats by defendant
Marczewski. Defendants have moved for partial summary judgment on exhaustion
1 The court has corrected the spelling of defendants’ names based on the spelling used in
defendants’ motion for partial summary judgment.
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grounds as to plaintiff’s latter two claims for failure to file timely grievances for his claims
for failing to file timely grievances for his claims arising out of alleged events on May 10,
2023. (Dkt. #21.) In response, plaintiff filed a motion to quash (dkt. #27), which the
court will treat as his opposition. For the following reasons, both defendants’ motion for
partial summary judgment and plaintiff’s motion to quash must be denied.
BACKGROUND
At all times relevant to the complaint, plaintiff Feeonquay Jenkins was incarcerated
by the Wisconsin Department of Corrections (“DOC”) at Columbia Correctional
Institution. On October 16, 2023, an Inmate Complaint Examiner (“ICE”) received
Jenkins’ complaint, CCI-2023-15584. In this complaint, he alleged that defendant Ethan
D. Marczewski threatened ongoing sexual abuse to coerce him into signing a false,
confidential informant (“CI”) form to implicate another prisoner in wrongdoing.
Specifically, on May 10, 2023, Jenkins alleged further that defendants Houg and Elizabeth
Doe #1 were present but failed to intervene. Before filing CCI-2023-15584, Jenkins had
filed other inmate complaints, which alleged that staff conducted unnecessary, staff-
assisted strip searches in a sexually abusive manner. In those complaints, Jenkins alleged
that Lieutenant Marczewski and other Columbia staff touched his genitals and pressed
their fingers into his anal cavity on May 3 and 8, 2023, for no justifiable reason.
The ICE rejected CCI-2023-15584 as untimely. Jenkins appealed this decision,
which was received by the Reviewing Authority on October 20, 2023. However, the
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Reviewing Authority affirmed ICE’s rejection on the basis of untimeliness.2
OPINION
Defendants contend that plaintiff’s Eighth Amendment claims against defendant
Marczewski for threats of future harm allegedly made on May 10, 2023, and against
defendants Houg and Eliabeth Doe #1 for failure to intervene promptly when Marczewski
made those threats are all barred by the Prisoner Litigation Reform Act (“PLRA”), having
failed to exhaust his administrative remedies as required. In particular, the PLRA bars a
prisoner from bringing a civil lawsuit concerning prison conditions “until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). To satisfy
this mandate, a prisoner must follow all of the prison’s rules for completing its grievance
process, Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), including: (1) following
instructions for filing an initial grievance, Cannon v. Washington, 418 F.3d 714, 718 (7th
Cir. 2005); and (2) filing all necessary appeals, Burrell v. Powers, 431 F.3d 282, 284-85 (7th
Cir. 2005).
The exhaustion requirement is designed to afford prison administrators an
opportunity to investigate and resolve grievances before litigation. Woodford v. Ngo, 548
U.S. 81, 88-89 (2006). Thus, a prisoner is required to provide notice of his claim by
specifying “the nature of the wrong for which redress is sought . . . [to give] prison officials
a fair opportunity to address his complaint.” Jackson v. Esser, 105 F.4th 948, 959 (7th Cir.
2024) (internal quotations and citations omitted). And exhaustion is required “even if . . .
2 When an inmate appeals a rejected complaint, the Reviewing Authority’s decision is final. Wis.
Admin. Code § DOC 310.12(10).
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the prisoner believes that exhaustion is futile.” Dole v. Chandler, 438 F.3d 804, 808-09
(7th Cir. 2006); see also Thornton v. Snyder, 428 F.3d 690, 694 (7th Cir. 2005) (“An inmate’s
perception that exhaustion would be futile does not excuse him from the exhaustion
requirement.”).
To exhaust administrative remedies, a Wisconsin prisoner must follow the Inmate
Complaint Review System (“ICRS”) process set forth in Wisconsin Administrative Code
Chapter DOC 310, which begins with filing a complaint with the ICE within 14 days after
the incident giving rise to the grievance. Wis. Admin. Code § DOC 310.07(2). However,
there are exceptions to this 14-day rule. Specifically, Wis. Admin. Code § DOC 310.08(1)
allows an inmate to file a complaint regarding sexual abuse or sexual harassment at any
time, unless a portion of the complaint alleges an issue that does not relate to sexual abuse
or harassment.
After receiving the complaint, the ICE must either accept, return, or reject it. Wis.
Admin. Code § DOC 310.10(2). An inmate complaint may be rejected for several reasons,
including that it was filed “beyond 14 days after the date of the occurrence giving rise to
the complaint and provides no good cause for the ICE to extend the time limits.” Wis.
Admin. Code § DOC 310.10(6)(e). If the complaint is rejected, the inmate may appeal to
the Reviewing Authority within 10 days. Wis. Admin. Code § DOC 310.12(10). The
Reviewing Authority’s decision on rejection is final. Id.
The Seventh Circuit applies a “strict compliance approach to exhaustion,” Dole, 438
F.3d at 809, meaning that if a prisoner failed to complete any step in the exhaustion process
before bringing his lawsuit, the court must dismiss his claims. Perez v. Wis. Dep’t of Corrs.,
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182 F.3d 532, 535 (7th Cir. 1999). “Substantial compliance with administrative
remedies” is insufficient to satisfy the exhaustion requirement. Farina v. Anglin, 418 F.
