United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE.
Jeremy Lockett, a prisoner incarcerated at the Wisconsin
Secure Program Facility, brings this lawsuit alleging that
defendant Correctional Officer Daniel Goff violated his First
Amendment right to complain about harassment by confiscating
and ultimately losing his personal property. Lockett has
filed a motion to amend the complaint, to change the dates of
some of the events listed in the complaint by a day in either
direction. Given the extremely minor nature of these changes,
Goff says that he does not oppose amendment. I will grant
has filed a motion for summary judgment based on
Lockett's failure to exhaust his administrative remedies
on his retaliation claim. Under 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
administrative 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, 537-38 (7th Cir. 1999) (exhaustion
serves purposes of “narrow[ing] a dispute [and]
avoid[ing] the need for litigation”).
to 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), which includes following instructions
for filing the initial grievance, Cannon v.
Washington, 418 F.3d 714, 718 (7th Cir. 2005), as well
as 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).
complaint, Lockett sated that Goff confiscated his property
after he threatened to file a grievance against Lockett for
harassing him. Goff contends that Lockett failed to meet the
exhaustion standards detailed above because he did not file
any grievances putting prison officials on notice of his
retaliation claim. The parties agree that Lockett filed two
grievances about Goff confiscating or losing his property,
but the grievances do not say anything about Goff harassing
him or retaliating against him. See Dkt. 24 and
argues that he does not have to state legal theories in his
grievances, and that he would have notified staff about the
retaliation had they interviewed him as required under
Division of Adult Institutions (DAI) policy #310.00.01
(“When an ICE receives a complaint alleging staff
misconduct of a non-sexual nature, the inmate must be
interviewed as soon as possible.”). Lockett is correct
that, in the absence of particular grievance rule mandating
more, inmates usually do not have to plead legal theories in
their grievances. Riccardo v. Rausch, 375 F.3d 521,
524 (7th Cir. 2004). But a prisoner must still “alert
the prison to the nature of the wrong for which redress is
sought.” Strong v. David, 297 F.3d 646, 650
(7th Cir. 2002). And the state of Wisconsin at least requires
that the inmate “clearly identify the issue.”
Wis. Admin. Code § 310.09(e).
court has addressed this very issue before, stating,
“If the grievance concerns alleged retaliation, then at
a minimum it must identify two things: the protected conduct
that provoked the retaliation and the retaliatory act.”
Sheahan v. Suliene, No. 12-cv-433-bbc, at *3-4 (W.D.
Wis. May 24, 2013) (citing Wine v. Pollard, No.
08-cv-173-bbc, 2008 WL 4379236, at *3 (W.D. Wis. Sept. 23,
2008); Henderson v. Frank, No. 06-C-12-C, 2006 WL
850660, at *2 (W.D. Wis. Mar. 21, 2006)). Lockett describes
the retaliatory act (confiscation of his property) but did
not explain his protected conduct that caused the alleged
retaliation. This is insufficient to put the state on notice
of the nature of the wrong.
Lockett's assertion that he would have explained the
retaliation in a later interview under DAI policy, I do not
read anything in that policy or other exhaustion policies
suggesting that an inmate is allowed to leave out key details
of a grievance to be picked up later in an interview. Nor
does Lockett suggest that he raised the retaliation issue
when he met with the institution complaint examiner as part
of the grievance process. The regulations and case law
discussed above still require an inmate to plead enough about
a retaliation claim to alert prison officials to that claim.
Therefore, I conclude that Lockett failed to properly raise
the retaliation issue.
grant Goff's motion and dismiss this case without
prejudice for Lockett's failure to exhaust it. Ford
v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (dismissal
for failure to exhaust is always without prejudice). He can
refile the claim if he can successfully exhaust it, but he
will likely find it impossible to file a proper grievance
because those events happened too long ago.
1. Plaintiff Jeremy Lockett's motion to amend his
complaint, Dkt. 20, is GRANTED.
2. Defendant C.O. Goff's motion for summary judgment
based on plaintiff's failure to exhaust his
administrative remedies, Dkt. 22, is GRANTED and this ...