United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
Cleveland Powell is a prisoner in the custody of the
Wisconsin Department of Corrections, currently housed at the
Racine Correctional Institution. Powell filed a complaint in
state court regarding conditions of confinement during his
time at the Price County Jail. Specifically, Powell claims he
sustained injuries as a result of having to navigate a
non-handicap-accessible shower at the jail. Defendants
removed the case to this court. Dkt. 1.
defendants move for summary judgment on Powell's federal
claims for failure to exhaust administrative remedies. Dkt.
9. The court will grant defendants' motion and remand his
state-law claim to the Circuit Court for Price County,
is disabled: he has a prosthetic leg. While incarcerated at
the Price County Jail between January 15, 2013, and February
7, 2013, Powell fell and injured himself while attempting to
use a non-handicap-accessible shower. He fell twice: once on
January 24, 2013, and once on February 5, 2013. Powell
alleges that Price County failed to provide safe means for
Powell to access the shower. Powell alleges violations of the
Americans with Disabilities Act (ADA), the Eighth Amendment,
and the Fourteenth Amendment. Powell also brings a state-law
42 U.S.C. § 1997e(a), “[n]o action shall be
brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted.” The exhaustion requirement is mandatory,
Woodford v. Ngo, 548 U.S. 81, 85 (2006), and
“applies to all inmate suits, ” Porter v.
Nussle, 534 U.S. 516, 524 (2002). Its purpose is not to
protect defendants but to give prison officials an
opportunity to resolve complaints without judicial
intervention. Perez v. Wis. Dep't of Corr., 182
F.3d 532, 537 (7th Cir. 1999) (exhaustion “narrow[s] a
dispute [and] avoid[s] the need for litigation”).
comply with § 1997e(a), a prisoner must “properly
take each step within the administrative process, ”
Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.
2002), including following the instructions for filing the
initial grievance, Cannon v. Washington, 418 F.3d
714, 718 (7th Cir. 2005), and filing all necessary appeals,
Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir.
2005), “in the place, and at the time, the prison's
administrative rules require, ” Pozo, 286 F.3d
at 1025. However, “[i]f administrative remedies are not
‘available' to an inmate, then the inmate cannot be
required to exhaust.” Kaba v. Stepp, 458 F.3d
678, 684 (7th Cir. 2006).
Price County Jail Rules, Regulations, and Information
handbook provides that inmates must submit a written
grievance to the on-duty jailer or the jail administrator if
they believe that jail personnel have violated their rights.
Dkt. 12-1, at 11. Inmates may appeal grievance decisions
“to the next level all the way up to and including the
Sheriff.” Id. The sheriff makes all final
received a copy of the Price County Jail Rules, Regulations,
and Information handbook when he arrived at the jail. He
signed a form acknowledging his receipt of the rules on
January 15, 2013. Dkt. 12-2. The jail also posts the rules in
County Jail records indicate that Powell submitted two
written “Request Slips” during his time at the
jail. One, dated January 21, 2013, requested an opportunity
to speak with the jail administrator. Dkt. 12-3. The request
was granted, and during his meeting with the jail
administrator, Powell verbally requested to be transferred to
the Ashland County Jail (a handicap-accessible facility),
and, if not, that the Price County Jail install grab bars in
the showers. Id. The jail administrator had
maintenance install grab bars in the shower area, but not
inside the showers themselves. Dkt. 12, ¶ 15 and Dkt.
17. Powell's second Request Slip, dated January 28, 2013,
again requested an opportunity to speak with the jail
administrator. Dkt. 12-4. This time, Powell verbally
requested medical care. Id. The jail administrator
advised Powell to use a Request Slip to make an appointment
with the jail nurse. Id. Powell also verbally
requested an additional grab bar inside the showers; the jail
administrator denied the additional request. Id.
contends that he exhausted those grievance procedures
that were available to him. Powell states that he
asked to speak to the sheriff, but the jail administrator
denied his request. The grievance procedures do not require
appeals to the sheriff be in writing. And in light of the
fact that Powell transferred to the Ashland County Jail a
mere two days after his second fall, he had no reason to
pursue his claims any further.
parties do not dispute the material facts; the court must
determine whether Powell's actions were sufficient to
exhaust his administrative remedies. Powell essentially
argues that he diligently pursued his claims regarding the
shower conditions during his three weeks at the Price County
Jail. But diligence is not the same as exhaustion. The
reality is that Powell never formally initiated the grievance
process. He attempted to informally address his concerns with
the showers by requesting to speak to the jail administrator,
but after he received unsatisfactory answers, he never filed
a formal, written grievance. The only thing that Powell ever
put in writing was his request to speak to the jail
administrator. Powell never filed any written grievance in
response to his conversations with the jail administrator.
1997e(a)'s “mandatory language means a court may
not excuse a failure to exhaust, even to take [special]
circumstances into account.” Ross v. Blake,
136 S.Ct. 1850, 1856 (2016). The only “exception”
to the exhaustion requirement is that a prisoner need not
exhaust remedies if they are not “available.”
Id. “[A]n inmate is required to exhaust those,
but only those, grievance procedures that are ‘capable
of use' to obtain ‘some relief for the action
complained of.'” Id. at 1859 ...