App’x 539, 543 (7th Cir. 2011) (citing Booth v. Churner, 532 U.S. 731, 739 (2001), and
Dole, 438 F.3d at 809). Even so, a prisoner’s failure to exhaust is an affirmative defense,
which defendants must raise and prove. Davis v. Mason, 881 F.3d 982, 985 (7th Cir.
2018). At summary judgment, therefore, defendants must show that there is no genuine
dispute of material fact as to plaintiff’s failure to exhaust, entitling them to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
I. Threats of Future Harm
Here, it appears that plaintiff timely exhausted his administrative remedies
regarding his claim that defendant Marczewski threatened further sexual abuse because
CCI-2023-15584 is subject to the exception identified in Wis. Admin. Code § DOC
310.08(1), allowing it to be filed at any time. Specifically, to be exempt from the 14-day
limit under Wis. Admin. Code § DOC 310.08(1), the complaint must exclusively allege
sexual abuse or sexual harassment. The DOC’s definition of sexual abuse includes the
penetration of the anal opening where the staff has the intent to abuse the inmate and any
threats by staff to do the same. Wis. Admin. Code § DOC 310.03(17).3
Here, plaintiff’s CCI-2023-15584 complaint only alleges issues related to sexual
abuse or threats of sexual abuse in the future. Specifically, in the section dedicated to
3 For its definition on sexual abuse, Wis. Admin. Code § DOC 310.03(17) wholly relies on
definitions related to sexual abuse that are found in implementing regulations and standards
for the Prison Rape Elimination Act, 28 C.F.R. § 115.6.
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identifying an inmate’s issue, CCI-2023-15584 states that on May 10, 2023, “Lt.
Marcheski and [another DOC] Official used threats of ongoing sexual abuse to coerce me
into giving false [CI] testimony against another incarcerated person,” plainly identifying
threats of sexual abuse. The only other information contained in the complaint concerns
who was present when these threats were made and why defendant Marczewski made
them, all related to the alleged ongoing pattern of sexual abuse. Accordingly, it appears
that CCI-2023-15584 was solely related to sexual abuse and timely under Wis. Admin.
Code § DOC 310.08(1).
Defendants argue that because the court has allowed plaintiff to proceed on claims
for alleged threats of future harm, his claims are separate from sexual abuse and harassment
and the court should apply DOC 310.07(2)’s 14-day limit to file a grievance to any such
threats. (Dkt. #22, at 12.) However, when a grievance must be filed is determined by its
content. E.g., Wis. Admin. Code § DOC 310.08(1). Here, plaintiff’s grievance alleges
threats of sexual abuse, allowing it to be filed at anytime under § DOC 310.08(1) and
neither defendants, nor the ICE or Reviewing Authority, have provided any persuasive
explanation as to plaintiff’s allegations of Marczewski’s threatened, ongoing sexual abuse
(or as discussed below, defendants Hong’s and Doe’s alleged failures to intervene to
disavow them) somehow fall outside the definition of sexual abuse in Wis. Admin. Code §
DOC 310.03(17).
Defendants’ reliance on Dotson v. Faulkner, No. 20-CV-1767, 2022 WL 1810698,
at *1 (E.D. Wis. June 2, 2022), is unpersuasive. In Dotson, the plaintiff claimed she had
been sexually assaulted and, among other claims, alleged that: (1) her Eighth Amendment
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rights were violated when defendants were deliberately indifferent to her need for
psychological services following the assault; and (2) her First Amendment rights were
violated when defendants transferred her in retaliation for reporting the assaults and to
prevent her from pursuing criminal charges. Id. at *1. The district court in Dotson held
that the plaintiff’s belated claims’ untimeliness could not be saved from the defendants’
exhaustion defense under the umbrella of the Prison Rape Elimination Act, since her claims
constituted separate constitutional violations from her underlying sexual assault claim and
were required to be brought within the 14-day window under the ICRS. Id. at *5.
However, unlike the claims in Dotson, the claims brought against defendant Marczewski
are for sexual abuse directly under the PREA definition, and thus, fall under its statutory
exception to the 14-day limit for inmate complaints. Accordingly, the court concludes that
CCI-2023-15584 was timely filed and that plaintiff exhausted his administrative remedies
on this claim.
II. Failure To Intervene
For similar reasons, the court concludes that plaintiff exhausted his administrative
remedies regarding his related claims against defendants Houg and Doe #1 for failing to
intervene to prevent alleged threats of sexual abuse by defendant Marczewski on May 10,
2023. As discussed above, CCI-2023-15584 alleges that defendants Houg and Doe #1
were present and facilitated by their silence the sexual abuse plaintiff suffered despite an
arguable duty under PREA and the Eighth Amendment to speak up. Defendants raise the
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same, equally unpersuasive arguments regarding timeliness for these claims.4 Accordingly,
the court concludes that CCI-2023-15584 was timely filed and that plaintiff exhausted his
administrative remedies on his claims against defendants Houg and Eliabeth Doe #1.
ORDER
IT IS ORDERED that:
1) Defendants’ motion for partial summary judgment (dkt. #22) is DENIED.
2) Plaintiff Feeonquay Jenkins’s motion to quash (dkt. #27) is DENIED as moot.
3) The Clerk of Court is directed to amend the caption of this case consistent with
this order and set a new scheduling conference for the parties with Magistrate
Judge Boor.
Entered this 19th day of March, 2026.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
4 Unlike Dotson, plaintiff’s claims against Houg and Doe #1 are for their failure to intervene in
defendant’s alleged sexual assault not how their response to his request for medical care or his act
of filing a grievance against them. 2022 WL 1810698, at *5-6
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