United States District Court, W.D. Wisconsin
TOMMIE L. CARTER, Plaintiff,
PATRICK C. HOOPER and BRENT H. EXNER, Defendants.
OPINION AND ORDER
BARBARA B. CRABB District Judge.
plaintiff Tommie Carter is a prisoner in the custody of the
Wisconsin Department of Corrections. He is proceeding on a
claim that defendants Patrick Hooper and Brent Exner used
excessive force against him on February 28, 2013, while
removing his restraints. Now before the court is
defendants’ motion for summary judgment grounded on
plaintiff’s failure to exhaust his administrative
remedies, as required by 42 U.S.C. § 1997e(a). Dkt. #43.
their motion, defendants acknowledge that plaintiff filed a
grievance related to the February 28, 2013 incident. However,
that grievance was rejected because it was filed in September
2013, several months beyond the 14-day deadline. Wis. Admin.
Code § DOC 310.11(5)(d). In response, plaintiff alleges
that he tried on multiple occasions to submit a timely
grievance after the February 28, 2013 use of force, but
prison officials either refused to help him submit the
grievance or, when he was able to submit the grievance,
returned it to him unopened. In their reply brief, defendants
do not deny that, if plaintiff’s allegations are true,
I could not dismiss this case for plaintiff’s failure
to exhaust his administrative remedies. Dole v.
Chandler, 438 F.3d 804, 809 (7th Cir. 2006)
(“Prison officials may not take unfair advantage of the
exhaustion requirement, however, and a remedy becomes
‘unavailable’ if prison employees do not respond
to a properly filed grievance or otherwise use affirmative
misconduct to prevent a prisoner from exhausting.”).
defendants point to various reasons why they believe that
plaintiff’s allegations are not credible, I cannot
resolve that issue on a motion for summary judgment. Rather,
under Pavey v. Conley, 528 F.3d 494, 496-98 (7th
Cir. 2008), I must hold a hearing to resolve these disputes.
is put on notice that, if defendants prove that he fabricated
his allegations about prison officials interfering with his
exhaustion efforts, he may be subject to sanctions beyond
simply dismissal of this case. Because I have sanctioned
plaintiff for fabricating allegations in two previous cases,
Carter v. Waterman, No. 13-cv-742-bbc (W.D. Wis.
Feb. 2, 2016); Carter v. Ashton, No. 14-cv-399-bbc
(W.D. Wis. Feb. 2, 2016), I will consider whether it is
appropriate to impose a more serious sanction, including a
filing bar on new lawsuits. Carr v. Tillery, 591
F.3d 909, 920-21 (7th Cir. 2010); Alexander v. United
States, 121 F.3d 312 (7th Cir. 1997); Support
Systems International Inc. v. Mack, 45 F.3d 185 (7th
Cir. 1995). Both parties should be prepared to discuss this
issue at the hearing.
sake of completeness, I address plaintiff’s alternative
argument, which is that he exhausted his administrative
remedies by completing the grievance process in September
2013. This argument is a nonstarter because it is well
established that a prisoner must “properly take each
step within the administrative process, in the place, and
at the time, the prison's administrative rules
require.” Pozo v. McCaughtry, 286 F.3d 1022,
1025 (7th Cir. 2002) (emphasis added). See also Woodford
v. Ngo, 548 U.S. 81, 90 (2006) (“[P]roper
exhaustion demands compliance with an agency's
deadlines”). In other words, a prisoner cannot satisfy
the requirements of § 1997e(a) by filing an untimely
grievance. Thus, if defendants can show that prison officials
did not interfere with plaintiff’s ability to file a
timely grievance, the September 2013 grievance cannot save
attaches a letter dated June 24, 2016 in which he asks
grievance examiner “Ms. Perttu” whether a
rejected complaint that is reviewed by the warden is
“completely exhausted under the Prison Litigation
Reform Act.” In response, Perttu wrote, “there
are no further appeal options once the warden makes his
decision.” Dkt. #57-1. Perttu did not say that
plaintiff had complied with § 1997e(a); rather, she
observed only that he had no more available administrative
Perttu had given a legal opinion that
plaintiff’s rejected grievance is sufficient under
§ 1997e(a), that opinion would have no bearing on this
case. Although prison officials can waive the issue of
untimeliness by considering a grievance on the merits,
Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir.
2004), that is not what happened in this case. When plaintiff
filed his September 2013 grievance, the examiner rejected it
as untimely; the warden affirmed that decision in accordance
with Wis. Admin. Code § DOC 310.11(6). Under
Pozo and Woodford, that is the end of the
matter. An examiner’s advisory opinion after the fact
would have no legal effect.
evidentiary hearing will be held on Wednesday, September 28,
2016, at 9:30 a.m., to determine whether plaintiff Tommie
Carter exhausted his available administrative remedies as
required by 42 U.S.C. § 1997e(a).
clerk of court is directed to issue a writ of habeas corpus
ad testificandum for plaintiff to appear at the hearing.
Plaintiff should arrive at the courthouse at least ...